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Abstract:
This Essay examines what the Harry Potter series (and particularly the most recent book, The Half-Blood Prince) tells us about government and bureaucracy. There are two short answers. The first is that Rowling presents a government (The Ministry of Magic) that is 100% bureaucracy. There is no discernable executive or legislative branch, and no elections. There is a modified judicial function, but it appears to be completely dominated by the bureaucracy, and certainly does not serve as an independent check on governmental excess.

Second, government is controlled by and for the benefit of the self-interested bureaucrat. The most cold-blooded public choice theorist could not present a bleaker portrait of a government captured by special interests and motivated solely by a desire to increase bureaucratic power and influence. Consider this partial list of government activities: a) torturing children for lying; b) utilizing a prison designed and staffed specifically to suck all life and hope out of the inmates; c) placing citizens in that prison without a hearing; d) allows the death penalty without a trial; e) allowing the powerful, rich or famous to control policy and practice; f) selective prosecution (the powerful go unpunished and the unpopular face trumped-up charges); g) conducting criminal trials without independent defense counsel; h) using truth serum to force confessions; i) maintaining constant surveillance over all citizens; j) allowing no elections whatsoever and no democratic lawmaking process; k) controlling the press.

This partial list of activities brings home just how bleak Rowling's portrait of government is. The critique is even more devastating because the governmental actors and actions in the book look and feel so authentic and familiar. Cornelius Fudge, the original Minister of Magic, perfectly fits our notion of a bumbling politician just trying to hang onto his job. Delores Umbridge is the classic small-minded bureaucrat who only cares about rules, discipline, and her own power. Rufus Scrimgeour is a George Bush-like war leader, inspiring confidence through his steely resolve. The Ministry itself is made up of various sub-ministries with goofy names (e.g., The Goblin Liaison Office or the Ludicrous Patents Office) enforcing silly sounding regulations (e.g., The Decree for the Treatment of Non-Wizard Part-Humans or The Decree for the Reasonable Restriction of Underage Sorcery). These descriptions of government jibe with our own sarcastic views of bureaucracy and bureaucrats: bureaucrats tend to be amusing characters that propagate and enforce laws of limited utility with unwieldy names. When you combine the light-hearted satire with the above list of government activities, however, Rowling's critique of government becomes substantially darker and more powerful.

Furthermore, Rowling eliminates many of the progressive defenses of bureaucracy. The most obvious omission is the elimination of the democratic defense. The first line of attack against public choice theory is always that bureaucrats must answer to elected officials, who must in turn answer to the voters. Rowling eliminates this defense by presenting a wholly unelected government.

A second line of defense is the public-minded bureaucrat. Some theorists argue that the public choice critique ignores what government officials are really like. They are not greedy, self-interested budget-maximizers. Instead, they are decent and publicly oriented. Rowling parries this defense by her presentation of successful bureaucrats (who clearly fit the public choice model) and unsuccessful bureaucrats. Harry's best friend's Dad, Arthur Weasley is a well-meaning government employee. He is described as stuck in a dead end job, in the least respected part of the government, in the worst office in the building. In Rowling's world governmental virtue is disrespected and punished.

Lastly, Rowling even eliminates the free press as a check on government power. The wizarding newspaper, The Daily Prophet, is depicted as a puppet to the whims of Ministry of Magic. I end the piece with some speculation about how Rowling came to her bleak vision of government, and the greater societal effects it might have. Speculating about the effects of Rowling's portrait of government is obviously dangerous, but it seems likely that we will see a continuing uptick in distrust of government and libertarianism as the Harry Potter generation reaches adulthood.

Harry Potter, libertarian, bureaucracy

Abstract:
This empirical study attempts to answer an age-old debate in legal academia: whether scholarly productivity helps or hurts teaching. The study is of an unprecedented size and scope. It covers every tenured or tenure-track faculty member at 19 American law schools, a total of 623 professors. The study gathers four years of teaching evaluation data (calendar years 2000-03) and correlates these data against five different measures of research productivity/scholarly influence.

The results are counter-intuitive: there is either no correlation or a slight positive correlation between teaching effectiveness and any of the five measures of research productivity. Given the breadth of the study, this finding is quite robust. These findings are sure to spark heated debates among law faculties and likely require some soul-searching about the interaction between the two most important functions of American law schools.

Legal education, scholarship, teaching

Abstract:
The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories. The contributions of James Charles Smith and Danaya Wright address the depiction of families in the narratives and the limited role and development of family law. Benjamin H. Barton's contribution considers the failings of the formal source of legal authority in Harry's world, the deeply-flawed Ministry of Magic. Particular flaws are examined in the two subsequent contributions: Aaron Schwabach looks at the operation of the legal system through the lens of the unforgivable curses and contends that they show an arbitrariness contrary to the rule of law, while Joel Fishman explores the arbitrariness of punishment in the narratives. James Charles Smith's contribution explores ambiguities in the legal status and wizarding conventions applicable to house-elves, while Daniel Austin Green's contribution uses the narratives to explore the roles of excuse and justification in their relationship with legal authority and rule of law.

Timothy S. Hall's contribution shows how the rule used to free Dobby the house elf can be used as a pedagogical tool to illustrate the importance of intent in contract law, while Jeffrey E. Thomas's contribution suggests that the negative and satirical depictions of law and legal institutions helps readers to focus on the importance of individual accountability in making moral decisions. Andrew Morriss's contribution addresses the centrality of individual moral choice to the Harry Potter novels, particularly The Prisoner of Azkaban and The Goblet of Fire. The final entry, also by Timothy S. Hall, compares the Harry Potter narratives to the Dick Whittington story, showing an interesting cultural evolution from Tudor to modern times.

Children's literature, cultural studies, Harry Potter, humor, humorous, interdisciplinary, fantasy, law & literature, law & popular culture

Abstract:
This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure.

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice? The Article finishes with some of the ramifications of the lawyer-judge hypothesis, including brief consideration of whether our judiciary should be staffed by lawyer-judges at all.

judges, professional responsibility, legal malpractice, lawyers

Abstract:
This essay argues that law schools should adopt the business school case method. Business school cases are generally real life problems. They ask the students to read the files and then perform actual management tasks. The students also generally work in teams and are graded on their actual work throughout the semester. The students thus spend their time learning how to actually manage, instead of only learning dry management theory.

There are several advantages to the business school case method. The business school case method is much more focused on the actual process of being a business manager. By comparison, the law school case method focuses on the work of judges, not lawyers.

The team aspect of business schools is also preferable to traditional law school classes. Some lawyers practice solo, but a majority work in groups, and working on a team is a necessary (and largely untaught) legal skill.

Business schools also give students more regular feedback on their work, because each project/case is graded along the way. Business school grading is also much more rational than law school grading (and better approximates the experiences of MBA students when they graduate). This is because MBA students are graded on the strength of their actual work, not a single exam at the end of the semester. In sum, trading case methods with MBA programs might vastly improve the first year, and legal education as a whole.

business school case method, law school teaching

Abstract:
This essay directly confronts a key claim underlying calls for tort reform: that current product liability law negatively impacts innovation. It begins by outlining the current state of the product liability/innovation debate, and details the arguments and empirical evidence for and against a negative correlation. The essay then argues that when confronted by potential product liability entrepreneurial companies do not simply patch failed products, they fully rethink and redesign them. As such, product liability can actually spur innovation. The essay also indulges in a discussion of the economist Joseph Schumpeter's entrepreneurial mindset and a Calabresian argument that manufacturers are probably in the best position to innovate and "make lemonade" out of the lemons of design defects. The essay then applies these theories to playground design and argues that product liability law and heightened safety concerns have actually resulted in a quality revolution in public playgrounds. We have eliminated the stark and joyless concrete and steel "traditional" playground in favor of new playgrounds that are not only safer, but vastly superior on every count: more fun, more interactive, and more gauged towards play.

tort reform, innovation, playground design, law and economics

Abstract:
This Article uses public choice theory and the new institutionalism to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic, each is a former lawyer. This shared background has powerful and unexplored effects on the shape and structure of American law. This Article argues that the shared characteristics, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law. These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges may have a personal preference in the case that can be written-around by way of legal complexity; and c) the subject area interests the judge, or is generally considered prestigious. The Article uses the law of standing as a case study.

legal complexity, law and economics, public choice theory, new institutionalism, judicial behavior, standing

Abstract:
This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong on the merits, but is so bad that it is affirmatively dangerous and never should have been published. The efficacy of these arguments is crippled, however, by claim that the individual rights theory of the Second Amendment is fatally, obviously, and laughably wrong as a matter of constitutional theory, case law, and history. Unfortunately for Spitzer the Supreme Court held the exact opposite by a vote of 9-0 in District of Columbia v. Heller months after the publication of the book.

Further, Spitzer presents a remarkably weak case of causation between his alleged faulty scholarship and any resulting governmental actions. Even if Spitzer is correct that the scholarship he highlights is fatally wrong, it is quite a leap to say that this scholarship caused executive branch actions like George W. Bush's claim of expansive executive powers after 9/11 or George H.W. Bush's claim of an inherent line item veto.

political science, constitutional law, heller

Abstract:
In this Article I argue that there was once a single animating goal for American legal ethics - providing moral, ethical, and practical guidance on practicing law. Throughout the 20th Century lawyer regulators worked to bisect that goal, and we now have two quite distinct, and frequently conflicting goals. On the one hand, bar regulators pushed ceaselessly to narrow the regulations governing lawyer conduct to black-letter minimum, and eliminated the broadly moral from the Rules. On the other hand, bar regulators sought to raise lawyers' ethical and moral standards through professionalism and other non-mandatory efforts.

These bisected goals clash in several notable ways. First, separating the mandatory from the hortatory creates cynicism about both projects. Second, theorists have long argued that criminal prohibitions are most effective when they overlap with commonly held morality, because people tend to obey those laws regardless of enforcement. As lawyer regulators have eliminated the broadly moral from the Rules of Professional Conduct they have greatly decreased the odds of compliance, since lawyers will not feel ethically bound to obey, and lawyer regulations are notoriously under-enforced. Lastly, black-letter rules trigger a particular lawyer heuristic I call "boundary seeking." Lawyers are trained to find the border between the legal and the illegal, and this heuristic replaces any broader ethical consideration. I suggest eliminating these inconsistencies by returning to the original, unitary goal of legal ethics, and redrafting a general statement of ethical, moral, and practical principles to govern the legal profession, i.e. we should return to the approach of the ABA's 1908 Canons of Professional Ethics.

Legal ethics, professional responsibility, American Bar Association