Month: July 2010

And now, the first prawfs-themed sudoku!

Here’s the deal, this sudoku puzzle is quite hard … unless you correctly answer the questions below about the law. Answers fill in blanks, helping you solve the sudoku. If you get all the answers, solving the rest of the puzzle should be no problem. Hey, you didn’t go to law school because you were good at math!

This works just like a regular sudoku, except that instead of using the digits 1 through 9, as most sudokus do, in this puzzle we’ll do it computer-programmer style and start with 0, going up through 8.

Instructions: Fill the blank spots in the grid so that each column, row, and bolded square contains one and only one of the numbers 0, 1, 2, 3, 4, 5, 6, 7, and 8.

Across:

A The Magnuson-Moss Warranty Act was enacted in 19__.

B This rule allows the exclusion of relevant evidence on the basis of unfair prejudice.

C This is the most recent amendment to the U.S. Constitution.

D This section of the Securities Exchange Act of 1934 allows recovery of short-swing profits by officers and directors.

E This rule allows motions on the basis of the pleadings.

F This title of the U.S. Code concerns patents.

G This title of the U.S. Code deals with the judiciary.

H The Voting Rights Act of 19__ prohibited the administration of literacy tests.

I This rule permits testimony by experts if scientific, technical, or other specialized knowledge will assist the trier of fact.

J This chapter of the Bankruptcy Code allows individuals to save their homes from foreclosure.

K This title of the U.S. Code sets forth crimes and criminal procedure.

L The Copyright Act of 19__ forms the basic statutory framework for current copyright law.

Down:

M This rule defines relevant evidence.

N This rule permits summary judgment.

Single:

O This title of the U.S. Code concerns immigration, aliens, and nationality.

[Click here for the answer.] [Click here to hide the answer]

Posted by Eric E. Johnson on July 31, 2010 at 09:51 PM

Comments

Alas, a new exam format! It’s a hybrid of the bar exam and the LSAT. Great stuff.

Posted by: David Friedman | Aug 1, 2010 4:45:15 PM

I have enjoyed this extended stay on Prawfs over the summer. Thank you for having me! A happy, healthy, and productive 2010-11 to all.

Posted by David Friedman on July 31, 2010 at 04:05 PM

This is my final day as a guest on Prawfs. Thanks to Dan Markel and everyone else at Prawfs for allowing my guest stint. Thanks to all of you who read my posts. If I can be informative or helpful to any of you in the future, feel free to contact me at [email protected].

Posted by Jen Kreder on July 31, 2010 at 11:24 AM

Before entering the academy, I had a job with heavy travel demands. The travel forced me to write documents in airports, on airplanes, in hotels, hotel lobbies, windowless conference rooms, in cabs, in parking lots, on trains, the Bridgeport-Port Jefferson Ferry (too windy on top deck), coffee shops, and yes, even in a bar. I even wrote the first half of a presentation at a Texas Rangers game until the client arrived with his family.

Unfortunately, I think these work habits have rendered it difficult for me to write in a sterile environment. I say “unfortunately” because writing in my comfortable office just doesn’t happen. Short, tidy tasks are fine, as are class prep and student meetings. If I want to get a stretch of writing done during school hours, I sneak out to the undergraduate coffee shop.

Also, I can’t bring myself to ignoring a knock on the door of my office, even when I am on a roll. A decaying sign scotch-taped to a prolific professor’s door during my law school years blared in bold black marker, “Professor [X] writes in the mornings. Do not disturb him.” I admired the clarity and third-person nature of the admonition, but I’m not quite as accomplished as he. (That sign almost could have read, “Professor [X] writes a book each morning. Please do not disturb him.”)

During the summer, I get most of my work done at some amazing coffee shops here in Portland, Oregon. Nobody knows me, but there is plenty happening.

On C-SPAN, one of Brian Lamb’s regular questions of non-fiction authors is: “Where do you write?” One eminent professor emeritus of history informed Lamb that he wrote in his backyard shed every morning… in the nude. Even the unflappable Lamb broke a grin.

Where do you get your best writing done, aside from your work or home offices- or a library? (I don’t think we want to know your state of dress.)

Posted by David Friedman on July 30, 2010 at 03:20 PM

Comments

On trains. Trains are the best place to write

Posted by: Tim Wu | Aug 4, 2010 3:41:54 AM

Shag, the Gettysburg Address would have been completely revised by law review editors. Even the first sentence would require a footnote.

Posted by: David Friedman | Jul 31, 2010 4:02:11 PM

Someone once told me that if you want – need – something done, give the assignment to a busy person. This advice served me well over the years, making myself the assignee.

Consider if Abe Lincoln had prepared his Gettysburg Address in the comfort of his office, well prior to its delivery. Might it have started: “87 years ago, …” or perhaps “In 1776 ,,,”?

Posted by: Shag from Brookline | Jul 31, 2010 7:36:23 AM

On my couch while watching tv, preferably Law & Order episodes that I’ve already seen.

Posted by: BS Starkey | Jul 30, 2010 11:00:46 PM

I don’t know that it was my “best” writing, but I wrote a not insignificant amount of the first draft of my dissertation while at the laundromat at 133rd and Fredrick Douglas Blvd. in Harlem, washing and drying my clothes, in little notebooks. That’s maybe the most unusual place where I wrote more than just a small amount of stuff.

Posted by: Matt | Jul 30, 2010 8:44:31 PM

A document I recently saw for the first time really opened my eyes to the amount of trafficking in Nazi-looted art into U.S. museums. It was a report completed by art historian Laurie A. Stein that was mentioned in the final report of the Bergier Commission, an Independent Commission of Experts established by the Swiss Parliament to study the role of Switzerland in trafficking during World War II. The Bergier Report came out in March 2002. To my knowledge, Ms. Stein’s report has never been published, but last year was given by the Swiss government to Raymond J. Dowd, a claimants’ lawyer in the Bakalar and Grosz litigation, which he discusses often on his blog. Because of how sensitive this is, I will use quite restrained language.

Ms. Stein’s report indicates that research to date has only scratched the surface of the “extraordinary breadth of traffic in art to the United States that was occurring in the Nazi era.” Ms. Stein stated that “the myths of American museum directors and collectors purchasing art in the 1930’s through Swiss sources, in order to rescue it from the National Socialists, need to be reconsidered.” She added: “It must be remembered that while Europe went to war, America was still conducting business as usual, even in the cultural arena–defining new museum collecting policies, mounting exhibitions, and building private collections from the best possible art available on the market.”

The report focuses mostly on art channeled into U.S. museums via Nazi sales of “degenerate art” taken from German museums to auction in Switzerland (as advertised in Art News in New York) to raise foreign currency. Some art world insiders could not resist the temptation to scoop up a masterpiece for a bargain despite knowing that the net effect would be to “transform works of art into armaments.” Many of those masterpieces eventually would come to be sold or donated to U.S. museums. There are some big names implicated by the report as having handled or ultimately received this art – the Museum of Modern Art, the Fogg Art Museum, Curt Valentin, “this country’s most influential figure in the development of modern art”, and Joseph Pulitzer, Jr., to name just a very few names recognizable to a wide cross section of Prawfs readers.

The report supports the hypothesis that the high-profile dealers and collectors who facilitated the transactions likely are many of the same individuals who trafficked in Switzerland in art taken from Jews in forced and duress sales. To highlight the breadth of the issue, Ms. Stein wrote: “The range and constancy of recently-arrived works being offered and acquired by Americans evidences that the United States became a welcoming homeland for confiscated and looted art, and Switzerland became probably the most important conduit country for the rush of American art collecting during the era.” According to the report, “[i]t is clear that there was much more dealing between American-based buyers . . . either in front of the auction block or behind the scenes, than has been recognized up until now.”

So, in conclusion, the Nazi-looted art problem will not disappear any time soon. As heirs become aware of their possible claims and start to research, we can expect more litigation. One can only hope that the Nazi-looted art commission about to be born within the Department of State has an extraordinary impact within the United States and beyond in terms of truth and justice. There is still a long road ahead, but we owe it to Truth and Memory to continue.

Posted by Jen Kreder on July 30, 2010 at 12:15 PM

For all aspiring prawfs (and those interested in their success), check out The New Realities of the Legal Academy, which Larry Solum has just put up on SSRN. The paper is the preface to a book I’ve read and enjoyed in manuscript, and recommend to students of mine interested in joining the legal academy. Here is Larry’s abstract:

This short paper is the Foreword to Brannon P. Denning, Marcia L. McCormick, and Jeffrey M. Lipshaw, Becoming a Law Professor: A Candidate’s Guide, American Bar Association, Forthcoming. One of the great virtues of Denning, McCormick and Lipshaw’s guide is that it reflects the changing nature and new realities of the legal academy. Not so many years ago, entry into the elite legal academy was mostly a function of two things—credentials and connections. The ideal candidate graduated near the top of the class at a top-five law school, held an important editorial position on law review, clerked for a Supreme Court Justice, and practiced for a few years at an elite firm or government agency in New York or Washington. Credentials like these almost guaranteed a job at a very respectable law school, but the very best jobs went to those with connections—the few who were held in high esteem by the elite network of very successful legal academics and their friends in the bar and on the bench. The not-so-elite legal academy operated by a similar set of rules. Regional law schools were populated by a mix of graduates from elite schools and the top graduates of local schools, clerks of respected local judges, and alumni of elite law firms in the neighborhood. In what we now call the “bad old days,” it was very difficult indeed for someone to become a law professor without glowing credentials and the right connections.

But times have changed. When the Association of American Law School’s created the annual Faculty Recruitment Conference (or FRC) and the associated Faculty Appointments Register (or FAR), the landscape of the legal academy was forever changed. The change was slow in coming. For many years, candidates were selected for interviews at the FRC on the basis of the same old credentials and connections, but at some point (many would say the early 1980s), the rules of the game began to change. In baseball, a similar change is associated with Billy Beane, the manager of the Oakland Athletics, who defied conventional wisdom and built winning teams despite severe financial constraints by relying on statistically reliable predictors of success. The corresponding insight in the legal academy (developed by hiring committees at several law schools) was that the best predictor of success as a legal scholar was a record of publication. It turns out that law school grades, law review offices, and clerkships are at best very rough indicators of scholarly success. But those who successfully publish high quality legal scholarship are likely to continue to do so. This foreword explores the implications of the new realities of the legal academy for candidates seeking to become law professors.

Posted by Administrators on July 30, 2010 at 09:36 AM

Comments

Humm, don’t think it’s changed all that much. Kind of like finding out you have malignant mixed Mullarian tumor instead of angiosarcoma. You can publish and get a PhD and have those markings of merit, but if you’re JD isn’t from a top school and you don’t have lots of connections – you’re still out of luck.

Posted by: anan | Aug 3, 2010 4:24:17 PM

It never fails to amaze me when the government pushes organizational compliance programs on corporations, but then does a relatively poor job backing up its own compliance efforts. Last year, I reported on the DOJ’s Office of Professional Responsibility, whose reporting suggested that OPR was more reactive than proactive, and seemed to intervene only in the worst of situations, thus setting itself up for compliance failure.

Today, the Associated Press reports on the FBI’s surveillance training program. Apparently, agents receive training in the agency’s procedures relating to surveillance (including standards which Director Mueller himself seemed to have difficulty articulating in Congressional testimony), and then are supposed to take a 51-question test verifying and demonstrating their knowledge. It appears that some FBI agents (including very high level supervisors) may have outright cheated on the test, whereas others may have unintentionally violated FBI rules by discussing the test as a group when they were in fact supposed to take the test without help. Although senators inquired of Mueller how widespread the cheating and related problems were, he was unable to answer those questions with specificity.

At the very least, this sad episode demonstrates a lack of thought and care in the design and implementation of an important compliance-related program. Agents should have clarity both as to the importance of the training and test, as well as to the means by which such test is to be administered. Cheating should lead to some level of discipline or punishment, depending on the circumstances, and to the extent it is widespread enough to trigger the Inspector General’s involvement and questions from the Senate Judiciary Committee (as in the case here), it ought to be a high priority of the Director. This isn’t rocket science; it’s Compliance 101.

Were such shortcomings revealed within a corporation’s compliance program, government prosecutors would sternly warn said corporation’s management to clean up its act. As the Inspector General’s cheating investigation unfolds, it will be interesting to see how high-level officials, at the FBI and elsewhere, respond.

Posted by Miriam Baer on July 29, 2010 at 10:40 PM

My recent essay with Michael Serota on the virtues of dissensus in statutory interpretation is now live at The Yale Law Journal‘s frontpage. While you are there, check out my recently published YLJ essay with Don Dan Markel and Jennifer Collins on family status and criminal justice. And if you want your brain as trifurcated as mine has been recently, my Emory Law Journal piece — Contracts and Friendships — has also just gone live.

Posted by Ethan Leib on July 29, 2010 at 05:34 PM

Let me gently disagree with Eric’s post below, which argues that “[o]ur system of justice is absurdly complex and time consuming,” and that this is a problem that is generally unnoticed or unaddressed by the legal profession, including its academic arm. In particular, Eric argues that “[e]ndeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.”

First, I don’t think this problem is either unnoticed or ignored. Eric agrees that none of this is news, but says it is so apparent that we don’t pay much attention to it. Of course, some people may not pay attention to it because they think it’s not a problem; more on that below. Others do think it is a problem, and although I think there ought to be more scholarship on the relationship between law and complexity, it is certainly out there.

Second, I think there are two levels of “what do you mean we?” response available to Eric when he says “our” system of justice is absurdly complex. First, I’m not sure whether Eric is talking only about the United States. But ours is not the only system of justice, even of common-law justice. Many other nations have made great strides in legal reform, and should not be ruled out of the conversation. So have many local jurisdictions within the United States. Second, much depends on what Eric means by “our system of justice.” For the most part, he appears to be referring to the courts. That’s not the only place that either the legal system or legal reform takes place. Some of those places look worse than the courts — say, the immigration system. Others look much better. And in all these places, as well as in the courts, some reform is happening all the time. I do tend to think the United States is more hidebound and less serious about legal reform than other countries may be, but we should not ignore the fact that it does occur, and not only through the courts.

As to complexity itself, we must be clearer on when and why this is a bad thing, and we mustn’t lose sight of the responses to complexity that have been offered. It is true that no lawyer can go through life anymore with just a copy of Blackstone by his side. But we don’t live in Blackstone’s world. If law has gotten more complex, surely that is because human affairs have gotten vastly more complex. Unless one believes that life’s complexity can be reduced to a set of “simple rules,” as Richard Epstein has argued, then the mere fact that law has gotten more complex is not reason enough for a lament. Moreover, I think that in emphasizing the “explosion” of technology and wealth and what it has contributed to law’s complexity, Eric undersells the degree to which the same resources have been deployed to respond to that complexity. There is vastly much more law than there was 200 years ago. But our systems of researching, retrieving, and communicating within and beyond the law have also gotten much more sophisticated. For all its flaws, Westlaw makes it much easier to marshal effective legal resources, even in a complex and law-filled world. Nor does Eric give enough weight to the ways in which law has responded to factual complexity. Much of our legal doctrine in and out of the courts, from the whole body of administrative law and particularly the Chevron rule to the post-Daubert era decisions on scientific evidence, are designed to respond to these issues. And, oddly to me, he criticizes the fact that more resources may be spent on high-stakes litigation than on small-stakes litigation. This, too, strikes me as a reasonable and market-driven response to law’s complexity. In short, we cannot effectively judge law’s complexity unless we take into account the full panoply of responses to it.

Nor can we effectively judge whether law’s complexity is a problem without making some kind of comparative and/or normative assessment about whether we would be better or worse off with less complexity. Simplicity is not a virtue in and of itself, nor is complexity necessarily a vice. The question is not whether law is “complex” or “simple,” but whether it brings the right resources to bear on the right problems. That may call for more complexity in some areas and less in others. The real question is whether law is appropriately responsive to social problems, not whether it does so simply or complexly.

Along those lines, I have argued elsewhere that constitutional doctrine, and particularly First Amendment doctrine, is often influenced by, and harmed by, “the lure of acontextuality” — by the urge to come up with doctrinal rules that are largely indifferent to context, that employ primarily legal rather than prelegal and functional categories in carving up the world, and that therefore risk becoming either unresponsive to real problems or, to the extent that they carve out numerous contextual exceptions without abandoning the general urge to acontextuality, becoming incoherent. If I am right about that, then we might see this as an instance where law’s preference for a particular kind of simplicity has made it less capable of keeping up with factual complexity and institutional diversity. The solution to this, however, is not necessarily for law to become more complex. It is for law to come up with better categories and better tools. In some cases, it will mean focusing more on functional categories other than the legal categories the law currently uses — to accept that sometimes and in some areas there ought to be a “law of the churn,” in Holmes’s mocking words, or that there are salient differences between the institutional press and the “lone pamphleteer.” In others, it will mean having law do less work — as in a system of reflexive law, new governance, or democratic experimentalism, where law’s function is to coordinate the self-regulation of complex entities rather than attempting to regulate them directly.

It is obviously an open question whether these reforms will be preferable to our current state. But they don’t turn on either complexity or simplicity: they turn on whether law is doing the right job, with the right tools, and in response to the right stimuli. None of this means that Eric hasn’t identified a possible problem, or that he is wrong to complain about how poorly the law fares in particular areas. But I think, with respect, that he is wrong to pin the blame on “complexity,” or to pin our hopes by implication on “the opposite of complexity.”

Posted by Paul Horwitz on July 29, 2010 at 03:28 PM

Comments

I have recently written a post that was inspired, at least in part, by this discussion. I believe the complexity of the law is a very important topic. For my two cents please see “Measuring the Complexity of the Law : The United States Code”

http://computationallegalstudies.com/2010/08/02/measuring-the-complexity-of-the-law-the-united-states-code/

This post relates to this paper:

“A Mathematical Approach to the Study of the United States Code”

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1578094

Posted by: Daniel Katz | Aug 3, 2010 1:27:14 AM

Yes, the law is complex, as I know first hand in the course of over 50 years of practice. Perhaps the complexity was always there, but what seemed fairly simple to me back in 1954 turned out, fairly quickly, to be complex in actual practice, a complexity that perhaps law schools did not then, or perhaps even now, impress upon students. Back in 1954, law texts often used black letter law that the student generally retained, perhaps ignoring the follow up text with nuances and gray areas. (I taught a shareholders/corporate tax law course for 7 years beginning in the mid 1970s in a graduate tax program. The first day I would tell my students that I took my first federal tax course in 1953, which was followed the next year with the 1954 Code; then I would recite the important tax laws enacted thereafter, often including the word reform in the titles. Many more tax laws were enacted after I stopped teaching. Tax law is only one aspect of law and it is quite complex. So are many other areas of the law.)

Despite the complexity, when it comes to litigation, competent counsel in adversary proceedings could simplify the issues to be determined by the court if they chose to do so. But the adversary process often results in foot-dragging because it may benefit a client. One attorney may wish to try a case fairly promptly. An opposing attorney may, to benefit his/her client (for various reason), wish to have the case drag on. Rules of Civil Procedure can narrow the issues but this can take an inordinate amount of time.

Perhaps if litigating attorneys took seriously the concept that they are “officers of the court” and have a gatekeeping role, they might on their own fairly promptly narrow the issues to accommodate a fairly quick and fair trial. Alas, the interests of clients in litigation differ and their attorneys have to accommodate their clients; after all, clients are the sources of attorneys’ incomes. So what is complex about the law becomes even more complex, because that is the way of the adversary system, as attorneys look for and take advantage of loopholes in the law. It’s a living.

Posted by: Shag from Brookline | Jul 30, 2010 7:47:06 AM

Let me add a couple of cites, while I’m at it: R. George Wright, The Illusion of Simplicity: An Explanation of Why the Law Can’t Just Be Less Complex, 27 Fla. St. U. L. Rev. 715 (2000); Eric W. Orts, Simple Rules and the Perils of Reductionist Legal Thought, 75 B.U. L. Rev. 1441 (1995); and Peter H. Shuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 Duke L.J. 1 (1992).

Posted by: Paul Horwitz | Jul 29, 2010 9:39:10 PM

Anon: fair point. I don’t think it’s dispositive of anything here, but it’s a good reminder to those of us who tend to take our WL access for granted.

Posted by: Paul Horwitz | Jul 29, 2010 8:17:07 PM

“For all its flaws, Westlaw makes it much easier to marshal effective legal resources, even in a complex and law-filled world.”

For those legal practitioners who can afford Westlaw.

Posted by: anon | Jul 29, 2010 7:41:13 PM

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it’s not there. It’s so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

A mighty swamp is our law. (Image: Nat’l Park Service)

I know – it’s not news. But that’s the rub. The shadow cast by this cloud is so vast that our eyes adjust to the darkness. Several aspects of the Big Problem are shocking to 1Ls and stub-year associates. But eventually, we all become desensitized. Nonetheless, the legal profession ought to take a hard look at the ugliness. If we cared to do something about it, I think we could.

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

Why is this so? The basic features of our courts, our procedural law, and our means of recording and organizing substantive law were designed in an era of quill and parchment. And the biggest changes since then arose in an era of typewriters – before there were photocopiers, even. Since that time, an explosion in population, technology, and wealth has overwhelmed the law’s operating system. It’s like trying to run new, bulky software on a really old computer. It’s slow as heck.

To appreciate the absurdity of the burden we’ve imposed upon ourselves, it’s helpful to get some context. Let’s compare civil litigation to health care. A medical problem costs nearly the same amount to treat for a rich person as it does for a poor person. Sure, there are always more tests you can run, wallet willing. But in health care, the key variable is the disease.

That’s not true at all for civil litigation. The key variable in a lawsuit is the amount of money at stake. The exact same ambiguous contractual language could cost mere hundreds of dollars to litigate or well into the tens of millions. If you think about it, that’s crazy. The cost of a civil dispute scales directly with the dollar amount on the line. That’s why plaintiffs’ lawyers can sensibly charge straight percentages of a contingent recovery. The mathematical relation is bankably certain.

Sadly, to the extent anyone has tried a real game-changer here, it has been binding arbitration. Instead of trying to fix our courts, whole sectors of industry are just doing without. And that turns out to be very undesirable for a lot of reasons – at least in my opinion, and I know many agree. With arbitration, particularly when it comes to consumers, convenience is often obtained at the price of fairness.

For all the codes and rules and hortatory language of “professional responsibility,” our profession ought to take responsibility for the law as a whole – and the mighty swamp we’ve made of it.

Posted by Eric E. Johnson on July 28, 2010 at 06:18 PM

Comments

I have been saying for awhile in relationship to the rise of Donald Trump to the Presidency in the 2016 election (independent of this article) that “corruption in Washington DC” is NOT “the swamp” that must be drained. What should be “drained”, which has been my contention, is the number of laws / regulations that we have in this country. THIS is what must be DRASTICALLY REDUCED.

In this regard, I hearken back to the words of JESUS CHRIST and His “other” commentary on the law (which is not his commentary on Roman law — Matthew 22:21, Luke 20:25, Mark 12:17. which should be read in the context of Psalm 24:1 which implies that NOTHING BELONGS TO CAESAR). i refer, instead to His commentary on the Old Testament Law of God in Matthew 22:36 in which He responded to the following question, ” 36 “Teacher, which is the greatest commandment in the Law?”

37 Jesus replied: “‘Love the Lord your God with all your heart and with all your soul and with all your mind.’[a] 38 This is the first and greatest commandment. 39 And the second is like it: ‘Love your neighbor as yourself.’[b] 40 All the Law and the Prophets hang on these two commandments.”

In other words, a case can be made that a God-worshiping people need but TWO LAWS (with the rest of them being either commentary, superfluous, contrary to God’s Law, or actually derivable from these two laws). Could you imagine how EASY legal study would suddenly be if THESE TWO LAWS were the totality of the law (while Godly commentary was the rest)? Almost ANYONE could be a ‘lawyer’ under these circumstances (and it would appear that the God of the Bible wanted it this way so that no one would perish for lack of [legal] knowledge’ however, see Hosea 4:6 for the converse of this: “My people are destroyed for lack of knowledge: because thou hast rejected knowledge, I will also reject thee, that thou shalt be no priest to me: seeing thou hast forgotten the law of thy God, I will also forget thy children.” Doesn’t this state of things describe today’s AMERICA???? What do you think????

Footnotes:

a) Matthew 22:37 Deut. 6:5 b) Matthew 22:39 Lev. 19:18

New International Version (NIV)

Holy Bible, New International Version®, NIV® Copyright ©1973, 1978, 1984, 2011 by Biblica, Inc.® Used by permission. All rights reserved worldwide. From http://www.biblegateway.com.

Posted by: Shawn Fahrer | May 21, 2017 12:15:22 AM

I have been saying for awhile in relationship to the rise of Donald Trump to the Presidency in the 2016 election (independent of this article) that “corruption in Washington DC” is NOT “the swamp” that must be drained. What should be “drained”, which has been my contention, is the number of laws / regulations that we have in this country. THIS is what must be DRASTICALLY REDUCED.

In this regard, I hearken back to the words of JESUS CHRIST and His “other” commentary on the law (which is not his commentary on Roman law — Matthew 22:21, Luke 20:25, Mark 12:17. which should be read in the context of Psalm 24:1 which implies that NOTHING BELONGS TO CAESAR). i refer, instead to His commentary on the Old Testament Law of God in Matthew 22:36 in which He responded to the following question, ” 36 “Teacher, which is the greatest commandment in the Law?”

37 Jesus replied: “‘Love the Lord your God with all your heart and with all your soul and with all your mind.’[a] 38 This is the first and greatest commandment. 39 And the second is like it: ‘Love your neighbor as yourself.’[b] 40 All the Law and the Prophets hang on these two commandments.”

In other words, a case can be made that a God-worshiping people need but TWO LAWS (with the rest of them being either commentary, superfluous, contrary to God’s Law, or actually derivable from these two laws). Could you imagine how EASY legal study would suddenly be if THESE TWO LAWS were the totality of the law (while Godly commentary was the rest)? Almost ANYONE could be a ‘lawyer’ under these circumstances (and it would appear that the God of the Bible wanted it this way so that no one would perish for lack of [legal] knowledge’ however, see Hosea 4:6 for the converse of this: “My people are destroyed for lack of knowledge: because thou hast rejected knowledge, I will also reject thee, that thou shalt be no priest to me: seeing thou hast forgotten the law of thy God, I will also forget thy children.” Doesn’t this state of things describe today’s AMERICA???? What do you think????

Footnotes:

a) Matthew 22:37 Deut. 6:5 b) Matthew 22:39 Lev. 19:18

New International Version (NIV)

Holy Bible, New International Version®, NIV® Copyright ©1973, 1978, 1984, 2011 by Biblica, Inc.® Used by permission. All rights reserved worldwide. From http://www.biblegateway.com.

Posted by: Shawn Fahrer | May 21, 2017 12:15:22 AM

Paul

I think that, as a generalization and over a long period of time (I’m thinking of the past century or so), we have moved to doctrine that attempts to consider more, rather than fewer, factors. I do agree that this is not across the board but my sense is that it has occurred in those areas of the law that are most likely to involve average citizens (e.g., not constitutional law).

That is not to say that this is a bad thing. Indeed your observation that the phenomenom (when it occurs) may be driven by a complexity in human affairs that pushes against the sustainability of a simple set of clear and determinate rules is well taken.

My point is more narrow. It is simply to suggest that this is one of the things (but not the only thing) that makes the resolution of lower dollar disputes less predictable and more expensive. The effect of this is often to let the loss remain where it falls and that problem is what I thought Eric was trying to get at.

Posted by: Rick Esenberg | Jul 29, 2010 11:29:04 PM

Rick, of course I’ve written my own post about these issues, but I’ll note quickly that in my view neither rules nor standards are on the rise across the board in the law — not that you’ve said otherwise, but your comment could be read as suggesting that the law has broadly moved from rules to standards. In many respects much legal doctrine that once might have been either standard-based or simply underdetermined is now governed by a set of ostensibly clear rules; this includes some of constitutional law, for instance. In other areas it has become more standard-based. In either case, whether one approach or the other works better or leads to greater predictability will depend on a variety of factors. A set of clear rules might seem to promise predictability, but if the area of human activity they regulate is sufficiently complex, then those rules will quickly either proliferate and become unpredictable for that reason, or turn into standards, or stay the same but fail to regulate that activity effectively.

Posted by: Paul Horwitz | Jul 29, 2010 9:31:52 PM

If there is a problem, it might be that legal problems that don’t involve a great deal of money are not commensurately less expensive to litigate than those that do. Part of that problem is not the archaic nature of the law but its development away from relatively straight forward rules toward less precise (but more flexible) standards. This makes outcomes harder to predict.

It may be that the health care model – where the disease controls the cost is ill suited for legal disputes that, at the end of the day, are about money. Binding arbitration is supposed to streamline the process (although, in high stakes cases, it really doesn’t), but maybe the challenge is to imagine modified rules and processes for disputes that can’t bear the cost of litigation under our current way of doing things. Small claims court is a way to do this for very low dollar cases, but maybe we need Intermediate Claims courts.

Posted by: Rick Esenberg | Jul 28, 2010 11:14:17 PM

I mostly agree with Marc.

Posted by: Orin Kerr | Jul 28, 2010 10:28:33 PM

I agree that (our) law is complex. But I don’t understand the rest of the post. Is it that complexity is bad because it’s inefficient and/or costly? Or because it’s descended from old stuff that hasn’t kept up with the typewriter and the garbage disposal (and if so, why aren’t they bad, rather than law?). Or because simplicity is a supreme virtue and the legal profession ought to mobilize to realize it? If any of these three, I disagree across the board. If our law is a swamp, that’s largely because we are swamp creatures.

Posted by: Marc DeGirolami | Jul 28, 2010 9:09:02 PM

Indeed. A mighty fortress is our law.

Posted by: Jon | Jul 28, 2010 8:16:52 PM

One man’s “mighty swamp” is another scholar’s meal ticket!

Someone needs to teach new law students how to navigate the swamp… more tenured jobs at law schools with nice salaries, job security, and academic freedom.

The more exclusive the swamp, the more difficult it is to be a lawyer… thus decreasing the supply of legal services and hence increasing lawyer’s wages.

Everyone in the legal profession stands to benefit from the “mighty swamp.” So of course there’s third party arbitration… the legal profession is a racket! If we’re going to be screwed either way, we might as well cut out the middleman…

Posted by: James | Jul 28, 2010 6:25:53 PM

I saw an interesting article out of Ft. Wayne, Indiana today about K-2, a synthetic herb that is sold for aromatherapy purposes and as incense but is also “marketed” to teens as a way to get high (supposedly it has marijuana-like side effects–but see below–and has a much more powerful high than THC, marijuana’s active ingredient). K-2 was originally created in 1995 by a chemistry professor named John Huffman, for the potential treatment of nausea and glaucoma and as an appetite stimulant. The recipe for Huffman’s compoud was allegedly published in a scientific journal, where manufacturers in Korea and China adapted it and turned it into a liquid that is sprayed onto a herbal blend. The creator of the active ingredient used in K2 warns that side effects can include hallucinations and delusions, elevated blood pressure, vomiting and even seizures. These side effects are not typical for marijuana users.

K-2 is banned in most of Europe. Some states such as Iowa, Missouri, Kansas, and Kentucky have banned the substance. Legislation is pending in Alabama, Georgia, Missouri, and Tennessee, and Illinois, Louisiana, Michigan, New Jersey, and New York are considering bills to outlaw K-2. It is still legal in other states, including Indiana. Ft. Wayne is considering a bill to ban the sale and use of this substance; it is currently sold in several local gas stations and is sold as incense. Stores in Texas and Oklahoma, however, only sell to patrons over 18.

Opponents are saying that K-2 is a safe alternative to alcohol. Last month, however, someone crashed his car into a private home after smoking K-2 and said that he saw a “3-D cartoonish character” before the accident.

It seems a “no-brainer” to me that if marijuana is illegal, then synthetic substitutes for it should be as well. It’s strange to look at these issues from a parent’s perspective–I’m glad my kids are all under the age of 3 (one of the few contexts in which I can say that!).

Posted by Jody Madeira on July 28, 2010 at 01:39 PM

Comments

Thanks for the helpful link, James. I do agree with you that we are only now starting to unravel the agendas of fear and claims-making behind the “war on drugs”–but it is proving difficult to unravel them completely because, as you say, they are intertwined with racial and socioeconomic biases (the crack scare comes to mind). They are now part of popular culture.

I certainly didn’t intend those sorts of connections through my anecdote of the guy getting into the accident–I meant it a comment that perhaps the K-2/alcohol analogy is more complex than many K-2 proponents have asserted. As you point out, using them to begin with might be inviting somewhat of a slippery slope. I think, however, that the larger problem is how one argues against them. I’ve been looking at other types of coverage on K-2, and it’s interesting that news articles most often report by pitting anecdotes against one another–one guy say hallucinations, while another merely got hungry. It sort of devolves into a “did not…did so” type of banter. And yet, we keep indulging in it.

It will be interesting to see whether states critically evaluate the harmful potential of K-2 or simply criminalize it on the basis of its similarities to marijuana. I’m betting on the latter, because of the hold that the “war on drugs” still has upon our politicians, who see it as a part of their “tough on crime” stance. That’s part of what I meant by “no-brainer.” The other part was most certainly my personal reaction that some sort of action needs to be taken on it. I personally think K-2 sounds more troublesome than marijuana; it seems that there are many “imposter” substances out there, and those forms could have worse side effects than normal.

Posted by: Jody | Jul 31, 2010 1:38:22 AM

“So perhaps many stories consist of “bullshit”–but what exactly are “real facts” or “evidence”? Objectivity itself is a social construction. “Real facts” or “evidence” are concepts that need to be interrogated and evaluated in the same critical manner as we evaluate anecdotes and determine whether they are credible or not.”

…Okay then… I guess no one can really argue with that…

Evaluating our stories, sense-making, or whatever you want to call it is fine. I’ve certainly been critical of your postings. But for what it’s worth, this is a serious issue on which there has been serious discussion and even some scholarship. As I mentioned earlier, a casualty of the War on Drugs is that such discussion and scholarship is chilled at best and censored at worst.

I am coming down a bit hard on anecdotes, I’ll admit that. But there’s a reason for that. You mentioned that you were “curious as to whether or why there’s been groundswells in some areas but not in others.” This reminded me of a post on EconLog by David Henderson (link: http://econlog.econlib.org/archives/2010/07/some_simple_ana.html). It was about Joe McNamara, a former police chief in Kansas City and San Jose. McNamara was also a student of sociology who did his dissertation on the origins of the drug war.

His conclusion, according to Henderson, “was that there was not some major outbreak of drug problems that led to illegalization.” That’s because we’re not making these decisions based on sound facts and arguments. We’re making them based on anecdotes, and we have been for the last 80 years. The use of anecdotal evidence allows for all types of distortions, inaccuracies, and biases. For one, racial biases — many sociological interpretations of the beginnings of the drug war pin “why it caught on in some places but not in others” to the varying degrees of racial hatred and oppression in those areas.

From your original post:

“Some states such as Iowa, Missouri, Kansas, and Kentucky have banned the substance. Legislation is pending in Alabama, Georgia, Missouri, and Tennessee, and Illinois, Louisiana, Michigan, New Jersey, and New York are considering bills to outlaw K-2.”

Seems like most of these states are in the Deep South. Hmmmmm.

Posted by: James | Jul 28, 2010 6:18:56 PM

I agree there are certainly better methods of proof than anecdotes, but this does not stop us from using them freely and frequently througout each day. Swapping stories with one another is one of our primary means of sense-making. So perhaps many stories consist of “bullshit”–but what exactly are “real facts” or “evidence”? Objectivity itself is a social construction. “Real facts” or “evidence” are concepts that need to be interrogated and evaluated in the same critical manner as we evaluate anecdotes and determine whether they are credible or not.

I do agree that the analogies between K-2 and marijuana or alcohol may be helpful, but the anecdote about the guy who smoked K-2 and hallucinated before his accident is actually very relevant to the analogy between K-2 and alcohol. It helps shed light on whether the side effects of the two substances are similar. Incidentally, nearly all of the information on K-2’s side effects begin as anecdotal evidence; the difference is that people report them to doctors compiling lists of symptoms and not the media reporting a story.

There was absolutely a normative bent to the article as well…I’m glad that I don’t have to worry about teenagers purchasing “incense.” Whether or not these substances are regulated, criminalized or simply left alone, their use–particularly by children–does merit concern.

Posted by: Jody | Jul 28, 2010 5:55:04 PM

“Anecdotes have always been traditional methods of proof and sense-making; in the absence of studies on K-2’s effects, anecdotes are particularly compelling.”

Anecdotes have always been traditional methods of bullshitting, in the absence of real facts or evidence.

I guess you’ll have to forgive me for interpreting a normative bent to the article. “I’m glad my kids are under 3” sounds a lot like “Won’t anyone think of the children!?”

As for why K-2 is analogized to marijuana or alcohol, I’d say that such analogies are a better form of “proof and sense-making” than anecdotal evidence. Analogies allow us, by isolating similarities and differences of this substance to other less controversial substances, to isolate the issues at stake. Sort of similar to legal reasoning, really…

Posted by: James | Jul 28, 2010 5:28:36 PM

Ah–but I did not intend my post to open up the debate on criminalizing marijuana, or K-2, or any such substance; merely to question why it had not already been criminalized. Thanks to the “war on drugs” culture, lawmakers tend to react very quickly to respond to constituent concerns on these types of issues. I’m curious as to whether or why there’s been groundswells in some areas but not in others.

I think that there is little doubt that K-2 is harmful–it certainly does not sound that good for you. Then again, alcohol, cigarettes and other legal substances are harmful in many senses but they are still legalized. The difference between K-2 and alcohol/cigarettes is that the media is analogizing it to “marijuana”, implicitly labelling it as belonging in the “illegal substance” category. I’m always curious why substances such as K-2 have to be analogized to either marijuana or alcohol. Why can’t it be its own thing?

Following up on this point, the anecdote about the car crash underscores the fact that K-2 does not appear to be a particularly safe alternative to alcohol. Anecdotes have always been traditional methods of proof and sense-making; in the absence of studies on K-2’s effects, anecdotes are particularly compelling.

Posted by: Jody | Jul 28, 2010 5:07:03 PM

“It seems a “no-brainer” to me that if marijuana is illegal, then synthetic substitutes for it should be as well.”

This type of thinking is a good example of another incidental cost of the War on Drugs. Instead of having a rational debate on criminalizing the substance, we unthinkingly ban it in order to be consistent with prior declarations. Never mind that the policies we are trying to be consistent with are totally wrong-headed. Never mind that we don’t really know if the substance really is all that harmful (or if it is, whether or not it could be regulated instead of criminalized). These options (even these discussions) are off the table, because “if marijuana is illegal, this must be illegal.”

“Last month, however, someone crashed his car into a private home after smoking K-2 and said that he saw a “3-D cartoonish character” before the accident.”

I understand that this is the Internet, but if you’re just going to spout anecdotes, why even bother to waste your time writing on a blog?

Posted by: James | Jul 28, 2010 4:29:13 PM

I’m going to follow Paul Horwitz’s lead and mix resources with opinion. This is simply one person’s view; reasonable minds may differ and I invite debate!

1. Four credits or six credits (and other issues of coverage)?

The most fundamental question facing a new contracts teacher is whether he or she needs to plan a six-credit course (i.e., two three-credit courses spanning the entire first year) or a single semester four-credit course. Most of the casebook teachers’ manuals will suggest syllabi for either; the one casebook of which I’m aware designed specifically for a four-credit is Frier and White, The Modern Law of Contracts. (That teachers’ manual also has the added benefit of an analysis I wrote of Richard Posner’s opinion on liquidated damages in Lake River v. Carborundum.)

The fundamental units of contract law pedagogy run something like this:

– Legal enforceability of private promises (promises, objective theory of contract, consideration, promissory estoppel, quasi-contract)

– Contract creation (offer and acceptance, reliance, electronic contracting)

– Contract performance and interpretation (parol evidence, implied terms)

– Defenses (statute of frauds, unconscionability, duress, mistake, impossibility and frustration)

– Breach

– Remedies

I’m not a coverage junkie, but even in a four-credit course, I’d try to make sure I did something in each of those units; depending on how fast you traverse the material, in a six-credit course you could even get to assignment and third party beneficiaries.

2. Consideration or remedies first?

The basic dichotomy in teaching contracts (and hence the approach of the casebooks) is whether you teach “legal enforceability” or “remedies” first. This is right up there with other crucial decisions like “paper or plastic.” There’s a rationale for each: teaching consideration first appeals to the theorists because it plumbs the question why and under what circumstances the state gets involved in enforcing promises at all. Teaching remedies first highlights the different aims of contract law – reliance interests, expectation interests, and restitution interests. Some of the most popular casebooks (Knapp, Crystal, and Prince, for example) take the former approach; the latter approach is classically Kingsfield because you start with cases like Hawkins v. McGee (what is the value of a good hand?) or Groves v. John Wunder (do you measure damages by the actual harm to the non-breaching party or by the literal terms of the contract?)

3. How much UCC and CISG?

This probably depends in part on whether you have a four-credit or six-credit course, and whether your curriculum (like Tulane’s, for example) explicitly calls for teaching the UCC either in the second semester of the first year or as an upper level course. This is a matter of personal preference; there are some contracts professors who eschew much of “classical” contract law in favor of the UCC, even in the regular contracts class. I think there are some pieces of the UCC that you almost have to teach, like the battle of the forms under 2-207 (particularly as it now applies to shrink wrap or electronic contracting).

I’m going to go public and say that teaching the U.N. Convention on the International Sale of Goods (the international equivalent of the UCC) is, in my view, a “nice to do” but not a “gotta do.” This is a somewhat politically incorrect view.

4. How much real world?

I’m also willing to go on record (having done it already) to say that nothing highlights the tension between the legal academy and the practicing profession as much as the subject of contract law. You can graduate from law school and actually use the doctrine you learn in torts, civil procedure, criminal law, etc. That is far less true of contracts. First, contract law as taught is really about contract litigation, not contract creation. Moreover, you can go thirty years in practice and never see a case or a transaction that invokes the law of consideration, offer and acceptance, duress, etc. I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world. (See my article Models & Games, for example.) Although there are some admirable casebooks out there that attempt to do so (e.g. Epstein, Markell, & Ponoroff, Making and Doing Deals), my concern is that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons). You don’t really teach the business world, and you don’t really teach traditional doctrine. No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn’t bother with most of contract law as we presently teach it. Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.

I do not have a good answer for this. My inclination still is to disabuse students of the idea that what they are learning maps on the real world. It is more helpful to think of contract law as the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says “what you are about to learn is a particular way of modeling human interaction.” Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No – an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

Having said that, particularly if you have the luxury of a six-credit course, interjecting classroom exercises that tie to the doctrine seems like a really good idea. There is a burgeoning industry in such exercises; see Resources below.

5. Resources

– Sign onto the list serv of the AALS Section on Contracts. Carol Chomsky at the University of Minnesota is the list serv administrator.

– Make sure that you are on the desk copy mailing list for contract law materials at Thomson West (West and Foundation Press), LexisNexis, and Aspen. You can only use one casebook, but the other books are rich with resources.

– Get the RSS feed for the ContractsProf Blog, edited by Frank Snyder at Texas Wesleyan, and ably assisted by Miriam Cherry (McGeorge), Meredith Miller (Touro), Keith Rowley (UNLV), and Jeremy Telman (Valparaiso).

– Immediately find out who Tina Stark (Emory) is, and why she is one of the most forward-thinking and innovative transactional law teachers in the country. Get yourself access to the Emory Exchange for Transactional Training Materials, which includes tips for integrating real world situations into the first year contracts course.

– The Legal Information Institute of the Cornell Law School maintains an online and cross-linked version of the UCC. (Note: the Cornell license doesn’t include the comments so you have to get them elsewhere).

– The Pace Law maintains an online full text version of the United Nations Convention on the International Sale of Goods.

– Order a copy of Contract Stories, edited by my classmate Douglas Baird (Chicago), which contains essays providing the context of many of the chestnut cases.

– Attend the annual Spring Contracts Conference, an event instituted by a group of committed contracts professors, including Frank Snyder and Keith Rowley. I don’t have a link for the upcoming conference to be held February18-19, 2011 at Stetson University (perhaps somebody can provide a link in the comments).

– Plan to attend Suffolk University Law School’s March 25, 2011 daylong symposium in Boston to mark the thirtieth anniversary of the publication of Charles Fried’s iconic “Contract as Promise. After reflections from Professor Fried, some of the academy’s foremost contract theorists will offer papers and commentary, with ample opportunity for questions and discussion. Participants presently scheduled include the Honorable Richard Posner, Randy Barnett, Barbara Fried, T.M. Scanlon, Jean Braucher, Richard Craswell, Avery Katz, Henry Smith, Lisa Bernstein, Seana Shiffrin, Daniel Markovits, Juliet Kostritsky, John C.P. Goldberg, Rachel Arnow-Richman, Curtis Bridgeman, Nathan Oman, Roy Kreitner, Gregory Klass, Carol Chomsky, Jody Kraus, Alan Schwartz, and Robert Scott.

– You may or may not want to get familiar with some of the supplements. Brian Blum’s Examples and Explanations (Aspen) is very popular. Keith Rowley’s Questions and Answers: Contracts (LexisNexis) has lots of multiple-choice questions. I know there are lots of other good ones, and invite recommendations in the comments. (I try to keep an arm’s-length relationship with the supplements, mainly because I don’t want to have to try to explain what another professor means about a subject in addition to what I and my casebook are saying.) One huge benefit of getting on the desk copy mailing list is that you get these resources as well.

– One of the most helpful things for me was the session at the AALS Workshop for New Law Teachers on pedagogical methods other than Socratic or lecture (e.g., brainstorming or “pair-square-share).

Posted by Administrators on July 28, 2010 at 11:53 AM

Comments

The link to the Contracts Conference at Stetson on February 18th and 19th (formally the 6th Annual International Conference on Contracts), co-sponsored by Stetson and Texas Wesleyan, is http://www.law.stetson.edu/conferences/contracts.

Posted by: Jamie Fox | Dec 21, 2010 6:48:28 PM

I didn’t want to get into the business of evaluating casebooks, but on the subject of Point 4, the brand new book “Contracts: A Contemporary Approach” in the West Interactive Casebook Series, by Christina Kunz and Carol Chomsky, is worth taking a look at!

Posted by: Jeff Lipshaw | Jul 28, 2010 12:47:48 PM