Legal Profession Blog

Author! Author!

The Legal History Blog posts a review of the latest book by my colleague and friend  Brad Snyder

Brad Snyder, University of Wisconsin School of Law, has just published The House of Truth: A Washington Political Salon and the Foundations of American Liberalism (Oxford University Press):

In 1912, a group of ambitious young men, including future Supreme Court justice Felix Frankfurter and future journalistic giant Walter Lippmann, became disillusioned by the sluggish progress of change in the Taft Administration. The individuals started to band together informally, joined initially by their enthusiasm for Theodore Roosevelt’s Bull Moose campaign. They self-mockingly called the 19th Street row house in which they congregated the “House of Truth,” playing off the lively dinner discussions with frequent guest (and neighbor) Oliver Wendell Holmes, Jr. about life’s verities. Lippmann and Frankfurter were house-mates, and their frequent guests included not merely Holmes but Louis Brandeis, Herbert Hoover, Herbert Croly - founder of the New Republic - and the sculptor (and sometime Klansman) Gutzon Borglum, later the creator of the Mount Rushmore monument.

Weaving together the stories and trajectories of these varied, fascinating, combative, and sometimes contradictory figures, Brad Snyder shows how their thinking about government and policy shifted from a firm belief in progressivism - the belief that the government should protect its workers and regulate monopolies - into what we call liberalism - the belief that government can improve citizens’ lives without abridging their civil liberties and, eventually, civil rights. Holmes replaced Roosevelt in their affections and aspirations. His famous dissents from 1919 onward showed how the Due Process clause could protect not just business but equality under the law, revealing how a generally conservative and reactionary Supreme Court might embrace, even initiate, political and social reform.

Across the years, from 1912 until the start of the New Deal in 1933, the remarkable group of individuals associated with the House of Truth debated the future of America. They fought over Sacco and Vanzetti’s innocence; the dangers of Communism; the role the United States should play the world after World War One; and thought dynamically about things like about minimum wage, child-welfare laws, banking insurance, and Social Security, notions they not only envisioned but worked to enact. American liberalism has no single source, but one was without question a row house in Dupont Circle and the lives that intertwined there at a crucial moment in the country’s history.

Professor Snyder's story on the book in Politico Magazine is here.  And here are some endorsements:

“For the first time, we have the real story of this incredible little galaxy that included such disparate figures as Felix Frankfurter, Walter Lippmann, and Gutzon Borglum, and reached out to cultivate and invigorate the aged Justice Oliver Wendell Holmes--with profound and lasting influence on the course of American politics. Brad Snyder tells this story with verve and insight. This is a major work in the history of this nation’s public life.” -- John Milton Cooper, Jr., author of Woodrow Wilson: A Biography

“With his deep understanding of history and the law, Brad Snyder has crafted a notably illuminating and refreshing book. Deeply researched and finely written, The House of Truth brings to life a group of brilliant friends whose passion for justice helped shape what became known as the American Century.” -- David Maraniss, author of Once in a Great City: A Detroit Story

“This dazzling book provokes reconsideration of the Progressive era, legal reform and modern American liberalism. I know of no other work that so ably transports its readers into the packed and exciting years of the early twentieth century.” -- Laura Kalman, Professor of History, University of California, Santa Barbara

I heartily recommend two of Brad's earlier books In the Shadow of the Senators and A Well Paid Slave. (Mike Frisch)

New memoirs by Barbara Babcock and William Norris tell life stories in the legal profession

[Posted by Alan Childress] As part of my Quid Pro Books project, announced first here in 2010 (has it been that long?!), we've released two compelling autobiographies. Judge William Norris wrote the prescient opinion striking down the ban on gays in the military (almost three decades before marriage equality), but also shares his time before and after serving on the Ninth Circuit. Judge Alex Kozinski blurbs:

Recounted in this remarkable book is a conversation Bill Norris had with Justice White following his opinion for the Supreme Court in Bowers v. Hardwick, upholding Georgia’s sodomy law. Shortly after, Justice White visited the Ninth Circuit Judicial Conference and Bill confronted him about the injustice of the decision. I witnessed the interaction. No one else was bold enough to challenge the Justice, though others harbored the same doubts. Justice White shrugged off Bill’s concerns as trivial, but Bill stood firm and I could see from his tone and look that he would have none of it. Soon, Bill set about undermining Bowers with his brilliant opinion in the Perry Watkins case. The theory in Watkins resulted, a decade and a half later, in the overruling of Bowers and, eventually, to marriage equality. This story, among many others, makes this personal history a gripping and fulfilling read.

Here's its link at Amazon and B&N, and also our informational page with more links and info.

The other new release is by Barbara Babcock--the first woman law prof at Stanford, the first director of the D.C. Public Defender, and one of the first Asst. AG's at the Justice Department. Her life of "firsts" includes candid reflections on a tough childhood, her emergence (somewhat reluctant or naive) into feminism, and her biographical authorship on Clara Foltz. And she answers "How can you defend guilty people?" Blurbist Dahlia Lithwick writes:

Life will afford you no better sherpa on the extraordinary journey women have taken in the legal profession than Barbara Babcock. This book should be required reading for anyone who isn’t certain that they have a place at the lawyers table. Babcock’s amazing life has made a space for so many of us. Her story will do the same.

Our information page has info and links, and it's new at Amazon and B&N, etc. Thanks.

Flying Hotdog Not Inherent Risk Of Watching A Baseball Game

A longtime Kansas City Royals baseball fan who lost a jury verdict for an eye  injury allegedly sustained during the "Hotdog Launch" by team mascot Sluggerrr gets a new trial.

The plaintiff was at a sparsely attended game with the Tigers.The court noted that the Royals won.

He and his father had moved down into choice seats nearthe dugout. He claimed he was struck by a hand-tossed hotdog but did not report any injury at the time. In fact, he attended the next night's game.

He sought medical attention and claimed the toss caused a detached retina. He advised the Royals of his claim eight days after the incident.

Sluggerrr had no memory of the event.

The jury found the plaintiff 100% at fault.

From the web page ofthe Missouri Supreme Court

A spectator, allegedly injured when a hot dog tossed by a baseball team’s mascot hit him in the eye, appeals a jury verdict in favor of the team that assessed 100 percent of the fault for his injury to him. In a unanimous decision written by Judge Paul C. Wilson, the Supreme Court of Missouri vacates the judgment and remands (sends back) the case. Whether a particular risk is inherent in watching a sporting event is a question of law for the court, not a question of fact for the jury. The risk of being injured by the hotdog toss is not one of the inherent risks of watching a baseball game. As a result, the trial court erred in submitting an instruction putting this question to the jury. Because the error affected the outcome of the case, it was prejudicial, requiring the judgment to be vacated and the case remanded.

 

The court's opinion is linked here. Also linked is a story from the Associated Press.

 

(Mike Frisch)

A Unique Law Office

My favorite state high court web site, hands down, is the site of the North Dakota Supreme Court.

Here's a reason why: a link to a story (and video) from KELO News about a really unique law office in Sioux Falls, South Dakota -- it once was a bank robbed by John Dillinger.

The robbery was depicted in the movie Public Enemies. (Mike Frisch)

Publish Your Dissertation as a Digital Book or Ebook on Amazon, B&N & Apple iBooks: Legal Ethics, Law, Legal History, Law & Society, Sociology, etc.

Posted by Alan Childress

As a follow-up to my post yesterday on republishing the Kadish & Kadish classic and others as a Kindle book or an ebook, I announce more generally that I seek submissions to publish digitally your still-relevant dissertation or monograph-length thesis.  This is to post on Amazon and other sites for use on iPad, Kindle, and Nook, and related apps on PC, Mac, iPhone, and BlackBerry.  The fields are legal ethics, law, law and society, legal history or biography, history, and the broader social sciences. This would not be an SSRN-type download but instead would be marketed as a regular Kindle book and the like and available to a broader international market, easily searched on Amazon, Google, and Barnes and Noble sites. 

This is unlike some digital-dissertation services that essentially make it a vanity press by having it as a download from their site; my goal is to turn it into a real book, for use with readers and researchers through real channels and read by every device, with working links and footnotes. (And also unlike those sites, my royalty rate is much higher, and your book will accompany not only other dissertations but classic works in law and society, brought back digitally.)  Eventually they will also be featured on this website, but mainly on Amazon, Barnes & Noble, and iBooks. Editing services are available for outsourcing at good rates (with legal writing professors!), but I will do all production, formatting, and marketing.

This service is not exclusive, in the sense that you are free to submit your work elsewhere in the meantime and pull it from this program should it be accepted by Penn Press or OUP ("making it to the show"), or for whatever reason; I'd facilitate that. This is exclusively digital publishing and is not meant to interfere with your parsing parts of it for articles (even to SSRN) or your seeking traditional publication of the whole.  Contact me at this email address (or see left sidebar) with topic, description, and the history of your manuscript, and the goals you have for it, if interested. The imprint, as with the book above, would be with Quid Pro, these in a Dissertation Series or by subject matter, e.g., Legal Ethics, History. Although so far the accepted and anticipated books have been in law and society or legal sociology, subjects will include the broader social sciences of political science, sociology, history, and philosophy (or basically subjects that I feel competent to read and assess because of my doctoral work in Jurisprudence & Social Policy at Berkeley). If they are not particularly law-related, that is fine, as the project has expanded to become Quid Pro Books not just Quid Pro Law Books.

UPDATE: See this example, which has its digital origins in the comment by John Flood to this post.

Ghosh on Jeopardy, Part IV: Final Jeopardy (and a parallel to legal education?)

[Our final installment of Shubha's appearance on Jeopardy. And as I promised, here is one other writing you can see from him, perhaps a bit more technical, his coauthoed West casebook, Intellectual Property.   Where we left off, Shubha was about to compete. --Alan.]

   When my turn to compete came up, I had watched four previous tapings and felt relatively confident.  But standing behind the podium is, needless to say, different from sitting down, spouting out answers, and being entertained. I was now the entertainment; people would tune in to be enthralled by a real contest.  Cameras rolled. Theme music filled the silence of the sound stage. Holy shit, I said to myself quietly, mindful of the FCC. At that moment, whatever the tallest water fall in the world might be, it did not match the cascade of facts that was emptying from my brain. [Angel falls? -- Alan] Game play is twenty-two minutes, which strikes me now as an overestimate. Time was demarcated by the flash of questions and the ding of buzzers, which by the way took a real effort to control. My biggest fear was going into the red and at one point I could have gone either way.  My reaction when I got the question right was used in the promo for the week’s broadcast.  There were times when I felt on a roll.  Obama Successors was amazingly enough a category. Other times though I knew I was spouting the wrong answer when the right one was starting at me.  Should it ever be useful, the difference between a capital theta and capital phi is now permanently imprinted.  At one point, the judges stopped the game for an interminable period of time to see if my answer “prehistorical” was close enough to what they wanted “prehistory.”  What the…?  There were also several moments when I was sure that the answer I gave was the correct one.

But this game is not about analytical prowess.  Knowledge may be power but in the heat of Jeopardy battle, facts are money. At the end of it all, a dollar separated me from a tie with first place. The result was satisfactory intellectually: a respectable showing that allowed me to go home with an interesting set of experiences.  But that rationalized a terrible sense of disappointment which combined regret at not making a big money payoff (second place gets $ 2000 and third, $ 1000) with a feeling that I could have done better.  No robot can be programmed to replicate the feelings I had at the exact moment when the game was over.

As they tape the end credits, the contestants stand on the stage next to Alex Trebek and engage in banter.  Alex asked me what kind of law I was involved with, and I said intellectual property. “That must be really interesting with the Internet and all, “ he said.  “Yes, the Internet and other things,” I replied, launching into a law professor shtick on the reasons intellectual property is interesting. He interrupted me: “Well, I think all you need to protect intellectual property is a good gun.”  I stared back at him: “Yes, well, that seems to be how the rap industry operates.”  Blank stare back.  Last of the end credits. Usual disclaimers. Copyright notice. Jeopardy theme crescendo. And that was a wrap.

The contestant coordinators now had the job of escorting us out of the studio. More forms were signed. We were told we would get out checks four months after the show’s airdate. A canvas Jeopardy tote bag was handed to each of us as we were told where we could meet our cab to wherever we were going. Outside, the late afternoon sun nearly blinded me. I thanked the contestant coordinator for inviting me on, and he nodded cordially. Sequestration over, I was reunited with my spouse as we made our way off the lot with two other contestants.  There was a crowd of people outside the sound stage.  A bunch of young kids shouted out my name. “Shubha, you should have bet two more dollars.” I shouted back: “I didn’t have it!” and then added some platitude about studying hard.  My spouse explained that they were students at Culver City High School.  The Jeopardy announcer, during one of the breaks between tapings, introduced them as part of a special educational program the show had with local schools. My spouse had spoken to one of the kids who told her that attending the tapings was part of his community service.  I laughed, “What next?  Will the State of California have convicts compete to get time off for good behavior.” I resisted punning on “Double Jeopardy.” [Which would have been funny to anyone except Alex? -- Alan] As I said good bye to two of my fellow contestants, who were also headed back home, I realized  that the show would never lack for people to compete on whatever promise the show offered.

There are in your face parallels between being on a game show and being in legal education: the promise of monetary success, the piling on of information and its regurgitation in countless exams, the winner take all structure of the contest. But of course they are just trite analogies which the patient reader can indulge. Legal education, of course, serves a higher purpose and has real impact. Gameshows are true lotteries; junk food for the educated. At the end of my experience on Jeopardy, I have to say, to quote a literary character some may recognize, I didn’t learn a damn thing. [Jeff, who said that? --Alan] I did have a fun time in the process though. Yet, when thinking about all the facts I acquired during the day, about make-up artists, about game show rules and regulations, about Watson, about my fellow competitors, I wonder if I am not missing some cohesive lesson into which all these clues assemble. If I strain hard enough and think quickly, maybe I can come up with the right response.
    What is an entertaining diversion from what really matters, Alex?

[Editor's note:  I watched this show Friday and Shubha does not say, but he should be very proud.  He did extremely well, and Alex commented much the same.  Shubha answered some unbelievable questions, in one case to his own obvious surprise.  I am not sure of his epilog, since for some people game shows are what really matters--but there is no doubt in my mind that Shubha competed admirably and well represented the U. of Wisconsin.]

Guest Series by Shubha Ghosh, Wisconsin Law Prof and Jeopardy! Contestant Yesterday

[Shubha Ghosh (Wisc., Law), who with Jeff is the most well-read guy I know and a frequent blogger elsewhere, has graciously agreed to write for us a series on his very recent experience playing Jeopardy!  He is coauthor of the casebook Intellectual Property & Business Organizations (LexisNexis 2006) and a book I believe my 1Ls will read this fall, Acing Tort Law. Since he's prolific, I will cite more of his work later... BTW, he is very friendly, though maybe not the day they sent a photographer to his office. Here is part 1. --Alan Childress]

                                        When Jeopardy Attaches

One morning earlier this year, eleven people congregated in the lobby of the Culver City Radisson waiting for the shuttle bus to take them to the Sony Studios to film five episodes of the gameshow Jeopardy.  As those familiar with things L.A. know, this happens almost every week, with eleven different strangers, all filled with anticipation and adrenaline, from all over the country and lucky enough to pass tests of knowledge and of personality.  That morning I was one of the chosen eleven.
         Many lawyers, law students, and law professors have appeared on Jeopardy and other gameshows.  

Some speak negatively of the experience.  Others publicize it proudly on web sites.  I am pretty sure I have seen an AALS FAR include Jeopardy victory under “other accomplishments.” Motivations vary. For me, it was a long time interest, cultivated by high school trivia shows and modest cash bounties, converted into liquid, won at pubs.  I was also curious how it all worked:  the lights, the camera, the ambition to convert inert facts into hot cash all through the push of a buzzer. Appearing on Jeopardy is my flirtation with publicity. To quote the film maker John Waters, I always wanted to sell out but no one wanted to buy me. 

      I used to watch Jeopardy regularly.  My early memories from the Black & White Sylvania my family had in the late Sixties include the moonlanding, news coverage of Bobby Kennedy being killed, anchors reporting on what I heard as gorilla warfare, and three intense people sitting  in front of an array of mechanically displayed clues valued anywhere from ten to one hundred dollars and phrasing their answers in the form of a question. The show went away for a while, but it returned in the mid-Eighties, the board jazzed up and question values appreciated. Now, in 2010, people talk about the Jeopardy web site and the boards, sharing tips on how to buzz in and what to say to Alex Trebek, the host.  Sometime in the shifts of marketing and branding, I stopped watching. 
          Out of whim I tried out for the first time in New York City in 2001, passed some of the hurdles, but never heard back to actually appear on the show. An email announcing an online test escaped my spam filter in January, 2009, and again on a whim I took the test. In May, I was invited, based on the online test, to an audition in Chicago. The audition consisted of another written test and a question and answer session with the two contestant coordinators who were judging  personality and poise on the show. At the end of the ninety minute audition, twenty of us were told that we would be on an invite list for the next eighteen months. All this was the same as my experience in 2001. This time, however, my phone invite came about six months later, shortly after the new year. The call was from the contestant coordinator at my 2001 audition who happened to remember me. You see, there are folks who try out a dozen or more times before the call comes. Luck had it that I was called my second try.
       A panic surged through me as I realized there were only two weeks until taping -- and over two hundred countries whose capitals and major geographical landmarks had to be committed to relatively long-term memory. I also had to start watching the show again. The program guide on the Jeopardy web site indicated that the show aired at the same time accident attorneys, payday loan makers, and diet doctors advertise on the airways, and I set the DVR accordingly. The show used to be on after dinner, a nice way to end the day and begin the evening.  Re-engaging with Jeopardy, I asked myself: What had I committed to by agreeing to be a contestant? Was I a part of a desperate franchise?  Such thoughts were put aside quickly as I worked through, among other lists, the countries in the Commonwealth of Independent States and the names of people who would succeed President Obama.  VP, Speaker of the House, Secretary of State, and so forth.  . . .    [end part 1]

Welcome to the Blogosphere: Michigan State Bar Blog

Posted by Alan Childress

Just opened and already clever, the blog of the state bar of Michigan offers "comment, news and issues of interest to Michigan lawyers" plus really to many of us not so blessed.   Why blog when you cannot legally take positions except on core legal profession matters?  Well,

[W]ho better to compile a daily quick summary of news and observations on issues of immediate interest to Michigan lawyers than an organization that has a close and constant view of both the national picture and local and specialty bars in Michigan, as well as of the work of the Michigan Supreme Court, legislature, and governor’s office?

One of the first posts, Score One for the Maize and Blue, describes an exchange in the U.S. Supreme Court that actually must touch about five of Jeff Lipshaw's sweet spots:  the oral argument...

...piqued the interest of the lexophiles on the Court when he described a Justice Kennedy hypothetical as a valid issue for future cases but “entirely orthogonal to the issue at hand.”

Roberts: “I’m sorry. Entirely what?... What was that adjective? I liked that?"

Scalia: “I think we should use that in the opinion…or the dissent.”

Of course, we in Michigan all know that orthogonal means “at right angles,” having walked across the orthogon on campus many times.

My own sweet spot is hit when imagining C.J. Roberts saying the above in the droll southern voice of Fred Gwynne:  Say what?  The two what?  Did you say yoots? 

Fred was actually a Harvard grad playing a Yale grad.

Unsupported CJA Fee Requests, and Overly-Sarky Sidley & Austin Brief

Posted by Alan Childress

Two recent posts from the Law of Criminal Defense Blog caught my eye and I share them with you below.  (This is in addition to recommending Bill's nice and provocative post here this morning on outcomes in legal education -- which btw has been picked up by the ABA Journal here [they do that to Mike's posts all the time, too] and has good comments after, including several "Go Henderson"s.).

In one post, the blog (by John Wesley Hall, Jr.) reports on "a rare look at an appeal from a denial of CJA fees appealed to the Circuit Court and applying the" circuit's written guidelines.  That court was the Ninth Circuit; it held that the trial judge's "48% reduction of CJA counsel's second interim fee request was within the court's discretion based on the judge's observation of the trial not matching the trial preparation." 

I am indisputably interested in issues of federal appellate deference and standards of review, to be sure, but also what caught my eye is the decision below was by "Judge Quackenbush."  I immediately thought of Groucho's doctor-character in A Day at the Races, but that was actually Hackenbush. But my comedic instincts were not wrong.  Turns out he was originally Quackenbush but "MGM’s legal department discovered at least a dozen legitimate U.S. doctors named Quackenbush, so, for legal reasons and to Groucho’s dismay, the name was changed to Hackenbush."  More famous litigation lore, perhaps, is the Warner Brothers' rumored threat to sue the Marx Brothers for their film title A Night in Casablanca, to which Groucho wrote a letter to WB threatening to sue them for using the word “Brothers”:  “Professionally, we were brothers before they ever were.”

In another post, Hall comments on a trial judge's chastising of Sidley Austin "for dripping sarcasm in their brief."  Hall's reminder:  "You're going to win or lose without it [sarcasm], either on the facts and law or the fact the judge hates defense lawyers and defendants, and sarcasm is just unprofessional."

Hall also links to an article on lawyers AS criminal defendants, by Leslie Levin, new in the Georgetown Journal of Legal Ethics.

NOW President Terry O'Neill, Lawyer and Former Law Prof, Speaks Out Against Letterman et al.

Posted by Alan Childress

NOW President Terry O'Neill was for years a colleague of mine on the Tulane faculty -- and a popular teacher on subjects including legal ethics, and influential writer on the social and community effects of corporate control rules.  Before that, she was a law graduate of Tulane and undergrad at Northwestern U, a partner in a NOLA law firm, and a prof at UC Davis and Denver. She is shown far right with other NOW officers.

We miss her but she has certainly gone on to great things.  Here is part of her appearance on Joy Behar's show on HLN.  She, Gloria Allred, and others are weighing in on the David Letterman workplace situation.  NOW is particularly not happy with how the media has trivialized it, and how unrepresented women are in CBS's corporate governance.  (See how writing law review articles can actually inform one's real life?)  Here is Terry O'Neill's press release on the David Letterman scandal, noting for all of us, not only constituents and women, why that kind of situation is harmful:

Every woman -- and every man -- deserves to work in a place where all employees are respected for their talents and skills. The National Organization for Women calls on CBS to recognize that Letterman's behavior creates a toxic environment and to take action immediately to rectify this situation. With just two women on CBS' Board of Directors, we're not holding our breath.

And here is an earlier Huff Post column by former NOW president Patricia Ireland on why Terry O'Neill should be elected president -- O'Neill's platform was to take NOW back out into the world, blogs, TV, Twitter, and locally, instead of the opponent's reported agenda, says Ireland, to keep it an inside-the-beltway DC lobbying organization focusing on formal legal positions.

Obviously the fulfillment of that platform is their taking public and media-rich stands against Letterman, Roman Polanski, and other famous events (and especially how the media cover them without recognizing the victims in a serious way).  The NOW press release by Terry about the health care plans and reproductive rights is here and her YouTube vid on public option is here as "absolutely essential."

Info on 2010 NOW internships is here.

M & A Trivia - How MGM Came to Be

Posted by Jeff Lipshaw

I bought a copy of the 2002 David Thomson's The New Biographical Dictionary of Film, which I found sitting on a shelf in a used bookstore somewhere in Cambridge, Boston, or Ann Arbor (I can't remember which), and it answered a question I had pondered once in a while.  There was a man named Samuel Goldwyn (left), there was a production company called The Samuel Goldwyn Company (whose films included Wuthering Heights, The Best Years of Our Lives, The Bishop's Wife, Guys and Dolls, and Porgy and Bess, among others) and a company called Metro-Goldwyn-Mayer, whose legendarily evil boss was Louis B. Mayer.  How did that all come to be?

A man named Schmuel Gelbfisz emigrated from Poland, arriving in the United States in 1899.  He anglicized his name to Samuel Goldfish and got involved in the motion picture business with his brother-in-law, Jesse Lasky and Cecil B. DeMille.  That business merged with Adolph Zukor's company but Goldfish and Zukor didn't get along.  Goldfish left and in joined in 1916 to form a new company with the Selwyn brothers.  (Thomson notes they had the good sense to name the company "Goldwyn" and not "Selfish.")  Goldfish changed his name (again) to Goldwyn to match the company.

Meanwhile, back on the East Coast, Louis B. Mayer formed a production company called Alco, which became Metro.  Mayer broke away from Metro in 1917 to form The Mayer Company, which had a studio in Brooklyn and then in L.A.

Meanwhile, back on the West Coast, Goldwyn (nee Goldfish) didn't get along with the Selwyns, so he broke away in and formed The Samuel Goldwyn Company, which produced independently through United Artists and later RKO. 

Metro, now owned by Loew's, but originally formed by Mayer, reconsolidated all of the businesses by acquiring The Mayer Company as well as the original Goldwyn business, in which Samuel was now merely a shareholder, and so we had Metro-Goldwyn-Mayer.  The year before the Metro acquisition, Mayer had hired Irving Thalberg away from Universal, and after the acquisition, Loew's sent Mayer out to manage the West Coast operations, and the rest was history.

Many years later (around the time MGM was producing Ben-Hur in the late 1950s), Loew's Incorporated itself became involved in proxy litigation that became a staple in Delaware corporate case law.  Got it?

Michigan vs. MSU Referee is a Harvard Law School Alum

Posted by Jeff Lipshaw

I am not delighted that Michigan State just scored, but I was delighted to see just now that an old friend, Ron Torbert (left), is the referee.  He was a first year associate at Dykema Gossett in Detroit (out of Harvard Law School and Michigan State), and wrote the brief in Borman's v. MPCGA, a reported 6th Circuit decision.  He was one of the star young litigators at Dykema until I cheesed off some of my former partners when I hired him as the General Counsel of the AlliedSignal Safety Restraints Division (I only hired the best).  Ron eventually returned to Dykema as a partner, and I believe is now the general counsel of Barton-Malow, a large construction firm in the Detroit area.

I knew that Ron had started refereeing high school football many years ago, and had moved up through the ranks of small colleges, then the MAC, and now is at the pinnacle of college refereeing.  Many Big Ten referees (Jerry Markbreit, for example) have gone on the NFL.

Great job, Ron, and call a few more penalties on your alma mater.

Lipshaw on Leiter on Religion, and a Little More

Posted by Jeff Lipshaw

I suppose it's appropriate to conclude the Ten Days of Awe of the Jewish calendar by tying up, on the eve of Yom Kippur, a loose end I started to unravel when I was sitting here at my computer instead of participating in ritual observance on Rosh Hashanah.  As I noted, "what I find difficult about religious ritual, which is the reification of the sense of awe, wonder, and mystery of life, being, and consciousness into a set of rules.  (Hence, my appreciation instead for the music.)  That's the tension I described three years ago, between kevah - fixed prayer - and kavanah - inspiration."  I have a lot of regard for what Martha Nussbaum described as the source of the religious (and all conscience-related) impulse:  "the faculty in human beings in which they search for life's ultimate meaning."  I'm just not crazy about what my fellow humans generally do to act on that impulse.  (I also have the same kind of naive idealism about academia as a place of pure exchange of ideas, with much the same result.  But that's not new.  I had a kind of naive idealism about fiduciary obligations when I was a corporate officer and general counsel.  My conclusion is nobody is more or less insulated from human nature in the actual practice of religion, scholarship, or business.)

Some time over the last ten days, I came across Brian Leiter's published essay on the constitutional tolerance of religion by way of his more recent draft on whether religion is even entitled to moral respect.  (I agree with him that, as a matter of law, the appropriate standard is tolerance.  I also agreed not to quote or cite the draft, other than this minimal reference to its context, and with the clear indication it is a draft.  It is available publicly available on SSRN, albeit with the "don't quote or cite" request.)  The arguments depend on his already completed conceptual construct of religion with which I take issue, and I've posted an essay to that effect on SSRN.  The title is Can There Be a Religion of Reasons?  A Response to Leiter's Circular Conception of Religion, and this is the abstract:

This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.

By the way, if you are curious what to say to a Jewish person on Yom Kippur, since "happy Yom Kippur" is something of a contradiction, say "g'mar tov" which is short for the full Hebrew phrase that means "may you be sealed well." The mythology is that we are inscribed in the Book of Life for the coming year on Rosh Hashanah, and the inscription is sealed on Yom Kippur.  The actual prayer is called the Unetaneh Tokef, and it is the inspiration of Leonard Cohen's (above left) "Who By Fire."  Consistent with the kind of grappling with which I credit the religious impulse in the essay, I interpret this as "Recognize there is a distinction between what is and what ought to be, and we can't always make them match.  Let's do the best we can even when the world throws obstacles in our way."

G'mar Tov.  (UPDATE:  A good friend reminds me that a less highfalutin' greeting or wish is "fast fast" or "easy fast."  Since that rarely applies to me, I forgot!)

Are Those Sleek and Tidy Lawyer Offices In the Movies and on TV a Fair Depiction of Reality?

Posted by Alan Childress (and Kelly Anders, below)

Or are the occasional messy and paper-filled depictions more real?  Just how much of a lacuna exists between the representation and the reality of office godliness within the ontology of pop culture portrayals of offices used by lawyer-characters?  And isn't it worth noting, unrelated and yet apt, that the Franz Kafka Int'l Airport in Prague was ranked by Business Week as the world's most alienating airport?  Including "extremely long corridors that lead to dead ends."  (Not really.)

Anyway, the office question is not mine.  Sent to me by our occasional and interesting guest-poster Kelly Lynn Anders of Washburn Law School in Topeka is this request for more examples.  I will think about it and hope our readers do too (this is also a job for Jeff, Mike, and Nancy -- all avid lawyer-movie watchers).  Kelly writes:

On this rainy Kansas morning, I am in the midst of research for a CLE that meshes my book, The Organized Lawyer (Carolina Academic Press, 2009), with the topic of Professionalism in the Law. I just returned from the University of Iowa where I gave a similar presentation, which included a brief discussion of how lawyers’ offices appear (or don’t appear) in films and television shows, and how these depictions reflect on clients’ interpretations of what our spaces “should” look like, and how the realities may impact clients’ opinions of us as professionals. As I think about it, the only spaces one sees on screen are either slick and practically paperless (as in “LA Law” or “Boston Legal”) or old, worn, and disheveled (implying a sense of being overwhelmed and needing help, such as in “Erin Brockovich”).  I then started seeking out cases that actually mention elements of disorganization that led to sanctions or disbarment. Do you know of any such cases, or of examples on screen that show realistic depictions? Please advise.

Alan adds: I recall that there was some contrast in 1991's Class Action between the shopworn and paper-packed offices of the championing plaintiffs' lawyers (Gene Hackman and Laurence Fishburne) and the megafirm evil defenders of the auto company (including a highly conflicted -- in every sense, since she is Gene's daughter too --  Mary Elizabeth Mastrantonio).  The defense firm's offices were so pristine and sparse as to pass the OCD white glove test of Patrick Bergin in Sleeping With The Enemy, also a 1991 classic.  But I am not sure, Kelly, that the earnest messiness of Gene's firm was meant to convey a sense of overwhelmed or lesser confidence (indeed, Gene is one cocky lawyer, even before becoming a cocky jury-fixer in Runaway Jury, filmed here in New Orleans).  That is, up till late in the movie when Mastrantonio's firm delivers truckloads of documents in last-minute discovery and does in fact overwhelm Gene and, mainly, Laurence (because Gene does not do document review or client hand-holding, you see).

One nearly-related example (of personal kemptness rather than offices) is the funny opening of 1989's True Believer, in which the tidy and well-dressed person at the defense table turns out to be the criminal defense client, represented by an untidy James Woods whom the camera panned in such a way as to imply he was the defendant.  Job applicant Robert Downey Jr., back in the courtroom, gets them mixed up of course and hands his resume to the wrong one, I think.  One of the film's perhaps unintended ironies throughout is how the squeaky clean Robert Downey Jr. keeps haranguing James Woods for his lifestyle choices and representing...drug users.

As to bar sanctions, my sense is that haphazard organization is mainly a direct issue when it deals with financial records and trust accounts.  I am sure it underlies some other faults, like poor communication with clients and acts of malpractice, but I do not recall a lot of reports where it itself is the main culprit cited.  But the most realistic depictions of office space?  (Mmmm, yeaaahhh. I'm going to need you to come in on Saturday.)  Hope our readers will chime in....

Dagny Taggart Committed Securities Fraud?

Posted by Jeff Lipshaw

For reasons too irrelevant to state, I've been re-reading a canon of my youth, Ayn Rand's Atlas Shrugged.   I guess it took about forty years since I first read it, and teaching securities regulation, to realize there is either some securities fraud going on in the first 200 pages, or else we have what they call in the movies a continuity error.

Here's a quick plot summary to get us to the crucial passage.  Our beautiful, independent, productive, self-reliant brilliant heroine is Dagny Taggart, heiress, but more importantly, Vice-President of Operations of the great Taggart Transcontinental Railroad.  She has committed to rebuild the Rio Norte Line of the railroad, running from Cheyenne down to Durango, New Mexico, as the last hope of the railroad, and indeed the country, which is rapidly in the hands of those socialist, flabby, chinless, second-rate looters, like her brother, James Taggart, the president of the railroad.  Dagny has also committed to use the new and revolutionary Rearden Metal, developed by secondary hero, Hank Rearden (later to become Dagny's lover in a cataclysm of violent sex that we fifteen year old readers could only imagine), steel magnate, and like all Rand heroes, tall, thin, gaunt, with cheekbones and individualism to kill for. 

A baseless but negative report on Rearden Metal from the evil State Science Institute has caused the Taggart stock to crash. Dagny decides to save the railroad by organizing her own company to take over the Rio Norte Line and to build it as she knows it should be built (it's called the John Galt Line - that's another story).  So here's the conversation she has with James.  First, she's agreed to sever all connections with Taggart, and if the venture fails, she will not come back to the company.  Second, we have this, which begins with James' additional condition:

"Before we transfer the Rio Norte Line to you, we must have a written agreement that you will transfer it back to us, along with your controlling interest at cost, in case the Line becomes successful.  Otherwise you might try to squeeze us for a windfall profit, since we need that Line."

There was only a brief stab of shock in her eyes, then she said indifferently, the words sounding as if she were tossing alms, "By all means, Jim.  Have that stated in writing."

But only seven pages later, she's selling bonds in the John Galt Line ($8 million; she's borrowed $7 million by pledging her own Taggart stock).  Now heroic men in Ayn Rand are either tall, thin, gaunt, with cheekbones and individualism to kill for, or solid, working class born, no-bullshit guys, with individualism to kill for, and she's sold her bonds to the last eight of those guys left in the country.  She's meeting with Hank Rearden to discuss the Metal, and he immediately signs on for $1,000,000 of the bonds.  And we have this from Rearden, explaining to her why he doesn't consider it a burden to invest:

"Incidentally, I don't expect to lose this money.  I am aware of the conditions under which these bonds can be converted into stock at my option.  I therefore expect to make an inordinate profit - and you're going to earn it for me."

She laughed.  "God, Hank, I've spoken to so many yellow fools. . . .  Yes, I think I'll earn your inordinate profit for you."

So we have a convertible bond whose value is really in the equity kicker, because the risk really doesn't merit a typical fixed bond return.  Given the importance of the equity, I think we have a Virginia Bankshares situation here.  "Yes, I think I'll earn. . . ." might be an opinion, but the undisclosed fact is that she has already agreed to gut the value of the company by transferring its only asset back to Taggart at cost!

Am I reading too much into this?  Am I just projecting my own desires to be tall, thin, gaunt, with cheekbones and individualism to kill for?  Oh, who is John Galt?

The New Villain: The Big, Bad Bank

The movie reminder below was sent to us by occasional guest-poster Kelly Lynn Anders, an associate dean at Washburn, whose blurb conjures an image of smoking jacket, pipe, and really bad seduction I had forgotten. Meanwhile, I saw "Taken" last night and let me just say there is no pretense of moral ambiguity or consequences there in the effort to resist evil-doers, making the film more like one directed by John Yoo than by John Woo -- though in fact this is a Luc Besson/Pierre Morel deal. --Alan

“The International” was released yesterday, and it features an “evil” bank as the key villain. According to IMDB, the film was inspired by the BCCI (Bank of Credit & Commerce International) banking scandal, which took place throughout the ’80s and into the early ’90s. The screenplay was written by Eric Singer, who has a cameo as a cashier in the film. Naomi Watts plays Eleanor Whitman, a Manhattan District Attorney who collaborates with Interpol to “bring to justice one of the world's most powerful banks.” Initially, I had this title confused with “The Continental,” Christopher Walken’s hilarious departure on SNL a few years ago about a hapless lounge lizard, but early reviews indicate that this film might be less entertaining. The NPR review is available at this link.

New Enron Corporate Fiasco Reader Available

Posted by Jeff Lipshaw

The Foundation Press compilation, Enron and Other Corporate Fiascos:  The Corporate Scandal Reader, 2d Edition , edited by Nancy Rapoport (UNLV), Jeffrey Van Niel, and Bala Dharan (Rice) is now in print.  I'm pleased to say that Suffolk is well represented: Andy Perlman (of Legal Ethics Forum fame) and I both have pieces in it.  Andy's contribution is his Hofstra Law Review article, Unethical Obedience by Subordinate Attorneys:  Lessons from Social Psychology.  The editors were kind enough, or confused enough, to include two of my articles, the U. Toledo Law Review piece, Law as Rationalization:  Getting Beyond Reason to Business Ethics, and the Wayne Law Review piece, Sarbanes-Oxley, Jurisprudence, Game Theory, Insurance and Kant:  Toward a Moral Theory of Good Governance.  Brad Wendel (Cornell) also of LEF fame contributed Professionalism as Interpretation, originally in the Northwestern University Law Review.

Other contributors are John Coffee (Columbia), Cynthia Cooper (Cooper Consulting), Lynne Dallas (San Diego), Jose Gabilondo (Florida International), Malcolm Gladwell, Kent Greenfield (BC), Kristen Hays (Houston Chronicle), Katherine Kruse (UNLV), George Kuney (Tennessee), Donald Langevoort (Georgetown), David Luban (Georgetown), Jonathan Macey (Yale), Peter Margulies (Roger Williams), Colin Marks (St. Mary's), Geraldine Szott Moohr (Houston), Marleen O'Connor (Stetson), Frank Partnoy (San Diego), Robert Prentice (Texas), Robert Romano (Yale), Mark Sargent (Villanova), Steven Schwarcz (Duke), David Arthur Skeel (Penn), Christopher Whelan (Oxford, Visiting, Washington & Lee), Duane Windsor (Rice), and Randall Wray (UMKC).

Chief Justice Roberts Joins "One Really Big Flub" Pantheon; Rowan Atkinson Considered for 2012 Oath

Posted by Jeff Lipshaw

You don't get into this club by being a loser.  Oh no.  You have to have a life of great accomplishment.  But you also have to be remembered primarily for one great flub.  The charter member was Chris Webber of "I thought we had a time-out" fame, and he was joined by Phil Luckett, the referee who couldn't seem to get the coin toss straight.

Other nominees will be accepted in comments.

Well, it could have been worse. Rowan Atkinson could have been administering the oath.

When Do the Obamas Get to Relax for a Little Bit?

Posted by Jeff Lipshaw

Sorry, ABA Journal, but I'm going off topic for a minute.

I've been transfixed all day watching the inaugural (the Obamas are now walking on Pennsylvania Avenue, and I'm worried about security!), but my bigger question is whether in a day that followed a big night, where they started at 8:30 this morning, did the big ceremony, had lunch, and have to do parties tonight, do they get to go up in the residence, kick off the suits, throw on some sweats, and just hang for a couple of hours before they have to put on the gowns and tuxes?

The closest in my experience was my daughter's bat mitzvah.  We had the dinner for all the out-of-town relatives the night before.  We didn't go to St. John's Episcopal and have coffee with the outgoing President, but we did have to show up at the Temple early for pictures and a short meeting with the rabbi.  We too had a long and emotional ceremony.  We didn't do lunch in Statutory Hall, but we did a lunch in the social hall (complete with candle lighting and toasts).  Nor did we have a parade, but I did take the minivan over to pick up the soft serve ice cream machine.  And there wasn't an inaugural ball, but we had a bowling and karaoke party for the kids. 

All I know is that by about 5:00 p.m. I was beat.  We had about a 90 minute interregnum where we got to catch our breath.   Then it was off to Langan's Pizza and Bowl for the festivities, and my karaoke version of "Midnight Train to Georgia."

I hope they get some time to veg a little bit.

Homage to John Mortimer

Posted by Jeff Lipshaw

I was saddened to see today that John Mortimer, barrister, author, and creator of Horace Rumpole, the quintessential Old Bailey hack, an aging "junior barrister," passed away.

The Rumpole stories got a little thin (or strained) in the past few years, but the first four or five collections were superb.  You could enjoy them in print, by watching the Thames/BBC productions with Leo McKern, or by listening to the recorded books, some of which McKern read, and as they were written in the first person, it was as though Rumpole was talking to you personally.

Here's to Horace, Hilda ("She Who Must Be Obeyed"), Phillida Trant Erskine-Brown (the Portia of our Chambers), her husband Claude, Guthrie Featherstone, and the rest.