Our discussion of litigation, character, and humility at the John Templeton Foundation continues with talk of mediation, settlement rates, the impersonality of big cities, and contingency fees.
Posts Tagged ‘WO writings’
Litigation, humility, and character: join me at Big Questions Online
What does the pursuit of litigation do to litigants’ characters? What does it do to the character of organizations and whole societies? Does it undermine the humility that some (though not all) of us deem an important virtue in persons and institutions?
This week I’m leading a discussion on that subject at the John Templeton Foundation’s Big Questions Online. It starts with a brief essay in which I note the older view, held by many religions and philosophical schools but now out of favor in much of academia, that litigiousness is a kind of vice, to which people are perhaps peculiarly susceptible if they take to an extreme what is otherwise the virtuous impulse to pursue justice. I cite familiar sources (Abraham Lincoln, Bleak House) as well as those perhaps less familiar (Kleist’s Michael Kohlhaas) that shed light on how pride in one’s own quarrels, even (especially?) those that are rightful, can distort perceptions and harden sympathies.
My observations, however, do no more than scratch the surface of a big subject on which there is much to say. It’s a moderated discussion and your comments are welcome through the week. And please pass on word to others who might be interested.
Usage note
A reader chides me for using the prefix “ultra-” to mean “extremely,” saying it should be limited to meaning “beyond.” My response is here.
More reactions to “Abolish the Law Reviews!”
My Atlantic piece touched off a lot of discussion, much of it quite constructive, of where law reviews fall short and how best to fix or replace them. Unless you’ve caught up with it already, you’ll want to check out Friday’s post rounding up more than a dozen reactions (and updated a couple of times over the weekend to include more content). On Monday, along with new reactions at legal blogs, the piece took off on Twitter as well.
Joe Hodnicki, Law Librarian Blog:
… eventually, reader expectations will push the long-form law article into the 21st century of e-publishing.
In the process one can only hope that law journals and enhanced regularly updated serial law eBooks will also eliminate the print era version of date-stamping by ceasing publication of “issues” for journals and, for serial eBooks, scheduled “supplements” or “editions.” As soon as the text has completed the editorial process, just e-publish the damn thing immediately.
Old publishing habits die hard, but it is time to create new ones by eliminating print era legacies.
Mark Giangrande, also of Law Librarian Blog, by email, following up on our previous excerpt:
One thing not in my Law Librarian Blog post was a quick check on Westlaw to see what quantity of law review cites appeared in Supreme Court opinions in the last term. A quick count showed at least 56. What surprised me was some of the citations went back to the 1960s. I’ve often criticized law reviews for publishing philosophical pieces that tend to show faculty writing to impress their friends and win promotions, little of which contribute to the bench and bar (per CJ Roberts’ point). The Court still uses them, but generally those which actually discuss the law as the law.
The full list of 56 last-term SCOTUS law review cites, of which the most satisfying is probably “Note, Regulation of Comic Books, 68 Harv. L. Rev. 489, 490 (1955),” is too long to be included here, but those interested can drop him a line.
Adam Kusovitsky and colleagues, Pace International Law Review:
Havighurst is correct to point out that law reviews are published in order that they may be written, but that fact should not rouse a sneer or scoff. …Law reviews provide thousands of students an apparatus to develop unrivaled editing, writing and researching skills, which ultimately makes them better attorneys and more effective writers in general.
Meanwhile, Vitruvian Design spies similar signs of sclerosis in humanities and classics journals. There’s even a Reddit thread (hipsterparalegal). And the article has gotten no end of pick-up on Twitter, including Lawyerist, Corby Kummer, Boston Bar (“must reading”), Cleveland-Marshall Dean Craig Boise, and Bryan Cave Library, to name a few. And:
Are law reviews outdated, impractical, and slowly dying? h/t @DUKEpress – bit.ly/NfjI4G
— Harvard Press (@Harvard_Press) July 9, 2012
Abolish law reviews? But what would top 2Ls do all day? theatlantic.com/national/archi…
— Theodore T (@deEscalate) July 9, 2012
Harvard LR has <2000 subs? Makes you wonder about the rest. RT @LawandLit: Abolish the Law Reviews! – The Atlantic j.mp/Ob54Jh
— Colin Lachance (@ColinLachance) July 5, 2012
@NoKromHd @walterolson @overlawyered @TheAtlantic Even that’s questionable, because so few journals restrict themselves to top grades.
— tedfrank (@tedfrank) July 10, 2012
And this rather cruel exchange:
@sfvba What’s a law review? Regards, @pbsenerchia, Esq.
— Philip Senerchia (@pbsenerchia) July 9, 2012
“Abolish the Law Reviews!”
I’ve got a new essay up at The Atlantic, part of the “America the Fixable” series edited by Philip K. Howard. I have a bit of fun at the expense of the Harvard Law Review, raising the question of whether it should be held to lower standards than the Long Island tabloid Newsday, and cite such figures as Richard Posner, Elizabeth Warren, Ross Davies of George Mason, and the bloggers at Volokh Conspiracy and Balkinization.
American lawyers: a disintegrating guild?
Yes, lawyers are organized as a guild, but I’m not convinced that arrangement is disintegrating or on the way to doing so. I explain why in a new piece at Liberty and Law that’s a response to an essay-in-chief by Jim Chen of Louisville Law School arguing that competition and technological advance are fast eroding lawyers’ guild privileges. The other response-essay is by Brian Tamanaha of Washington U. in St. Louis, whose new book Failing Law Schools has been getting widespread acclaim [NLJ, Garnett]
and whose recent essays in the NYT and Daily Beast have stirred widespread discussion. (& Instapundit, Paul Caron/TaxProf, Scott Greenfield).
“A trap for small business”: Welcome Baltimore Sun readers
I’m in the paper with an opinion piece on federal prosecutors’ assault on small business for bank deposit “structuring.” My posts on the South Mountain Creamery case, in which federal authorities seized the bank account of a Middletown, Maryland dairy which had allegedly been depositing farmers’ market proceeds in installments of less than $10,000, are here and here. Van Smith of the Baltimore City Paper deserves particular credit for breaking the structuring story with reports here and here. Update: South Mountain case settles.
Will Stand Your Ground change the outcome of the Martin/Zimmerman case?
The Orlando Sentinel asked me to analyze how Florida’s Stand Your Ground law affects the Trayvon Martin shooting case. I conclude that in most likely scenarios, the law will make no difference one way or the other on George Zimmerman’s guilt or innocence, though it does help him on some points of procedure. Jacob Sullum has related thoughts at Reason (more at Cato).
The other piece in the point-counterpoint is from Florida prosecutor Buddy Rogers who emphasizes that claims of justifiable homicide have risen sharply (from 12 to 33 a year), even if homicides per capita themselves have not. I took a look at the crime numbers in this Cato post.
To answer a question, it was the Sentinel editors who elected to describe the antagonists in the Sanford confrontation by way of a given name for one (“Trayvon”) but a surname for the other (“Zimmerman”). My own inclination is to use a surname for both.
Michael Mannheimer has an important post on the role of “provocation” in the Martin/Zimmerman case at PrawfsBlawg. Earlier here, here, and here.
P.S. David Kopel similarly argues that Zimmerman’s guilt or innocence (depending on which version of events is accepted) is no different in Florida from what it would be under the law of New York or any other state; he also defends the rationale for Florida’s use of an immunity, which he argues “does not change the law, but… apparently is effective at reminding law enforcement officers of the standard they are required to obey” under court precedents forbidding arrest without probable cause.
Don’t rush to repeal “Stand Your Ground” laws
The New York Times invited me to participate in a “Room for Debate” discussion of Florida’s controversial “Stand Your Ground” self-defense law, and my contribution is here. I elaborate on some of the issues at stake — including the failure of Florida’s violent crime rate to rise as predicted under the law — in this Cato post (& welcome Instapundit, Reihan Salam/NRO, Alex Adrianson/Insider Online, Aaron Worthing, David Codrea readers).
Welcome New York Times readers
I contribute to a “Room for Debate” symposium on the 2012 farm bill here (& Drovers Cattle Network).
P.S. As Nicole Kurokawa Neily reminds us, Cato has been active on farm bill issues for many years, including this 2007 paper by Sallie James and Dan Griswold.