Wednesday Writs for 12/5

Wednesday Writs for 12/5
Wednesday Writs for 12/5

Schenk Flyer

    [L1]: The year was 1917. The United States was embroiled in the first World War, and a draft had been instituted. A Mr. Schenk, the admitted general secretary of the “Socialist Party”, and others in his group were mailing out flyers and literature to draftees, denouncing the war and the draft. The flyers encouraged the drafted men to defy the orders, averring that the conscription violated the 13th amendment prohibiting involuntary servitude. But Schenk et. al. found themselves charged by the government with conspiracy and misuse of the mail for sending out the literature which, they alleged, obstructed recruiting and incited insubordination. They were convicted, and appealed on the grounds that the charges amounted to violation of their first amendment rights. The case made it to the Supreme Court, in Schenk v. United States, our case of the week. The Court ruled unanimously against the socialists. Writing for the court, Justice Oliver Wendell Holmes said the following:

…when a nation is at war, many things that might be said in time of peace are such hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.

In the opinion of the Court, the realities of wartime could justify the imposition of stricter restrictions on the freedom of speech. Holmes also made the following statement, which is perhaps the most well-known and lasting detail of the Schenk case:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

[L2]: SCOTUS members are back on the bench on January 7th to begin hearing the first oral arguments of 2019. Among those on the docket are cases involving copyrights, FDA warnings, governmental immunity, and Native American hunting rights.

[L3]: Are law schools adequately preparing students for the modern practice of law? Forbes contributor Mark Cohen isn’t so sure.

[L4]: Second year Law student Joshua Quick made headlines last month when he fought with a man who opened fire at a Florida yoga studio. In appreciation of his heroism, his law school rewarded him with $30,000 toward his education.

[L5]: When Citizen United was decided, John Paul Steven read his dissent from the bench. It was notable at the time that he had some difficulty reading, and he decided that same day to step down. What no one knew, not even Justice Stevens, was that he had suffered a mini-stroke.

[L6]: Pennsylvania’s former attorney general reports to jail this week. Kathleen Kane’s appeals were denied; she will serve ten months for leaking grand jury documents and lying under oath.

[L7]: Everyone loves dad jokes. Everyone loves lawyer jokes. Here is a short list of jokes that are both: lawyer/dad jokes, if you will.

[L8]: Genetics is funny, and it seems we are constantly finding out new ways in which our genes decide who we are, and not just in a physical sense. A man in New Mexico charged with a (very) violent crime is appealing his conviction, arguing that his attorney should have been permitted to present evidence that he carries “the warrior gene”, and is thus predisposed to violence.

[L9]: Jay-Z: rap god, fashion mogul, and advocate for diversity in arbitration?

[L10]: Our dumb criminal of the week just couldn’t get a handle on things. Like his gun.

[L11]: YouTube Channel recommendation: History Boy. YouTube channels are big with kids these days, but most of them are video game related. This young man makes short videos of interesting history tidbits- like this one, containing a quote by Justice Holmes, a civil war veteran. (Warning: graphic images).

Oliver Wendell Homes civil war quote


Senior Editor

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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8 thoughts on “Wednesday Writs for 12/5

  1. lying under oat

    This is a law from those old Pennsylvania Quakers, isn’t it? No man shall lie under the sacred oats that are intended for nutritious breakfast cereal.

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    • Buck v. Bell used this case as partial justification as well.

      Hey, we’ve established that the state can call upon young men and enlist them into the army and make them go to war where they might die. Like, we established it to the point where it cannot even be questioned.

      If you’ve swallowed that camel, it much easier to swallow the gnat of telling women that they need to stop having kids.

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  2. L8: I just wanted to say that I enjoyed the linked post quite a bit, particularly his description of the “sliding scale” of killing people.

    I’m not a lawyer, but I think his point is valid – the jury probably did reach the right conclusion, but the process was definitely flawed.

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  3. L3: Law School is the advanced vocational school that wants to be academic. I think legal writing would be better focused if it taught how to draft and respond to discovery, add provisions to a boilerplate contract, draft and respond to meet and confer letters, case management statements etc. but this would drive law professors up a wall so we teach the appellate brief, something that very few lawyers will ever work on. If you want them to draft a document for a judge make it a motion to compel or an SJ or something. Complete with the declaration and separate statement.

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