Faculty Books & Edited Works

Follow

• 

  Privacy and Technologies of Identity: A Cross-Disciplinary Conversation

  Katherine J. Strandburg and Daniela Stan Raicu

  Privacy and Technologies of Identity: A Cross-Disciplinary Conversation provides an overview of ways in which technological changes raise privacy concerns. It then addresses four major areas of technology: RFID and location tracking technology; biometric technology, data mining; and issues with anonymity and authentication of identity. Many of the chapters are written with the non-specialist in mind, seeking to educate a diverse audience on the "basics" of the technology and the law and to point out the promise and perils of each technology for privacy. The material in this book provides an interface between legal and policy approaches to privacy and technologies that either threaten or enhance privacy. This book grew out of the Fall 2004 CIPLIT(r) Symposium on Privacy and Identity: The Promise and Perils of a Technological Age, co-sponsored by DePaul University's College of Law and School of Computer Science, Telecommunications and Information Systems. The Symposium brought together leading researchers in advanced technology and leading thinkers from the law and policy arenas, many of whom have contributed chapters to the book. Like the Symposium, the book seeks to contribute to a conversation among technologists, lawyers, and policymakers about how best to handle the challenges to privacy that arise from recent technological advances.

• 

  Covering: The Hidden Assault on Our Civil Rights

  Kenji Yoshino

  A lyrical memoir that identifies the pressure to conform as a hidden threat to our civil rights, drawing on the author's life as a gay Asian American man and his career as an acclaimed legal scholar. "[Kenji] Yoshino offers his personal search for authenticity as an encouragement for everyone to think deeply about the ways in which all of us have covered our true selves. . . . We really do feel newly inspired."--The New York Times Book Review Everyone covers. To cover is to downplay a disfavored trait so as to blend into the mainstream. Because all of us possess stigmatized attributes, we all encounter pressure to cover in our daily lives. Racial minorities are pressed to "act white" by changing their names, languages, or cultural practices. Women are told to "play like men" at work. Gays are asked not to engage in public displays of same-sex affection. The devout are instructed to minimize expressions of faith, and individuals with disabilities are urged to conceal the paraphernalia that permit them to function. Given its pervasiveness, we may experience this pressure to be a simple fact of social life. Against conventional understanding, Kenji Yoshino argues that the work of American civil rights law will not be complete until it attends to the harms of coerced conformity. Though we have come to some consensus against penalizing people for differences based on race, sex, sexual orientation, religion, and disability, we still routinely deny equal treatment to people who refuse to downplay differences along these lines. At the same time, Yoshino is responsive to the American exasperation with identity politics, which often seems like an endless parade of groups asking for state and social solicitude. He observes that the ubiquity of covering provides an opportunity to lift civil rights into a higher, more universal register. Since we all experience the covering demand, we can all make common cause around a new civil rights paradigm based on our desire for authenticity--a desire that brings us together rather than driving us apart.

• 

  Foundations of Bankruptcy Law

  Barry E. Adler

  Bankruptcy is relevant not merely as a last resort but influences individual and corporate decisions from the time of or before obligations are first incurred. In this sense, bankruptcy is as basic to private ordering as the more familiar inhabitants of the private-law pantheon including contract, corporate, property, and tort law. This book of brief, mostly non-technical, excerpts from leading bankruptcy scholarship builds the concepts of bankruptcy law from first principles and thus allows the reader to understand bankruptcy's fundamental nature. In more detail, the book begins in Chapter I with a description of debt itself, which serves one set of functions for individuals and a different set for corporations. Chapter II touches on the political economy of bankruptcy law, including an explanation of how the presence of debt in society and in the economy give rise to special interests. Chapter I II addresses bankruptcy issues specific to the individual debtor, with a focus on the fresh start, its role and its limitations. Chapter IV addresses bankruptcy issues specific to the corporate debtor, with special attention to the role of bankruptcy law in the link between capital structure and investment incentive. Chapter V samples the recent literature on proposed alternatives to—not merely reform of—corporate bankruptcy. This material encourages the reader critically to examine the efficacy of current bankruptcy law, which is valuable even if the proposals themselves are never enacted. The book concludes, in Chapter VI, with an examination of special problems in transnational bankruptcy, an examination that provides a new context in which the reader m ay consider or rehearse many of the issues discussed earlier in the book.

• 

  Labour Rights as Human Rights

  Philip G. Alston

  Are efforts to protect workers' rights compatible with the forces of globalization? How can minimum standards designed to protect labor rights be implemented in a world in which national labor law is more and more at the mercy of international forces beyond its control? The contributors to this volume argue that international agreements and institutions are of central importance if labor rights are to be protected in a globalized economy, exploring some of the options that are open to governments, civil society, and the labor movement in the years ahead.

• 

  Non-State Actors and Human Rights

  Philip G. Alston

  Can transnational corporations ignore human rights as long as governments don't hold them accountable? If the UN is put in charge of a territory, is it bound by human rights law? Under traditional approaches to human rights, non-state actors cannot be parties to the relevant treaties and so they are only bound to the extent that obligations accepted by States can be applied to them by governments. This situation threatens to make a mockery of much of the international system of accountability for human rights violations. The contributors to this volume examine the different approaches that might be taken in order to ensure some degree of accountability. Making space in the legal regime to take account of the role of non-State actors is one of the biggest and most critical challenges facing international law today.

• 

  Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency

  Philip G. Alston and Olivier de Schutter

  Coherent laws enforced by a central authority are part of the reason why human rights protection works at the national level in Europe. But when it comes to the EU these dimensions are lacking. The present system for protecting fundamental rights emerged on an ad hoc basis, with measures being improvised to respond to particular problems. In the next couple of years, however, this situation is likely to change very significantly. The proposed European Constitution incorporates the EU Charter of Fundamental Rights, and a specialized EU Fundamental Rights Agency is likely to be established. As a result, the situation of the EU will more closely resemble that of its Member States. Fundamental rights will occupy a central role, and coherent and systematic arrangements will be in place to protect rights, using both judicial and non-judicial means. The Fundamental Rights Agency, in particular, has immense potential to ensure effective monitoring of fundamental rights in the EU, and to ensure a unified strategy for their promotion in EU law and policy. This volume is the first to critically examine the proposals put forward by the European Commission in October 2004 on the creation of the EU Fundamental Rights Agency. Leading scholars in the field of European and international human rights law analyse the potential significance of this innovative Agency, and seek to locate it in relation to various other human rights mechanisms, both in the EU's constitutional structure and within Member States. They review the tasks which the Agency could be called upon to perform, and make proposals as to how it can function most effectively. The relationship of EU law to the international law of human rights emerging from both the United Nations and the Council of Europe is examined. The authors also address the challenge of ensuring improved coherence between EU law and the other human rights obligations undertaken by the Member States. Taken together, these contributions address urgent questions facing the EU at a time when the central unifying function of fundamental rights has been recognized but the way forward remains largely uncharted.

• 

  Human Rights and Development: Towards Mutual Reinforcement

  Philip G. Alston and Mary Robinson

  Only in the past 15 years or so, with the fall of the Berlin Wall and the realization that freedom and economic well-being are empirically linked, have the professional communities dealing with development and human rights issues begun to communicate effectively. But too much of the dialogue has been confined to an abstract or theoretical level. The eminent contributors to this volume address highly specific but crucial aspects of the human rights and development interface, including the economics of social rights; land rights and women's empowerment; child labor and access to education; reform of legal and judicial systems; the human rights role of the private sector; and building human rights into development planning, especially the Poverty Reduction Strategy process.

• 

  Laying the Foundations for Children's Rights: An Independent Study of Some Key Legal and Institutional Aspects of the Impact of the Convention on the Rights of the Child

  Philip G. Alston and John Tobin

  This study provides a critical and constructive analysis of how far the international community and individual states have come in their efforts to establish the normative, legal, and institutional frameworks which are essential if the aspirations of the Convention are to be translated into reality. Within this context the study seeks to achieve three objectives: (1) to draw up a balance sheet of some of the Convention’s achievements and shortcomings in terms of laying the foundations for an effective Convention-based regime; (2) to provide a balanced perspective on the Convention’s importance within the overall range of endeavors to improve the well-being of children in the world; and (3) to expose and examine some of the dilemmas and complexities which arise in efforts to promote and give effect to the Convention.

• 

  International Organizations as Law-Makers

  José E. Alvarez

  This book addresses how international organizations with a global reach, such as the UN and the WTO, have changed the mechanisms and reasoning behind the making, implementation, and enforcement of international law. It argues that existing descriptions of international law and international organizations do not do justice to the complex changes resulting from the increased importance of these institutions after World War II and then after the end of the Cold War. In particular, this book examines the impact of the institutions on international law through the day-to-day application and interpretation of institutional law, the making of multilateral treaties, and the decisions of a proliferating number of institutionalized dispute settlers. Part I re-examines the law resulting from the activity of political organs, such as the UN General Assembly and Security Council, technocratic entities within UN specialized agencies, and international financial institutions such as the IMF, and considers their impact on the once sacrosanct ‘domestic jurisdiction’ of states. Part II assesses the impact of the move towards institutions on treaty-making. It addresses the interplay between negotiating venues and procedures and interstate cooperation and asks whether the involvement of international organizations has made modern treaties ‘better’. Part III examines the proliferation of institutionalized dispute settlers, from the UN Secretary General to the WTO's dispute settlement body, and re-examines their role as both settlers of disputes and law-makers. The final chapter considers the promise and the perils of the turn to formal institutions for the making of the new kinds of ‘soft’ and ‘hard’ global law, including the potential for forms of hegemonic international law.

• 

  Econometrics: Legal, Practical, and Technical Issues

  American Bar Association Section of Antitrust Law, Daniel L. Rubinfeld, and John Harkrider

  The Section of Antitrust Law is pleased to publish Econometrics: Legal, Practical, and Technical Issues. The economic expert has become a central figure in virtually every antitrust litigation or merger matter, and the importance of econometrics has increased significantly. A basic understanding of econometric principles has now become almost essential to the serious antitrust practitioner. This volume is designed to introduce lawyers to the theoretical and practical issues of econometrics, providing necessary tools for working effectively with economic experts on both sides of a matter. . . . Econometrics: Legal, Practical, and Technical Issues was born from a concern that the increasing use of econometrics in antitrust was creating an information gap between lawyers and economists, with potential effects on the quality of judicial determinations based on econometric evidence. In particular, econometricians were resenting highly sophisticated and abstract mathematical models to lawyers, many of whom were not schooled in these techniques and might not understand their significance. Moreover, econometricians were relying upon data that did not always accurately reflect the facts developed by the witnesses and the lawyers. Consequently, there was a concern that courts and agencies hearing antitrust matters might rely upon econometric evidence without a full understanding of its limitations or requirements, or might reject such evidence without recognizing its merits. Econometrics introduces readers to legal, practical, and technical issues in econometrics so that they can better understand the econometric analyses performed by their adversary or their own expert. This information may help them present these issues to courts and agencies more effectively. The purpose of this book is not to enable lawyers to perform econometric analysis, which is a highly technical field that requires a detailed understanding of matrix algebra and statistical theory, but simply to narrow the econometrics information gap. To that end, it provides case studies in which the parties or the government used econometric analysis. To make this volume as accessible as possible, equations and detailed mathematical proofs are kept to a minimum in the body of the text, with further detail in the appendices. Econometrics is divided into five parts: Part I introduces econometrics and discusses the legal issues raised by the use of econometric evidence, including admissibility of expert econometric testimony under Daubert v. Merrell Down Pharmaceuticals, Inc. (Chapter II), discovery of econometric evidence (Chapter III), and practical advice regarding the use of econometric evidence in jury trials (Chapter IV). Part II focuses on the view of the antitrust enforcement agencies regarding the use of econometric evidence, including some best practices regarding the use of econometrics before the FTC (Chapter V) and a review of four recent cases in which econometric evidence was presented to and used by the DOJ (Chapter VI). Part III illustrates how econometrics can be applied to a variety of practical antitrust contexts, including damage analysis (Chapter VII), class certification (Chapter VIII), auction markets (Chapter IX), and price discrimination (Chapter X). Part IV discusses the use of econometrics in analyzing the competitive effects of mergers, with particular attention to merger simulation, including the Antitrust Logit Model (ALM), the Almost Ideal Demand System (AIDS), and the proportionately-calibrated AIDS model (PCAIDS) (Chapter XI), as well as residual demand and price/cost analysis (Chapter XII). The first appendix of this volume then applies some of the theories presented earlier in a series of case studies: WorldCom’s proposed acquisition of Sprint, Staples’ proposed acquisition of Office Depot, and acquisitions among large incumbent local exchange carriers. The book concludes with three further appendices that explain in more detail many of the econometric terms and methods used elsewhere in the volume, including a discussion of Ordinary Least Squares Regression (OLS), the logit model, and a review of data problems, including issues raised by accounting data and scanner data.

• 

  The Ethics of Identity

  Kwame Anthony Appiah

  Race, ethnicity, nationality, religion, gender, sexuality: in the past couple of decades, a great deal of attention has been paid to such collective identities. They clamor for recognition and respect, sometimes at the expense of other things we value. But to what extent do “identities” constrain our freedom, our ability to make an individual life, and to what extent do they enable our individuality? In this beautifully written work, renowned philosopher and African Studies scholar Kwame Anthony Appiah draws on thinkers through the ages and across the globe to explore such questions. The Ethics of Identity takes seriously both the claims of individuality—the task of making a life—and the claims of identity, these large and often abstract social categories through which we define ourselves. What sort of life one should lead is a subject that has preoccupied moral and political thinkers from Aristotle to Mill. Here, Appiah develops an account of ethics, in just this venerable sense—but an account that connects moral obligations with collective allegiances, our individuality with our identities. As he observes, the question who we are has always been linked to the question what we are. Adopting a broadly interdisciplinary perspective, Appiah takes aim at the clichés and received ideas amid which talk of identity so often founders. Is “culture” a good? For that matter, does the concept of culture really explain anything? Is diversity of value in itself? Are moral obligations the only kind there are? Has the rhetoric of “human rights” been overstretched? In the end, Appiah’s arguments make it harder to think of the world as divided between the West and the Rest; between locals and cosmopolitans; between Us and Them. The result is a new vision of liberal humanism—one that can accommodate the vagaries and variety that make us human.

• 

  Africana: The Encyclopedia of the African and African American Experience

  Kwame Anthony Appiah and Henry Louis Gates Jr.

  Ninety years after W.E.B. Du Bois first articulated the need for “the equivalent of a black Encyclopedia Britannica,” Kwame Anthony Appiah and Henry Louis Gates Jr., realized his vision by publishing Africana: The Encyclopedia of the African and African American Experience in 1999. This new, greatly expanded edition of the original work broadens the foundation provided by Africana. Including more than one million new words, Africana has been completely updated and revised. New entries on African kingdoms have been added, bibliographies now accompany most articles, and the encyclopedia's coverage of the African diaspora in Latin America and the Caribbean has been expanded, transforming the set into the most authoritative research and scholarly reference set on the African experience ever created. More than 4,000 articles cover prominent individuals, events, trends, places, political movements, art forms, business and trade, religion, ethnic groups, organizations and countries on both sides of the Atlantic. African American history and culture in the present-day United States receive a strong emphasis, but African American history and culture throughout the rest of the Americas and their origins in African itself have an equally strong presence. The articles that make up Africana cover subjects ranging from affirmative action to zydeco and span over four million years from the earlies-known hominids, to Sean “Diddy” Combs. With entries ranging from the African ethnic groups to members of the Congressional Black Caucus, Africana, Second Edition, conveys the history and scope of cultural expression of people of African descent with unprecedented depth. New to this Edition: more than 1,000 new entries, others updated and revised; articles covering cities, regions, countries and living subjects are all fully updated; additional articles on the African Diaspora in Latin America; hundreds of photos, tables and maps that have been updated for the new edition.

• 

  Federal Tax Practice and Procedure: Cases, Materials, and Problems

  Brookes D. Billman and Camilla E. Watson

  The casebook covers the organization and structure of the IRS, the return examination process, assessments, collections, overpayments, penalties, civil litigation, and criminal prosecutions. It also contains an expansive chapter on the ethical issues of tax practice. While the book is intended for use in a general federal tax practice and procedure course, it also may be used for separate courses or seminars in tax ethics, civil tax procedure, tax litigation, and criminal tax practice and procedure.

• 

  Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context

  Oscar G. Chase

  Disputing systems are products of the societies in which they operate—they originate and mutate in response to disputes that are particular to specific social, cultural, and political contexts. Disputing procedures, therefore, are an important medium through which fundamental beliefs, values, and symbols of culture are communicated, preserved, and sometimes altered. In Law, Culture, and Ritual, Oscar G. Chase uses interdisciplinary scholarship to examine the cultural contexts of legal institutions, and presents several case studies to demonstrate that the processes used for resolving disputes have a cultural origin and impact. Ranging from the dispute resolution practices of the Azande, a technologically simple, small-scale African society, to the rise of discretionary authority in civil litigation in America, Chase challenges the claims of some scholars that official dispute systems are more reflective of the interests and preferences of elite professionals than of the cultures in which they are embedded.

• 

  Gigs: Jazz and the Cabaret Laws in New York City

  Paul G. Chevigny

  Gigs provides a fascinating account of a unique victory for musicians against repressive entertainment licensing laws. It provides a much-needed study of the social, political, cultural and legal conditions surrounding a change in law and public attitudes toward vernacular music in New York City. This second edition includes a new preface by Hamish Birchall and an introduction by the series editors, Guy Osborn and Steve Greenfield, as well as an afterword by the author, and it will be essential reading for all those interested in the history of social attitudes toward the popular arts and the use of constitutional litigation for social change.

• 

  Securities Regulation: Cases and Analysis

  Stephen J. Choi and A. C. Pritchard

  Securities Regulation: Cases and Analysis includes detailed coverage of the SEC's 2005 Public Offering Reforms and seeks to make both securities markets and securities regulation accessible and manageable, helping students to master the basic principles and structure of securities regulation and enabling them to begin their careers as corporate lawyers with confidence. Each chapter begins with a brief essay laying out the economics of the subject of the chapter. Securities markets are all about money, so an understanding of the economic incentives of the various actors is essential to an understanding of the effects of the regulatory regime.

• 

  EU Law and the Welfare State: In Search of Solidarity

  Gráinne de Búrca

  This collection of essays addresses a topical subject of current importance, namely the impact of the EU on national welfare state systems. The volume aims to question the perception that matters of social welfare remain for Member States of the EU to decide, and that the EU's influence in this field is minor or incidental. The various essays trace the different ways in which the EU is having an impact on the laws and practices of the Member States in the area of welfare, looking at issues of social citizenship and the influence of the Charter of Fundamental Rights, as well as at the impact of EU economic freedoms - competition law and free movement law in particular - on both “services of general economic interest” and on national health-care systems. The significance of the so-called Open Method of Coordination in developing a new compromise on “social Europe” is discussed, as well as the tensions between market liberalization and social protection in the specific context of this transnational political system are examined. While the various authors clearly have different views on the likelihood of a robust form of European social solidarity developing, the book as a whole suggests the emergence of a distinctive, although partial and fragmented, European Union welfare dimension.

• 

  Social Rights in Europe

  Gráinne de Búrca and Bruno de Witte

  The book is concerned with the legal framework for protecting and promoting social rights in Europe. Its chapters examine procedural and substantive aspects of the Council of Europe's European Social Charter and the European Union's Charter of Fundamental Rights, as well as the EU's so-called “acquis” in the area of social rights. They look at a range of issues, including the strengths and weaknesses of the two systems in terms of promoting and protecting social rights by examining the legal and political enforcement mechanisms as well as at some of the important substantive rights contained within each.

• 

  Law and Globalization from Below: Towards a Cosmopolitan Legality

  Bonaventura de Sousa Santos and César Rodríguez-Garavito

  This book is an unprecedented attempt to analyze the role of the law in the global movement for social justice. Case studies in the book are written by leading scholars from both the global South and the global North, and combine empirical research on the ground with innovative sociolegal theory to shed new light on a wide array of topics. Among the issues examined are the role of law and politics in the World Social Forum; the struggle of the anti-sweatshop movement for the protection of international labour rights; and the challenge to neoliberal globalization and liberal human rights raised by grassroots movements in India and indigenous peoples around the world. These and other cases, the editors argue, signal the emergence of a subaltern cosmopolitan law and politics that calls for new social and legal theories capable of capturing the potential and tensions of counter-hegemonic globalization.

• 

  Land Use Controls: Cases and Materials

  Robert C. Ellickson and Vicki L. Been

  Give your students a casebook as dynamic as the subject of land use by adopting this thoroughly revised edition of a former best seller. LAND USE CONTROLS: Cases and Materials, Third Edition, illuminates the legal regulation of the land development process with a skillful blend of social scientific analysis and historical materials. Both students and instructors will appreciate the casebook's strengths: distinguished authorship. Robert C. Ellickson is a Professor of Law at Yale and author of several books and many law review articles dealing with land development and property; Vicki L. Been, is a highly respected scholar and authority on environmental justice whose thinking on land use has been published in prestigious law reviews and casebooks LAND USE CONTROLS is known and respected as a leading casebook, now completely updated for this latest edition an interdisciplinary approach that weaves historical, social, and economic perspectives throughout the work concise but comprehensive treatment of the legal issues that arise in both private and public regulation of land development, including environmental justice, building codes and subdivision regulations, and the federal role in urban development a thematic framework that reveals the connections among the multiple discrete topics under land law, with attention to the factual and political context of the cases and the aftermath of decisions helpful learning aids -- original introductory text, cases, notes, excerpts from law review articles, and visual aids such as maps, charts, and graphs . This revision covers all the most recent and important developments and features: Kelo and other U.S. Supreme Court decisions through June 2005 thoroughly updated notes, with recent cases, law review literature, and empirical studies recent land use controversies, such as the "Walmart Wars". If you want a teachable casebook with the latest information and a traditional notes-and-cases approach, be sure to consider LAND USE CONTROLS: Cases and Materials, Third Edition . This scrupulously revised edition helps you teach a course that is both challenging and interesting to students.

• 

  Free Markets Under Siege: Cartels, Politics and Social Welfare

  Richard A. Epstein

  Drawing on his extensive knowledge of history, law, and economics, Richard Epstein examines how best to regulate the interface between market choice and government intervention--and find a middle way between socialism and libertarianism. He argues the merits of competition over protectionism and reveals the negative results that ensue when political forces displace economic competition with subsidies and barriers to entry. In the process, he provides an illuminating analysis of some of the ways that special interest groups, with the help of sympathetic politicians, have been able to manipulate free markets in their favor.

• 

  Quo Vadis CISG?: Celebrating the 25th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods

  Franco Ferrari

  There is no better occasion than the 25th anniversary of the United Nation Convention on Contracts for the International Sale of Goods (CISG) to examine whether, and if so, to what extent that Convention has reached its goal of unifying the law of international sale of goods. By giving an account of how that Convention had been applied in the various countries, the papers published in this book allow the reader to assess the degree of uniformity reached and, ultimately, determine how successful that Convention really is. Published in co-operation with Bruylant (Belgium) and FEC (France).

• 

  Civil Procedure

  Jack H. Friedenthal, Mary Kay Kane, and Arthur R. Miller

  Gain insight into the laws governing all of the major steps in the civil litigation process, starting with investigation and ending with post-appeal collateral attacks. This text covers the major themes underlying the governing legal standards and those basic issues that the case law and literature suggest to be the most pressing. References to federal practice and procedure are provided with a discussion on the burden of complex, multi-party litigation on the judicial system.

• 

  Civil Procedure: Cases and Materials

  Jack H. Friedenthal, Arthur R. Miller, John E. Sexton, and Helen Hershkoff

  Updated to include a contemporary perspective, this popular classic casebook covers important developments in several areas of civil procedure and incorporates student and professor comments on previous editions. While it retains a focus on procedural evolution, the new ninth edition also discusses cutting-edge issues, such as transnational litigation and technology's effect on jurisdictional doctrine. To make way for new material, this edition abbreviates a few older cases and commentaries and streamlines some notes.

• 

  Regulation of Lawyers: Problems of Law and Ethics

  Stephen Gillers

  The ideas in this book and the course for which it is assigned will govern all of your professional life. Here you will learn the rules you have to live by and the consequences if you ignore them. Other courses teach lessons that bear on your clients’ problems more directly. This course is for you. Unless you work in the areas of legal malpractice, lawyer discipline, or the like, you and not your clients will be the immediate beneficiary of what you learn here. Your clients will be indirect beneficiaries. But there’s one exception. Knowledge of lawyer regulations permits you to know if another lawyer is acting in a way that violates your client’s rights—for example, rights under conflict rules or rules against communicating with another lawyer’s clients. The subject of this course can be discussed from three perspectives. T the precipice of your career, perhaps most important are rules that constrain your professional behavior. In such areas as competence, fees, marketing, confidentiality, conflicts of interest, negotiation, and the client-lawyer relationship, what may you do and how may you behave—with confidence that your conduct will not land you before a disciplinary committee, lead to a civil lawsuit, invite court sanction, forfeit your fee, or damage your reputation? Even to ask this question should be sufficient to forewarn you that the “ethics” in legal ethics is not merely about being amorally good person. It is also about being a professionally safe lawyer. For the fact is that the law business is heavily regulated, like banking, securities, and pharmaceuticals. The regulations are becoming increasingly complex. They have already led to creation of a new phrase—the law governing lawyers—lest anyone is fooled by the word “ethics” into believing that the subject is mostly about how to be liked or respected. You make two mistakes at your peril. First, do not believe that the right way to act—toward clients, courts, adversaries, or colleagues—will be intuitively obvious. Sure, sometimes it will be. But no one needs to teach you not to lie or steal in professional life, and certainly not in 800 pages. The rules here are often not self-evident; they may even be counterintuitive and can be exquisitely subtle in their application. Second, do not assume that the law office that hires you will provide all the protections you need against missteps. Good law offices do have systems to detect and avoid improper conduct. But they are not perfect, and, anyway, the duty to act properly is generally not delegable. The individual responsibility of each lawyer cannot be entrusted to a boss. In the end, you’re on your own. The second perspective from which to view the law governing lawyers is the relationship between the profession and society. The rules that lawyers impose on themselves through self-regulation or that are imposed on them by courts and legislatures, taken together, help defined the nature and work of the entire profession and therefore the behavior of our legal institutions and the quality of our social justice. For example, a rule that allows lawyers to advertise will influence the conduct of individual members of the bar. But it also affects the size of legal fees and whether or how large categories of people use lawyers. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about a client in order to protect others from harm will control that lawyer’s own behavior, but it may also affect which client populations use lawyers and what information clients are willing to give them. In short, nearly every rule, whatever its source, as social and political consequences beyond any single representation or practice, although there is often fierce disagreement over what these consequences will be and whether they should be avoided or encouraged. As you enter law practice, you may be more interested in such questions as “How do I behave?” and “How can I stay out of trouble?” than in asking, “What are the consequences to society and justice if one or another version of a particular rule is applied to America’s more than 800,000 practicing lawyers?” Still, the last question is important and, if not as immediate, will surely arise in the course of your professional life. Many readers of this book will someday be in positions that require them to address the broader question. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses from practicing lawyers. Why? In part, because to answer them we must call upon political and moral values more fundamental than the “ethics” that inform various codes. And, of course, the political and moral values of different people may differ fundamentally. In addressing these questions, we should also try to be honest about the interests we mean to protect. Those of society generally? The legal profession’s? The interests of lawyers in practices like the one we have or expect to have? Those of the particular client population we serve? Our firm’s? Our own? Law school and law practice, it is sometimes said, encourage more rather than less self-interestedness in answering the questions raised here. In transition as you are, your answers to many of them will likely vary from what they would have been before you entered law school and will likely be still different five years after you graduate. I wrote that rules governing the practice of law can be discussed from three perspectives. I have so far listed two. The third is the effect of lawyers’ work on the people who do the work, that is, the effect of role on self. For example, a rule that requires silence though it means that another will suffer injustice will take its toll on those who must obey it. As man and women, we consider it laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. How can we reconcile these two positions, not intellectually or theoretically but personally, within ourselves? A similar point can be made about the rule that requires lawyers diligently to pursue the lawful goals of their clients even if these goals (or legal strategies used to achieve them) offend the lawyer’s values. Or consider the oft-cited schism between the qualities of personality that law office culture tends to reward and the ones encouraged in personal and family life. Do you have to learn behavior in order to survive in professional environments that will make you unpleasant in social and familial ones—unless you also learn how to “leave it at the office”? Once thinks of the common retort of a lawyer’s lay relatives: “Oh, stop talking like a lawyer!” Many topics in this book lend themselves to discussion of the effect of role on self (an issue which I hope you are able to address in class) but certainly they are worthy of self-reflection throughout your career, starting now. This is the seventh edition of this book. I started work on the first edition in 1982. Between editions I spend an hour or two each week planning for the next one. You get to thinking a lot about what a casebook is and can be when you live with one for so long. The book’s primary function is to provide information, but that’s just the beginning. The minimum editorial task would allow me to pick some good cases and other materials, edit them, order them logically, add interstitial notes and questions, and put the product between covers. Voila! A casebook. Of course, one must begin this way, but if nothing more were possible (even if not required), I doubt that I would have continued at it this long. Luckily, more is possible while still serving the book’s objective—to teach the subject. For starters, we can strive for humor, variety, clarity, and engaging writing. The enterprise will not likely support the extended charm of a Hazlitt essay of the quirkiness of a Vonnegut novel—assuming I had the talent to achieve either, in which case I’d probably be in a different line of work—but a casebook is a book, after all, and should have, well, personality, and authorial presence in so far as possible. So you may find the tone or voice in my contributions to this volume (and even some of the editorial selections) different from what you’re accustomed to encountering in the genre. That’s what makes the book mine. The legal profession is a culture of storytellers and stories. Harrison Tweed, a president of the Association of the Bar of the City of New York, once said: “I have a high opinion of lawyers. With all their faults, they stack up well against those in every other occupation or profession. They are better to work with or play with or fight with or drink with than most other varieties of mankind.” These words are in fact inscribed on a wall at the Association’s headquarters. As a young lawyer, I thought Mr. Tweed was a little over the top, if not downright sanctimonious, in making so grandiose a claim. At that time in my life, I was inclined to agree with the character in George Bernard Shaw’s play The Doctor’s Dilemma who said “all professions are conspiracies against the laity.” To some extent, I still find Tweed a bit excessive, though not quite as passionately as when I was starting out, and Shaw apt, even if hyperbolic. And yet Tweed has a point. The profession and its members are fascinating to study and its stories are fascinating to hear. Like any culture, understanding it requires density of information. We must know a thousand small things about life within the society of lawyers, not merely two or three big things, if we are going to understand it truly. While this book is not a sociological study of lawyers or of legal institutions, I have tried to incorporate current events in the materials and to offer you note cases—little stories, really—exemplifying multiple variations on particular themes. I believe that these will make the culture of law practice more real for you and thereby better help you understand the rules that define it. Finally, I invite your views on the book. What was dull? What worked well? How can the book be improved? Have you encountered a story somewhere (true or fiction) that you think nicely highlights an issue? You can reach me in several ways. By snail mail at NYU School of Law, New York, NY 10012. By fax at (212) 995-4658. Send e-mail to stephen.gillers@nyu.edu. All comments will be acknowledged.