The purpose of any class in law school is to teach you to think like a lawyer. I’m not sure any of us, including our instructors, can really explain what “thinking like a lawyer” means but I’ve heard it a lot in the last four years. Even if we cannot agree on a universal meaning, I think all of us would agree that being in law school makes you think. We think about case law, statutory law, Supreme Court decisions, taxes, partnerships, trust accounts, and a host of other subjects. And sometimes we hear something and just go, “Hmmm, I wonder…”
That’s what happened to me a few weeks ago as I was listening to Justice Koch teaching my Constitutional Law class. It was a simple comment that started my brain turning during a discussion of Marbury v. Madison (5 U.S. (1 Cranch) 137 (1803)). As we discussed the case, Justice Koch made the comment that Marbury’s demand that the Secretary of State produce a copy of his commission was one of the earliest examples of Discovery. I admire Justice Koch. I respect Justice Koch. I disagree with Justice Koch.
I concur that Marbury’s request is one of the earliest examples of Discovery in American jurisprudence. I accept the premise that the American concept of Discovery is rooted in English law as are many of our judicial practices. And I submit to you that one of earliest examples of Discovery, if not the first, was recorded sometime between 559 and 530 B.C. during the reign of Cyrus, King of Persia.
King Cyrus is mentioned prominently in the Old Testament. One occurrence is recorded in the book of Ezra, chapters five and six. The prophet Ezra tells us that in the first year of Cyrus’ reign (559 B.C.) he issued a decree allowing the Israelites to return to Jerusalem and begin construction to rebuild Solomon’s temple. At some point thereafter a group of individuals confronted the builders and demanded to know what they were doing and who their leaders were. For reasons not recorded this group then drafted a letter to the king naming the Jewish leaders and asking him to certify their commission. In other words, they were asking for a declaratory judgment. You could also view it as the filing of the complaint.
The Jewish leaders answered the complaint with what we would now call a Request for Production of Documents. They answered that the king had issued the decree to rebuild the temple and that it could be found in the “house of the rolls.” (Ezra 6:1). A search for the decree was made and it was found. After reading the document, King Cyrus found in favor of the defendants (summary judgment). He went on to award damages by ordering those who had brought the charges against the Israelites to provide them with whatever construction materials were necessary to complete their work.
If you look up this story you will find the complaint and answer in chapter five and the judgment with award of damages in chapter six. This story is an example of why my law school experience has been more than just a way to prepare for a new career. It has been a joy to discover all of the ways our American judicial system is rooted in biblical history.