John Austin and H.L.A. Hart are two of the most renowned figures in English jurisprudence. Austin formulated his version of legal positivism in his lectures at University College London in the early 1830s. Hart began developing a more sophisticated version of positivism around the time he was appointed as Oxford’s Professor of Jurisprudence in the early 1950s. But what happened to English jurisprudence during the many years that separated Austin and Hart? This Article examines the predicament of English jurisprudence during those years. It is shown that although various efforts were made to move English jurisprudence beyond Austin, the subject remained unimaginative and basically moribund. The Article then considers why, at a time when the American law schools were developing new conceptual and theoretical approaches to law, English jurists should have been incapable of jurisprudential innovation. Indifference and even hostility toward jurisprudence on the part of black-letter lawyers, and a general English tendency to denigrate theory and undervalue systematization, have sometimes been put forward as explanations for the failure of jurisprudence to develop as a discipline during the period separating Austin and Hart. It is argued in this Article that, while those explanations should not be dismissed, jurisprudence was slow to develop because law barely existed as an academic discipline in England during this period, and because, when the English law faculties did begin to emerge, they were generally not suited to the encouragement of serious jurisprudential inquiry.
Issue 1
Lyons v. Oklahoma, the NAACP, and Coerced Confessions Under the Hughes, Stone, and Vinson Courts, 1936-1949
The Supreme Court’s 1944 decision in Lyons v. Oklahoma, affirming the murder conviction of W.D. Lyons, a poor, young, black man from rural Oklahoma, failed to garner mention in any major newspaper. Now almost seventy years old, Lyons has received little attention among legal scholars and historians. But the story of W.D. Lyons offers the modern reader a window into the world of criminal justice during the Jim Crow era.
Rather than being an obscure footnote in the history of constitutional criminal procedure, or just another example of racial discrimination in the pre-civil rights era, Lyons is an important case that deserves to be revisited. Lyons presents an intriguing constitutional puzzle that provides insight into the confused evolution of coerced confessions and the Due Process Clause of the Fourteenth Amendment under the Hughes, Stone, and Vinson Courts. Interestingly, this period marks the beginning of both the doctrine and the debates that ultimately culminated in Miranda v. Arizona, a case that continues to be a source of controversy.
This Note examines the early evolution of the doctrine surrounding coerced confessions and the Due Process Clause, using Lyons as a point of departure. Lyons provides an excellent case study in that it shares many characteristics with the early Southern cases that inspired the coerced confession doctrine, yet it also marks the boundary that divides one stage of cases from the other. Finally, Lyons also casts light upon the larger jurisprudential battles that divided the Supreme Court in the 1940s and beyond.
The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson
In his recent essay, Why Conservative Jurisprudence Is Compassionate, Judge J. Harvie Wilkinson defends conservative jurisprudence against a claim that he believes unfairly derogates the normative attractiveness of conservative jurisprudence—specifically that conservative jurisprudence lacks compassion. To Judge Wilkinson, conservative jurisprudence, properly understood, can “more than hold [its] own” against its liberal counterpart in the compassion debate.
This essay responds to Judge Wilkinson’s thesis. It first articulates the arguments advanced by Judge Wilkinson in support of his thesis but then suggests that, even if his contentions hold some resonance, they still fall short of the goal of defending contemporary conservative jurisprudence as compassionate.
To begin with, Judge Wilkinson’s arguments are essentially only negative points about the purported overuse of compassion in liberal jurisprudence; they are not positive propositions suggesting that conservatism has its own unique vision or understanding of compassion. Moreover, Judge Wilkinson’s attempt to defend conservative jurisprudence is misplaced because the conservatism he describes is not contemporary conservative jurisprudence. Rather contemporary conservative jurisprudence, in order to achieve its desired results, is marked with the exact same jurisprudential deficiencies that Judge Wilkinson condemns in liberal jurisprudence. Finally, Judge Wilkinson’s attempt to defend contemporary conservative thought against liberal attack is misdirected because the liberal/conservative dichotomy he describes is not the primary line that currently divides the conservative and liberal camps. The division is not between a jurisprudence that inappropriately responds to individual poignancies and one that relies on sharp lines and collective concerns. Rather the essential division is between a liberal jurisprudence geared to protecting the marginalized groups in society versus a conservative jurisprudence that tends to reinforce the existing powers of dominant groups. As this essay demonstrates, conservatives have taken their role in protecting entrenched interests quite seriously. They have expanded the constitutional rights of already powerful interests. They have opposed liberal attempts to increase the constitutional protections accorded marginalized groups. They have invalidated legislative attempts that would reduce the disparities between the powerful and the marginalized in the political marketplace. They have consistently resisted both constitutional and legislative attempts to increase the access of disadvantaged litigants to courts of justice. Accordingly, the essay contends that the claim that such a jurisprudence is “compassionate” is difficult to sustain.