Archive for the ‘Book Reviews’ Category
posted by Lawrence Cunningham
Berkshire Hathaway used to compile bound volumes of Warren Buffett’s letters to its shareholders but stopped that practice years ago. Only collectors could put their hands on such a thing. Until now. A young fan of the man and company has published a full compilation and put it on sale for $24.50 plus shipping. It is a good service and I am grateful to the fan, Max Olson, for sending me a comp copy (pictured at right; he sent them because I published The Essays of Warren Buffett: Lessons for Corporate America).
Berkshire annual reports of the late 1980s and early 1990s (some pictured at left), all stated that compilations of letters from earlier annual reports, dating to 1977 (also pictured), were available on request from the company without charge. By the mid-1990s demand had begun to rise, prompting a new policy: continuing to offer the historical compilations to shareholders for free, but charging non-shareholders $15 (for production and shipping).
Beginning with the 1997 report, the letters, again dating to 1977, were made freely available on the internet (and they still are there). The two-volume historical compilation remained available, but now at a charge of $30, payable by non-shareholders and shareholders alike (shipping included). In 1999, the printed set became a three-volume issue and the charge was raised to $35 for all.
Those printed volumes have not been available for several years (and I feel lucky to have some in my library). That’s been a relief to staff at Berkshire’s famously minimalist headquarters, a handful of people with no time to process payments and stuff envelopes. It is this lacuna that Max Olson’s alternative fills, a good job, especially at the price of $24.50 (plus shipping). Read the rest of this post »
posted by UCLA Law Review
Volume 60, Discourse
posted by Aaron Saiger
The proximate cause of Danielle’s inviting me to guest-blog at Concurring Opinions was a celebration we had at Fordham of my colleague Robert Kaczorowski‘s publication of “Fordham University School of Law: A History,” the publication of which she had blogged here. The first half the book analyzes decanal administrations prior to those of Dean John Feerick, who remains an illustrious and beloved member of the Fordham faculty. This section of the book is remarkable for being the very opposite of “law porn“: it tells the story of several decades of a law school’s decline. This decline, Kaczorowski convincingly argues, was driven largely by the insatiable voraciousness with which the central university plundered the law school’s revenues (read student tuition) for its own, non-law purposes. Today, we call that plundering the “central services charge.” At many universities, not just my own, central charges are a major driver of law school costs.
The central services charge is related to the explosive growth of the administrative sector within universities. Read the rest of this post »
posted by Aaron Saiger
This post is a nerd crowdsourcing request. As a guest blogger I don’t know my audience as well as I might, but I am heartened by the presence of “science fiction” among the options my hosts give me for categorizing my posts; and my teenager assures me that “nerd” is a compliment.
As several of my earlier posts suggest, I am interested in the impact of virtual technology upon K-12 schooling; and one thing I have been doing in my spare time is looking at literary accounts, highbrow and low, of what schooling in the future might look like. A colleague gave me Ernest Kline’s recent Ready Player One, which imagines school in a fully virtualized world that looks a lot like the school I went to, complete with hallways, bullies, and truant teachers – but the software allows the students to mute their fellows and censors student obscenity before it reaches the teachers’ interfaces. Another colleague reminded me of Asimov’s 1951 The Fun They Had, where the teacher is mechanical but the students still wiggly and apathetic. On the back of a public swapshelf, I found the Julian May 1987 Galactic Milieu series, which imagines brilliant children, all alone on faraway planets, logging on with singleminded seriousness to do their schoolwork all by their lonesomes. And my daughter gave me Orson Scott Card’s famous Ender’s Game, where the bullying is more educative than the mathematics, and scripted by the adults much more carefully.
That seems like an extensive list but really it’s not, and I was never a serious sci-fi person. If anyone is willing to post in the comments any striking literary accounts of schooling in the future, I’d be grateful.
posted by Lawrence Cunningham
The illness [bad book reviews by bad reviewers] erupted in January when amateurs attacked Randall Sullivan’s biography of Michael Jackson with a campaign of negative 1-star reviews on amazon. It spread to the professional class last month with illiterate attacks on Sheryl Sanbderg’s book “Lean In” run in Forbes and the New Republic. Amid the epidemic, the Columbia Journalism Review’s Ryan Chittum now denigrates books after reading reviews written by non-readers.
Bad book reviews thus must be taken with a grain of salt these days. Especially for books addressing controversial topics, “reviewers” reflect what they believe about the topic. They do not engage with the substance of the book author’s argument or the content of her book.
It is easy to spot some such faux reviews, broadcast by inane headlines favored by the 1-star posters at amazon. But the more sophisticated versions are harder to detect. Writers make references to the book, giving a summary of its arc or stating the broad thesis. Yet they leave clues. Look for a snarky tone, particularly strident language, straw men, and hyperbole. Be especially skeptical of any review that cannot find one redeeming point to make about a book.
Helpful also are crowd-sourcing techniques. As one example, reviewers on amazon are rated by other customers. Seek out those having earned a great number of “helpful” votes. Amazon even has designations such as “hall of fame” and “top 1oo reviewer” for such people. Read those reviews and you will invariably find reliable information and analysis. (My own favorite is Robert Morris, a top reviewer who has reviewed two of my books in a constructive, and favorable, manner.)
In the old days, literati cocktail party-goers would joke about not having read a book but having read its reviews. It was a bit of a dodge but you could at least count on the reviewer having read the book. Pity those days are gone.
posted by Lawrence Cunningham
It’s a pleasure to report that this weekend marks the release of the third edition of The Essays of Warren Buffett: Lessons for Corporate America. Originally published as the centerpiece of a symposium sponsored by Cardozo Law Review in 1997 at which Warren Buffett debated 20-some law professors (listed after the jump) on every important issue facing corporate America, this book is a thematic arrangement of Buffett’s annual letters to the shareholders of Berkshire Hathaway from 1977 to the present.
As I explain in my Introduction, the central theme uniting Buffett’s essays is that the principles of fundamental business analysis, first formulated by his teachers Ben Graham and David Dodd, should guide investment practice. Linked to that theme are management principles that define the proper role of corporate managers as the stewards of invested capital, and the proper role of shareholders as the suppliers and owners of capital. Radiating from these main themes are practical and sensible lessons on the entire range of important business issues, from accounting to mergers to valuation.
The book has particular significance for devotees of behavioral economics who are skeptical of strong claims about market efficiency, as the book provides both the philosophical architecture of value investing and the intellectual defense of that practice, which distinguishes sharply between price and value.
UPDATE: Read the rest of this post »
Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
posted by Andrew Sutter
Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)
Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.
But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.
posted by Daniel Solove
Here are some recent titles from NYU Press:
Andrew Guthrie Ferguson
Edited by Linda C. McClain and Daniel Cere
Naomi R. Cahn
Steven A. Ramirez
Stephen M. Feldman
Edited by Charis E. Kubrin, Marjorie S. Zatz and Ramiro Martínez, Jr.
Please check out the above books. You can propose a review of one of these books or another recent title not on the list. We’re aiming for reviews between 500 – 1500 words, ideally about 1000 words. Please email your proposals to me.
posted by Josh Blackman
J. Harvie Wilkinson, III, Cosmic Constitutional Theory (2012)
Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Much the same could be said about Cosmic Constitutional Theory by Judge J. Harvie Wilkinson, III, the latest jurist to write about his own constitutional theory—or in Judge Wilkinson’s case, a self-professed lack of a constitutional theory.
Judge Wilkinson views all theories of constitutional laws as “cosmic” in the metaphyhsical sense. “[T]he search for cosmic theory has caused us to forget some mundane and humdrum truths, and that future generations will not look kindly on the usurpations that pursuits of unattainable ends have brought about.” Living constitutionalism, the hallmark of the Warren Court, is “activism unleashed.” Originalism—in many respects a moderating-jurisprudence born in reaction to living constitutionalism—to Judge Wilkinson is merely “activism masquerading as restraint.” Pragmatism—the approach endorsed most prominently by Judge Posner—is “activism through antitheory.” Constitutional theories are activist all the way down, to borrow another cosmic image. So, if living constitutionalism, originalism, and pragmatism are out, what is the best judicial philosophy? To Judge Wilkinson, that is the wrong question. In his view, the ideal jurisprudence is none at all. “So what is my theory?” he asks, rhetorically. “The answer is I have no theory.”
But it is not quite that simple. The sine qua non of Judge Wilkinson’s view of the judicial power is to permit the people, through self-determination and the democratic process, to rule for themselves. This very rejection of a constitutional theory is, in essence, a theory in and of itself. His anti-theory, one could call it, fails to address a number of curious constitutional counterfactuals the book raises, but does not resolve. What if other judges, applying Judge Wilkinson’s non-philosophy, had to decide divisive cases, where the will of the people was at odds with individual liberty? Think of cases involving segregation, eugenics, disenfranchisement, or criminal rights.
Elsewhere, Judge Wilkinson has written that “[w]hen a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.” Judge Wilkinson punts on these important questions quite unconvincingly: outlier “[d]ecisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”
To simply shoo away any future constitutional conflicts by saying the Supreme Court has already decided the important cases is short-sighted, and as Gerard Magliocca put it, somewhat reminiscent of the 19th Century Patent Commissioner who purportedly boasted that “Everything that can be invented has been invented.” This is not the case with respect to inventions, and it is certainly not the case with respect to future unexpected constitutional crises. Further, this position does nothing to address whether a Judge Wilkinson sitting on the Fourth Circuit or the Supreme Court decades earlier would have decided cases any differently. Unexpected changes in our society—disputed presidential elections, a war on terror, broccoli mandates, and other constitutional black swans—will happen, and the Supreme Court will confront them.
More pressing, is from what, or more precisely, from where Judge Wilkinson would derive these “foundational principles essential to the functioning of our nation.” Indeed, it is quite debatable what the foundational principles of our nation are, and what makes them essential to the functioning of our nation. Originalists would say that the foundation of our nation is the Constitution as understood by the founding generation. Living Constitutionalists would say that the foundation of our nation is evolving principles that reflect present circumstances.
And what are these principles to Judge Wilkinson? Addressed almost in passing, he notes that “[o]ne foundational premise of the American experiment is that self-determination is a valuable good.” Judge Wilkinson assumes—almost as if it is incontrovertible—that the foundational principle that separates a bad (read activist) opinion from a good (read restrained) opinion is one that promotes self-governance. But he does not show why this is so, nor does he prove why this is Article III’s ideal explication of “the judicial power.”
Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson’s quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today’s most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson’s own anti-jurisprudence.
- Josh Blackman, Assistant Professor, South Texas College of Law
posted by Daniel Solove
Here are some new titles from Oxford University Press. If you’re interested in reviewing a book, please let me know and tell me a bit about your background. If I select you as a reviewer for the book, Oxford University Press will send you a free review copy.
Louis Michael Seidman, On Constitutional Disobedience
Ganesh Sitaramanm The Counterinsurgent’s Constitution: Law in the Age of Small Wars
J. Harvie Wilkinson, III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance
Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance
Stephen J. Schulhofer, More Essential than Ever: The Fourth Amendment in the Twenty First Century
Daniel Kanstroom, Aftermath: Deportation Law and the New American Diaspora
George Fletcher’s Essays on Criminal Law (Edited by Russell Christopher)
Albert W. Dzur, Punishment, Participatory Democracy, and the Jury
posted by UCLA Law Review
Volume 60, Discourse
|The Benefits of a Big Tent: Opening Up Government in Developing Countries||Jeremy Weinstein & Joshua Goldstein||38|
|The Case Against Tamanaha’s Motel 6 Model of Legal Education||Jay Sterling Silver||52|
posted by Ronald K.L. Collins
We live by ideas. Even in this digital data era, we the heirs of the Guttenberg legacy still derive many of our new ideas from the printed page. Mindful of that, I have selected a variety of books that may be of some interest to the readers of this blog. To that end, I have highlighted 21 new or forthcoming books (including two of my own) and organized them under 11 topical categories. Consider them, read them, purchase them, or just browse the list below. More books, more profiles, coming.
— Marjorie Heins, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (New York University Press, February 2013)
“In the early 1950s, New York City’s teachers and professors became the targets of massive investigations into their political beliefs and associations. Those who refused to cooperate in the questioning were fired. Some had undoubtedly been communists, and the Communist Party-USA certainly made its share of mistakes, but there was never evidence that the accused teachers had abused their trust. Some were among the most brilliant, popular, and dedicated educators in the city. Priests of Our Democracy tells of the teachers and professors who resisted the witch hunt, those who collaborated, and those whose battles led to landmark Supreme Court decisions. It traces the political fortunes of academic freedom beginning in the late 19th century, both on campus and in the courts. Combining political and legal history with wrenching personal stories, the book details how the anti-communist excesses of the 1950s inspired the Supreme Court to recognize the vital role of teachers and professors in American democracy. The crushing of dissent in the 1950s impoverished political discourse in ways that are still being felt, and First Amendment academic freedom, a product of that period, is in peril today.” —Publisher’s blurb
— Joshua Karton, The Culture of International Arbitration and The Evolution of Contract Law (Oxford University Press, June 2013)
“This unique study investigates a theory of international arbitration culture alongside the publicly available arbitral awards, in order to make predictions about the contract law principles that international arbitrators are likely to favor. Drawing on interviews with prestigious practitioners in a range of jurisdictions, as well as case studies, conference papers, and unpublished awards, it presents a comparative analysis of arbitral and judicial responses to contractual principles. Part I presents the divergence in outcomes between national court litigation and international arbitration in relation to substantive law determinations, conducting in-depth case studies in two areas: the suspension of performance in response to non-performance, and the admissibility of extrinsic evidence to interpret contracts. Part II accounts for the conclusions of Part I with a comprehensive theory of arbitral decision-making, grounded in evidence gathered first-hand from arbitrators themselves.” —Publisher’s blurb
— Josh Blackman, Unprecedented: The Supreme Challenge to Obamacare (Public Affairs Books, summer, 2013)
“Unprecedented is the first book that explores the story of the legal challenge to the Patient Protection and Affordable Care Act—pejoratively known as “Obamacare”—from its inception all the way to the Supreme Court’s landmark decision in NFIB v. Sebelius. Unprecedented charts the journey of this challenge from its conception, where a small group of academics and Beltway attorneys created up a legal strategy—Congress could not regulate a person’s decision not to purchase health insurance. After its endorsement by leading Republican politicians, and buoyed by the rise of the Tea Party and its focus on the Constitution, this idea turned into a nationwide constitutional movement. Unprecedented explores how this case transformed the way we look at the Constitution, the Supreme Court, and the law, with a focus on the people and organizations that laid the groundwork for this challenge, and made the unexpected outcome a reality.” — JB blurb
— Nathaniel Persily, Gillian Metzger and Trevor Morrison, editors, The Health Care Case: The Supreme Court’s Decision & its Implications (Oxford University Press, May 2013)
“The book is divided into the following four topical sections: Part I: Reflections on the Supreme Court’s Decision; Part II: Lines of Argument: Commerce, Taxing and Spending, Necessary and Proper, and Due Process; Part III: The Important Role of the Chief Justice; and Part IV: The Decision’s Implications. Twenty contributors: Jonathan Adler, Samuel Bagenstos, Jack Balkin, Randy Barnett, Andrea Campbell, Richard Epstein, Charles Fried, Abbe Gluck, Michael Graetz, Jamal Greene, Linda Greenhouse, Timothy Jost, Andrew Koppelman, Jerry Mashaw, Sara Rosenbaum, Neil Siegel, Ilya Somin, Ted Ruger, Robert Weiner, John Witt, and the editors.” — NP blurb
posted by Deven Desai
Gamification? Is that a word? Why yes it is, and Kevin Werbach and Dan Hunter want to tell us what it means. Better yet, they want to tell us how it works in their new book For the Win: How Game Thinking Can Revolutionize Your Business (Wharton Press). The authors get into many issues starting with a refreshing admission that the term is clunky but nonetheless captures a simple, powerful idea: one can use game concepts in non-game contexts and achieve certain results that might be missed. As they are careful to point out, this is not game theory. This is using insights from games, yes video games and the like, to structure how we interact with a problem or goal. I have questions about how well the approach will work and potential downsides (I am after all a law professor). Yet, the authors explore cases where the idea has worked, and they address concerns about where the approach can fail. I must admit I have only an excerpt so far. But it sets out the project while acknowledging possible objections that popped to mind quite well. In short, I want to read the rest. Luckily the Wharton link above or if you prefer Amazon Kindle are both quite reasonably priced. (Amazon is less expensive).
If you wonder about games, play games, and maybe have thought what is with all this badging, point accumulation, leader board stuff at work (which I did while I was at Google), this book looks to be a must read. And if you have not encountered these changes, I think you will. So reading the book may put you ahead of the group in understanding what management or companies are doing to you. The book also sets out cases and how the process works, so it may give you ideas about how to use games to help your endeavor and impress your manager. For the law folks out there, I think this area raises questions about behavioral economics and organizations that will lay ahead. In short, the authors have a tight, clear book that captures the essence of a movement. That alone merits a hearty well done.
posted by Jake Linford
As I read “Facing Limits,” Larry’s chapter on unenforceable bargains, I had to pause and smile at the following line:
People often think that fairness is a court’s chief concern, but that is not always true in contract cases (p. 57).
I still remember the first time someone used the word “fair” in Douglas Baird’s Contracts class. “Wait, wait,” he cried, with an impish grin. “This is Contracts! We can’t use ‘the f-word’ in here!”1 Of course, Larry also correctly recognizes the flip side of the coin. If courts are not adjudicating contracts disputes based on what is “fair,” we might think that “all contracts are enforced as made,” but as Larry points out, “that is not quite right, either” (p. 57).
Pedagogically, Contracts in the Real World is effective due to its pairings of contrasting casebook classics, juxtaposed against relevant modern disputes. In nearly every instance, Larry does an excellent job of matching pairs of cases that present both sides of the argument. I don’t mean to damn with faint praise, because I love the project overall, but I feel like Larry may have missed the boat with one pairing of cases. Read the rest of this post »
October 18, 2012 at 12:45 pm Tags: adoption, autonomy, Baby M, contract law, ContractProf Blog, Contracts in the Real World, fairness, PrawfsBlawg, surrogacy Posted in: Book Reviews, Contract Law & Beyond, Family Law, Symposium (Contracts Real World) Print This Post One Comment
posted by Lawrence Cunningham
We are delighted to announce a book symposium for October 17, 18 and 19 here at Co-Op on Contracts in the Real World: Stories of Popular Contracts and Why They Matter (Cambridge U. Press 2012), my defense of the traditional common law of contracts that offers students an interesting and entertaining way through the subject by drawing on current events.
Following are confirmed participants.
Miriam A. Cherry (St. Louis U.)
Ronald K. L. Collins (U. Washington)
Erik Gerding (U. Colorado)
Susan Schwab Heyman (Roger Williams U.)
David A. Hoffman (Temple U.)
Nancy S. Kim (Cal. Western)
Donald C. Langevoort (Georgetown U.)
Tom C. W. Lin (U. Florida)
Jake Linford (Florida State U.)
Jennifer S. Taub (Vermont)
posted by Danielle Citron
Ever since the inception of the recession, we have been embroiled in a conversation about legal education–its costs, value, and flaws. There has been much controversy, some informed and some uninformed about the need for reforms in legal education and ways forward. Amidst this debate, legal historian Robert Kaczorowski has written a brilliant and engrossing history of Fordham Law School, one that highlights, among many issues, the struggles that law schools have with their universities about the funds they generate. As Kaczorowski’s book “Fordham University School of Law: A History” highlights, universities see their law schools as cash cows, siphoning away their funding for the main university and taking away those funds from the law school. Legal reform amidst that continuing state of affairs is a fraught enterprise, indeed. Of the book, esteemed legal historian William Nelson (NYU) writes:
One of the best books ever written on American legal education. Besides documenting the history of Fordham Law, Kaczorowski makes three major contributions to the knowledge of legal education’s history. First, the book documents why large numbers of late-nineteenth and early-twentieth-century immigrants and their children needed the founding of a Catholic law school. Second, it documents the factors that produce greatness in a law school. Third, it traces a conflict over the funding of law school. No other work has addressed these issues in depth. Kaczorowski has done a remarkable job.
posted by Mike Carroll
Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said. I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.
September 21, 2012 at 11:13 am Posted in: Book Reviews, Civil Rights, Culture, Cyberlaw, Economic Analysis of Law, Innovation, Intellectual Property, Jurisprudence, Law and Humanities, Law and Inequality, Politics, Property Law, Symposium (From Goods to a Good Life), Technology, Trade Print This Post No Comments
posted by Lawrence Cunningham
If you are interested in corporate law, especially economic analysis of it, you likely will enjoy an impressive new book collecting original pieces by 30 prominent corporate law scholars. Edited by Claire Hill and Brett McDonnell of the University of Minnesota, the book canvases every important topic in corporate law.
After an overview that traces the history of the economic analysis of corporate law, the book addresses corporate constituencies, governance, gatekeepers, government oversight and a few other hot topics not classified.
Within constituencies, topics consider the directors’ role, the roles of other corporate actors, including shareholders, creditors, employees, and other stakeholders along with broader notions of the public interest.
Internal governance looks at fiduciary duties, shareholder litigation, outside directors, shareholder activism and executive compensation.
Gatekeeper pieces address lawyers and auditors, as well as rating agencies, research analysts, D&O insurers and investment banks.
Jurisdiction looks at both domestic federalism as well as comparative perspective.
Unclassified topics address self-dealing, behavioral economics, and market efficiency.
The scholars are the following professors:
Ahdieh, Atanasov, Bainbridge, Black, Blair, Bodie, Ciccotello, Clarke, Cunningham, Darbellay, Davidoff, Fairfax, Ferri, Fisch, Frankel, Gilson, Griffith, Hill, Kraakman, Langevoort, Lee, McDonnell, Painter, Partnoy, Smith, Thomas, Thompson, Walker, and Whitehead.
The table of contents to this impressive volume follows. Get it while it’s hot!!
BOOK REVIEW: A New (Scientific) Look at the SG and the Court (reviewing Black and Owens’s The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions)
posted by Ronald K.L. Collins
Ryan C. Black & Ryan J. Owens, The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012)
I think a strong Solicitor General can have a very considerable influence on the Court.
– Erwin Griswold
Recently the Justices asked the Solicitor General’s office for its views on two cases, one concerning the Clean Water Act, and the other concerning the immunity of a foreign government’s central bank when the U.S. seeks to seize its assets. Though standard fare, the request reminds us of the importance that of SG’s office in our system of justice. To understand the workings of the Court, it is important to understand the workings of the SG’s office and how the two interact. Or as Lincoln Caplan put it in his The Tenth Justice: The Solicitor General and the Rule of Law (1987): “The relationship between the Supreme Court and the SG’s office has long been more intimate than anyone at either place likes to acknowledge.” Indeed. Thankfully, some of that intimacy is subject to scrutiny, as a forthcoming book on the subject reveals.
A newly released book is sure to be of interest to Court watchers. I refer to The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012) by political science professors Ryan C. Black (Michigan State University) and Ryan J. Owens (University of Wisconsin, Madison). Both have written extensively, and continue to do so, on the Court, its workings, and on constitutional law generally. As their book and other works make clear, different SG’s approach their job quite differently and what they do can sometimes shape the resulting law announced by a majority of the Court. (See Michael McConnell, “The Rule of Law and the Solicitor General,” 21 Loy. L.A. L. Rev. 1105 (1988), and Steven Calabresi, “The President, the Supreme Court & the Constitution,” 61 L. & Contemp. Probs. 66 (1998).)
“Learned in the law”
The Office of the Solicitor General (OSG) is a curious institution. On the one hand, the SG is the lawyer for the Executive Branch, yet on the other hand the SG enjoys chambers at the Supreme Court as if he or she were a “tenth justice.” Though the SG is independent of the Court, the Justices are frequently dependent on the SG’s counsel. Not surprisingly, then, federal law (28 U.S.C. § 505) requires that the SG, and no other, be “learned in the law.”
The SG’s influence can hardly be denied. As David O. Stewart has observed: “The Justices have relied on the SG to screen unworthy petitions for certiorari and to provide a complete statement of the relevant law. And they have granted a disproportionately high proportion of the SG’s petitions for certiorari, invited his views on cases ion which the government was not a party and tended to rule in his favor.” (Book Review, ABAJ, Nov. 1, 1987, at 136.) So, exactly, how influential is the OSG when it comes to what the Court does or does not do? Professors Black and Owens answer that question by way of a remarkable illustration offered up in the first chapter of their nine-chapter book. This illustration, about which more will be said momentarily, sets the stage for a rigorous and detailed examination, replete with charts, of the work of the OSG and how it helps shape Supreme Court law. Their work-product derives largely from, among other things, cert pool memos, private docket sheets, and other archival data collected by them and other scholars. The result is a remarkable, as their discussion of National Organization of Women v. Scheidler (1994) illustrates.
posted by Ronald K.L. Collins
In contemporary law, his name ranks among the greats. He is Judge Richard A. Posner. Among many others, Posner’s works have in more recent times caught the attention of Justice Stephen Breyer, who not infrequently draws on or refers to the Seventh Circuit jurist’s writings. See e.g., Dorsey v. United States (2012), Mayo Collaborative Servs. v. Prometheus Labs., Inc. (2012), Golan v. Holder (2012, dissenting), McDonald v. City of Chicago (2010, dissenting), Bilski v. Kappos (2010, concurring), Merck & Co. v. Reynolds (2010), and Chambers v. United States (2009).
Whatever the extent of his popularity at the Supreme Court, Judge Posner is one of the few federal jurists to be openly critical of the Court, and in a judicial opinion no less. Consider, for example, a 1996 antitrust opinion in which then Chief Judge Posner took a few analytical and rhetorical swipes at the Court’s ruling in Albrecht v. Herald Co. (1968). Therein, Posner argued that the Albrecht opinion was rife with “infirmities” and suffered from “its increasingly wobbly, moth-eaten foundations.” The Supreme Court agreed and quoted Posner approvingly, and then reversed its holding in Albrecht! See State Oil Co. v. Kahn (1997). Admittedly, such judicial behavior – both at the circuit and Supreme Court levels – is an anomaly. Still, there is precedent, and its bears the Posner name.
Beyond Judge Posner’s many erudite (and sometimes controversial) judicial opinions, the Chicago-based jurist has published scores of scholarly articles and some 40 books on a variety of subjects. Coming this January, Judge Posner returns to one of his favorite topics: judging judges, including the work of Supreme Court Justices. Before saying anything more about his next book on this subject, permit me to flag a new article he has published entitled “The Rise and Fall of Judicial Restraint,” 100 Cal. L. Rev. 519 (2012). Here is an abstract of that article:
Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant—restraint in invalidating legislative action as unconstitutional—as advocated by the “School of Thayer,” consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory created an unbearable tension between Thayer’s claim that judges should uphold a statute unless its invalidity was clear beyond doubt (as it would very rarely be), and constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases.
Among Thayer’s most noted followers, Posner includes Justices Oliver Wendell Holmes, Louis Brandeis, and Felix Frankfurter along with Supreme Court scholar Alexander Bickel. (Re Bickel, see here for a recent online Symposium on the 50th anniversary of the publication of his The Least Dangerous Branch.)
Against that backdrop, we come to Judge Posner’s next book: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, January 2013, $49.95). Judge Posner is a co-author, the two others being Lee Epstein (professor of law and political science, University of Southern California) and William M. Landes (professor emeritus of law and economics, University of Chicago Law School).