Author: Ronald K.L. Collins


Contracts in the Real World – At Last, a Book for Modern Minds

In a world where contract law, as typically taught, has one foot in the quicksand of the past, Lawrence Cunningham’s Contracts in the Real World is a most welcome and liberating alternative.  Just consider the domain of what is commonly offered up:

* sales of “Blackacre” circa the 18th and 19th centuries,

* sailing ships destined for Liverpool circa 1864,

* carloads of Mason green fruit jars circa 1899,

* a promise to pay ₤100 to anyone who contracted the flu after using a “Carbolic Smoke Ball,” circa late 19th century,

* a 12-word “contract of sale” penned on the back of a “counter check,” circa early 1950s,

* a material breach case about a dispute over the brand of pipe (Reading or Cohoes) to be used in the construction of a home (circa early 1920s),

* representations made in 1959 in connection with a grocery “chain” begun in 1922 (by 2010 the “chain” was down to a lone store in Green Bay, Wisc.),

* promises re an option to buy a ranch, circa 1960s, and

* a 1965 contract involving the 78 year-old actress Shirley MacLaine (co-star of the 1960 movie The Apartment).

One need not be wed to Henry Ford’s maxim that “history is bunk” to appreciate that much of what is presented in contracts casebooks is past tense, past perfect, and past its time.  While such an approach to teaching contracts may be a boon to slothful professors averse to updating their class notes, it does little to prepare today’s law students for the challenges facing them in the 2012 marketplace of digital deals.

Given the yester-world of many contracts casebooks, it is refreshing to have a book that brings modernity onto the stage of legal education.  While Professor Cunningham pays due deference to the canonical cases (e.g., Lawrence v. Fox, N.Y., 1859), he does so in ways that reveal their contemporary relevance (e.g., as in how that precedent applied to a 2005 Wal-Mart dispute).  Moreover, what is so stimulating about his book is that Cunningham highlights the law relevant to current business dealings of everyone from Bernard Madoff and Donald Trump to Lady Gaga and Paris Hilton, and 50 Cent, too.  There is even a case involving a dispute over the rights to the HBO TV series The Sopranos.

Likewise, Cunningham both identifies and understands the real-world contexts of modern contract law involving everything from electronic transactions and confidentiality of information, to agreements re season tickets subscriptions for sports events, to entertainment contracts, to Amazon’s provider contracts, to any variety of contemporary non-disclosure agreements, et cetera.

In all of these ways and many others, Contracts in the Real World stands alone as a work that ushers the law of contracts into our times.

At the risk of sounding unduly laudatory, this book was a joy to read. Both stylistically and substantively, it is a work of admirable achievement without a real rival.  When one offers such acclaim, there is a corresponding obligation to justify it.  Hence, permit me to explain my evaluation, at least in summary fashion. Read More


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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Book Review: Freedom and its Excesses

Free Speech: A Very Short Introduction by Nigel Warburton. Oxford University Press, 2009, pp. 115. Paper: $11.95.

What do you get with freedom?  Excesses! Exploitation!  And what does one say to that? A small price to pay. . . Without free communication . . . we don’t have a free society.

— Hugh Hefner

Shortly before he became the darling of liberals, Justice Oliver Wendell Holmes first defended and then cabined the principle of free expression: “The First Amendment,” he wrote, “prohibit[s] legislation against free speech.” But then, as he continued his thought, he stressed the obvious: it was not “intended to give immunity for every possible use of language.”  It’s an old saw, one Holmes invoked in his cramped opinion in Frohwerk v. United States (1919). “A little breath” of the wrong kind of expression, he added, “would be enough to kindle a flame.” Result:  First Amendment claim denied.

To defend freedom, one must be a risk-taker.  To recast it in metaphoric vernacular, one must be willing to let a few fires burn.  In the end, those who would protect free speech must be prepared to defend its excesses.  For example, under our federal and state constitutions, some kinds of hurtful, disruptive, and hateful speech are protected.  So, too, is  blasphemous speech as well as many kinds of generally offensive speech, “worthless” and “mindless” speech, and even certain kinds of sexual expression, even when lewd and exploitative.

Like it or not, that is the creed of modern America’s law of free speech.  It is a creed of libertarian-like toleration, one grounded in an idea that not even Voltaire ever expressly defended, if only because he never said “I despise what you say, but will defend to the death your right to say it.”  (Apparently, Evelyn Beatrice Hall coined the phrase in a 1906 work on Voltaire.)

But Nigel Warburton, a philosopher at the Open University based in the U.K., appears willing to openly champion what old Voltaire never did. “Freedom of speech is worth defending vigorously,” he writes in Free Speech: A Very Short Introduction, “even when you hate what is being spoken.”  So just how far is he prepared to go?  Metaphorically put, how many fires will he let burn in the name of this beloved principle?

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Book Review: The Universal First Amendment – Bold Ideas for Press Freedom in a Global Era

bollinger-leeUninhibited, Robust and Wide-Open: A Press for a New Century by Lee C. Bollinger. Oxford University Press, 2010, pp. 210. Cloth: $21.95.

Thirty or so years ago I had the honor of working with Robert Maynard Hutchins (then at the Center for the Study of Democratic Institutions) to help organize a two-day conference on constitutional law. Hutchins knew all of the luminaries of the day and invited notables such as Charles Black, Henry Steele Commager, Max Lerner, Louis Pollak, Ruth Bader Ginsburg, Laurence Tribe, Jesse Choper, and Charles Wyzanski. He turned to me, then a recent law graduate, to help identify some of the “up and coming players” in constitutional law – people who would “make a name for themselves and leave a mark on the law.” Happily, I obliged him and recommended, among others, Steve Shiffrin (UCLA) and C. Edwin Baker (Oregon). Oh, there was one other person I recommended; he was then an associate professor at the University of Michigan – Lee Carroll Bollinger.

Back then, in a cogent essay entitled “Elitism, The Masses & the Idea of Self-Government” (published in Constitutional Government in America), Professor Bollinger expressed concern about the “‘central meaning of the First Amendment,’” particularly as it pertained to broadcast regulation. Since then he has revisited that general concern, in one way or another, in a variety of thoughtful works such as The Tolerant Society (1986), Images of a Free Press (1991), and Eternally Vigilant (2002) co-edited with Geoffrey R. Stone. Now, with the recent publication of Uninhibited, Robust and Wide-Open, Lee Bollinger (president of Columbia) returns, yet again, to the grand optimism expressed by Justice William Brennan in New York Times Co. v. Sullivan (1964), from which the title of his latest book derives.

The book is the eighth installment in Oxford’s Inalienable Rights Series edited by Professor Stone.  Bollinger is a sensible pick given his background as an esteemed First Amendment scholar and as a university president whose toleration has been tested by both campus free speech protestors (see NYT, Oct. 22, ‘06) and by critics outraged by his willingness to allow Iran’s president to speak at Columbia (see WSJ, Sept. 24, ‘07).  He also serves as a director of the Washington Post Company.  All in all, Bollinger brings both idealism and pragmatism to his project.   As the book’s title suggests, his hope is to infuse the spirit of the former into the realities of the latter.  Professor Bollinger thus invites his readers and the courts to reconsider and recast some of their notions of First Amendment law.

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