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Treatises and Revisions

Eugene Volokh has this interesting post on treatises that have been revised by persons other than the original author.  This practice has a long history in the legal profession, but it can result in confusion as to who wrote what, and sometimes that matters.

Volokh has been trying to get the Supreme Court to say that the requirement that jury verdicts be unanimous is a constitutional requirement, overruling Apodaca v. Oregon, 406 U.S. 404 (1972).  (That would, of course, be a disaster for Oregon and other states allowing nonunanimous verdicts, with massive numbers of retrials required.)

So he was no doubt delighted to find a statement to that effect in the famous constitutional law treatise by Justice Joseph Story.  Not only is Story highly respected, but he was close in time to the Founders, and his statements carry special weight in trying to figure out what the provisions of the Bill of Rights were understood to mean when they were adopted.  That understanding, in turn, is important in swaying the "conservative" justices not generally inclined to expand procedural rights of criminal defendants.

The bad news for Volokh, and good news for those who regard his project with alarm, is that Story did not write that.  It was added by an 1858 revisor, Edmund Bennett.  That still has some value in arguing that a unanimous jury was part of "due process of law" when the Fourteenth Amendment was adopted, but it is not as powerful as an original Story quote.

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