-
Marx, Justice, and History
Thomas Nagel, Marshall Cohen, and Thomas Scanlon
The political and ideological turmoil of the late 1960’s stimulated among Anglo-American philosophers a new interest in applying moral philosophy to the problems of contemporary society, and a search for critical perspectives on Marx and Marxist thought. These essays, originally published in Philosophy & Public Affairs, contribute to both these areas in the form of new Marxist scholarship and in illuminating the way in which Marxist criticism and social theory bear on contemporary analytic moral philosophy and current moral problems.
-
Weinstein, Korn, & Miller CPLR Manual
Jack B. Weinstein, Harold L. Korn, and Arthur R. Miller
Covering the major subjects of New York civil procedure under the Civil Practice Law and Rules of New York, this 2-volume set is topically organized to be a valuable, quick reference guide that provides complete, succinct coverage. The Weinstein, Korn and Miller CPLR Manual serves as a time-saving complement to the Weinstein, Korn and Miller treatise, New York Civil Practice: CPLR, through cross-referencing to more detailed analysis, and is revised and updated with the most recent legal developments by General Editor David L. Ferstendig.
-
Administrative Law and Regulatory Policy
Stephen G. Breyer and Richard B. Stewart
The tradition course on Administrative Law primarily concerns the delegation of power to administrative agencies, the procedures that the law requires them to follow, the legal requirements for obtaining judicial review of agency decisions, and the standards applied during that review. Critics of this course persistently and increasingly raise two important objections: First, isn’t such a course too abstract? Too remote from the substantive essence of agency decisionmaking? Aren’t efforts to generalize across decisions arising out of many different agencies and substantive fields misleading? Don’t those decisions often reflect no more than court efforts to deal with distasteful agency action on a case-by-case basis, perhaps masked by appeals to procedural principle? In a word, is it possible to understand these court decisions without understanding the substantive work of the agency? Second, doesn’t concentration upon appellate court decisions mislead the student about what agencies do? The impact of judicial decisions upon agency work may often be slight; and court review may constitute only a small part of the work of lawyers who practice before the agency. Should future lawyers not be given a broader understanding of the many other factors that affect the impact that agency action has upon the world? This casebook represents an effort to preserve the essential virtues of the traditional course while adapting it to meet these objections. The materials are organized along traditional procedural lines, as updated to reflect the vast change that has overtaken this body of law in recent years. At the same time the book uses notes and problems systematically to survey regulation, as broadly conceived to deal not only with prices and entry, but also with health, safety, and the environment. It shows the interaction between substance and procedure; and (particularly in Chapter 8) it describes some of the bureaucratic and political factors at work. Thus, this casebook might be used in two different ways. The teacher who wishes to emphasize the “administrative process” rather than “administrative procedure” might use this book to do so. It will introduce the future practitioner to the substance of much regulation, its interplay with procedural rules, the agency seen as a bureaucratic institution, and the basic steps for obtaining court review. The teacher of the traditional course might teach that course from this book as well, using the substantive notes and comments as supplementary aids. We recommend that those emphasizing regulatory aspects of the book in their courses refer to the Teachers Manual, which is based on our teaching notes. The book’s cases, questions and problems are deliberately organized to elicit in class discussion the points and issues that the Manual contains. The book provides sufficient material for a four-hour course. Those wishing to teach a three-hour course are advised to forgo selected substantive areas of regulation (such as utility rate regulation; food and drug regulation; FTC regulation of false advertising) or procedural topics (such as application of due process; privacy jurisdiction; Freedom of information Act) or a combination thereof.
-
Emerson, Haber, and Dorsen's Political and Civil Rights in the United States
Norman Dorsen, Paul Bender, Burt Neuborne, and Sylvia A. Law
This is the fourth edition of legal and other materials that are designed to be a comprehensive source book for lawyers facing civil liberties or civil rights issues in their practice and a teaching text for students who are taking courses and seminars in the subject or doing research in it. The book traces its lineage to mimeographed teaching materials prepared at the Yale Law School by Professors Thomas Emerson and David Haber during the late 1940s and to a first edition they published in 1952. A second edition appeared in 1958 and a third, which Professor Norman Dorsen co-authored, in 1967. Feeling that three generations of a book were enough for them, Professors Emerson and Haber (the latter now at Rutgers Law School at Newark) have handed over the responsibility for producing the fourth edition to us. In accepting the responsibility we salute the able and dedicated work of our predecessors. Since the third edition appeared, the scope and volume of cases and secondary material in the field of political and civil rights have increased enormously. A major concession this has drawn from us is the decision to prepare the two volumes of the book consecutively rather than simultaneously, as in earlier editions. Volume I of the fourth edition was published in 1976. It deals with freedom of expression, and other individual rights such as academic freedom, privacy, travel and religious freedom. It also contains a chapter on the rights of groups with diminished constitutional protection (prisoners, mental patients, military personnel) and extensive materials on the constitutional litigating process. As with the third edition, biennial supplements are prepared to each volume which can be obtained from the publisher or at law school bookstores. The extensive recent developments have also led to a substantial reworking of Volume II. The volume now falls into two main parts—the first dealing with constitutional equal protection theory, the second with equality questions under specific statutes and in particular subject matter areas. The larges addition to the fourth edition of Volume II is contained in Chapters XVIII through XXIII. These chapters, which are all entirely new, contain a systematic exploration of the broad constitutional principles relating to governmental discrimination that have grown up under the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. Chapter XVIII treats the early and largely unsatisfactory development of equal protection principles during the nineteenth century—from the Slaughter House Cases to Plessy v. Ferguson (holding racial segregation constitutional) and Gulf Railway v. Ellis (the first case to hold economic legislation unconstitutional under the rationality branch of equal protection). Chapter XIX, XX, and XXI treat in detail the three main substantive branches of modern equal protection jurisprudence—suspect classifications, fundamental rights and equal protection rationality. Chapter XIX (suspect classifications) is organized to give separate treatment to the problems raised by facial classifications along “suspect” lines, on the one hand (Section A), and the problems raised by nonfacial inequalities, de facto discriminations and questions of discriminatory purpose, on the other (Section B). Separate subsections treat the well-developed law relating to racial classifications; the question of what other classifications should be accorded suspect status; the constitutionality of affirmative action classifications used to redress past or present discrimination against minorities; the standards for proving discriminatory purpose in both legislative and administrative settings; the constitutional status of nonpurposeful discriminations; and the special problem of de facto impacts on the poor. Chapter XX (fundamental rights) first deals with classifications that unequally prohibit or penalize the exercise of express or implied constitutional rights (Section A) and then with the issues of the extent to which classifications affecting other assertedly fundamental—but nonconstitutional—rights should receive similar treatment (Section B). Chapter XXI (rationality) contains a relatively brief treatment of the rise and fall of equal protection rationality during the first part of this century (Sections A and B). This chapter places its primary emphasis, however, on an examination of the re-emergence of significant rationality scrutiny during the late 1960s and early 1970s (Section C). In an attempt to aid in drawing principles from these recent rationality cases, they are organized according to the character of the inequality involved, separate subsections being devoted to assertedly irrational inequalities in classifications relating to economic and labor relations; in classifications relating to incarcerations for crime; in classifications relating to constitutional rights; and to “partially” suspect classifications, such as those along lines of gender and illegitimacy. A final subsection treats the curious doctrine of conclusive or irrebuttable presumptions. Filling out the coverage of constitutional equal protection principles are chapters treating the state action doctrine (Chapter XXII) and the principles governing congressional power to enforce the constitutional guarantees of equal rights (Chapter XXIII). The latter chapter provides a bridge to the statutory material that occupies a large part of the remainder of the volume. With regard to legislative protections of equal rights and equality principles in specific subject matter areas, there are new chapters dealing with Sections 1981 and 1982 of 42 U.S.C., the companion provisions of reconstruction legislation recently given new and expanded life in relation to private discriminations (Chapter XXIV), with Title VI of the 1964 Civil Rights Act, prohibiting discrimination in federally funded programs (Chapter XXVI), with discrimination in municipal services (Chapter XXXI), and with discrimination in family law (Chapter XXXIII). And there are new sections within each of the other chapters of this volume, several of which—education, employment and housing—involve comprehensive treatment of the subject matter. As in the third edition, two different versions of the book are being published—a lawyer’s edition and a law school edition. The latter omits chapters and parts of chapters that are of importance to practicing lawyers but which seem to us less likely to relate to course or seminar material. We have also tried to make the index and the table of contents as complete as possible, and to employ cross-references generously throughout the text. Many footnotes attached to cases and other reprinted materials have been omitted without indication. Footnotes added by the editors are designated by letters rather than numbers. The book include all relevant Supreme Court opinions through the end of the 1977-1978 term. We have also attempted to include lower court cases, legislative developments, and secondary material that was published prior to about May 1, 1978. The references in these volumes are extensive, but the burgeoning materials have nevertheless required some selectivity. Many of the bibliographical references in the lawyer’s edition are omitted from the law school edition. While this is a joint enterprise that has benefited from much discussion among us on all aspects of the book, primary responsibility for chapters was allotted as follows: Dorsen—Chapters XXVIII, XXIX, and XXX; Bender—Chapters XVIII through XXIV and XXVI; Neuborne—Chapters XXV, XXXI, XXXII, and XXXVI; Law—Chapters XXXIII, XXXIV, and XXXV.
-
Emerson, Haber, and Dorsen's Political and Civil Rights in the United States
Norman Dorsen, Paul Bender, Burt Neuborne, and Sylvia A. Law
This is the fourth edition of legal and other materials that are designed to be a comprehensive source book for lawyers facing civil liberties or civil rights issues in their practice and a teaching text for students who are taking courses and seminars in the subject or doing research in it. The book traces its lineage to mimeographed teaching materials prepared at the Yale Law School by Professors Thomas Emerson and David Haber during the late 1940s and to a first edition they published in 1952. A second edition appeared in 1958 and a third, which Professor Norman Dorsen co-authored, in 1967. Feeling that three generations of a book were enough for them, Professors Emerson and Haber (the latter now at Rutgers Law School at Newark) have handed over the responsibility for producing the fourth edition to us. In accepting the responsibility we salute the able and dedicated work of our predecessors. Since the third edition appeared, the scope and volume of cases and secondary material in the field of political and civil rights have increased enormously. A major concession this has drawn from us is the decision to prepare the two volumes of the book consecutively rather than simultaneously, as in earlier editions. Volume I of the fourth edition was published in 1976. It deals with freedom of expression, and other individual rights such as academic freedom, privacy, travel and religious freedom. It also contains a chapter on the rights of groups with diminished constitutional protection (prisoners, mental patients, military personnel) and extensive materials on the constitutional litigating process. As with the third edition, biennial supplements are prepared to each volume which can be obtained from the publisher or at law school bookstores. The extensive recent developments have also led to a substantial reworking of Volume II. The volume now falls into two main parts—the first dealing with constitutional equal protection theory, the second with equality questions under specific statutes and in particular subject matter areas. The larges addition to the fourth edition of Volume II is contained in Chapters XVIII through XXIII. These chapters, which are all entirely new, contain a systematic exploration of the broad constitutional principles relating to governmental discrimination that have grown up under the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. Chapter XVIII treats the early and largely unsatisfactory development of equal protection principles during the nineteenth century—from the Slaughter House Cases to Plessy v. Ferguson (holding racial segregation constitutional) and Gulf Railway v. Ellis (the first case to hold economic legislation unconstitutional under the rationality branch of equal protection). Chapter XIX, XX, and XXI treat in detail the three main substantive branches of modern equal protection jurisprudence—suspect classifications, fundamental rights and equal protection rationality. Chapter XIX (suspect classifications) is organized to give separate treatment to the problems raised by facial classifications along “suspect” lines, on the one hand (Section A), and the problems raised by nonfacial inequalities, de facto discriminations and questions of discriminatory purpose, on the other (Section B). Separate subsections treat the well-developed law relating to racial classifications; the question of what other classifications should be accorded suspect status; the constitutionality of affirmative action classifications used to redress past or present discrimination against minorities; the standards for proving discriminatory purpose in both legislative and administrative settings; the constitutional status of nonpurposeful discriminations; and the special problem of de facto impacts on the poor. Chapter XX (fundamental rights) first deals with classifications that unequally prohibit or penalize the exercise of express or implied constitutional rights (Section A) and then with the issues of the extent to which classifications affecting other assertedly fundamental—but nonconstitutional—rights should receive similar treatment (Section B). Chapter XXI (rationality) contains a relatively brief treatment of the rise and fall of equal protection rationality during the first part of this century (Sections A and B). This chapter places its primary emphasis, however, on an examination of the re-emergence of significant rationality scrutiny during the late 1960s and early 1970s (Section C). In an attempt to aid in drawing principles from these recent rationality cases, they are organized according to the character of the inequality involved, separate subsections being devoted to assertedly irrational inequalities in classifications relating to economic and labor relations; in classifications relating to incarcerations for crime; in classifications relating to constitutional rights; and to “partially” suspect classifications, such as those along lines of gender and illegitimacy. A final subsection treats the curious doctrine of conclusive or irrebuttable presumptions. Filling out the coverage of constitutional equal protection principles are chapters treating the state action doctrine (Chapter XXII) and the principles governing congressional power to enforce the constitutional guarantees of equal rights (Chapter XXIII). The latter chapter provides a bridge to the statutory material that occupies a large part of the remainder of the volume. With regard to legislative protections of equal rights and equality principles in specific subject matter areas, there are new chapters dealing with Sections 1981 and 1982 of 42 U.S.C., the companion provisions of reconstruction legislation recently given new and expanded life in relation to private discriminations (Chapter XXIV), with Title VI of the 1964 Civil Rights Act, prohibiting discrimination in federally funded programs (Chapter XXVI), with discrimination in municipal services (Chapter XXXI), and with discrimination in family law (Chapter XXXIII). And there are new sections within each of the other chapters of this volume, several of which—education, employment and housing—involve comprehensive treatment of the subject matter. As in the third edition, two different versions of the book are being published—a lawyer’s edition and a law school edition. The latter omits chapters and parts of chapters that are of importance to practicing lawyers but which seem to us less likely to relate to course or seminar material. We have also tried to make the index and the table of contents as complete as possible, and to employ cross-references generously throughout the text. Many footnotes attached to cases and other reprinted materials have been omitted without indication. Footnotes added by the editors are designated by letters rather than numbers. The book include all relevant Supreme Court opinions through the end of the 1977-1978 term. We have also attempted to include lower court cases, legislative developments, and secondary material that was published prior to about May 1, 1978. The references in these volumes are extensive, but the burgeoning materials have nevertheless required some selectivity. Many of the bibliographical references in the lawyer’s edition are omitted from the law school edition. While this is a joint enterprise that has benefited from much discussion among us on all aspects of the book, primary responsibility for chapters was allotted as follows: Dorsen—Chapters XXVIII, XXIX, and XXX; Bender—Chapters XVIII through XXIV and XXVI; Neuborne—Chapters XXV, XXXI, XXXII, and XXXVI; Law—Chapters XXXIII, XXXIV, and XXXV.
-
Labor Relations Law in the Public Sector: Cases and Materials
Harry T. Edwards, R. Theodore Clark Jr., and Charles B. Craver
This casebook contains more material than would normally be covered in a two or even three hour course. The authors believe that each teacher should have the opportunity for personal selection.
-
Higher Education and the Law
Harry T. Edwards and Virginia Davis Nordin
The proliferation of laws, regulations, and judicial opinions affecting higher education and the nature of the impact of these laws on the academic community are examined. Designed for use by both students and practitioners, the book employs the "case method" design based on the belief that law cases furnish the best sources for study and review of legal developments. Part One, "The College or University As a Legal Entity," discusses the college or university as a legal entity, legal attributes of private universities, the constitutionally autonomous university, and public universities without constitutional status. Part Two, "Faculty Rights," examines academic freedom and related substantive constitutional rights, faculty tenure, and unionization and collective bargaining. Part Three, "Student Rights," examines substantive constitutional rights of students, procedural due process, the contract theory, the student as consumer, and miscellaneous issues concerning student rights. The final section, "Federal Regulation of Higher Education," includes the impact of federal regulation, equal educational opportunities, Title ix of the Education Amendments of 1972, equal job opportunities under the law, affirmative action, age discrimination, Equal Pay Act, the Rehabilitation Act, family rights, student loans, copyright law, and miscellaneous federal regulations. A preface, summary table of contents, reference materials, and table of cases are provided. Supplements to the book will be published on an annual basis updating material appearing in this volume.
-
Sum and Substance of Civil Procedure
Jack H. Friedenthal and Arthur R. Miller
Prior edition of Sum and Substance of Civil Procedure.
-
The Rights of Lawyers and Clients
Stephen Gillers
Where can you turn for legal help besides a lawyer? When a lawyer is disciplined, what are his legal rights? What recourse does a lawyer have when he has failed a state bar exam? How can a client get different lawyers to bid for his case and get the lowest fee, best advice available? What are the grounds for a malpractice suit against a lawyer? At the foundation of American’s legal system is the attorney-client relationship, a complex interweaving of three separate sets of rights: the attorney’s, the client’s, and the joint set of rights governing their legal inter-actions. In the last quarter century, the nature of the way lawyers and clients approach one another has been radically altered. No longer does a client need a lawyer for many legal services, and in some states a client can now choose a lawyer in an open market of advertising and bidding. And today, in the post-Watergate legal community, lawyers must be aware that they too are subject to the law—malpractice, disbarment, and criminal prosecution—and must carefully weigh their actions and their client’s against not only the letter of the law but ethical principles. In this comprehensive handbook, Mr. Gillers, himself an attorney, details the rights of lawyers from law school of the courtroom, of clients from their search for legal assistance to payment of fees, and with the most important recent court rulings as a guide, untangles the maze of our legal rights—which insure all of the other rights of our lives. One of a series of ACLU Handbooks dealing with rights of people
-
Mortal Questions
Thomas Nagel
Thomas Nagel's Mortal Questions explores some fundamental issues concerning the meaning, nature and value of human life. Questions about our attitudes to death, sexual behaviour, social inequality, war and political power are shown to lead to more obviously philosophical problems about personal identity, consciousness, freedom and value. This original and illuminating book aims at a form of understanding that is both theoretical and personal in its lively engagement with what are literally issues of life and death.
-
Executive Seminar Readings on Justice and Society
David A.J. Richards
The Seminar on Justice and Society, for which these materials have been prepared, is an important development in the Executive Seminar series of the Aspen Institute. The Institute had its origins in the Goethe Bicentennial Celebration in 1949. The first program activity the following year was the Executive Seminar, which brought together leaders from business, labor, the media and the academic and public sectors of society to discuss the relevance of the seminal ideas of mankind to the unsettle and unsettling issues of the day. The program has been so successful that 15 to 20 Executive Seminars are now offered each year. More recently, the format has been adapted to a Seminar on The Corporation and Society, which is offered several times a year. The Program on Justice, Society and the Individual, the sponsor of the new Seminar on Justice and Society, was established in 1975 as one of the five Thought-Leading-to-Action programs of the institute. Issues of social justice, fairness and individual freedom have always been central to the Institute. The creation of the Justice Program provided a specific focus for those issues as an integral part of all Institute activities. The work of the Justice Program is especially relevant to the Institute’s present overarching concern for sustained examination of the crucial issues of Governance: how societies and their institutions, public and private, national and international, can better respond to the often conflicting pressures for justice, fairness and efficiency. The Justice Program in mindful of the word of Judge Learned Hand: “If we are to keep our democracy, there must be on commandment: Thou shalt not ration justice.” In that spirit, the Justice Program endeavors to clarify the concept of justice in modern society, enlarge pubic understanding of the history and meaning of justice and seek practical applications of justice in an interdependent nation and world. The five major categories of Justice Program activities are Conflict Resolution; Criminal Justice, Understanding and Improving the Justice System; Justice and Ethical Values, and Human Rights. The seminar on Justice and Society builds upon the methods of the Executive Seminar and The Corporation and Society Seminar and draws upon the ongoing work of the Justice Program and the Institute-wide activities relating to Governance. The objective is to provide an opportunity for reflective discussion of significant issues of justice, illuminated by a humanistic viewpoint. Participants include members of the judiciary, lawyers in the private and public sectors, law teachers, and nonlawyers who bring to the discussions the perspective of an informed public. The idea of a Seminar on Justice and Society was first suggested by Mr. Justice Harry Blackmun of the Supreme Court of the United States following his enthusiastic participation in an Executive Seminar. The proposal was shaped under the supervision of Robert B. McKay, the Director of the Justice Program, and Alice H. Henkin, the Associate Director. The readings were prepared by Professor David A. J. Richards of New York University School of Law. This Seminar is an essential building block for all activities of the Institute with special relevance to Governance. . . . The Justice and Society Seminar is intended to examine in a broadly humanistic perspective the role of justice in society, particularly in the form of a discussion of contemporary and classical readings. It is hoped that these reading may stimulate self-critical reflection on the values of justice and the role those values should play in legal institutions and on the part of lawyers and others in the making of a decent society. The Table of Contents indicates the range of subjects and perspectives that we hope will engage the participants’ moral imagination. The anthology begins with background reading to be read prior to the Seminar. They include major statements regarding the concept of justice and alternative attempts to translate that concept into principles of social action. These readings are intended to provide a general review of philosophical traditions regarding justice which will then be more concretely examined in the course of the Seminar itself. One of the main objectives of this anthology is to suggest the fruitfulness of re-engaging general philosophical perspective with critical reflection on exigent matters of social and political concern. The anthology is divided into several topics and subdivided into eleven days. The readings for each section are prefaced by a note which attempts to tie together the issues posed by the readings. The Seminar is intended as an exercise in reciprocity and dialogue among equals, and the readings are designed to afford a common basis for such discussion. But each participant is free to bring his or her own sense of which issues most critically bear discussion. The reading thus provide a background for such exchanges; they do not necessarily define their scope or content or emphasis. This first Seminar on “Justice and Society” is experimental. The direction, the mix of participants, the orientation of the material and, especially, the choice of readings themselves will be evaluated and reassessed during the sessions and in a concluding twelfth session. Therefore, the participants in the inaugural Seminar are collaborators with the Justice Program and are invited to share with the Institute both the challenge of a major new initiative and the constructive excitement of making improvements for the future.
-
Collective Bargaining and Labor Arbitration: Materials on Collective Bargaining, Labor Arbitration and Discrimination in Employment
Donald P. Rothschild, Leroy S. Merrifield, and Harry T. Edwards
We have sought in this volume to provide teaching materials for use primarily in laws schools, but also in schools of business administration, departments of economics and other college and university departments where there is advanced curricular attention to labor and industrial relations. The typical basic course in “Labor Law” or “Labor and Industrial Relations” cannot, without undue dilution, deal adequately with the problems associated with the negotiation and enforcement of the collective bargaining agreement, as well as the current “external” law affecting collective bargaining. We think this subject is worthy of independent examination by law student san others who contemplate careers in labor relations law or practice, and even by students who are preparing for some other vocation in view of the increasing importance, in today’s pluralistic society, of the process of informal dispute settlement. The subtitle of this volume indicates that our materials deal with “collective bargaining, labor arbitration and discrimination in employment.” Actually, because of the usual constraints inherent in the preparation of course materials, and having in mind certain primary objectives, we have found it necessary or desirable to give relatively greater emphasis to certain aspects of the broad subject range of the subtitle than to others. With respect to negotiation, we concentrate on the “how to” aspects of the process, because of the prolix materials dealing with the conceptual basis of bargaining. With respect to the administration of collective bargaining agreements, we emphasize the arbitration process because of its general acceptance and the stature accorded to it by the developing federal labor law. Our treatment of the Agreement itself has been substantially reduced from the first edition, because of the inherent complexity of the subject matter, such as seniority, and the many forms of compensation (e.g., incentives, fringes, pensions, etc.). Since the last ten years have brought considerable attention to the critical areas of discrimination in employment, we have added a new dimension to our materials covering its impact on collective bargaining, We feel that the challenge of the next decade to the process will come from its capacity to resolve the issues raised in this section. Since our first edition, we have been able to experiment with the pedagogical problems inherent in using these materials for an elective course. Our usage, along with the constructive criticism that we have received from some of our users, has convinced us of the importance of the subject matter in the materials, If not on the form of its presentation. Our goal in this edition is to provide materials that will assist the student tin understanding the process of negotiation, and the drafting and administration of collective bargaining agreements. Secondly, we feel that it is of utmost importance in such a course to present the current challenges to the system posed by the significant issues in laws which are “external” to the process itself. We hope that those using this second edition will be aware of what Professor Russell A. Smith, to whom this book is dedicated, calls the “agenda items” in collective bargaining, as well as to the pressure in our society impacting on the process. Frankly, we feel that this awareness is more significant than the pedagogical impediments which naturally flow from such an ambitious exposition.
-
Essays on the Law and Economics of Local Governments
Daniel L. Rubinfeld
In the past several years, the study of law has become increasingly prevalent among economists, while the discipline of economics (as well as other social sciences) has increasingly come under scrutiny by legal scholars. In fact the range of subject matter included under “law and economics” is rather broad, and many of the underlying methodological issues are relevant for the study of disparate areas in both law and economics. The five papers include in this volume are an outgrowth of interest in the relationship between law and economics among economists and lawyers, with a specific, substantive interest in the economics of state and local governments. These papers were originally presented at the October, 1978 meeting of the Committee of Urban Public Economics (COUPE) held at Harvard Law School. The conference was organized by A. Mitchell Polinsky and Daniel L. Rubinfeld, and was supported financially by the Urban Institute. While each of the five papers touches, to ne extent or another, on the subject matter of local public economics, the range of materials and issues is extremely broad. Three of the conference papers are essentially normative essays.
-
Prosecutorial Discretion and Federal Sentencing Reform
Stephen J. Schulhofer
The proposed Federal Criminal Code passed by the Senate in the last Congress—S. 1437—contains provisions that would radically alter the structure of the federal sentencing process. The bill would create a United States Sentencing Commission that would promulgate guidelines to be used by trial judges in determining sentences. The Sentencing Commission would also promulgate guidelines for the United States Parole Commission to use in determining whether an eligible prisoner should be released on parole. The bill is intended to narrow the discretion heretofore exercised by judges and the Parole Commission, in order to “avoid . . . unwarranted sentence disparities.” It is by no means clear, however, that narrowing the discretion of judges and the Parole Commission would reduce disparities or control the total amount of discretion exercised in the criminal justice system. The reforms proposed in S. 1437 could actually aggravate the problems of discretion and sentencing disparities, because the enormous discretion exercised by prosecutors would not be brought under direct control. If judicial discretion were greatly reduced, the prosecutor's decisions regarding charge and plea agreements would be much more important in determining ultimate punishment. Although the possibility for abuse and arbitrary results at the judicial and parole stages would be greatly reduced, so would the possibility that judges or parole officials could counteract extreme decisions at the charging stage. As a result, it is possible (and some observers think likely) that the proposed system would generate even greater disparities than those resulting from our present system of three separate—but to some extent, offsetting—levels of discretion. Moreover, even if overall disparity did not increase, the quality of the discretion exercised might be adversely affected because, in effect, discretion would be transferred from federal district judges to assistant United States attorneys. No matter how conscientious they are, assistant United States attorneys are almost uniformly far younger and less experienced than district judges, and their decisions are typically far less visible. The present study was designed to explore the extent of these dangers and to develop proposals for minimizing them. The report identifies three principal approaches that the Sentencing Commission could take in promulgating guidelines under S. 1437. Guidelines restricting judicial discretion (with or without sentencing provisions designed to minimize the importance of factors within prosecutorial control) seem most faithful to the spirit of S. 1437. But paradoxically, they seem likely to generate sentencing disparities more pronounced and less justified than those arising under current law. Guidelines preserving judicial discretion are technically permitted by S. 1437, though they seem essentially contrary to its spirit. Such guidelines could reduce the incidence of extreme disparities and effect modest, though by no means revolutionary, improvements in the sentencing system. Approaches controlling charging and sentencinq discretion can be effectively implemented only with amendments to S. 1437, but these approaches offer the best hope for achieving a substantial reduction in sentencing disparities, as well as better assurance of sound decisions in individual cases. The report evaluates in particular detail two methods for controlling both charging and sentencing discretion. The first, a policy basing the sentence upon the “real” offense rather than the formal offense of conviction, appears unwise and ultimately unworkable. The second method, involving formal guidelines to regulate charge-reduction decisions and explicit concessions for defendants pleading guilty, seems both sound in principle and workable in practice. The final chapter of this report describes a guideline model reflecting the latter method. Charge-reduction guidelines of the kind proposed would provide a basis for effective control of discretion and substantial reduction of sentencing disparity. Such guidelines also appear capable of significantly improving the fairness of the plea negotiation process and the general quality of sentencing decisions.
-
Michigan Business Corporations
Stanley Siegel, Stephen H. Schulman, and Cyril Moscow
This work provides a complete discussion of the Michigan Business Corporation Act with legislative history, source comments, reporter's dissent, and in depth analysis. A complete collection of official and unofficial forms is included in the book.
-
Class Notes: A Novel
Catharine R. Stimpson
Class Notes is a bittersweet and witty novel of a young girl coming of age in America, on both the opposite edges of the continent. Her path to womanhood lies on a collision course between the fifties and the sixties, and their impact would change her and America forever. Harriet Elizabeth Springer is raised in a Pacific Northwest fishing town in a home torn between her father's limited pragmatism and her mother's ambitious idealism. Handsome, intelligent, restless, she yearns to belong, but the rules baffle her, the boys shun her, and Northville stifles her. Nearly everyone in Northville was pleased to have settled there for life. I clamored to get out, to a place where people read books before the Reader's Digest condensed them. So, armed with one State Good Citizenship Award and three Miss Sweetheart Intelligence Prizes, Harriet leaves hayrides and heavy petting for the domain of the rich and the worldly-wise. If Northville was the final bastion of the fifties, eastern, exclusive Harwyn College was the outpost of liberalism. There, her circle numbers the flighty Naomi from Uruguay; big, bold marriage-shy Amarillo from Texas; and the inevitable French seducer, Jean Maurin. And most diquieting and mysteriously compelling of them all is the beautiful army brat, Sloan Trouver, who draws Harriet into choices that she and the decade still spoke of in whispers. The most trying testing ground of all proves to be New York City, where Harriet goes in search of a career. She anxiously experiments with liberal politics and controversial sexual liaisons. But most important, she learns the pain and satisfaction of making solitary decisions and of finding a meaning for her womanhood that the world was only on the brink of embracing.
-
Pain and Profit: The Politics of Malpractice
Sylvia A. Law and Steven Polan
Medical malpractice is a problem that has come of age. In the past few years, it has demanded the urgent attention of the legislatures of every state, the state departments of health and insurance, the United States Congress, and many other private and public agencies. When these agencies and organizations were confronted with a sudden crisis arising from spiraling insurance premiums and insurance unavailability, they naturally looked to available sources of knowledge and information to see what might be done. Often the primary sources of information and ideas were the special-interest groups: the trial lawyers who make their living representing patients or doctors in malpractice cases; organized medicine; and insurance trade associations and companies. Everyone recognizes that information provided by special-interest groups is bound to reflect and protect the interests of the group presenting it. But in this situation there are few alternative sources of information and ideas. Certainly, patients as a group do not have anyone to speak for them, either as people who are at risk of injury through medical treatment, or as the people who ultimately bear the costs of rising malpractice premiums. Often, conscientious and competent doctors are ill-advised and ill-served by the leaders of organized medicine who purport to represent them in the media and the legislatures. Lawyers, most of whom have little or no knowledge of the laws and procedures which bear on medical malpractice, are often represented only by those groups that have staked out a particular economic niche in the medical-liability market. What results is an astounding amount of misinformation for popular and professional consumption. Well-motivated, highly intelligent physicians can hardly speak with their lawyer friends about this issue. Scarcely anyone trusts the insurance companies, though no one has much specific knowledge of how they operate. Professional polarization sets in. There is little worthwhile interchange. This book is written for the many decent and conscientious lawmakers, regulators, and health administrators who must formulate policies in relation to medical malpractice and who need concise, accurate, and documented information and ideas in order to question, evaluate, and challenge the proposals which are inevitably pressed upon them by the special-interest groups. It is written for the many doctors who recognize that they are being unfairly penalized for their colleagues’ derelictions and feel powerless to change this situation. Finally, it is written for the consumers of health services who wish to know what the malpractice “crisis” is really all about, and how it affects them. One of the few disinterested sources of information and ideas about the medical malpractice problem is the 1973 Report of the HEW Secretary’s Commission on Medical Malpractice. This is an excellent collection of data and ideas, but, unfortunately, it has not been disseminated and read as widely as it should be. Our book presents the major information and recommendations of the HEW Report, updates its data where that is possible, and sometimes takes issue with its approaches and conclusions. We hope that this book will make the important information gathered and presented in that 1973 Report more accessible. Much has happened in relation to medical malpractice since 1973, and we analyze those developments. We do not represent any special interest or preconceived point of view. On the other hand, we believe that we do have some qualifications to speak with authority on these issues. Although both of us are lawyers, neither of us has ever represented a patient or a physician in a medical malpractice case. The freedom to acquire specialized knowledge, without the bias and distortion which inevitably result when the acquisition of knowledge is financed to serve the interests of a particular group, is the special privilege and joy of working in an academic setting. New York University Law School has provided us with the intellectual, financial, logistical, and secretarial support which mad this book possible. We both have long-standing interest and involvement in the developing area of the law which attempts to analyze and understand the legal structures that determine the shape of the medical-care delivery system in the United States. Sylvia Law teaches torts, or the law of personal injuries, of which medical malpractice is one branch, health law, and insurance. From 1970 to 1973, she worked with the Health Law Project of the University of Pennsylvania, a group funded by the government and private foundations to develop materials for teaching law students and lawyers the basic legal structures of medical-care delivery systems. Steven Polan became involved in problems of the organization of medical-care delivery while working for Congressman Bob Eckhardt and pursued these interests through his law-school career, both through academic work and as a staff assistant to the Health Committee of the City Council of New York. He now works as a lawyer and health specialist with Carol Bellamy, President of the N.Y. City Council. We hope that this book is in the best tradition of responsible scholarship. Scholarly work demands an openness to the complexities of differing points of view, and documentation and evaluation of sources of knowledge. We have tried to provide them. But we do not believe that scholarly analysis must be confined to subjects which are esoteric, narrow, or banal. We hope that readers will find this book interesting, lively, and a useful resource in dealing with a major social issue of the day. The theme of the book is that the causes of the malpractice crisis are multifaceted, hence solutions must be sought on many different fronts. The roots of the crisis run deep in the basic economic structure and moral assumptions of three major American institutions: medicine, the law, and the insurance industry. Therefore, solutions must of necessity address fundamental problems. Limited reforms are possible, and are suggested. But minor reforms, if they are to be effective even as stopgap measures, must be consonant with more fundamental solutions. As we will show, many of the recent attempted “reforms” are at best useless, and at works will exacerbate existing problems. For these reasons, the malpractice crisis is not likely soon to disappear or be solved. Although the focus of this book is medical malpractice insurance, much of the analysis is also applicable to other fields. After an introduction to general principles of liability, the first major section of the book discusses the ways in which the market for medical services and the organization and regulation of those services contribute to the rising costs of malpractice insurance. The second large section discusses the role of lawyers in the court system. The third and final section examines the insurance industry. In recent years, there have been large increases in the cost of all forms of liability insurance: product-liability insurance; the malpractice insurance of lawyers and other professionals; automobile-liability insurance. The information and analysis presented in the last two thirds of the book may be helpful in understanding the reasons for increases in the costs of liability insurance in areas other than medical malpractice. The major work was done in 1975 and 1976, and includes new developments through November 1977.
-
Environmental Law and Policy: Readings, Materials and Notes
Richard B. Stewart and James E. Krier
The second edition of Environmental Law and Policy represents a substantial restructuring as well as updating of the first edition prepared by Professor Krier in 1971. This revision is entirely my responsibility, although Prof. Krier has contributed many useful suggestions and insights. The arrangement of the materials chapters has been substantially altered; relevant statutes and decisional law has been updated through the spring of 1978; and the coverage of economic analysis, water pollution control regulation, and the National Environmental Policy Act has been greatly expanded. Despite these changes, the basic aim and strategy of the first edition is maintained. As Professor Krier noted in the preface to the first edition, any effort in a work of this scope to teach the student or convey to the reader all relevant “black letter” environmental law—decisions, statutes, and regulations—would be doomed to failure. The domain of environmental law is too vast and variegated to be neatly reduced. Also, any effort at a comprehensive restatement of environmental law would soon become obsolescent. The events in the seven years since the first edition amply demonstrate the rapid pace of change in judicial decision, legislative enactment, and administrative regulation and decision in this field. These characteristics pose problems of exposition to which introductory environmental law books often respond in one of two ways. One approach is to assemble a brief sampling of materials from each of many different fields of environmental law, such as air and water pollution control, land use, management of mineral, timber, and other natural resources, occupational health and safety, and so on. The second approach, which is followed in this book, is to develop a general analytical framework for understanding many types of environmental problems and the responses of the legal system to such problems, and to elaborate and apply the general framework through concrete emphasis on one or two particular fields of environmental law. The goal of this approach is to give the reader and student a general and enduring understanding of the fundamental features of and issues in environmental law without sacrificing the realism and insight fostered by a more detailed focus on particular cases and problems. The general framework which the book attempts to develop is reflected in the chapter organization. Chapter One provides and introduction to the nature of environmental problems, while Chapter Two surveys the possible causes of those problems. Chapter Three draws heavily on economic analysis in viewing the origins of environmental problems in conflicting claims on natural resources and highlighting the important role of the legal system in resolving such conflicts. The limitations of economic analysis and the relevance of other social goals to environmental problems are also addressed. The remaining chapters examine the different ways in which the legal system might deal with environmental problems. Chapter Four examines the strengths and drawbacks of the common law system of private civil litigation. Legislative and administrative regulation, which is today the dominant response of the legal system to environmental problems, is examined in Chapter Five. Chapter Six reviews a number of alternatives to regulatory controls—such as subsidies, pollution charges, transferable property rights in pollution, and administrative compensation schemes—that are likely to be more widely used in the future. Chapters Seven and Eight deal with judicial control of administrative agencies whose policy choices have environmental impacts. Chapter Seven examines the application of general principles of administrative law to environmental controversies, while Chapter Eight examines the National Environmental Policy Act. Chapter Nine briefly examines alternative mechanisms for funding environmental advocacy. A unifying concern of the entire work is the comparative performance of alternative legal institutions in responding to environmental resource conflicts, particularly in cases where use of environmental resources such as air of water provides tangible short-term benefits to well organized interests but threatens more diffuse, uncertain and long-term harms to the natural environment or to loosely organized environmental interests. In developing a framework for addressing this basic issue, the materials—particularly Chapters One, Four, and Five—focus on the problem of air pollution as a case in point. Air pollution is particularly well suited for this purpose, because it represents one of our most important and difficult set of environmental problems, and because the response of the legal system to air pollution is more fully developed than in many other areas. In addition, the links between air pollution control and other environmental problems, such as land use, are becoming more and more apparent. However, the materials in this book are not limited to air pollution problems. Regulation of water pollution is examined in Chapter Five, and the later chapters involve a broad variety of environmental problems. The book is designed to serve, standing by itself, as a text suitable for an introductory environmental course of two to three hours. However, many teachers familiar with other aspects of environmental law may wish to supplement the book with their own materials on water law, noise, land use planning, resource management, toxic substances, and so forth. It is my hope that the basic structure of this book is sufficiently general to facilitate such supplementation. The emphasis in the book on economic analysis of environmental problems and environmental law bears discussion. It is my own view that environmental law badly needs a unifying analytic framework, and that the focus of economics on conflicting resource uses provides at least a partial answer to that need. The economics materials in this book have been carefully written on the assumption that the reader has no technical economics background, and I am confident that the writings and ideas used are within the grasp of any college-educated person. Moreover, the book is also designed so that those instructors who do not find it profitable to emphasize economic analysis can avoid such emphasis by omitting all or portions of Chapter Three. Beyond the focus on economics in Chapter Three and elsewhere, the books as a whole devotes considerable attention to general policy and institutional analysis of environmental problems in addition to specific legal doctrine and rules. There are fewer cases here than one ordinarily finds in a law school course book, and many of them are included as much for data about problems as they are for pronouncements about doctrine. In addition, there are large doses of what I hope to be explanatory materials, as well as extensive references to relevant literature. Because environmental law is so rapidly changing, and because the interrelation between law and other disciplines is so apparent in the environmental field, I think it essential that students of environmental law be exposed to these broader perspectives in order to be effective in whatever role they come to play in the environmental field in the future. At the same time, I hope that the attention to more general policy and institutional analysis will encourage use of the book by nonlawyers with an interest in environmental policy questions. As previously noted, Professor Krier has provided me with many helpful suggestions and needed encouragement in my preparation of the second edition, which retains much of the material and the pioneering conceptual framework utilized by him in the first edition.
-
Agency, Associations, Employment, Licensing and Partnerships: Cases, Statutes and Analysis
Alfred F. Conard, Robert L. Knauss, and Stanley Siegel
This volume is an abridgement of the second edition of Enterprise Organization (1977) edited by Conard, Knauss and Siegel, (1st edition 1972), which was a successor to the casebook Business Organization (1965) edited by Conard and Knauss, and in earlier years (1950 and 1957) by Conard. Starting with its first edition the emphasis of this casebook has not been on traditional doctrines-agency, partnership, corporations—but on the functional problems of doing business in an organized society. The focus is on business relationships—one person working for, or doing business through, another; two or more persons doing business together. The legal problems include the effect of these relationships on third parties, and the rights and obligations between the parties themselves. In deciding what a potential lawyer needs to know about business organizations or enterprises we have taken the broad view. After an introductory chapter on forms of organizations, we start with the necessity for a license in most of the kinds of business anyone would wish to pursue; this subject has particular relevance to the self-employed “individual proprietor”, whose numbers (in the millions) deserve some attention in law schools. The next several chapters deal with relationships which are common to enterprises of nearly every size, from the proprietorship with a single employee to the corporation with a hundred thousand. Topics include enterprise liability for personal and property injuries, employment, representation in business dealings, and fiduciary duties. In analyzing these issues the nature of the employer or principal (proprietor, partner or corporation) is of little importance in determining the rights and responsibilities of third parties injured by or dealing through agents. The form of business entity is important in these areas to determine whether individual members can limit their liability, and the case materials provide opportunities to explore this question. This edition concludes with material relating to the special problems of partnerships. This volume continues the policy of the earlier editions in respect to notes. Those which every student should read are in large readable type. Those which are designed to invite optional investigation are in small type and are labelled “references”. In most references, a few words in parentheses indicate what line of inquiry the citation pursues. The citations do not purport to be exhaustive; nor to be uniformly important. They are an attempt by the editors to pass on to student and teacher some of the leads which they have necessarily uncovered in a systematic study of cases and periodical literature over a period of years. We have continued and extended the comparison of foreign law solutions and the analysis of the economic and social functions of rules that characterized predecessor volumes of this book.
-
Enterprise Organization: Cases, Statutes, and Analysis on Licensing, Employment, Agency, Partnerships, Associations, and Corporations
Alfred F. Conard, Robert L. Knauss, and Stanley Siegel
In this book we offer a unified introduction to the entire area of business and private organization, from the individual proprietorship to the corporation, and from the manufacturing concern to the social club. There are common elements of social policy and ritual formality involved in all these forms of effort. To study them together effects not only a saving of time, but also a broadening of perspective and a deepening of understanding. The combination not only embraces the traditional subjects of “agency”, “partnership”, and “corporations”, but also affords glimpses into relationships involving other forms of organization which are likely to escape all notice when study is packaged in the curricular capsules sanctified by a century of legal education. In deciding what a potential lawyer needs to know about enterprise, we have taken a broad view. We start with the necessity for a license in most of the kinds of business anyone would wish to pursue; this subject has particular relevance to the self-employed “individual proprietor”, whose numbers (in the millions) deserve some wisp of attention in the law school, as well as to corporations of all sizes. The next several chapters deal with relationships which are common to enterprises of nearly every size, from the proprietorship with a single employee to the corporation with a hundred thousand. The legal problems include the effect of these relationships on third parties, and the rights and obligations among the parties themselves. Topics include enterprise liability for personal and property injuries, employment, representation in business dealings, and fiduciary duties. Following material relating to special problems of partnerships, the focus of the rest of the book is on topics that primarily involve corporations. These include financial and control structures, federal securities legislation, corporate responsibility, and corporate distributions and reorganizations. We have realized some economies through simultaneous treatment of common problems of proprietors, partners, and corporations. There are not three sections on vicarious tort liability, but just one; there is one exposition, not three, of the inherent and apparent authority of business managers. Fiduciary duties by whatever name called are all merged in a single section. In these materials the nature of the employer or principal may be of little importance in determining the rights and responsibilities of third parties injured by or dealing through agents. The form of business entity is important in these areas to determine whether individual members can limit their liability, and the case materials provide opportunities to explore this question. This volume continues the policy of the earlier editions in respect to notes. Those which every student should read are in large readable type. Those which are designed to invite optional investigation are in small type and are labelled “references”. In most references, a few words in parentheses indicate what line of inquiry the citation pursues. The citations do not purport to be exhaustive, nor to be uniformly important. They are an attempt by the editors to pass on to student and teacher some of the leads which they have necessarily uncovered in a systematic study of cases and periodical literature over a period of years. We have continued and extended the comparison of foreign law solutions and the analysis of the economic and social functions of rules that characterized predecessor volumes of this book. The present volume is the second edition of ENTERPRISE ORGANIZATION (1972) which was a successor to the casebook known as BUSINESS ORGANIZATIONS, edited in 1965 by Conard and Knauss, and in earlier years (1950 and 1957) by Conard.
-
Poems of Three Generations
Richard Stafford Cripps, Peggy Appiah, Kwame Anthony Appiah, and Abena Appiah
-
Problems, Readings and Materials on the Lawyer as a Negotiator
Harry T. Edwards and James J. White
It is commonplace for law teachers to eschew any interest in answers and to present the students only with the questions. This book is no exception to that proposition. Negotiation is such a rich and varied process that it confounds attempts at useful generalization. Nearly all of the books that have been written about the process promise more than they deliver; either their statements about the art of negotiation are so general that they are not helpful or, if specific, are wrong at least with respect to some negotiations in some circumstances. Thus, we present an even weaker case than does the usual law professor; we not only disclaim any capacity to give the answers, we are not sure even that we have the right questions. The book is really a reader which can be used for a variety of purposes. We intend to use it in law school courses devoted exclusively to the study of negotiations. In Chapter 1 we present our arguments to support the proposition that something useful can be learned and taught about negotiations. We will not repeat those arguments here. The book can also be used for continuing legal education courses for lawyers and can serve for a portion of courses dealing with clinical law, labor law, trial practice and courses on the legal profession. For the most part, we believe that the book is best used in conjunction with the problems that are contained in the teacher's manual. Our experience suggests that a student's interest in and appreciation of negotiating problems is heightened by the kind of intense experience that a negotiation with his peers for a grade may present. In addition, of course, the book can be used simply as an introduction to the art of negotiation and to some of the literature concerning negotiation. Some may try to self-teach themselves; surely a careful consideration of these materials will add to one's negotiating skill even without the assistance of a formal course. The reader will find that the chapters are neither parallel nor symmetrical. Some are rather theoretical and others are only nuts and bolts. Some contain rather elegant analyses of the negotiating art; others are much more pragmatic and practical. We hope that the chapters on “Ethical Considerations for the Negotiator” and “Cultural Aspects of Negotiation” will cause the student to consider the variety of problems in those areas that he will face as a negotiator. We have found great difficulty in drawing the line between permissible puffing and impermissible lying in negotiating contexts. Our classroom experience suggests that every conscientious negotiator must eventually resolve the honesty question for himself. The materials presented in Chapter 8 present the lying issue in rather stark terms and should cause the student to come to grips with it. Of considerable and perhaps increasing significance is the question of cultural, racial and sexual bias. Of course such questions are two- fold. First one needs to consider how others will react to him be- cause of his sex, race, or cultural background, and second he needs to consider how that background has conditioned his own thinking and has made him a better or worse negotiator. This area has produced a large and conflicting folklore; here we do little more than scratch the surface on what we perceive to be a problem of extensive proportions. Finally, we hope that one who opens this book in the year 2004 will regard it as an outdated relic best left in the archives of legal literature. It is not our purpose here to offer a major theoretical or empirical study dealing with the art of negotiation. Rather, we have attempted to collect and comment upon some of the most significant works thus far produced in this field of study. We hope to stimulate lawyers', law teachers' and law students' interest in the art of negotiation and we look forward to the day when our understanding of the negotiation process will be much more comprehensive than it is today. We well appreciate that some of what we have done may appear clumsy or superficial; we do not apologize for it, for someone must start the process, and we will welcome those who can provide more and better insights.
-
I'd Rather Do It Myself: How to Set Up Your Own Law Firm
Stephen Gillers
No one will understand the loneliness and the fears. Or, when it comes, the exhilaration. One morning in the second month you may leave for work morbid and depressed. You realize that you’re spending more time dreaming about clients than getting them. You are sure you are headed for economic ruin. But then, you return home thoroughly elated. A wholly unforeseen $3,500 retainer has fallen—a gift from heaven—unto your desk. A week later you are depressed again because a similar large fee has not unexpectedly turned up. You suddenly realize that in the past few days you’ve multiplied $3,500 by 53 weeks at least a dozen times. Your spouse, your parents, your children, your friends will all sympathize. They will tell you building a practice takes time, which, of course, you always knew but never appreciated. They will allay your fears and cheer away your depression. Or, at least, they will try. They will look sad when you are sad and happy when you look happy, even though they are never quite sure which it will be at any one time, or what it is that makes your moods swing from one extreme to that other in less time than it takes a certified check to clear. But, finally, no one, except perhaps a partner, if you have one, or another lawyer who has recently done what you are doing, will understand what is happening to your soul. This book will try to help. There are other cooks and articles on running law firms—mainly large ones—on financial management, on law office economics and so on. But there are very few books, if any, that discuss in intelligent detail the comparatively brief but so crucial period of time beginning about six months before you actually sent our your announcements and continuing through the end of first year or two of your own practice. This is a bit odd because established lawyers are often happy and eager to give advice to newcomers starting their own practice. Even lawyers with busy schedules will usually find time to tell the five or ten major lessons they learned—often the hard way—in their first year on their own. In fact, they will say how they wish there had been more people whom they could have asked and books they could have read. But then, sort of like the bar examination or the draft, once you get past it, you forget how strongly you once felt that something should be done to change it. So the information acquired by a new practitioner gets lost as he or she gets older and encounters the rush of a developing practice. It is passed on, if at all, only though a kind of piecemeal oral traditions that is often composed of facile and perplexing warning like “Don’t Take Anything That Comes in the Door” and “In The Beginning, I Charged Too Little.” I began my own practice in 1973 for reasons I will shortly discuss. They may or may not be your reasons. It doesn’t matter. Once you’re in, like a six-foot person in Seven feet of water, it’s less important how you got there than how you’re going to keep afloat. When I started, I talked to two or three others who had already done what I hoped to do, and I looked around for a book to tell me more. I found none. In the years since, I wrote three or four articles for the New York Law Journal and Juris Doctor about different aspects of going it alone (that is, all alone or with a partner or two, but without an “organization” behind you) and spoke to many others. I eventually came to feel that some of the ideas I had written about and much more that I had learned from friends should be put in a single accessible place. This is it. None of us knows everything there is to know about setting up one’s own practice, and we never will. Furthermore, despite the tendency to universalize one’s own experiences, I appreciate that my practice may be idiosyncratic and, in any event, is certainly not a model all should follow. I therefore rely quite heavily in the pages ahead on the experience, lessons and tales of others who have been gracious enough to provide me, through oral or written interviews, with an embarrassment of detail for this book. The book is as much theirs as mine. But even the combined wisdom contained here is not the “true” way to get into the law business. There will always be a people for whom a technique or approach long since rejected by conventional wisdom will nevertheless work handsomely. That does not mean you can skip over all the squares, go directly to Boardwalk and start building hotels. Even Picasso learned how to paint conventional pictures before he was able to change the rules. This book is written for you if you are in your first year or two of your own practice, or thinking about it. It does not matter if you are going to be an entertainment lawyer, a criminal lawyer or practice only before the United States Supreme Court. Lawyers starting their own firms of any kind will find much useful information here, most of it from others who have done the same thing. There are also pointers this book does not have. It does not have a list of the five best ways to keep your ledger books or the six mistakes never to make while negotiating a separation agreement. Your accountant will tell you how to keep your books, and there are enough treatises around to tell you about separation agreements. This book will, however, talk about the wisdom of having an accountant, and it will have something to say about buying treatises and having access to a law library. Nor will this book help you with questions that will arise only in the fifth year of your own practice or when you have nine partners (whichever comes first). By then your situations will have changed totally and your needs will be entirely different. What this book does try to do can best be illustrated with a brief story told by two friends of mine who recently left employed positions to open their own firm. In the first few months of practice many of their former colleagues came to visit, amazed at what they had done. My friends were bombarded with demands for information. One particularly inquisitive visitor began asking grandiose questions about capitalization, the partnership agreement, different fee arrangements and the like. When the tour of the office came to the supply room, the visitor immediately shifted his attention and asked, “How did you know what quality paper to buy?” The point is that when you first begin, there seems to be nothing but questions, needing quick answers, wherever you turn; and although the questions range from the grandiose to the mundane, they are all somehow crucial. You must know both wat kind of fee to charge and what kind of paper to buy. Suddenly, everything literally depends on the answer. “If I don’t know the kind of paper to buy, or the kind of photocopier to get or where to find a part-time secretary, then I can’t practice law. And, my God, I don’t know.” While I can’t promise to cover all the questions in either category—the grandiose or the mundane—I do hope to foresee many of them. But, far more important, I hope to convey an attitude, a way of responding to situations and thinking about your new position that will make many of the questions and answers fall more easily into place. The first chapter of this book discusses the first question one must ask when considering his or her own practice: What are the reasons to do it, and what are the reasons not to do it? The balance of the books is divided into seven chapters and seven broad subject areas: finances, including capital costs, overhead and possible income scenarios for the first year; feeing, a discussion of how to set a fair fee and get paid; clients, including how to get them and live with them (obviously you won’t live very long without them); the office, including selection of space, equipment and supportive services; operating procedures, a discussion of some fundamental office procedures to consider at the start, at least until you begin to develop your own system; structure of practice, including solo practice, partnerships and professional corporations; and, finally a chapter I have called Matters of Style and Substance. This latter chapter is a collection of some useful information, not easily categorized, which I have acquired or which has been passed on to me in the course of researching this book. One might think of the information here as the collected Old Wives’ Tales of private practitioners, but it is actually substantially less exotic and I hope more helpful. Some of the information concerns matters of style and some concerns matters of substance. It is a brief chapter of experiences that have been instructive for other and so worth passing on. This volume, and any future editions of it, is for lawyers from lawyers. It could not have been written without the generous contributions I have received from colleagues, some of whom have been acknowledged earlier. I conclude with a plea that you do for future readers what others have don for you and me. If you have or have had experiences in starting your own firm that you believe might be instructive or that contradict, extend or illuminate any of the advice given here, send them to me for use in future editions. Such material must be shared.
Printing is not supported at the primary Gallery Thumbnail page. Please first navigate to a specific Image before printing.
