Category: Book Reviews


“Contracts in the Real World” Book Symposium


We are delighted to announce a book symposium for October 17, 18 and 19 here at Co-Op on Contracts in the Real World: Stories of Popular Contracts and Why They Matter (Cambridge U. Press 2012), my defense of the traditional common law of contracts that offers students an interesting and entertaining way through the subject by drawing on current events.

Following are  confirmed participants.


Miriam A. Cherry (St. Louis U.)

Ronald K. L. Collins (U. Washington)

Erik Gerding (U. Colorado)

Susan Schwab Heyman (Roger Williams U.)

David A. Hoffman (Temple U.)

Nancy S. Kim (Cal. Western)

Donald C. Langevoort (Georgetown U.)

Tom C. W.  Lin (U. Florida)

Jake Linford (Florida State U.)

Jennifer S. Taub (Vermont)



Recommended Reading: Robert Kaczorowski’s “Fordham University School of Law: A History”

Ever since the inception of the recession, we have been embroiled in a conversation about legal education–its costs, value, and flaws.  There has been much controversy, some informed and some uninformed about the need for reforms in legal education and ways forward.  Amidst this debate, legal historian Robert Kaczorowski has written a brilliant and engrossing history of Fordham Law School, one that highlights, among many issues, the struggles that law schools have with their universities about the funds they generate.  As Kaczorowski’s book “Fordham University School of Law: A History” highlights, universities see their law schools as cash cows, siphoning away their funding for the main university and taking away those funds from the law school.  Legal reform amidst that continuing state of affairs is a fraught enterprise, indeed.  Of the book, esteemed legal historian William Nelson (NYU) writes:

One of the best books ever written on American legal education.  Besides documenting the history of Fordham Law, Kaczorowski makes three major contributions to the knowledge of legal education’s history.  First, the book documents why large numbers of late-nineteenth and early-twentieth-century immigrants and their children needed the founding of a Catholic law school.  Second, it documents the factors that produce greatness in a law school.  Third, it traces a conflict over the funding of law school.  No other work has addressed these issues in depth.  Kaczorowski has done a remarkable job.


On Information Justice

Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said.  I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.

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Amazing New Corporate Law & Econ Book

If you are interested in corporate law, especially economic analysis of it, you likely will enjoy an impressive new book collecting original pieces by 30 prominent corporate law scholars. Edited by Claire Hill and Brett McDonnell of the University of Minnesota, the book canvases every important topic in corporate law.

After an overview that traces the history of the economic analysis of corporate law, the book addresses corporate constituencies, governance, gatekeepers, government oversight and a few other hot topics not classified.

Within constituencies, topics consider the directors’ role, the roles of other corporate actors, including shareholders, creditors, employees, and other stakeholders along with broader notions of the public interest. 

Internal governance looks at fiduciary duties, shareholder litigation, outside directors, shareholder activism and executive compensation.  

Gatekeeper pieces address lawyers and auditors, as well as rating agencies,  research analysts, D&O insurers and investment banks.

Jurisdiction looks at both domestic federalism as well as comparative perspective.

Unclassified topics address self-dealing, behavioral economics, and market efficiency.

The scholars are the following professors:

Ahdieh,   Atanasov, Bainbridge, Black, Blair, Bodie,  Ciccotello,  Clarke, Cunningham, Darbellay, Davidoff, Fairfax,  Ferri, Fisch,  Frankel, Gilson, Griffith, Hill, Kraakman, Langevoort, Lee, McDonnell, Painter, Partnoy, Smith,  Thomas,  Thompson, Walker, and Whitehead.  

The table of contents to this impressive volume follows. Get it while it’s hot!!

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BOOK REVIEW: A New (Scientific) Look at the SG and the Court (reviewing Black and Owens’s The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions)

Ryan C. Black & Ryan J. Owens, The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012)

I think a strong Solicitor General can have a very considerable influence on the Court.

— Erwin Griswold

Recently the Justices asked the Solicitor General’s office for its views on two cases, one concerning the Clean Water Act, and the other concerning the immunity of a foreign government’s central bank when the U.S. seeks to seize its assets.  Though standard fare, the request reminds us of the importance that of SG’s office in our system of justice.  To understand the workings of the Court, it is important to understand the workings of the SG’s office and how the two interact. Or as Lincoln Caplan put it in his The Tenth Justice: The Solicitor General and the Rule of Law (1987): “The relationship between the Supreme Court and the SG’s office has long been more intimate than anyone at either place likes to acknowledge.”  Indeed.  Thankfully, some of that intimacy is subject to scrutiny, as a forthcoming book on the subject reveals.

A newly released book is sure to be of interest to Court watchers. I refer to The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012) by political science professors Ryan C. Black (Michigan State University) and Ryan J. Owens (University of Wisconsin, Madison).  Both have written extensively, and continue to do so, on the Court, its workings, and on constitutional law generally.  As their book and other works make clear, different SG’s approach their job quite differently and what they do can sometimes shape the resulting law announced by a majority of the Court. (See Michael McConnell, “The Rule of Law and the Solicitor General,” 21 Loy. L.A. L. Rev. 1105 (1988), and Steven Calabresi, “The President, the Supreme Court & the Constitution,” 61 L. & Contemp. Probs. 66 (1998).)


“Learned in the law”

The Office of the Solicitor General (OSG) is a curious institution.  On the one hand, the SG is the lawyer for the Executive Branch, yet on the other hand the SG enjoys chambers at the Supreme Court as if he or she were a “tenth justice.”  Though the SG is independent of the Court, the Justices are frequently dependent on the SG’s counsel.  Not surprisingly, then, federal law (28 U.S.C. § 505) requires that the SG, and no other, be “learned in the law.”

The SG’s influence can hardly be denied. As David O. Stewart has observed: “The Justices have relied on the SG to screen unworthy petitions for certiorari and to provide a complete statement of the relevant law.  And they have granted a disproportionately high proportion of the SG’s petitions for certiorari, invited his views on cases ion which the government was not a party and tended to rule in his favor.” (Book Review, ABAJ, Nov. 1, 1987, at 136.)  So, exactly, how influential is the OSG when it comes to what the Court does or does not do?  Professors Black and Owens answer that question by way of a remarkable illustration offered up in the first chapter of their nine-chapter book. This illustration, about which more will be said momentarily, sets the stage for a rigorous and detailed examination, replete with charts, of the work of the OSG and how it helps shape Supreme Court law.  Their work-product derives largely from, among other things, cert pool memos, private docket sheets, and other archival data collected by them and other scholars. The result is a remarkable, as their discussion of National Organization of Women v. Scheidler (1994) illustrates.

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BOOK REVIEW: Judging Judges — Yet Another Posner Book Coming Soon

In contemporary law, his name ranks among the greats.  He is Judge Richard A. Posner.  Among many others, Posner’s works have in more recent times caught the attention of Justice Stephen Breyer, who not infrequently draws on or refers to the Seventh Circuit jurist’s writings.  See e.g., Dorsey v. United States (2012), Mayo Collaborative Servs. v. Prometheus Labs., Inc. (2012), Golan v. Holder (2012, dissenting), McDonald v. City of Chicago (2010, dissenting), Bilski v. Kappos (2010, concurring), Merck & Co. v. Reynolds (2010), and Chambers v. United States (2009).

Whatever the extent of his popularity at the Supreme Court, Judge Posner is one of the few federal jurists to be openly critical of the Court, and in a judicial opinion no less.  Consider, for example, a 1996 antitrust opinion in which then Chief Judge Posner took a few analytical and rhetorical swipes at the Court’s ruling in Albrecht v. Herald Co. (1968).  Therein, Posner argued that the Albrecht opinion was rife with “infirmities” and suffered from “its increasingly wobbly, moth-eaten foundations.” The Supreme Court agreed and quoted Posner approvingly, and then reversed its holding in AlbrechtSee State Oil Co. v. Kahn (1997).  Admittedly, such judicial behavior – both at the circuit and Supreme Court levels – is an anomaly.   Still, there is precedent, and its bears the Posner name.

Beyond Judge Posner’s many erudite (and sometimes controversial) judicial opinions, the Chicago-based jurist has published scores of scholarly articles and some 40 books on a variety of subjects.  Coming this January, Judge Posner returns to one of his favorite topics: judging judges, including the work of Supreme Court Justices.  Before saying anything more about his next book on this subject, permit me to flag a new article he has published entitled “The Rise and Fall of Judicial Restraint,” 100 Cal. L. Rev. 519 (2012).   Here is an abstract of that article:

Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant—restraint in invalidating legislative action as unconstitutional—as advocated by the “School of Thayer,” consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory created an unbearable tension between Thayer’s claim that judges should uphold a statute unless its invalidity was clear beyond doubt (as it would very rarely be), and constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases.

Among Thayer’s most noted followers, Posner includes Justices Oliver Wendell Holmes, Louis Brandeis, and Felix Frankfurter along with Supreme Court scholar Alexander Bickel.   (Re Bickel, see here for a recent online Symposium on the 50th anniversary of the publication of his The Least Dangerous Branch.)


Forthcoming book

Against that backdrop, we come to Judge Posner’s next book: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, January 2013, $49.95).  Judge Posner is a co-author, the two others being Lee Epstein (professor of law and political science, University of Southern California) and William M. Landes (professor emeritus of law and economics, University of Chicago Law School).

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Brin’s “Existence,” the Fermi Paradox, and the Future of Privacy

I just finished David Brin’s “Existence,” his biggest new novel in years.  Brin, as some readers know, has won multiple Hugo and Nebula awards for best science fiction writing.  He also wrote the 1999 non-fiction book “The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom?”.  More about that in a bit.

Existence is full of big ideas.  A main focus is on the Fermi Paradox, which observes that we would expect to find other forms of life out there among the hundreds of billions of suns, but we haven’t seen evidence of that life yet.  If you haven’t ever thought through the Fermi Paradox, I think it is a Genuine Big Question, and well worth contemplating.  Fortunately for those who like their science mixed with fiction, Brin weaves fifty or so possible answers to the Fermi Paradox into his 550-page novel.  Does climate change kill off other races?  Nuclear annihilation?  Do aliens upload themselves into computers once they get sophisticated (the “singularity”), so we never detect them across the void?  And a lot, lot more.

It took me a little while to get into the book, but I read the last few hundred pages in a rush.  I’ve had the pleasure to know Brin for a bunch of years, and find him personally and intellectually engaging.  I was pleased to read this, because I think it will intrigue curious minds for a long time as our telescopic views of other planets deepen our puzzlement about the Fermi Paradox.

As for privacy, my own view is that the privacy academics didn’t take his 1999 book seriously enough as an intellectual event.  One way to describe Brin’s insight is to say that surveillance in public becomes cheaper and more pervasive over time.  For Brin, having “control” over your face, eye blinks, location, etc., etc. becomes futile and often counter-productive once cameras and other sensors are pervasive and searchable.  Brin picked up on these themes in his earlier novel, “Earth,” when elderly people used video cameras to film would-be muggers, deterring the attacks.  In the new novel, the pervasive use of the 2060 version of Google Glasses means that each person is empowered to see data overlays for any person they meet.  (This part is similar to the novel “Rainbow’s End” by Brin’s friend Vernor Vinge.)

Surveillance in public is a big topic these days.  I’ve worked with CDT and EFF on, which asked law academics to propose doctrine for surveillance in public.  Facial recognition and drones are two of the hot privacy topics of the year, and each are significant steps towards the pervasive sensor world that Brin contemplated in his 1999 book.

So, if you like thinking about Big Ideas in novel form, buy Existence.  And, if you would like to retain the Fair Information Principles in a near future of surveillance in public, consider Brin more carefully  when you imagine how life will and should be in the coming decades.


New Titles from NYU Press

Here are some recent titles from NYU Press:

Killing McVeigh: The Death Penalty and the Myth of Closure
Jody Lynee Madeira

Life without Parole: America’s New Death Penalty?
Edited by Charles J. Ogletree, Jr. and Austin Sarat


Run for the Border: Vice and Virtue in U.S.-Mexico Border Crossings
Steven W. Bender


At Liberty to Die: The Battle for Death with Dignity in America
Howard Ball


Not Guilty: Are the Innocent Acquitted?
Daniel Givelber and Amy Farrell


The Right to Be Parents: LGBT Families and the Transformation of Parenthood
Carlos A. Ball


Papa’s Baby: Paternity and Artificial Insemination
Browne C. Lewis


Please check out the above books. You can propose a review of one of these books or another recent title not on the list. We’re aiming for reviews between 500 – 2000 words, ideally about 1000 words. Please email your proposals to me.


Stanford Law Review, 64.6 (2012)

Stanford Law Review

Volume 64 • Issue 6 • June 2012


BRIGHT IDEAS: Q&A with Bruce Schneier about Liars and Outliers

Bruce Schneier has recently published a new book, Liars and Outliers: Enabling the Trust that Society Needs to Thrive (Wiley 2012).  Bruce is a renowned security expert, having written several great and influential books including Secrets and Lies and Beyond Fear.

Liars and Outliers is a fantastic book, and a very ambitious one — an attempt to conceptualize trust and security.  The book is filled with great insights, and is a true achievement. And it’s a fun read too.  I recently conducted a brief interview with Bruce about the book:

Q (Solove): What is the key idea of your book?

A (Schneier): Liars and Outliers is about trust in society, and how we induce it. Society requires trust to function; without it, society collapses. In order for people to have that trust, other people must be trustworthy. Basically, they have to conform to the social norms; they have to cooperate. However, within any cooperative system there is an alternative defection strategy, called defection: to be a parasite and take advantage of others’ cooperation.

Too many parasites can kill the cooperative system, so it is vital for society to keep defectors down to a minimum. Society has a variety of mechanisms to do this. It all sounds theoretical, but this model applies to terrorism, the financial crisis of 2008, Internet crime, the Mafia code of silence, market regulation…everything involving people, really.

Understanding the processes by which society induces trust, and how those processes fail, is essential to solving the major social and political problems of today. And that’s what the book is about. If I could tie policymakers to a chair and make them read my book, I would.

Okay, maybe I wouldn’t.

Q: What are a few of the conclusions from Liars and Outliers that you believe are the most important and/or provocative?

A: That 100% cooperation in society is impossible; there will always be defectors. Moreover, that more security isn’t always worth it. There are diminishing returns — spending twice as much on security doesn’t halve the risk — and the more security you have, the more innocents it accidentally ensnares. Also, society needs to trust those we entrust with enforcing trust; and the more power they have, the more easily they can abuse it. No one wants to live in a totalitarian society, even if it means there is no street crime.

More importantly, defectors — those who break social norms — are not always in the wrong. Sometimes they’re morally right, only it takes a generation before people realize it. Defectors are the vanguards of social change, and a society with too much security and too much cooperation is a stagnant one.

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