Category: General Law


A Casebook That Gets Used

hart.gifUnlike my law professor co-bloggers, I don’t have piles of free case books littering my office. (At present, I do have lots of insurance documents and stacks of filings in pharmaceutical cases.) In legal practice I find that there is only one of my case books from law school that I still regularly consult: Hart & Wechsler’s The Federal Courts and the Federal System. There are a number of reasons for this.

First, I am mainly a litigator, which means that I spend a lot of time fussing about procedure and jurisdiction. Indeed, a great deal of my time of late has consisted of finding esoteric ways of shuttling cases from one court to another court. Of course, from time to time when all else fails we are forced to grapple with the substance of the claims in the cases. However, as a law-geek I am happy to spend most of my time on the part of the case the occurs before and up to the 12(b)(6) motion and then after final judgment on appeal. Facts are such troublesome things and they require a huge amount of scutt work to develop. Procedural and jurisdictional fussier that I am, Hart& Wechsler comes in handy.

Second, the law of federal courts is pretty complicated and if you poke around long enough you will find that it is riddled with odd little doctrines and exceptions. Hart & Wechsler is filled with case citations followed by questions. The questions are actually useful in practice. On one or two occasions, I have found that trolling through a section of Hart & Wechsler, I come across a question and think “If the answer to that question is ‘yes,’ then my client wins.” And hence a legal theory is born.

Third, Hart & Wechsler very self-consciously contains more material that is pedagogically useful. I had federal courts from Dan Meltzer, who is one of the current authors, and he made no attempt to cover everything that the text book covered. He would have been insane to do so. (Which doesn’t mean that there aren’t other insane teachers at HLS.) Obviously, Hart & Wechsler isn’t Wright & Miller, but it does provide quasi-comprehensive coverage. More importantly, it makes a serious attempt to reference the relevant secondary literature in the law reviews. Because federal courts is an area where there is still a fair amount of doctrinal scholarship, the referenced law review articles are actually useful from time to time.

So for law professors interested in writing case books with a bit of shelf life in them, here is my advice. First, pick a topic that comes up ubiquitously in litigation. Second, pick a really complicated body of law where there are lots of ambiguities. High light as many of these ambiguities as possible so that future litigators can troll through them looking for a stray edge of the law to worry. Third, be big. Don’t limit yourself to what would be useful to students in class. Make your case book into a portal for the field. Cover all of the epicycles in the doctrine and provide citations to lots of cases and relevant law review literature. Also, pick a topic where the law review literature still contains serious doctrinal writing.

Do these things and your case book to can earn a hallowed spot on my desk next to the insurance documents.


Please check the race box…

The Cherokee Nation — which allied itself with the Confederacy during the Civil War — held black slaves until 1866, when they abolished slavery under a treaty with the United States. (Question for the Indian law gurus of the blogosphere: Would the 13th Amendment have abolished slavery among Indian tribes without the treaty?) As with white slave owners, there was more than a little genetic intermingling (to use a clinical phrase) between slaves and slave owners. Now that the tribe if flush with casino cash, the question arises whether or not black decedents of Cherokee slaves can claim a share in the tribe’s gambling revenue. The courts have not been friendly to the claims, so, according to this story in Wired, those denied membership in the tribe are turning to geneticists and genealogists. This is where it gets complicated. Most African-American’s have some nominal percentage of Native-American DNA. Also, most African-Americans have a fair amount of Caucasian DNA. Finally, just to make things extra complicated, many Cherokees — today and in the 19th century — also had substantial Caucasian DNA. Hence, a modern-day black Oklahoman claiming Cherokee status on the basis of family tradition may show nothing more than the background level of DNA for Native Americans, but the Caucasian DNA that he shows may have come into his bloodline via an ancestral Cherokee owner or an ancestral white owner. The whole complicated problem is a wonderful illustration of just what a mushy concept race becomes when you push on it too hard and the strange disputes that result when government largess gets doled out on the basis of “race.”

I will leave to Kaimi the question of whether or not descendants of Cherokee slaves who cannot gain admission to the tribe, may nevertheless sue the tribe for reparations.


Practical Experience is Not Enough

cornyn.jpgThe most generous way of describing my reaction to Harriet Miers’ nomination is to say that I am rather underwhelmed. So far, Bush’s two main arguments for Meirs seem to be “trust me” and “I know her heart.” Suffice it to say, I don’t find either of these particularly compelling. Senator John Cornyn (R-Tx), however, has advanced a more substantial argument in her favor. He writes:

Harriet Miers’s background as a legal practitioner is an asset, not a detriment. She has spent her career representing real people in courtrooms across America. This is precisely the type of experience that the Supreme Court needs. The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court is missing is someone who understands the consequences of its decisions on the American people.

Cornyn’s argument echoes, in abbreviated form, that made by Stuart Taylor last month in the Atlantic Monthly. There is some real merit to the Cornyn/Taylor critique. The Court does, on occasion, tend to be rather oblivious to the chaos that from time to time its decisions can create in the lower courts. An experienced pragmatist who has duked it out in the trenches might be a welcome addition. After all, at the end of the day Supreme Court opinions are not written to provide grist for the law reviews, but rather to announce the law. Some familiarity with the law in practice is obviously a virtue.

The problem with this argument is that it proves too much. If a life time of duking it out in the trenches qualifies one for the Court then there are few senior practioners who are not qualified to be a justice. Perhaps this is the view of some, a legal iteration of Kissinger’s dictum about being governed by the Harvard faculty versus the first ten names in the Boston phone book. (“I would rather have a Supreme Court filled with nine names chosen at random from Martindale-Hubbel, rather than nine names chosen at random from the Harvard Law School faculty.”) I have to confess, however, that it is going to take quite a bit more than this to convince me. Extended practice experience may be a virtue, but it is certainly not a sufficient one.


A Note of Grief (With a Thought on the Law)

This morning I attended the funeral of a young man, much too young to die. He was barely forty years old, had two beautiful daughters, and a wife that he adored. He had enjoyed an impressive career: graduation from the University of Chicago Law School, legal practice, ten years as counsel to a powerful Senate committee, followed by a successful career as a lobbyist. In addition to the law, he was a man of broad intellectual interests, whose office was stuffed not only with law books but also Byron, Shakespeare, and Shelly.

A Senator that he had worked for spoke at his funeral, and gave a heart-felt tribute to his friend, his professional accomplishments and personal warmth. It was sincere and honest praise. But I couldn’t help but think about what thin gruel professional accomplishment was in summing up a life. I couldn’t help but think how much more powerful the non-professional memories of his brother were, or how much more real the simple sermon delivered by a life-long family friend was compared to the Senator’s tribute to glittering legal accomplishments.

I had meant my inaugural post here to be something tremendously insightful about the law. I have been kicking around ideas about Aristotle, the practice of theory, and the dignity of law office history. I had even hit upon a way of working recent Supreme Court nominations into the mix. It was going to be a truly impressive display. But I find that today I am more inclined to weep for two, newly fatherless little girls and note the commonplace that life, love, and family can make even the law seem a tinseled play thing. A clichéd thought, to be sure, but no less true for that.



A few years as a securities litigator has taught me that you can’t go public without a registration statement.(1) So, without further ado, here is a registration statement for Concurring Opinions.(2)

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