Less than the Least

New Book of Essays on Bill's Work

2012-01-13T17:26:46Z

"The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz" has just been published by Cambridge University Press: here. The book is based on the papers written by a number of the country's top criminal justice scholars for the conference at Harvard Law School in honor of Bill in 2010. The essays are terrific. (The hardback is pricey; if folks who interested in purchasing a copy email me privately, it's possible I can get a bit of a discount.)

Orin Kerr on The Collapse of American Criminal Justice

2012-01-13T17:15:43Z

I've been meaning for weeks to link to a very thoughtful review by Orin Kerr of Bill's book on the Volokh Conspiracy blog: here. Orin gives an excellent summary of the book and its importance, then concludes by asking, among other things, whether Bill's account of criminal justice in earlier eras is too "rosy." It's well-worth reading.

Another View on American's Bankruptcy--Skeel

2011-12-07T20:05:18Z

A friend sent an interesting email offering a less sympathetic view of bankruptcies like the American bankruptcy. With his permission, I thought I would quote it in full here:

"David: I read your post. But it seemed to me that AA filing was, essentially, just another in the long line of U.S. board decisions over the last twenty-five years or so to use our liberal bankruptcy laws as a strategic restructuring tool to get rid of debt and contracts and employee obligations that they felt held back profitability and the stock price. Chapter 11 is a wonderful tool for people who are essentially amoral, as many people in business and most lawyers are."

"I remember when I saw the amorality that accompanies most Chapter 11's up close and personal for the first time. It was in July, 1977, when GAF Corporation, the company where I was SEC and finance counsel, did what was at the time a big divisional write-off and fired most of the workers at some factories in and around Binghamton, NY. I worked on the SEC and financial aspects, but what struck me was stuff I learned talking to managers in Personnel: for example, how none of the second and third-tier managers questioned instructions to do things "in the most effective way" -- just telling hundreds of factory workers they were fired when they reported for their shift at 7 A.M. or 8 A.M., and instructing them to go downtown to file for unemployment, declining to arrange with the state department of unemployment to set up tables at the factory where workers could file for benefits more easily."

"Actually, I'm not sure whether the department name had yet been changed from "Personnel" to "Human Relations." No matter; in my experience, "Human Relations" people are always the meanest, most unfeeling people around, people who live the Nuremberg Defense."

Was it Immoral for American Airlines to File for Bankruptcy?--Skeel

2011-12-06T01:31:38Z

The former CEO of American thought so. He's seems like an admirable leader, but I think he's wrong about bankruptcy. Here's a little blog post elaborating on that theme.

Richard Posner's Review in The New Republic

2011-11-21T00:45:53Z

Richard Posner's review in the current New Republic is here. More on this and the other reviews soon.

More Great Reviews

2011-10-29T17:36:38Z

There are a number of new reviews of Bill's book, in addition to Justice Stevens' review in the New York Review of Books and Lincoln Caplan's review in Democracy mentioned in earlier posts. I'll start adding them to this post.

As Bill's colleague Carol Steiker noted at the wonderful Harvard Law School celebration for the book last week, Bill put an enormous amount of energy into the book in his last couple of years (so much so that she often urged him to take it easier). It shows, and is reflected in the reviews' repeated use of terms like "magisterial." ("Magisterial" comes up so often, and is so obviously accurate, that I'm trying to come up with some other word.)

The Wall Street Journal review is here.

The review in Chroncle Review is here.

Stuntz Book Event and NYRB Review

2011-10-21T12:19:01Z

A very belated post to note that there will be a book event for The Collapse of American Criminal Justice at Harvard Law School at 3pm today for those who are in the area. It should be wonderful. (Check the Harvard Law website).

There is a terrific review of the book by Justice Stevens in the current issue of New York Review of Books. Although review defends some of the Supreme Court's handiwork during the Warren Court era of the 1960s (which Bill criticises in the book as having had bad unintended consequences), Justice Stevens makes clear just how compelling and important The Collapse of American Criminal Justice is. It's linked here.

The Eurozone Crisis--Skeel

2011-10-21T12:13:28Z

Earlier this week, I wrote an op-ed on the Eurozone crisis that was inspired by a wonderful conference in Iceland two weeks ago, and follows up on thoughts from an earlier blog post. The op-ed is here.

Occupy Wall Street--Skeel

2011-10-11T15:22:38Z

My favorite piece on the Occupy Wall Street movement thus far is a commentary by John Gapper in last Thursday’s Financial Times. (In good capitalist fashion, FT puts articles behind a paywall, so I can’t link to the commentary here). For Gapper, there’s nothing wrong with the movement’s confused messages—the mostly young protesters are angry at Wall Street and worried about the future, and appropriately so. He would be much more disappointed if the movement devolved into violence, as has occurred in Greece and London.

If OWS is like a Tea Party movement from the left-- I agree with commentators like Gapper who have suggested it is-- Democratic politicians should hesitate to assume that OWS is wind in their sails. Much as the mostly Republican Tea Party criticized President Bush’s spending and bailouts, the mostly Democratic OWS may indict President Obama for underestimating the seriousness of the economic crisis and failing to rein in the largest banks.

I don’t think a massive new stimulus would solve the economic malaise. Continuing to rely on government funding, and keeping the market at bay, seems more likely to prolong than to end this period of low growth and few jobs. If OWS is as varied and multi-faceted as it seems, perhaps one or two of the protestors might even agree.

The Suskind Book--Skeel

2011-10-06T01:15:55Z

My first reaction to the reviews of Ron Suskind’s new book about the Obama administration’s handling of the economic crisis was that it mostly seemed to confirm widely held views, such as the perception that President Obama and Treasury Secretary Geithner are both comfortable with big banks, and resisted to efforts to scale them down. (The one big exception was the President’s temporary decision to break up Citigroup, which was, according to Suskind’s sources, stymied by Geithner).

My other reaction was to marvel at how differently President Obama and Elizabeth Warren address politically sensitive issues. The President often seems to tailor his remarks to his audience. This got him in trouble during the 2008 campaign, when he told a group of Democratic contributors that ordinary Americans cling to guns and religion. During the economic crisis, he has berated Wall Street, on the one hand, while defending the too big to fail banks behind the scenes.

Warren recently caused a flutter when her quote (at a gathering of fervent Democrats) that no one got rich on their own, without the government, went viral on YouTube. In the Suskind book, she complains that the Obama administration can’t criticize Wall Street and at the same time “dump money in their laps and be credible.” Her message—that the government has a central role to play, that big institutions should be controlled, that consumers need a protector-- is almost the same in both contexts. Whether one likes the message or hates it, it doesn’t change from one setting to the next.

Lehman and the Eurozone Crisis--Skeel

2011-09-28T14:45:43Z

Everyone, even German Chancellor Angela Merkel, seems to be comparing the Eurozone crisis to Lehman Brothers’ collapse three years ago. According to this reasoning, the default of Greece (or Portugal, Ireland, Spain or Italy) could trigger market chaos, just as Lehman supposedly did in 2008. My own view of Lehman, as a few readers of this blog may remember, is that the conventional wisdom is mistaken in almost every respect. Lehman does seem to me a useful analogy, however. The reason Lehman’s collapse came as such a shock was that the decision to rescue Bear Stearns six months earlier seemed to signal that large troubled institutions would be bailed out. Everyone understandably expected a bailout, and was stunned when no bailout came. European leaders have boxed themselves into a very similar corner. Even now, few think that they will let Greece default, despite the fact that Greece is clearly insolvent and has no real prospect of repaying its debt.

In other contexts (states, large financial institutions, Argentina in the early 2000s), I have argued that a bankruptcy is likely to be a better solution than bailouts or a default. There are some good arguments for creating a European bankruptcy framework. European countries already have given up some of their sovereignty, for instance, so bankruptcy would only be a limited additional interference; and countries such as Italy may be too big to bail out. But I’m not sure if bankruptcy would be the right answer here. The banks of other European countries, especially France, hold large amounts of Greek debt. If a bankruptcy regime were in place and Greece used it, the bankruptcy would have serious knock on effects in these other countries. It’s not clear whether countries like France or the E.U. could plausibly contain the effects on the banking sector. I may eventually cast my own lot for bankruptcy here as elsewhere, but the overall case seems a little murkier.

First Review of Bill's Book

2011-09-13T18:08:07Z

The first (I think) review of The Collapse of American Criminal Justice has just appeared, just as the book is about to hit the shelves. Here's the review, which Lincoln Caplan wrote for Democracy. I think the review is superb, and there's lots more to come. This is the first of what I expect will be a number of posts on Bill's magnum opus.

Off to College--Skeel

2011-09-05T23:52:29Z

Almost the only thing our older son knew for sure about as he conducted his college search last year was that he wouldn’t be going to college in the Philadelphia area. So after weighing his options last spring, he of course found that he loved Penn and decided to stay in the neighborhood after all. His dorm adjoins, almost literally, the law school where I teach.

This meant we wouldn’t have the long car or plane trip that many of his friends’ parents had when they took their kids to college. When we dropped our son off at college on Thursday, we took the same commuter train I always take, and walked the same streets I always walk. And yet it still seemed a little disorienting. It was as if we were inhabiting a parallel universe. The day before this had been my train to work, but Thursday it was a train taking our first son to college. The streets were familiar, but they suddenly seemed strange.

My wife mentioned today that our son says he probably won’t come home often during the year, perhaps not even for Thanksgiving. This reminded me of the first letter I got from my mother, a month or two into my freshman year of college. “I was beginning to wonder if I still had a son in college,” the letter began, and it went on to explain that my mother had run into the parents of a fellow freshman, who assured her that I was still alive and well. (My friend was a far better correspondent than I was.) I don’t think my son can match that, and don’t plan to let him try.

Backyard Deer--Skeel

2011-08-26T00:20:36Z

Our summer entertainment is sitting on the back porch at the end of the day, drinking a glass of red wine, and waiting for the deer to arrive. This summer there’s a family: a doe, a young buck, and two fawns. They drift across our backyard at dusk, and often at other times as well.

The highlight for the deer seems to be our neighbor’s apple tree. One day three or four crows followed the fawns around, landing on the apple tree and then on the ground nearby, standing there until one of the fawns chased them away. It was never clear just what they were up to.

The buck sometimes stands up on his hind legs trying to reach higher apples, staggering a little, like a cheerleader who has just thrust his partner into the air and is struggling to balance her on his hands.

Our little Yorkshire Terrier used to bark at the deer—always from the safety of the screened in porch—but now she just watches them too.

The family is usually accompanied by a buck that has a skin disease (apparently not life threatening, according to my wife’s internet research) that has covered his body with black splotches and made his face look like Darth Vader. We imagine that the family has taken him in, showing compassion on a buck that might otherwise be ostracized. The fawns treat him like a member of the family—sometimes following him—and perhaps he is.

Today while I was jogging I saw a dead fawn on the side of the road, about a quarter of a mile from our house. When I told my wife, she gasped. But she then noted that she’d seen both of our fawns after I’d gone for the run.

Sure enough, both fawns showed up this evening, along with the rest of the family. One of the buck’s two horns seems to have been broken off. I can only imagine how that happened.

Senator Elizabeth Warren?--Skeel

2011-08-18T22:48:35Z

It sounds like the long-rumored Elizabeth Warren campaign is really going to happen. She wrote a blog post about her return to Massachusetts that sounds like the warm-up to a campaign, and she has just set up an “exploratory committee,” ostensibly to explore the decision whether to run, but more likely to confirm it.

I found myself wondering if a law professor has ever been elected to the Senate. Barack Obama doesn’t count, because he was a politician moonlighting as a law professor when he taught at the University of Chicago. The closest I can think of is Pat Moynihan, who wasn’t a law professor but was a true scholar before running for and winning a Senate seat in New York in 1976. But even he had an extensive political career (serving in the Kennedy administration, among other posts) before running for the Senate.

Of course, there are still a number of significant obstacles between Warren and the Senate, including the Democratic primary and, more importantly, popular Republican incumbent Scott Brown. But I have to imagine the prospects are good. Warren was controversial as a law professor, but those controversies will be close to irrelevant to her Senate run. She has a great deal of credibility on economic issues, and has focused on them for decades, going into an election that is likely to turn on precisely these issues. In many states, the fact that she excites the liberal wing of the Democratic party, but is deeply unpopular with many Republicans and draws mixed reviews from moderates might be a problem. But Massachusetts obviously is not that kind of state.