A history of the public notice

From Sasha Issenberg’s “On Notice” (Legal Affairs: July/August 2005):

In the Middle Ages, the Crown designated a half-dozen sites in London where a herald would read proclamations from the king. These announcements first found their way into print in 1665 when the London Gazette, considered the first English-language newspaper (at least as we now understand the term), began publishing. It was the Crown that put out the Gazette, and thus the newspaper was little more than a broadsheet filled with public notices.

In the 1690s, private competition reached the London newsstand. Yet even those newspapers that were not published directly by the government continued to seek its consent and imprimatur. In 1704, across the Atlantic, a newspaper called The Boston Newsletter hit the streets of the Hub; like many early American newspapers, it bore the slogan, “Published by Authority.” Though newspapers had ceased to exist merely for the purpose of publishing government decrees, they continued to run the notices as proof of the papers’ journalistic credibility. “Unlike in our day, it was looked at as an act of authenticity,” says Charles Clark, a professor emeritus of history at the University of New Hampshire who wrote about early American newspapering in a book called The Public Prints.

Sometimes these announcements appeared under the rubric “Proclamations for Royal Government,” Clark explained, but usually papers “just printed the notices in what we would think of as the news columns – even though that distinction is a bit of a stretch for those days. In many instances the notices constituted the news.” (Toward the end of the 18th century, according to Clark, newspapers also began to feature private-sector legal announcements: creditors demanding payment were popular. “The most frequent things,” Clark said, chuckling, “are men putting in notices: ‘My wife is leaving my bed and board. I shall no longer be responsible for her debt.’ “) …

In 1789, among the acts of the first session of the Congress was a directive to the secretary of state to publish all bills, orders, resolutions, and votes in at least three newspapers.

For its efforts at transparency, the fledgling government was rewarded with an increasingly suspicious press. During the 1790s, the Philadelphia-based Gazette of the United States made it clear that government would not be left to speak for itself through notices; the paper placed a correspondent in Congress. “He reported what he saw, not the official words,” Clark said. After the election of George Washington, the colonial press that had cuddled with government gradually became American media that sought to establish distance from it. In addition to soliciting the government for announcements, the press began to cover the government journalistically. …

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The Mann Act as problematic law

From Roderick M. Hills, Jr.’s “The Federalist Capers” (Legal Affairs: May/June 2005):

BY CONTRAST WITH THE COURT’S RECORD IN ECONOMIC MATTERS, the pre-New-Deal court was oddly reluctant to impose any limits on federally sponsored cultural conservatism. The Mann Act, which prohibited any person from aiding in the interstate transportation of a “woman or girl” for “prostitution, or debauchery, or for any other immoral purpose,” provides a useful illustration of the limits that judicially enforced federalism will go to.

Congress enacted the Mann Act in 1910 by comfortable majorities, in the wake of a national furor over allegations that young women were being kidnapped by syndicates of brothels and forced to work as prostitutes. In retrospect, historians explain the panic over “white slavery” as largely attributable to anxieties over immigration (the syndicates were said to be run by foreigners, especially foreign Jews) and urbanization, which led to a rise in the numbers of unaccompanied single women visible in public places.

Although the act was inspired by fears of coerced prostitution, it was soon enforced by the federal government as part of a crusade against nonmarital sex in general. As David Langum has shown in Crossing Over the Line, a large majority of the FBI’s Mann Act investigations during the 1920s was for noncommercial offenses, typically prosecutions of unmarried but romantically involved couples who crossed state lines. Even the purpose of protecting women from coercion was soon dropped. The Department of Justice took the view that the female “victim” should generally be prosecuted as a co-conspirator if she consented to “immoral” travel. Charges were frequently foregone if the “victim” married the perpetrator, suggesting that the statute was really a federal effort to protect males’ control over their wives and daughters. Though the federal government abandoned the effort to enforce the Mann Act in the 1930s against noncommercial sex, J. Edgar Hoover later used it in raids on brothels to collect information about public persons, like Charlie Chaplin, whom he regarded as subversive.

In short, the Mann Act was everything that you would expect from centralized enforcement of sexual morality – oppressive, gratuitous, and subject to all the abuses of prosecutorial discretion. The regulation of interstate transportation was a thin pretext for federal intervention, given that the act’s authors surely were not concerned that the states were somehow incompetent to regulate sexual morality within their boundaries.

In light of all of these concerns, you might expect that the Supreme Court would have found the Mann Act to be an easy case for invalidation under principles of federalism. But the court unanimously upheld the act in 1913 in Hoke v. United States, and then also upheld its application to noncommercial consensual sexual liaisons four years later in Caminetti v. United States.

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Bird in Flight, Brancusi, & US Customs law

From Stéphanie Giry’s “An Odd Bird” (Legal Affairs: September/October 2002):

After a weeklong journey from France, crates of sculptures by Constantin Brancusi arrived in New York harbor on the steamship Paris, escorted by the artist Marcel Duchamp. It was October 1926 and the sculptures were to be exhibited in the city at the avant-garde Brummer Gallery. United States Customs officials opened the crates and uncovered 20 mysterious disks, eggs, and flame-like forms of carved wood, polished metal, or smooth marble. One work in particular left them dumbfounded: a thin, 4 1/4-foot-tall piece of shiny yellow bronze with a gently tapering bulge called Bird in Space. It didn’t look like a bird to the officials, so they refused to exempt it from customs duties as a work of art. They imposed the standard tariff for manufactured objects of metal: 40 percent of the sale price, or $240 (about $2,400 in today’s dollars). …

Under pressure, the customs office agreed to reconsider its decision. In the meantime, it released Bird in Space and other sculptures, on bond and under the classification “Kitchen Utensils and Hospital Supplies,” so they could be exhibited at the Brummer Gallery and then at the Arts Club in Chicago.

Both shows were successes, but in February 1927 the federal customs appraiser F.J.H. Kracke confirmed his office’s initial finding that any sculptures Brancusi sold in the United States, like Steichen’s Bird, would be subject to duty. In an interview with the New York Evening Post, Kracke explained his ruling: “Several men, high in the art world were asked to express their opinions for the Government…. One of them told us, ‘If that’s art, hereafter I’m a bricklayer.’ Another said, ‘Dots and dashes are as artistic as Brancusi’s work.’ In general, it was their opinion that Brancusi left too much to the imagination.”

The next month, Steichen filed Brancusi v. United States to appeal customs’ decision. Abstract Art was now on trial. …

Six influential figures testified for Brancusi: Steichen, who was an established photographer; the sculptor Jacob Epstein; Forbes Watson, the editor of the review The Arts; Frank Crowninshield, the editor of Vanity Fair; William Henry Fox, the director of the Brooklyn Museum of Art; and the art critic Henry McBride. The witnesses for the government, the sculptors Robert Aitken and Thomas Jones, now long forgotten, enjoyed great academic reputations at the time. Judge Young was new to the Customs Court. The 75-year-old Waite had been serving on it and its earlier incarnation, the Board of General Appraisers, for 25 years.

Also present in the courtroom as Exhibit 1 was the Bird, which sat on a table, shimmering and soaring toward the ceiling while the lawyers debated whether it was an “original sculpture” or a metal “article or ware not specially provided for” under the 1922 Tariff Act. For the Bird to enter the country duty-free under the act, Steichen’s lawyers had to prove that Brancusi was a professional sculptor; that the Bird was a work of art; that it was original; and that it had no practical purpose.

By 1927 and after four one-man shows in New York, there was little question that the 51-year-old Brancusi was recognized as a professional sculptor – controversial perhaps, but definitely well-known. There was also little question that the Bird had no utility, even though the customs office had released it under the classification “Kitchen Utensil.”

But because Brancusi had shown four other bird sculptures like Steichen’s at the Brummer show, it wasn’t clear whether Steichen’s was the only one of its kind. And it was far from clear whether the Bird could be called art, because it looked like nothing anyone had ever seen before.

During the hearing, Judges Young and Waite placed great emphasis on the Bird’s title. The Tariff Act didn’t require that sculptures be realistic, but under a 1916 Customs Court decision called United States v. Olivotti sculptures qualified as art works only if they were “chisel[ed]” or “carve[d]” “imitations of natural objects,” chiefly the human form representing such objects “in their true proportions.” …

When he was 26, according to legend, Brancusi set out on foot on the 1,200-mile journey to Paris; however he got there, in 1904 he enrolled at the prestigious école des Beaux Arts. The decade that followed was marked for him by poverty, hard work, and eventually a place in the avant-garde community among Duchamp, Ezra Pound, Amedeo Modigliani, and Erik Satie, who would become his friends and transforming influences. At an exhibit in Paris in 1906, Auguste Rodin, then the towering figure in sculpture, spotted one of Brancusi’s pieces and invited him to work in his studio. Brancusi declined because he believed “nothing grows well in the shadow of a big tree.” …

But to Thomas Jones, a professor at Columbia who testified for the customs office, the Bird was “too abstract and a misuse of the form of sculpture.” Robert Aitken, the government’s other witness, said that art should “arouse an unusual emotional reaction” and “[stir] the esthetics, the sense of beauty.” …

Every work [by Brancusi] was unique and made of a different material, with different proportions and a different harmony. Brancusi had carved variations of the Bird out of white, yellow, and black marble and bronze of varying composition, each time coaxing the stone or the metal to reveal something new about the form. As Brancusi explained, all of those pieces were part of the same search: “All my life I’ve been looking for one thing, the essence of flight.” …

The court’s sensibility favored Brancusi. In its decision of November 1928, drafted by Judge Waite, the court held:

The object now under consideration … is beautiful and symmetrical in outline, and while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental, and as we hold under the evidence that it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to, we sustain the protest and find that it is entitled to free entry.

Judge Waite’s decision was seen as a victory not only for Brancusi but also for avant-garde art, because it dismissed the Olivotti requirement and recognized the importance of a new school that “portray[ed] abstract ideas rather than … imitate natural objects.” …

But the decision’s focus on the decorative qualities of the Bird made the ruling just as perishable as the standard in the 12-year-old one it replaced. And its reliance on the judges’ personal taste made its application perhaps more arbitrary and restrictive. Many of the works that made the renown of Duchamp, the chaperon of the Bird on its trip to New York and one of its staunchest defenders, would not have passed the test, for example. Duchamp’s “ready-made” sculptures of a bottle rack (Bottle Dryer, 1914) and a urinal (Fountain, 1917), objects he borrowed from daily life and, with more than a hint of irony, labeled works of art, would not have satisfied Judge Waite’s taste for the “beautiful,” “symmetrical,” and “ornamental.”

The Brancusi decision may have done away with the requirement that sculptures must be figurative to be art, but it took years for customs law to shed other unreasonable limitations on the free import of artwork. In 1931, tapestries were deemed dutiable because they were made of wool – the material determined the artistic merit. In 1971, the customs court found that six carved door panels destined for a church were dutiable because, as part of the doors, they were utilitarian objects. It wasn’t for 61 years, until the Harmonized Tariff Schedule of 1989, that customs law allowed free entry to works that are both artistic and functional.

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The history of solitary confinement

From Daniel Brook’s “A History of Hard Time” (Legal Affairs: January/February 2003):

Dickens wasn’t the first European intellectual who had crossed the Atlantic to visit Eastern State Penitentiary. A decade earlier, Alexis de Tocqueville had been sent by the French government to study the Philadelphia prison. …

What drew the attention of Americans and Europeans was an innovative method of punishment being pioneered at the prison called solitary confinement. While the practice had roots in medieval monasteries, where it was used to punish disobedient monks, solitary confinement came to prominence as a form of criminal punishment in the United States soon after the Revolution. …

In colonial America, capital punishment had been common, and not just for murder – burglary and sodomy could earn an offender the death penalty as well. For less serious offenses, criminals were generally subjected to physical punishments meted out on the public square. In a frontier nation of small towns, public embarrassment was seen as the key to deterring crime. Physical punishment, whether in the form of the stockade or the whipping post, was combined with the psychological punishment of being shamed in front of the community. Jails existed, but they were used mainly to hold criminals before trial and punishment. There were no cells and few rules: Men and women were housed together, and alcohol was often available. …

In 1787, at a soiree held in Benjamin Franklin’s living room, [Dr. Benjamin Rush of Philadelphia, a signatory of the Declaration of Independence & widely regarded as America’s foremost physician] presented an essay titled, “An Enquiry Into the Effects of Public Punishments Upon Criminals, and Upon Society.” Rush declared that “crimes should be punished in private, or not punished at all.” He claimed that public punishment failed to rehabilitate the criminal and risked letting the convict become an object of community sympathy. In lieu of public, physical punishments, Rush endorsed the creation of a “house of repentance.” Grounded in the Quaker principle that each individual is blessed with “Inner Light,” Rush envisioned a place of anonymity, solitude, and silence, where prisoners could dwell on their crimes, repent, and return rehabilitated into society. …

In 1821, the reformers finally convinced the Pennsylvania legislature to approve funding for Eastern State Penitentiary, which would be the largest public building in the country; with a price tag of nearly $800,000, it was likely the most costly one as well. No expense was spared: To prevent disease, each cell in the new prison was equipped with a toilet, a rare luxury at the time. When the penitentiary opened in 1829, President Andrew Jackson was still using an outhouse on the White House lawn.

The principles of the penitentiary system – silence, solitude, surveillance, and anonymity – were incorporated into the architectural plan. Eastern State was designed by John Haviland, a young architect, who proposed a hub-and-spokes model that allowed for constant surveillance. Inmates were housed in 8-by-12-foot cells arranged along a series of cellblocks radiating out from a central observation tower.

Each prisoner remained in his cell at all times, save for a brief daily exercise period held in an individual pen adjoining each cell. Prisoners ate their meals in their cells and did small-scale prison labor there like shoemaking. On the rare occasions when prisoners were allowed to leave their cells, they were prevented from interacting with other prisoners by hoods they were forced to wear to protect their anonymity. They were also forced to use numbers instead of names for the same reason. Silence was maintained at all times in the prison, and reading the Bible was the only activity other than labor that was permitted. Reformers believed that cutting inmates off from the world would foster meditation that would lead to rehabilitation, so visits from family or friends were prohibited. On average, inmates spent two to four years alone in their cells, underneath a single round skylight, known in the prison as the “eye of God.”

The expense of the building limited its influence in the United States, but Eastern State was widely copied in Europe and even in Latin America and Japan, where economic conditions made the model more attractive. Over 300 prisons were built on Eastern States’ hub-and-spokes model, in cities as diverse as London, Paris, Milan, St. Petersburg, and Beijing. Architectural historians consider the hub-and-spokes penitentiary to be the only American building type to have had global influence until the first skyscrapers began to rise in Chicago and New York in the 1880s. …

Dickens, who also interviewed prisoners at Eastern State, was far more skeptical. In his travelogue, American Notes, he described Philadelphia’s system of “rigid, strict, and hopeless solitary confinement” as “cruel and wrong.” …

Dickens didn’t accept that the penitentiary represented human progress over the days of floggings on the public square, or as his prose suggested, even the medieval torture chamber. “I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body.” …

In New York, at the Auburn prison near Syracuse and later at Sing Sing in Westchester County, a modified system of solitary confinement was being put into practice. While inmates spent their nights in solitary cells, they worked together silently in a common area during the day. This allowed wardens to set up profitable prison industries that could offset the costs of prison construction. …

Despite this vehement defense of the solitary system, in the period after the Civil War, the regimen at Eastern State was slowly abandoned. … Without enough funding to keep the system running, inmates were frequently doubled up in cells. In 1913, the solitary system was officially abandoned. Solitary confinement became a short-term punishment for misbehaving prisoners rather than the prison’s standard operating procedure. …

More than half of all U.S. prisons in use today were built in the past 25 years, to house a prison population that has risen almost 500 percent over roughly the same period. The United States has the highest incarceration rate in the world. In raw numbers, it has more prisoners than China, a country with over four times as many people. …

Supermax prisons – high-tech, maximum-security facilities – were the answer politicians and corrections departments were looking for to solve the problem of increasing violence in prisons. Following Marion’s lead, corrections departments around the country began building supermax prisons, or adding supermax wings to their existing prisons to handle the growing number of violent prisoners who could not be controlled in the traditional prison system. Today there are 20,000 supermax inmates in the United States, roughly 2 percent of the total prison population, though in some states the proportion is much higher: In Mississippi, 12 percent of prisoners live in supermax units.

The system of punishment in supermax units resembles nothing so much as the system of punishment pioneered at Eastern State. The Pelican Bay Security Housing Unit, which cost California taxpayers a quarter of a billion dollars, is perhaps the most notorious supermax. From the air it looks like a high-tech version of the Philadelphia prison: Its hub-and-spokes design is clearly descended from John Haviland’s 19th-century architectural plan. Inmates in the SHU (known as “the shoe”) are kept in their cells close to 24 hours a day. As at Eastern State, inmates eat in their cells and exercise in isolated attached yards. …

Dr. Stuart Grassian, a Harvard Medical School psychiatrist who was given access to SHU inmates to prepare for providing expert testimony in lawsuits against the California Department of Corrections, has concluded that the regimen in security housing units drives prisoners insane, and he estimates that one-third of all SHU inmates are psychotic. He writes of what he calls “the SHU syndrome,” the symptoms of which include self-mutilation and throwing excrement.

Dr. Terry Kupers, a psychiatrist who has interviewed supermax inmates, writes that a majority of inmates “talk about their inability to concentrate, their heightened anxiety, their intermittent disorientation and confusion, their experience of unreality, and their tendency to strike out at the nearest person when they reach their ‘breaking point.’ ” Even those inmates who don’t become psychotic experience many of these symptoms. Those least likely to become mentally ill in solitary confinement are prisoners who can read, because reading prevents the boredom that can lead to insanity. (The human psyche appears not to have changed since the days of Eastern State, when an inmate told Alexis de Tocqueville that reading the Bible was his “greatest consolation.”) Because roughly 40 percent of U.S. prisoners are functionally illiterate, however, reading can provide solace and sanity to only a fraction of those behind bars.

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Alcatraz: reality & Hollywood

From Dashka Slater’s “Lights, Camera, Lockdown” (Legal Affairs: May/June 2003):

The first two Alcatraz films, Alcatraz Island and The Last Gangster, arrived in theaters in 1937; the most recent, Half Past Dead, came out last November. In the 65 years in between, Alcatraz has been the subject of some two dozen movies and has made guest appearances in many more. There have been prison movies, horror movies, comedies, romances, action films, cartoons, and even porn flicks set on Alcatraz. It’s rare for a Hollywood set to last even a few weeks after a film is complete, but the prison is so popular with filmmakers that a meticulous replica of its cellblock, first created for the Clint Eastwood film Escape From Alcatraz, has resided on a Culver City soundstage for more than 20 years. It has provided penal ambience for hundreds of movies, television shows, commercials, and music videos. …

THE FEDERAL PENITENTIARY AT ALCATRAZ opened on August 22, 1934. It was to be a prison like no other, a high-tech, escape-proof, super-maximum warehouse for the nation’s most incorrigible bad guys. …

The secrecy had been designed to deflate the celebrity reputations of gangsters like Al Capone, who had enjoyed special treatment at other prisons. James A. Johnston, the prison’s first warden, believed that egoism was the chief failing of recidivists. His prescription was total isolation and total anonymity. At Alcatraz, he promised, Capone and his ilk would become “forgotten men.” …

The articles emphasized the prison’s harshness and brutality, chronicling its excruciating rule of silence, which required prisoners to stay mute except during a two-hour recreation period on Sundays, and describing the dank “Spanish dungeons” where prisoners were sent for disobeying rules.

Many of these accounts were embellished, and some of the more lurid tales were pure fabrications. Alcatraz was tough but not barbaric. Inmates were guaranteed the basics of food, shelter, clothing, and medical attention; everything else – work, exercise, visitors – had to be earned. Minor infractions – failing to finish the food on your plate, talking while in the cellhouse, sassing a guard – brought a swift reduction in privileges. More serious violations, like taking a swing at a guard, sent prisoners to the chilly darkness of “the hole.” Particularly obstreperous prisoners were hosed down with cold water from the bay, a practice that earned the warden the nickname “Saltwater” Johnston.

Alcatraz was hardly a country club, but it was still one of the better-run prisons in the United States. Inmates had their own cells, an improvement over bunking with another con. These five-by-nine-foot cells were cramped, but each had its own light and running water, and prisoners could order as many books as they wanted from the prison library. The cellblock was kept at a comfortable 70 degrees and the food was considered some of the best in the prison system. …

Throughout the ’30s, ’40s, and ’50s, films like Train to Alcatraz, Prison Train, King of Alcatraz, San Francisco Docks, and The House Across the Bay picked up the mythology of the “Inside Alcatraz” accounts and ran with it, depicting the prison as a place that made even hardened cons quake in their leg irons. …

… fewer than 300 prisoners [were] kept there at any one time …

The island’s reputation was increasingly out of step with the times, and the prison was facing more tangible problems as well. After years of exposure to the salt air, the fortress was literally falling apart, and the cost of repairs was prohibitive. The prison closed in 1963 …

IN 1972, AFTER LANGUISHING IN BUREAUCRATIC LIMBO for nearly a decade, Alcatraz became a national park, a move that allowed Hollywood to begin making movies on the Rock itself. …

The Park Service originally thought interest in the prison would peter out within five years. Instead, the park receives 1.5 million visitors a year, about five times as many as Antietam or Little Big Horn and nearly as many as Mt. Rushmore. …

Hollywood is responsible, in large part, for making the former penitentiary recognizable as a prison rather than just a decaying collection of empty Depression-era buildings. Escape From Alcatraz brought fresh coats of paint to the mess hall and D block, as well as the yellow stripes (which never existed when the prison was open) that now run down the main cellhouse corridor. Murder in the First funded the restoration of a guard tower on the dock, and The Rock paid for the removal of hazardous waste. Leftover Hollywood props – metal detectors, cell cots, benches, even pillows – have stayed on as permanent adornments, giving tourists a sense of what the penitentiary was like when it was operating. Over time it has become difficult to distinguish Hollywood’s Alcatraz from the real one.

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A brief history of American bodysnatching

From Emily Bazelon’s “Grave Offense” (Legal Affairs: July/August 2002):

In December 1882, hundreds of black Philadelphians gathered at the city morgue. They feared that family members whom they had recently buried were, as a reporter put it, “amongst the staring corpses” that lay inside. Six bodies that had been taken from their graves at Lebanon Cemetery, the burial ground for Philadelphia’s African-Americans, had been brought to the morgue after being discovered on the back of a wagon bound for Jefferson Medical College. The cemetery’s black superintendent had admitted that for many years he let three grave robbers, his brother and two white men, steal as many corpses as they could sell to the college for dissection in anatomy classes.

At the morgue, a man asked others to bare their heads and swear on the bodies before them that they would kill the grave robbers. Another man found the body of his 29-year-old brother and screamed. A weeping elderly woman identified one of the corpses as her dead husband. According to the Philadelphia Press, which broke the story, to pay for her husband’s burial she had begged $22 at the wharves where he had once worked.

Medical science lay behind the body snatchings at Lebanon Cemetery and similar crimes throughout the Northeast and Midwest during the 19th century. By the 1820s, anatomy instruction had become central to medical education, but laws of the time, if they allowed for dissection, let medical schools use corpses only of condemned murderers. In their scramble to find other cadavers for students, doctors who taught anatomy competed for the booty of grave robbers—or sent medical students to rob the graves themselves. …

In the early 19th century, doctors were eager to distinguish themselves from midwives and homeopaths, and embraced anatomy as a critical source of their exclusive knowledge. In the words of a speaker at a New York medical society meeting in 1834, a physician who had not dissected a human body was “a disgrace to himself, a pest in society, and would maintain but a level with steam and red pepper quacks.” …

According to Michael Sappol’s recent book, A Traffic of Dead Bodies, Harvard Medical School moved its campus from Cambridge to Boston (where it remains) expecting to get bodies from an almshouse there. …

“Men seem prompted by their very nature to an earnest desire that their deceased friends be decently interred,” explained the grand jury charged with investigating a 1788 dissection-sparked riot in which 5,000 people stormed New York Hospital.

To protect the graves of their loved ones, 19th-century families who could afford it bought sturdy coffins and plots in a churchyard or cemetery guarded by night watchmen. Bodies buried in black cemeteries and paupers’ burial grounds, which often lacked those safeguards, were more vulnerable. In 1827, a black newspaper called Freedom’s Journal instructed readers that they could cheaply guard against body snatching by packing straw into the graves. In 1820s Philadelphia, several medical schools secretly bribed the superintendent of the public graveyard for 12 to 20 cadavers a week during “dissecting season.” He made sure to keep strict watch “to prevent adventurers from robbing him—not to prevent them from emptying the pits,” Philadelphia doctor John D. Godman wrote in 1829.

When a body snatching was detected, it made for fury and headlines. The 1788 New York riot, in which three people were killed, began when an anatomy instructor shooed some children away from his window with the dismembered arm of a corpse, which (legend has it) belonged to the recently buried mother of one of the boys; her body had been stolen from its coffin. In 1824, the body of a farmer’s daughter was found beneath the floor of the cellar of Yale’s medical school. An assistant suspected of the crime was almost tarred and feathered. In 1852, after a woman’s body was found in a cesspool near Cleveland’s medical school, a mob led by her father set fire to the building, wrecking a laboratory and a museum inside. …

In the morning, news spread that the robbers had been taken into custody. An “immense crowd of people surrounded the magistrate’s office and threatened to kill the resurrectionists,” the Press reported. …

The doctors got what they asked for. A new Pennsylvania law, passed in 1883, required officials at every almshouse, prison, morgue, hospital, and public institution in the state to give medical schools corpses that would otherwise be buried at public expense.

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Court acceptance of forensic & biometric evidence

From Brendan I. Koerner’s “Under the Microscope” (Legal Affairs: July/August 2002):

The mantra of forensic evidence examination is “ACE-V.” The acronym stands for Analysis, Comparison, Evaluation, and Verification, which forensic scientists compare with the step-by-step method drilled into countless chemistry students. “Instead of hypothesis, data collection, conclusion, we have ACE-V,” says Elaine Pagliaro, an expert at the Connecticut lab who specializes in biochemical analysis. “It’s essentially the same process. It’s just that it grew out of people who didn’t come from a background in the scientific method.” …

Yet for most of the 20th century, courts seldom set limits on what experts could say to juries. The 1923 case Frye v. United States mandated that expert witnesses could discuss any technique that had “gained general acceptance in the particular field in which it belongs.” Courts treated forensic science as if it were as well-founded as biology or physics. …

In 1993, the Supreme Court set a new standard for evidence that took into account the accelerated pace of scientific progress. In a case called Daubert v. Merrell Dow Pharmaceuticals, the plaintiffs wanted to show the jury some novel epidemiological studies to bolster their claim that Merrell Dow’s anti-nausea drug Bendectin caused birth defects. The trial judge didn’t let them. The plaintiff’s evidence, he reasoned, was simply too futuristic to have gained general acceptance.

When the case got to the Supreme Court, the justices seized the opportunity to revolutionize the judiciary’s role in supervising expert testimony. Writing for a unanimous court, Justice Harry Blackmun instructed judges to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert turned judges into “gatekeepers” responsible for discerning good science from junk before an expert takes the stand. Blackmun suggested that good science must be testable, subject to peer review, and feature a “known or potential rate of error.” …

There are a few exceptions, though. In 1999, Judge Nancy Gertner of the Federal District Court in Massachusetts set limits on the kinds of conclusions a handwriting expert could draw before a jury in United States v. Hines. The expert could point out similarities between the defendant’s handwriting and the writing on a stick-up note, the judge said, but she could not “make any ultimate conclusions on the actual authorship.” The judge questioned “the validity of the field” of handwriting analysis, noting that “one’s handwriting is not at all unique in the sense that it remains the same over time, or unique[ly] separates one individual from another.”

Early this year, Judge Pollak stunned the legal world by similarly reining in fingerprint experts in the murder-for-hire case United States v. Plaza. Pollak was disturbed by a proficiency test finding that 26 percent of the crime labs surveyed in different states did not correctly identify a set of latent prints on the first try. “Even 100 years of ‘adversarial’ testing in court cannot substitute for scientific testing,” he said. He ruled that the experts could show the jury similarities between the defendants’ prints and latent prints found at the crime scenes, but could not say the prints matched. …

… the University of West Virginia recently offered the nation’s first-ever four-year degree in biometrics …

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In Search of Lost Crime

From Caleb Crain’s “In Search Of Lost Crime” (Legal Affairs: July/August 2002):

… the 1860 Brooklyn divorce case of Beardsley v. Beardsley. …

Richard Busteed, the lawyer for Mrs. Beardsley’s aggrieved husband, denounced her in his closing arguments as “the harlot of the nineteenth century,” and his showy performance brought tears to the eyes of many in the courtroom. In a final flourish, Busteed appealed to whatever yearning the jurors might have had for literary immortality:

If the record of this case shall be preserved in some substantial form, men and women of other generations will recur to it when they tire of Dombey and Copperfield, and drop to sleep over Kenilworth and Ivanhoe. In the glow of this extraordinary drama of real life, the highly wrought pictures of the novelist will pale their intellectual fires. Long after the romance of Bardell against Pickwick shall be musty with forgetfulness, the sad truths of Beardsley against Beardsley will rise up as sorrowing witnesses of the frailty of a woman who deliberately sacrificed the holiest relations of life upon the altar of a roving and unhallowed lust. …

… the popular 1846 trial of Albert John Tirrell … Tirrell’s case was a particularly hot item: A young man from a respectable family, he murdered a prostitute in Boston and set her brothel on fire, but his ingenious lawyer convinced the jury that he had been sleepwalking. …

Consider the prolixly titled 1871 pamphlet Life, Trial and Execution of Edward H. Ruloff, The Perpetrator of Eight Murders, Numerous Burglaries and Other Crimes; Who Was Recently Hanged at Binghamton, N.Y. A Man Shrouded in Mystery! A Learned Ruffian! Was He Man or Fiend, published by E.E. Barclay of Philadelphia.

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Gender, murder, & knots

From Caleb Crain’s “In Search Of Lost Crime” (Legal Affairs: July/August 2002):

… the 1833 trial of Rev. Ephraim K. Avery … discovered Sarah Maria Cornell’s body hanging from a stake among his haystacks …

Consider, as a final example of the pleasures to be had in trial pamphlets, the knot in the rope around Sarah Maria Cornell’s neck.

A coroner’s jury inspected Cornell’s body the day after its discovery. “At first I did not observe the cord about her neck, it was so imbedded,” testified Williams Durfee, who served on the jury. “On looking closer, I observed the knot under her right ear. The cord passed twice round the neck. It was what farmers call two half hitches, and sailors, a clove hitch…. To tighten a clove hitch, the ends must be drawn apart horizontally. If the ends be drawn upwards it will not tighten.” If Durfee was correct about the kind of the knot and the way it tightened, Cornell could not have hanged herself unassisted.

The witness Benjamin Manchester also considered this knot to be a damning clue. Cornell had been a weaver. And yet the knot at her neck seemed to be an unusual one-more typical of a sailor, in Manchester’s opinion. According to Durfee’s testimony, a farmer would also have been familiar with the knot. But in both men’s comments, the implication is that a woman would not have known how to tie it.

The implication stood, unchallenged, until the defense called Louisa M. Whitney, its final witness before the rebuttal phase. Like the late Cornell, Whitney worked in a textile factory, and she performed a remarkable demonstration in the courtroom. She showed “the jury a harness knot and how it is made.” As the impressed stenographer noted in brackets, “It proves to be the same as a clove hitch”-the kind of knot around Cornell’s neck. Whitney testified that weavers tied such knots routinely in the course of mending their harnesses: “We call them harness knots. I never heard any other name.”

In other words, factory women knew how to tie the same knots that farmers and sailors did, but because men and women used different terms and did not work together, the men had underestimated the women’s rope-handling knowledge. The prosecution scrambled to find weavers who mended their harnesses with simpler knots and were willing to swear ignorance of clove hitches, but the damage was done. The moment a woman tied a clove hitch before the jury’s eyes, an important part of the case against Avery unraveled.

The clove-hitch testimony hardly proved Avery’s innocence. While it was easy for his lawyers to discredit much of the evidence against him, the note in Cornell’s bandbox and a few letters she received from him cast a long shadow. Not guilty? In the best trial pamphlets, the lapse of a century and a half has done nothing but sharpen the doubts.

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When newspapers began to cover trials

From Caleb Crain’s “In Search Of Lost Crime” (Legal Affairs: July/August 2002):

In American cities in the 1830s, 1- and 2-cent newspapers for the working class abruptly challenged 6-cent newspapers published for merchants and political parties. As Patricia Cline Cohen explains in The Murder of Helen Jewett, an account of the 1836 killing of a New York City prostitute, the penny papers transformed the reporting of murder trials. To satisfy their unsqueamish readers, editors for the first time actively investigated crimes. James Gordon Bennett of The New York Herald pioneered by visiting Jewett’s brothel and tracking down witnesses who had not yet found their way to the police station or the courtroom. While the Herald was running the Jewett story on its front page, circulation tripled.

For a sensational trial, the penny papers sent reporters to the courtroom every day. During the trial they published daily installments, which they collected and issued as a pamphlet once it was over. The trial pamphlet blossomed. The most vivid and novelistic pamphlets are of trials that took place between 1830 and 1875: the trial of Richard P. Robinson for the murder of Helen Jewett, the court-martial of Alexander Slidell Mackenzie for his role in the so-called Somers mutiny (1843), the trial of the Harvard professor John Webster for the murder of a Harvard benefactor named George Parkman (1849), and the trial of the Lincoln assassination conspirators (1865), among others.

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What’s a socio-technical system?

From Ulises Ali Mejias’ “A study: Bookmark, Classify and Share: A mini-ethnography of social practices in a distributed classification community“:

A socio-technical system is conformed of hardware, software, physical surroundings, people, procedures, laws and regulations, and data and data structures.

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A game completely controlled by the players

From Ron Dulin’s “A Tale in the Desert“:

A Tale in the Desert is set in ancient Egypt. Very ancient Egypt: The only society to be found is that which has been created by the existing players. Your mentor will show you how to gather materials and show you the basics of learning and construction. These are the primary goals in the game–you learn from academies and universities, and then you use what you’ve learned to build things, such as structures and tools. As your character learns new skills, you can advance. …

Higher-level tests are much more complex and require you to enlist lower-level characters to help you complete them. Players are directly involved in almost all aspects of the game, from the introduction of new technologies to the game’s rules to the landscape itself. With a few exceptions, almost every structure you see in the game was built by a player or group of players. New technologies are introduced through research at universities, which is aided by players’ donations to these institutions. Most interestingly, though, the game rules themselves can be changed through the legal system. If you don’t like a certain aspect of the game, within reason, you can introduce a petition to have it changed. If you get enough signatures on your petition, it will be subject to a general vote. If it passes, it becomes a new law. This system is also used for permanently banning players who have, for some reason or another, made other players’ in-game lives difficult. …

The designers themselves have stated that A Tale in the Desert is about creating a society, and watching the experiment in action is almost as enjoyable as taking part.

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Computer commands as incantations

From Julian Dibbell’s “A Rape in Cyberspace: How an Evil Clown, a Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turned a Database Into a Society“:

After all, anyone the least bit familiar with the workings of the new era’s definitive technology, the computer, knows that it operates on a principle impracticably difficult to distinguish from the pre-Enlightenment principle of the magic word: the commands you type into a computer are a kind of speech that doesn’t so much communicate as make things happen, directly and ineluctably, the same way pulling a trigger does. They are incantations, in other words, and anyone at all attuned to the technosocial megatrends of the moment — from the growing dependence of economies on the global flow of intensely fetishized words and numbers to the burgeoning ability of bioengineers to speak the spells written in the four-letter text of DNA — knows that the logic of the incantation is rapidly permeating the fabric of our lives.

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Early attempts to control phone usage

From R. W. Kostal’s Law and English Railway Capitalism, 1825-1875 (quoted in Andrew Odlyzko’s “Pricing and Architecture of the Internet: Historical Perspectives from Telecommunications and Transportation“):

In Britain in 1889, postal officials reprimanded a Leicester subscriber for using his phone to notify the fire brigade of a nearby conflagration. The fire was not on his premises, and his contract directed him to confine his telephone “to his own business and private affairs.” The Leicester Town Council, Chamber of Commerce, and Trade Protection Society all appealed to the postmaster-general, who ruled that the use of the telephone to convey intelligence of fires and riots would be permitted thenceforth.

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Douglas Adams on information overload

From Douglas Adam’s “Is there an Artificial God?“:

Let me back up for a minute and talk about the way we communicate. Traditionally, we have a bunch of different ways in which we communicate with each other. One way is one-to-one; we talk to each other, have a conversation. Another is one-to-many, which I’m doing at the moment, or someone could stand up and sing a song, or announce we’ve got to go to war. Then we have many-to-one communication; we have a pretty patchy, clunky, not-really-working version we call democracy, but in a more primitive state I would stand up and say, ‘OK, we’re going to go to war’ and some may shout back ‘No we’re not!’ – and then we have many-to-many communication in the argument that breaks out afterwards!

In this century (and the previous century) we modelled one-to-one communications in the telephone, which I assume we are all familiar with. We have one-to-many communication—boy do we have an awful lot of that; broadcasting, publishing, journalism, etc.—we get information poured at us from all over the place and it’s completely indiscriminate as to where it might land. It’s curious, but we don’t have to go very far back in our history until we find that all the information that reached us was relevant to us and therefore anything that happened, any news, whether it was about something that’s actually happened to us, in the next house, or in the next village, within the boundary or within our horizon, it happened in our world and if we reacted to it the world reacted back. It was all relevant to us, so for example, if somebody had a terrible accident we could crowd round and really help. Nowadays, because of the plethora of one-to-many communication we have, if a plane crashes in India we may get terribly anxious about it but our anxiety doesn’t have any impact. We’re not very well able to distinguish between a terrible emergency that’s happened to somebody a world away and something that’s happened to someone round the corner. We can’t really distinguish between them any more, which is why we get terribly upset by something that has happened to somebody in a soap opera that comes out of Hollywood and maybe less concerned when it’s happened to our sister. We’ve all become twisted and disconnected and it’s not surprising that we feel very stressed and alienated in the world because the world impacts on us but we don’t impact the world. Then there’s many-to-one; we have that, but not very well yet and there’s not much of it about. Essentially, our democratic systems are a model of that and though they’re not very good, they will improve dramatically.

But the fourth, the many-to-many, we didn’t have at all before the coming of the Internet, which, of course, runs on fibre-optics. It’s communication between us …

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Cameraphones are different cameras & different phones

From David Pescovitz’s “The Big Picture“:

Mobile researcher John Poisson, CEO of the Fours Initiative, focuses on how cameraphones could revolutionize photography and communication — if people would only start using them more.

As the leader of Sony Corporation’s mobile media research and design groups in Tokyo, John Poisson spent two years focused on how people use cameraphones, and why they don’t use them more often.

TheFeature: What have you learned over the course of your research?

Poisson: People think of the cameraphone as a more convenient tool for digital photography, an extension of the digital camera. That’s missing the mark. The mobile phone is a communications device. The minute you attach a camera to that, and give people the ability to share the content that they’re creating in real time, the dynamic changes significantly.

TheFeature: Aren’t providers already developing applications to take advantage of that shift?

Poisson: Well, we have things like the ability to moblog, to publish pictures to a blog, which is not necessarily the most relevant model to consumers. Those tools are developed by people who understand blogging and apply it in their daily lives. But it ignores the trend that we and Mimi Ito and others are seeing as part of the evolution of photography. If you look at the way people have (historically) used cameras, it started off with portraiture and photographs of record — formalized photographs with a capital “P.” Then as the technology evolved, we had this notion of something called a snapshot, which is much more informal. People could take a higher number of pictures with not so much concern over composition. It was more about capturing an experience than photographing something. The limit of that path was the Polaroid. It was about taking the picture and sharing it instantly. What we have today is the ability to create today is a kind of distributed digital manifestation of that process.

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Some thoughts on strong & weak social ties

From Ross Mayfield’s “The Weakening of Strong Ties“:

Mark Granovetter’s seminal paper, The Strength of Weak Ties (summary), revealed the difference between friends and acquaintances and how useful acquaintances can be for certain tasks like finding a job. The difference between a strong tie and weak tie can generally be revealed by time commitment underpinning the relationship. Strong ties are better for action, weak ties for new information.

But time has changed with new tools and social networking models at our disposal. For the first time many social networks are being made explicit, often without the knowledge of participants, at an accelerating pace and dramatically lowered search costs. This newfound transparency may very well make strong ties weaker. …

Top-down models, or weak tie systems, are particularly good at the breadth of sample and search. …

That said, weak tie systems provide real insight we didn’t have before. They have vast potential for revealing structural holes and other methods of enhancing social capital. So long as participation is voluntary, information flows monitored is public and constraints keep in check how people act upon intelligence these systems will become a critical competitive advantage for any company.

By contrast, bottom-up systems are built for people instead of companies. Within Friendster, Ryze, and LinkedIn connections are made through individual decisions upon of invitations, requests and confirmations. The network grows organically, decision by voluntary decision.

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Why we don’t have rights from the ground to the sky

From Salon’s “Throwing Google at the book“:

Lawrence Lessig, a Stanford law professor and copyright scholar, likes to tell the story of Thomas Lee and Tinie Causby, two North Carolina farmers, who in 1945 cast themselves at the center of a case that would redefine how society thought of physical property rights. The immediate cause of the Causbys’ discomfort was the airplane; military aircraft would fly low over their land, terrifying their chickens, who flew to their death into the walls of the barn. As the Causbys saw it, the military aircraft were trespassing on their land. They claimed that American law held that property rights reached ‘an indefinite extent, upwards’; that is, they owned the land from the ground to the heavens. If the government wanted to fly planes over the Causbys’ land, it needed the Causby’s permission, they insisted.

The case, in time, came to the Supreme Court, where Justice William O. Douglas, writing for the Court, was not kind to the Causbys’ ancient interpretation of the law. Their doctrine, he said, “has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.”

… the airplane rendered the Causbys’ rights to the skies incompatible with the modern world …

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Intel: anyone can challenge anyone

From FORTUNE’s “Lessons in Leadership: The Education of Andy Grove“:

[Intel CEO Andy] Grove had never been one to rely on others’ interpretations of reality. … At Intel he fostered a culture in which “knowledge power” would trump “position power.” Anyone could challenge anyone else’s idea, so long as it was about the idea and not the person–and so long as you were ready for the demand “Prove it.” That required data. Without data, an idea was only a story–a representation of reality and thus subject to distortion.

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