Thank You, American Law Institute

by Rich Cassidy on April 16, 2015

2015000416.ALII learned Tuesday that I have been elected to membership in the American Law Institute. I am really very pleased to be elected.

The American Law Institute is described as “the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The Institute (made up of 4000 lawyers, judges, and law professors of the highest qualifications) drafts, discusses, revises, and publishes Restatements of the Law, model statutes, and principles of law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. ALI has long been influential internationally and, in recent years, more of its work has become international in scope.”

“By participating in the Institute’s work, members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to give back to a profession to which they are deeply dedicated, and to contribute to the public good.”

It will come as no surprise to readers of this blog to know that improving the law and the justice system has been a life-long passion for me. I welcome the opportunity to contribute in a new and important forum.

I have long been a consumer and and an admirer of the ALI’s work. As a Uniform Law Commissioner, I work with the ALI on our shared projects, most notably including the Uniform Commercial Code.

Thank you to the ALI members who nominated me, to the Nominating Committee that approved my nomination, and to the ALI Council that elected me.

I intend to be an active member.

Rich

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A Lawyers’ Canon?

by Rich Cassidy on March 16, 2015

The_Western_CanonThe idea of a “Western Canon” is a body of books and cultural achievements that are broadly accepted as most important and influential in shaping our culture. One example is Harold Bloom’s, The Western Canon, Riverhead Books, 1994.

Obviously, the idea of a canon provides endless opportunity for debate, and little potential for definitive resolution. One area of debate is who has sufficient intellectual authority to be the arbiter of such a list.

But the notion — that the profession might have some general sense of what cultural resources a well educated lawyer ought to be familiar with — seems a worthwhile one, even if agreement is beyond reach.

The law is a learned profession, and it seems to me that to truly be “learned,” a lawyer needs to know a lot more than what was taught in law school and certainly more than what was tested on the bar exam. More than anything else, law school was all about reading, but most of that reading was confined to to cases and statutes. Only a few of those, perhaps Brown v. Board of Education and the Uniform Commercial Code, could in any sense be considered part of a lawyers’ canon.

It might be useful, and at least entertaining, to develop some common understanding as to what books and other resources a lawyer should be familiar with to be “learned” in the law.

I don’t claim the intellectual authority to decide what should be in a lawyers’ canon. But I have some ideas on the subject, and I am willing to nominate some items that should be considered for such a list. Discussion or even debate about what a learned lawyer should know might give interested lawyers some good ideas.

So, from time to time I intend to suggest some books, and some other items that I think belong in a lawyers’ canon. Some will be classics and well-known. Some will not.

I’ll start today, and with a resource that clearly belongs on the list. My suggestion is indeed a classic: The Common Law, by Oliver Wendell Holmes, Jr. The+Common+Law_Cover (2)

I don’t think it’s really arguable. Holmes shows us the roots of much from which the modern common law has grown. If you want to understand the underlying theory of contract law, or the purposes of the criminal law or tort law, The Common Law is the place to begin.

It is very worthwhile to understand that much of our our law is a cultural substitute for the human impulse to take vengeance. Holmes shows us that this relationship has surprising breadth and lasting implications.

And, of course, when it comes to the law, history matters. As Holmes wrote: “The life of the law has not been logic; it has been experience.”

Does understanding Holmes’ point and understanding it in depth really matter?  I think it does. One thing all lawyers do is to interpret the law. Often the interpretation is uncertain. Getting it right requires knowing how the particular question fits in with the larger pattern of the law.

So, I nominate The Common Law without doubt or reservation.

More suggestions will be forthcoming.

Rich

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“The Judge”  Robert Duvall and Robert Downey, Jr. and the Burden of Judging

March 2, 2015

Regular readers of this blog know that I am interested in the feedback loop between popular culture and the law. Recently, I watched “The Judge,” a Robert Duvall and Robert Downey, Jr. film.  And as I did, I wondered about the impact of the film on the public’s view of lawyers and judges. The film is […]

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Does the Requirement of a Unanimous Verdict Favor the Defense in Civil Cases? It’s Not So Clear

February 16, 2015

Over the years there have been a number of proposals to permit jury verdicts in civil cases in Vermont to be made by less than a unanimous vote. Debate over these proposals seems to largely divide the bar along the lines of the clients the debating lawyers represent: most plaintiffs’ lawyers favor such proposals, while […]

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ABA Calls for Repeal of “Stand Your Ground”

February 13, 2015

At its meeting in Houston, Texas on Monday, February 9, the American Bar Association House of Delegates called for the repeal of “Stand your Ground” laws. Some 33 states have adopted Stand Your Ground laws. At common law, individuals who were confronted with an imminent threat of deadly force in public space, had an obligation […]

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Got Link Rot? Try Permalink!

February 4, 2015

Jill Lepore’s article, The Cobweb: Can the Internet be Archived?, from last week’s The New Yorker (January 26, 2015) discusses an issue for courts and lawyers. Footnoting, a lawyerly habit, is all about documenting your proof. As the article says, the classic idea of the footnote is documentation that says, “Here is how I know this and […]

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I Guess That’s What Makes Horse Races … and Lawsuits!

January 22, 2015

If more than 30 years of practicing law has taught me anything, it is that few things are as easy as they look. That includes the practice of law itself. Let me use a recent victory to show you what I mean. In Vermont, we have a statute that regulates the hiring and firing of […]

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Help for Clients with Severe Emotional Trauma: Try A Little Yoga

January 13, 2015

From time to time, lawyers may grapple with the problem of representing individuals who have suffered significant emotional trauma. I know that I do. These clients and their cases can be particularly challenging: claims adjusters, opposing counsel, jurors, and even the courts, can be skeptical about claims in which emotional damage is a significant factor. […]

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The Pardon as Justice, not Mercy: “A Pardon Celebrates the Life of a Public Defender”

January 2, 2015

The Story of Albert Stork, a person with a record of conviction who lived an exemplary life and won a pardon.

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A Repost: “Don’t Buy the Snake Oil: Take the Long Road to Contentment”

December 29, 2014

As a blogger myself, I am a reader of other blogs. The world that we live in — in which virtually anyone can be a publisher — has unleashed a torrent of knowledge and creativity. So, it’s not unusual for me to find material that I really admire on the web. There are a number […]

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