Outside Counsel

In many ways I believe that the story of America is a story about the Law., and one of the concepts that underlies my Lawyers in Movies project is that we frequently misapprehend who the real heroes of the Law are.  Part of what distinguishes the Common Law tradition from other legal systems is that ours is a system that is based on narrative: "The life of the law has not been logic, but experience," says Holmes, and one thing that this means is that we learn what the law is by telling little parables about it. Poor Mrs. Palsgraf, or the embittered and litigious Mr. Marbury. Mr. Miranda, or the irresistibly impulsive Huey Newton, these people are characters in the stories that we tell about how the laws that our nation is supposedly a government of came about; perhaps blind to the irony that our government of laws, not men is composed of laws named after people. Dollree Mapp has just died, one of those people whose name we all know. Until I found this photo I had no idea what she looked like. Come to find out the Cleveland cops busted her the day after I was born-- something else I didn't know. Actually, there is a lot about Ms. Mapp I didn't know. All Mapp v. Ohio tells us is that her home was searched without a warrant, and the jurisprudence of Fourth Amendment Exclusionary rules extends to the states. I didn't know that she was engaged to Archie Moore, or that she was connected to Don King somehow. (The police came to her house on a tip, looking for someone who might have known something about an explosion at King's house. What the found was a trunk with what they claimed was obscene material inside.)  I get the sense that her life was not an easy one, but there she is, a person who gave her name to a legal principle that makes America a slightly better place. Is Dollree Mapp a hero of the American Legal Narrative? That's not how we are taught the story in law school. When we read Mapp v. Ohio what we take away is that Justice Tom Clark, who wrote the majority opinion,  and the Warren Court, which decided the case, 6-3, were the heroes, the men (because they were all men) who forged constitutional protections into our law of criminal procedure that keep the magistrates on the stoop outside unless certain niceties are observed. I like to think that the real hero might be A. L. Kearns, someone I know nothing about whatsoever, except this: he argued the case for Ms. Mapp. It's one thing to decide a case-- even if the decision is potentially controversial. It is another thing altogether to take the case in the first place, and to craft the argument that makes it possible for the bench to get it right. I will raise a glass this evening in memory of Dollree Mapp, but it's A.L. Kearns that we should remember.