Archive for the ‘Articles and Books’ Category
Lawrence Friedman and the History of Privacy
posted by Neil Richards
I recently uploaded to SSRN a short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy (Stanford 2007). No book is perfect, but this one is probably the best book on the history of privacy law that I have read.
Here’s the abstract of my review:
A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic – a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.
May 7, 2009 at 8:42 am
Posted in: Articles and Books, Book Reviews, Cyberlaw, History of Law, Law and Humanities, Privacy
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Privilege or Punish: Criminal Justice and the Challenge of Family Ties
posted by Jennifer Collins
I am really happy to announce that my book with Dan Markel and Ethan Leib, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is now officially out and available at Amazon and at Oxford University Press’s website. If you are interested in obtaining a copy at a discount from the quite high cover price (the high price of law books is a topic for a blog post in itself!), check out Dan’s post on Prawfs about the book for some suggestions.
In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn. Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. We will have more info on these panels and discussions in the coming weeks. There are many people who helped make this book possible, and we are profoundly grateful for their assistance and encouragement. I also want to give a shout-out to my wonderful co-authors Dan and Ethan — working with them on this project has truly been an amazing experience (indeed, the benefits of co-authoring can be the subject for yet another blog post!)
April 28, 2009 at 12:00 pm
Posted in: Articles and Books
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Lessons from the Identity Trail
posted by Daniel Solove
There’s a terrific new book of essays about privacy out from Oxford University Press — LESSONS FROM THE IDENTITY TRAIL: ANONYMITY, PRIVACY AND IDENTITY IN A NETWORKED SOCIETY (Oxford University Press 2009). It’s edited by Ian Kerr, Valerie Steeves, and Carole Lucock. The essays are fascinating and are written by a number of very prominent privacy scholars. Highly recommended!
The book is available free for download under a Creative Commons license. One third of the essays are now posted online. The rest will become available in two more stages — on April 22th and May 6th. This is the first book to be published by Oxford University Press under a Creative Commons license.
The book is available on Amazon.com or on our special Concurring Opinions Oxford University Press promo page for 20% off.
Here’s the table of contents:
April 8, 2009 at 10:01 pm
Posted in: Anonymity, Articles and Books, Book Reviews, Privacy, Privacy (Consumer Privacy), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (Medical)
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John Bingham
posted by Gerard Magliocca
After I finish my book on Populist and Progressive era constitutionalism, my next book will be a biography of John Bingham (1815-1900), the principal drafter of Section One of the Fourteenth Amendment. It’s a bit daunting, as I’ve never written a biography before and much of the relevant material is scattered around the country. Nevertheless, given his importance (Hugo Black called Bingham the “James Madison of the Fourteenth Amendment”), he really deserves a full-fledged biography (not to mention an HBO miniseries, if anyone wants to buy the rights from me). There was one written by Erving Beauregard about twenty years ago, but it is pretty obscure and was based on an inaccurate view of Bingham’s role that dates back to Charles Fairman’s flawed scholarship in the 1940s.
April 8, 2009 at 12:45 pm
Posted in: Articles and Books, History of Law
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Rent-seeking in Fantasy World
posted by Dave Hoffman
Last week, Josh Marshall at TPM had a great post about the future of books in the post-Kindle world. After a generally positive review of the gadget, Josh wrote:
[L]ast night, sitting in front of [my books], I had this dark epiphany. How much longer are these things going to be around? . . . The few hundred or so I was looking at suddenly seemed like they were taking up an awful lot of space, like the whole business could dealt with a lot more cleanly and efficiently, if at some moral loss.Don’t get me wrong. Book books still have some clear advantages. Kindle is a disaster with pictures and maps. But I didn’t realize the book might move so rapidly into the realm of endangered modes of distributing the written word. I was thinking maybe decades more. The book is so tactile and personal and much less ephemeral than the sort of stuff we read online.
I hope it’s clear that I don’t view this as a good thing or something I welcome. When I had the realization I described above it felt like a sock in the gut, if perhaps a fillip on the interior decorating front. All the business model and joblessnes stuff aside, that’s how I feel about physical newspapers too. There’s a lot I miss about print newspapers, particularly the serendipitous magic of finding stories adjacent to the one you’re reading, articles you’re deeply interested in but never would have known you were if it weren’t plopped down in front of you to pull you in through your peripheral vision. Yet at this point I probably read a print newspaper only a handful of times a year.
I don’t have a Kindle, but I’ve been thinking about this passage over the last week. It’s certainly true that there’s something reassuring about having lots of books in a room, but I suspect Josh is right that their day is ending. And this is probably for the best. My books weigh me down: they make me less flexible about traveling, they take up space in the house, they are hugely expensive, and they are inefficient.
Consider as an illustrative example Tor Book’s decision to split the final volume of Robert Jordan’s fantasy series into three books, to be released over time, presumably in hard- and soft-covers, followed by a definitive volume reintegrating them. Tor’s stated reason is that the final book has become too big to bind. (And the author of the book, who took over when Jordan died, offers his own self-serving justification here.) But it’s obvious (to me, at least) that Tor is simply seeking to extract more rent from fans of the series, who, having waited for years for the final installment of the series, and invested the time reading the eleven books to date, are now as captive an audience as you’re likely to see. Thankfully, his kind of behavior would be much more difficult to justify in a world of digital books. Bring on the revolution.
April 6, 2009 at 1:25 pm
Posted in: Articles and Books, Intellectual Property, Science Fiction
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The Bard of the Financial Crisis
posted by Nate Oman
Over the weekend, I re-read A Merchant of Venice, and I was struck by the fact that Shakespeare manages to include in the play virtually every element of the current financial crisis. Scene one begins with a discussion of risk assessment, and Antonio’s belief that he has managed to tame the vagaries of commercial fate through diversification. Asked by Salarino if he “Is sad to think upon his merchandise” (I.i.40), Antonio responds:
Believe me, no. I thank my fortune for it
My ventures are not in one bottom trusted,
Nor to one place; nor is my whole estate
Upon the fortune of this present year.
Therefore my merchandise makes me not sad. (I.i.41-45)
Having ignored the problem of fat tails and black swans, Antonio decides to engage in a bit of dodgy finance. He borrows in the wholesale market from Shylock under terms that appear favorable, but have a huge downside in the unlikely event of his default. Antonio, of course, is unconcerned. From his point of view he is getting cheap money by taking on what seems like an extremely remote risk. He then takes these borrowed funds and uses them to make what can only be described as a no doc, subprime loan. Bassiano wants money for a speculative venture — the wooing “In Belmont [of] a lady richly left” (I.i.161) — and Antonio agrees, in effect renting out his credit rating:
Try what my credit in Venice can do;
That shall be racked even to the uttermost
To furnish thee to Belmont to fair Portia.
Go presently inquire, and so will I,
Where money is; and I no question make
To have it of my trust or for my sake. (I.i.180-185)
Shylock, for his part, does not approve of the loose monetary policy in Venice, which he rightly blames on wild lending practices, such as Antonio’s loans:
How like a fawning publican he looks.I hate him for he is a Christian;
But more, for what is low simplicity,
He lends out money gratis and brings down
The rate of usance here with us in Venice. (I.iii.38-42)
March 24, 2009 at 11:33 am
Posted in: Articles and Books, Bankruptcy, Behavioral Law and Economics, Consumer Protection Law, Contract Law & Beyond, Current Events, History of Law, Humor, Law and Humanities
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Rethinking Free Speech and Civil Liability
posted by Daniel Solove
When does civil liability for speech trigger First Amendment protections?
Recently, Professor Neil Richards and I posted on SSRN our new article exploring this question: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).
Surprising, the issue of when civil liability for speech triggers First Amendment scrutiny is governed by two totally contradictory rules. Since New York Times v. Sullivan, the First Amendment applies to tort liability for speech, including defamation and invasion of privacy.
But in other contexts, the First Amendment does not apply to liability for speech. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules restrict speech.
In a large range of situations, however, these rules collide. Tort, contract, and property law overlap to a substantial degree, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability.
This conflict is vividly illustrated by the law of confidentiality. We pose the following hypothetical in the article:
Suppose an attorney representing a client in a highly-publicized case discloses the client’s confidential information. The client sues under the breach of confidentiality tort. The attorney claims that she was engaging in free speech and that the First Amendment protects her right of expression. Does the Sullivan or Cohen rule apply? One could argue that the Sullivan rule applies because breach of confidentiality is a tort. On the other hand, breach of confidentiality remedies a contract-like harm. Even if never expressed orally or in writing, an implicit agreement exists between the attorney and client that the attorney will maintain the confidentiality of the client’s information. Perhaps this situation should fall under the Cohen rule because the breach of confidentiality claim more closely resembles an action for promissory estoppel rather than an action for public disclosure of private facts. If this were the case, then the First Amendment would not apply.
In our article, we explore how this problem can be resolved. We survey the way that existing doctrine and theories attempt to address the conflict between the Sullivan and Cohen rules, and we demonstrate why such approaches are lacking. We aim to develop a coherent approach for resolving when the First Amendment applies to civil liability for speech. To find out our solution, take a look at our article and let us know what you think.
March 17, 2009 at 11:59 am
Posted in: Articles and Books, Constitutional Law, Contract Law & Beyond, First Amendment, Media Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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What Are You Doing Over Spring Break?
posted by Darian Ibrahim
I’m writing a new article. And having a blast (seriously). It’s a great feeling to hit a groove with a new idea. Hope whatever you’re doing this week or next, you enjoy it.
March 16, 2009 at 10:12 am
Posted in: Articles and Books
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BRIGHT IDEAS: Timothy Zick on Speech Out of Doors
posted by Daniel Solove
Professor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.
SOLOVE: What motivated you to write about the issues in your book?
ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.
SOLOVE: What’s the central idea in your book?
ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.
SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?
January 14, 2009 at 11:29 am
Posted in: Articles and Books, Book Reviews, Bright Ideas, First Amendment
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The Year in Privacy Books: 2008
posted by Daniel Solove
Here’s a list of notable books about information privacy published in 2008. Pick up a few to help stimulate the economy, save the publishing business, and learn more about privacy:
Colin J. Bennett, The Privacy Advocates: Resisting the Spread of Surveillance (MIT Press 2008)
A very informative account of those who work in the privacy advocacy community.
A great collection of essays, from a symposium at Stanford Law School. A bit dated — the symposium was held in 2003 — but still worth reading. I have a piece in the book discussing data security vulnerabilities and the law — originally penned back in 2003, so I can say “told ya so!”
The best and most comprehensive intellectual history of the Fourth Amendment ever written.
Cory Doctorow, Little Brother (Tor Teen 2008)
A contemporary version of Orwell’s 1984 — thought-provoking and engaging fiction, as usual from Doctorow.
December 27, 2008 at 1:54 pm
Posted in: Articles and Books, Book Reviews, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (Law Enforcement), Privacy (National Security)
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William Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791
posted by Daniel Solove
I’m delighted to announce the publication of William J. Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602 – 1791 (Oxford University Press, January 2009). The book has just come out in print, hot off the press, and it’s an absolutely essential volume for any scholar of constitutional history, criminal procedure, or the Fourth Amendment.
Cuddihy’s book is the most comprehensive history of the Fourth Amendment I’ve ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it’s worth every penny.
I first encountered the book as an unpublished manuscript (which was completed over 15 years ago) when I was doing research into the history of the Fourth Amendment. I kept seeing it cited in articles and judicial opinions (it was cited by the U.S. Supreme Court a few times) and so I tracked it down. I couldn’t believe that this detailed, exhaustive, and immensely valuable research had never been published. William Cuddihy wrote it while a doctoral student under the late eminent legal historian Leonard Levy. I contacted Cuddihy and helped him find a publisher. And so I’m delighted that the manuscript is now in print, revised, updated, and with an afterward that responds to scholarship by Akhil Amar and Thomas Davies. I wrote a short preface for the book, in which I conclude:
No other work on the Fourth Amendment has synthesized so many sources, let alone done so as deftly and clearly as Professor Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791. I am very honored to introduce it.
Get your copy today. Tell your librarian to get a copy for your school’s library. It’s truly an impressive book, and is indispensable for anyone who wants to understand the origins of the Fourth Amendment.
December 18, 2008 at 6:41 pm
Posted in: Articles and Books, Book Reviews, Constitutional Law, Criminal Procedure, History of Law, Privacy, Privacy (Law Enforcement)
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Head Counting on the U.S. Courts of Appeals
posted by Robert Ahdieh
Others have already commented on it (here and here), but I wanted to add my belated thoughts on the Wall Street Journal opinion piece on judicial appointments by Steve Calabresi, of some weeks back. In it, Calabresi outlines a true parade of horribles (including “the mass freeing of criminal defendants”) that might befall on the country, if Barack Obama were to win the presidency and make significant appointments to the U.S. Courts of Appeals. (He was writing the week before the election.)
What struck me more than Steve’s enumeration of dangers and threats, however, was an earlier comment in the piece.
After offering an audit of the membership on the D.C. Circuit by appointing president, and suggesting the likelihood that Obama will make a substantial number of appointments to that court, he states:
“The net result is that the legal left will once again have a majority on the nation’s most important regulatory court of appeals.”
And he continues, turning to the balance of the courts of appeals:
“The balance will shift as well on almost all of the 12 other federal appeals courts. . . . Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeals.”
I think my legal realist credentials are as good as the next guy, but what are we to make of such talk of “majorities” on the courts of appeals – as measured by the imprecise heuristic of appointing president, no less? Do federal court of appeals judges caucus by party – or even political preferences, for that matter? If so, who is the Democratic whip on the Second Circuit? On the Ninth!?!
I share much of the general sense of doubt about the possibility of judicial dispassion and neutrality, and about the notion of judges as simply “umpires.” I suspect we go much too far, however, in conceptualizing the collective decision-making of the courts of appeals – or even the Supreme Court, I suspect – in terms of voting majorities of one party versus the other.
Such an approach is not merely inaccurate, however, but also harmful to public perception of the courts – and of the law generally. Perhaps especially because it perpetuates itself.
If Steve can tell a story of threatened Democratic majorities on nine of the thirteen courts of appeals, thus, The New York Times can respond in kind, as it did:
“Republican-appointed judges, most of them conservatives, . . . control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit.”
Not too sound too schoolmarm-y about it, but we really shouldn’t be talking this way.
November 21, 2008 at 7:33 am
Posted in: Articles and Books
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“The market and the internet don’t care if you make money.”
posted by Dave Hoffman
Via Andrew Sullivan I came across this really angry comment about the future of book publishing. In it, Seth Godin (Tribes) argues that the book industry needs to adapt – quickly – from being a bunch of people who print and sell books to a group of “marketers and agents and managers and developers of content”. Sounds like a cinch. I wonder why newspapers haven’t thought of that.
Godin continues that maybe publishers should consider selling books for a dollar, because the audience will purchase them at that price, and let authors make money from “bespoke work and appearances and interactions”. (That means, I think, personalized books written on demand for particular groups. I imagine Godin has read The Diamond Age more the once. If you haven’t, you should, even though it retails at $10.20 new.)
I don’t know enough about the economics of the book industry, and I’m trying to learn more. But I wanted to focus for a moment on Godin’s argument (noted in the title to this post) that content providers shouldn’t feel entitled to monetizing their talent, simply because they are creating a product that people want. Very true. That said, it is also worth pointing out that entrepreneurs probably won’t create until they see a path to making a living from their work. The Grateful Dead model – appearances & interactions – appears to me to be an audacious hope, not a business model. Or to put it another way, if I were a budding author reading Godin’s interview, I would put down my pen and go to law school. At least we’ve got a Guild to protect us from the forces of modernization.
(Image Source: Ezra Cornell’s Book, Wikicommons)
November 9, 2008 at 8:00 pm
Posted in: Articles and Books, Cyberlaw, Economic Analysis of Law, Google & Search Engines, Law School
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The Future of Reputation in Paperback
posted by Daniel Solove
I’m very excited to announce that my book, The Future of Reputation: Gossip, Rumor, and Privacy (Yale University Press), is now in paperback. The best price is at Amazon.com. Of course, you can read it for free online — but I know that you really want to have a hard copy.
November 7, 2008 at 10:32 am
Posted in: Articles and Books, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Web 2.0
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The Future of Reputation in Korean
posted by Daniel Solove
Today, I received copies of the Korean translation of my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. The book begins with an incident in Korea — the dog poop girl — so I hope that the book becomes popular there. I have no idea what all the stuff written on the cover says, so if anybody can read Korean, please let me know (click on the image to see a larger version).
August 29, 2008 at 3:57 pm
Posted in: Articles and Books, Book Reviews, Privacy (Gossip & Shaming)
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The End of Privacy?
posted by Daniel Solove
I’ve written an article for the September issue of Scientific American magazine called The End of Privacy? The article is available online here, with a slightly different title: Do Social Networks Bring the End of Privacy?.
The entire issue is devoted to privacy, and there are some other really interesting articles. Here are links to the other articles in the issue:
Whitfield Diffie and Susan Landau, Internet Eavesdropping: A Brave New World of Wiretapping
Steven Ashley, Digital Surveillance: Tools of the Spy Trade
Katherine Albrecht, How RFID Tags Could Be Used to Track Unsuspecting People
Anil K. Jain and Sharath Pankanti, Beyond Fingerprinting: Is Biometrics the Best Bet for Fighting Identity Theft?
Mark A. Rothstein, Tougher Laws Needed to Protect Your Genetic Privacy
Simson L. Garfinkel, Data Fusion: The Ups and Downs of All-Encompassing Digital Profiles
Peter Brown, Privacy in an Age of Terabytes and Terror
Esther Dyson, How Loss of Privacy May Mean Loss of Security
Anna Lysyanskaya, Cryptography: How to Keep Your Secrets Safe
August 20, 2008 at 12:03 am
Posted in: Articles and Books, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Gossip & Shaming)
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Eric Muller on the Lies of Hirabayashi
posted by Daniel Solove
Professor Eric Muller (U. North Carolina School of Law) has posted a new paper, Hirabyashi: The Biggest Lie of the Greatest Generation on SSRN. From the abstract:
This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in the case of Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. While the government’s submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of a Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans. Even more disturbingly, the archival record demonstrates that at the time that Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.
The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the “Oriental” as an invading horde may have overpowered the lawyers’ evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision – which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures – deserves to be installed in the Supreme Court’s Hall of Shame, alongside Korematsu, Dred Scott, and the Court’s other biggest mistakes.
According to Eric’s blog post about his article: “My article documents all of this from primary archival sources, and then goes on to speculate about what might have led Justice Department lawyers to such a large and consequential deception.”
August 19, 2008 at 10:10 pm
Posted in: Articles and Books, Consumer Protection Law, History of Law
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General Georges Doriot as Teacher
posted by Darian Ibrahim
I’m reading Spencer Ante’s interesting new biography of Georges Doriot, who founded the nation’s first venture capital firm, American Research and Development, in Boston in 1946. Doriot immigrated to the U.S. from France in 1921, when he was 21 years old, to attend MIT. On arrival in Cambridge Doriot met the President of Harvard, who convinced him that Harvard Business School was where he belonged, and Doriot promptly enrolled. By age 30, Doriot had become a full professor at HBS. Not bad for a decade’s work.
Doriot loved to teach and was one of HBS’s most popular professors. But he learned there can be too much of a good thing. The HBS Dean at the time (Wallace Donham) recognized Doriot’s talents in the classroom and asked him to take over courses where other professors had proved unpopular. In one passage, Ante writes:
The Dean…told Doroit that there was something amiss with the class on Business Policy, a required second-year, full-year course. Over the past few years, students had complained about several teachers, and had even taken to stamping their feet ‘during lectures they considered boring or irrelevant.’ Like he had done with the class on factory problems, Dean Donham told Doriot to take over the course and recast his Manufacturing lectures as a Business Policy course. Doriot accepted the assignment even though he did not want to teach a required course with an enormous enrollment. His boss was relying on him, and he had to come through.
In a subsequent letter to a friend, Doriot complained of the new arrangement:
I have started teaching. It takes an enormous amount of energy to teach 330 men. Trained teachers having for the past years made a mess of that course, I quite realize that the odds are against me. I shall do my best anyway even if I have to pass out doing it.
Channeling Larry’s post from last week, now that’s a lot of contact hours!
July 8, 2008 at 11:48 am
Posted in: Articles and Books, Law School (Teaching), Teaching
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“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh
posted by Nate Oman
I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.
Where Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.
According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.
June 10, 2008 at 12:37 pm
Posted in: Articles and Books, History of Law, International & Comparative Law, Jurisprudence, Legal Ethics, Legal Theory, Religion
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A Dream Summer Reading List
posted by Dave Hoffman
Which books, lost in history or yet unwritten, would you most like to see released and available for purchase this summer?
I ask in part because I was watching The Name of the Rose recently, with its focus on the (lost) second book of Aristotle’s Poetics on comedy. There are, of course, a ton of books lost in time out there – even a book on lost books. (Be cautioned, however, by the book’s review by Publisher’s Weekly: “Inevitably, the thesis is more charming than the lengthy execution, and one suspects this would have been much more effective in condensed form as a whimsical article in Harper’s or the Atlantic.”)
So what are the books you’d most want to read at the beach or while procrastinating in the office, but can’t? A few of mine are easy – Robert Caro’s LBJ Part IV: The Presidency, and George R. R. Martin’s A Dance With Dragons. But I’d also like to see Bob Clark come out with a new edition of Corporate Law. How about you?
June 4, 2008 at 3:30 pm
Posted in: Articles and Books
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