On Bad Laws and Even Worse Judges

Michelle on teaching E.P. Thompson, three-strikes cases, with bonus unsolicited advice for people interested in law school

Henry Alken (1785-1851), “Poachers Apprehended.”

Michelle:

Last week my Historical Foundations of Law class tore through Whigs and Hunters by the famed Marxist historian E. P. Thompson. (Okay, we just read the introduction and the last chapters, but they were very dense.) The book is about the Black Act, passed in the UK in 1723, which created over two hundred capital crimes. It made collecting wood, fishing in streams, poaching rabbits, stealing deer, cutting down trees, and stealing peat for fuel on private or royal property punishable by death. The Act got its name because would-be thieves or hunters or poachers often disguised themselves at night by “blacking” their faces, covering them in burnt cork or soot.

Before the Black Act, anyone, even those who owned no land, could take wood from or graze sheep on common land. But the process of enclosure—which created the enormous, decadent estates we see across England—kicked them off the land, converting it to private property.* The Whi…