Law Schools/Study of Law • Et. Seq: The Harvard Law School Library Blog

The Law and Police Searches

I recently returned from a leave of absence from the library. During my leave, I was fortunate to teach a US Criminal Law and Procedure course at the University of Würzburg in Germany.  Criminal Procedure was one of my favorite classes in law school, and I relished the opportunity to talk about the Fourth Amendment with German law students for an entire semester.

The language of the Fourth Amendment is, perhaps, as broad as it is on purpose:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This, of course, is where we started the semester – we spent a whole class session exploring what the students thought words like “secure” and “persons” and “search” and “unreasonable” should and do mean.  Then, we spent the rest of the course digging through the American case law on the topic, in which the courts have provided definitions of those legal terms of art.  We read and discussed some of the U.S. Supreme Court’s seminal cases on Fourth Amendment searches: Terry, Mapp, Kyllo, Stoner, and Chambers.  We also looked briefly at many cases in which U.S. courts have carved out exceptions to the requirement that the police get a warrant before conducting a search.

I was SO impressed by the German students during this course!  Germany has a civil law tradition, which means that, aside from opinions issued by the country’s Federal Constitutional Court, German judicial decisions are not viewed as binding legal precedent.  This means that German law students spend most of law school studying statutory codes, not reading cases, let alone cases in a foreign language.  But they were up for every challenge, and we had enough time left over at the end of the course that I could throw in a class dedicated to Miranda.

Week after week, we kept coming back to the use of the exclusionary rule, which states that evidence that was seized by the police in violation of the defendant’s Fourth Amendment rights cannot be used against the defendant at his or her criminal trial.

One case we discussed, U.S. v. Nora, 765 F.3d 1049 (9th Cir. 2014), had a particular impact.  In the home in which a criminal suspect lived with his wife and kids (!), the police conducted a warrantless search and seized the following:

Narcotics: cocaine, cocaine base, marijuana, heroin, and methamphetamine, hidden in drawers and behind the refrigerator.

Weapons: six handguns, one rifle, and two shotguns (all with ammunition), hidden in a closet and in the garage.

The search was ruled to be unconstitutional, which meant that, under the mandatory application of the exclusionary rule, the evidence could not be used against the defendant in his criminal trial.

In the face of a case with these facts, is it even possible that the exclusionary rule is a good idea?

Supreme Court Justice Clarence Thomas perhaps doesn’t think so.  Earlier this week, the Supreme Court issued an opinion in the case of Collins v. Virginia, in which a warrantless search of the defendant’s driveway led to the seizure of a stolen motorcycle.  In an 8-1 decision, the Court held that searching a driveway, which is to be considered as part of the curtilage of the defendant’s residence, without a warrant or an applicable search warrant exception, violated the suspect’s Fourth Amendment rights.

Justice Thomas agreed with the Court’s holding, but wrote separately to express his doubt about the validity of the mandatory application of the exclusionary rule.  ScotusBlog described Justice Thomas’s opinion as follows:

“Justice Clarence Thomas wrote a separate opinion in which he agreed with the majority’s resolution of the Fourth Amendment question. But Thomas stressed that the case was before the justices because, if Collins is correct and his Fourth Amendment rights were violated, the state courts would have to apply the exclusionary rule, which prohibits the government from using evidence obtained in violation of the Constitution, and “potentially suppress the incriminating evidence against him.” Thomas expressed “serious doubts” about the Supreme Court’s authority to require states to follow the exclusionary rule, which is “not rooted in the Constitution or a federal statute,” and he urged the court to take up that question.”

(http://www.scotusblog.com/2018/05/opinion-analysis-justices-decline-to-extend-fourth-amendments-automobile-exception/)

Overall, after talking about it every week for the whole semester, the German students in the course came out in favor of the exclusionary rule as an important check on the power of the police, although they were, at times, disappointed in its mandatory application.  The course also made them think a lot more carefully about police procedure in their own country, and about the idea that the separation of powers provides important checks and balances in a legal system (here, the judicial branch checks the executive branch).

If you’re interested in reading more about this topic, the Harvard Library collections have some recent books you might want to explore:

The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy, by Michael Gizzi and R. Craig Curtis (University Press of Kansas, 2016)

The Fourth Amendment: Origins and Original Meaning, by William J. Cuddihy (Oxford University Press, 2016)

Police: A Field Guide, by Davide Correia and Tyler Wall (Verso, 2018)

The Unexpected Scalia: A Conservative Justice’s Liberal Opinions, by David M. Dorsen (Cambridge University Press, 2017)

Written Out of History: The Forgotten Founders Who Fought Big Government, by Mike Lee (Sentinel, 2017).

852 RARE: Speak, Memory* – Law Student Study Aids, circa 1674

In our occasional series of posts about games in the HLS Library’s Historical & Special Collections, we’ve covered playing cards describing notorious trials and educational flash cards for students of civil law. With exams around the corner, it’s a good time to shine a light on mnemonic devices – centuries-old techniques that aid in learning and retaining information in memory.

We have a beautiful first edition of Johannes Buno’s (1617-1697) work, Memoriale Codicis Iustinianei (1674). It features elaborate fold-out engravings, each corresponding to one of the books in Justinian’s Codex. The Codex is part of the Corpus Juris Civilis, the codification of Roman law ordered early in the 6th century AD by Emperor Justinian I.

Johann Buno, Memoriale Codicis Justinianei (1674), p. 58. HOLLIS no. 4299003.

Johann Buno, Memoriale Codicis Justinianei (1674), p. 58. HOLLIS no. 4299003.

Buno, an educator and theologian, distilled this massive trove of Roman law into a brief 83-page study aid. Taken together, the summaries and the engravings helped students master the contents of the Codex by combining fables, images, and letters. Buno called this the “Emblematische Lehrmethode,” or “Emblematic Teaching Method.” Let’s give it a try.

Here is the engraving that helped students master Book 9 of the Codes, which covers criminal law and procedure.

Johann Buno, Memoriale Codicis Justinianei (1674), Engraving for Book 9, after p. 36. HOLLIS no. 4299003.

Johann Buno, Memoriale Codicis Justinianei (1674), Engraving for Book 9, after p. 36. HOLLIS no. 4299003.

A detail from Buno’s distillation of the text, Title 9.1, “Those who may not accuse,” (Qui accusare non possunt”) is shown here.

Johann Buno, Memoriale Codicis Justinianei (1674), Beginning text for Book 9.1, p.37. HOLLIS no. 4299003.

Johann Buno, Memoriale Codicis Justinianei (1674), Beginning text for Book 9.1, p.37. HOLLIS no. 4299003.

Presumably, a glance at the corresponding image in the upper left of the engraving, shown in detail here, would jog a student’s memory.

Johann Buno, Memoriale Codicis Justinianei (1674), Engraving for Book 9, detail, after p. 36. HOLLIS no. 4299003.

Johann Buno, Memoriale Codicis Justinianei (1674), Engraving for Book 9, detail, after p. 36. HOLLIS no. 4299003.

Or perhaps not. Things may have gotten lost in translation over time. At any rate, it is worth remembering that study aids for law students go back centuries, and that yesterday’s magnificently engraved book is today’s handwritten law student notebookelectronic casebook, or commercial outline. However you learn the law, good luck with your exams!

 

* with apologies to Vladimir Nabokov

 

 

 

 

 

NEW! HLS Library Bicentennial Exhibit Now On View

Collections | Connections  

Stories from the Harvard Law School Library

HLS Bicentennial Exhibit PosterThe Harvard Law School Library’s new exhibit celebrates HLS’s Bicentennial through the stories of some of the Library’s 2 million items and the people behind them. On view are historic photographs, striking rare books and early manuscripts, books published all over the world, fun glimpses of HLS Library history, and even an Awesome Box!

Collections | Connections documents the evolution of the Harvard Law School and its Library in response to the School’s evolving role in relation to society, legal education, and technology. Yet it is the people who make a place. Groups and individuals highlighted throughout this exhibit have cultivated the life and ethos of the Harvard Law School. Learn how the Library preserves this continuing story of the HLS community: faculty, students, alumni, and staff who are moved to question, prepared to reason, and called to act.

The exhibit is arranged around six themes: Keepers of Memory, Global Citizens, Promoting Justice, Supreme Court Clerks and their Justices, Library as Lab, and Preserving Legal Heritage. Curated by many members of the HLS Library, it is on view daily 9 to 5 in the Caspersen Room, fourth floor of Langdell Hall, through June 2018.

852 RARE: Games People Play*

Believe it or not, Historical & Special Collections is home to some law-related games, including playing cards and materials created to help students learn the law. This set of educational cards, published in Halle, Germany in 1709, was intended to teach students civil law.

Civil Law Playing Cards

Chartae Iusoriae Juridicae (Halle, 1709), HOLLIS 3706209.

Our set consists of 34 cards, numbered 2 through 35. Each card contains several principles of civil law, written in Latin. The principles are numbered 5 through 194. It’s too bad the first card is missing from our set! Each card has been backed with marbled paper, and the whole set fits into a papier mâché box, also covered with marbled paper.

Case and Playing Cards

Case and Playing Cards, HOLLIS 3706209.

There is an eight-page instruction booklet, written in German, bound into marbled paper wrappers that match the playing cards. Students could use the cards as simple flash cards for self-study, or gather with a group of fellow students for a scintillating round of play. Here are a few excerpts from the instructions, translated by Jennifer Allison, an HLSL Foreign, Comparative, and International Law Librarian:

  1. Those who would like to familiarize themselves with these laws and repeat them at will / must start by learning the first law on a card / tam quoad numerum, quam quoad sensum, and discuss it with their fellow players / who do the same thing.
  2. Once this has happened / they both, or also four, five, and six [people] could … / sit together / shuffle the cards / and deal them out to each player.
  3. At this point, the person who received the first card starts / by asking his neighbor a question about one of the cards in his hand e.g. ex fol 8. An possessor rerum immobilium satisdare teneatur? If this person answers / quod sic; he has answered incorrectly and must take the card / and must read … out loud from it / so that the other players, ex auditu, can be informed of the law. …
Instruction Booklet

Instruction Booklet, HOLLIS 3706209.

Let’s hope they were drinking lots of beer. Nevertheless, it’s a good reminder that legal study aids – and the market for them – have been around for a long time. Good luck in your law school studies, whichever study method you choose!

*with apologies to Eric Berne

852 RARE: Medieval Manuscripts Online – Magna Carta & More

The HLS Library’s Historical & Special Collections is pleased to announce the release of two early manuscript digital collections of interest to students and scholars of medieval Anglo-American legal history. We are grateful to the Ames Foundation for contributing some of the funding for these projects.

To celebrate Magna Carta’s 800th birthday, we have digitized our entire manuscript collection of English statutory compilations, which include Magna Carta, dating from about 1300 to 1500. Many of the volumes have beautiful illustrations, like the one shown here.

HLS MS 12

Magna Carta cum Statutis, ca. 1325. HLS MS 12, fol. 27r.

One of our favorites is a Sheriff’s Magna Carta – a single-sheet copy of the statute which was read aloud in a town square four times a year.

HLS MS 172

Magna Carta, ca. 1327. HLS MS 172.

We have also digitized our entire manuscript collection of registers of English legal writs, which were used to initiate legal actions in a court. Our collection of registers dates from about 1275 to 1476. Most of our manuscript registers are fairly humble, but this one has a magnificent illuminated initial:

HLS MS 155

Registrum Brevium, 1384. HLS MS 155, fol. 34r (detail).

 Cataloging information for each manuscript may be found by searching HOLLIS and browsing by “other call number”: HLS MS XXX; XXX refers to the manuscript number.

The Ames Foundation has begun a project to fully describe the contents of these statutes and registers to make them even more useful to scholars. Read more about the project, see an example of a fully-described manuscript (HLS MS 184), and find out how you can help.

Together with our recently released English Manor Rolls digitization project, these materials open up a new realm of research possibilities to scholars around the world. We hope you enjoy them!

CALI Unconference

We are currently hosting the 2014 CALI Conference for Law School Computing here at Harvard Law School.  Before the official conference started, several attendees met on Wednesday, 6/18, for an “Unconference.”

The Unconference agenda was completely attendee-driven: the participants selected topics and then broke off into small groups to discuss them.  Topics included:

  • Is “Law Practice Technology” Worth Teaching as Part of an Advanced Legal Research Course?
  • Flipped Classrooms
  • Building Virtual Communities
  • Polling Tools
  • How Do We Train Faculty to Understand When Multimedia Tools Are Adding Value, When They’re Just Wanting to be “Cool”?
  • What Tool has Really Helped a Colleague Teach and Didn’t Demand a Lot of Time?

Check out http://bit.ly/PreCALI for notes from the sessions.

Thank you to the attendees for some great discussions!

852 RARE : New Collection: The Albert F. Burt Letters, 1911-1913

Historical & Special Collections is pleased to announce the opening of a new Modern Manuscript collection, The Albert F. Burt Letters, 1911-1913.

The Albert Burt (Harvard Law School, class of 1914) collection is relatively small by Modern Manuscript standards containing a mere 63 letters and 7 postcards.  But these 70 documents provide unique and invaluable insight into the life of a Harvard Law School student in the early twentieth century. In these letters written to his mother, father and two brothers , Albert writes about everything from the weather and housing, to life in Cambridge and, perhaps most interesting of all, his social and academic life at the Law School.

In one letter, dated October 29, 1911, Burt provides vignettes of faculty members.  He refers to professor Joseph Beale as the “argumentative Prof”  and notes a comment by a fellow student that, “doesn’t the old cuss love to get you to make a fool of yourself?”  Professor Bruce Wyman is described as the “round, roly-poly, jolly, smiling prof” who will, “… do pretty much nearly all of the work if you’ll let him.”

Excerpt of letter dated October 29, 2911. Box 1, folder 10 of the Albert F. Burt Letters.

Excerpt of letter dated October 29, 2911. Box 1, folder 10 of the Albert F. Burt Letters.

Dean Ezra Ripley Thayer is mentioned in a letter to Albert’s brother Howard written in November 1911.  He writes that, “…now it is etiquette in that class not to ask any questions unless you really want to know, because it takes the Dean so long to give a poor answer if he tries it himself and because you doubt whether the answer is trustworthy if he turns the question on the class.”

According to one letter the recently built Langdell Hall appeared to have been something of a novelty to students. In a letter dated October 22, 1911 Burt mentions that, “The whole plan of the institution seems to be that we should do our studying in these places”.   (The other “place” being Austin Hall.)  Encouragement to do so includes the existence of “… a whole staff to get us the books and everything we need in using them…” and that students were “…provided with lockers in the basements…” to store books and other necessary items.

This Albert F. Burt Letters will be of interest to anyone interested in the history of the Law School.  The HOLLIS number is 13846966.  A finding aid is also available. Researchers interested in using the collection should contact Historical & Special Collections and schedule an appointment.

Post contributed by Edwin Moloy, Curator of Modern Manuscripts.

852 RARE : Learning at Litchfield Law School

The Harvard Law School Library is pleased to announce the digitization of its collection of student notebooks from the Litchfield Law School.

The Litchfield Law School in Litchfield, Connecticut is generally considered to have been the first formal law school in the United States. Established in 1784 by Tapping Reeve (1744-1823) the school was in operation for almost 50 years, closing in 1833.  Reeve was the sole lecturer until he hired former student James Gould (1770-1838) in 1798, which was the same year that he became a judge on Connecticut’s Superior Court. The Harvard Law School Library’s Historical & Special Collections has 64 volumes of Litchfield student notebooks recorded by 17 students between 1803 and 1825. An example is this page from the notebook of Elisha Whittlesey:

First page of Elisha Whittlesey’s notes on James Gould’s Contracts course in 1813. From HLS MS 4106, vol. 2, Hollis 2143582.

Approximately 1000 men attended Litchfield Law School and many of them went on to significant careers in law, business or education.  Notable students include: Aaron Burr, Levi Woodbury, John Pierce Brace and John C. Calhoun.  (The Litchfield Historical Society has a complete database of students). In addition to the contributions made by many students of the school to the development of the United States, the notebooks provide valuable insight into the development of American common law.  The notebooks can be accessed through the Litchfield Law School Student Notebooks finding aid.

Post contributed by Edwin Moloy, Curator of Modern Manuscripts.

Book Event: In Defense of Women: Memoir of an Unrepentant Advocate

In Defense of Women: Memoir of an Unrepentant Advocate (Beacon Press)
by Nancy Gertner

A panel discussion of women and the law with

Judge Nancy Gertner (Ret.), Professor of Practice, Harvard Law School

Martha Minow, Dean and Jeremiah Smith, Jr. Professor of Law, Harvard Law School

Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, Harvard Law School

Martha Coakley, Massachusetts Attorney General

Robin Young, National Public Radio (NPR)

In connection with this event, the Harvard Journal of Law & Gender has published 3 reviews of the book.

Tuesday, February 21st, 6:00pm
Austin Hall West 111
Harvard Law School

Refreshments will be available.

Free and open to the public.

Co-sponsored by the Harvard Law School Library, Harvard Women’s Law Association, Harvard Journal of Law & Gender and the Harvard American Constitution Society

852 RARE: The Weekly Special – One Man’s War

Among the more interesting surprises to emerge among books being moved from a Library storage area recently was a collection of newspaper articles by an escapee from a World War II German prisoner of war camp. The writer was Lucien Roger Lièvre, a former member of the French Army—who also happened to have earned an LL.M. degree from Harvard Law School in 1938.

Harvard Law School yearbook, 1938, p. 304

Lièvre's 1938 HLS yearbook photo

It’s unclear where his serial account–written in English under the pseudonym Lucien R.L. Leroy–was published, but it came out while the war was still in progress; the Library acquired it in May 1942. Knowing that adds an immediacy and a poignancy to the now-yellowed newsprint account of deprivations—and ultimately, Lièvre’s escape to freedom.

First page of Lièvre's article.

In and out of a Nazi prison camp. By 1st lieut. Lucien R.L. Leroy of the French Army

"Design for Escape" (as drawn by Lièvre after the escape)

Lièvre's escape route, as drawn by him after the fact.

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