McKoski on David Davis, Abraham Lincoln's Favorite Judge

Ray McKoski, University of Illinois, Chicago, School of Law, has published David Davis, Abraham Lincoln's Favorite Judge (University of Illinois Press, 2025) Book sections - Introduction and Biographical Sketch of David Davis. Here is the abstract.

David Davis, Abraham Lincoln’s Favorite Judge explores two aspects of Judge David Davis’s interesting and important life. First, the book traces Davis’s unmatched contribution to the political rise of Abraham Lincoln. Davis’s unbreakable loyalty to Lincoln forged while they traveled the central Illinois court circuit, their shared Whig origins, Davis’s voluminous political and personal contacts, his organizational skills, and as Lincoln put it, Davis’s knack “of making a man do a thing whether he wants to or not,” all combined to make the judge Lincoln’s strongest and most effective political supporter. In evaluating Davis’s role in Lincoln’s assent to the presidency, the book engages in a long overdue examination of the professional and personal relationship between the two friends. Second, the book details Davis’s vital contribution to the fabric of the legal system—impartiality on the bench. Off the bench Davis left no stone unturned in advancing the political career of Lincoln and made no secret of his personally held “fixed opinions” on subjects such as Democrats, temperance, and abolitionists. In court, however, Judge Davis set aside his beliefs and relationships and rendered decisions free from personal, political, and social views; friendships; public pressure; and partisan loyalties. Even Davis’s sharpest critics on the political front acknowledged his judicial impartiality and honesty. And Davis’s independence was on full display after Lincoln appointed Davis to the U.S. Supreme Court. To the disdain of Republicans, in Ex parte Milligan Davis disallowed the use of military commissions created by President Lincoln to try civilians in non-seceding states in which the courts were open. Then in Railroad Company v. Catharine Brown, Davis rejected the argument that “separate but equal” passenger cars complied with the railroad’s congressional charter. Davis found that segregated cars were prohibited as a “badge of slavery.” Twenty-three years later in Plessey v. Ferguson, the Supreme Court would ignore Davis’s reasoning and uphold the separate but equal doctrine.

The extracts are not available from SSRN.

Long on The Gettysburg Address: Lincoln's Model Legal Argument

Patrick J. Long, SUNY Buffalo Law School, has published The Gettysburg Address: Lincoln's Model Legal Argument at 72 Buffalo Law Review 383 (2024). Here is the abstract.

The Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.”

Download the article from SSRN at the link.

Stipanowich on Malice Toward None; Charity For All: Lincoln's Vision of Reconciliation For All Americans @PeppLaw

Thomas Stipanowich, Pepperdine University School of Law, has published Malice Toward None; Charity for All: Lincoln’s Vision of Reconciliation for All Americans as Pepperdine University Legal Studies Research Paper No. 2024/19. Here is the abstract.

The towering rhetoric of Lincoln’s second inaugural address, delivered in the final months of our country’s bloodiest conflict, framed a vision of the future focused on mutual healing and understanding. However, the achievement of Lincoln’s vision was complicated by the centuries-old common heritage that had divided the nation: Black slavery. Due in large part to Lincoln’s leadership, millions of enslaved Black Americans were now free, and Lincoln’s vision of reconciliation included them all. The premise of this article is that in the course of piloting the ship of state through treacherous waters, Lincoln balanced and juggled a trio of priorities--restoration of the Union, limiting Black slavery, and reconciling his fellow Americans—priorities that, depending on the circumstances, might be mutually reinforcing or in tension. Although Lincoln had long believed that slavery was a great moral wrong, it was not until the second year of his presidency that he decided that in order to restore the integrity of the Union he had to proclaim the emancipation of slaves in the Southern Confederacy—a decision driven by moral as well as pragmatic considerations, and paralleled by his own spiritual journey. The Emancipation Proclamation transformed the character of the Civil War, altering the playing field and dramatically raising the stakes for the slaveholding interests and causing many in the South to see Lincoln as the symbol of an oppressive North, a tyrant who by freeing Black slaves was effectively enslaving Southern whites. Yet throughout the war, paradoxically, Lincoln harbored hopes of promoting reconciliation. For Lincoln, this ultimately meant acknowledging the truth that slavery was the tragic joint inheritance of Americans North and South and that justice demanded its abolition whatever the cost; with this goal accomplished, the way could be open for all Americans to extend mercy to one another and live in peace. Lincoln understood that these goals might not be achieved in his lifetime, but strove mightily nonetheless. The same challenge remains for us today.

Download the essay from SSRN at the link.

Long on The Gettysburg Address: Lincoln's Model Legal Argument @baldycenter @UBSchoolofLaw

Patrick J. Long, SUNY Buffalo Law School, has published The Gettysburg Address: Lincoln's Model Legal Argument at 72 Buffalo Law Review 383 (2024). Here is the abstract.

The Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.”

Download the article from SSRN at the link.

Balkin and Levinson on Frederick Douglass as Constitutionalist @jackbalkin @UTexasLaw @YaleLawSch

Jack M. Balkin, Yale Law School, and Sanford Levinson, University of Texas Law School, are publishing Frederick Douglass as Constitutionalist in the Maryland Law Review. Here is the abstract.

Frederick Douglass is an important symbol in American constitutional memory, cited in U.S. Supreme Court opinions and invoked by people with very different political ideologies. In this essay, we explore Douglass's constitutional philosophy by contrasting his views about fidelity to the U.S. Constitution and the rule of law with those of Abraham Lincoln and those of John Brown, who led the 1859 raid on Harper's Ferry, Virginia to incite an armed revolt against slavery. Douglass's views about the U.S. Constitution changed over the years, and were often in tension with each other, but he was at best an ambivalent constitutionalist. In many respects his views about the Constitution were closer to those of John Brown, who believed that violence was necessary to redeem constitutional government, than those of Abraham Lincoln, who advocated obedience to law in his Springfield Lyceum speech and who accepted slavery as the price of constitutional government in his First Inaugural address. Although politicians and judges today may prefer a sanitized version of Frederick Douglass, his actual views about how faithful one should be to an unjust constitution raise important questions for us today.

Download the article from SSRN at the link.

Farber on Lincoln, Presidential Power, and the Rule of Law

Daniel A. Farber, University of California, Berkeley, School of Law, has published Lincoln, Presidential Power, and the Rule of Law as a UC Berkeley Law Research Paper. Here is the abstract.

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This lecture examines how Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln and of the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can provide support for legal norms, lest we place all of our trust in Presidential self-restraint and good judgment.

Download the article from SSRN at the link.

Abraham Lincoln As an Attorney

Roger D. Billings, Jr., Northern Kentucky University Salmon P. Chase College of Law, is publishing Abraham Lincoln and the Duty of Zealous Representation: The Matson Slave Case in the Connecticut Public Interest Law Journal. Here is the abstract.

“Abraham Lincoln, lawyer for the slave-owner, Robert Matson,” does fit the description of a Great Emancipator. The fact remains that he did work zealously for Matson. This article argues that the Matson case does not contradict Lincoln’s well-known reputation for hatred of slavery. Rather, in that case he acted in the tradition of John Adams who risked his reputation to represent the British soldiers who perpetrated the Boston Massacre.

The article first describes Lincoln’s participation in the Matson case, including an analysis of the habeas corpus hearing that preceded it. It continues with a description of Lincoln’s skills as a trial lawyer. It then discusses the antebellum ethical rule enunciated by Lord Brougham and other leading scholars who said that zealous advocacy was required for even the most odious clients. The article concludes that Lincoln was following this rule and that the rule is still valid today. It maintains that Lincoln was acting on the highest level of professionalism in the sole case where he represented a slave owner. 

Download the article from SSRN at the link.

Abraham Lincoln as Constitutional Interpreter

Michael Stokes Paulsen, University of St. Thomas School of Law, has published The Great Interpreter as University of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-09. Here is the abstract.

This essay examines the constitutional legacy of President Abraham Lincoln, the most important constitutional interpreter in our nation's history. The Civil War was -- in addition to so much else -- a defining act of national constitutional interpretation. The war was fought over fundamental questions of the Constitution's meaning, and over who would have final authority to determine that meaning. The most significant issues of antebellum constitutional dispute -- the present and future status of slavery; the question of who possessed constitutional power to determine that status; the nature of the "Union" and the question of whether a state lawfully could secede; matters of national-versus-state constitutional supremacy and "sovereignty" -- received their final "adjudication" not in any court of law but on the battlefields of the Civil War. It was the case of Grant v. Lee, reduced to final judgment at Appomattox Court House 150 years ago, that constituted the nation's determination of these issues, and that determined also the entire constitutional future of the United States. None of this would have happened had Lincoln not considered himself bound by his oath to advance his independent constitutional views concerning Dred Scott, slavery, Union, national constitutional supremacy, and presidential military powers -- views that frequently placed him at odds not only with the views of nearly half the nation, but often with the Supreme Court as well.

Download the paper from SSRN at the link.

Remembering the Emancipation Proclamation

Martha S. Jones, University of Michigan Law School, has published History and Commemoration: The Emancipation Proclamation at 150 at 3 Journal of the Civil War Era 452 (2013).

Marking the 150th anniversary of the Emancipation Proclamation encourages debate about the past. January 1, 1863, does not stand out as a singular event, the commemoration of which silences the past. Instead, these articles capture some of the rich albeit messy past that was the Civil War and emancipation. Recovering that process, one that included congress members, generals, soldiers, sailors, and enslaved people, resituates the Emancipation Proclamation as history rather than myth. We learn how the proclamation was related to Congress’s emancipatory legislation and how its implementation relied on the resistance of formerly enslaved insurgents. The analysis of new sources, including visual culture, means that historical interpretation will continue to evolve. Transnational approaches suggest how the proclamation’s influence was far-reaching in the realms of law and state-building. And while the season of commemoration may draw to a close, historians history and commemoration will have many opportunities to collaborate on exhibitions and films, the sorts of spaces in which confrontations between history and fiction may find a productive tension. Commemoration need not rest on silence.

The full text is not available from SSRN. 

Mississippi Finally Files Its Paperwork

The state of Mississippi finally ratified the Thirteenth Amendment, which outlawed slavery in the U.S., in 1995. But the paperwork didn't actually reach the National Archives until this month. Why did it take so long? It might have taken even longer. Dr. Ranjan Batra, who works for the University of Mississippi Medical Center, happened to see Lincoln, the Steven Spielberg film, and wondered when the state ratified the amendment. He found the record of the state's vote, dated 1995, but no indication that Mississippi was listed in national records as having ratified the amendment, and mentioned the fact to a co-worker, Ken Sullivan. Dr. Sullivan took up the question with Mississippi's present Secretary of State, who dug out the paperwork, to discover that the paperwork was never sent in to the National Archives; he sent it in. Dr. Sullivan received notice of the National Archives' recordation on Lincoln's birthday. Another example of the power of film, and the power of Lincoln.

Here, Jon Stewart has fun with Mississippi's embarrassment over failing to file 13th Amendment paperwork.

The Lincoln Legend

John Blake of CNN reviews (and critiques) Steven Spielberg's new film "Lincoln," and suggests that the Spielberg Lincoln is not as accurate or as complex as the PBS Lincoln available in a three-part documentary which begins airing tonight. In part, says Mr. Blake, the documentary points out that Harriet Beecher Stowe, not President Lincoln, had a great part in persuading people that slavery was immoral, via her novel Uncle Tom's Cabin. Further, what fueled the enduring attraction of slavery in the South was not just twisted moral thinking on the part of its defenders, but its economic foundation. He discusses more reasons, more issues, here.

Portrait of a Lady

Patricia Cohen explains how the famous portrait of Mary Todd Lincoln, which has hung in the Lincoln Presdential Library and Museum in Springfield, Illinois, for decades, has been determined to be not of Mrs. Lincoln but of an unknown woman. Barry Bauman, the conservator who pieced together the history of the altered portrait, says the man behind it and its story is Lew Bloom, who sold the entire package to Lincoln's graddaughter.  The Lincoln Library will announce the findings on April 26th, the anniversary of the death of John Wilkes Booth.

The Conspirator: Robert Redford's New Film About the Lincoln Assassination

In the National Law Journal's March 28, 2011 issue: Leigh Jones, "In Redford's film, parallels to the present," at page 8. This article discusses Robert Redford's new movie, The Conspirator, about  Mary Surratt and her connections to the conspiracy to assassinate Abraham Lincoln. The film is in limited release April 15, is rated PG-13, and stars James McAvoy, Robin Wright, and Kevin Kline.

More here from the NLJ website (subscription may be required). Here's a link to a video about Frederick Aiken, Mrs. Surratt's attorney. Here's a link to an early review.

Lincoln's Use of Biblical Imagery

Wilson Ray Huhn, University of Akron Law School, has published A Higher Law: Abraham Lincoln's Use of Biblical Imagery as University of Akron Legal Studies Research Paper No. 11-1. Here is the abstract.

This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our fundamental law. This goal was formally accomplished as a matter of law in 1868 when the Equal Protection Clause was added to the Constitution as part of the Fourteenth Amendment, but it is approached in fact only through our constant application of this ideal to our society and in our daily lives. The principle of equality is a higher law, but it need not exceed our grasp. As Lincoln called upon us – “let it be as nearly reached as we can.”

Download the paper from SSRN at the link.

Abraham Lincoln as a Legal Writer

Judith D. Fischer, University of Louisville School of Law, has published Abraham Lincoln as a Legal Writer. Here is the abstract.

This article draws on a recent collection of Abraham Lincoln’s legal papers as well as on secondary sources to show how Lincoln developed his genius as a writer. The article then discusses characteristics that made his writing so eloquent. It concludes that today’s lawyers might profitably emulate Lincoln’s close study of great literature as well as his clear, succinct writing style.

Download the paper from SSRN at the link.

Lincoln and Popular Culture

The American Bar Association is presenting a program on Lincoln in pop culture: The Lincoln Myth: How Pop Culture Defines America's Great Lawyer/President on February 24. Here's more. David Hundley, of Cinema Mishmash, and I are speaking. Henry White, Executive Director of the ABA is introducing the program, and Edward Adams, editor of the ABA Journal is moderating the program.