Michael Ariens | St. Mary's University (original) (raw)

Papers by Michael Ariens

It was once an open secret among lawyers that finding an expert to testify on your client’s behal... more It was once an open secret among lawyers that finding an expert to testify on your client’s behalf was one of the easiest aspects of litigating. Lawyers not in possession of private lists of experts easily located persons willing and able to sell their expertise in the back pages of the state bar journal, in advertisements in legal newspapers, and in direct mail appeals from companies whose business is selling expertise. One consequence was that the phrase “a battle of the experts” came about, and people began referring to both lawyers and experts as “hired guns.” Another consequence was a professional cynicism about the virtue (classical, not instrumental) of experts.

The principle reason lawyers find it is easy to hire an expert to render an opinion favoring the client’s position is that the Federal Rules of Evidence make it easy to qualify a witness as an expert. Federal Rule of Evidence 702 simply requires the witness to have “specialized knowledge” which will “assist” the trier of the fact. For lawyers, then, finding and qualifying an expert is not an onerous chore. Just as the American legal system allows almost anyone to sue for almost anything, it permits almost anyone claiming expertise to testify as an expert.

A number of academic lawyers have explored the relationship of religion (and religious belief) an... more A number of academic lawyers have explored the relationship of religion (and religious belief) and law. Ostensibly starting with the late Harold Berman’s The Interaction of Law and Religion, the “religious lawyering” movement evaluates the role religious faith has in how lawyers practice law. Extended by subsequent works such as Christian Perspectives on Legal Thought, the discussion has expanded beyond the question whether a religious lawyer is a contradiction.

This essay serves as a commentary on Robert F. Cochran’s Faith and Law: How Religious Traditions from Calvinism to Islam View American Law, a compilation of sixteen essays from legal academics that address the difficulties in assessing the role of faith and law. Of these difficulties, the swiss army knife problem, identified as whether religion is simply another tool in the kit of lawyer rhetorical techniques, is discussed exclusively.

Despite its shortcomings, including a lack of consistency in answering the question contained within the title, Faith and Law is a valuable contribution to the overarching discussion. A collection of essays from legal academics of different religious faiths could serve as the logical next step, bringing into better focus the irreconcilability of different religious faiths in understanding American law.

The historical material and resources available for American legal historians is both too much an... more The historical material and resources available for American legal historians is both too much and too little. Hundreds of published case opinions became thousands of opinions by the end of the 1820s, leading lawyers to conclude that no one could know the entirety of the law. Yet this cascade of information is also too little, because the work of treatise writers and magazine editors of the time was ruthlessly focused on then-existing legal concerns.

For these reasons, James L. Haley works within difficult strictures in his book, The Texas Supreme Court: A Narrative History, 1836–1986. Because his story is about the Texas Supreme Court, he is largely limited to a study of the court’s members and their relationships, and its case decisions. Yet in spite of these and other constraints, Haley has done an impressive amount of work. He provides an insightful general background on Texas, placing the court within the culture of its times, and he expertly drives the narrative with clear and crisp writing.

Unfortunately, though, the strictures attached to this history have made it less than it should have been. Too much of the text is dedicated to biographies of the court’s various justices, and too little is dedicated to the discussion of cases. Further, several of Haley’s opinions reflect dated historical interpretations or make conclusions without citation to any authority. Finally, Haley’s decision to end the history in 1986 is curious, and results in some of the court’s most important shifts being left unacknowledged. The Texas Supreme Court is certainly a valuable work for which Haley should be commended, but it should have been better.

Distinct from facts and truths, the power of storytelling can serve as a method of teaching Ameri... more Distinct from facts and truths, the power of storytelling can serve as a method of teaching American Legal History. A course in American Legal History can facilitate discussion into whether the rule of law has been the rule or exception in the history of American law. Integral to this overarching story are three storylines that surface throughout the course: the development of law in American political history; the ideological underpinnings of legal doctrine development; and the rise and decline of different approaches to legal thought and their effect on legal education.

The course begins with a chronological overview of the political and legal history of the United States. Then the course shifts to a discussion on discrete areas of legal doctrine with an emphasis on two issues: (1) the transmission of common law doctrine; and (2) the interplay between the judiciary and legislature in adopting and adapting doctrines. The last story is considered through a survey of the history of American legal thought, exploring different types of legal thought and the reasons for their advancement in their particular epoch.

In framing a course in American Legal History as a storytelling experience, students may begin to think more consciously about society and develop an answer of their own to the question of whether the reach of the American legal profession has exceeded its grasp.

The legal debate regarding the right to commit suicide requires a critical review of the relation... more The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual.

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual and the community. This separation and categorization has animated much of constitutional law discourse over the past twenty-five years. In fact, the dichotomy has become an archetype for structuring a number of important constitutional law decisions. However, in tort, criminal, and other nonconstitutional law areas, this model is being replaced by a more communitarian model.

The use of Millian thought in constitutional law is an attempt to alleviate the tension between claims of right by an individual and claims of community interest by the state. Yet, review of legal responses to suicide will show that such an attempt (1) is in conflict with legal thought outside of constitutional law, and (2) cannot succeed in structuring a solution to a debate about a right to commit suicide, but can only result in exacerbating the tension found in American liberalism. Such a review shows that, by creating a right of autonomy which purports to dignify the individual, such a right instead cuts off the individual from other members of the community. In this situation, an ideal of reconciliation or hope for and from the community can no longer exist.

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it w... more The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century.

Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were so fiercely contested, explains how the court’s membership was shaped, and suggests why the court was unable to properly perform its work. The internal divisions of the court, exemplified by the inability of the members to work together to reduce the court’s docket, and by their differences in legal thought, contributed substantially to the view that the Texas appellate judicial system was broken.

The eventual result of this tumultuous period of the Texas Supreme Court was the legislature’s creation of the Committee of Judges in 1917 and the Commission of Appeals in 1918 in an attempt to reduce the multi-year backlog of cases. That Commission, designed to exist for just two years, remained in existence until the expansion of the membership of the Texas Supreme Court from three to nine in 1945.

Twentieth century reform of the American law of evidence was initially premised on the ideals o... more Twentieth century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a "rational" resolution of disputes.

Morgan’s decision to emphasize the rational resolution of disputes over the search for the truth in the Model Code helped lead to its rejection in all jurisdictions. In the January 1942 issue of the ABA Journal, preeminent evidence scholar John Henry Wigmore wrote an essay attacking the goal of the Model Rules. Others opposed to evidence reform used American entry into World War II to justify rejection of the Model Rules, which its opponents declared was antithetical to the Anglo-American common law.

Despite the Model Code’s failure to be adopted by any state, its structure was used for the two subsequent evidence codification efforts—the Uniform Rules of Evidence and the Federal Rules of Evidence—which found greater academic and professional favor, in part because they fit within the post-World War II jurisprudence of reasoned elaboration. The Federal Rules of Evidence, although not enacted until 1975, enjoyed extraordinary professional favor because the drafters explicitly affirmed truth as the goal of the rules. The irony is that the framework of the Federal Rules contradicts this message, since they are based on the Model Code. With the adoption of the Federal Rules of Evidence, the structure and theory of the Model Code survived in the Federal Rules of Evidence, although this is rarely acknowledged.

The satiric novel, as a “message” novel, can provide unvarnished truths about the object of satir... more The satiric novel, as a “message” novel, can provide unvarnished truths about the object of satire. Institutions of higher learning, particularly law schools, and the denizens of those institutions, are prime subjects for satire because they take themselves so seriously. Unfortunately, though, The Socratic Method by Michael Levin takes itself as seriously as the law school it is criticizing.

One of the hazards of the satiric novel is that the message may overwhelm the plot and characterization. Levin, in his zeal to awaken the reader to the torture of the law school, and particularly the torture of the law school variant of the socratic method of pedagogy, has failed to avoid this hazard. All the characters are two-dimensional, and the story line is picked up and laid down seemingly at random.

Still, it is possible to capsulize what Levin believes is wrong with the present structure of the law school based on this novel, and to critique legal education based on the picture Levin creates. Though Levin’s story line and character development suffer for the message he is attempting to convey, he has an excellent point to make about the failure of legal education.

The purpose of my essay Playing Chicken: An Instant History of the Battle over Exceptions to Clie... more The purpose of my essay Playing Chicken: An Instant History of the Battle over Exceptions to Client Confidentiality, is to offer a pointillist history of the recent battles between the ABA and the federal government concerning 1) when lawyers may or must disclose client confidences, and 2) claims that the federal government is attacking the attorney-client privilege. In doing so, I hope to explain how this battle is representative of the current drift in the American legal profession.

After the Introduction, the essay unfolds as follows: Section II traces the ABA’s often schizophrenic understanding of the duty of confidentiality and exceptions to that duty from the 1908 Canons of Ethics to the adoption by the ABA of the 1969 Code of Professional Responsibility, and the re-conceptualization of that duty found in the adoption in 1983 of the Model Rules of Professional Conduct. The ABA’s expansion of the duty of lawyers to keep confidences, even confidences that concerning ongoing fraud by the client, occurred after the discussion of the attorney-client privilege and its exceptions proposed by the drafters of the Federal Rules of Evidence between 1969 and 1973. The consonance between the 1969 Code and the 1975 Federal Rules of Evidence concerning the limits of the duty of confidentiality was shredded in the reaction to the ABA’s Discussion Draft of the Model Rules in January 1980. The drafts and debates concerning what became Model Rule 1.6 offer an initial demonstration of “playing chicken” by assorted lawyer interest groups as well as by the ABA, as exceptions to the duty of confidentiality became more narrowed, a narrowing justified by a claim that lawyers owe a nearly unfettered duty of loyalty to clients. Section III examines why states largely rejected Model Rule 1.6 between 1983 and the late 1990s and describes several corporate scandals from the late 1980s involving lawyer (mis)conduct. Section IV offers an instant history of the debate over when a lawyer may or must disclose client confidences beginning in 2001.

My thesis is that when an ABA Task Force offered to make the disclosure of some client confidences mandatory, it did so not for reasons of principle, but for reasons of power. After succeeding in limiting the effect of SEC regulation of lawyer conduct in the aftermath of Sarbanes-Oxley, the ABA began in late 2004 a new effort, engaging in a concerted attack on the government’s alleged “erosion” of the attorney-client privilege. This concerted attack by the ABA, I assert, had little to do with presenting evidence that the government was eroding the attorney-client privilege, and everything to do with protecting the interests of their institutional clients and themselves. Section V offers a brief conclusion. I have also included an Appendix offering a timeline of the events discussed in this paper.

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. ... more Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect in reframing the constitutional view of the free exercise clause. In particular, the all-embracing interpretation of the establishment clause eventually was a catalyst used by a revisionist Supreme Court in 1990 to complete a revolution in free exercise jurisprudence.

However, that revolution returned the legal interpretation of the free exercise of religion to an older order of things, and the middle level of generality used to evaluate establishment clause claims neither fostered the higher level goals of the Court nor created a specific understanding for governmental officials to guide their conduct. In other words, the good intentions by which the Supreme Court, including Justice Brennan, decided religion clause cases for much of the period between 1956 and 1990 have led to suspicion, misunderstanding, and confusion, not enlightenment, tolerance, and respect.

So while Justice Brennan’s religion clause opinions were calculated to work a revolution in the sense of creating a new order, ultimately, this revolution sowed the seeds of a return to an older order. This revolution, which created Court-based protection for religious belief from legislative interference, appears destined to revolve into a situation in which religious belief is protected only through limited forms of legislative grace.

The decision upheld by the United States Supreme Court in Mueller v. Allen helds a new dawn in es... more The decision upheld by the United States Supreme Court in Mueller v. Allen helds a new dawn in establishment clause jurisprudence. This five-to-four decision, written for the majority by Justice Rehnquist, upheld a Minnesota statute permitting taxpayers to deduct the tuition, textbook, transportation, and instructional material expenses of their children when calculating their state tax liability. By this decision, the Court has cleared the way for an accommodation between church and state that more equitably recognizes the principles and values that the religion clauses were intended to protect.

Following a review of the history of the establishment clause, tuition tax credits, and the decision and effect of Mueller, it becomes apparent that the decision of the Supreme Court in Mueller correctly balanced the scales in favor of voluntarism in religious belief. It correctly weighed all the relevant factors present in the case finding a state tuition tax deduction constitutional.

By weighing the value of tuition tax deductions against the costs incurred by parents of nonpublic school children, the Court has more equitably aligned the principles of neutrality with first amendment values. The Court’s holding that this method of analyzing relevant establishment clause policies better protected the overarching value of voluntarism was correct. It more fully implemented parents’ rights to educate their children in a religious setting in a society in which government plays a more pervasive role than in the past.

Lawyers’ belief in their professionalism was fostered by the creation and development of modern l... more Lawyers’ belief in their professionalism was fostered by the creation and development of modern legal institutions. Law schools, bar associations, organizations like the American Law Institute, as well as the system of legal directories, the regional case reporter system, and continuing legal education groups all contributed greatly to the making of a distinctly professional culture of law in America. These institutions prospered in part because of their ideological fit with the professionalizing ethos embodied in Christopher Columbus Langdell’s statement that “law is a science.”

Legal institutions, then, must be evaluated through the ideological lens which encouraged and fostered the notion that lawyers were a part of a scientific enterprise. The perception that law was a science, and lawyers scientists, altered the shape of the legal profession. This shape was further altered by the development of those legal institutions which assumed the science of law. A study of selected legal institutions provides a glimpse of the relationship between the vision of law as a science and the development of the modern American legal profession and culture.

David Hoffman was a successful Baltimore lawyer who wrote the first study of American law in 1817... more David Hoffman was a successful Baltimore lawyer who wrote the first study of American
law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A lawyer acted honorably if his actions were morally sanctioned. Thus, Hoffman concluded a lawyer should refuse to plead the statute of limitations because, though legal, such action was dishonorable. When Hoffman wrote his maxims of legal ethics, the concept of honor was being displaced by individualism. The test of lawyer behavior became private conscience rather than public honor. This turn was accompanied by a second shift, in which lawyers accepted that legal ethics differed from public morality. Though an “officer of the court,” the lawyer’s foremost duty was to serve his client’s private interests, and the lawyer was not morally accountable to the public for the client’s goals. One consequence of these changes was the profession’s agreement that lawyers owed a duty to their clients to plead all legal claims and defenses. This vision left Hoffman behind.

Hoffman was found in response to a crisis within the modern American legal profession. By the late 1970s, many lawyers feared that the liberal ideal of the lawyer as a morally neutral, zealous agent (or “hired-gun”) effectuating a client’s goals ignored the lawyer’s duties to the public. This crisis was exacerbated by two events: Watergate, in which lawyers blindly followed the demands of their client, the President, to society’s detriment, and the ABA’s decision in 1978 to replace its 1969 Code of Professional Responsibility, because the Code embraced the “fiction” that ethical issues were “matters of ethics rather than law.” Because Hoffman concluded a lawyer’s duty to a client was limited by his duties to society, he was used as a relevant, historical example of an ethics of advocacy contrary to the “standard conception” of liberal neutrality. Hoffman was a touchstone justifying an ethics of virtue, of lawyers serving the ends of justice, not merely serving their client’s goals.

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of ... more To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view. However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs. What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter.

Consideration of these aspects of evidence law scholarship and study reveals that evidence law can be understood as something both rational, irrational, and non-rational. It can be perceived as permitting practitioners and scholars to both accommodate paradox and accept the conflict of an abstract rule of law imposed by “concrete” persons. This stands at odds with progressive reform efforts which attempt to define, codify, and ultimately reconcile the inherently dichotomous nature of evidence law. In order to achieve real progress in the area of evidentiary reform, the idea of progress will have to be abandoned.

When testimony about the religiosity of a victim is elicited, a jury will likely become aware of ... more When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim. Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good. However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional. In light of this inherent difficulty of evidence of religion, it is unclear whether the legal system will resort to a formal neutrality which attempts to separate religion by categorically barring its admissibility.

Courts faced with unusual problems of law and religion typically resort to a formal neutrality and separation in part because they are unable to articulate any alternative approach. The legal system is unable to talk about religion any other way, and it is unlikely that this will change. Beginning such a change would require a reevaluation of liberty of conscience and the permissibility of “exercising” one’s faith in both a secular and religiously pluralistic society, but American society lacks an understanding which would provide it with the capability of acknowledging religion without immediately returning to religious discrimination. The longer American society lacks this ability to bridge the gap between the secular and the religious, the wider the chasm grows.

The American Bar Association’s (“ABA”) practice of requiring students to purchase the Model Rules... more The American Bar Association’s (“ABA”) practice of requiring students to purchase the Model Rules of Professional Conduct is exploitative and unethical. The ABA uses its role in training lawyers to create a situation which all but requires law students and bar applicants to purchase the organization’s own Model Rules. The fact that the Model Rules constitute a substantial revenue stream for the ABA is due less to lawyers’ desire to brush up on Model Rules of Professional Conduct, which are not laws, than to the ABA's direct role in approving law schools and its indirect role in licensing lawyers.

Law schools must maintain ABA-approved status to remain in business. The ABA Standards for Approval of Law Schools require that students take a course in legal ethics. Not only must law students take a course in legal ethics, but those courses must also include instruction in the ABA's ethics rules. Furthermore, nearly all jurisdictions require bar applicants pass the Multistate Professional Responsibility Examination (“MPRE”) to become a licensed lawyer. The MPRE is based substantially on the Model Rules. The ABA has thus used its role in training lawyers to create a situation that essentially requires law students and bar applicants to purchase the organization’s own Model Rules.

The ABA’s decision to make its ethics rules a commodity, spanning twenty years, together with the National Conference Bar Examiners (“NCBE”) desire to nationalize testing by using the Model Rules, cultivates the dangerous view that testing checks for those inclined to unethical behavior. In light of the ABA’s successful efforts to wring even more revenue from financially-burdened law students, the creation of an essay examination in ethics sounds less like a call to renewed professionalism than a pitch for another product for the NCBE to sell to state bar examiners. It is a bureaucratic culture’s last-gasp effort, one that should be rejected firmly and finally.

Balancing the autonomy of religious organizations against regulatory laws remains both a difficul... more Balancing the autonomy of religious organizations against regulatory laws remains both a difficult and hotly contested issue. It is helpful to survey labor, property, tax, and education laws to illustrate the tensions between religion and government in American law.

Labor law cases show the autonomy of religious organizations concerning governmental regulations through the National Labor Relations Act and Title VII. In regard to church property, the government has an interest in regulating how religious organizations buy and sell land, run day care centers and food kitchens, raise and borrow money, commit torts, and enter into contracts. Section 501(c)(3) of the Internal Revenue Code provides tax-exempt status for churches, integrated auxiliaries of churches, and charitable organizations. The IRS has promulgated numerous factors to distinguish among these three organizations. Although parents have the right to send their children to religious schools, the assistance they can obtain from the state to effectuate that choice is limited. The Supreme Court has decided a number of cases involving both the extent of religious symbolism and accommodation in public schools and the extent of aid to religious schools. These cases and laws show that although American law zealously guards the autonomy of religious organizations, it does not grant those organizations the right to be a law unto themselves.

One of the enduring myths of American history, including constitutional history, is that of the “... more One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren.

Academics, pundits, and contestants for control of the Court contribute to this myth by continuously speaking of the importance of the Court and its members to American society. Yet, this belief in the importance of Supreme Court nominees and members is based on a misguided view of the Court, and the costs of this investment may prove great. In a highly legalistic society, any conflation of legal and moral duties presents enormous problems, and the moral authority claimed by members of the Court and attributed to them by members of society undeniably contributes to this conflation. As long as the Court is considered to have a moral authority, the contest for the Court will be a bitter struggle, and the consequences may fail to be recognized until they are an immutable part of American history.

In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by th... more In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to a client, nor did it represent a traditional view within the American legal profession. It was consciously rejected in nearly all writings of American lawyers for most of American history, and was not explicitly embraced until the 1970s. Reminding lawyers of the duty of zealous representation was promoted in the 1960s in part to solidify the Supreme Court’s Constitutional Criminal Procedure revolution, for only zealous lawyers could protect the rights of the criminally accused. Brougham’s ethic of advocacy was used to provide a historical justification for a revived zeal in criminal defense practice, an effort to make those lawyers more professional. This justification was transformed in the 1970s by two events: first, the American legal profession became enmeshed in a professionalism crisis as a consequence of the Watergate affair. Second, that professionalism crisis was exacerbated by a fear of diminishing economic prospects for American lawyers.

This essay is divided into three parts. First, it offers a full assessment of Brougham’s representation of Queen Caroline. Second, it traces the published and negative reaction of American lawyers to Brougham’s statement of the duty of zealous representation from the 1840s on. Third, the essay explains why the consistent rejection of Brougham by American lawyers became the “classic statement” of the duty of the advocate beginning in the 1970s.

Ferdinand von Schirach is a German criminal defense lawyer who has previously published two vivid... more Ferdinand von Schirach is a German criminal defense lawyer who has previously published two vivid and brilliant short story collections. His latest book, The Collini Case: A Novel, like his short stories, gives the reader telling details that offer insights into the human condition. But The Collini Case seems less interested in its characters than in teaching about the continuing stain of Germany’s past. This leads von Schirach to use stock figures who have suffered stock tragedies and who engage in stock actions. The novel is simply not realistic enough to suspend disbelief, and only barely avoids being a melodrama. Despite these criticisms, however, The Collini Case resonates because of its connections to Germany’s sordid history, reminding readers that, as Faulkner said, “The past is never dead. It’s not even past.” It continues to haunt the present.

Mismatch is one of the most important books about law and public policy published recently. The ... more Mismatch is one of the most important books about law and public policy published recently. The authors, Richard H. Sander and Stuart Taylor, Jr., offer a provocative and deeply researched conclusion: empirical evidence strongly suggests that affirmative action in the admission of African-Americans and Hispanics to selective colleges and law schools is more harmful than helpful.

The problem of underrepresentation of African-Americans and Hispanics in the American legal profession is a continuing problem. But the work of Richard Sander strongly indicates that relying on the power of affirmative action has generated deleterious effects for those this “solution” was designed to aid. Discussing the issue of race is fraught with problems, but American lawyers and American society would do well to face this issue directly, as the authors of Mismatch have done.

Stephen J. Harper’s The Lawyer Bubble: A Profession in Crisis, is the latest iteration of the “in... more Stephen J. Harper’s The Lawyer Bubble: A Profession in Crisis, is the latest iteration of the “institutional failure” or “business disaster” story. A number of such books were published around 1990, and have been quite popular since then, for businesses (such as Enron and Tyco) keep failing in such spectacular fashion. The Great Recession that began in December 2007 led to another round of business disaster books, and like their forebears these books make a hard sell for the claim that the disaster was of a titanic nature. And where the business disaster book is found, the legal disaster book is sure to follow.

The Lawyer Bubble has an important point to make: The legal profession suffers from major problems and is in crisis. Unfortunately for its author, these problems do not include a bubble of lawyers, making the catchy title inapt. Additionally, the structure of The Lawyer Bubble, and its quite modest proposals for reform, leave the reader wondering for whom Harper believes he is writing. The Lawyer Bubble requires too much background knowledge to be of much use to undergraduates thinking of entering law school, offers little new for academics worried about their students, and proposes few things that most big law firm managing partners will readily accept. Thus, the approach taken in The Lawyer Bubble, as well as its title, results in hiding rather than highlighting serious structural problems within the legal profession.

Shark Tank: Greed, Politics, and the Collapse of Finley, Kumble, One of America’s Largest Law Fir... more Shark Tank: Greed, Politics, and the Collapse of Finley, Kumble, One of America’s Largest Law Firms is a non-fiction potboiler written by Kim Isaac Eisler. The story is generally about the decline and fall of an institution instrumental to capitalism that prospered during much of the 1980s. In particular, it is about the decline and fall of men whose hubris and greed make the decline and fall so satisfying to read.

While it would be easy to dismiss the demise of Finley, Kumble, because it was not an old, established “white shoe” law firm, or to analogize it to the other capitalistic excesses of the 1980s, the story gives readers some insight into the future of law firms and the legal profession. Additionally, it outlines two stories which need to be studied in order to more fully appreciate the sociology of the large law firm: the extent to which the influence Steven Brill and The American Lawyer has affected large law firms, and the value of and method by which a law firm achieves “white shoe” or establishment status in the practice of law in New York City.

Although there are several disconcerting gaps in character development, Eisler competently tells the reader the story of how Finley, Kumble grew into the second largest firm in the United States, and how it crumbled quickly thereafter. This makes Shark Tank worthwhile, mildly diverting entertainment, designed for lawyers, businessmen, and other professionals to peruse at the beach.

The Invention of Murder, by Judith Flanders, is an extraordinary achievement—an exhaustively rese... more The Invention of Murder, by Judith Flanders, is an extraordinary achievement—an exhaustively researched history of 19th-century Great Britain written with verve. Flanders uses the conceit of murder to immerse the reader in 19th-century legal, cultural, and social history. Her depth of knowledge appears to encompass everything related to every murder during this place and time. As a legal history, the book explains a number of developments in English law. As a cultural history, the book discusses the importance in the early 19th century of broadsides, penny-bloods, illegal penny-gaffs, licensed plays, and newspapers; all centered around murder and mayhem. As a social history, the book gives the reader a deeper understanding of how class affected considerations of crime, victim, and offender. Flanders' research offers nuggets of information, as well as tart observations, on almost every page. The Invention of Murder is a significant addition to British legal history, as well as broader 19th-century British history. Just as importantly, it is an entertaining and informative read.

Inside the Castle: Law and Family in 20th Century America, by Joanna L. Grossman and Lawrence M. ... more Inside the Castle: Law and Family in 20th Century America, by Joanna L. Grossman and Lawrence M. Friedman, is an entertaining and occasionally frustrating history. In the book’s introduction, the authors offer two big ideas. Their first idea promotes the instrumental explanation of law, and the second idea is the rise in the last part of the twentieth century of what the authors call “individualized marriage.”

Both these ideas have been long promoted by Lawrence M. Friedman, one of the nation’s foremost legal historians, and in many respects, the evidence adduced by the authors confirms both big ideas. Grossman and Friedman are persuasive that the law has followed culture in the many varieties of marriage-like relationships.

Inside the Castle alights on issues large and small, discussing cases, statutes, and other material from a large number of states. It provides a wide-ranging synthesis of the dramatic changes in family law during the past century. Though the authors’ case that their two big ideas are proven by the historical events they record is occasionally weak, they nonetheless take the reader on an enlightening journey.

Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditiona... more Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditional biography of one of the most important public figures in the United States since the Civil War.

Although the author disclaims it, Honorable Justice is a defense of Holmes. Novick writes of some of Holmes’ faults, but too often Holmes’ human imperfections are defended as strengths. It appears that Novick was trying hard to defend Holmes from late twentieth century critiques. This defense of Holmes seems a misguided attempt to re(de)ify Holmes to a group of readers which will likely include a large proportion of skeptical, professional ironists.

Holmes was a complex man whose life is worth the effort Novick clearly expended on the biography. The complexity of Holmes is pursued on enough occasions that the book is worthwhile reading, and for that Novick should be commended. However, it remains uncertain whether Holmes was an honorable man, or an Honorable Justice.

Marianne Wesson’s A Death at Crooked Creek tells the story of one of the most intriguing mysterie... more Marianne Wesson’s A Death at Crooked Creek tells the story of one of the most intriguing mysteries in American legal history. For evidence teachers, and possibly even law students, Mutual Life Ins. Co. v. Hillmon is a classic nineteenth century mystery story. The case raises the question: Was the deceased John W. Hillmon, who had recently taken out the extraordinary sum of $25,000 in life insurance, or was it Frederick Adolph Walters, an itinerant who had left Iowa a year earlier?

In addition to teaching at the University of Colorado School of Law, Wesson is the author of three mystery novels. Possibly for that reason, Wesson is interested in writing something other than a legal history of this extraordinary case. Instead, Wesson is interested in a character study, in the people who plodded their way through trial after trial, as well as in the story of whose body it was.

Wesson writes well and the stories, despite the numbing nature of trial after trial, move quickly along. A Death at Crooked Creek is a productive mélange of fact and fiction, of mystery and science, and an enjoyable meditation on law and persons.

In Against the Profit Motive, Nicholas R. Parrillo expertly explains how and why state and federa... more In Against the Profit Motive, Nicholas R. Parrillo expertly explains how and why state and federal governments moved from paying their employees fees to paying them salaries. The book offers insights into the history of government finance and administrative law, shifting dramatically in time, subject matter, and geography. The book begins with a helpful fifty-page introductory summary and then is divided into two parts, each of which considers a type of activity that generated fees for government officers: facilitative payments and bounties. Further, Against the Profit Motive illustrates, in the disparate areas of criminal law enforcement, tax collection, and naval warfare, the difficulty that governments had in creating effective incentives that did not give rise to corruption. Though some of its material is daunting, Against the Profit Motive makes for rewarding and informative reading.