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In a bravura performance that ranges from Aaron Burr to O. J. Simpson, Robert A. Ferguson traces the legal meaning and cultural implications of prominent American trials across the history of the nation. His interdisciplinary investigation carries him from courtroom transcripts to newspaper accounts, and on to the work of such imaginative writers as Emerson, Thoreau, William Dean Howells, and E. L. Doctorow. Ferguson shows how courtrooms are forced to cope with unresolved communal anxieties and how they sometimes make legal decisions that change the way Americans think about themselves. Burning questions control the narrative. How do such trials mushroom into major public dramas with fundamental ideas at stake? Why did outcomes that we now see as unjust enjoy such strong communal support at the time? At what point does overexposure undermine a trial's role as a legal proceeding? The Trial in American Life weaves Ferguson's deep knowledge of American history, law, and culture into a fascinating book of tremendous contemporary relevance.

About the Author:
Robert A. Ferguson is the George Edward Woodberry Professor of Law, Literature, and Criticism at Columbia University

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Editorial Reviews

D.C. Lawyer

"Essential and pleasurable reading for anyone with a stake in the functioning of the American courtroom."

— James Srodes

D.C. Lawyer - James Srodes
"Essential and pleasurable reading for anyone with a stake in the functioning of the American courtroom."
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Product Details

  • ISBN-13: 9780226243252
  • Publisher: University of Chicago Press
  • Publication date: 3/15/2007
  • Series: American Politics and Political Economy Ser.
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 414
  • Product dimensions: 6.00 (w) x 9.00 (h) x 1.30 (d)

Meet the Author

Robert A. Ferguson is the George Edward Woodberry Professor of Law, Literature, and Criticism at Columbia University. He is the author of Reading the Early Republic; The American Enlightenment, 1750–1820; and Law and Letters in American Culture.

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Read an Excerpt

The Trial in American Life

By Robert A. Ferguson

University of Chicago Press

Copyright © 2007 The University of Chicago
All right reserved.

ISBN: 978-0-226-24325-2

Chapter One

Where Courtrooms and Communities Meet


The most famous confrontation in an American courtroom took place in 1925. Clarence Darrow, the renowned lawyer of his day, and William Jennings Bryan, the leading orator and three times the Democratic Party's candidate for president, squared off as opposing counsel over the teaching of evolution in the public schools of Tennessee. For the defense, Darrow declared: "I am going to argue [the case] as if it were serious, and as if it were a death struggle between two civilizations.... [B]igotry and ignorance are ever active. Here we find today as brazen and as bold an attempt to destroy learning as was ever made in the Middle Ages." Bryan responded in kind. "Talk about putting Daniel in the lion's den!" he complained for the state of Tennessee. "How dared those scientists put man in a little ring like that with lions and tigers and everything that is bad?" The impudence of science had patriotic implications for Bryan. Evolution wanted to teach Tennesseans that they had come "not even from American monkeys, but from Old World monkeys." The audiences attracted to a high-profile trial encourage this kind of rhetorical excess. Playing to the gallery is standard entertainment in such an event, but the clashes between Darrow and Bryan, both outside counsel brought in to spike interest in the trial, would turn most bitter in the moment that everyone remembers. Darrow surprised everyone by convincing Bryan to appear as an expert witness on the Bible and then using Bryan's literal interpretation of Scripture to make him look foolish on the stand. If the serpent of Genesis was actually "compelled to crawl upon its belly" for tempting Eve, ran a typical question to the nodding Bryan, "[h]ave you any idea how the snake went before that time?" "Do you know whether he walked on his tail or not?" "Up to 4,143 years ago, every human being on earth spoke the same language?" Darrow asked, referring Bryan to the Tower of Babel. "Yes, sir," Bryan had to respond. These are the comments that everyone recalls, and yet none of the exchanges between the two leading players had anything to do with the trial as a legal matter.

In its misdirection, hyperbole, and fascination, State of Tennessee v. John T. Scopes epitomizes problems that arise in a high-profile trial. Fought out across eleven days, Scopes familiarized Americans with "the never-ending story," the media's need for "new news" and fresh excitement every day. The trial produced more words in print than any comparable event to that point in the country's history, and yet all of the attention led mostly to confusion and turmoil. Both sides would misconstrue the effect of their actions and come to regret what happened in Dayton. John Washington Butler, the sponsor of the anti-evolution act, committed the first mistake, one Americans make with some frequency. He assumed that law would eliminate the problem. "When the bill passed," he observed, "I naturally thought we wouldn't hear any more about evolution in Tennessee." Instead Scopes would put the subject on every tongue and in a particular way. The extremes of advocacy and news coverage transformed an inchoate discrepancy between science and theology into a raging national debate and a permanent standoff fueled by anger, self-righteousness, and humor.

Everyone miscalculated in Scopes. The Butler Act made it unlawful for anyone in an institution funded by the state "to teach any theory that denies the story of the Divine Creation of Man as taught in the Bible, and to teach that man has descended from a lower order of animals." Lawyers for the American Civil Liberties Union decided that this language violated freedom of speech and arranged for a test case to prove it through town leaders in Dayton, who cooperated to make money and put their town on the map. John T. Scopes, a twenty-four-year-old high school biology teacher in Dayton, agreed to become the nominal defendant because he shared the view of the ACLU. "Restrictive legislation on academic freedom is forever a thing of the past," he would claim long after his trial. Inherit the Wind, a play written about the trial thirty years later, would do much to solidify this line of interpretation. When asked today, most people will tell you how Darrow confused his opponent Bryan on the witness stand over interpretations of the Bible and routed the opponents of evolution in the process. Nothing, however, could be further from the truth.

The anti-evolutionists won their case in Dayton. After days of strenuous debate, the jury took all of eight minutes to agree with Bryan and find Scopes guilty of breaking the law. Darrow's famous confrontation with Bryan was expunged from the court record as soon as it was completed. His supposedly withering examination of Bryan had no legal significance, and the Butler Act that convicted Scopes would prevail in Tennessee for another forty years, spawning a whole series of additional anti-evolution laws in other states. Publishers still skirt the subject of evolution in biology textbooks to "avoid offense to a scientifically illiterate segment of the adult population." What the ACLU "won" from Scopes was a virulent division between science and religion. Even Dayton achieved far less than it wanted. Its place on the map of public opinion would be secured but as one of ridicule. H. L. Mencken, the pundit of his era, ended his own coverage of the trial by describing Dayton as once an obscure but happy town but now "a universal joke."

Tennessee suffered from both ends. Its citizens felt threatened but ashamed of the image the "monkey trial" gave the world. State senator Butler conveyed the threat when he wrote, "Darwin dope shall not rob our children of future hope." Embarrassed, the Tennessee Supreme Court countered by suppressing the whole affair on appeal through a false technicality and the claim that "nothing is to be gained by prolonging the life of this bizarre case" The court confirmed the constitutionality of the Butler Act but rejected the verdict because the jury, not the judge, should have assessed the fine of $100. It then induced Tennessee's attorney general to enter a nolle prosequi ("no longer prosecuting") to prevent further appeal from Scopes. Effective politically by checkmating all sides, this decision made no legal sense. The Butler Act mandated a fine of "not less than One Hundred ($100.00) Dollars," and everyone had agreed not to raise on appeal the question of who should impose the fine. Judge John T. Raulston did only what the law demanded of him at trial. His superiors, the justices of the Tennessee Supreme Court, turned against him to end the case as quickly and quietly as possible.

Tennessee v. Scopes supplies a cautionary tale about all high-profile trials. Controversy in such a case tends to be dangerously open-ended. Legal consequences had nothing to do with the tumult aroused in Scopes; the defendant faced a misdemeanor charge with a $100 fine that others would pay. Neither the law nor punishment but ways of life were on trial in Dayton, and it is usually a mistake to try to solve this kind of problem in a courtroom. Advocacy inflames nonlegal issues as the defining expressions of Scopes, "a circus in the courtroom" and "monkey trial," indicated at the time. The references of Bryan to lions and tigers in a ring, one of many allusions at trial to circus and animal imagery, enabled a voracious press to sell copy and make "circus" the pejorative term of reference for any trial where officialdom is overwhelmed and made to look foolish by outside influence. Scopes demonstrates how legal language can explode into "monkey business" just beyond the court's control. An arresting phrase in a high-profile trial can give language an unforeseen life of its own.

Dayton also reveals the dynamic nature of conflict. Permanent controversies have a way of changing while staying the same. Even Mencken would prove to be half wrong about Scopes in the end. The monkey trial survives today not as a source of shame and scorn but as an important tourist attraction in Dayton, fulfilling the financial hopes that the town leaders of 1925 sought. The legal profession of Tennessee, which tried to make Scopes go away, now learns its trade under representations of the event. Two huge murals of scenes from the trial hang in the Vanderbilt University Law School in downtown Dayton. Even so, and well beyond threat or shame, "the controversy over evolutionary teaching is as lively today as ever." Eighty years after Scopes, in the summer of 2005, both the Roman Catholic Church and the president of the United States would call for modern creationism, "intelligent design," to be taught against scientific theories of evolution in high school biology classes.

When ideas tear a community apart, the pattern of controversy can return with astounding speed and force. The issues here-religion against science, rejection of change, fear over biological self-examination, divergent definitions of humanity itself-can reappear at any moment. A widely reported and vigorous legal rejection of the teaching of "intelligent design" in the high school biology classes of Dover, Pennsylvania, in 2005 has not stopped continuing challenges to the teaching of evolution in forty-one of the fifty states. The next major Scopes trial may even now be on the way over evolution or, in a new wrinkle, over the availability of genetic manipulation.

High-profile trials like Scopes teach that the law is not a linear progression toward explanation anywhere near as much as it is a circulating mode of consensus on a variety of levels. Yes, the legal process in a courtroom moves from uncertainty toward decision, from simple description to expert procedure, from conflict to a solution articulated by a professional elite, and, often enough, from politics to the courtroom, but the requirements of understanding and acceptance extend in many directions at once, and they neither begin nor end in judgment. Most controversial trials furnish a simple proof of the reciprocities involved. Anyone who studies courtroom events learns that it is almost impossible to secure a verdict at trial against the settled convictions of a surrounding community.

The pressure on courtrooms grows especially serious when the legal stakes are higher and the defendants unpopular as they were in the trial of Nicola Sacco and Bartolomeo Vanzetti for felony murder in 1921. Whatever regrets Americans have today over the conviction and execution of Sacco and Vanzetti in Massachusetts in 1927 on flimsy evidence, questionable procedures, and a flawed appeal process, these inclinations were not in vogue when it counted. Most Americans and an overwhelming percentage of the legal profession were heavily in favor of conviction and execution in the 1920s. The names of Sacco and Vanzetti would be cleared of "stigma and disgrace," and alternative blame would be assigned to "prejudice against foreigners" and general communal "intolerance, fear, and hatred" only when Massachusetts governor Michael Dukakis signed a special statement to that effect in 1977. Half a century too late, the Dukakis proclamation acknowledged tacit truths: the cost of apparent injustice is high, and it has a long half-life in a republic of laws.

We must come to a better comprehension of how misunderstandings, false excitement, and confusion arise out of such trials. Clarification of the problems may not solve them, but it can at least keep the issues that alarm a community in proper focus. It can reduce the spread of conflict, keep peripheral anxieties in check, and reduce the distorting power of celebrityhood. Even more ambitiously, clarification can allow the law to grow through a trial instead of fixing it to a moment through communal lines of force that threaten to overwhelm an answer in court. Courtrooms are supposed to educate communities as well as decide for them, but for that to happen effectively the legal profession as well as citizens and the media that inform them must grasp the nature of dynamic interaction in a high-profile trial. Language of importance comes from both directions in such moments, and the larger task must be to bring those languages closer together.


The first source of misunderstanding emanating from courtrooms is also the most shocking. The greatest experts on trial performance, those officially involved or informed, can be the worst guides in explaining the communal context of a trial, even though their authority gives them a platform for such commentary. It is an old truth but worth repeating: "The members of the bar are peculiarly unrepresentative of the public." Professionalism gets in the way of larger communication. Lawyers have the task of informing and protecting their clients, and judges certify that these tasks are performed precisely. Both are sworn to uphold procedures that guarantee fairness and protect the process from bias, but they acknowledge fewer obligations where the desires of citizens to be informed are concerned.

All professions endorse a degree of separate knowledge with credentialism, special terminology, and protective autonomy, but nowhere have these tendencies been more rampant than in the law, and nowhere is a countervailing understanding more important. The authority of experts does not suffice in the explanation of a high-profile trial. As one critic writes, "Specialized knowledge can give neither structure nor direction to the conception of a general culture." Lawyers also compound the problem by sliding between professional and general commentary without noting the difference, and that temptation is greatest in a high-profile trial. When Clarence Darrow finds conflict over the teaching of evolution "a death struggle between two civilizations" in Scopes, he thrills a huge appreciative audience beyond the courtroom, but the same words distort the legal issue, insult the locality that will decide the case, and forget the client that Darrow is supposed to serve.

The internal legal standards that protect in court are not meant to inform the public, and often enough they do not. Procedural precision, formal language, and the control of precedent are all tenets for insuring justice in court, and no one would want to be without them, but these tenets are also stratagems for restricting debate and were never designed as engines of general explanation. Consider only the most prominent principle just noted, stare decisis, the control of precedent. Stare decisis et non quieta movere, to give the complete expression, conveys more than the rule of precedent. The full phrase means "to adhere to precedent and not unsettle things that are established." Legal thought depends on what will not be discussed in court as much as it does on the words that control decision, a spirit of efficiency that takes much for granted. Just as "not unsettling things that are established" brings certainty to the decision-making process, so it can miss the more general concerns of a community. There are losses as well as gains in this manner of proceeding, "another way of saying that law has flourished on the corpse of philosophy in America."

Although the aspirations of the law in court are easily conveyed, actual litigation is much harder to comprehend and easily misunderstood. Here is the American Bar Association's summary of what should take place in a courtroom:

The best way to get to the truth is to allow all the competing parties to present their views to an impartial third party as adversaries, or opponents, under rules that permit the evidence to be presented fairly and in an orderly fashion.

Left unsaid are the illusive nature of truth and barriers to the desire for it. At least one of "the competing parties" at trial will not welcome the answer that is found, and the search for truth is always a self-interested enterprise in court.

Courtroom performers must answer to a well-known rubric. They are to "tell the truth, the whole truth, and nothing but the truth." But "what is truth?" The question can be asked with the offhand cynicism of a Roman procurator, Pontius Pilate, in the trial of Jesus, or it can be raised with the precision, relativism, and penetration of a modern philosopher. Either way, truth is a variable in advocacy, and it must be fashioned to be believed. In one of the leading tactics at trial, "the best way to get to the truth" is through the most believable story told in court. "Despite the maze of legal jargon, lawyers' mysterious tactics, and obscure court procedures, any criminal case can be reduced to the simple form of story." This modern adage is accurate as far as it goes, but how much truth is lost in the reduction?


Excerpted from The Trial in American Life by Robert A. Ferguson Copyright © 2007 by The University of Chicago. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Acknowledgments     ix
Introduction     xi
The High-Profile Trial     1
Where Courtrooms and Communities Meet     5
Inside the Courtroom     29
A Case-Study Sequence     75
The Punishing of Aaron Burr     79
John Brown: Defendant on the Loose     117
Mary Surratt on the Altar of National Identity     153
Traitors in Name Only: The Haymarket Defendants     191
Killing the Rosenbergs     233
In Court Today     267
The Trial in Television America     271
Seeing Justice Done     305
Notes     337
Index     393
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