I’m going to do in one post the “bottom 90” of Professor Robert Blomquist’s “100 Most Creative Moments in American Law” (having dealt with the top 10 in the last two posts). I still applaud the professor’s enterprise: it’s a provocative activity, and a useful one. With the bottom 90, though, things get a bit left-ish — reflecting (I imagine) the views of the legal historians who were polled for the article.
I pick only the entries that most got under my skin.
# 12 — “Secretary Alexander Hamilton’s plans for American Economic Policy (1789-1796)” — Just seems like the wrong list. Nothing legal about what Hamilton did. I’m a big fan of Hamilton’s, but this is out of place. Also, he resigned as Treasury Secretary in January 1795, for those of you who are feeling picky..
# 15 — “James Kent, Commentaries on American law (1826-30)” — I haven’t read these Commentaries, and I’m sure they’re improtant, but 15 ranks above the Fourteenth Amendment? I don’t think so.
# 44 — “Aldo Leopold, A Sand County Almanac (1949)” — This was the only entry on the list that I had to look up. It’s an environmental journal from the 1940s in Sauk County Wisconsin. Mr. Blomquist applauds it as introducing the “seminal concept of a ‘land ethic.'” Sorry, no sale. It’s not law, not important enough, not moving on to the next round.
#45 — “Justice Douglas’ dissent in Sierra Club v. Mortion (1972)” arguing that trees should have standing — Creative, sure, but oh, so wacky. They listed this one, but not his invention of the “right to privacy” in Griswold v. Connecticut. I dissent.
# 46 — “Charles Reich, The Greening of America (1972)” — Fellas, the sixties are over. And the seventies. Has anyone read this in 20 years?
# 71 — “Sherman Anti-Trust Act (1890)” — This is # 71! Twenty-seven ranks behind Aldo Leopold! The whole world has copied this law, which was a tremendously creative response to a huge social challenge. America invented the whole idea of antitrust law (though we’ve been working pretty hard to gut it lately). Professor, you should be ashamed of your colleagues for disrespecting antitrust. Aldo Leopold?
# 74 — “President Lincoln standing for re-election during the Civil War (1864)” — I’m real glad Lincoln did run for re-eleciton, which was great for the country. But the professor’s point is that Lincoln could have declared an emergency, called of the elections, and made himself president for life. Why am I hearing about this for the first time in this article? Nobody in 1864 seemed to think this was a real possibility, nor did Lincoln. 21st century conspiracy theory transported to 1864. Almost embarrassing. Shoot, it is embarrassing.
# 83 — “Baker v. Carr (1963)” — Wow. This case established the principle of one person/one vote, inscribing democratic principles nto our national life for all time, and it’s 37 ranks behind Charlie Reich. Seriously bad call.
# 100 — Goldberg v. Kelly (1970) — A landmark due process case which made up about 80 percent of my first semester civil procedure course. I just felt so validated to find it on the list.
Despite my gripes, it’s a great ride. Check out the professor’s list. Gets you thinking.