Wednesday, September 15, 2021

SCOTUSBlog review of "Painting Constitutuional Law"

Amanda Frost (American) published a nice review on SCOTUSBlog of Painting Constitutional Law, my edited volume with M.C. Mirow on Xavier's Cortada's series May It Please the Court.

Posted by Howard Wasserman on September 15, 2021 at 09:31 AM in Books, Howard Wasserman | Permalink | Comments (0)

Thursday, August 19, 2021

Possession as Estoppel—Last of a Lakefront Series on Property Law

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the final in their series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). We thank them for sharing this series.

Our previous four posts in this five-part guest series, generously welcomed and introduced by Howard Wasserman, have shown that possession seems often to influence the outcome of fights over the use of resources along the Chicago lakefront. We have drawn on the cases and chronicles set forth in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). In this wrap-up post, we will offer a more precise definition of what possession means in this context, and will try to pinpoint, in legal terms, what role possession seems to play.

According to a recent draft of the Restatement (Fourth) of Property approved by the American Law Institute, to be in possession is defined as having “established effective control over [a] thing” while manifesting “an intent to maintain such control to the exclusion of others.” (Tentative Draft No. 2, Vol. 1, Div. II, Ch. 1, § 1.1 (Apr. 7, 2021).) What does this mean in the context of the various disputes over the use of resources on the Chicago lakefront?

With respect to land under the lake, being in possession presumably means filling the submerged land and building a structure on it or otherwise excluding others from access to it without permission. Thus, the Illinois Central Railroad never secured possession of the submerged land granted to it in 1869 for construction of an outer harbor, because it never managed to fill the submerged land, let alone build the harbor (post one). Similarly, the park districts did not immediately take possession of the submerged land granted to them to construct north and south Lake Shore Drive, because they delayed filling the land for years (post four). In contrast, in those same Lake Shore Drive stories (so also post four), the riparian owners did secure possession of the submerged land inside the boundary-line agreements (made between them and the park districts), because they promptly filled the land and developed it for their own purposes, thereby excluding others.

With respect to bare land, like that of Grant Park, being in possession means constructing a building subject to limited access or policing the land to the exclusion of others (post two): Thus, the Art Institute obtained possession of a portion of the land once it built its museum on it, which was allowed to stand despite the public dedication doctrine. But the Field Museum never obtained possession in Grant Park, since it never got beyond driving a symbolic stake into the ground before the project was tied up in litigation and eventually enjoined.

The case of Cap’n Streeter and his gang of squatters, along the lakefront north of the Chicago River, is more complex (post three). Streeter probably succeeded in establishing possession of the boat, makeshift fortress, or broken-down motor truck that he variously occupied on the newly formed land. But he never established effective control over the full area he claimed—eventually determined to be 160 acres—because he did not command a large enough force to do so. Nor did he have the support of the police to back up his claim of possession to this larger area.

To pinpoint more precisely in legal terms what role possession seems to play in various lakefront controversies, we think that the best analogy may be estoppel.

Estoppel, an equitable doctrine, is most commonly invoked to bar individuals from asserting a legal claim contrary to what they have previously affirmed, by word or deed. In the context of the various disputes that we have cataloged, it seems that acquiescing in possession of something by others is seen as an implicit affirmation of their rights. Hence, the assertion of a contrary legal claim is more likely to be denied (by estoppel) than it would be otherwise.

The equation of possession with estoppel was made explicit in a momentous decision of the Illinois Supreme Court in 1966: Hickey v. Illinois Central Railroad Co., 35 Ill. 2d 427, 220 N.E.2d 415. The case involved the landfill created by the Illinois Central Railroad between Randolph Street and the Chicago River, east of Michigan Avenue, where it had constructed its primary terminal, among other facilities. The question became whether the Illinois Central only had an easement for railroad purposes or instead held full fee-simple title to the area. If only an easement, then the air rights above the area belonged to the state. If a fee simple, then the railroad could sell off the air rights for development of high-rise commercial buildings or condominiums.

Legally speaking, the state and the other plaintiffs had strong arguments that the railroad had only an easement. The problem with this assertion was that the railroad had been in possession of the land for as long as anyone could remember. Some of it had been used as a terminal going back to the 1850s. Some of it had been used for huge grain elevators, which were not essential elements of a railroad terminal. And more recently (in the mid-twentieth century), a state agency had signed off on projects to sell the air rights, in this area, for construction of the Prudential Building, then the tallest building in Chicago, and a large apartment house.

The Illinois Supreme Court in Hickey did not rule that the Illinois Central owned the air rights—it ruled, rather, that the state was estopped from denying that the Illinois Central owned the air rights. It cited a series of statements and actions by the government seeming to assume or understand that the railroad had full title to the contested land. These were said to reflect the “prevailing governmental attitude, both State and city, since near the beginning of this century,” which “has regarded the Illinois Central Railroad as the owner, in fee, of the now disputed lands.” Hence, “basic concepts of right and justice preclude the State from now asserting any claim to the lands involved in these proceedings.”

The Hickey court’s invocation of estoppel to rebuff the State’s claim to the air rights could have been written as a judgment conferring title by adverse possession. The general rule, however, is that one cannot claim title by adverse possession against the government. It is also unusual for a court to invoke estoppel against the government. But estoppel, as an equitable doctrine, is more susceptible to case-specific application. For this reason, estoppel may be a better description of the role of possession in resolving contests on the lakefront than the hard-and-fast rule of adverse possession, grounded in the passing of a statutory period.

In addition to the public trust controversies considered in the first post, consider the public trust cases decided since the Illinois Supreme Court announced an uncertain but more intrusive standard of review of such claims in 1970. In two cases involving a legislatively authorized proposal to fill submerged land, the courts held that this was prohibited by the public trust. One case involved a grant of submerged land to expand a steel plant on the South Side; the other a grant of land to expand a private university on the North Side (Loyola). In both cases (considered here as well as in Lakefront itself), the beneficiary of the legislative grant could not maintain that it had possession over the contested area.

In contrast, in two other cases, which involved, rather than filling, changes in the use of land previously dedicated to a different type of use, the court denied the public trust claim. One case entailed a proposal to use a portion of a public park to construct a new public school; the other involved a proposal to rebuild Soldier Field to accommodate the wishes of the primary tenant, the Chicago Bears. In both cases (considered in the same posts linked in the previous paragraph and in Lakefront), the party that successfully sought to change the existing use of existing land could fairly claim that it was already in possession.

In none of these four cases was estoppel cited, nor was existing possession. But the pattern continues to reflect the one that we have discerned in a variety of other contests. Courts are reluctant to interfere with possession. This is so, whatever may be the strength of the legal claim, or the public rights doctrine, pointing to a contrary conclusion. If there is no relevant claim of possession, public rights are more likely to be vindicated.

Posted by Howard Wasserman on August 19, 2021 at 09:31 AM in Books, Property | Permalink | Comments (0)

Monday, August 16, 2021

Boundary-Line Agreements and Possession: The Extraordinary and Ordinary Story Behind Chicago’s Lake Shore Drive

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the latest in a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

This is the fourth of five posts in a guest series exploring the power of possession in property law. Our basis is empirical: the history of the Chicago lakefront, which we chronicle more comprehensively in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). This post examines an extraordinary legal device that emerged during the construction of Lake Shore Drive and associated parks up and down the better part of the city’s lakefront (north and south in Chicago along Lake Michigan, that is). The device—called a boundary-line agreement—was used repeatedly to extinguish the riparian rights of persons who owned lakefront property. The story of the development, flourishing, and, finally, desuetude of the boundary-line agreement is a fascinating one. We will relate enough of the story here to advance the purpose of this series: using Lakefront to draw out some illustrative and instructive points respecting the perhaps-ordinary power of possession in property.

Let us begin by framing the problem that confronted government entities in Chicago in the late nineteenth and early twentieth centuries, as they wished to build lakefront parks and an associated drive. It was not a lack of a legal right to fill submerged land in Lake Michigan for these purposes: Various cases in the 1890s had established that the State of Illinois owned the land under Lake Michigan and could grant it to local government entities (such as the Lincoln Park District) for this purpose; these cases included the landmark Lake Front Case—the U.S. Supreme Court’s 1892 decision, Illinois Central Railroad Co. v. Illinois, which announced the American public trust doctrine.

The problem, rather, involved the legal rights of those who owned the property along the shore. These riparian rights, such as the rights to access and view the water, long have been regarded as especially valuable property rights, and courts often say that the government can extinguish them only by paying just compensation.

To be clear on the point and the problem: In order for the park districts to fill the submerged land granted them by the state, and thereby extend existing parks and build Lake Shore Drive, they had to acquire the riparian rights of the landowners on the shore (the riparian owners, as they may be called). But both the Lincoln Park District on the North Side and the South Park Commission on the South Side were short on money.

The ingenious primary device for solving this problem involved boundary-line agreements. In form, these were contracts specifying the boundary between the land of the riparian owner and the submerged land owned by the government (first the state and then the park district) and slated to be filled for the new parks. In substance, the boundary-line agreements were a quid pro quo in which riparians traded their rights for additional land.

How could that be? It all depended on where the parties agreed to draw the line. Here is how it worked: The park district would agree to set the boundary line in the lake—typically about 100 feet east of the original shoreline. (This was facilitated by the fact that erosion and, in particular on the North Side, accretion had obscured the original shoreline in parts.) For its side of the deal, the riparian would convey its riparian rights to the park district.

The agreement then would be presented to a court, typically quietly and with little public awareness (there being no adversity in this litigation, with an exception immaterial here). Upon being approved by the court, the agreement—now a judgment—would establish a new and permanent boundary between the previously riparian land and the new parkland to the east (abutting the lake). Indeed, the state statutes providing for this process decreed that the new boundary line could never be challenged based on where the shoreline had been at any time in the past or according to whether the former riparian owner had, at the time of the agreement, proper title to accretions.

Once the boundary was set, both the riparian and the park district were free to start filling the lake: the former to solidify their new holdings next to (east of) their original land, the latter to build the expanded park and the drive between the new boundary line and Lake Michigan to the farther east. In fact, we might now call the former “the former riparians,” as there now (or soon) were supposed to be a park and a roadway between their property and the lake.

This brings us to the power of possession: As experience with these boundary-line agreements grew, it became clear that establishing possession was important on both sides of the deal. For the former riparians, there was every incentive to begin filling the new land almost immediately. Indeed, our research unearthed that many, perhaps most, commenced filling the lake up to the boundary line well before the park district was able to start filling, east of the boundary line, for the parks and the drive.

The incentive of the former riparians to fill quickly was both economic and legal. The reason for giving up their riparian rights had been the promise of more land, even if it was in the interests of both sides not to publicize this. The sooner the former riparians secured or established that land, the more value they could extract from the deal. Legally, the former riparians may have worried that the agreements would be publicized and that public condemnation would lead to a demand to reverse the deals.

Even to leave aside the earlier reaction to the Lake Front Act of 1869 (decrying it as the Lake Front Steal and leading to its repeal in 1873), there was a basis for this worry in very recent history. When an explicit conveyance of submerged land was used to fund an earlier extension of Lake Shore Drive, just north of the Chicago River, in Streeterville, in the 1890s, a major public controversy erupted that led to litigation and calls for legislative reform.

The legal instincts of the former riparians would be vindicated many decades later, when the Illinois courts reformulated the public trust doctrine as a prohibition against any conveyance of public rights—quintessentially, submerged land under Lake Michigan—for private gain or private use. (These have gone beyond dicta: One such legislative grant, involving the South Works plant in the 1960s and 1970s, was judicially invalidated on this basis, after the grantee waited a decade to try to take active possession of submerged land once the state gave it the title.) Yet no one has ever suggested that the conveyances of submerged land to private riparian owners in the early decades of the twentieth century—whose land is now well west of the lake, given the park and the drive in between—should be reversed under this revised public trust doctrine. Possession, as we saw in the first post in this series, operates as a kind of unspoken statute of limitations on public trust claims.

What about the other side to the deals—the park districts? Their contrasting fate is similarly instructive. Recognizing that all of the primary conduct is recounted in detail in Lakefront (though not with an unwavering eye on possession), let us look at enough of it here to make the point.

Unlike the riparian owners, the park districts failed to take rapid possession of the submerged land outside the newly agreed boundary lines. The dilatoriness of the Lincoln Park District, on the North Side, has a simple explanation: it did not have the money. The park district had been able to overcome the financial cost of acquiring riparian rights, it is true, by using boundary-line agreements. But it still had to pay for landfilling, roadbuilding, landscaping, and a seawall. Consequently, years and often decades would pass before the park district commenced construction.

The delay in taking possession of the submerged land designated for the drive and new parks would prove to have fatal consequences.

As the years rolled by (this was all largely during the first quarter of the twentieth century), without action by the park district near their particular property, many riparians grew angry. One irritation was storm damage to their land. They had been led to believe that their land, old or new, would be protected against storm damage from the lake by a new park and seawall constructed by the park district. Instead, they often had to pay for protection and, in some cases, land restoration, themselves. In a practical sense, if you will, they were unhappy that they were not yet former riparians.

Another and more consequential irritation was a major change in the plans of the Lincoln Park District. Whether to build support for higher tax assessments or simply on the merits, the district announced plans for a greatly expanded park and drive. The original 1895 plan for expanding Lincoln Park northward called for a strip of park roughly 1,000 feet wide (west to east) along the shore of the lake. The new plans, as they began to emerge in the mid-1920s, projected filling approximately four times as much land, in order to accommodate a variety of recreational opportunities, such as a golf course, picnic areas, lagoons, and harbors. And instead of a narrow pleasure drive running along the water, at the eastern edge of the park, the new plans depicted Lake Shore Drive as a multilane limited-access highway running along the park’s west edge—adjacent to the boundary line with the former riparians.

Some riparians sued, alleging that the failure to protect their land from storm damage and the radically changed conception of the project constituted a breach of the original boundary-line agreements. The Illinois Supreme Court agreed, enabling various disgruntled landowners to rescind the agreements.

So the Lincoln Park District (and its successor, the unified Chicago Park District) had to find some other way to acquire riparian rights. It tried condemnation, but this proved to be too expensive and time-consuming. It tried negotiating new, much-sweetened boundary-line agreements. But this too ran into resistance, as riparian owners along the lakeshore, north of Hollywood Avenue (5700 North in Chicago), began constructing high-rise apartment buildings, whose market value was closely tied to direct views of the lake.

In short, the failure of the park district to take possession of the submerged land designated for park purposes soon after it was authorized to do so—1895 on the North Side—is directly responsible for the fact that Lake Shore Drive ends at Hollywood, well short of Devon Avenue (6400 North), the latter having been the original and longtime projected terminus of the extension of the drive and Lincoln Park. In areas where the park district could show only an abstract right to fill the lake and various planning documents about future intentions, former riparians successfully sued for rescission. In areas where the park district had succeeded in filling the lake and constructing some kind of park and drive—that is, where it had taken possession—there was no suit for rescission that we have discovered.

The boundary-line device also played a major—indeed, monumental—role on Chicago’s South Side, in the work of the South Park Commission. We use the emphasized word because it is the device of the boundary-line agreement that made possible the construction of the Field Museum, which opened in 1921, and the subsequent development of the Museum Campus. All of that, too, is an extraordinary story, but a separate one for our purposes here.

Lakefront tells that chapter as well, including how the stories meet in the middle—with the construction in the 1930s of the bridge over the Chicago River, connecting the north and south portions of Lake Shore Drive, as the roadway would soon be uniformly denominated. Its formal name was expanded by Chicago just this summer, to be Jean Baptiste DuSable Lake Shore Drive, “in honor of the Black trader cited as the first non-Indigenous settler of the Midwestern city.”

Our next (fifth) and final post will consider how possession functions as a kind of statute of limitations—a de facto type of adverse possession—in defeating claims of public rights. It will complement not only this fourth post in this series but also the first post, which showed that defendants who had established possession of submerged land prevailed in early public trust controversies, while those who had not established possession lost; the second post, which explained that the same appears to be true of public dedication controversies involving the construction of the buildings in Grant Park; and the third post, which highlighted the perceived advantages that possession plays in motivating persons to be the first to possess some valuable resource.

Posted by Howard Wasserman on August 16, 2021 at 09:31 AM in Books, Property | Permalink | Comments (0)

Thursday, August 05, 2021

Possession vs. Ownership in Property—First of a Lakefront Series

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the first in a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

“Possession is nine-tenths of the law,” a common version of an old saying holds. More recently, Carol Rose, one of our most distinguished property scholars, has argued that this understates the point. Possession matters, she has written, largely because when we see someone in possession of something, we assume that person to be its owner. (See her chapter in Law and Economics of Possession, Yun-chien Chang, ed., Cambridge University Press, 2015.)

Among its other virtues (we respectfully suggest), our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), allows us to consider both the dictum and Professor Rose’s critique of it. In particular, the book documents a number of episodes in the history of Chicago (its lakefront, that is) in which someone either was in possession of some resource but had no clear right of ownership or, by contrast, had a fairly clear legal right of ownership but lacked possession. Who was more likely to prevail: the possessor without ownership, or the owner without possession?

With great thanks to Howard Wasserman and his PrawfsBlawg colleagues for the introduction and opportunity, let us proceed.

We can begin with the early part of the story, which involves the Illinois Central Railroad and its quest to secure a grant of submerged land under Lake Michigan to construct an outer harbor, supplementing the existing (inner) harbor of the Chicago River and the railroad’s lake trackage and lakefront facilities. In 1869, the railroad got what it wanted: With some skillful lobbying and at least a little graft (the former is quite clear, the latter clear enough), it persuaded the state legislature to grant it 1,000 acres of submerged land “in fee,” for purposes of building an outer harbor in the lake. In effect, in the Lake Front Act, the state granted the railroad ownership of the submerged land.

Because of dire economic conditions in the early 1870s, the railroad did little to implement the grant, i.e., to take possession of the submerged land and begin constructing a harbor. Chicago politicians, who had wanted the right to construct such an outer harbor themselves, capitalized on the railroad’s inactivity and public unhappiness and secured a repeal of the grant to the railroad in 1873 (the Lake Front Steal was the popular local name for the 1869 act, and the more general Granger Movement against the railroads helped the city).

The 1873 legislators were insufficiently impressed by the arguments of the railroad’s lawyers that the 1869 grant was a “vested right” that could not be repealed consistently with the Constitution’s Contracts Clause. Many of the legislators were lawyers, but it cannot have helped the railroad’s cause that its claim of ownership was not accompanied by possession.

Many years later, in 1892, the U.S. Supreme Court had to decide whether the 1873 repeal of the original grant was constitutional. Although the railroad’s lawyers had weighty precedent on their side in support of the claim of vested rights, a four–to–three majority of the Court held that the grant was, if not void altogether, properly revocable.

The winning point, as articulated for the Court in an opinion by Justice Stephen J. Field, was that the submerged land was impressed with a “trust” in favor of “the people,” so that “they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.” Thus was announced, as it would come to be called, the American “public trust doctrine.”

By itself, this public trust would seem to have doomed much of the Illinois Central’s existing facilities along the lakefront. The railroad had constructed, by the time of the 1892 decision, a massive complex of terminals, engine houses, grain elevators, and piers, much of it on landfill in the lake—both north and south of the area targeted for construction of the outer harbor. (Map C in the Supreme Court’s report of the case, also known as the Morehouse map, gives a sense of this, as of course does Lakefront in any number of ways.) These facilities would seem to constitute an “obstruction or interference” with the public’s access to the lake.

Field nevertheless discussed two arguments that might support allowing the railroad’s various improvements constructed in the lake to stay. One was based on language in the Illinois Central’s 1851 state legislative charter, which allowed the carrier to use “any lands, streams and materials of every kind” owned by the state if needed by the railroad to construct depots, shops, yards, etc. Perhaps this charter language justified the railroad’s construction in the lake.

The other was based on the common-law privilege of a riparian landowner to “wharf out” from the shore if necessary to reach water deep enough to float a boat. If sufficiently modest in size, Field observed, such landings—such wharves, piers, docks, and the like—were consistent with the public trust, since they enhanced the ability of the public to access navigable waters. The case was accordingly remanded to the lower courts for an inquiry whether the railroad had constructed any facilities in the lake that went beyond the point of practical navigability (and thus could not be sustained by the wharfing-out privilege).

On remand, both the district court and the newly created U.S. Court of Appeals for the Seventh Circuit held that the railroad’s massive complex did not violate the public trust identified by the Supreme Court. Focusing in particular on the right to wharf out, the lower courts concluded that the Illinois Central’s various landfilling did not intrude into the lake beyond the point of practical navigability, especially given the emergence of a new class of lake steamers with a much deeper draft than the schooners of bygone days. In short, the construction in the lake was sustained as properly implementing the railroad’s right as riparian owner to access the lake’s navigable waters.

Consider the implications of all this for our question. To recap: On the one hand, the Supreme Court upheld the repeal of the grant “in fee” to the railroad to construct an outer harbor. This was, at most, an abstract right of ownership, for the railroad had never converted it to actual possession. On the other hand, the lower courts sustained the right of the railroad to retain all the terminals, elevators, repair facilities, and track that it actively possessed, even though the better part of these had been constructed on landfill never explicitly authorized by the state.

It gets better. Between the Supreme Court’s 1892 decision and the time the remand worked its way back to the Seventh Circuit in 1899, the Illinois Supreme Court, in other litigation, repudiated both of the arguments that Justice Field had suggested might justify the railroad’s keeping the various facilities it had constructed in the lake. In 1898, the state court repudiated the right to wharf out, at least as applied to Lake Michigan. That same year, it also held that the Illinois Central’s charter did not justify landfilling in the lake, since the lake was neither land nor a stream nor (apparently) “materials of [any] kind” owned by the state.

Naturally, then, the state argued that the railroad had no legal right to remain in the lake. The Seventh Circuit dodged the issue. It ruled that the only question open for consideration on remand was whether the Illinois Central’s various improvements extended into the lake beyond the point of practical navigation. Nothing else could be considered. When the matter returned to the Supreme Court in 1902, the high court adopted the same dodge.

So it was that the Illinois Central, which had no viable argument to support its being in the lake, was allowed to remain there, with respect to the facilities that it had actively possessed at least since the late 1880s. The courts were willing to validate the repeal of the Lake Front Act. But they had no desire to dismantle one of the major rail complexes in the United States.

In both 1873 and 1892, the relevant legal actors (the Illinois legislature and the U.S. Supreme Court) were willing to strip the railroad of its claim to ownership of land that it had never possessed. In 1899 and 1902, the relevant legal actors (the Seventh Circuit and the U.S. Supreme Court) upheld the right of the railroad to retain control of facilities that it did actively possess, even though it no longer had any viable claim of ownership to them.

So far in the story, it would seem that possession is more powerful than ownership in determining the attitude of legal actors regarding the allocation of control over valuable resources. Our second entry (the series will entail five posts) will consider the power of possession in the context of the public dedication doctrine (not to be confused with the public trust doctrine)—that is, in the case of the Chicago lakefront, in determining the fate of various challenges to constructing buildings in Grant Park.

Joseph D. Kearney and Thomas W. Merrill

Posted by Howard Wasserman on August 5, 2021 at 10:21 AM in Books, Property | Permalink | Comments (0)

Wednesday, August 04, 2021

August Guests: Joseph Kearney and Thomas Merrill on "Lakefront"

We are pleased to welcome Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia) to blog about their excellent new book Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

This is their third stop on a blogging book tour.

Posts at Volokh Conspiracy here:

Posts at Faculty Lounger here:

They will begin posting on Thursday.

Posted by Howard Wasserman on August 4, 2021 at 12:31 PM in Books, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 20, 2021

Painting Constitutional Law

Coverimage

I am happy to announce publication of Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights (Brill), co-edited by my colleague M.C. Mirow and me.

Cortada is a Miami-based, law-trained artist. His May It Please the Court is a series of paintings depicting SCOTUS cases that originated in in Florida; he did the original seven paintings in 2002, then added three newer cases for this book. We invited legal scholars to discuss the cases and their artistic depictions; all took the mix seriously and produced a fascinating combination of legal and artistic analysis.

Contributors from the legal academy were Paul Marcus (William & Mary) and Sue Backus (Oklahoma), Jenny Carroll (Alabama), Leslie Kendrick (Virginia), Corinna Lain (Richmond), Linda McClain (Boston University), Kathleen Brady (Emory), Jim Pfander (Northwestern), Erwin Chemerinsky (Berkeley), Laura Underkuffler (Cornell), and Andrew Ferguson (American).

Posted by Howard Wasserman on January 20, 2021 at 09:31 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Friday, November 27, 2020

JOTWELL: Vladeck on the new Supreme Court Practice

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing the new 11th edition of Supreme Court Practice.

Posted by Howard Wasserman on November 27, 2020 at 02:56 PM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (0)

Friday, October 16, 2020

Hamilton: The Legal Text

A fun new book from Cornell University Press, Hamiton and the Law: Reading Today's Most Contentious Legal Issues Through the Hit Musical. It is the brainchild and edited by Lisa Tucker (Drexel) with a great group of contributors.

Posted by Howard Wasserman on October 16, 2020 at 12:34 PM in Books | Permalink | Comments (2)

Tuesday, February 25, 2020

Teaching Federal Income Tax to the Current Generation of Law Students

The following post is by Jeffrey l. Kwall, Kathleen and Bernard Beazley Professor of Law (Loyola-Chicago) and is sponsored by West Academic.

The basic Individual Income Tax course opens a new world to most law students. Our challenge as professors is to find ways to make this unfamiliar area of law accessible to students with a wide variety of backgrounds and learning styles.

To break down barriers, I begin the course by exploring income issues in the context of relationships with which all students are likely to be familiar (e.g., a business owner and an employee, a donor and a donee, a lender and a borrower). To accommodate students with different learning styles, it is helpful to supplement cases with explanatory text, detailed examples, and many practice problems, and to highlight applications to the practice of law, online references, points worth noting and insights.

One of my primary goals is for Individual Income Tax students to walk away from the course understanding that economic considerations are more important than tax considerations. Students can become so enamored with the art of tax planning that they lose sight of the fact that the amount of taxes paid is far less important than the amount of money left over after taxes have been paid. The importance of economic considerations is a valuable lesson for all law students.

Stressing the importance of economic considerations opens the door to exposing students to quality of practice issues. The vast majority of our students will be practicing attorneys. Regardless of their area of practice, they can learn much about the practice of law by reading not only the traditional tax cases familiar to all of us, but provocative, contemporary cases that illustrate good planning skills as well those that reveal poor planning.

The new Doctrine and Practice Series™ (Foundation Press®) is an ideal vehicle for teaching the basic Individual Income Tax course. Its features make tax law accessible to students with a wide variety of backgrounds and learnings styles. In addition to the problems in the text, this new series offers students significant practice opportunities with online quiz questions after each chapter and cumulative review questions. I encourage you to review THE FEDERAL INCOME TAXATION OF INDIVIDUALS: AN INTEGRATED APPROACH and determine if this new approach to teaching tax resonates with you.

Posted by Howard Wasserman on February 25, 2020 at 09:31 AM in Books, Sponsored Announcements | Permalink | Comments (0)

Monday, February 24, 2020

JOTWELL: Kalajdzic on Fitzpatrick on the conservative argument for class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Brian Fitzpatrick, The Conservative Case for Class Actions (2019). Brian gave a Fed Soc on the book at FIU last month.

Posted by Howard Wasserman on February 24, 2020 at 10:25 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, January 09, 2020

JOTWELL: Malveaux on Burbank & Farhang on rights retrenchment

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Stephen B. Burbank & Sean Farhang, Rights and Retrenchment in the Trump Era, 87 Ford. L. Rev. 37 (2019), a follow-up to their 2017 book on the counter-revolution against federal litigation.

Posted by Howard Wasserman on January 9, 2020 at 11:15 AM in Article Spotlight, Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 10, 2019

JOTWELL: Vladeck on Thomas on O'Connor

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Evan Thomas, First: Sandra Day O'Connor (Penguin Random House 2019) and arguing that the bio reveals O'Connor as likely the last true centrist on the Court.

Posted by Howard Wasserman on July 10, 2019 at 10:05 AM in Books, Howard Wasserman | Permalink | Comments (0)

Wednesday, April 17, 2019

Guest Post (Josh Douglas): Vote for US – The Organizations

This is the third in a series of guest posts from former guest Josh Douglas (Kentucky) that will appear this week. The series was posted on the Election Law Blog. Thanks to Rick Hasen for letting us publish it, with some minor edits.

In my previous posts about my new book, Vote for US: How to Take Back Our Elections and Change the Future of Voting, I discussed some of the Democracy Champions working on positive election reforms and highlighted some of the reforms themselves. The third piece of the puzzle is the incredible local, state, and national organizations focused on these issues.

The book tells the stories of lots of great groups and the work they are doing to reach voters in their communities. Perhaps my favorite story is from the Texas affiliate of Mi Familia Vota. That organization went to taco trucks in heavily-Latino areas of Houston to give them voter registration forms to hand out to their customers. On the voter registration deadline, taco truck owners were calling Mi Familia Vota to ask for more forms, as so many people wanted to register to vote. Organizations like these actively work in local communities to reach voters where they are.

I also tell the stories of two amazing organizations, VoteRiders and Spread the Vote, that focus on voter mobilization and issues of voter ID, each with their own strategy and reach. Their models rely on local volunteers, who often help to secure the necessary underlying documentation that a voter may need and offer rides to the DMV to obtain an ID. As Spread the Vote notes, having an ID is helpful for everyday life, not just Election Day.

These are just a few examples. Great organizations exist in all 50 states. The Appendix lists groups in every state, as well as national organizations, dedicated to voting rights, election reform, and campaign finance. No matter your state, you can flip to the back of the book and find a couple of organizations that focus on voting rights and election reform. Give one of them a call.

This is, I hope, a different book. Although I spent considerable time doing research, the focus goes beyond an academic audience. I hope that everyday Americans will read the book and feel inspired about what is possible. We need not suffer from the doom-and-gloom that most people think invades our voting rights discourse. We can promote positive reforms that will truly improve our election system. We can achieve much higher turnout and much less apathy about our democracy. All of us can help to take back our elections and change the future of voting.

Posted by Howard Wasserman on April 17, 2019 at 09:31 AM in Books | Permalink | Comments (0)

Tuesday, April 16, 2019

Guest Post (Josh Douglas): Vote for US-The Reforms

This is the second in a series of guest posts from former guest Josh Douglas (Kentucky) that will appear this week. The series was posted on the Election Law Blog. Thanks to Rick Hasen for letting us publish it, with some minor edits.

Yesterday I highlighted some of the amazing individuals I profile in my new book, Vote for US: How to Take Back Our Elections and Change the Future of Voting. These inspiring people are promoting positive voting rights reforms in their local and state communities. Today I’ll say a little bit about some of the reforms themselves.

I discuss, for example, the origins of automatic voter registration, started statewide in Oregon largely thanks to some innovative thinking by Steve Trout, the elections director, and Kate Brown, then the secretary of state who became governor. That reform is now spreading throughout the country. I devote a chapter to disabled voters and the use of a voting machine that all voters can use, which can reduce the stigma of having a disability. I talk about the adoption of ranked choice voting in numerous local elections and then Maine’s statewide implementation last year, highlighting both the reformers who made it happen and the reasons why the system can improve our elections. I go in-depth about Michigan’s constitutional amendment to create an independent redistricting commission and also highlight similar local measures, such as in Sacramento. There’s a discussion of incorporating “action civics” into our classrooms and why local journalism is so important to our democracy.

The book purposefully highlights local reforms. Justice Louis Brandeis once said that states are laboratories of democracy: “a state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” If states are laboratories of democracy, then I like to think of cities and localities as “test tubes of democracy” that can try out reforms on an even smaller scale. The best ideas will then spread to other localities and eventually to states. That’s the case for many of these election reforms.

Importantly, the book focuses on reforms actually working in state and local elections already. The book is less concerned about major changes to our constitutional structure, like abolishing the Electoral College. Those ideas are important, of course, and I discuss some of them in the Epilogue, but the point of this book is to highlight and promote electoral changes that are already in force – with positive results – in states and localities all over.

Moreover, while pushing back against voter suppression is vitally important, it can’t be our only strategy to improve our democracy. That’s the message of the final chapter, “The Perils of Only Playing Defense.” We also need to focus on positive voting rights reforms. The goal is much higher turnout and an election process that is more inclusive and convenient for all voters.

Tomorrow I’ll discuss a few of the local organizations dedicated to these efforts and the resource I provide in the Appendix to find them, no matter your location.

Posted by Howard Wasserman on April 16, 2019 at 09:31 AM in Books | Permalink | Comments (0)

Monday, April 15, 2019

Guest Post (Josh Douglas): Vote for US

This is the first in a series of guest posts from former guest Josh Douglas (Kentucky) that will appear this week. The series was posted on the Election Law Blog. Thanks to Rick Hasen for letting us publish it, with some minor edits.

I’m proud to share that I’ve just published a new book, titled Vote for US: How to Take Back Our Elections and Change the Future of Voting. It’s a popular press book that tells some truly inspiring stories of everyday Americans who are working in communities all over the country to fix our election system. In the process, the book advocates for various reforms to our democracy that are already seeing success in numerous local and state elections. And it highlights lot of amazing organizations that are taking on these efforts.

Today I’ll focus on a few of the people I profile in the book – the Democracy Champions in communities all over who are at the forefront of improvements to state and local democracy.

Some of these people are election officials or regular policy advocates. But more exciting, I think, are the people I interviewed who are doing this work quietly, during nights and weekends, and without much fanfare.

For example, I open the book with the story of West Powell of Covington, Kentucky. West was 18 years old when he stole a car radio from an auto salvage yard. He was convicted of a felony, served his time, and lost his right to vote for life. Over twenty-five years later, the Kentucky legislature was considering a bill to allow some low-level felons to seek an expungement of their records. West went to testify, telling his story about how he had cleaned up his life, married, became a father to five kids, and opened his own computer repair shop.

Republican Whitney Westerfield listened to West Powell’s testimony. Westerfield was initially opposed to the felony expungement bill and told me that he thought nothing would change his mind. But something about West’s story altered his views. He immediately became a champion for the expungement bill, which eventually passed with bipartisan support.

West Powell regained his right to vote and now never misses an election.

There are tons of individual Democracy Champions just like West Powell who are working in their local communities to improve the election process, making it more inclusive and convenient. Joshua Cardenas of San Francisco, then 16 years old, advocated to lower the voting age to 16 for local elections, which came very close to passing in 2016 and likely will win enough support in the near future. Scott Doyle, a baseball loving Republican county clerk in Larimer County, Colorado, found a way to make the voting process more convenient through countywide Vote Centers. Alison Smith of Maine became a public champion for public financing. Jenifer Hitchcock, a social studies teacher in Virginia, has crafted innovative ways to engage her students in civics education.

Ultimately, this is a book of stories about inspiring Americans who are working to promote positive changes to our democracy. Fighting voter suppression is important, of course, but it can’t be the only strategy to fix our electoral system. We also must promote positive voting rights reforms. That’s what the Democracy Champions I profile in the book are all about.

Tomorrow I’ll highlight in some more detail the reforms that these inspiring individuals are championing.

By the way, I’ll be speaking about the book all over the country this spring and summer. I hope to see Prawfs readers at these events!

Posted by Howard Wasserman on April 15, 2019 at 09:55 AM in Books | Permalink | Comments (0)

Monday, March 04, 2019

"The Party of the University"

I recently read -- and really enjoyed -- Hanna Holborn Gray's memoirAn Academic Life.  Her's and her family's are fascinating stories.  We learn a lot about higher education during the second half of the 20th century and about Yale and the University of Chicago in particular.  Having just spent three years on my own institution's "Ad Hoc Committee on Faculty Governance," I found Gray's accounts of committee meetings, governance procedures, and institutional citizenship not only entertaining, but even a bit inspiring.  She actually seems to have enjoyed, and to still have confidence in, these mechanisms.

This review ("The Party of the University"), by Rita Koganzon, does a good job of capturing the book's feel.  And, it discusses some of the interesting questions the book raises for us today, in higher education.  Here's just a bit:

Gray’s memoir is so insistently out of place among higher-education polemics that it might be worthwhile for that reason alone. She is an inveterate institutional loyalist, impervious to the appeal of the movements and ideologies to which many academics have openly and happily hitched their work. To call someone an institutional loyalist now cannot help but sound like an accusation of moral corruption—surely you’re not going defend Yale over justice? But in Gray’s depiction, correcting injustice rarely requires exposing the university to public humiliation, and, conversely, it is very unlikely that such humiliation will correct any injustice.

To read her memoir is to be launched into alien terrain. On this planet, there are universities full of good “citizens,” as Gray calls her colleagues, who sacrifice their time to perform often unrecognized and thankless service to guide their institutions through difficult financial straits and leadership impasses. Even the deepest clashes of principle, like those at stake in the anti-war protests, are worked out in committees and through personal discussions, with all parties satisfied that a “fair process” has been observed. In the most intractable cases—like the question of South African divestment, which was debated during Gray’s presidency at Chicago—task forces are convened to produce reports laying out broadly accepted guiding principles for the future. The various constituents of higher education may have quite divergent visions for their institutions but they can all, on the whole, be reasoned with. . . .

Has anyone else read Gray's memoir?  I'd welcome others' reactions.

Posted by Rick Garnett on March 4, 2019 at 09:21 AM in Books, Rick Garnett | Permalink | Comments (0)

Tuesday, February 12, 2019

JOTWELL: Tidmarsh on Hodges & Voet on collective redress

The new Courts Law essay comes form Jay Tidmarsh (Notre Dame), reviewing Christopher Hodges & Stefaan Vogt, Delivering Collective Redress: New Technologies (Hart 2018), which explores the European search for alternative approaches to collective litigation and redress.

Posted by Howard Wasserman on February 12, 2019 at 09:53 AM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (1)

Monday, December 24, 2018

Winter Break Reading Recommendation

During the winter break, I always find myself with more time than usual for pleasure reading.  My usual fare is relatively light and escapist.  But, based on a recommendation, I recently picked up The Woman at the Washington ZooThe Woman at the Washington Zoo is a collection of writings by Marjorie Williams.  Williams made a name for herself writing political profiles for the Washington Post and Vanity Fair.  The book contains several of those profiles, as well as more personal essays about parenthood, the death of her mother, and her own battle with cancer.

Even though I finished the book a week ago, it has really stuck with me.  The profiles provide a fascinating glimpse into the political world of the late 1980s, 1990s, and early 2000s.  Although many of the names and events were familiar to me, as someone who graduated from law school in 2002, I found the inside-the-beltway chatter about these people and events to be a great revelation.  I didn’t pay any attention to politics until the 2000 election, and so my understanding of the political landscape from the 1980s and 90s is limited and based mostly on present day sources.  But the current view of that landscape is quite different than the contemporaneous view. 

For example, Williams remarks, essentially in passing, that people in Washington did not think highly of Ronald Reagan’s presidency; they worried that he was beholden to the far-right and that he was a passive player in the White House.  That does not match up at all with the description of Reagan that one encounters in modern public discussions.  Reagan is one of many examples.  The essay on Barbara and George Bush was also surprising, as the picture that it painted of the 41st President was not particularly consistent with the many profiles about him that appeared in the wake of his recent death.

Of these political writings, I found William’s essay about Bill Clinton and the Monica Lewinsky scandal to be the most thoughtful.  Williams frames her essay by asking why feminists are unwilling to criticize Clinton for his affair with an intern---a question that has gained new prominence in light of the #metoo movement.  Although the essay was clearly written at the time of the scandal, the perspective that Williams brings to the question is so fresh that it could have been written today.

The book is more than just political profiles.  It also contains essays about life and parenthood.  I wish I had an electronic copy of her essay about the magazine “Real Simple”---I’d like to send it to all of my friends who are also parents to small children and talk to them about it over a glass of wine.  (It is, in some ways, a more thoughtful, but less funny, version of the recent SNL skit about family that has been such a big hit with my cohort.)

Not to ruin the ending—but it gets sad at the end.  As I mentioned above, Williams was diagnosed with cancer, and she ultimately died.  The book was edited and published after her death by her husband, Timothy Noah, who is an editor at Politico.  Normally, I don’t like to read anything that is particularly sad.  I don’t like sad movies or television shows either---I like my pleasure reading and watching to serve as a light-hearted diversion from everyday life.  But William’s brings the same thoughtfulness and perspective to her essays about her illness as she does to her essays about politics:  She is writing about cancer, but she is also writing about life, family, and ideas.

Anyway, as I said, the book left a mark.  And so I thought I’d share.

Posted by Carissa Byrne Hessick on December 24, 2018 at 03:39 PM in Books, Carissa Byrne Hessick | Permalink | Comments (0)

Thursday, December 20, 2018

Ipse Dixit on the Infield Fly Rule

On Thursday, I did an interview with Brian L. Frye (Kentucky) for his Ipse Dixit Podcast on my new book on the infield fly rule. It was a fun conversation.

Posted by Howard Wasserman on December 20, 2018 at 05:21 PM in Books, Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, December 06, 2018

Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule

978-1-4766-6715-7I am thrilled to announce that Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule has been published by McFarland Press. This brings together all the writing I have been doing on the subject since 2012, in multiple law review articles and on this blog, including a full eight seasons of an empirical study of the rule's invocation.

Makes a great gift for the baseball fan in your life. And there are four more days of Channukah and three weeks until Christmas.

Posted by Howard Wasserman on December 6, 2018 at 09:31 AM in Books, Howard Wasserman, Sports | Permalink | Comments (3)

Friday, November 23, 2018

JOTWELL: Mullenix on Vitiello on a civ pro companion

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Michael Vitiello, Animating Civil Procedure (Carolina Academic Press 2017),  a companion to Civ Pro casebooks offering a procedural-justice gloss on the major cases and issues.

Posted by Howard Wasserman on November 23, 2018 at 11:17 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Thursday, July 19, 2018

Now (or soon to be) in Paperback: Beyond Legal Reasoning: A Critique of Pure Lawyering

9781138221307A brief pause for a semi-commercial announcement.  Actually, if we consider the royalties to which I am entitled from Routledge after deducting the cost of a professional indexer, there's very little commercial about it from my standpoint.

Beyond Legal Reasoning: A Critique of Pure Lawyering first takes a granular look at "thinking like a lawyer" - its logic and theory-making - and then at the perils of succumbing to it when one is not in the traditional "lawyer as warrior" mode.  My original title, Unlearning How to Think Like A Lawyer, still lingers in various descriptions.

Apparently the law library market is price inelastic and the publisher waits eighteen months before putting out a paperback edition.  That is now available for pre-order (release date: Aug. 24) at a fraction of the hard cover price.

But ... most of us write to be read, not for the several hundred dollars of royalties that an academic book generates for the author (translating into cents per hour for the time creating it).  If you are interested in a free taste, the preface is available on SSRN.   Or the entire book is available for free at any of these fine libraries.

Or, after the break, you can watch the presentation from last April at the Harvard Law School's Center for the Legal Profession:

Posted by Jeff Lipshaw on July 19, 2018 at 06:16 AM in Books, Deliberation and voices, Legal Theory, Lipshaw, Teaching Law | Permalink | Comments (0)

Friday, July 13, 2018

A Professor's Modest Dream

My undergraduate alma mater, the University of Michigan, holds an annual summer event up here in northern Michigan, generally highlighting an achievement of somebody affiliated with the university.  This year it was an interview with Hendrik Meijer, the CEO of the Meijer super-grocery store chain, but also something of a scholar, who just published a biography of Senator Arthur Vandenberg. (Michael Barr, long-time Michigan law professor and recently appointed dean of the Gerald R. Ford School of Public Policy, ably conducted the interview.)

Image.1531193713927But I digress slightly.  Absolutely my favorite course at Michigan was the fall 1973 edition of "Introduction to Film," taught by Professor Frank Beaver (left), only three years out from having received his Ph.D.  I remember that course chapter and verse, from conceptual montage to the shocking "gun" scene in Edwin S. Porter's The Great Train Robbery to the assessment of that neat new film, American Graffiti, to Professor Beaver's admiration of Haskell Wechsler's Medium Cool. (I wrote my paper for the course on Deliverance.)

A couple years ago, I recognized Professor Beaver at one of these events, introduced myself, and began spouting back to him chunks of lectures he had delivered more than forty years before.  Since then we catch up annually, as we did last night, on new movies.  Professor Beaver still writes on film for Michigan Today, the alumni publication.

I think I took his course in his fourth year of teaching.  I "accosted" him roughly forty years later.  Because of my late entry into academia, the equivalent for me would be a former student approaching me in roughly 2051, when I will be a spry 97 years old.  I can only hope.

Posted by Jeff Lipshaw on July 13, 2018 at 08:53 AM in Books, Culture, Film, Lipshaw | Permalink | Comments (0)

Tuesday, July 03, 2018

Sponsored Post: Teaching Remedies

The following post is by Samuel L. Bray (UCLA School of Law, soon decamping for Notre Dame) and is sponsored by West Academic.

Last year I joined Emily Sherwin as an editor of a remedies casebook: Ames, Chafee, and Re on Remedies. We worked together on the second edition, which was published in December by Foundation Press. In this post, I want to sketch some of the ways this remedies book is distinctive and why you might or might not want to use it.

We hope the book is a volume of logic, but first a page of history. The book is a lineal descendant of James Barr Ames’s Cases in Equity Jurisdiction (1904-1905), and its title is a homage to Ames and two of the other editors in the long history of the book, Zechariah Chafee and Edward Re. (Edward was no relation to the brilliant Richard—I asked.)

A remedies teacher confronts three threshold questions, and how they are answered will determine the shape of the course. The first is about organization, the second is about equity, and the third is about restitution. On each of these our book takes a different approach than some other books.

First, the course can be organized in one of two basic ways. One organization is by substantive area, such as tort remedies, contract remedies, and public law remedies. The other organization is by transubstantive remedies—first damages, then injunctions, for example. My view is that the transubstantive approach is the only one that justifies the existence of a course on remedies—the value of this course, and for that matter this field, is that we can understand remedies better and deeper by seeing how they work across the substantive domains. Consistent with that, our book has an introductory section and then three major divisions: “Damages,” “Equity,” and “Unjust Enrichment and Restitutionary Remedies.”

Second, a remedies teacher has to decide what to do with equity. Here is where the biggest difference lies between our book and a leading remedies casebook, Doug Laycock’s Modern American Remedies. Doug is the leading scholar of remedies, and his work reflects his brilliant scholarship in the book and article both named The Death of the Irreparable Injury Rule. He does not treat the irreparable injury rule, more conventionally the requirement of “no adequate remedy at law,” as an organizing principle, and his treatment of the law/equity distinction is skeptical.

Our book takes a different tack. The distinction between law and equity is pervasive in American law. This is not true only in the jurisdictions that have separate courts or divisions for equity (Delaware, Tennessee, Mississippi, New Jersey, and Cook County, Illinois). Rather it is true in case after case in state and federal courts—including recent U.S. Supreme Court decisions such as Petrella and SCA Hygiene, that held that laches is an equitable defense that applies only to equitable claims, not to legal ones. In our view, to prepare students to litigate in a world where the law/equity distinction still has currency, remedies should be taught without embarrassment about the law/equity distinction, and its functional value should be explained, not just questioned.

Finally, a remedies course has to decide what to do with restitution, that unwieldy amalgam of remedies and substantive law. In our book, restitution is given its own section, but care is observed in distinguishing between restitutionary claims and remedies that are legal (such as quasi-contract for a mistaken payment) and restitutionary claims and remedies that are equitable (such as constructive trust). That distinction between legal and equitable restitution matters for defenses, for the jury trial right, for priority in bankruptcy, and for the availability of a remedy under statutes such as ERISA that authorize “equitable relief.”

Many other points could be made about our book. It is light on notes—it is not replacement for a remedies treatise such as Dobbs and Roberts. Private law tends to predominate, rather than public law. (There is, however, a new chapter in this edition on remedies against the government—including discussion of qualified immunity and structural injunctions.) Our casebook tends to have more state cases than federal cases. Many points are taught with two cases, one from contract and one from tort, which allows students to better understand a principle as they see it applied in more than one context.

One final note should be stressed. The remedies we have in American law were never developed according to some kind of master plan. On the first day of remedies class I contrast a city like Washington, DC, which was developed according to such a plan, and a city like Boston, where cowpaths turned into cartroads which turned into streets. Remedies is like Boston. It is therefore unusually important in the field of remedies to understand the historical background, since it is not just background—the path dependence is strong. That is why each of the major divisions of our book begins with a discussion of history. That sets our remedies book apart from other casebooks. As with each of the points discussed in this post, it will work well for some remedies teachers and courses and not for others. De gustibus.

Posted by Howard Wasserman on July 3, 2018 at 07:49 AM in Books, Sponsored Announcements | Permalink | Comments (0)

Friday, June 15, 2018

JOTWELL: Singer on Rosen on Taft

The new Courts Law essay comes from guest contributor (and former guest Prawf) Jordan Singer (New England), reviewing Jeffrey Rosen's biography of William Howard Taft.

Posted by Howard Wasserman on June 15, 2018 at 11:21 AM in Article Spotlight, Books | Permalink | Comments (0)

Wednesday, April 11, 2018

Sole authors of casebooks and amicus briefs

One common comment about the legal academy is how odd the scholarly enterprise looks. To offer nothing particularly new... the journals usually aren't subject to blind peer review. Simultaneous submissions to multiple journals with expedite decisions is wholly foreign to most other academics. And, of course, most lengthy articles are drafted by a sole author. I think it's fair to say that there's been an uptick in co-authored pieces, whether because of an increase in interdisciplinary scholarship or the need for additional contributors in empirical work. But sole authors remain the norm.

The same cannot be said for much of the other work that legal academics do. Casebooks often have a few co-authors. Perhaps that's because the casebook is a large enterprise, or because it may include a variety of sub-topics that call for different expertise, or because one academic is on the way out and invites another academic on the way in to help transition.

And amicus briefs are sometimes signed by dozens, if not hundreds, of academics. Sometimes this might be a larger collaborative affair in short-fuse litigation, or sometimes it may (ed.: don't say it!) serve as virtue signalling to fellow academics who signed the brief (even if one believes everything within the brief!). (Let's face it: we've all been on listservs with a plea for signatures on an already-completed brief.)

While there is increased recognition of the value of co-authored law review articles, I'm not sure enough recognition has been given to the opposite in casebooks or amicus briefs--specifically, those with a sole author.

Two casebooks I regularly use are Professor George Fisher's Evidence and Professor Gary Lawson's Federal Administrative Law. The students, I think, can sense that there is an authentic personality in the text, because, perhaps, the author is able to speak with a single narrative voice, without piecemeal chapters or compromises among co-authors in communicating a point. Of course, I often use co-authored casebooks in other courses, but these two strike me as particularly rich. (A third I'd include in this category is the late Professor Richard Nagareda's first edition of The Law of Class Actions and Other Aggregate Litigation.) And, of course, I can only speak of the fields where I've spent time perusing casebooks.

I've also noticed a few recent sole author amicus briefs in the United States Supreme Court from law professors, which have struck me as unusually thoughtful (sometimes even persuasive!).

Professor Steve Sachs in Atlantic Marine Construction (in support of neither party, and earning discussion in Part II-C of the Court's opinion);

Professor Orin Kerr in Carpenter v. United States;

Professor Aditya Bamzai in Ortiz v. United States (in support of neither party, and yielding an opportunity to participate in oral argument);

Professor Richard Re in Hughes v. United States (in support of neither party, and earning significant discussion at oral argument); and

Professor Jenn Mascott in Lucia v. SEC.

(To name only a few!) This is not to say that only these amici have influenced the Court, of course (and on such matters I would heartily defer to sound analysis from the outstanding work of Adam Feldman!), but it is to say that sole authors have received some (and perhaps disproportionate) favorable attention lately. I wonder if we might not only underappreciate their contributions, but also see an increase in such work in the future. (It's also not to minimize the dual-authored amicus briefs, sometimes a pair of authors who've written on the subject before and file as amici--but I'll let someone else chronicle those efforts....)

Perhaps I have an overly romanticized notion of the sole-authored casebook and amicus brief. (Indeed, I imagine some of the named individuals might have much more reality-oriented views on the costs of such activities!) But, they strike me as interesting opportunities worth serious consideration.

So... any favorite sole-authored casebooks or amicus briefs? Or better explanations for these phenomena?

Posted by Derek Muller on April 11, 2018 at 09:11 AM in Article Spotlight, Books | Permalink | Comments (3)

Monday, March 12, 2018

Write Drunk, Edit Sober

That's Hemingway and its the quote I've had on my office door for the past eight years. I don't drink, but I do write drunk. And I edit both drunk and sober - until something great floats to the surface (which is tricky because, well, shit floats, gold sinks, as we say in Hebrew). This week I am speaking to my students in my two writing seminars about good article writing. They've all selected promising research topics and now they need to turn in first drafts (also per Hemingway: all first drafts are shitty). In preparation for what we'll be talking about, in addition to assigning them as always Eugene Volokh's Legal Academic Writing as a reference book, I pulled up some note files of mine which I had prepared for past years. I found a list of 22 pieces of advice from writers I admire which I gave the students as handouts - and which I might print out again this week. I thought I'd post them here as well. My favorites are #3, #5, #8, #9, #13, and #21. And all this advice does generally translate to legal writing, including #22. Of course, #2 makes me laugh because law review writing is especially prone. 

"Write drunk; edit sober." -Ernest Hemingway [1920x1080]

  1. The first draft of everything is shit. -Ernest Hemingway
  2. Never use jargon words like reconceptualize, demassification, attitudinally, judgmentally. They are hallmarks of a pretentious ass. -David Ogilvy
3. Notice how many of the Olympic athletes effusively thanked their mothers for their success? “She drove me to my practice at four in the morning,” etc. Writing is not figure skating or skiing. Your mother will not make you a writer. My advice to any young person who wants to write is: leave home. -Paul Theroux

4.I would advise anyone who aspires to a writing career that before developing his talent he would be wise to develop a thick hide. — Harper Lee

5. You can’t wait for inspiration. You have to go after it with a club. ― Jack London

6. Writing a book is a horrible, exhausting struggle, like a long bout with some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist nor understand. — George Orwell

7.There are three rules for writing a novel. Unfortunately, no one knows what they are. ― W. Somerset Maugham

8. If you don’t have time to read, you don’t have the time — or the tools — to write. Simple as that. – Stephen King

9. Remember: when people tell you something’s wrong or doesn’t work for them, they are almost always right. When they tell you exactly what they think is wrong and how to fix it, they are almost always wrong. – Neil Gaiman

10. Imagine that you are dying. If you had a terminal disease would you finish this book? Why not? The thing that annoys this 10-weeks-to-live self is the thing that is wrong with the book. So change it. Stop arguing with yourself. Change it. See? Easy. And no one had to die. – Anne Enright

11. If writing seems hard, it’s because it is hard. It’s one of the hardest things people do. – William Zinsser

12. Here is a lesson in creative writing. First rule: Do not use semicolons. They are transvestite hermaphrodites representing absolutely nothing. All they do is show you’ve been to college. – Kurt Vonnegut

13. Prose is architecture, not interior decoration. – Ernest Hemingway

14. Get through a draft as quickly as possible. Hard to know the shape of the thing until you have a draft.  The old writer’s rule applies: Have the courage to write badly. – Joshua Wolf Shenk

15. Substitute ‘damn’ every time you’re inclined to write ‘very;’ your editor will delete it and the writing will be just as it should be. – Mark Twain

16. Start telling the stories that only you can tell, because there’ll always be better writers than you and there’ll always be smarter writers than you. There will always be people who are much better at doing this or doing that — but you are the only you. ― Neil Gaiman

17. Consistency is the last refuge of the unimaginative. – Oscar Wilde

18. The difference between the right word and the almost right word is the difference between lightning and a lightning bug. -- Mark Twain

19. “Read, read, read. Read everything – trash, classics, good and bad, and see how they do it. Just like a carpenter who works as an apprentice and studies the master. Read! You'll absorb it. Then write. If it's good, you'll find out. If it's not, throw it out of the window.” - William Faulkner

20. If you have any young friends who aspire to become writers, the second greatest favor you can do them is to present them with copies of The Elements of Style. The first greatest, of course, is to shoot them now, while they’re happy. – Dorothy Parker

21. "It's a luxury being a writer, because all you ever think about is life." -Amy Tanh

22. Don’t take anyone’s writing advice too seriously. – Lev Grossman

Posted by Orly Lobel on March 12, 2018 at 01:11 AM in Books, Culture, Life of Law Schools, Orly Lobel | Permalink | Comments (12)

Friday, May 12, 2017

Happy Family Day Weekend

Mothers don't need to "do it all". We all need to balance it all, families, governments, markets. I am reading Chimamanda Ngozi Adichie (Americanah) newest book, a short love letter to girls and mothers is how I read it, called Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions. The first of her 15 suggestions is not to let motherhood define you completely, show your daughters that you are more than just a mother, that you are a person with passions, interests, ideas, ventures. This resonates, especially here in Southern California where often times I feel the pressures of having a career even more acutely in relation to the many many moms around me who (mostly) choose not to work. When my middle daughter was in kindergarten I had to miss the Mother's Day breakfast in her class (I was back on time for the "real mother's day") because I was giving a talk at ALEA, held that year in Princeton. I asked the kindergarten teacher that my dear husband (who thankfully is also an academic and we both have the privilege of flexibility and control over our work schedules, but we also both travel a lot for talks and conferences) take my spot at the breakfast. The teacher adamantly refused, saying no, mother's day is only for mothers. In other words, better that the kid sit there without a loving parent than challenge gender roles. I remember this vividly because it was one of the only times I lost my temper at an otherwise excellent school. I went to the administration and protested loudly about how in the 21st century families come in all forms and shapes - some have two moms, some two dads, some single parents, some, lo-and-behold, are dual-career. I added that around the world progressive places were changing the day to Family Day. My husband was eventually allowed to join the breakfast and my daughter was happy. And now I am happy that their school celebrates Family Day instead of mother's day.

Posted by Orly Lobel on May 12, 2017 at 04:42 PM in Books, Employment and Labor Law, Life of Law Schools, Orly Lobel, Workplace Law | Permalink | Comments (0)

Tuesday, February 21, 2017

JOTWELL: Lahav on Coffee on entrepreneurial litigation

The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing John C. Coffee, Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press). Very timely book and review, with aggregate litigation again in the crosshairs.

Posted by Howard Wasserman on February 21, 2017 at 03:35 PM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 04, 2017

Book Recommendations: Alafair Burke's The Ex & Elizabeth Strout's My Name is Lucy Barton

Happy New Year! I spent the winter break reading lots and lots of fiction, among other things, and thought I'd mention two good ones.

Alafair Burke, the most prolific contemporary prawf-novelist I am aware of (another full time law prof, and now dean, who is a super talented fiction writer is my former army commander Yuval Elbashan, but his books are all in Hebrew), has published over a dozen crime novels, including two best-selling series. She also co-authors with Mary Higgins Clark. I just finished her newest novel The Ex. Its in the suspense genre of Gone Girl and The Girl on a Train, told by first person narrator Olivia Randall, a criminal defense attorney (As Gillian Flynn writes, “Burke’s female characters are always very involving, with big, strong voices.”). The Ex is a great fast read -- the attorney's perspective, knowing and not knowing her client and wondering whether or not he is guilty, is sharp. I liked the realistic feel of the court proceedings, the dynamics between the opposing attorneys, and the intensity of the trial preparation. If any of you ever wondered about a murder case and considered whether and how is it possible for seemingly normal, normative, people to plan monstrous crimes, there is a part in Burke's novel that I found particularly interesting. Olivia the protagonist visits a psychiatrist who has specialized in criminology. The psychiatrist tell her: "Because I've testified in numerous homicide trials, (I've been asked about) my insight about how a quote-unquote normal person can come to commit cold-blooded, premeditated murder." "And?," Olivia asks her. The psychiatrist continues:"I've spent a good number of hours of my career talking to people who admit to being murderers. These seemingly normal people tell me how it starts small. They get fired from their job, or dumped by their husband, and they begin to wish some kind of bad upon the person responsible - typically, that the world will come to see the person for what they really are. And when karma or fate or whatever doesn't come through, the seemingly normal person starts to think, 'what if they died?' And that turns into 'What if I killed them?' And eventually, 'How would I do it?' and 'Would I get away with it?'" The thoughts become a training ground until the person is conditioned to the idea of killing and it's no longer shocking to them, she explains. 

Pulitzer winning Elizabeth Strout does it again with My Name is Lucy Barton. Strout is a minimalist, understated, heartbreakingly honest writer and this book is unforgettable. It happens mostly in a hospital and mostly through a conversation, and extended moments of silence, between a daughter and her mother. It is a book of our times, telling the stories of Midwestern poverty, fear and contempt toward those who go away and aspire to other (better?) lives, childhood abuse, forgiveness and love. Lucy's dad walked her brother down the street yelling at him a "f*cking fagg*t" in front of everyone when he was caught trying on Mom's high heels; Lucy's parents locked multiple times in the truck including during the winter. She survived her terrifying physically and mentally cold conditions by staying late at school where it was warm and she could read. Her parents basically disowned her when she got into college with a full scholarship. And yet she loves them, understands them even. And maybe they too can understand her as time goes by. We need more books like this as we move into 2017. 

Happy New Year, may it be full of good fiction and non-fiction. Hope to see many of you here at AALS! Don't forget the MarkelFest happening tonight.

Posted by Orly Lobel on January 4, 2017 at 11:55 AM in Books, Criminal Law, Orly Lobel | Permalink | Comments (0)

Monday, July 11, 2016

Should junior legal academics write a book? (and if so, when?)

As a junior academic, I found Chris Walker's recent Junior Law Prawfs FAQs Series here at Prawfs to be quite useful and informative. I don't intend to add an exhaustive series of posts on this topic this month, but I do hope to contribute a little to that rich conversation, as I think it's worth continuing.

First of all, I want to ask about the place of books in legal academy - specifically, should junior (or aspiring) law profs seriously consider writing a book? And, if so, when? How should such a decision be approached and where should a junior prof be thinking about submitting their work? (Brian Leiter has previously blogged about ranking the prestige of presses in law, but there are also other such lists for other disciplines - often with some overlap.) Books obviously consume a large amount of research and writing time, and could potentially distract an author from publishing as much in journals. However, many legal academics write books (though quite a few authors often incorporate a number of previously published law review articles as chapters, which does help keep the book from completely consuming the author's output during the writing period). As a point of reference, I have just signed a book contract myself, and I know others who are proposing and writing books at the moment, both inside and outside of legal academia. The process, and the decision-making that up to my decision to initiate it, was both difficult as well as quite encouraging, and the prospect of the book itself is quite exciting.

I've noticed what I suspect might be two approaches to writing books among legal authors. First, those that started as book-length projects from the outset, with select chapters sometimes also serving as the basis for separate law review articles published in the months or year before the full book. Second, I would guess that other books only became books after an author had published quite a bit on a topic and then, subsequently, decided to incorporate his or her scholarship together into a longer, more extended discussion. I suspect both of these approaches have their pros and cons.

I also wonder if scholars with PhDs approach questions about books differently than those without PhDs? I am now working at a law school in the Netherlands, and I quickly noticed that here (as apparently in other parts of Europe), law PhD Candidates are often expected (or required) to publish their dissertation in book format. (In fact, in a recent PhD defense in our department, the committee consistently referred to the PhD Candidate's dissertation as a book (e.g., "In your your book you argue that..." or "I really enjoyed reading your book, but..."). In my own PhD program, there was no expectation (or even pressure) to publish my dissertation as a book - even when it was a holistic body of research (that is, not a collection of 3-4 published articles, as some often are in certain disciplines).

So, a set of questions:

  • should junior legal academics be thinking seriously about book writing?
  • What considerations would you suggest need to be taken into account?
  • If a person decides to pursue a book project, are their times within the typical model of professional development (e.g. pre-tenure, first couple of years as a faculty member, etc.) when a book does or does not make sense?

Based on my own experience, I think a book makes sense for me at the moment because the book project builds on (but is not) my PhD dissertation, and also brings together legal research and empirical findings from a single multi-year and multi-method study. A series of articles based on the work is also a possibility, but it doesn't allow me to tell the bigger story that is emerging from my data and analysis in a holistic and integrated way. I plan to publish a couple of journal articles along the way, based on chapters, but these will only provide small glimpses into the larger results I hope to present in the book. As for timing, publishing a book after establishing yourself as an authority in a field obviously lends a book some heightened credibility, but publishing a book earlier might also really help establish that authority in the first place. (Chris's earlier post "How Do I Become a Voice in My Field?" and subsequent posts are also relevant here.) In my case, my research project is wrapping up now and I didn't want to sit on writing or publishing because it might be better timed at some possible point in the future, and I hope to move onto other projects anyways. I'm currently a post-doc and not yet in a continuing or tenure-track faculty position - which also means I have fewer teaching and administrative responsibilities to distract me from research and writing now than I will (hopefully) have in the coming years, which also makes this time an attractive option.

But, I'd be interested to hear what other have to say...

Posted by Bryce C. Newell on July 11, 2016 at 11:30 AM in Books, Jr. Law Prawfs FAQ | Permalink | Comments (8)

Tuesday, July 05, 2016

The ABF and the Legal Academy

Happy 4th of July!  Thanks again to Howard, Sarah, and the rest of the Prawfs community for allowing me to be a guest blogger during the month of June.  I’ve been a longtime admirer of PrawfsBlawg, and I had the honor a couple of years ago to participate in a PrawfsBlawg book club on my book, Making the Modern American Fiscal State (thanks to Matt Bodie for helping organize that online discussion).  It was a real privilege this time around to share with you some background about the ABF and a few of our research highlights.

In my last post before I depart, I thought I’d discuss how the ABF connects to the legal academy.

Well, first and foremost, the ABF is an empirical and interdisciplinary research institute that studies law, legal institutions, and legal processes.  In this way, all of our projects should be of some interest to legal academics.  Since our research focuses on long-term, rigorous, empirical projects, we frequently publish our findings in peer-reviewed social science journals and university press books, rather than law reviews.  But as many other observers have noticed the world of legal academic publishing is changing dramatically.  Thus, we hope that many Prawf readers are, and will continue to be, consumers of our published research.

Another way in which the ABF is linked to the legal academy is through our honorary organization: The Fellows of the American Bar Foundation.  Like other law-related honorary associations, the Fellows is comprised of leading legal professionals who have made a significant contribution to the profession or legal scholarship.  Technically, we often describe the Fellows as an organization of legal professionals (attorneys, judges, law faculty, and legal scholars) “whose public and private careers have demonstrated outstanding dedication to the welfare of their communities and to the highest principles of the legal profession.”  Of course, for the honor and privilege of becoming a Fellow, we provide members an opportunity to help support the ABF’s research and programming with their tax-deductible, charitable contributions.  And, perhaps more importantly, Fellows assist the ABF with their intellectual engagement with our research and programming.

The Fellows, in this way, act as an important bridge between the research community and the practicing bar and bench.  For example, at this year’s ABA annual meeting in San Francisco, we’ll be hosting several Fellows events, including a CLE research seminar on “Civil Rights Advocacy: Past, Present and Future.”   This panel discussion will bring together a number of prominent legal scholars and civil rights lawyers, and will be moderated by our former ABF colleague Dylan Penningroth (Berkeley Law & History).

So, how does one become an ABF Fellow?  Nominations for the Fellows are culled by chairs from each of the fifty states and from an international contingent.  The state chairs solicit names from other Fellows, and look to participation in all the usual places where legal leaders reside, such as the American Law Institute, ABA section leadership, and the deans and leading scholars/teachers of law schools.  The nominations go through a fairly rigorous review process and all nominees are ultimately approved by the ABF Board of Directors.  Although the Fellows membership has been expanding in recent years (and thankfully become more diverse in the process), being nominated to be am ABF Fellow remains a huge honor for legal professionals of all types.  Thus, if you receive a nomination letter from the ABF, we hope you’ll give it some serious consideration.

Legal scholars often wonder if the ABF can support their research in some way.  Despite our name, however, we are not a foundation that provides financial support for faculty outside of our own.  Many of our faculty members collaborate with legal scholars and social scientists throughout the world, as my previous posts have mentioned.  And as I’ve written, much of our work is funded in part by external sources, such as the National Science Foundation and the Public Welfare Foundation.  Ultimately, the legal academy is a consumer of our research.  We hope in the future, though, to integrate our Fellows who are legal scholars into our research community, perhaps by having them help us disseminate ABF research and programming – yet another reason to think about becoming an ABF Fellow.

Finally, in addition to our research, we also have a number of programs that should be of interest to law professors who are working with grad students or undergrads.  Our Montgomery Summer Diversity Research Fellowship is designed to bring talented college students to the ABF for a summer to work with our faculty as research assistants and to learn more about scholarship at the intersection of law and the social sciences.  Thanks to a variety of funders, this program has been in existence for nearly three decades and has produced a number of leading lawyers, academics, and now a California Supreme Court Justice.  We’re rightfully quite proud of this program.  We hope that Prawf readers who work with excellent college students will think about encouraging them to apply to this program.

For grad students, we also have a doctoral and postdoctoral fellowship program that has been around almost as long as our undergraduate program.  These residency-based fellowships allow grad students finishing up their dissertations or those who have recently completed their dissertations to join our research faculty for a short period of time (generally two years) before they embark on their academic careers.  This program has also been a leading incubator for many socio-legal and other interdisciplinary legal scholars (including yours truly).  Grad student readers of this blog and their mentors should definitely keep this fellowship in mind.

For those scholars who reside in the Chicago-land area, the ABF also hosts a weekly Wednesday research seminar.  Like most law school workshops, this seminar brings visitors to the ABF for a day to share their works-in-progress and receive feedback from a truly interdisciplinary group of leading social scientists and legal scholars.  Readers can learn more about our workshop series on our webpage, or the can feel free to follow our institutional tweeter handle (@ABFResearch) or my own tweets about our many ABF events (@AjayKMehrotra).

I hope readers found these series of posts about the ABF interesting and helpful.  Thanks again to Sarah and Howard for inviting me to be a guest blogger.  I hope to see some of you soon at an ABF event.  Thanks.

Posted by Ajay K. Mehrotra on July 5, 2016 at 12:09 AM in Books, Peer-Reviewed Journals | Permalink | Comments (2)

Thursday, June 30, 2016

Overview of ABF Research (Part III): Law & Globalization and Legal History

In this last post on ABF research, let me describe two parts of our research portfolio that reflect both our sense of the past and our transnational perspective on the present.  From its founding in the 1950s through today, the ABF has been focused on studying how law, legal institutions, and legal processes operate across place and time.  Our scholarship and programming on law & globalization and our work in legal history reflect these enduring commitments.

Let me start with a brief description of our research on law & globalization.

Law & Globalization

Globalization, to be sure, is not a new phenomenon, but it has taken on a greater sense of urgency in recent decades.  Like many academic and research organizations, the ABF has become increasingly interested in the causes and consequences of globalization and its relation to law.  For many years, we have had numerous international faculty members conducting research throughout the world. 

Most recently, our legal sociologists Terry Halliday and Sida Liu have been collaborating on a long-term project about Chinese criminal defense lawyers and their role in political mobilization.  As I’m sure many Prawf readers know the Chinese state in recent years has been intimidating and persecuting Chinese lawyers because of their political activism.  Terry and Sida have conducted hundreds of interviews with Chinese lawyers to learn more about how the everyday work of criminal defense lawyers has become a political project. Drawing on a long line of scholarship about lawyers and political liberalism (much of it written by Terry), their forthcoming book will one of the first to examine empirically how the seemingly ordinary work of criminal defense lawyers in China can have far reaching transnational political and social implications.  Although the book won’t be out for another year or so, this fascinating research has already garnered significant media attention across the globe.

Another area of ABF research on globalization focuses on comparative constitutions.  Our joint-appointee Tom Ginsburg (U. of Chicago Law & ABF) has been at the forefront of research about the origins and international diffusion of rights in national constitutions.  For many years, Tom and his collaborators have been collecting data on the countless constitutions that have been in existence since 1789 to the present (you can learn more about their Comparative Constitutions Project here).  This project has documented the important role of domestic political factors and country characteristics in understanding the development and diffusion of constitutional rights.

While Tom Ginsburg’s research focuses on the material aspects of the rule of law, one of our other colleagues working on globalization, Jothie Rajah, explores the more theoretical underpinnings of rule of law discourse.  Following up on her first book about rule of law in Singapore, Jothie’s latest project analyses the different ways in which global institutional actors (the UN, the World Bank, the International Commission of Jurists, the World Justice Project) define “rule of law.”  Through a close reading of the texts and practices of these institutions, Jothie analyzes the development of global norms and the efficacy of rule of law indicators.

ABF research on globalization also examines the diffusion of legal rules across nation-states.  Our joint-appointee Carol Heimer (ABF/Northwestern Sociology) is studying how laws, regulations and other rules are actually used in HIV research and treatment in the United States, Uganda, South Africa, and Thailand.  Her book project investigates what happens when laws, regulations, and guidelines, admittedly created with the best of intentions, are transported to new sites where they confront the realities of medical care, clinical research, and healthcare administration in developing countries.  Carol is currently finishing up a fellowship year at Stanford’s Center on Advanced Study in Behavioral Sciences, where she is completing her book manuscript.

Legal History

In addition to our work on Law & Globalization, the ABF has also had a long tradition of research on legal history, writ large.  Many years ago, the ABF had a Legal History Society of some kind that hosted regular events advancing scholarship in legal history.  Although the formal society doesn’t exist anymore, the ABF continues to play an important role in supporting and promoting legal history.  From our faculty members like Vicky Woeste, whose recent research focuses on hate speech (here’s a link to her latest book on Henry Ford and Hate Speech), to our regular Chicago-area seminar on legal history, to our recent support for a junior scholars conference on Law in Capitalism, the ABF remains committed to supporting innovative and influential research on how law and legal institutions have operated in the past, and on how these historical legacies continue to influence the present.

Indeed, our recent conference, which was co-hosted by the University of Chicago Law School, and supported by a consortium of schools and the American Society for Legal History, brought together a stellar group of junior scholars working at the intersection of law and the new histories of capitalism.  These advanced grad students and junior faculty members had a chance to share their work and receive feedback from senior scholars in the field.  We were delighted to host this group at our Chicago location, and we look forward to having more ABF events on legal history.

Like the other categories I’ve discussed earlier, these two ABF research streams are just examples of a much deeper body of scholarship.  To learn more about our research, please visit our website.

Now that I’ve given readers a sense of the type of empirical and interdisciplinary research the ABF conducts, perhaps in my last post (if I haven’t already over stayed my welcome as a guest blogger) I can address a couple of pragmatic issues about ABF funding and the role that legal academics play in both supporting and helping disseminate ABF research.

Posted by Ajay K. Mehrotra on June 30, 2016 at 06:37 PM in Books, Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (0)

Tuesday, June 07, 2016

Overview of ABF Research (Part I): Criminal Justice, Legal Education & the Profession

In my previous post, I highlighted some ABF research that was on display at LSA. I’m sure I missed several other ABF-related panels at the conference. Even so, the LSA panels reflect only part of the ABF’s broader research portfolio. Let me mention some other projects. At its core, the ABF is an empirical and interdisciplinary research institute, and thus most of our research goes beyond purely doctrinal or theoretical questions to analyze “law in action,” as the legal realists put it. In this and the next set of posts, I’ll describe a few clusters of our research that reflect this focus on how law operates in society and on the ground.

Criminal Justice

Since its founding in the 1950s, the ABF has had a strong research focus on criminal justice. One of the ABF’s first projects, funded in large part by the Ford Foundation, explored the processing of offenders from arrest to prison. Led by Frank J. Remington, this study culminated in a scholarly edited volume (Discretion in Criminal Justice), as well as a larger publication (A Plane for a Survey) that highlighted the many areas of discretionary decision-making in the criminal justice system (thanks to former ABF doctoral fellow Meredith Roundtree for pointing me to this storied history).

More recently, ABF scholars have been continuing the tradition of analyzing criminal justice issues. Several are conducting research on the social and political implications of mass incarceration. ABF Research Professor and Northwestern Sociologist John Hagan and his co-author Holly Foster (Texas A&M) have been documenting how parental incarceration of non-violent offenders has had tremendous deleterious effects on children. With support from the National Science Foundation, the ABF held a White House Conference on this important topic. Similarly, Traci Burch (ABF/Northwestern Political Science) in her recent award-winning book (Trading Democracy for Justice) has shown the pervasive political and social consequences of mass incarceration, and how the criminal justice system has helped reproduce massive inequality.

Another area of ABF research related to criminal justice is Jim Heckman’s work on early childhood interventions. Jim, who is a U. of Chicago Nobel laureate economist and an ABF Research Professor, has been investigating how investments in early education and healthcare for disadvantaged children from birth to age 5 can have significant long-term effects on boosting graduation rates, improving health outcomes, and reducing violent crime. In a sense, Jim is studying ways to break down the school-to-prison pipeline that has been preoccupying many criminologists and lawmakers.

Legal Education & the Profession

In a previous post, I mentioned the ABF’s signature “After the JD” project, which continues the Foundation’s hallmark work on the legal profession. Directly connected to this line of research is more recent work on legal education. Beth Mertz (ABF/Wisconsin Law) has long been studying the relationship between language and the law. In recent years, she has been examining how law schools operate as a site for the training of lawyers in the language of law. Her award-winning book, The Language of Law Schools, draws on deep ethnographies to explain the important role of language in the socialization of law students.   Beth is following up that earlier project with new research on the post-tenure experience of U.S. law professors.

In a similar vein, ABF Research Professor Steve Daniels has been conducting research on many aspects of the legal profession and legal education. Following up on his recent book (co-authored with Joanne Martin) about the Texas plaintiff’s bar, Steve is currently working on changing patterns within legal education. With support from the Access Group, Steve will be building on his experience as a consultant for the ABA’s Task Force on the Financing of Legal Education to explore how law schools have been responding to the current challenges facing legal education.

Criminal Justice and Legal Education & the Profession are just two historically prominent areas of ABF research. In my next post, I’ll describe other more recent areas of research.

Posted by Ajay K. Mehrotra on June 7, 2016 at 07:47 PM in Books, Criminal Law, Culture, Life of Law Schools | Permalink | Comments (0)

Wednesday, April 13, 2016

Ferguson's Fault Lines

Ferguson's Fault Lines: The Race Quake That Rocked a Nation, edited by Kimberly Jade Norwood (Wash. U.), has been published by the ABA. I contributed a chapter on body cameras; there also are contributions from a host of legal and non-legal academics. Recommended, as they say.

Posted by Howard Wasserman on April 13, 2016 at 01:50 PM in Books, Howard Wasserman | Permalink | Comments (0)

Friday, February 05, 2016

The Rule of Law in the Real World.

This round of prawfsblawgging comes at an exciting and terrifying time for me: my first book, The Rule of Law in the Real World, comes out in a few days, courtesy of Cambridge University Press. It's an attempt to reconcile the philosophical, legal, and empirical literature on the ideal of "the rule of law," and show its symbiotic relationship with genuine legal equality. I think the official release date is February 11, although at least one person has already gotten her hands on a copy (before me!). Pre-orders are open (Cambridge, Amazon). I've also put up a website at rulelaw.net, mainly as a home for some cool interactive data visualizations---but I also hope to make it a live, ongoing thing, collecting other rule of law scholarship, data, and knowledge in general.

So the exciting is obvious, buy why terrifying? Well, I think that all of us academics are subject to quite a bit of imposter syndrome, and none more than those of us doing interdisciplinary work. No matter how good you are, even if you're Richard Posner Himself, you can't produce high-quality scholarly work in every discipline at once.  So anyone who publishes an extremely interdisciplinary book---and this book is that, in spades, delving into political philosophy, classics, game theory, empirical analysis, and other areas---surely must live in terror of opening up the journals or getting a Google Scholar alert to see his or her book get shredded by someone who actually is good at one of the disciplines the book has invaded.  And while there are treatments for this condition---serious cross-training, showing your work to people who know more than you before rather than after publishing it--- there is no certain cure. 

Yet some research topics really can only be handled by using methods from every field at once. The rule of law is definitely one of those: it has such a long historical provenance, has been the object of so many conflicting interpretations from lawyers, philosophers, historians, economists, political scientists, and others (Waldron once called it an "essentially contested concept"), and has such growing policy relevance in a world where hundreds of millions of dollars are spent promoting it (or the promoters' conception of what it might be) in places like Afghanistan, that the only way to really get any traction and make any progress is to try to bring something together from those disparate domains.  This is, I think, why Brian Tamanaha's wonderful rule of law work has become so influential: he really made the first big attempt to listen to all the diverse conversations on the subject.

So hopefully the terror of the review pages will prove unfounded, and it'll turn out that I'm really not faking competence in all those things.  The next half a year or so will tell.  In the meantime, I'll be blogging about The Rule of Law in the Real World throughout the month, along with whatever other crazy topics happen to cross my mind.  Onward!

Posted by Paul Gowder on February 5, 2016 at 06:29 PM in Books, Legal Theory | Permalink | Comments (2)

Friday, January 29, 2016

Even Wiseguys Need Health Insurance

Goodbye to Vincent  Albert "Buddy"  Cianci, Jr. -- a man who, whatever you think of him, certainly left his mark on the City of Providence. I would say that he was a Providence original if I didn't recall that though he was born in Providence he was a true son of Cranston and then, only later, the Mayor of Providence.

My absolute favorite excerpts from the eventual trial transcripts of "Operation Plunder Dome" (essentially, a RICO tapes case) were the parts discussing the selling points of various "no-show" or "low-show" jobs distributed by then Mayor Cianci. Steven Antonson, a Cianci-appointed City of Providence Building Board member, wasn't quite lucky enough to get that no-show or low-show appointment, however. Apparently, then Mayor Cianci really wanted him to show at Building Board meetings involving Providence's University Club and to wholeheartedly oppose all University Club petitions for building variances necessary for a pending re-model unless and until Mayor Cianci was offered a free lifetime membership in the University Club. What made it pure Buddy Cianci was not the apparent extortion but the ironic twist that the chief value of free lifetime membership in Providence's University Club appears to have been as payback for a rejected Buddy Cianci membership application to the Providence University Club in the early 1970's, decades earlier.

My favorite part of Buddy Cianci's sell of the Building Board appointment was Mayor Cianci's schooling of Steven Antonson on why it would be a smart move to accept it: "Remember, I appoint people to this board. You get Blue Cross. You get a check. You always said safety was important. Well, this is it."

Yes, Steven Antonson was among several would be appointees who chased the Mayor of Providence relentlessly for health insurance. Even wiseguys need health insurance. Go figure.  Or, as they say on South Coast, "Go Figah."

Steven Antonson eventually wore a wire and proved to be a fertile source of Buddy Cianci stories, many more of which you might glean from Mike Stanton's 2003 book,  The Prince of Providence: The True Story of Buddy Cianci, America's Most Notorious Mayor, Some Wiseguys, and the Feds.

 

Posted by Ann Marie Marciarille on January 29, 2016 at 01:38 PM in Books, Current Affairs, Dan Markel | Permalink | Comments (1)

Monday, December 14, 2015

Publishing with a Trade Press

Because I've chosen to publish with trade presses rather than university presses (even the book I'm working on for Stanford University Press is probably going to be published by the press's new trade imprint Redwood Press), scholars who are thinking about going that route sometimes ask me what they should do--do they need an agent, how do you find one, etc.  So I thought I'd share some of the things I usually say when I'm asked.  I'm sure others who have published with trade presses will have their own thoughts on the issue, and I hope they'll share their advice as well.

First, trade presses buy books on the basis of proposals, rather than full manuscripts (this is for non-fiction; for fiction the whole book needs to be done).  The proposal generally consists of a short overview section which describes what the book will be about, a short bio, an annotated table of contents, a short "publication specification" section that says when the book will be done, how long it will be, and whether it will have any special features like maps or charts or paintings of fruit saying weird things, a "marketing analysis," which is where the author tries to describe who might buy the book (trade presses are very interested in who the audience for the book is going to be), and a section that lists "comparable titles," which is not a literature review but rather a list of what books are out there that are like your book and how your book is different from them.  Finally, you usually need to include a sample chapter, which should not be the first chapter.  Of course, through the sample chapter and the overview, you need to communicate that you can write for the general public.  For goodness sakes, do not include footnotes.  There's a great book called "Thinking Like Your Editor" which describes the proposal-writing process really well.  I highly recommend it.

Once you have a proposal, you have to decide whether to try and get an agent.  To sell to the big trade publishers, you absolutely need one.  But there are some awesome smaller trade presses which will accept non-agented submissions.  My thrice-publisher Beacon Press is one of them, and the trade imprints of university presses will also take submissions directly from authors.  Just go to their websites and find the right editor and send him or her a catchy query email asking if they would like to read your proposal (see below).

If you want to try and sell your idea to a big, for-profit publisher so they can send you on a national book tour on their private Lear jet, then you will need to get an agent.  First, try to identify a set of 10 or 15 or so agents who you think might like your book.  You should certainly start by asking people you know who have an agent whether they will recommend you to their agent (assuming they like their agent), but beyond that, you can try and find out who represents authors who write stuff like you write.  Use the internet.  Also, you can subscribe to Publisher's Marketplace for $20 a month and find out all sorts of information about who sells what and how well they sell it.  Once you get your list together, send each agent a short and catchy query email and ask them if they'd like to read the proposal (don't send the proposal without being asked to, unless the agent's website tells you to).  Agents read hundreds of these a week, so you have to get their attention quickly.  Do not be scholarly.  Do not say "orthogonal" or "problematize."  Show them you can write for a general audience and sell millions of books

Some agents will reject you within minutes.  For others it will take days.  Some will never respond to you.  There's actually a site called Query Tracker or something like that which will tell you the average response times for each agent.  Hopefully one or more agents will be excited about your project and want to talk more about it.  Then one will agree to represent you, and you will sign a contract that gives 15% of your earnings to her or him.  The agent will take over from there.  If you're lucky, you will be on the jet drinking goblets of Remy Martin Louis XII on your way to readings in San Francisco and London and Istanbul within no time.

Posted by Jay Wexler on December 14, 2015 at 11:05 AM in Books, Jay Wexler | Permalink | Comments (0)

Sunday, October 11, 2015

Lisa McElroy's "Called On"

COPB cover full_001Lisa McElroy (Drexel) has published Called On, a novel about law school that Tony Mauro calls "This Generation's One L." Lisa tells me that Dan encouraged her in this project early on and she mentions him in the acknowledgements.

Posted by Howard Wasserman on October 11, 2015 at 07:25 PM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 22, 2015

JOTWELL: Vladeck on Hart & Wechsler

The latest Courts Law essay comes from our own Steve Vladeck, reviewing the new Seventh Edition of Hart & Wechsler's The Federal Courts and the Federal System. I am a Low, Jeffries, and Bradley person myself, but Steve's review at least makes me want to take a look.

Posted by Howard Wasserman on September 22, 2015 at 09:30 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Wednesday, September 02, 2015

New Jersey’s Legislature Takes a “Grave” Misstep

Other than fellow “property law geeks,” not many people may wonder about property rights in cemeteries, but it is a surprisingly complex and varied topic about which I’ve pondered and about which Professor Tanya Marsh of Wake Forest has developed national expertise.  She has recently written the definitive casebook on cemetery law (co-authored by recent law school graduate Daniel Gibson), has launched a venture with the Urban Death Project to work for “ecologically beneficial meaningful death care” worldwide, and has recently been quoted in the national media with respect to death and internment issues.  Monday, in a short but completely compelling piece on Huffington Post, Professor Marsh took the New Jersey legislature to task for passing a law limiting churches’ ability to manufacture and sell tombstones, vaults, and private mausoleums.

As Professor Marsh clearly explains, creation and care for tombstones in church-owned and operated cemeteries is a religious practice. After all “rituals that mark the transition from life to death are a central part of most modern religions.” (I’d go even further and say that such rituals have always been a central part of all religions.)  But this new New Jersey law, Bill 3840, that was signed into law by Governor Chris Christie in March 2015, limits churches’ ability to fully participate in those rituals – even on their own land and on behalf of their own members. The law seems to be a blatant anti-competitive, special-interest-group spearheaded “win” by the Monument Builders of New Jersey, who agitated for government assistance to preserve their de facto monopoly on manufacturing graves, memorials and vaults.  Not only does this law serve no state interest at all – let alone a compelling one – it violates religious freedom in an essential and inexcusable way. Professor Marsh sums it up thus:

This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue–headstones and memorial tablets–are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums–everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.

Happily for those who care about justice and religious freedom and economic liberty, the Archdiosese of Newark, assisted by the Institute for Justice, have brought a lawsuit against the State of New Jersey, seeking to have the law struck down. There are several asserted grounds pursuant to which the court could invalidate the law, including violations of Due Process, Equal Protection, the Privileges and Immunities Clauses, and the Contracts Clause (Art. 1, Section 1) of the Constitution. 

Posted by Andrea Boyack on September 2, 2015 at 11:17 AM in Books, Culture, Current Affairs, Property, Religion | Permalink | Comments (1)

Tuesday, August 18, 2015

Coming: A "Tilted" List of Recommended New Titles in Law and Religion [WITH UPDATE]

I've been laid up for a good deal of the summer and it's been a good time to read in my field---or browse, anyway, although some of my reading gets done properly. There is no question that law and religion scholarship has exploded in quantity and interest lately, for obvious reasons. I may not agree with all the directions that the literature has taken, but these have certainly been interesting times for it, with a lot of new writers whose primary interests have come to overlap with law and religion. Over the next few months I'll be mentioning some new titles of particular interest. They will primarily be books, not articles. The recent profusion of published monographs and collections in and around the field has been just as impressive as that of journal articles, and with the usual gains in thoughtfulness and expertise--particularly on religion itself, whose treatment in the new legal literature is weaker--that books bring compared to law journal articles. [NOTE: A slight update is offered at the bottom of the post.]

Although I certainly welcome and have been reading "all comers," my list of notices and recommendations will be tilted. In this post, I wanted to say something about how and why. The list will have something of a religious and/or conservative tilt. (The "and/or" definitely applies here.) This has little or nothing to do with my own religious views or politics, and a lot to do with academic diversity and pluralism. 

Successful academics in the fields I read in most tend to be heavily networked, and fairly conventionalist in their views. They do a good job of discussing and promoting decent books in their field that come from roughly within their circles and are not too heterodox for that circle, including political heterodoxy of a generally liberal or left-of-center kind. At least in my academic/cultural milieu, if a book meets those qualifications I can rest assured that I will see discussions of the book, generally positive and supportive, everywhere--if one defines "everywhere" in the way that Pauline Kael once defined the universe of anti-Nixon voters. They will be noted on my Facebook feed, given substantial attention on the blogs I read, and, despite being academic books, will receive a number of reviews in those mainstream liberal publications that still review books. Amazon's algorithms will recommend a dozen other books of roughly similar views--and their authors, I notice, are often the same ones conducting the favorable discussions online.

To take an example, I'm currently working on a review (for a print magazine reaching a sub-sector of the same liberal audience, thus underscoring my point above) of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars. Since I'm still reading it, I won't comment on its merits. But it's fair to say that it's within the political mainstream of the academic milieu I'm talking about--my milieu--and that, for an academic title, it has gotten an enviable amount of attention from the usual academic and journalistic sources; it picked up another review, for an intellectual but general audience, just yesterday. It's not especially surprising that I read the U.S. Intellectual History Blog, or that it has gotten plenty of discussion there, or that Hartman writes on that blog, or that, from my perspective, the blog's community largely shares the same priors. Given that they share some basic assumptions, it's also unsurprising that the reviewers have generally been positive and supportive, despite some disagreements on particulars.

All that is to be expected. It's the way things--our limited attention spans, online algorithms, the current politically polarized culture, the culture and politics of the mainstream academy, elites, and/or the "symbolic analyst" class--work. As Miss Brodie said, "For those who like that sort of thing, that is the sort of thing they like." Although I'm happy to acknowledge it's natural, however, I won't say it's fine, especially for academics. It's lazy, contrary to academic values, and perpetuates an unhealthy form of elitism. It hides from view large numbers of ideas, arguments, and information that ought to be a part of the "standard" conversation and are not--are, indeed, in some sense treated as both beneath notice and below the salt.

Not all of this is ideological, by any means. There are both conservatives and traditionalist religious believers who are given attention within the conventional milieu, although they are exceptional, and these individuals are usually well-networked members of the elite who share some of its conventions. But it is certainly true that given the academy's conventionalism and given the politics of my sector of the academy, a lot of conservative and/or religious writers and books end up hidden from notice, out of the loop, out of the algorithms, not part of "the discussion." (There is an additional and, I think, related problem. A lot of good books that fall within mainstream liberal or progressive thought, or that are more radically leftist or "critical," and that do receive reviews and attention from conventional academics, have potential payoffs and benefits for conservative or religiously traditionalist arguments and groups. Those possibilities are generally neglected. I suspect that wouldn't be as likely if the reviewers gave more thought to books, ideas, and groups outside their usual political and intellectual milieu.)  

Doubtless these authors, neglected within what I would consider the mainstream academic milieu, have milieux of their own, although I doubt they have an equal tendency to ignore conventional academic works in their field. But whether they do or not does not excuse anyone else from the general duty to read more widely and give appropriate attention and publicity to a wider range of books and views. Of course, many of the books and articles I read fall within the mainstream of what "everyone" else is reading, and my recommendations will often reflect that. But it seems to me that many heavily discussed books that fit the usual, not-to-be-spoken of qualifications receive too much attention, while many other books get none at all, and for the wrong reasons. I hope to even out the balance a bit, and to tilt a lance or two in doing so.

UPDATE: Elsewhere, a friend writes in with this observation: "I'm not sure whether the category is politically or theologically conservative, or both -- and how these relate to 'traditionalist.' One may be theologically conservative, traditionalist, and yet also quite left on critical issues, in a narrow-political sense." Fair point. I was assuming two categories: politically conservative, especially on social issues--at least in the legal academy, fiscal conservatism does not necessarily lead to one being ejected from the club or ignored by the conversation--and religious in a traditionalist way, since it's obviously possible to belong to the milieu I'm discussing here while privately holding religious beliefs, or to be religious in a milquetoast mainline way, or to be religious in a way that affects one's desire for justice but still make arguments in essentially a secular or secularist way. Deep attachment to a traditionalist religious community with thick beliefs and practices and the desire to witness those commitments in one's arguments, on the other hand, is I suspect not going to be characteristic of most people who make it into the conversation. I suspect that is even true for some whose views are left but still deeply traditionalist--I am guessing, to borrow a Catholic term, that it depends on how much of your seamless garment you let show--but admittedly I had traditionalist religious conservatives primarily in mind. Although this may help clarify--a little--what I meant by the terms I used, I agree that the terms raise a number of questions, and I'm not sure I chose the best descriptors.    

    

 

Posted by Paul Horwitz on August 18, 2015 at 02:27 PM in Books, Paul Horwitz | Permalink | Comments (0)

Wednesday, August 12, 2015

Benforado on cameras and perspective

Adam Benforado (Drexel) has this Slate essay (excerpted from his new book). He discusses the role of perspective in evaluating video evidence and the need to "underst[and] how footage can influence perception," so "we can change how we use cameras to address that distortion." I have been making similar arguments, here and elsewhere. And I like some of Adam's suggestions about finding ways to obtain and use video with different or wider perspectives.

Posted by Howard Wasserman on August 12, 2015 at 03:15 PM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, July 24, 2015

Liability for Lifesaving Inventions?

I saw that Evenflo has produced a new car seat (which will be sold by Walmart), which is designed to "jingle" when a child is left in the car seat after the ignition turns off.  In light of the seemingly increasing number of horrific deaths of children accidentally left in carseats, this new car seat could be an important, lifesaving device.  And, yet, the lawyer in me found myself immediately wondering about the liability issues, and accompanying normative questions.  Walmart's director of corporate communications has apparently advertised that "this car seat will eliminate the chance of a baby being forgotten in a car."  Of course, that is only true if the car seat is used properly, in a compatible car, with compatible technology, and if the device doesn't malfunction (among other things).  The actual car seat and instructions will no doubt contain such warnings in bold print all over the place.  And yet, despite such warnings, will a product that is designed precisely to ameliorate inattention (which, thereby, may reasonably encourage more of it), and which is advertised publicly as "eliminating the possibility of a baby being forgotten in a car" really be able to escape liability if some slight inattention in the use of the product causes it to malfunction?  In this regard, if this particular product does not work as a result of misuse, it seems that the legal issues may be different than a run-of-the-mill product that fails to function properly because of misuse.  Since the very purpose of the product is to protect against inattention, does it somehow bear a heavier burden to work despite inattention in use?  In assessing such a claim, would a court take into the positive externalities (for the poor, helpless children otherwise trapped in car seats) from the product (in the cases in which it works)? Although I have not thought about torts in a rigorous way in quite some time,  I do not believe there is a formal, doctrinal way to consider such positive externalities in assessing a liability claim regarding the carseat.  And yet, it seems that normatively it should matter that an overly sensitive liability regime may discourage the production of this lifesaving product, and the positive externalities for the otherwise trapped children.  What do others think? 

Posted by Leigh Osofsky on July 24, 2015 at 01:38 PM in Books | Permalink | Comments (2)

Wednesday, July 15, 2015

"We Begin with the Assumption that Contracts Matter...."

GULATI 0375292One of my reads this summer, because it's relevant to my piece on "lexical opportunism," has been a fascinating little book by Mitu Gulati (Duke, left) and Robert Scott (Columbia, right), The 3 1/2 Minute Transaction: Boilerplate and the Limits of Contract Design (Chicago, 2012). The subject matter is a puzzler: why did sophisticated law firms keep including a particular contract provision (the "pari passu" clause) in sovereign debt agreements when (a) almost nobody could present a credible explanation of its purpose, and (b) a highly publicized case affirmed an interpretation of the clause that threatened to undermine all attempts to restructure sovereign debt? Scott new 9-09

Let me start with words of praise. This is a good read and good work. Anybody seriously looking at issues in contract theory ought to be reading it. But it's refreshing to read the results of an academic, empirical piece where the authors are so frank about their bemusement and their inability to come up with a satisfying explanatory theory. Professors Gulati and Scott come at the problem with a neoclassical economic perspective, and find that "these hard-nosed Wall Street lawyers told us stores about rituals, talismans, alchemy, the search for the Holy Grail, and Zeus." (5)  It's pretty clear 173 pages later they'd agree that the conclusion - sticky boilerplate and herd behavior - is a whimper rather than a bang.

I confess that Ayn Rand's The Fountainhead and Atlas Shrugged were staples of my intellectual youth. I've since come to terms with some of the hokum and inherent contradictions in the philosophy (she hated Kant, and I kind of know why - her response to the limits of reason was to opt for an orthodoxy of logic, including the foundational posits that logic requires), but many of her bon mots come back to me at opportune times.  The apropos quote here is from Francisco d'Anconia to Dagny Taggart: "Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong."

So.... One of the fundamental puzzles for Gulati and Scott is why sovereigns incur any costs toward lowering the cost of capital by way of contract design, and yet economists seem to think that contract design is irrelevant. The bridge from that to their assessment begins as follows: "In any case, as contracts scholars, we begin with the assumption that contracts matter." (23)

That bothers me.  Let's try these variants.  "As philosophers, we begin with the assumption that metaphysics matter." "As human anatomy scholars, we begin with the assumption that appendixes matter." "As physicists, we begin with the assumption that phlogiston matters." What's going on is a demonstration of the subtle ways in which descriptive theory has a normative component, even if the normative element is as basic as something like "this activity should be amenable to explanation by way of theory." If you start with neo-classical welfare-maximizing as the default in human decision-making - i.e., ceteris paribus, that's how the world ought to operate - no wonder it's a puzzle when it doesn't turn out to work that way. (I'm not sure if old Ayn ever got to the part of the Critique of Pure Reason that works through this - it's buried in an Appendix to the Transcendental Dialectic, beginning at pages A643/B671.)

If we check our premises, maybe contracts don't matter.

Posted by Jeff Lipshaw on July 15, 2015 at 07:44 AM in Article Spotlight, Books, Lipshaw, Science | Permalink | Comments (1)

Thursday, June 04, 2015

Introduction

Hello -- my name is Megan La Belle, and I'd like to thank Howard and PrawfsBlawg for the opportunity to guest blog here this month.  I am an associate professor at Catholic University of America, Columbus School of Law, where I teach and research in the areas of intellectual property, civil procedure, and administrative law.  I am looking forward to sharing some ideas about patent litigation and other topics with the PrawfsBlawg community. 

Posted by Megan La Belle on June 4, 2015 at 08:41 AM in Books | Permalink | Comments (1)

Sunday, March 01, 2015

Recommending Highly The Black Box Society by Professor Frank Pasquale

This is my last post for this stint (my third) on Prawfsblawg and I want to thank again for inviting me Howard Wasserman and the others who are doing the work of keeping going what Dan Markel, ZT”L started.

I also wanted to share a very interesting, well-written and important book that I’ve been reading this month by PrawfsBlawg alumni @frankpasquale called The Black Box Society: The Secret Algorithms that Control Money and Information.  (Amazon).   Professor Pasquale is a professor at the University of Maryland Francis King Carey School of Law School of Law.  In this book, Frank explains in clear, non-technical English what exactly is going on behind the internet technology we use every day.   He explains how the sites we access on the internet are not just collecting information from us, but are selling it to others who are using that information in shaping the information we get back.    So, and this among the more benign points, what you get when you run a Google (or other) search is probably very different than what I would.  Google is not an automated index nor is a database like Lexis or Westlaw.  Moreover, the information collected isn’t just shaping the advertisements we see on the screen, it’s controlling our access to jobs, credit, insurance, security clearances, and housing.   As he explains, “you can’t form a trusting relationship with a black box.”

What makes the book of special interest to law professors is that it doesn’t just present the issue, it addresses the lack of legal restraints in the United States to regulate (or even monitor) the information private companies collect and the ways they use it.  Frank makes a strong case, as he has in his scholarship, for the role of regulation not just in promoting transparency, but in regulating behavior.  As he explains, “If credit scores can be regulated, why not the scoring systems used by digital advertisers and employers?” 

Whether we directly use the internet to apply for credit, insurance or jobs, those offering these things to us have full access to extensive data about what we like, what we do, and how we are likely to behave.  For example, they know  whether we are willing to pay above market price for convenience.   We are, he tells us, voluntarily opening our entire lives to commercial organizations who not only lack any obligation to keep our confidences, whose business model is to package and sell them.   

While we were worrying about the government listening to our phone calls, we didn’t notice that “the state’s immense powers of compulsion and enforcement can now be enlisted in support of the black box technologies of the search, reputation, and finance sectors.”

 

I commend the book to you highly, as well as his NY Times Op-Ed overview but in the event you need more convincing, please see what others have said in Science, The New Republic, Slate,  and The New York Times.

Posted by Jennifer Bard on March 1, 2015 at 03:33 PM in Books, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Web/Tech | Permalink | Comments (0)

Monday, February 02, 2015

The Legacy of Ruth Bader Ginsburg

Congratulations to occasional-guest Prawf Scott Dodson (Hastings) on publication of his edited volume, The Legacy of Ruth Bader Ginsburg (Cambridge), featuring a great line-up of contributors. Al Brophy has a full write-up on the book.

Posted by Howard Wasserman on February 2, 2015 at 09:31 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Monday, January 19, 2015

Bedside Collections Visits in the Emergency Room

Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?  

There isn't actually that much to garner a laugh in Steven Brill's new book America's Bitter Pill, but his description of how medical debt collector Accretive Health sells its services to its acute care hospital customers brought a smile to my lips. First, this was because the "Accretive Secret Sauce" is bedside Emergency Room collection and second, because Steven Brill had apparently never heard of this practice until researching this book.

Just where has he been making visits to the ER with his children? It is reported that at least half of acute care hospitals nationwide have been charging upfront ER fees.  We are on the cusp of an era of changing constraints on hospital debt collection practices, including a change to the rules about bedside debt collection in the Emergency Room.  Most of the new rules focus on those who likely would ultimately be eligible for free or reduced care and how they are to treated pending that determination. But what about the Bruce Folkens of the world-- the ones who most likely will not be eligible for free or reduced fee care? Will upfront fees in the ER remain the rule for them? 

After all, could it be that New York Presbyterian, whose expertise in resolving aortic  aneurisms such as the one Steven Brill suffered and describes as the  narrative framework for much of his book, does not engage in this practice? If not, is it because their post-Emergency Room discharge collection numbers are stronger than those of Fairview Ridges Hospital in Burnsville, Minnesota?

We'll never know because, like a great many important topics in Steven Brill's book, we only know the anecdotal, the one off event. So, let's pause and do justice to Steven Brill's account of Bruce Folken's several hour visit to Fairview Ridges Hospital in Burnsville, Minnesota for chest pain where, yes, a hospital employee asked him about his plans to pay the remaining $493 left on his annual deductible.

Bruce Folken's experience at Fairview Ridges Hospital was not unusual in several ways. First, chest pain is one of the most common reported symptoms that drives Emergency Room visits in the U.S. and Bruce Folken's outcome (a diagnosis of indigestion) is also not atypical. Second,  it is further not unusual that ruling out a significant cardiac event does not come cheap for reasons that the rest of Steven Brill's book struggles to explain.

So, once Brucke Folken (described as half way through  his visit and resting in bed with an IV) was ruled-out as an emergency cardiac patient, why the rush to obtain payment? Could it have been that the hospital has been monitoring its collection rate and noted that Emergency Room bad debt is a disproportionate share of acute care hospital bad debt? Of course, the fine line here is between bedside debt collection from those using the ER for genuinely emergent care and those using it for urgent or even routine care and Accretive has, more than once, found itself on the wrong side of that line.  Bruce Folken's situation is right on the line -- perhaps genuinely emergent at the beginning but morphing into urgent by the time bedside debt collection was undertaken.  

If this offends, perhaps it is because of the retrospective determination of  the validity of use of emergent care under the prudent layperson standard or some other standard found in Bruce Folken's policy, but surely not in having a substantial co-pay outstanding at the time of an ER visit.

You see, this is a scenario that will only increase in frequency.  More and more of us are enrolled in high deductible plans and the trendline points upward. So, of course there are now and will be many more Bruce Folkens among those of us with unmet high deductibles and Emergency Room needs. 

Don't forget your wallet.

 

 

 

 

 

 

 

 

 

 

 

Posted by Ann Marie Marciarille on January 19, 2015 at 12:09 AM in Blogging, Books, Current Affairs | Permalink | Comments (0)

Saturday, January 17, 2015

The Little Legal Academy and the Big Idea Book

Why does law insist on remaining an article field? In law schools, many professors never aspire to write books. Perhaps worse, many don’t have a book idea in them. In my view, our lack of emphasis on books—and especially on "big idea" books—is detrimental. When legal scholars get together, their conversations seldom concern big idea books. There are too many articles, opinions, and statutes to discern. Law review articles are the coin of the realm, and, as a result, we face a dearth of big idea books—by which I mean books that try to capture or espouse a grand theory or strategy of life. Without big idea books, we are left with far fewer big ideas.

In other fields, big idea books proliferate. Take foreign affairs, where such books are a fixture. Indeed, they are the only game in town.  From Samuel Huntington’s The Clash of Civilizations, to Francis Fukuyama’s The End of History, to Joseph Nye’s Soft Power, to Henry Kissinger's many home runs, ideas are backed by books. And big ideas by big idea books. Every foreign policy thinker whose ideas have withstood the test of time has written a big idea book. In the think tank world, such books are also ubiquitous. Think of Robert Kagan’s Of Paradise and Power, In many other fields, they similarly abound. Consider Stephen Hawkings’s A Brief History of Time in physics, James Waston’s The Double Helix in biology and genetics, and the many such books in economics. Thomas Piketty’s Capital is a recent example.

I’m not claiming that we don’t have best-selling authors in the legal academy. We do. And I’m not claiming that we don’t have books. That would be silly. Obviously, we have plenty of both. I’m not even claiming that we don’t have big idea books. Rather, what I’m arguing is that we don’t have enough of them. And that we don’t place enough emphasis on them, either. A law professor friend told me recently that he had no time for such books. They took too long to write, did not fit his research needs, and were not available (wait for it ... wait for it) on Hein-on-Line.

Alas, that’s a problem. To me, this kind of thinking makes the legal academy seem small-minded. Its ideas, confined to the four corners of a single document, become inconsequential to the big idea men (and women) of the world. I believe that articles play an important role, don't get me wrong. But they do not provide the proper forum for big ideas—which are better sold through books. These are the most important ideas we want our fellow citizens to understand, ideas that by their very nature draw a simple, common, and shared thread from the legal academy to the greater, outside world. For such ideas to proliferate, it is time for legal scholars to change their view of books. A new generation must stand up for big ideas.

Even our big idea thnkers realize that not all of their ideas are as big as they could be. In Lincoln Caplan's recent profile of Cass Sunstein, Sunstein said of the Chicago economist Richard Thaler, a frequent coauthor with whom Sunstein wrote Nudge, “If you look at his academic articles and his very few books, he tends not to hit singles and doubles, he likes to hit home runs, and that’s just not my style. I have itchier fingers than you can have if you’re only looking for home runs.”

I'll submit that more home runs come from books. I'll also admit that in Paul Horwitz’s excellent schema of the kinds of readers you meet, I’m the Publisher's Agent, though I prefer to call it "the Bookie.” Come see me with an article idea, and I'll likely talk you into turning it into a book. Either that or I will tell you that you should not be wasting your time on the idea in the first place. But who has ever workshopped a book? Well, it's time we start. 

Posted by Eugene Mazo on January 17, 2015 at 06:03 PM in Books | Permalink | Comments (11)