All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the [...]]]> I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate. This is the third volume of his-yet unfinished biography of the life of LBJ. This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.

All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.

Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President. First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power. Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.

These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957. Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960. Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support. To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.

Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition. Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible. The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made. The Southerners opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely. The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era. Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.

Does this remind you of anything currently going on in the Senate? We are seeing the same type of struggle now play out in the Senate over health care reform. Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding. Some bill, any bill, will probably ultimately pass. Obviously Harry Reid is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.

But the issues of power, leadership, and strategy remain. Is some bill better than no bill? Is this the first step to more comprehensive reform down the road? Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking? While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?

***
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October. I look forward to the new group of guest commentators for November including my Loyola-Chicago colleague Mike Zimmer.

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes [...]]]> By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you!

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes shorn of scarlet and fur. And no wigs. (This BBC report shows the justices in their new robes, which at least have the decency to include healthy dollops of gold braid.) Why don’t they just throw out the concept of precedent, adopt the Code Napoleon, and be done with it. Nor, alas, is the rot confined to the top of the judiciary. Through out the UK, it would seem, judicial horse hair and scarlet are one the wane.

American judges and barristers lost their wigs thanks to the wicked influence of Thomas Jefferson. The hypocrite sage of Monticello, of course, was an awful Francophile at a time when being a Francophile meant defending the guillotine. For him, wigs and scarlet were English (and therefore evil), medieval (and therefore evil), and associated with the common law (and therefore evil). In the new Empire of Liberty that he envisioned for America they had no place. I suspect that his hope was that the common law would be out as well, to be replaced by some hideously rationalized Enlightenment code.

In the wake of the election of 1800, Jeffersonianism was ascendant and any hope for proper judicial and legal regalia in the United States died. Blackstone, Coke, and Marshall proved powerful enough to preserve the common law, even if we lost forever is pageantry. Rather Jefferson and his minions replaced it with a spare classicism — Roman looking court houses, plain “republican” robes, etc. — whose aesthetic cannot help but strike a jarring note against the law that it purports to represent. I suppose that as between losing the common law and losing its trappings, America managed to opt for the lesser of too evils. Still, I can’t help but feel the loss.

Why, in the name of all that is holy, however, should the UK Supreme Court abandon them. I realize, of course, that in an enlightened post-modern age a certain amount of national self-loathing is de rigueur. Penance for the sins of empire and all that. Fair enough. But surely at the judicial apex of the birthplace of the common law, one may take a stand for they symbols of tradition and continuity without embarrassment. The press reports cited by Chris suggest that the motivation for this particular judicial outrage was the need to “modernize” the English law (and given that Scotland enjoys its own legal tradition with its own forms of fancy dress, this is ultimately an English issue). This is a silly justification. There is nothing that prevents a barrister with gown and wig from presenting perfectly cogent and modern arguments about the proper treatment of credit derivatives or bank capitalization regulations. Likewise, there is nothing that keeps a judge clad in scarlet and ermine from protecting the rights of oppressed minorities. Indeed, such decisions and arguments gain power and legitimacy from nesting themselves within a physical pageant that celebrates its connection and continuity with the past. A rapidly changing society that tosses an ultimately costless method of retaining some emotive and symbolic stability, in my opinion, makes a foolish decision.

Shame on the Brits!

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century.  In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire.  But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department.  On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part [...]]]> Today is the 175th anniversary of the Great Fire of 1834, which destroyed most of the British Parliament buildings. A vivid audio description, by the Parliament’s current Clerk of the Records, can be found here. 

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century.  In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire.  But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department.  On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part of the heating system of the House of Lords.  About 4 pm that afternoon, the deputy Housekeeper, Mrs. Wright, was conducting some visitors through the  Lords chamber, and the visitors noticed that the floor was hot and had smoke seeping through it so thickly that they couldn’t see their hands in front of them.  But she did nothing. 

By 6 pm, the House of Lords was on fire.  Through the night, the fire spread to the House of Commons chamber, the Commons Library, and other Parliament buildings.  Heroic firefighting action by fireman, soldiers, and private citizens saved Westminster Hall.

Obviously the fire was a terrible, devastating event.  But it did have consequences that some might regard as beneficial.  Even as the fire occurred, Augustus Charles Pugin, an architecht, rejoiced that later additions to the Parliament buildings, which he regarded as ruining the original medieval structure,  were finally gone.

And there is something else too.  I became familiar with the 1834 fire when researching my forthcoming article, Law and Longitude.  The article is a legal analysis of the controversy occasioned by the Longitude Act of 1714, which established a public prize for the discovery of a method of finding longitude at sea.  (If you’ve read Dava Sobel’s delightful book, Longitude, you know all about it.)

Much of the controversy concerned the proper interpretation of the Longitude Act, and, in accordance with modern interpretive practices, I wanted to research the Act’s legislative history.  But I couldn’t!  The history was destroyed in the fire, except for such small portions as were preserved in the official Journals of the House of Commons.

Today there is, of course, a lively controversy about the use of legislative history in statutory interpretation.  But one thing is certain:  courts couldn’t use legislative history if the history were destroyed.  Then we would be compelled to live in the textualists’ ideal world, in which we could only look at the text of the statute and try to determine what it means.

If you had the choice, would you put all legislative history to the fire?

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil [...]]]> By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

Not so it would seem.

The country of Samoa (not to be confused with the U.S. territory American Samoa) is about the switch from driving on the right side of the road to driving on the left side of the road, reports the WSJ.  Somoa is much closer to New Zealand and Australia than to the United [...]]]> Generations of law professors have always insisted that there is some class of rules where the particular content of the law is less important than that we have some clear answer to a question. The paradigmatic example is a rule specifying which side of the road one ought to drive on. The decision, so the argument goes, is entirely arbitrary so long as we all pick a side.

Not so it would seem.

The country of Samoa (not to be confused with the U.S. territory American Samoa) is about the switch from driving on the right side of the road to driving on the left side of the road, reports the WSJ.  Somoa is much closer to New Zealand and Australia than to the United States.  Apparently over 100,000 Samoan expats live in both countries and they want to be able to send their old cars home to relatives in the islands.  By switching sides, the government hopes to facilitate the flow of cheaper, hand-me-down cars into the country.  Interestingly, however, the article argues that the original American choice to drive on the right hand side was not as arbitrary as the law profs would have us believe:

American drivers of horse-drawn carriages tended to ride their horses, or walk alongside them, on the left-hand side of their vehicles so they could wield whips with their right hands. That made it necessary to lead carriages down the right side of the road so drivers could be nearer the center of the street.

The article doesn’t explain why it is that the Brits opted for the left hand side.  Maybe they are all left handed, or perhaps they learned to use a whip with their right hand as part of some sort of public school hazing ritual.  Isn’t there something in a Dickens novel about that?

Perhaps one can always find policy rationales for the substantive content of rules after all.

(ht: Moin Yahya of the University of Alberta Law School)

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the [...]]]> Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Shane starts by distinguishing between “presidentialism” and “pluralism.” “Presidentialism” embraces the idea of a unitary executive with vast powers to operate unchecked by other branches of government, often acting in secrecy, and free of the need to consult with other branches. “Pluralism,” on the other hand, understands the notion of interacting branches checking and consulting each other in setting policy, doing so as not only a constitutional command but also as a prerequisite to setting sound policy. It is Shane’s position that each of these attitudes is supported by a matching culture and that government lawyers have a critical role to play in sustaining or contesting those cultures.

Shane is no fan of presidentialism, which he sees as depending upon a culture of isolation and arrogance that promotes bad policy and, by subsituting executive preferences for legal mandates (because anything the executive does is almost always seen as within its power, therefore ”legal,” ending any real rule-like limits on executive power), presidentialism makes a joke out of the “rule of law.” Bad policy results in part because “[f]acts and opinions are always filtered through officials’ ideological prisms, prisms that shape how facts are weighed and options comprehended.” Without a counterweight to ideology, important flaws in information-gathering and reasoning are missed. Pluralism, by contrast, helps to minimize ideological distortion by compelling executive decisionmakers seriously to consider opposing views, while engaging in dialogue with other institutional actors.

Lawyers are essential to standing in the way of a creeping culture of presidentialism. That culture, argues Shane, “bends the light of the law so that nothing is seen other than the prerogatives of the sitting chief executive.” This light-bending distorts the lawyer’s vision not only of the law’s scope but of the process by which quality lawyers determine legal “meaning.” Moreover, most executive decisions are too low-level or visible to capture the attention of congressional oversight committees or of the courts, even though cumulatively these decisions may do much damage. The government lawyer is thus often the only voice of conscience available to give sound legal advice and check foolishness and overreaching.

Shane traces the process of legal decisionmaking and the outcomes of it concerning two major issues: warrantless electronic surveillance and the treatment of enemy combatants. In a convincing display, Shane condemns the lawyering involved as steeped in presidentialism. He concludes that two factors explain this poor lawyering by otherwise talented individuals. First, the legal and broader culture of the executive must have sent the message to the lawyers that they had no real choice but to approve what their client sought. Second, they worked in an atmosphere in which they would face scorn for reluctance to express any argument, no matter how minimally plausible, supporting their client’s preferred conclusion. That might be acceptable conduct for an advocate, says Shane, but it is reprehensible for an advisor.

To avoid such “ethically blinkered” results, insists Shane, government lawyers “must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.” Lawyer-advisors must give conscientious opinions not only about outcomes but about the proper procedures clients must follow before making policy choices. The lawyer is neither a potted plant nor a lackey. And a lawyer without a spine is really no lawyer at all.

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 [...]]]> 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.

Let’s assume for purposes of discussion that Shlaes is right about the economics. Is that the end of the matter? I don’t think so. The next question is whether activist government was necessary to prevent something worse from happening. I’m not talking about a dictatorship. [...]]]> A book that is getting a lot of attention these days is “The Forgotten Man: A New History of the Great Depression” by Amity Shlaes. Shlaes argues that FDR’s policies prolonged the economic downtown (or at least did not help). Now that we are in another severe recession, her book is being invoked by those who oppose to President Obama’s interventionist measures (such as economic stimulus) as evidence that the New Deal was a failure.

Let’s assume for purposes of discussion that Shlaes is right about the economics. Is that the end of the matter? I don’t think so. The next question is whether activist government was necessary to prevent something worse from happening. I’m not talking about a dictatorship. I’m simply referring to a political movement in favor of even more interventionist or redistributive policies that would have gained traction because the government was not doing enough.

The problem is that there is a forgotten man in “The Forgotten Man” — Huey P. Long. “The Kingfish” of Louisiana became a national figure in 1934 and 1935 with his “Share Our Wealth” movement, which was the organization that he intended to use for a presidential bid in 1936. (Long was assassinated in late 1935). Among other things, he wanted to establish a personal income cap through massive wealth and income taxes to pay for public works and subsidies for the poor. FDR told his aides that he “needed to steal Long’s thunder” in 1935, which led to the proposal of Social Security and a much more modest wealth tax. (FDR was also responding to other protest movements — Father Coughlin and Dr. Francis Townsend come to mind).

Shlaes dismisses the argument that FDR’s policies were worthwhile because they prevented these folks from gaining support. She claims (without much evidence) that Americans were too conservative to be swayed by people like Huey Long. I disagree. If you are interested in reading more about Long and his impact on New Deal constitutionalism (both in life and because of his unexpected death), check out my article on “Huey P. Long and the Guarantee Clause”, which came out in Tulane last Fall.

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 [...]]]>

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.

To give you some highlights, Bingham was an abolitionist member of Congress from 1855-73 (with a gap between 1863-65). He was also one of the three JAG prosecutors in the military trial of Lincoln’s assassins (Bingham is on the left in the picture). And he served as one of the impeachment managers during Andrew Johnson’s trial before closing his career as Ambassador to Japan from 1873-85. But his main claim to fame comes from his work on Reconstruction and on the Fourteenth Amendment, as he was at the center of almost every major debate during that time.

The lack of a serious Bingham biography is part of an odd dichotomy in our historiography. The Civil War is the most popular topic in American history — far more so than the Revolutionary War. (Go look in any bookstore). Yet the Founding Fathers get a lot more attention than the leaders of Reconstruction — books about Thaddeus Stevens, Charles Sumner, or Lyman Trumbull are rare compared to what you see about Hamilton, Jefferson, or Madison. Why is that?

I had the pleasure of meeting Professor Franklin three years ago when I was doing research at the FDR Library in Hyde Park. The reading room there is rather small and only a few people were there when he came walking in with a librarian who blurted out, “Hey, everybody! It’s John Hope Franklin.” We all went over to chat and he couldn’t have [...]]]> I wanted to note the passing of John Hope Franklin, the great historian of the African-American experience in this country, who passed away last week. Professor Franklin was part of Thurgood Marshall’s team during the Brown litigation, and his 1947 book “From Slavery to Freedom: A History of American-Americans” is still considered a classic in the field.

I had the pleasure of meeting Professor Franklin three years ago when I was doing research at the FDR Library in Hyde Park. The reading room there is rather small and only a few people were there when he came walking in with a librarian who blurted out, “Hey, everybody! It’s John Hope Franklin.” We all went over to chat and he couldn’t have been more gracious, asking me about my work in detail. (He did seem a tad disappointed when I told him I was a lawyer rather than a historian, but that passed quickly.) I was struck by his approach because I’d seen an interview with him not long before where he explained that as a young man he met W.E.B. Dubois, who was pretty nasty and dismissive towards him — a lowly graduate student. He made sure not to treat others that way.

John Hope Franklin led an exemplary life as a scholar and a citizen. We can all aspire to that standard, but it’ll be hard to match.

A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification.

As presented by the Court (and for all I know as presented by [...]]]> In the Iowa Supreme Court’s opinion declaring traditional marriage unconstitutional, the justices dealt with the claim that the law was justified because it protected the integrity of the tradition of heterosexual marriage. The opinion states:

A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification.

As presented by the Court (and for all I know as presented by the attorneys defending the law), the argument sounds circular and absurd. As a technical matter the court was applying intermediate scrutiny, but as presented by the Court the appeal to tradition would seem to fail even a rational basis test.

To anyone with a familiarity with the history of the common law, the notion that the appeal to tradition is circular or vacuous is striking. The classical common law theorists of the seventeenth century – Coke, Hale, and Selden – thought that tradition was the primary justification for the law’s authority. Independent of the particular issue of same-sex marriage, the Iowa Supreme Court’s opinion shows how far our legal thinking has traveled.

It is, of course, always easy to dismiss the strange thoughts of the past as so much benighted nonsense, and to look at the seventeenth century appeal to tradition as a bit of rhetorical clap trap and nothing more. Certainly, there was more than a little bit of fiction in the appeal to immemorial custom. The appeal to tradition, however, was not without its reasons.

There are, it seems to me, at least three reasons for adhering to tradition because it is tradition.

One argument would be that the long continuation of a tradition indicates that the tradition commands widespread support. On one hand, law that follows tradition is thus more legitimate because it enjoys widespread consent, a consent evidenced not by the formal procedures of democratic institution but through the organic growth of social custom. On the other hand, as a practical matter setting the law in violent opposition to tradition threatens legal stability by cutting the law off from a deep source of intrinsic legitimacy.

The second argument is closely related to the first, and notes that traditional practices create expectations. The law ought not to upset those expectations. Doing so undermines one of the primary purposes of the rule of law, namely the creation of a stable set of expectations in which people can work out their lives free from the fear of violent shifts in how the state makes its power felt.

The third argument is that advanced by Burke. It rests on a skepticism about reason’s ability to create effective social practices from a priori principles. Burke, of course, was trained as a common lawyer in a day when the curriculum consisted mainly of painfully digesting Coke On Littleton. For him the fact that one could not articulate a simple and rational justification for an ancient practice was no reason for abandoning it. The process of organic social growth, experimentation, and survival had an inarticulate wisdom of its own, and it was a shallow hubris to suppose that we could dispose of it with a few syllogisms. The argument, of course, is difficult and dangerous, because sometimes tradition represents precisely the kind of viciousness condemned by the philosophes he so scorned. Or, as the Iowa Supreme Court put it:

[The appeal to tradition] can allow discrimination to become acceptable as tradition and helps to explain how discrimination can exist for such a long time. If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed.

And yet Burke’s argument is not without merit. It certainly counsels against the glib dismissal of tradition. After all, Burke’s prediction that the French Revolution – with its contempt of tradition — would produce a cartload of headless corpses and a tyrant has proved one of the more prescient moments in political philosophy.

At the end of the day, I think that the appeal tradition deserves a bit more respect than the Iowa Court gave it. It is not a bit of logically circular claptrap. Rather, the appeal to tradition is one of the well-springs from which the common law came and the memory of man runneth not to the contrary.

1. Government Eats Brains During Severe Downturns

Because it is familiar, consider the market for legal jobs. A year ago, or two, top law students would be trading present income for the possibility of future income & (difficult to quantify) life satisfaction if they took a job with a government agency instead of a large private firm. [...]]]> An often raised objection to President Obama’s economic policy (or its natural extensions) is that the government is ill-suited to run private firms. I want to raise two counter-arguments that I think diminishes the force of that claim, and which I haven’t seen elsewhere: (1) government workers are smarter during severe recessions; and (2) we know more than we used to about what makes non-profit governance work.

1. Government Eats Brains During Severe Downturns

Because it is familiar, consider the market for legal jobs. A year ago, or two, top law students would be trading present income for the possibility of future income & (difficult to quantify) life satisfaction if they took a job with a government agency instead of a large private firm. That calculation being uncertain, many argued that government jobs were disproportionately filled by individuals seeking to increase the power and prestige of the State, i.e., that they weren’t maximizing wealth. Today, that calculation looks different. Students have to consider the likelihood that the firm will rescind their offers, either before they start work or after. (Odds helpfully summarized here.) So, assume that a student has an offer from (say) Ditto Dot, LLP, with a starting salary of $150K, and she determines that the likelihood that the firm will honor its offer is 50%. The student’s expected salary, obviously, is 75K. A DOJ job (taken after a clerkship) pays in that zone, and there is zero chance that the job will disappear. Since the likelihood that some of these firms will honor their offers appears to be significantly lower than 50%, the DOJ now “pays more” than large parts of the private sector. (Incidentally: another argument against increased federal judicial pay.) Thus, the competition for government jobs should be much more fierce today than it was last year, and will be severe in the Fall hiring season. The result ought to be better qualified government lawyers at all levels.

This same dynamic will be in play in other government departments, including the Treasury & the Fed. During very severe recessions, Washington will be a tremendous talent magnet. Thus, though it is true that the government will never be as nimble as a private firm, our views about its relative level of competence may be unduly influenced by its performance during the times of plenty that we’ve had over the last two generations. Better employees should lead to better government work.

2. Non-profit organizations can work well

At the same time, I think that the claim that the profit motive is necessary to drive effectively governed institutions also needs a bit of rethinking. Universities and other complex non-profits thrive because of internal cultures of performance, driven by strong leaders. Nonetheless, they can be incredibly effective, at making money (consider the success of Yale’s endowment), at inculcating loyalty, at being stable, etc. The literature on non-profit governance is just beginning to influence the legal academy, but appears to offer some promising ideas about how to structure a non-profit so that it can function well absent traditional market pressures. The government, though not a non-profit technically, ends up looking something like it in terms of how its employees are governed and rewarded. We might draw on the lessons of the NP literature in thinking about how to organize the new public-private firms that we’ve seized – at least for the brief period of time that we will be running them.

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 [...]]]> 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)

Faced with such low returns on normal loans, Shylock is forced into the shadowy world of loan-to-own, in this case targeting, as he tells Antonio, “…an equal pound/ Of your fair flesh, to be cut off and taken/ In what part of your body pleaseth me” (I.iii.147-149). As he later reveals, Shylock is engaged in a bit of arbitrage in the commodity markets and wants Antonio’s flesh “To bait fish withal” (III.i.49).

When all Antonio’s “argossies” reportedly wreck at the same time — a wildly improbable event predicted by none of Antonio’s complex statistical models and, as we have seen, completely discounted by him — his over-leveraged balance sheet sends him spinning into bankruptcy and ruin. For his part, after Lorenzo makes off Madoff-like with Shylock’s daughter and his savings — “A diamond gone cost me two thousand ducats in Frankfurt!” (III.i.77-78) — he is left to lament (albeit in prose):

Why thou loss upon loss! The thief gone

with so much, and so much to find the thief, and no

satisfaction, no revenge, nor no ill luck stirring but

what lights o’ my shoulders, no sighs but o’ my breath-

ing, no tears but ‘o my shedding. (III.i.85-89)

Of course, once his ill-fated bet on Bassiano and the power of risk management starts to unwind, Antonio’s surrogates begin lobbying the government to change the rules so as to avoid unwanted contracts. To his credit, the Duke resists these entreaties, because, as Antonio acknowledges:

The duke cannot deny the course of law;

For the commodity that strangers have

With us in Venice, if it be denied,

Will much impeach the justice of the state,

Since that the trade and profit of the city

Consisteth of all nations. . . . (III.iii.26-31)

His laudable concern for the commercial reputation of Venice, however, does not prevent the Duke from using the bully pulpit in an attempt to brow-beat Shylock into renegotiating his contract with Antonio:

Shylock, the world thinks, and I think so too,

That thou but leadest this fashion of they malice

To the last hour of act; and then ’tis thought

Thou’lt show thy mercy and remorse more strange

That is they strange apparent cruelty’

And where thou now exacts the penalty,

Which is a pound of this poor merchant’s flesh,

Thou wilt not only loose the forfeiture,

But touched with human gentleness and love,

Forgive a moiety of the principal,

Glancing an eye of pity on his losses,

That have of late so huddled on his back,

Enow to press a royal merchant down

And pluck commiseration of his state

From brassy bosoms and rough hearts of flint,

From stubborn Turks and Tartars never trained

To offices of tender courtesy.

We all expect a gentle answer, Jew. (IV.i.16-34)

The Duke’s speech, of course, falls into the standard rhetorical tropes from the perennial battle between Main Street and Wall Street, finance and the “real economy.” Shylock is asked to forgive the principal out of “human gentleness and love” and Antonio’s unfortunate losses “huddled on his back,” nevermind, of course, that it was Antonio who got himself into the problem with the first place through irrational exuberance and shoddy lending practices. Of course, beneath the velvet appeal to mercy and solidarity there is the steel fist of an unstated threat. Shylock is “Jew,” the member of a hated minority and the memory of young men following him through the streets taunting him over the loss of his daughter just a few scenes before must be fresh in his memory. The duke is willing to stand behind the “justice of the state,” but for how long in the face of an increasingly belligerent public that his sided decisively with Antonio?

Of course, the story is resolved when deus ex machina Portia arrives with clever legal arguments that allow Antonio to escape his obligations while giving the city a fig leaf behind which it can hide its ultimately thin commitment to contractual sanctity. (Of course, realist that I am, in the end I think that that it is Portia’s rhetoric — “The quality of mercy is not strained…” (IV.i.182) — rather than her legal analysis that does the real work.) The ending, however, requires the forced conversion of Shylock and what amounts to public control of his capital through a series of strong-arm negotiations rather than outright legislation.

Needless to say, finance and capitalism will never be the same in Venice again. With Antonio and his friends in control, I shudder for the prospects of efficient capital allocation in the future. I think that we can expect more loans to well-connected folks like Bassanio with questionable business models.

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 [...]]]> 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.

A person is guilty of a misdemeanor of the third degree if he pretends for gain or lucre, to tell fortunes or predict future events, by cards, tokens, the inspection of the head or hands of any person, or by the age of anyone, or by consulting the movements of the heavenly bodies, or in any other manner, or for gain or lucre, pretends to effect any purpose by spells, charms, necromancy, or incantation, or advises the taking or administering of what are commonly called love powders [...]]]> According to the WashPo, St. Johnsbury, Vermont has decided to make the plunge and legalize soothsaying. It turns out that a number of jurisdictions still have anti-fortunetelling statutes on the books. Contemporary Pennsylvania law, for example states:

A person is guilty of a misdemeanor of the third degree if he pretends for gain or lucre, to tell fortunes or predict future events, by cards, tokens, the inspection of the head or hands of any person, or by the age of anyone, or by consulting the movements of the heavenly bodies, or in any other manner, or for gain or lucre, pretends to effect any purpose by spells, charms, necromancy, or incantation, or advises the taking or administering of what are commonly called love powders or potions, or prepares the same to be taken or administered, or publishes by card, circular, sign, newspaper or other means that he can predict future events, or for gain or lucre, pretends to enable anyone to get or to recover stolen property, or to tell where lost property is, or to stop bad luck, or to give good luck, or to put bad luck on a person or animal, or to stop or injure the business or health of a person or shorten his life, or to give success in business, enterprise, speculation, and games of chance, or to win the affection of a person, or to make one person marry another, or to induce a person to make or alter a will, or to tell where money or other property is hidden, or to tell where to dig for treasure, or to make a person to dispose of property in favor of another. (18 Pa.C.S.A. § 7104 )

The law apparently dates back to an 1861 state statute. A quick Westlaw search reveals reported cases dealing with anti-fortunetelling statues in California, Illinois, Maryland, New York, Washington, and other states.

Witchcraft and cursing, of course, were crimes at common law on the straight-forward theory that they were a method of harming others that ought to be suppressed. One may dispute the metaphysics behind this crime, but as a normative matter it seems simple enough. One might even object to love potions as a kind of officious intermeddling. The suppression of fortunetelling — along with other forms of beneficent magic like peering in stones to find lost treasure — however, rests on a more subtle calculation, some of it less than pretty.

From the reported cases that I glanced through, it seems that in the early twentieth century these laws were used mainly against Gypsies or immigrants of Eastern or Southern European extraction, suggesting a definite ethic bias at work. In the nineteenth century, the concern was with home grown American conjuring. Folk magic, of course, was an important part of life among the rural poor in the 19th century. Village rodsman and glass peepers would hire themselves out to find water, lost objects, or buried treasure. To local elites, of course, this stuff was the vilest — and most embarrassing — superstition, which had to be suppressed. In some cases the argument was fraud, although often the customers of local magicians were not the one’s pressing charges. The real impetus was the suppression of superstition.

There is also a religious element here. I found a 1927 Pennsylvania case holding that faith healing and trafficking in biblical predictions did not come under the statutory definition of “fortune telling.” In the early 19th century, however, there was little — if any — distinction among the rural poor between “magic” and “religion,” Indeed, the category of magic was in large part the creation of (Protestant) anthropologists in the late 19th century who wished to distinguish respectable “religion” from mere “superstition.”

So is there a case to be made for the prohibition of fortune telling in the modern world? One can certainly imagine cases of fraud, but it is also not unreasonable to simply impose a rule of caveat emptor on those that purchase magical services and leave it at that. There are also, it seems to me, potential first amendment concerns. I am not free speech expert, but it seems to me that the suppression of fortune telling necessarily involves a content-based speech restriction. Of course, this is commercial speech, but in at least some cases it is bound to be truthful, and even predictions that turn out to be mistaken need not be fraudulent. It is difficult to cast a horoscope properly and sometimes astrologers make innocent mistakes. There is also the free exercise claim. If fortune telling can be characterized as religion, then it seems to me that there is a very strong free exercise argument here. This is not a neutral or generally applicable law. The Pennsylvania, statute, for instance is aimed directly at fortune telling itself.

Needless to say, I await the cert petition.

(Image source: Wikicommons)

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 [...]]]> 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.”

A decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.

This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental [...]]]> Several recent inquiries (for example, here and here) investigate aspects of judicial decision making, including empirical studies of influence, reputation and productivity.

A decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.

This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental and pragmatic method (although Cardozo showed hints of a proto-pragmatist). Notably, Cardozo’s and Posner’s reproduction frequency shared a couple of similarities. Each had an aggregate of 13 opinions reproduced in the casebooks and 6 of each of these had appeared in just 1 casebook apiece. On the other hand, Cardozo had 2 opinions that were clearly canonical, being reproduced in nearly every casebook, while Posner’s most frequently reproduced opinion appeared in only 2/3 of the books.

This summer, I’m beginning a like inquiry on comparative judicial contributions to Torts. Some similarities and some differences from the Contracts study appear in the preliminary data (being ably developed by my research assistants, Matt Albanese, Dana Parsons and Paul Stepnowsky).

Similarities include the judicial roster. Cardozo is again firmly in the lead, now with Posner second by a good margin. These are followed by Mock, Traynor and Hand. (For now, we’re setting aside Supreme Court justices whose opinions on constitutional torts (privacy, defamation) play starring roles in some torts casebooks.)

Differences appear in other data points. Cardozo has an aggregate of 10 opinions reproduced in the Torts casebooks whereas Posner has an aggregate of 25 opinions reproduced. All but 1 of Cardozo’s appearing opinions appear in multiple books and most are reproduced in more than a third of the casebooks. In contrast, more than half of Posner’s appearing opinions appear in only 1 book and only 2 appear in more than half the books.

According to the collective Torts casebook editors, there is clearly a Cardozo canon; no consensus appears concerning any Posner canon. These editors know that including Cardozo’s contributions is vital and overwhelmingly agree on which of his contributions are most vital; editors also appear to believe that including Posner’s contributions is vital, but show very limited consensus on which those should be.

Other preliminary discoveries of interest are that the roster of leading Torts judges, measured by casebook impact, is dominated by judges from the state courts of California and New York (along with federal judges sitting in New York, especially Hand). The Contracts results also featured many California and New York state judges but also included judges from Connecticut and Massachusetts. Since Posner is a federal judge sitting in Chicago, these points underscore how significant Posner’s emerging dominance in the Contracts and Torts casebooks is. A goal of this new article is to continue to look into why this is so and what it may mean.