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Bar Journal - Winter 2006





This (belated) Winter issue of the Bar Journal, we hope you will agree, has something for just about everyone in our readership – estate attorneys, litigators, history buffs, even pet-lovers. And, of course, all Bar members who, at some point in their day-to-day activities, have questions about how their Bar Association can help them.


A pull-out insert in this issue of the Bar Journal provides a handy listing of the myriad services and resources available through the Bar Association – ranging from whom to contact to change your contact information in your member record (Anna O’Neill at, to details about the Casemaker New Hampshire online legal library (a free member benefit), how to obtain advice on law practice management, how to shop for various types of insurance for your firm and your employees, and…, well, you get the idea. The guide is in the center of the issue.


Turning to more substantive matters, in this issue you’ll find a comprehensive overview of the state’s new Uniform Trust Code law, including 2005 revisions. Author Michelle Arruda also addresses elements in the law that have drawn some controversy. In a companion article, attorney Susan Abert zeroes in on a new feature of the New Hampshire UTC – provisions allowing the creation of trusts for the care of companion animals.


Litigators may take particular interest in the analysis by attorneys James Steiner and Gayle Braley of an Aug. 18, 2005, decision by the New Hampshire Supreme Court, Winnisquam Regional School District v. Daniel J. Levine, which upheld the constitutionality of a statute of repose protecting members of the construction industry from suits brought long after the completion of a construction project. The decision marked a departure from the Court’s previous findings that such protections were unconstitutional.


Criminal law practitioners will no doubt turn first in this issue to a report by Dr. James Adams, the state’s Chief Forensic Examiner for the Department of Corrections, on the results of a study of competency to stand trial examinations. The study provides a baseline for practitioners, and judges, to help them better understand the results of any individual examination.


Last, but definitely, not least, the most in-depth article in this issue is a fascinating inquiry into the roots and historical context of judicial review and the courts’ assertion of their authority that are to be found in Merrill v. Sherburne and, going back even further, to a series of lower-court cases in New Hampshire from the late 18th century, well before Marbury v. Madison. The article was first published in 1995 by a then-graduate student in history at the University of Virginia, Timothy Lawrie. Lawrie’s article, originally published by the American Journal of Legal History, is reprinted with permission of the author and the publisher, the Temple University School of Law.


(Readers will note that some of this subject was covered in an article by Richard Lambert in the March 2002, Vol. 43, No. 1 issue of the Bar Journal.)


Lawrie, who has since obtained a law degree and now practices in Virginia, explained in a recent e-mail how his research brought him to New Hampshire:

“Primarily, my attention was drawn by the Merrill case.  I was looking to study the origins and development of judicial review, and my adviser, Charles McCurdy, pointed me in particular to that decision.  Critics had begun to question the prominence of Marbury v. Madison in the development of that practice, suggesting that its origins lay more clearly in the states.  The secondary literature still sometimes cites Merrill along with cases like Trevett v. Weeden in RI and Bayard v. Singleton in NC as one of the state precedents for the doctrine.  I thus followed their lead. 

”My research began with Merrill and its unusually rich vein of citations to authorities state and federal.  I then tried to situate the decision in its broader social and political context through newspapers, pamphlets, letters, and various secondary works.  I was somewhat frustrated to find that legislative debates went largely unrecorded, a situation not unusual at the time.  Fortunately, however, the General Court kept regular records of its many, many private acts in the published session laws, which provided an unusual but useful window on their activities.

”I did travel up to Concord, which I found pleasant and welcoming.  In part, I was looking to examine some letters and private papers.  My most interesting discoveries nonetheless were the original records from unreported cases like Gilman v. M’Clary and Jenness v. Seavey.  Without much sense of where to look, I inquired at the Division of Archives and Records Management. 

“The very friendly and helpful staff directed me to a series of uncatalogued boxes filled with papers apparently collected from the attics of old homes and other obscure locations.  Somewhat to my surprise, I found that they, indeed, contained the records of numerous early cases. Everything was neatly bundled away in stacks of triple-folded paper, with the style of the case written on the outside sheet.  I even ran across what seemed to be an old plat map of some sort.  I was pleased to discover most of the items that I was searching for — including handwritten opinions, affidavits, briefs, and the original promissory note at issue in the Jenness case.  It was exciting for a novice historian to run across documents like this, which perhaps no one had seen since the court filed away its final opinion two centuries earlier.  More than any other aspect of my research, these discoveries helped to bring the subject alive to me, and I am thankful to the Records and Archives employees for making that possible.”

A tip of the hat also goes to Eugene Van Loan, who in the course of writing an article that challenges some of the common wisdom regarding the concept of judicial review, came across Lawrie’s article and encouraged the Bar Journal to obtain permission to reprint it and make it more accessible to New Hampshire readers. Van Loan’s own article, previewed in his introduction to Lawrie’s article, will be published in the next issue of the Bar Journal.


Enjoy the issue.


Dan WiseDan Wise is Editor of the Bar News and Communications Director of the New Hampshire Bar Association. He has worked for the Bar Association since 1996.  

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