The Faculty Lounge

“Is there anything more to learn from The Federalist Papers?”

The following is a guest post by Christian Fritz, Professor Emeritus at the University of New Mexico School of Law:

As every student of American constitutional history and political theory knows, the literature on The Federalist Papers is enormous. Given the dozens of editions with scholarly introductions, countless collections of essays on the meaning of Publius, and the ubiquitous citations to Federalist essays by the courts and researchers, it would seem likely that the answer to the question posed in the title would be no.

Despite their exhaustive treatment, something crucial has been overlooked in the famous essays: an articulation of a constitutional tool that would emerge in practice in the hands of state legislatures after the ratification of the Constitution and one that has played an important part in thinking about the proper balance of authority between the federal government and those of the states.

In Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023), I trace the genesis of that constitutional tool to several essays by both James Madison and Alexander Hamilton in which they described—without using the term interposition—a mechanism that state legislatures might employ in their role as monitors of the federalism created by the Constitution to ensure that the new national government would not overreach its constitutional authority and intrude upon the powers retained by the states. What began as a debate-like response to opponents of ratification, eventually took on a life of its own, producing a tradition of monitoring federalism that had a vibrant life in American constitutional history until and during the Civil War and even for a time thereafter, before suffering a demise.

The Constitution’s shared sovereignty between nation and states created a dynamic federalism that stimulated continuous debates over the balance of power, including debates over slavery and taxation. Thus, state interposition was fundamental in shaping the American political conversation about our constitutional rights and illustrated a strength and not a weakness of the framers’ constitutional design, inviting each generation to consider what the appropriate constitutional balance should be. 

Monitoring American Federalism demonstrates how states played a crucial role from the beginning of the republic in assessing the equilibrium of federalism within the American constitutional order. Unlike judicial review, interposition did not have immediate constitutional effect, but was designed to work through political pressure in attempting to maintain an equilibrium between the national and state governments by enabling state legislatures to express and coordinate their discontent over federal laws and measures. State legislatures would sound the alarm about a perceived constitutional overreach, pass interposition resolutions, and share the resolutions with other states to exert maximum political pressure on whatever branch of the federal government was responsible for the overreach.

In its use before the Civil War, interposition by states involved the conviction that elected officials, especially state legislators, but also individual citizens, juries, and the press, could properly scrutinize any expansive assertions by the federal government, not simply the Supreme Court. Indeed, state interposition would be used to oppose many perceived threats, including the Alien and Sedition Acts, the War of 1812, federal tariffs, internal improvements, and pro-slavery laws.

Interposition emerged as a response to critics worried that the Constitution’s grant of national powers would obliterate state authority. This early interposition formed an institutional and intentional way to acknowledge divided sovereignty under the Constitution and to preserve the equilibrium of federalism. Properly understood at the time, interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority. Moreover, interposition was not a claim for the constitutional independence of state legislatures.

Interposition as a constitutional tool became distorted with the rise of South Carolinian John C. Calhoun’s claims during the Nullification crisis of the 1830s. Historians today describe interposition as inherent in the states’ rights political tradition of defending slavery, which inexorably led to Southern secession and Civil War. This narrative ignores the practice of interposition before its appropriation by nullifiers and those invested in slavery who claimed the right of individual states to defy national laws and decisions of the Supreme Court. Nonetheless, there was a great divide between those who advocated for the rights of state legislatures to question the federal government on any constitutional issue through interposition—and those who supported nullification. The gulf between the two invocations of state interposition was underscored in the 1830s, when many of those who embraced interposition rejected nullification.

Sometimes, you need to talk to an Artist to understand the law...

This week, a project that Colin Marks and I have been working on for about a year and a half was realized in its published form: a coloring book to help students understand Secured Transactions.  (By the way, Color Me Secured is available now at Amazon for $19.99 -- Prime eligible).  There are lots of reasons this makes sense, things I will share in future posts, such as how we talk about realism with students who don't have the first clue what the terms we are using mean?  At core, Color Me Secured is a translation tool, that helps bridge the gap between the language of security in personal property, and their experiences.   

But what I want to talk about today is the process of how this came about.  Around March of last year, I called up Colin and said "I've got a crazy idea.   What do you think about a coloring book for Secured Transactions."   I was a bit tepid on whether this was just a goofy idea I had in the middle of class one day or whether there was merit to the idea.   Colin without a moments hesitation exclaimed "Oh My god, that is great."  Over the next eight months or so, we sketched out on a word document various ideas about what it would look like, had research assistants read over it to see what their take on it was, and then started talking about how to make the art work.     

At the end of the day we hired an outstanding artist (as you'll see) Dave Spear  to take our rough sketch ramblings about what we thought should be on a page and create the beautiful work that is in Color Me Secured.  (Dave got it on the first take, almost without exception).    He expanded our story line to include more human elements of the interactions between the characters.   And this is where I would like to focus this post today.   Sometimes, we need to talk to an artist to understand the law. 

One of the things that makes Color Me Secured special, is it takes a dry, difficult subject like Secured Transactions, and humanizes it.   Our two characters Billie and Chadwick are friends in law school trying to sort out what Secured Transactions mean.   One gets it and the other doesn't and they explain the substance and nuance of secured transactions by tapping into experience, mnemonics, analogies, and other ways of translating the material.  
The humanness of seeing characters engaging in the activities of secured transactions was what we sought to explain.  How an account is more like a steak, rather than a pitcher, or how holding a place in line at a concert is similar to filing a financing statement.  The every day activities of students provide a wealth of information about how we communicate information.   Color Me Secured gives professors and students a handy way to tap into those things to explain some challenging content.  Color Me Secured also works by asking students to do something while they are working through secured transactions.  I tell my students each year that Secured Transactions is like algebra - its not hard but it does require you to do a bit each day.   Color Me Secured delivers small dose content with big ideas by drawing on images that students already understand.   And then slowly the images, language, and experiences begin to meld together to create an immersive experience.  What Color me Secured does is give students a different outlet to hear the same words and apply them to a different context.   

Lastly, Dave pointed out something to us that we had not realized.  The story needs an ending.   Too often, when we teach Secured Transactions, we assume the students know the ending.   In my class I repeat to students something Wilson Freyermuth told me many moons ago -- that Secured Transactions is like a circle and it doesn't matter where you start as long as you make it all the way around.   I think that is true, but what we often forget is that making it around the circle doesn't necessarily mean there has been an ending.  Dave, when he read the work and thought about it asked quite pointedly "So what grade did they get? How does it end?"  That's a pretty simple ask -- that stories need endings.   I think we are often so tied up in the complexities of how law plays out, we forget this basic human need for closure.  So Color Me Secured has that as well.   

I hope you consider purchasing a copy of Color Me Secured.  I think this is the type of project that is a nice supplement to traditional course work.   I'll be back later this week to discuss other things, like self publishing, realism, and future projects.  

Lambda Finalist Reading in Los Angeles

Earlier this week, I had the honor of participating in a Lambda Literary Award finalist reading in Los Angeles.  The Lambdas (or more colloquially, “The Lammys”) are considered the preeminent book awards for LGBT writers, and it was exciting to be there, among eight other finalists.  Most were from the L.A. area but there was one fellow writer from the Pacific Northwest—Stephanie Adams-Santos of Portland.  Two of the authors—CB Lee and Jeff Garvin—are finalists for the LGBTQ Children’s/Young Adult category.  Lee read from her nominated young adult fantasy novel, Not Your Sidekick, which is about a high school girl who is frustrated as a result of not having inherited her parents’ super powers. Garvin read from his young adult novel, Symptoms of Being Human, which describes the angst of a young trans protagonist who struggles with the demands of conformity imposed by his or her (readers are left deliberately in the dark as to the protagonist’s gender) politician father.

Poets also made a strong showing at the reading.  Jos Charles, a finalist in trans poetry, read beautiful work about their relationship to their parents, and Stephanie Adams-Santos, a finalist in lesbian poetry, read very interesting and moving work about mental illness. I read from my poetry book, The Body’s Alphabet, which is a finalist in bisexual nonfiction, and Kate Partridge and Alyse Knorr read gorgeous poems about moose, bears, and the Alaska landscape from the anthology, Building Fires in the Snow: A Collection of Alaska LGBTQ Short Fiction and Poetry, a finalist in the LGBTQ Anthology category.

Finally, Elizabeth Hall, also a finalist in bisexual nonfiction, read from her book, I Have Devoted My Life to the Clitoris, which is a fascinating combination of history and memoir, and J. Aaron Sanders, author of an historical mystery about Walt Whitman, read a poignant essay comparing Walt Whitman’s grief about losing men to war to his own grief at being geographically separated from his children after divorce.

Beyond listening to everyone’s incredible work and feeling like I was part of something much bigger then myself, I was also excited to see that there were at least three bi-identified authors reading.  Although bisexuals comprise the largest segment of the LGBT community by most counts, we are often invisible in LGBT spaces. This time, however, we were out in force.  CB Lee had even died her hair in bi colors--purple and blue!  It was also great to read in an official space--the West Hollywood City Council Chambers.  That felt very legitimizing after all my years as an outsider writer.

I’m looking forward to attending the Lambda Literary Awards ceremony as well as the Bisexual Book Awards ceremony in New York City next month. I'm grateful to Lambda Literary Awards, the Bisexual Book Awards, my publisher Headmistress Press, and to everyone else that made this possible.

Brent Staples on David Garrow on Obama

Further to the discussion of David Garrow's Rising Star, here is Brent Staples' review of Rising Star.

Review of The Other Slavery: The Uncovered Story of Indian Enslavement in America

I had the honor of being able to review The Other Slavery: The Uncovered Story of Indian Enslavement in America, written by UC Davis historian, Andrés Reséndez, for JOTWELL: Equality this past April.  The book provides an encyclopedic account of Indian slavery--including the modified forms of it that were used to get around anti-slavery laws—in the Spanish New World from Columbus up to the twentieth century.  I highly recommend this book, which is an impressive feat of legal history.  It is not an easy read by any means, either emotionally or stylistically (due to its density), but it is well worth it. 

The Requerimiento, the document early Spanish invaders recited to the indigenous peoples in Spanish upon coming into the vicinity of their settlements, itself threatens enslavement if the listener does not immediately accept the Pope and the Spanish monarchs.  However, despite teaching the document and its use in my Federal Indian Law courses,  I was still ignorant of the scope of enslavement of indigenous peoples in the New World until reading this book.  I had gained some additional exposure to the issues when researching my legal history law review article on perceptions of tribal savagery and the resulting legal restrictions on tribal self-defense, “Hostile Indian Tribes . . . Outlaws, Wolves… Bears…Grizzlies and Things Like That?” How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense.  There I had come across references to Native slavery, including an 1827 Virginia case that quoted a 1711 Virginia law under which captured Indians, if deemed to be at war with the colony, were to be taken to the West Indies and sold as slaves.  Gregory v. Baugh, 25 Va. 611, 633-34 (1827).  Despite the direct references to slavery in the Requerimiento and in cases like the aforementioned Gregory v. Baugh, I was in denial about the scope of the practice of Native enslavement until reading The Other Slavery.  Since I researched Hostile Indian Tribes in 2010, there has been other important work on Native enslavement, but the temporal breadth combined with the geographic scope of The Other Slavery make it unique.  Unless you’re already an expert on these issues, I can guarantee you that you’ll never look at Columbus the same way again.     

Morality, Markets, and Contract Law at William & Mary

I’m looking forward to this upcoming event at William & Mary, Morality, Markets, and Contract Law, celebrating the publication of Nate Oman’s new book, The Dignity of Commerce: Markets and the Moral Foundations of Contract Law (University of Chicago Press 2017). I used Nate’s book in my contracts law seminar this year and recommend it for those interested in contract law theory and, in particular, for those interested in the intersections among contract law, markets, and morality.

The event is free and open to the public.

Hope to see you there!

Black Power in a 1970s Prison Library

In honor of Black History Month I want to talk about a list of books on the black experience that were part of a structural injunction for Ohio's Marion Correctional Institution back in the early 1970s.  I've been interested in this list for many, many years -- I think I first came across this around 1999 when I was working on Ralph Ellison (his book Invisible Man) was one of the books on the list.

What interests me are the books in that list and what they say about Black Power and the relationship between Black Power and the Civil Rights movement.  I've blogged about this before, when I noted the key books on the list and note what was absent from it.  But I've done a little more digging and have an essay about the books and what their contents tell us about the origins of Black Power in the pessimism that followed the Civil Rights movement's struggles and in Black Power's agenda, particularly as it related to the legal system.

The paper's up on ssrn now.  Here's my abstract:

"Black Power in a Prison Library" focuses on a list of 90 books on the black experience in America that were ordered added to the Marion, Ohio Correctional Institution in 1972.  It uses the list as a way of gauging what books the plaintiffs (and thus the court) thought were essential to telling the African American experience.  And in that way, we can use the list to reconstruct the contours of the bibliographic world of the African American experience in the early 1970s.  The list reflects an interest in history of slavery, Reconstruction and Jim Crow, the literature of the Harlem Renaissance, the 1960s Civil Rights Movement, and contemporary works on Black Power.  Notably thin is prison literature.   Together the books help form a picture of the critique of law made by Black Power writers and the ways those claims built on  historical, sociological, and civil rights literature.  The book list, thus, suggests some of the ways that books propagated and gave definition to Black Power claims.

The illustration is the cover of Julius Lester's Look out Whitey!  Black Power's Gon' Get Your Mama, which has wonderfully vivid writing.  I'd settled on this as one of my favorite introductions to Black Power before David Garrow said he thought it was one of the best works on Black Power.  I found David's endorsement to be a great validation of my judgment!

As of January 2018, the article is out in the Howard Law Journal.

New Book Announcement: Electronic Health Records and Medical Big Data (Hoffman)

Congratulations to Sharona Hoffman (CWRU Law) on the recent publication of her new book on Electronic Health Records and Medical Big Data with CUP.

Here's a quick summary for anyone interested in taking a look: This book helps readers gain an in-depth understanding of electronic health record (EHR) systems, medical big data, and the regulations that govern them. It analyzes both the shortcomings and benefits of EHR systems, exploring the law's response to the adoption of these systems and highlighting gaps in the current legal framework.  It also develops detailed recommendations for regulatory, policy, and technological improvements to enhance EHR systems’ safety, security, and efficacy for both clinical and secondary (such as research) uses. Electronic Health Records and Medical Big Data addresses not only privacy and security concerns but also other important challenges, such as those associated with data quality and data analysis. The book can serve as a primer for students and a resource for knowledgeable professionals and academics.

More info here.

My New Poetry Book Was Featured in its First Review

I’m excited to announce that my new poetry book—The Body’s Alphabet--published by Headmistress Press this summer, was featured in its first review.  Poet and editor Rebecca Valley wrote an insightful review for the blog Drizzle Review.  She describes the book as being about betweenness and as embodying a complicated sense of time—of moving forward while looking back. 

Including poems written over most of the past two decades, the book explores the body’s physical and spiritual journeys, often focusing on human vulnerability and the need for belonging.  It uses childhood loneliness, bisexuality, and discontinuity with nature as lenses.  Poet D.A. Powell describes The Body’s Alphabet as being “built on a precarious and often tender journey through homes no longer available to return to” and calls the book “a blessed space . . . : a home for the wayward soul.”  

Some of the poems touch on law and my career as a practicing attorney (none of the poems about teaching made it in).  For example, “swimming through history” compares two river systems—the Truckee and the Skagit—and describes the awe and sense of unworthiness that one can sometimes have as an attorney trying—on behalf of a client--to protect the natural functions of a river system.  More subtly, “nature essay” examines the absurdity and hubris of human claims to private property vis-à-vis animals. 

The book is available from Headmistress Press, Amazon, Powell's, and my website, as well as in a some bookstores and libraries. 

New Book Announcement: Lifetime Disadvantage, Discrimination and the Gendered Workforce

Cambridge University Press has published a new book by Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex University, UK): Lifetime Disadvantage, Discrimination and the Gendered Workforce.  Here is the publisher's description:

Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women's discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.

Thomas Jefferson has a nice press release here.

Book Announcement - Feminist Judgments: Rewritten Opinions of the United States Supreme Court

Feminist Judgments: Rewritten Opinions of the United States Supreme Court has been published by Cambridge University Press. This volume, edited by Kathy Stanchi (Temple), Linda Berger (UNLV) and me includes contributions from over 50 law professors.  Here is the publisher's description of the book:

What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? Feminist Judgments brings together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant U.S. Supreme Court cases on gender from the 1800s to the present day. The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions reveal that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice. Feminist Judgments opens a path for a long overdue discussion of the real impact of judicial diversity on the law as well as the influence of perspective on judging.

A copy of the book's (substantive) Introductory chapter and full Table of Contents is available on SSRN (here).

A list of the book's cases and contributors appears after the fold.

 

Tulsa Law Review Book Review Issue

The Tulsa Law Review's annual book review issue is out -- and I'm astonished with the number of books reviewed and how many distinguished and thoughtful reviewers Ken Kersch and Linda McClain recruited.  This is really exciting.   I may be a little behind the times on this, I can't rightly tell -- but I just saw Jack Beermann's review of Kenneth Aslakson's book on  suits by free people of color in New Orleans in the early 19th century on CLIP, so I'm guessing this is just recently out.  Legal historians will also want to read Kunal Parker's review of Kevin M. Kruse's One Nation Under God: How Corporate America Invented Christian America, Adam Laats, The Other School Reformers: Conservative Activism in American Education, and Reuel Schiller's Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism, and Martha Ertman's review of Kara Swanson's Banking on the Body.  A lot of the other books relate in greater or lesser degrees to legal history -- check the whole issue out here.  As I say, it's a terrific list of books and of reviewers.

Slavery's Capitalism

If you're been watching Roots, then you've seen a lot about slavery and the market economy the last two nights.  This August the University of Pennsylvania Press will publish an important volume edited by Sven Beckert and Seth Rockman that deals with recent work on slavery and capitalism.  It's called Slavery's Captialism: A New History of American Economic Development.   Close readers of the faculty lounge may recall that I blogged about the conference with the same title, "Slavery's Capitalism," where a bunch of these papers originated.  This is a vibrant area of discussion among historians -- and legal historians.  For the market (as I refer to it rather than capitalism) had a lot to do with the growth of slavery.  (The market also had a lot to do with its decline; one of my favorite quotes along these lines comes from Emerson who said of trade that it pushed down feudalism and would do the same to slavery -- but that is also came along with a lot of hardship.)  You may have seen Jenny Schuessler's piece on historians' new takes on capitalism in the New York Times, which deals in part with the discussion of slavery.  And here's an accessible essay Sven and Seth published on this over at Bloomberg.

It's astonishing to me how long many historians clung to the idea that the south was in some ways anti-market.  I think a lot of it has to do with the over-hang of ideas that plantations were like families -- an absurd idea, to be sure, but one that was popular for decades in the "moonlight and magnolia" school.  But there was another reason -- rooted in antislavery , too.  The only type of criticism allowed of slavery in the south for much of the ante-bellum period was that slavery was bad for white people.  And so slavery was depicted by antislavery advocates as economically disastrous for the southern economy.  That interpretation fit well -- perversely -- with the proslavery interpretation that slavery was about a loving relationship between the owners and their enslaved human property.  Both sides had an incentive to talk about how bad slavery was for the southern economy.  And I think that interpretation has proven very sticky.  While there have been some powerful interpretations of slavery as economically beneficial for the slave-owning class over the years, it's only been in the recent past that we've been fully embracing just how much slavery contributed to the economy.  And this book looks at many places to see how the system worked to extract labor at the lowest cost and how much the rest of our country benefited from this.

I'm honored to have a chapter in Slavery's Capitalism; my chapter deals with the southern legal system's market-orientation.  I discuss some cases involving slaves, running from the limitation of tort liability of slave-owners for torts committed by their slaves to the use of trusts to manage enslaved people effectively, as well as the ideas of judges who linked slavery, economic development, and law.  A lot of this will sound familiar to legal historians -- it's in large part an expansion of themes in Morton Horwitz' Transformation of American Law to the context of the slave-owning south.  Those themes, which appear in judicial opinions and in speeches and books by judges and lawyers, reveal the centrality of slavery to southern law and vice versa.

The table of contents is as follows:

The Complete Legal Writer

Two of my favorite colleagues, Alexa Chew and Katie Rose Guest Pryal, have recently published The Complete Legal Writer with Carolina Academic Press. Cribbing now from the CAP website: 

The Complete Legal Writer lives up to its name, providing everything legal research and writing professors and students need in a textbook, including citation literacy, research skills, writing process, a wide range of legal documents, and more. Using the cutting-edge Genre Discovery Approach, this book teaches students to guide themselves through the process of writing unfamiliar legal document types and thereby prepares students to write independently in upper-level classes and the workplace.

To aid in teaching Genre Discovery, the authors provide three exacting samples of each document type covered in the book, a rhetorical analysis of each document type, and specific questions to guide students as they study the samples. The Complete Legal Writer covers document types that are traditionally taught in the first year, such as office memos and appellate briefs, as well as document types taught in upper-level and non-traditional first-year curricula, including trial briefs, demand letters, and employer blog posts.

Furthermore, this book covers an essential skill for all legal writing classes: giving and receiving feedback. In addition to explaining how to give feedback to and receive feedback from peers, an important skill given the rise of peer-feedback practices in the LRW classroom, The Complete Legal Writer also covers how to receive and implement feedback from professors and workplace supervisors in order to improve both a particular document and future documents.

How The Other Half Banks At The Conglomerate

Our friends at The Conglomerate are hosting a book club discussion on Mehrsa Baradaran's How the Other Half Banks: Exclusion, Exploitation, and the Threat to Democracy.  

Posts so far include:

How The Other Half Banks: What Will Replace Banks? Posted by David Zaring

How the Other Half Banks: Banking and Blame Posted by Matt Bodie

How the Other Half Banks: More of the Regulatory Story Posted by Christine Hurt

How The Other Half Banks As A Regulation Story Posted by David Zaring

Big Victory for Google and Fair Use in Google Books Litigation

Yesterday, the Second U.S. Court of Appeals upheld the lower court decision in the ongoing litigation between the Authors Guild and Google Books, holding that the Google Books Project does not violate copyright law and that Google's digital copying of the books is fair use. Story here. Full text of the decision here.

The Lighter Side of Academia ....

Earlier this week, Julie Schumacher became the first woman to win the Thurber prize for humor writing for her epistolary academic spoof, Dear Committee Members. The book is well worth a read for the structure as well as the story and also for a good laugh. The entire story is told through a series of recommendation letters written by a somewhat jaded creative writing professor.

This year was also a first in that the three finalists for the prize were all women. Full story here.

New Book by Andre Smith--Tax Law and Racial and Economic Justice: Black Tax

Andre L. Smith (Widener) has just published a new book, Tax Law and Racial and Economic Justice: Black Tax.  Here is the publisher's description:

No study of Black people in America can be complete without considering how openly discriminatory tax laws helped establish a racial caste system in the United States, how they were designed to exclude blacks from lucrative markets and the voting franchise, and how tax laws extracted and redistributed vast sums of black wealth. Not only was slavery nearly a 100% tax on black labor, so too was Jim Crow apartheid and tax laws specified the peculiar institution as “negro slavery.” The first instances of affirmative action in the United States were tax laws designed to attract white men to the South. The nineteenth-century Federal Tariff indirectly redistributed perhaps a majority of the profits from slavery from the South to the North and is the principle reason the Confederate states seceded. The only constitutional amendment obtained by the Civil Rights Movement is the Twenty-Sixth Amendment abolishing poll taxes in federal elections. Blending traditional legal theory, neoclassical economics, and a pan-African view of history, these six interrelated essays on race and taxes demonstrate that, even in today’s supposedly post-racial society, there is no area of human activity where racial dynamics are absent.

Professor Smith's book is an important contribution.

Read more about the book here.

The Accidental Entrepreneur

Thanks to Al for the introduction and to Dan Filler and the rest of the Faculty Lounge crew for the kind invitation to guest post.

It's a familiar tale: you're an eccentric law professor in your mid-40s, and one day you look around to discover your children are getting older, your hair is turning grey, and you accidentally founded a high tech legal ed start-up.  

It's that last bit I thought I'd write about.  

When I began teaching, I found myself drawing charts to help me organize my courses -- charts that visually represented, and therefore helped me understand, how the concepts I was teaching were related to each other within a system.  Eventually it occurred to me that if the charts aided my understanding, they might help my students too.  So I shared them.  The effect on student comprehension was immediate.  What had seemed to them like a meteor shower of disparate concepts became useful constellations instead.  We even built some charts together in class.

Intrigued, I dug into the educational literature and found that the research was pretty unequivocal: concept maps were pedagogically superior to text alone for understanding the relationships between ideas within systems.  Books are wonderful for lots of things, but it turns out they are not the best tool available to us for teaching systemic relationships between concepts.  

The next year the casebook I had been using came out with yet another new edition (its 3rd in 6 years).  The changes were trivial -- just enough to alter the pagination so that using a mix of editions was unworkable.  I reluctantly assigned the new edition, but for the 1st time, I asked about its price (after all, I always got my copy for free).  $250, for one book, for one class.  I considered switching to an e-casebook version, but I found that the e-book was really just a pdf'd version of the book with a few hyperlinks and the publisher was still charging $180 for it.

It occurred to me that in the best of all worlds, courses could be formatted as concept maps, and the maps would contain within them all of the material for the course -- cases, statutes, practice problems, background readings, powerpoints, decision trees, even videos.  That would replace the casebook with something that was pedagogically better, more comprehensive, more flexible, and less expensive.

But I'm a technophobe.  Not only couldn't I create such a thing, it took me weeks to figure out what the people who possibly could are called (software developers, it turns out . . . but you probably knew that).  Still, the idea gnawed at me, until I took my pencil-and-paper drawings to a bunch of software development companies and asked them if they could make something like my drawings, except interactive and on one of those computer thingees.  Their answer?  Yup -- for a price.  As your typically business-savvy academic, I then tried to give the idea away. In this case, to several major publishers.  But my pitch to them -- 'just think of how much less you could charge your customers!' -- somehow did not generate the enthusiasm I imagined.

So, faced with adversity, I gave up.  Except I couldn't quite.  Because my students were swaying under a mountain of debt.  Because I knew I could teach them better with a tool designed to show the structure of relationships between concepts.  

So, I gave the developers my kids' college fund (for real -- don't tell them) and formed a company with two professor colleagues.  We called the company ChartaCourse.  We simply asked ourselves: what do we, as law professors, want in our teaching materials? We came up with 4 fundamental goals:

(1) A new format that constantly reveals and reinforces the structure of our courses.  True to the original vision, we wanted concept maps that charted entire law school courses, with all of the content for the course actually embedded within the map itself, in the right spots.  Students should constantly see the 'forest' of the course and the particular 'tree' of each concept we are studying.  And all of the material for that concept should be available with one click.  Here's what it looks like.  Notice that the dark blue color creates a trail from the general to the specific as we move from left to right:

 (click on the image to expand it)

And here's what happens when the user clicks on Pierson v. Post from the card of the left:

(click on the image to expand it)

(2) Complete customization.  Once a chart was created for a course by one of our authors, we wanted every adopting professor to be able to customize it completely.  She should be able to easily add material, delete material, edit material, re-arrange the chart, embed her syllabus, etc., and those changes should be visible only to her own students. For example, in my personal version of the Crim Pro chart, I have added a video of Freddie Gray's arrest:

 (click on the image to expand it)

The coming arrived casebook revolution

This morning, I received a survey from Wolters Kluwer (Aspen), publisher of the IP Survey textbook I use. The survey sought out what I find important in a book, and even asked if I knew any young IP professors I was impressed with (who could presumably write a new book). Why? The casebook authors (Profs. Merges, Menell & Lemley) somehow worked out a deal to take the book "private." That is, Aspen won't be publishing the book anymore, and they will self publish the book for a mere fraction of the former cost.

This is just one example of the casebook revolution. Contrary to what students might think, many professors actually do care about casebook prices. Modern technology is finally allowing them to do something about it.

The straw that broke the camel's back, I think, came last year, when Aspen offered Dukeminier, et al., as a rental only. That is, students paid for an electronic version and a paper version, could mark up the paper version, but then were required to send the paper version back. The cost was less than the prior full price of a casebook, but not by much. The rationale for this move was obvious: cut out the secondary market. Professors rebelled, and many said they would switch books before they would allow this, and Aspen relented, offering a print version (and claiming that its prior emails saying there would be no such version were misinterpreted).

But the handwriting was on the wall: book publishers are looking for a way to extract more and limit competition. Some of my colleagues get angry about that. My view is more sanguine: entry costs are low, so someone should be able to capture the market by simply competing with a lower price. If we hate this setup so much, we should just do casebooks another way. 

Perhaps not surprisingly, IP and internet law professors have led the way to start doing just that. Independent presses have arisen, open source casebooks have been created, and materials have been shared. You can now get two IP Survey texts (with a third on the way) for around $30. You can get statutory supplements for free in PDF (or cost of printing in paper). These things sell for $60-$90 from publishers. There are specialty casebooks (e.g. trademark or internet law), as well as highly focused reading materials (for example, you can get free access to my internet law readings online, or you can buy it in paper for about $35, if you want my exact reading choices for internet law).

Another benefit of the revolution is that new platforms allow for benefits not previously possible. Unlocked PDFs that allow for easy search, cut, and paste. An "open source" feel whereby edits by one professor's edits can be recombined into other books (though standardization of format would be helpful for this). More images, quotes, video links, etc., by professors willing to take fair use positions that publishers might not be willing to take.

In other words, the revolution has arrived, and is waiting to spread. Non-IP professors have not picked up on this as much (yet), though the H2O platform at Harvard has several reading lists in non-IP courses. As self-publishing platforms grow and more professors get on board, casebook publishers will see significant pressure.

I'll end this post with a couple caveats, however:

1. Publishers add value. For the most part, the cheaply available works are not nearly as polished as casebooks. They also contain far less material (which is good and bad - depending on whether the book matches what you want to teach). There are definitely exceptions to both of these.

2. Authors that have more potential upside may spend more time. If you like "notes" that sum up history, cases in other jurisdictions, etc., you are less likely to see those in a self-published book - certainly in the first editions. That work takes time, and simple incentives may limit it. On the other hand, if the author keeps 100% of the profit, then maybe such work will be worthwhile. Creating my own set of materials took a huge amount of time, and I simply had nothing left in the tank to write long notes, introductory text, hypotheticals, etc. But not all works are the same. I have colleagues who have written books with some fine problems in them, for example.

3. Sometimes the published book is just better. I like my patent law book. I like my contracts book. It's going to take a lot to convince me that another book is better. But that's what competition is all about.

4. New systems lack standardization, and thus may not offer all the features we want. Converting my fully online materials to printed materials was time consuming and, frankly, pretty ugly. There are other systems that may work better, and eventually the best ones will shake out.

In conclusion, be on the lookout for opportunities to collaborate on new textbooks in new areas, and the next time you complain about high prices, remember that you can do something about it!

[updated to incorporate and respond to some good comments]

Marsh on The Law of Human Remains

My friend and NC neighbor Tanya Marsh, who is a professor at Wake Forest Law, has just published a treatise on The Law of Human Remains.  Marsh deals with five main categories: 

(1) The Newly Dead (including legal recognition of death, presumption of death, obligations to report human remains, inquests and autopsies, and disposition of unclaimed remains);

(2) The Initial Disposition of Human Remains (including the decedent’s right to determine the place and manner of disposition, determining the rights and obligations to control disposition, the nature and scope of interment rights, and the obligation to pay funeral and disposition expenses);

(3) Disposition Options (including burial, cremation, and organ/cadaver donation);

(4) Regulation of the Funeral Industry; and

(5) Treatment of Human Remains (including abuse of corpse, disinterment, grave desecration, the possession and sale of human remains, and funeral protests).

The book also have a fifty state statutory survey of the law in those five areas.  My guess is this will be the go-to resource in this area of the law.  

Wake Forest has a press release with more about the book.  Can I say that people are just dying to learn about this topic?