1. The Repository of Hope

“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”

2. The Strained Debunker

“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”

3. The Old-Wine-In-New-Bottles

“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”

4. The One-Off

“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”

5. The Something Is Unconstitutional

“This article would make a fairly solid student [...]]]> This is simply my list of the eight most suspect types of articles; I appreciate that others may suggest different, or additional, entries.

1. The Repository of Hope

“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”

2. The Strained Debunker

“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”

3. The Old-Wine-In-New-Bottles

“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”

4. The One-Off

“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”

5. The Something Is Unconstitutional

“This article would make a fairly solid student note. It is my tenure piece.”

6. The Turf Staker

“My pre-emption check discovered no articles that cover this territory. I pretty much worked backward from there.”

7. The Half-Hearted Symposium Submission

“We would have tried harder, but hey, we’re talking about a symposium here.”

8. The Torn from the Headlines

“Few would recognize that the United States Supreme Court’s recent decision in ___ vs. ___ would fundamentally alter ___ law. Yet it did, or at least, you won’t be able to prove that it didn’t until this article is already well on its way to publication.”

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great [...]]]> As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.

Section A’s brief excursion through the evolution of the course book for Contracts is a sober reminder of the plodding pace of change in American legal education. It prepares readers to appreciate trade-offs, opportunities, and risks associated with migration from print to digital books. These are elaborated in three ensuing Sections, all animated by the historical perspective and illuminating trade-offs, opportunities, and risks, though each stressing a different one of those three implications of the migration from print to digital law books.

Section B stresses trade-offs, especially concerning course books’ purposes and scope; Section C stresses opportunities the digital format offers, highlighting the appeal of digital methods to produce supplements, maintain a work’s currency, and facilitate skills training; and Section D discusses matters of presentation that creators of print and digital materials alike must address to promote usefulness – and calls for vigilance against associated risks. Section E synthesizes, concluding that digital course books are important and valuable, but not revolutionary.

Noted are contributions from the following, among others: from the old days: Samuel Williston, Arthur Corbin, Lon Fuller, Grant Gilmore; in more recent times: Allan Farnsworth, Charles Knapp, Karl Klare, Ian Macneil, Stewart Macaulay, Lenora Ledwon, Amy Kastely, Deborah Waire Post, Nancy Ota, Douglas Leslie, Robert Summers, Robert Hillman, Randy Barnett; and on law books and legal education generally: Paul Caron, Michael Kelly, Matthew Bodie, Bruce Kimball, Kellye Testy, Edward Rubin, and Steven Bradford.

[DH] You’ve talked in interviews about the need to build a world in exhaustive and thoughtful detail, but leaving most of that information on the cutting room floor in the final draft. When you built Kvothe’s world, did you think (at all) about the background rules of tort, contract, obligation, and property that enabled the relatively sophisticated economy that you envisioned?

[PR] Yes and no. I thought of the legal system, but [...]]]> In a series of posts several years back, I interviewed fantasy authors about their work, including the role that law plays in the “hard fantasy” genre.  My favorite interview was with Pat Rothfuss, then the author of the best-selling “The Name of the Wind“.  Here’s what he said about the relationship between law and fantasy:

[DH] You’ve talked in interviews about the need to build a world in exhaustive and thoughtful detail, but leaving most of that information on the cutting room floor in the final draft. When you built Kvothe’s world, did you think (at all) about the background rules of tort, contract, obligation, and property that enabled the relatively sophisticated economy that you envisioned?

[PR] Yes and no. I thought of the legal system, but not in those terms. Mostly because I don’t know what a lot of those terms mean. It’s the same way that a person can be a good cook without necessarily knowing how to calculate how many joules go into melting butter using delta T.

The big reason you don’t see much of that in the book is that it isn’t relevant to the story being told, or the experience of the main character. He’s a street urchin for most of the book. If a sailor catches him with his hand in his pocket, he’s not going to press charges. What’s the percentage in that. He’s going to fetch the boy a sharp smack alongside his head, and get on with his day…

Now if Kvothe got brought up on legal charges somewhere, that would be different. Then the reader would see the horrible, corrupt wheels of justice creaking ponderously along. We get a glimpse of that in book two, as a matter of fact.

[DH] If you have imagined a common law system, what sources did you draw on to flesh out what it looks like in the “book behind the book.”

[PR] In the commonwealth, their legal system is based loosely on England in the 1500-1700’s. In short, it’s a huge, tangled, unfair clusterfuck of a system. There are courts that enforce church law, and courts that enforce the Iron Law of Atur. Each court operates under its own authority, and of course their spheres of influence overlap… It’s a real mess, but it’s the only system that they have…”

“Book Two” was released earlier this month, titled “A Wise Man’s Fear.”  Pardon the pun, but it is a fantastic read.  Well worth your time.   And, lo and behold, on pages 328-329, there’s an actual trial. In fantasyland!   But rather than get into it, glorying in how the rules of procedure and magic might interrelate, or examining how a system of logic and nuance (law?) would interact with one of fantasy and whim, Pat does this:  ”What started as a terrifying experience quickly became a tedious process filled with pomp and ritual. More than forty letters of testimony were read aloud … There were days filled with nothing but long speeches.  Quotations from the iron law.  Points of procedure.  Formal modes of address.  Old man reading out of old books.”  And later, when a character voices an objection to this cursory treatment (and who I dream to be a stand-in for me), the main character replies that a full account of the law “Would be tedious … Endless formal speeches and readings from the Book of the Path. It was tedious to live through, and it would be tedious to repeat.”

Tedious? Has he never heard of Erie?  Of Jacobs & Young? Of Pennoyer, for lord’s sakes?  The law isn’t tedious – it’s the stuff of drama!

 The workshop will take place at GW on April 1 and 2, 2011.  We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers.  We encourage everyone interested to attend and look forward to the weekend.

Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]

Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]

Alan [...]]]> Thanks to my colleague, Lisa Fairfax, GW has finalized the program for this year’s Junior Faculty Business and Financial Law Workshop and Prize (detailed here).   Of the more than 100 papers submitted, the following dozen presenters were chosen.  [Commentators appear in brackets; I've shortened some paper titles.]  

 The workshop will take place at GW on April 1 and 2, 2011.  We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers.  We encourage everyone interested to attend and look forward to the weekend.

Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]

Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]

Alan White (Valparaiso), Welfare Economics and Regulation of Small-Loan Credit: Lessons from Microlending in Developing Nations [Michael Pagano (Villanova) & Lawrence Mitchell (GW)]

Nicola Sharpe (Illinois), Corporate Board Performance and Organizational Strategy [Deborah Demott (Duke) & Michael Abramowicz (GW)]

Julie Hill (Houston), The Rise of Ad Hoc Bank Capital Requirements [Anna Gelpern (American) & John Buchman (E*Trade Bank & GW Adjunct)]

Michael Simkovic (Seton Hall), The Effects of Ownership and Stock Liquidity on the Timing of Repurchase Transactions [Richard Booth (Villanova) & Henry Butler (Mason)]

Michelle Harner (Maryland), Activist Distressed Debtors [Donna Nagy (Indiana Bloomington) & Lisa Fairfax (GW)]

Saule Omarova (UNC), The Federal Reserve Board’s Use of Exemptive Power [Patricia McCoy (Connecticut) & Arthur Wilmarth (GW)]

Heather Hughes (American), Suburban Sprawl, Finance Law and Environmental Harm [Scott Kieff (GW) & Lawrence Cunningham (GW)]

Robert Jackson (Columbia), Private Equity and Executive Compensation [Norman Veasey (Weil Gotshal) & William Bratton (Penn)]

Brian Quinn (BC), Putting Your Money Where Your Mouth Is: Post Closing Price Adjustments in Merger Agreements? [Gordon Smith (BYU) & John Pollack (Schulte Roth)]

Mehrsa Baradaran (BYU), Reconsidering Wal-Mart’s Bank [Heidi Schooner (Catholic) & Renee Jones (BC)]

This is one of many events sponsored by GW’s Center for Law, Economics and Finance.

Articles

The Coercion of Trafficked Workers Kathleen Kim

IP Misuse as Foreclosure Christina Bohannan

Consent to Retaliation: A Civil Recourse Theory of Contractual Liability Nathan B. Oman

Automation and the Fourth Amendment Matthew Tokson

Essay

No Middle Ground? Reflections on the Citizens United Decision Randall P. Bezanson

Notes

(Potentially) Resolving the Ever-Present Debate over Whether Noncitizens in Removal Proceedings Have a Due-Process Right to Effective Assistance of Counsel Walter S. Gindin

Princo, Patent Pools, and the Risk of Foreclosure: A Framework for Assessing Misuse Phillip W. Goter

Holden Caulfield Grows Up: Salinger v. Colting, the Promotion-of-Progress Requirement, and Market Failure in a Derivative-Works Regime John M. Newman

Is Senator Grassley Our Savior?: The Crusade Against “Charitable” Hospitals Attacking Patients for Unpaid Bills Amanda W. Thai

The Dean said he replied: “In the corporate world, it’s DOG EAT DOG, whereas in the academic world, it is exactly the other way around.”  Those assembled at the Faculty Meeting laughed knowingly.

Just as the guffaws died out, my great and wonderful friend, a learned faculty member, and former Dean,  quipped: “Do you mean, in academia, it’s GOD EAT GOD?”  Louder knowing laughter erupted and I still laugh about it today.

Academia can be a wonderful place. Yet it’s no Ivory Tower and can be viscious , especially for [...]]]> At a Faculty Meeting years ago, our distingished new Dean, who’d been Dean elsewhere, President of a University, and CEO in the private sector, began by saying how people often ask him: “What’s the difference between the academic world and the corporate world?” 

The Dean said he replied: “In the corporate world, it’s DOG EAT DOG, whereas in the academic world, it is exactly the other way around.”  Those assembled at the Faculty Meeting laughed knowingly.

Just as the guffaws died out, my great and wonderful friend, a learned faculty member, and former Dean,  quipped: “Do you mean, in academia, it’s GOD EAT GOD?”  Louder knowing laughter erupted and I still laugh about it today.

Academia can be a wonderful place. Yet it’s no Ivory Tower and can be viscious , especially for younger scholars, doing graduate work at elite institutions.  It usually gets better but it can be tough later too. 

There are many ways to cope. One is remembering to research and write for yourself, in the first instance, not to please or even influence others.  Of course, it can be rewarding to have those effects and, especially, to be cited favorably, but that usually comes in due course.

Keeping a sense of humor and some sobriety about also helps.  Whenever I hear about the lion cages of graduate study, or vexing insecurity during early years of untenured appointments, I share the foregoing memorable scene.

When law journals were as old as blogs are today, review articles were pithy and short.  For example, the famous unsigned 1880 review of Langdell’s Contracts casebook (attributed to Holmes) ran 1,200 words in volume 14 of American Law Review, packed with punch and still valuable commentary on the case method of law teaching.   At the other extreme, an 1898 review of Keener’s Contracts casebook, appearing in volume [...]]]> Is there an optimal length for a blog post or an ideal depth?  Some posts around the blogosphere are surprisingly brief, perhaps a mere sentence noticing an article or book publication or other event, while others probe deeply through layers of challenging ideas requiring up to 4,000 words to feature.  Can posts be too short and snappy or too long and laborious?

When law journals were as old as blogs are today, review articles were pithy and short.  For example, the famous unsigned 1880 review of Langdell’s Contracts casebook (attributed to Holmes) ran 1,200 words in volume 14 of American Law Review, packed with punch and still valuable commentary on the case method of law teaching.   At the other extreme, an 1898 review of Keener’s Contracts casebook, appearing in volume 8 of Yale Law Journal, ran a mere 53 words, leaving the reader bereft.

True, articles ran much longer than the book reviews of late 19th and early 20th century legal literature, but still were limited to around 10,000 words apiece.  And that enabled covering vast subjects.   Over six generations, the average length bloated, with many pieces bursting to 50,000 words or more, before recently cut to around 25,000 words by some sensible law students.  Book reviews in law journals often still run that length, though 8,500 words is the cap set by the prudent editors of Michigan Law Review’s Annual Survey of Books.   

Posts here at Concurring Opinions average some 800 words, akin to old-fashioned print op-ed pieces, though no explicit policy rules and there are plenty much shorter (this one is 375 words).   Co-Op’s guidelines for its book review project suggest 1,000 as the ideal length of book reviews, noting that they may range from 500 to 2,000 words.  The same seems roughly the mode and norm at peer sites, including most of those listed on our Blogroll (scroll way down in the column to your right). 

But I detect some increase in the average length and broadening of the range.   Looking way into the distant future, imagine doing all reading and writing in this space.   Posts once as pithy as Holmes’s review of Langdell become longer than law review editor caps.   Yet even 53-word publications are possible.

Instead, this task seems to be a service duty each tenured academic has to the broad academy as a whole. True, writers invariably receive a warm “thank you” note from the Dean at the requesting school and appreciation from the home Dean and Provost as part of their annual review of faculty contributions. There’s also the intrinsic reward of [...]]]> Most schools don’t pay honorariums to outside scholars to write tenure letters (that vital component of a professor’s application for promotion and tenure), whether on internal promotions or about lateral recruits. At least that’s been my experience, based on writing about 25 of them since my own first tenure 15 years ago and requesting them on behalf of a couple of schools.

Instead, this task seems to be a service duty each tenured academic has to the broad academy as a whole. True, writers invariably receive a warm “thank you” note from the Dean at the requesting school and appreciation from the home Dean and Provost as part of their annual review of faculty contributions. There’s also the intrinsic reward of engaging deeply with a single scholar’s body of work and writing a report for an audience not necessarily expert in the particular field.

On the other hand, writing a thoughtful and fair tenure letter requires many hours of work, at least five and often ten or sometimes more. As a result, at least one school pays $250 for the service.

Should other schools pay money too or should that school stop spending money it need not spend? My vote is to save the money. If offered the honorarium, I favor asking the school to reallocate it to PILF (the Public Interest Law Foundation) to fund stipends for law students working in the public interest.

What do you think?

Within weeks, Terry sued Rose for breach of contract. In court, Rose also argued that any deal they had was unenforceable because it amounted to an illegal bargain under state anti-gambling statutes.  As [...]]]> Widely reported as a feud over a half-million dollar winning lottery ticket between two octogenarian sisters, close friends their first 70 years, it turns out to have been a fight over a $250 debt.   In 1995,  Terry Sokaitis and Rose Bakaysa, each now close to 90 years old, signed a written agreement saying they were partners in a longstanding and fun gambling program, winnings to be split equally.  In 2005, a lottery ticket Rose bought with their brother won $500,000.  Terry wanted her share but Rose refused.  Rose said they rescinded the 1995 deal during a heated 2004 telephone argument. 

Within weeks, Terry sued Rose for breach of contract. In court, Rose also argued that any deal they had was unenforceable because it amounted to an illegal bargain under state anti-gambling statutes.  As I reported, the Connecticut Supreme Court resolved that narrow issue against Rose, showing how the ancient statute was functionally superseded by a host of legalized state gambling that put contracts to split lottery ticket winnings outside its scope.   Back in the trial court, five years after Terry sued, Rose asserted the rescission defense and after a trial in the spring, a judge found that rescission valid.

The unreported opinion adds details to this sad tale, sisters tight for 70 years, through marriage, illness, and all, turning bitter when they couldn’t agree on whether Rose had loaned Terry $250 or $100, and over whether Terry had any money to repay her.  During the heated talk that resulted, Terry yelled that she didn’t want to be Rose’s gambling partner anymore and Rose said okay.  The sisters haven’t spoken since.  That Rose won the half million with their brother a year  later seems to have sealed the bitterness.  In her opinion after trial, Connecticut Judge Cynthia Sweinton reprints a letter Terry wrote Rose as their legal battle intensified.  It’s a tear-jerker, be warned, but it follows. (I have corrected some spelling and grammar mistakes.)

Judge Sweinton, before concluding her opinion, wrote resonantly: “There is something in this tragedy that touches most people. While the court may be able to resolve the legal dispute, it is powerless to repair the discord and strife that now overshadows the once harmonious sisterly relationship.”

Rose,

I hope you get this letter because I have plenty to say. The most important thing is I am so sick over what is happening with you and I going to court. None of this would have happened if you were not so greedy . . . All I know is we should both be ashamed of ourselves. We are sisters. Going to court is not right. All I know is I am entitled to my share of the money and you know it.

I remember when I was pregnant. We went to Raphel’s and you bought me my dress. It was navy blue and it had pink flowers on it. You and I used to go to the casino all the time and to Old Saybrook and look at all the houses and get hot dogs out there at the restaurants.

Well Ro Ro, I don’t know what is going to happen. I want you to know I will always love you. But if you wanted to hurt me you did. . . . My kids are so good to me and they do send me any money I need. They can’t do enough for me so I guess I am rich with a lot of love and that is something you can’t buy.

I hope you feel good and have good health. I have sugar and I have a disease that is incurable. It is called neuropathy. I can’t walk at all. It is really painful. But Ma always said other people have worse problems so I just ask God to let me be able to handle it all.

Take care of yourself. Mom would be sick over all of this. It would never happen if you at least shared some of the money with me. Do you think I would have done that to you? Never . . .

See you in court.

Terry

My own hope from the sidelines is for a healing, and I’m quite sure, as I wrote in my previous post, that five years of litigation didn’t help that hope.

That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of [...]]]> Ok that’s actually a rip-off of the gimmicky slogan of “Lending Tree,” but I have been thinking recently (as many do at this time of year) about the law review submission process. In particular, I have been thinking about the expedite element, and why it happens. One answer is that we are all prestige-whores (er..lovers) and that the only thing we value is the rank of the school where the law review is housed.

That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of view of the submitting authors” advisedly, because there are many axes on which law reviews differ. Even in my short time as an academic, the reviews I have worked with have varied significantly as to the quality of substantive comments, the likelihood they would stick on timeline, whether they use track changes to make it easy to review their alterations, etc. The problem is that these are all things I have only discovered AFTER working with them.

This is in some ways similar to health care purchasing by an individual consumer – quality is opaque, and gathering the necessary information would be too costly to do on my own (there is a further problem with health care that even when information is available such as report cards for hospitals created by state agencies, as I discuss here, many patients tend to ignore them and/or privilege word of mouth appraisals). Further, there is an additional inter-temporal problem in that each law review’s board (and thus quality) and policies changes on a regular basis such that information becomes stale quite quickly. Even in an institutional-memory-obsessed journal like the Harvard Law Review with a long tradition, there is a period called “transition” when the 2Ls take the reigns and as a body can change many of the facets of the reviews process, including things like the number of stages of editing, etc.

Is this problem intractable? Yes, and no. Law reviews could advertise and contractually commit themselves to particular types of terms as soon as the submission season starts – for example, issues will come out within one month of issue date, to give one example.  (I put to one side other kinds of differentiation – for example accepting longer articles when other journals do not, since that will change at most to whom one submits, and even then most of us are risk-averse enough to be likely to shorten our papers to fall within the guidelines of the larger number of journals). True, it is very very unlikely that any of us would sue a law review over the failure to meet that term of publication date, but even the promise itself might be enough to satisfy us and set up a more desirable norm. Are there enough of these kinds of terms on which journals could compete that would counterbalance the incentive to merely pick the best ranked journals? I am not sure, it seems plausible it might matter within rough journal peer groups, but I would be curious if others have ideas of what kinds of terms they would like to see law reviews compete or converge on? Indeed perhaps some enterprising law review editors may be reading this very blog…

I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point [...]]]> Like many, I was glued to the blogosphere waiting for the decision in Perry v. Schwarzenegger yesterday, the Prop 8 decision. One seemingly superficial issue I have been interested in is how the court would refer to the class to which the plaintiffs belonged: as “gay” men and women or homosexuals?

I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point said to me: “Oh, and we have a really vibrant homosexual community.”

I was a little amused that he focused on this element of the city, though perhaps something I said had primed him, or this was just a testament to the perceived role of gays in the rise of the creative classes and a city’s hipness factor. What surprised me the most, though, was actually his language — his use of the term “homosexual” in a positive way. My own anecdotal experience is that people use the term “homosexual” when they want to ascribe negative connotations, and “gay” when they want a more neutral or positive ones. A quick (and very unscientific) google search of the terms “homosexual marriage” and “gay marriage” this morning seems to confirm this.

On this view it is unsurprising, then, that Judge Walker in the Perry opinion repeatedly refers to the plaintiffs and their group as “gays and lesbians”.  What is more surprising is that I expected I would find a split in usage between Justice Kennedy and Scalia’s majority and dissenting opinions in Lawrence v. Texas, with “homosexual” being dominant in the Scalia’s opinion.  Interestingly, both opinions use “homosexual.”

So here are a few questions I am thinking about: Was my initial instinct that which term to use reflects a political valence correct? Does it instead reflect something else? Geography (think of the student driving me)? Age? A change in time over which term is more acceptable, a little bit like the way the term “handicapped” has given way to “disabled” to “people with disabilities”?  Is the usage of “homosexual” by people who do not want to expand rights for the group a subtle attempt to bring the “sex” (in the intercourse sense) back into people’s minds?  Which word do you use in the classroom? Would Lesbian, Gay, and Bisexual students be offended by the term “homosexual,” and if so, is that a good reason not to use it?

The first one is A Structural Vision of Habeas Corpus by Eve Brensike Primus.  Here is the abstract:

For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants’ federal rights. Indeed, many states systematically violate criminal defendants’ federal rights with impunity. This Article proposes a new conception of [...]]]> I want to highlight two terrific new pieces of scholarship that you should check out.  I read them on my trip.

The first one is A Structural Vision of Habeas Corpus by Eve Brensike Primus.  Here is the abstract:

For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants’ federal rights. Indeed, many states systematically violate criminal defendants’ federal rights with impunity. This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when a state routinely violates its criminal defendants’ federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.

The second one is Impeached:  The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy by David O. Stewart.  It’s a blow-by-blow account that is full of fascinating details that I’m finding really useful as part of my Bingham research.  The discussion of the bribes that were used to buy Johnson’s acquittal is especially fun.

With the FAR form due later this week,  all those of us who went through this process as entry-levels can commiserate with our students, fellows, etc, just beginning the process. Love or hate the entry-level recruiting process, one thing seems obvious to me: we can make it better. To that end I invite readers to add to this thread with their suggestions for improving this process, with one proviso: make it cheap! If you could change something in the process at low or zero cost, what would it [...]]]> Thanks to Dan, Angel, and the rest of the Concurring Opinions crew for inviting me to blog this week.  I’ll try to vary posts between scholarship/ideas, faculty life, and pop culture (and all permutations thereof).

With the FAR form due later this week,  all those of us who went through this process as entry-levels can commiserate with our students, fellows, etc, just beginning the process. Love or hate the entry-level recruiting process, one thing seems obvious to me: we can make it better. To that end I invite readers to add to this thread with their suggestions for improving this process, with one proviso: make it cheap! If you could change something in the process at low or zero cost, what would it be? I give a few of my own answers below, but hope others will contribute through the comments:

1. Re-work the course listings to be selected on the FAR form. As I recall there were 4-6 differently named courses in my primary field (law and medicine, health law), while for others their field was not an option at all. I recognize that nomenclature is fluid, but it seems to me it would not be that hard for someone at AALS to compare their categories to course offerings at 5 member schools and bring them more into accord.

2. One tower, please. Did you know the Faculty Recruitment process measures not just legal acumen and collegiality but athletic ability? You have if you have ever tried to get from the top floor of one tower of the Marriot Wardman tower to the top floor of the other in less than 5 minutes using the stairs. Candidates are stressed and late, interviews go over, chaos ensues. Is it really impossible to put every committee in one tower, if you are booking the conference several years in advance? I know committees are of different size, and also opt for rooms of different grandeur, but a tighter squeeze or less opulence would be easy prices to pay for less rushing.

3. Get a blowhorn. At attending the American Law and Economics Association meeting one year I was amazed to find that each session is so precisely divided by the number of allocated minutes to each speaker, that at the designated point a blowhorn is aired throughout the hallways, and people leave and enter rooms to hear different speakers in the same session. Assuming that the FRC takes up much of the Wardman, could something similar be done to keep interviews on their timetable? That way there would be no awkward knocks on the door, or sweating when a particular committee held you over cutting into your next appointment.

I’m thinking small (too small?) but I’d be curious what other constructive cheap fixes people have thought of over the years.

But an excellent article well-placed also often translates into annual salary increments above a school’s merit pay raise pool. That can bump a raise up anywhere from 1% to 3%, or more, depending on the article and how one’s home-school peers do.

For a mid-career scholar earning a base salary of $200,000, say, that means as much as $6,000 or more. For that person, adding $6,000 a year for life, the article’s economic value gets well into the six figures (even discounting [...]]]> What’s the economic value of that scholarly article many law professors will write this summer? For the many schools that award scholars summer research grants, it is at least the value of that allocated to the piece—usually $12,500 to $20,000 at most US law schools.

But an excellent article well-placed also often translates into annual salary increments above a school’s merit pay raise pool. That can bump a raise up anywhere from 1% to 3%, or more, depending on the article and how one’s home-school peers do.

For a mid-career scholar earning a base salary of $200,000, say, that means as much as $6,000 or more. For that person, adding $6,000 a year for life, the article’s economic value gets well into the six figures (even discounting to present value).

For others, true, the payoff is less—but still considerable. Take a more senior professor earning $250,000 with only 10 years of teaching left. The increment adds some $60,000 in present economic value.  Even an entry-level professor at the other end of the earnings spectrum, making $100,000, say, and getting even only a 2% bump, enjoys lifetime payoff about half that.

And that’s not all on the economic front. Add to that the value that may arise from influential articles that lead to lateral recruiting offers at higher pay or that induce one’s home school to outbid competing schools seeking to move them. Incremental annual differences in those settings can be tens of thousands of dollars, translating into many multiples of that, lifetime.

Even so, law professors, especially at mid-career, are commonly tempted to take up consulting or other work during the summer for lucrative but one-time compensation, eating into scholarly writing time.  It may be possible to do both.   But the opportunity cost of scholarship is high. The consulting work must be extremely lucrative to be preferred.

And all that is before considering the psychic and professional benefits from a self-selected scholarly assignment, a creative job well done, and making a contribution to knowledge.  It is difficult not to prefer writing the article to nearly any other professional pursuit.

Standard talk sees US government’s capital transfers from the federal purse to private corporations as resulting in “taxpayers owning investments” in these companies. The upshot of this speech is the illusion that (a) people who pay US federal income tax (b) now own a bit of these corporations and (c) are entitled to enjoy investment return from that. All these conceptions are misleading. Clinging to them will complicate the process of government rescue and revival at the heart of this effort. 

First, funding for government [...]]]> Misleading talk continues to plague discussions of government’s financial intervention into private enterprise, including automotive, insurance and banking companies. Latest talk, centered at General Motors but applicable to AIG, Citigroup and others, is misuse of three abstract notions: taxpayer, ownership and investment.

Standard talk sees US government’s capital transfers from the federal purse to private corporations as resulting in “taxpayers owning investments” in these companies. The upshot of this speech is the illusion that (a) people who pay US federal income tax (b) now own a bit of these corporations and (c) are entitled to enjoy investment return from that. All these conceptions are misleading. Clinging to them will complicate the process of government rescue and revival at the heart of this effort. 

First, funding for government capital transfers is provided only in part by mandatory tax payments by persons subject to US taxation; a large portion of the federal government’s current budget is obtained by borrowing. A sizable part of this debt financing is owned by the Chinese government. When significant federal budget deficits persist, it is misleading to say government capital infusions into private enterprises are being made “by the American taxpayer.” It would be more accurate to say “by US creditors and the American taxpayer.”

Second, what ownership interest does any taxpayer (or creditor) have? Ownership designates a bundle of interests or rights, the most exquisite the rights to control and dispose. No taxpayer has remotely any such interests or rights, directly or indirectly, either in funds sent to Washington or from any allocation of those to corporate enterprises.  Taxpayers own interests in GM as much as they own interests in I-95, Amtrak, Medicare and the White House. It is misleading to say American taxpayers own much of anything in GM.

Third, the purpose of the funding resulting in the interest is not investment in the pertinent sense of providing financing for economic return, accepting associated risks. None of government’s decisions in relation to GM or other failing companies has remotely any such motivation. The purpose and goal is to rescue companies and their role in US industry and economy. It is financial aid.  This has nothing to do with investment in its traditional sense and it is misleading to speak otherwise.

Such misleading talk is costly because resulting illusions complicate the inherently difficult task of unwinding all this involvement. Consider what is happening with bank recipients of federal funds now seeking to repay them, including warrants government has to buy bank stock. An issue is how much banks should pay to redeem the warrants. Talk turns to how “taxpayers” need “return on investment” in the warrants they “own.”

But this is hokum.  Treasury should cut a pragmatic deal with the banks and redeem warrants for responsible consideration. But negotiations should not pretend that Treasury is acting on behalf of taxpayers who own the warrants and expect a fair return. 

GM is getting funding as federal aid.  It is an ailing business seen as important to US national economic interests.  The funding is not an investment, no reader of this post has any ownership in it, and none should have any expectation of any return on investment.   At best, the funding will enable GM to right itself.  No one should expect anything more.

The mainstream press should find other shorthand terms to translate these funding arrangements into simple sentences that are not misleading.

On May 19, the membership of the American Law Institute unanimously approved the final draft of the Principles of the Law of Software Contracts. As the Introduction to the project states, the Principles “seek to clarify and unify the law of software transactions.” The Principles address [...]]]> Thanks to Dave Hoffman, who just completed a very successful visit at Cornell Law School, for inviting me to be a guest blogger for the month. Maureen O’Rourke, the Associate Reporter on the Principles of the Law of Software Contracts, and I are posting the following to acquaint readers with the Principles and also to respond to some criticism of one section of the Principles that creates, under certain circumstances, an implied warranty of no known material hidden defects in the software.

On May 19, the membership of the American Law Institute unanimously approved the final draft of the Principles of the Law of Software Contracts. As the Introduction to the project states, the Principles “seek to clarify and unify the law of software transactions.” The Principles address issues including contract formation, the relationship between federal intellectual property law and private contracts governed by state law, the enforcement of contract terms governing quality and remedies, the meaning of breach, indemnification against infringement, automated disablement, and contract interpretation.

The Introduction to the Principles explains further that “[b]ecause of its burgeoning importance, perhaps no other commercial subject matter is in greater need of harmonization and clarification. . . . [T]he law governing the transfer of hard goods is inadequate to govern software transactions because, unlike hard goods, software is characterized by novel speed, copying, and storage capabilities, and new inspection, monitoring, and quality challenges.” Many of the rules of Article 2 of the UCC therefore apply poorly to software transactions or not at all, and the Principles are intended to fill the void.

The Principles are not “law,” of course, unless a court adopts a provision. Courts can also apply the Principles as a “gloss” on the common law, UCC Article 2, or other statutes. Nor do the Principles attempt to set forth the law for all aspects of a transaction, but instead rely on sources external to the Principles in many areas.

The Principles apply to agreements for the transfer of software or access to software for a consideration, i.e., software contracts. These include licenses, sales, leases, and access agreements. The project does not apply to the exchange of digital media or digital databases. It applies a predominant purpose test to determine applicability to transactions involving embedded software or software combined in one transfer with digital media, digital databases, and/or services.

We are the Reporter and Associate Reporter of the software principles. We have been greatly aided by our advisors, consultative group members, ALI Council members, liaisons from the National Commissioners on Uniform State Law, Business Software Alliance, and the American Bar Association, and many additional lawyers from industry and other groups who, over the last five and one-half years, have met with us, talked with us on the phone, and exchanged e-mails with us. We believe the project moved along smoothly largely because of the efforts of all of these groups and individuals.

Nevertheless, in the two weeks leading up to approval in May, we received communications from a few software providers evidencing concern largely with one section of the Principles. Section 3.05(b) creates a non-excludable implied warranty that the software “contains no material hidden defects of which the transferor was aware at the time of the transfer.” The section only applies if the transferor receives “money or a right to payment of a monetary obligation in exchange for the software.” Because the section may be the most controversial provision, we devote the rest of this post to the issue.

Despite concerns that section 3.05(b) creates “new law,” it simply memorializes contract law’s disclosure duties and tort’s fraudulent concealment law. The section makes clear that these rules apply to software transfers in order to allocate the risk to the party best able to accommodate or avoid the costs of materially defective software. Obviously this is the transferor in situations where only it knows of the material defect and the transferee cannot protect itself. The section requires that the transferor knows of the defect at the time of the transfer (negligence in not knowing is not enough to trigger liability), the defect is material, and it is hidden.

A few software providers have concerns that the concepts of “hidden,” and “material defect” are obtuse and will “increase litigation” or require a flood of “detailed notices” to prospective users. These concepts, however, are hardly unknown to the law. A comment to section 3.05(b) says that a “hidden” defect occurs if the “defect would not surface upon any testing that was or should have been performed by the transferee.” This is nothing new. See, e.g., UCC 2-316(3)(b) (“there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to [the buyer]“).

A few software providers also worry about the meaning of “material defect.” The comments to section 3.05(b) point out that the section simply captures the principle of material breach: Does the defect mean that the transferee will not get substantially what it bargained for and reasonably expected under the contract? The criticism that “materiality” is too vague, if accurate, would mean that contract law would have to abolish its material breach doctrine too.

Putting together the requirements of actual knowledge of the defect at the time of the transfer, that the transferee reasonably does not know of the defect, and that the defect constitutes a material breach means that a transferor would be insulated from liability in situations identified by the concerned software providers as problematic. These include where the transferor has received reports of problems but reasonably has not had time to investigate them, where the transferee’s problems are caused by uses of which the transferor is unaware, where the transferor learns of problems only after the transfer, and where the problems are benign or require reasonable workarounds to achieve functionality. The best example of when section 3.05(b) would apply is, as comment b to the section says, where the transferor already knows at the time of the transfer that the software will require “major workarounds . . . and cause[] long periods of downtime or never [will] achieve[] promised functionality,” the transferee cannot discover this for itself, and the transferor chooses not to disclose the defect.

As we have already said, the section simply memorializes existing law. Under the common law, a contracting party must disclose material facts if they are under the party’s control and the other party cannot reasonably be expected to learn of the facts. Failure to disclose in such circumstances may amount to a representation that the facts do not exist and may be fraudulent. See, e.g., Shapiro v. Sutherland, 76 Cal. Rptr. 2d 101, 107 (Cal. Ct. App. 1998) (“Generally, where one party to a transaction has sole knowledge or access to material facts and knows that such facts are not known or reasonably discoverable by the other party, then a duty to disclose exists.”); Hill v. Jones, 725 P.2d 1115, 1118-19 (Ariz. Ct. App. 1986) (“[U]nder certain circumstances there may be a ‘duty to speak.’ . .  . N]ondisclosure of a fact known to one party may be equivalent to the assertion that the fact does not exist. . . . Thus, nondisclosure may be equated with and given the same legal effect as fraud and misrepresentation.”). The Restatement (Second) of Contracts section 161(b) states that “[a] person’s non-disclosure of a fact known to him is equivalent to an assertion that the fact does not exist . . . where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the contract and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing.” Section 161, comment d of the Restatement (Second) adds “In many situations, if one party knows that the other is mistaken as to a basic assumption, he is expected to disclose the fact that would correct the mistake. A seller of real or personal property is, for example, ordinarily expected to disclose a known latent defect of quality or title that is of such character as would probably prevent the buyer from buying at the contract price.”

One concern of a commentator is that fraudulent concealment is a tort, implying that it has no place in the Principles. But the principle appears prominently in the Restatement (Second) of Contracts section 161. And why not memorialize a principle that discourages a party in a contract setting from hiding material facts that the other party reasonably does not know? The commentator notes that fraudulent concealment requires intent to deceive, but wouldn’t that be the usual inference if a transferor licenses software it knows is materially defective and knows the transferee cannot discover it?

A few organizations also are concerned that section 3.05(b) cannot be disclaimed. But there are plenty of cases that do not allow a party to contract away liability for concealment. One critic wonders why a statement such as “I am not giving any assurances about there being no defects in this software,” should not insulate a transferor from liability. A reasonable licensee, assuming the good faith of the licensor, would believe that this licensor does not intend to make any express warranties or implied warranties of merchantability or fitness, not that the licensor knows that the software is materially defective so that the software will be largely worthless to the licensee. A transferor playing this game is surely in bad faith and, frankly, engaging in reprehensible conduct. But there is a way to ensure no liability under this section, namely to disclose material hidden defects. In effect, disclosure is the disclaimer.

Bob Hillman and Maureen O’Rourke
June 2, 2009

My second new episode is an interview with Professor Judith Maute of the University of Oklahoma. As far as I know, Professor Maute has the distinction of being the only law professor who has ever had one of her law review articles turned into a movie. In this case, the movie is the recently released documentary “The Ballad of Willie [...]]]> It’s been a while since I have been able to put together a Law Talk episode, but I still hope to keep this podcast going with two new episodes. The first new episode is simply a collection of the Battlestar Galactica interviews conducted by Dan, Dave, and Deven a couple of months ago. Enjoy all you affianados of law and science fiction!

My second new episode is an interview with Professor Judith Maute of the University of Oklahoma. As far as I know, Professor Maute has the distinction of being the only law professor who has ever had one of her law review articles turned into a movie. In this case, the movie is the recently released documentary “The Ballad of Willie and Lucille,” which looks at the iconic contracts case of Peevyhouse v. Garland Coal & Mining Co. The film was recently given the “Chris Award” by the Columbus Film Fesitival, and in our interview Professor Maute talks about teaching, historical research, movie making, judicial bribery, and the importance of a lawyer’s appreciation for facts. Enjoy!

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