SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Monday, May 10, 2004

JUDGE NOONAN: THE FLIP SIDE Below is my review for (now) Senior Judge John T. Noonan's book on "masks," which I will be posting to Amazon tomorrow.

Persons and Masks of the Law Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks
University of California Press: (Paperback ed.) 2002
By John T. Noonan

Scholarly Analysis of an American Legal Phenomenom(5 Stars)

Combining a fascinating legal analysis with legal history, [now Senior Judge] John Noonan has written a fine book. Tracing the jurisprudence of some major legal minds from three different periods in American history, Noonan demonstrates how a preoccupation with LAW as a detached set of rules with a life of its own can lead to the obscuring of the human element in law.

Rules are clearly necessary to an orderly society and to the adjudication of disputes between parties—but rules are conceived of in the minds of people and are applied by people to cases and controversies involving people. An overemphasis upon law as a detached science of rules can allow for the creation of rules that obscure the humanity of people who are subjected to them. These sorts of rules Noonan describes as “masks.” (Masks are to be distinguished from “roles,” which people assume, but which they are not consumed by.)

Noonan’s chronicling of George Wythe and (his student) Thomas Jefferson’s legal involvements with the old slave codes provides a stark example of how masks have been used in the history of American law. That section was particularly interesting from a scholarly and historical standpoint, as Noonan describes them in all their utter brutishness, proceeding to delve into the (hypocritical) political, economic and social purposes for which they were created.

Also interesting is Noonan’s analysis of Oliver Wendell Holmes’ legal thinking and how that thinking was employed in the U.S. Supreme Court case of American Banana Co. v. United Fruit Co. (1909). In this reviewer’s opinion, there is greater moral ambiguity in the case of sovereign immunity than there is with chattel slavery, but Holmes clearly employed a mask in the American Banana case. Noonan does a fine job of describing the backdrop to the case and all the major players involved in the litigation.

Finally, Noonan discusses Cardozo’s masking of the plaintiff in the infamous Palsgraf case from the New York Court of Appeals. This was fun to read, as Palsgraf is one of those cases all law students read in their first-year torts classes.

It would probably prove too much to say that this book has appeal for a wide audience. In all likelihood, only those who are seriously interested in legal scholarship and legal history will find it of interest. Much of the analysis takes place at a high level of abstraction. But given that the book is originally based upon a prestigious serious of law lectures, it should satisfy its intended audience.

ADDITIONAL THOUGHTS: This review is the promised follow-up to my earlier review of Judge Noonan's Narrowing the Nation's Power, which managed to receive less than stellar marks. I am more than glad to publish this much more positive review, since Judge Noonan really has a first-rate legal mind that deserves much appreciation.

Perhaps one might be able to make an argument that Judge Noonan's use of the pre-amble of the Constitution in Narrowing the Nation's Power to critique the "New Federalism" is simply a manifestation or application of the analysis he provides in the book reviewed above. That is to say: perhaps aspects of the "New Federalism" have overlooks that the Constitution is concerned with people and has instead somehow masked their humanity by recognizing certain limits upon federal power. Judge Noonan does indeed discuss the concept of "sovereign immunity" in both books.

I am not so sure that argument is persuasive. In any event, much of the criticism I saved for Narrowing the Nation's Power had to do with his attacks upon the motives and morality of the majority opinions in some of the recent "New Federalism" decisions. I thought those uncalled for, and particularly awful in light of the fact that seemingly no consideration was given to the notion that it is UNJUST for a government of limited powers to usurp it's authority. Again, this is NO argument for "States' Rights"--indeed, states as such do not have "rights," but merely "powers" that people delegate to them for the purpose of providing for the common good and protecting their "rights" as individuals.

(Everett, WA)


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