Legal

Grisham, John. The Brethren. New York: Island Books, 2001. ISBN 0-440-23667-3.

August 2001 

Grisham, John. The King of Torts. New York: Doubleday, 2003. ISBN 0-385-50804-2.

A mass market paperback edition is now available.

March 2004 

Grisham, John. The Confession. New York: Doubleday, 2010. ISBN 978-0-385-52804-7.

Just days before the scheduled execution of Donté Drumm, a black former high school football star who confessed (during a highly dubious and protracted interrogation) to the murder of white cheerleader Nicole Yarber, a serial sex offender named Travis Boyette, recently released to a nearby halfway house, shows up in the office of Lutheran pastor Keith Schroeder and, claiming to be dying of an inoperable brain tumour, confesses to the murder and volunteers to go to Texas to take responsibility for the crime, reveal where he buried the victim's body (which was never found), and avert the execution of Donté. Schroeder is placed in a near-impossible dilemma: he has little trust in the word of Boyette, whose erratic behaviour is evident from the outset, and even less desire to commit a crime assisting Boyette in violating his parole by leaving the state to travel to Texas, but he knows that if what Boyette says is true and he fails to act, an innocent man is certain to be killed by the state.

Schroeder decides to do what he can to bring Boyette's confession to the attention of the authorities in Texas, and comes into direct contact with the ruthless efficiency of the Texas killing machine. This is a story with many twists, turns, surprises, and revelations, and there's little I can say about it without spoiling the plot, so I'll leave it at that. Grisham is clearly a passionate opponent of the death penalty, and this is as much an advocacy document as a thriller. The victim's family is portrayed in an almost cartoon-like fashion, exploiting an all-too-willing media with tears and anguish on demand, and the police, prosecutors, court system, and politicians as uniformly venal villains, while those on the other side are flawed, but on the side of right. Now, certainly, there are without doubt people just as bad and as good on the sides of the issue where Grisham places them, but I suspect that most people in those positions in the real world are conflicted and trying to do their best to obtain justice for all concerned.

Taken purely as a thriller, this novel works, but in my opinion it doesn't come up to the standard set by Grisham's early work. The arcana of the law and the legal system, which Grisham excels in working into his plots, barely figure here, with racial tensions, a media circus, and a Texas town divided into two camps taking centre stage.

A mass market paperback edition will be released in July, 2011. A Kindle edition is available, and substantially less expensive than the hardcover.

January 2011 

Grisham, John. The Litigators. New York: Bantam Books, [2011] 2012. ISBN 978-0-345-53688-4.

Every now and then you come across a novel where it's obvious, from the first few pages, that the author had an absolute blast telling the story, and when that's the case, the reader is generally in for a treat. This is certainly the case here.

David Zinc appeared to have it all. A Harvard Law graduate, senior associate at Chicago mega-firm Rogan Rothberg working in international bond finance, earning US$300,000 a year, with a good shot of making partner (where the real gravy train pulls into the station); he had the house, the car, and a beautiful wife pursuing her Ph.D. in art history. And then one grim Chicago morning, heading to the office for another exhausting day doing work he detested with colleagues he loathed, enriching partners he considered odious (and knowing that, if he eventually joined their ranks, the process of getting there would have made him just the same), he snapped. Suddenly, as the elevator ascended, he realised as clearly as anything he'd ever known in his life, “I cannot do this any more”.

And so, he just walked away, found a nearby bar that was open before eight in the morning, and decided to have breakfast. A Bloody Mary would do just fine, thanks, and then another and another. After an all day bender, blowing off a client meeting and infuriating his boss, texting his worried wife that all was well despite the frantic calls to her from the office asking where he was, he hails a taxi not sure where he wants to go, then, spotting an advertisement on the side of a bus, tells the driver to take him to the law offices of Finley & Figg, Attorneys.

This firm was somewhat different than the one he'd walked out of earlier that day. Oscar Finley and Wally Figg described their partnership as a “boutique firm”, but their stock in trade was quicky no-fault divorces, wills, drunk driving, and that mainstay of ground floor lawyering, personal accident cases. The firm's modest office was located near a busy intersection which provided an ongoing source of business, and the office was home to a dog named AC (for Ambulance Chaser), whose keen ears could pick up the sound of a siren even before a lawyer could hear it.

Staggering into the office, David offers his services as a new associate and, by soused bravado more than Harvard Law credentials, persuades the partners that the kid has potential, whereupon they sign him up. David quickly discovers an entire world of lawyering they don't teach at Harvard: where lawyers carry handguns in their briefcases along with legal pads, and with good reason; where making the rounds of prospective clients involves visiting emergency rooms and funeral homes, and where dissatisfied clients express their frustration in ways that go well beyond drafting a stern memorandum.

Soon, the firm stumbles onto what may be a once in a lifetime bonanza: a cholesterol drug called Krayoxx (no relation to Vioxx—none at all) which seems to cause those who take it to drop dead with heart attacks and strokes. This vaults the three-lawyer firm into the high-rolling world of mass tort litigation, with players with their own private jets and golf courses. Finley & Figg ends up at the pointy end of the spear in the litigation, which doesn't precisely go as they had hoped.

I'd like to quote one of the funniest paragraphs I've read in some time, but as there are minor spoilers in it, I'll put it behind the curtain. This is the kind of writing you'll be treated to in this novel.

Spoiler warning: Plot and/or ending details follow.   (Show Spoilers) (Hide Spoilers)

While Wally doodled on a legal pad as if he were heavily medicated, Oscar did most of the talking. “So, either we get rid of these cases and face financial ruin, or we march into federal court three weeks from Monday with a case that no lawyer in his right mind would try before a jury, a case with no liability, no experts, no decent facts, a client who's crazy half the time and stoned the other half, a client whose dead husband weighed 320 pounds and basically ate himself to death, a veritable platoon of highly paid and very skilled lawyers on the other side with an unlimited budget and experts from the finest hospitals in the country, a judge who strongly favors the other side, a judge who doesn't like us at all because he thinks we're inexperienced and incompetent, and, well, what else? What am I leaving out here, David?”

“We have no cash for litigation expenses,” David said, but only to complete the checklist.

Spoilers end here.   (Hide Spoilers)

This story is not just funny, but also a tale of how a lawyer, in diving off the big law rat race into the gnarly world of retail practice rediscovers his soul and that there are actually noble and worthy aspects of the law. The characters are complex and interact in believable ways, and the story unfolds as such matters might well do in the real world. There is quite a bit in common between this novel and The King of Torts (March 2004), but while that is a tragedy of hubris and nemesis, this is a tale of redemption.

July 2012 

Grisham, John. The Racketeer. New York: Doubleday, 2012. ISBN 978-0-345-53057-8.

Malcolm Bannister was living the life of a retail lawyer in a Virginia town, doing real estate transactions, wills, and the other routine work which occupies a three partner firm, paying the bills but never striking it rich. A law school classmate contacts him and lets him know there's a potentially large commission available for negotiating the purchase of a hunting lodge in rural Virginia for an anonymous client. Bannister doesn't like the smell of the transaction, especially after a number of odd twists and turns during the negotiation, but bills must be paid, and this fee will go a long way toward that goal. Without any warning, during a civic function, costumed goons arrest him and perp-walk him before previously-arranged state media. He, based upon his holding funds in escrow for a real estate transaction, is accused of “money laundering” and indicted as part of a RICO prosecution of a Washington influence peddler. Railroaded through the “justice system” by an ambitious federal prosecutor and sentenced by a vindictive judge, he finds himself imprisoned for ten years at a “Club Fed” facility along with other nonviolent “criminals”.

Five years into his sentence, he has become the librarian and “jailhouse lawyer” of the prison, filing motions on behalf of his fellow inmates and, on occasion, seeing injustices in their convictions reversed. He has lost everything else: his wife has divorced him and remarried, and his law licence has been revoked; he has little hope of resuming his career after release.

A jailhouse lawyer hears many things from his “clients”: some boastful, others bogus, but some revealing secrets which those holding them think might help to get them out. When a federal judge is murdered, Bannister knows, from his contacts in prison, precisely who committed the crime and leverages his position to obtain his own release, disappearance into witness protection, and immunity from prosecution for earlier acts. The FBI, under pressure to solve the case and with no other leads, is persuaded by what Bannister has to offer and takes him up on the deal.

A jailhouse lawyer, wrongly convicted on a bogus charge by a despotic regime has a great deal of time to ponder how he has been wronged, identify those responsible, and slowly and surely draw his plans against them.

This is one of the best revenge novels I've read, and it's particularly appropriate since it takes down the tyrannical regime which incarcerates a larger percentage of its population than any serious country and shows how a clever individual can always outwit the bumbling collectivist leviathan as long as he refuses to engage it on level terrain but always exploits agility against the saurian brain reaction time of the state.

The only goof I noticed is that on a flight from Puerto Rico to Atlanta, passengers are required to go through passport control. As this is a domestic flight from a U.S. territory to the U.S. mainland, no passport check should be required (although in the age of Heimatsicherheitsdienst, one never knows).

I wouldn't call this a libertarian novel, as the author accepts the coercive structure of the state as a given, but it's a delightful tale of somebody who has been wronged by that foul criminal enterprise obtaining pay-back by wit and guile.

November 2013 

Healy, Gene, ed. Go Directly to Jail. Washington: Cato Institute, 2004. ISBN 1-930865-63-5.

Once upon a time, when somebody in the U.S. got carried away and started blowing something out of proportion, people would chide them, “Don't make a federal case out of it.” For most of U.S. history, “federal cases”—criminal prosecutions by the federal government—were a big deal because they were about big things: treason, piracy, counterfeiting, bribery of federal officials, and offences against the law of nations. With the exception of crimes committed in areas of exclusive federal jurisdiction such as the District of Columbia, Indian reservations, territories, and military bases, all other criminal matters were the concern of the states. Well, times have changed. From the 17 original federal crimes defined by Congress in 1790, the list of federal criminal offences has exploded to more than 4,000 today, occupying 27,000 pages of the U.S. Code, the vast majority added since 1960. But it's worse than that—many of these “crimes” consist of violations of federal regulations, which are promulgated by executive agencies without approval by Congress, constantly changing, often vague and conflicting, and sprawling through three hundred thousand or so pages of the Code of Federal Regulations.

This creates a legal environment in which the ordinary citizen or, for that matter, even a professional expert in an area of regulation cannot know for certain what is legal and what is not. And since these are criminal penalties and prosecutors have broad discretion in charging violators, running afoul of an obscure regulation can lead not just to a fine but serious downtime at Club Fed, such as the seafood dealers facing eight years in the pen for selling lobster tails which violated no U.S. law. And don't talk back to the Eagle—a maintenance supervisor who refused to plead guilty to having a work crew bury some waste paint cans found himself indicted on 43 federal criminal counts (United States v. Carr, 880 F.2d 1550 (1989)). Stir in enforcement programs which are self-funded by the penalties and asset seizures they generate, and you have a recipe for entrepreneurial prosecution at the expense of liberty.

This collection of essays is frightening look at criminalisation run amok, trampling common law principles such as protection against self-incrimination, unlawful search and seizure, and double jeopardy, plus a watering down of the rules of evidence, standard of proof, and need to prove both criminal intent (mens rea) and a criminal act (actus reus). You may also be amazed and appalled at how the traditional discretion accorded trial judges in sentencing has been replaced by what amount to a “spreadsheet of damnation” of 258 cells which, for example, ranks possession of 150 grams of crack cocaine a more serious offence than second-degree murder (p. 137). Each essay concludes with a set of suggestions as to how the trend can be turned around and something resembling the rule of law re-established, but that's not the way to bet. Once the ball of tyranny starts to roll, even in the early stage of the soft tyranny of implied intimidation, it gains momentum all by itself. I suppose we should at be glad they aren't torturing people. Oh, right….

April 2005 

Levin, Mark R. Men in Black. Washington: Regnery Publishing, 2005. ISBN 0-89526-050-6.

Let's see—suppose we wanted to set up a system of self-government—a novus ordo seclorum as it were—which would be immune to the assorted slippery slopes which delivered so many other such noble experiments into the jaws of tyranny, and some dude shows up and suggests, “Hey, what you really need is a branch of government composed of non-elected people with lifetime tenure, unable to be removed from office except for the most egregious criminal conduct, granted powers supreme above the legislative and executive branches, and able to define and expand the scope of their own powers without constraint.”

What's wrong with this picture? Well, it's pretty obvious that it's a recipe for an imperial judiciary, as one currently finds ascendant in the United States. Men in Black, while focusing on recent abuses of judicial power, demonstrates that there's nothing new about judges usurping the prerogatives of democratically elected branches of government—in fact, the pernicious consequences of “judicial activism” are as old as America, winked at by each generation of politicians as long as it advanced their own agenda more rapidly than the ballot box permitted, ignoring (as politicians are inclined to do, never looking beyond the next election), that when the ideological pendulum inevitably swings back the other way, judges may thwart the will of elected representatives in the other direction for a generation or more.

But none of this is remotely new. Robert Yates, a delegate to the Constitutional Convention who came to oppose the ratification of that regrettable document, wrote in 1788:

They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul [sic] their adjudications. From this court there is no appeal.

The fact that politicians are at loggerheads over the selection of judges has little or nothing to do with ideology and everything to do with judges having usurped powers explicitly reserved for representatives accountable to their constituents in regular elections.

How to fix it? Well, I proposed my own humble solution here not so long ago, and the author of this book suggests 12 year terms for Supreme Court judges staggered with three year expiry. Given how far the unchallenged assertion of judicial supremacy has gone, a constitutional remedy in the form of a legislative override of judicial decisions (with the same super-majority as required to override an executive veto) might also be in order.

May 2005 

Olson, Walter K. The Rule of Lawyers. New York: St. Martin's Press, 2003. ISBN 0-312-28085-8.

The author operates the valuable Overlawyered.com Web site. Those who've observed that individuals with a clue are under-represented on juries in the United States will be delighted to read on page 217 of the Copiah County, Mississippi jury which found for the plaintiff and awarded US$75 billion in damages. When asked why, jurors said they'd intended to award “only” US$75 million, but nobody knew how many zeroes to write down for a million, and they'd guessed nine.

April 2004 

Post, David G. In Search of Jefferson's Moose. New York: Oxford University Press, 2009. ISBN 978-0-19-534289-5.

In 1787, while serving as Minister to France, Thomas Jefferson took time out from his diplomatic duties to arrange to have shipped from New Hampshire across the Atlantic Ocean the complete skeleton, skin, and antlers of a bull moose, which was displayed in his residence in Paris. Jefferson was involved in a dispute with the Comte de Buffon, who argued that the fauna of the New World were degenerate compared to those of Europe and Asia. Jefferson concluded that no verbal argument or scientific evidence would be as convincing of the “structure and majesty of American quadrupeds” as seeing a moose in the flesh (or at least the bone), so he ordered one up for display.

Jefferson was a passionate believer in the exceptionality of the New World and the prospects for building a self-governing republic in its expansive territory. If it took hauling a moose all the way to Paris to convince Europeans disdainful of the promise of his nascent nation, then so be it—bring on the moose! Among Jefferson's voluminous writings, perhaps none expressed these beliefs as strongly as his magisterial Notes on the State of Virginia. The present book, subtitled “Notes on the State of Cyberspace” takes Jefferson's work as a model and explores this new virtual place which has been built based upon a technology which simply sends packets of data from place to place around the world. The parallels between the largely unexplored North American continent of Jefferson's time and today's Internet are strong and striking, as the author illustrates with extensive quotations from Jefferson interleaved in the text (set in italics to distinguish them from the author's own words) which are as applicable to the Internet today as the land west of the Alleghenies in the late 18th century.

Jefferson believed in building systems which could scale to arbitrary size without either losing their essential nature or becoming vulnerable to centralisation and the attendant loss of liberty and autonomy. And he believed that free individuals, living within such a system and with access to as much information as possible and the freedom to communicate without restrictions would self-organise to perpetuate, defend, and extend such a polity. While Europeans, notably Montesquieu, believed that self-governance was impossible in a society any larger than a city-state, and organised their national and imperial governments accordingly, Jefferson's 1784 plan for the government of new Western territory set forth an explicitly power law fractal architecture which, he believed, could scale arbitrarily large without depriving citizens of local control of matters which directly concerned them. This architecture is stunningly similar to that of the global Internet, and the bottom-up governance of the Internet to date (which Post explores in some detail) is about as Jeffersonian as one can imagine.

As the Internet has become a central part of global commerce and the flow of information in all forms, the eternal conflict between the decentralisers and champions of individual liberty (with confidence that free people will sort things out for themselves)—the Jeffersonians—and those who believe that only strong central authority and the vigorous enforcement of rules can prevent chaos—Hamiltonians—has emerged once again in the contemporary debate about “Internet governance”.

This is a work of analysis, not advocacy. The author, a law professor and regular contributor to The Volokh Conspiracy Web log, observes that, despite being initially funded by the U.S. Department of Defense, the development of the Internet to date has been one of the most Jeffersonian processes in history, and has scaled from a handful of computers in 1969 to a global network with billions of users and a multitude of applications never imagined by its creators, and all through consensual decision making and contractual governance with nary a sovereign gun-wielder in sight. So perhaps before we look to “fix” the unquestioned problems and challenges of the Internet by turning the Hamiltonians loose upon it, we should listen well to the wisdom of Jefferson, who has much to say which is directly applicable to exploring, settling, and governing this new territory which technology has opened up. This book is a superb way to imbibe the wisdom of Jefferson, while learning the basics of the Internet architecture and how it, in many ways, parallels that of aspects of Jefferson's time. Jefferson even spoke to intellectual property issues which read like today's news, railing against a “rascal” using an abusive patent of a long-existing device to extort money from mill owners (p. 197), and creating and distributing “freeware” including a design for a uniquely efficient plough blade based upon Newton's Principia which he placed in the public domain, having “never thought of monopolizing by patent any useful idea which happened to offer itself to me” (p. 196).

So astonishing was Jefferson's intellect that as you read this book you'll discover that he has a great deal to say about this new frontier we're opening up today. Good grief—did you know that the Oxford English Dictionary even credits Jefferson with being the first person to use the words “authentication” and “indecipherable” (p. 124)? The author's lucid explanations, deft turns of phrase, and agile leaps between the eighteenth and twenty-first centuries are worthy of the forbidding standard set by the man so extensively quoted here. Law professors do love their footnotes, and this is almost two books in one: the focused main text and the more rambling but fascinating footnotes, some of which span several pages. There is also an extensive list of references and sources for all of the Jefferson quotations in the end notes.

March 2009 

Sowell, Thomas. The Quest for Cosmic Justice. New York: Touchstone Books, 1999. ISBN 0-684-86463-0.

October 2003 

Woods, Thomas E., Jr. The Politically Incorrect Guide to American History. Washington: Regnery Publishing, 2004. ISBN 0-89526-047-6.

You know you're getting old when events you lived through start showing up in history textbooks! Upon reaching that milestone (hey, it beats the alternative), you'll inevitably have the same insight which occurs whenever you see media coverage of an event at which you were personally present or read a popular account of a topic which you understand in depth—“Hey, it wasn't like that at all!”…and then you begin to wonder about all the coverage of things about which you don't have direct knowledge.

This short book (246 pages of widely-leaded text with broad margins and numerous sidebars and boxed quotations, asides, and recommendations for further reading) provides a useful antidote to the version of U.S. history currently taught in government brainwashing institutions, written from a libertarian/conservative standpoint. Those who have made an effort to educate themselves on the topics discussed will find little here they haven't already encountered, but those whose only knowledge of U.S. history comes from contemporary textbooks will encounter many eye-opening “stubborn facts” along with source citations to independently verify them (the excellent bibliography is ten pages long).

The topics covered appear to have been selected based on the degree to which the present-day collectivist academic party line is at variance with the facts (although, as Woods points out, in many cases historians specialising in given areas themselves diverge from textbook accounts). This means that while “hot spots” such as the causes of the Civil War, the events leading to U.S. entry in World War I, and the reasons for the Great Depression and the rôle of New Deal programs in ending it are discussed, many others are omitted entirely; the book is suitable as a corrective for those who know an outline of U.S. history but not as an introduction for those college graduates who believe that FDR defeated Santa Anna at the Little Big Horn.

September 2005