Reading List

Wydick, Perschbacher, Bassett, California Legal Ethics, Thomson/West, 2005, 417 p. (I read the Fifth Edition). Each Chapter is followed by a Multiple Choice Questions. Very useful to be prepared for the California MPRE.

Ruth Ann McKinney, Legal Research: A Practical Guide and Self-Instructional Workbook, Thomson/West, 2003, 310 p. (I read the Fourth Edition, and the Fourth Edition as well of the Computer-Assisted Legal Research Problem Set written by Phillip K. Woods, Thomson/West, to accompany the McKinney's book).

E. Scoles, P. Hay, P. Borchers, S. Symeonides, Conflict of Laws, Thomson/West, 2004, 1565 p., I read the Forth Edition, instructing and useful because describing at the same time the conflicts between laws of the different states of the U.S., and the problems of conflicts with which we are more familiar in our civil law countries. Are thus analyzed problems linked to personal, general and specific jurisdiction in the diverse fields of the law, problems related to tort, contract, statutory cases, domestic relationship, marital property, succession, trusts and powers of appointment, probate and administration of estates, corporation, bankruptcy, procedure (notice, service abroad, taking evidence abroad, proof of foreign law), recognition and enforcement of foreign judgments and decrees, and an appendix about researching conflict of laws.  

John Dawson, William Burnett Harvey, Stanley Henderson, Contracts, Cases and Comment, Foundation Press, 2003 (975 p.).
I read that Eight Edition, which provides a fascinating journey through the Common law of contract sorting its most famous cases during the past years, shedding light on and making much more understandable contract law for lawyers legally raised in Civil law countries. The book describes remedies for breach, limitations on expectation damages, alternative interests like reliance and restitution, enforcement in equity, reliance on a promise, precontractual obligation, conduct concluding a bargain, the effects of adopting a writing, standardized forms, revision of contractual duty, mistake, misrepresentation, warranty and nondisclosure, changed circumstances justifying nonperformance, unconscionable inequality, express conditions, constructive conditions, third party beneficiaries, assignment of rights and delegation of duties. If one case only has to be read, can be mentioned Wood v. Lucy, Lady Duff-Gordon (Court of Appeals of New York, 1917, 222 N.Y. 88, 118 N.E. 214), p. 298, with as a background the ill-fated liner Titanic. 

Charles Fried, Contract as Promise, A Theory of Contractual Obligation, Harvard University Press, 1981 (162 p.): positivism and the separation of law and morals, the moral obligation of promise, remedies in and around the promise, consideration, offer and acceptance, mistake, frustration and impossibility, good faith, duress and unconscionability. Of special interest: utilitarian injunction v. moral obligation of promise, culpa in contrahendo and reliance damages (p. 24), doctrine of consideration deemed unfortunate (p. 25, 35, 37, 42, 45, 48), mailbox rule (p. 50), the doctrine of substantial performance as a refinement of a concept of conditional obligation (p. 121), priority between the restitutionary and the promissory principles (p. 126), waiver and estoppel (p. 130).

Prof. Anupam Chander, Law of E-Commerce, Course Reader, UC Davis, Spring 2010, 561 p., covering law to be applied, personal jurisdiction, domain names, trademarks v. domain names, balancing copyright and freedom, liability of intermediaries for copyright infringement, access to databases & computer systems, privacy, defamation, discrimination & other offenses, contracting in Cyberspace, is Cyberspace a tax-free zone? 

Ralph Folsom, Michael Gordon, John Spanogle, Principles of International Business Transactions, Trade & Economic Relations, Thomson West, 2005, 771 p., brings the frame and principles of international sales law, commercial terms, Bills of Lading, sales agent and distributorship agreements, documentary letters of credit, standby letters of credit, international e-Commerce, role of WTO and IMF, U.S. tariffs and duty free imports, customs classification, valuation and origin, antidumping duties, subsidies and countervailing duties, U.S. export controls, foreign corrupt practices and illegal payments abroad, Free Trade Agreements, franchising and trademark licensing, patent and knowhow licensing, counterfeit, infringing and grey market imports, investing in Europe, investing in NAFTA, international litigation.

Michael Asimow, Marsha Cohen, California Administrative Law, West Group, 2002, 324 p., very comprehensive, and we find out eventually that the system is not so far from our own in a Civil law country like Switzerland. Covers constitutional and political controls on agencies, the difference and importance of rulemaking v. adjudication, judicial review, open government laws, administrative regulations and adjudication (general provisions & statutes), formal hearing during administrative adjudication. Of interest: California Public Records Act, with the exemptions from disclosure.

Alain Cortat, Un cartel parfait, réseaux, R&D et profits dans l'industrie suisse des câbles, Editions Alphil, Presses Universitaires Suisses, 2009 (623 p.): "Il s'agit d'aborder le sujet du point de vue de l'entreprise et non pas de présenter une description générale des cartels. L'interrogation porte en premier lieu sur le contexte qui a permis le développement des cartels, notamment l'importance des réseaux d'actionnaires et leurs liens avec le monde politique. L'étude se concentre ensuite sur l'organisation et le fonctionnement de ces cartels. Puis l'analyse s'intéresse aux effets des cartels sur la R&D et la politique d'innovation. Est-ce qu'une entreprise dont les marchés sont cartellisés continue à innover ? Si oui comment ? Enfin, nous analysons les effets des cartels sur les profits et la politique de distribution de ces profits par les firmes. (...) La troisième partie analyse la structure des cartels auxquels participent les (...) entreprises. On retrouve là toutes les formes et tous les modes d'organisation propres à ce système : cartels verticaux, horizontaux, nationaux, internationaux, comptoirs de vente et d'exportation, contingents, contrôles des prix, contrôle de l'innovation technique, etc." (p. 23).

History and Ideas

William Rehnquist, The Supreme Court, Random House, Inc., New York, 2001 (302 p.): an accessible history of the Supreme Court of the United States, which offers an understanding of the role of the Supreme Court in American government, in political and economic context. Written by the Chief Justice who had served right before the one currently at the helm. C.J. Rehnquist started as a law clerk to Justice Robert Jackson in 1952, who was the Chief U.S. prosecutor at the Nuremberg trials. When C.J. Rehnquist reported to work as a law clerk, he had done “no work at all in the field called “federal jurisdiction”, which dealt with the niceties of when a case might be brought in federal court as opposed to state court”. For him, “it was obviously going to be on-the-job training”, with the ability to “being able to pick up whatever knowledge was necessary in that field” (p. 8).

Apart from the main historical topics of the book, these are some randomly chosen quotes of interest or of unusual flavor that I do like (and share):

“In the law, the power of clear statement is everything” (quot. J. Story, p. 42).

“C.J. Roger Brooke Taney realized that constitutional law required vision and common sense as well as careful legal analysis” (p. 69).

About Justice Samuel Miller (served from 1862-1890): “Miller’s great gift, a gift not so fully vouchsafed to some of his more learned colleagues, was that of common sense. It may seem odd in a profession that now requires four years of college and three years of law school even to qualify to attempt to pass a bar examination and gain admission, that common sense should be rated so highly as an attribute of a judge. But it has been well said that legal education sharpens a person’s mind by narrowing it, and in the battle of opposing counsel, each of whom seeks to deduce an opposite conclusion from the same premise, a good judge must at every moment be willing to call a halt and say to the advocate: “Your argument is perfectly logical, but the result for which you contend seems to me absurd”. In an area when the weight of already decided cases had a good deal more authority than it does now, Miller never hesitated to take this approach. He was able to emancipate himself from currently fashionable intellectual dogma, which possessed much of his profession and many of his colleagues, and thereby to establish his reputation as one of the great justices who has served upon the Court” (p. 99).

“It would be foolish for a lawyer to stand before an appellate court with nothing written out to guide his presentation, but the use of notes for reference conveys a far different effect from the reading of a series of typed pages.  (…) to establish eye contact with as many of the judges as possible, and this simply can’t be done while you are reading your presentation. (…) but simply showing how well you know your subject is not the same as convincing doubters by first carefully listening to their questions and then carefully answering them” (p. 246-247).

Home office: not a new concept: “When the new Supreme Court building was first opened at the beginning of the October 1935 term, the justices had been used to working in their homes. They would come to the courtroom in the Capitol building to hear oral arguments and to hold conferences, but they had law libraries in their homes and did their preparation for argument and conference there. The members of the Court were quite reluctant to abandon these arrangements in 1935, and many of them continued to work out of their homes” (p. 229).

Whether the Constitution applies in time of war: “The Constitution of the United States is a law for the rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government (Ex Parte Milligan, 4 Wallace 2, 71 U.S. 281, 295 (1866)”, opinion written by J. David Davis) (p. 77).

Equity: “In order to persuade a court to “enjoin”, or prohibit, the executive from doing something, the victim of an executive action which is claimed to be illegal must show not only that it is illegal but also that he will suffer “irreparable injury” – that is, injury that could not be compensated for by the recovery of damages in an ordinary lawsuit tried before a jury  - and that he has no “adequate remedy at law”. These technical-sounding terms boil down to something more understandable in their historical context. When the English court system originated in the Middle Ages, the first set of courts to be developed were called “courts of law”, where there were jury trials and awards of damages, and where the governing legal rules were applied in a rather hard-and-fast manner. To mitigate the harshness of some of the results reached in the common-law courts, the king’s chancellor began dispensing a second brand of justice known as “equity”. An injunction – which is nothing more than a court order directed to a party and requiring the party either to do something or not to do something – was a creature of the courts of equity, and because of this, one was never automatically entitled upon a showing of a particular set of facts to obtain an injunction; it was a matter of discretion with the court, based on a careful weighing of all the surrounding circumstances”. (p. 157-158).

About Justice Stephen Field (5th Chief Justice of the Supreme Court of California, appointed to the U.S. Supreme Court in 1863 by Abraham Lincoln): after having practiced law in New York City till 1849, “attracted by the lure of the California gold rush, he sailed for California by way of the Isthmus of Panama. He landed in San Francisco after a six-week journey, and after a very short stay took passage on a boat sailing up the Sacramento River to Marysville, a frontier town located above Sacramento on the river. Things were definitely primitive in Marysville; Field was elected Alcalde, or magistrate, after he had been there only three days, defeating another candidate who had arrived only the day before. In 1850 he was elected to the California legislature and there played a major part in enacting a modified version of the Field Code – named for David Dudley Field, who had procured the adoption of a similar Code in New York – in California. He engaged in a successful law practice in Marysville during the 1850s until in 1857 he was elected to the Supreme Court of California and gave up his law practice. He was apparently earning an income of $40,000 a year at this time, and exchanged it for a salary of $6,000 a year. At that time the Chief Justice of the Supreme Court of California was David Terry, a hot-blooded southerner with whom Field would have more than one confrontation later in his life. In 1859 Terry resigned from the court and shortly afterward killed California senator David Broderick in a duel” (p. 72-73).

James A. Baker, III, The Politics of Diplomacy, G.P. Putnam’s Sons, NY, 1995 (687 p.): a very interesting book about the foreign relations of the United States between 1989 and 1992, written by the then U.S. Secretary of State. This book could also have been titled “The Art of Negotiation”, or “How to Best Secure a Fair Deal”, considering the outstanding achievements of its author, helped in his numerous tasks by his friendship and strong ties with the U.S President George H. W. Bush and personalities like Eduard Shevardnadze, then foreign minister of USSR under Mikhaïl Gorbatchev. At State, included in the inner circle were the well-known Robert Zoellick and Dennis Ross, still writing authoritative opinions in today’s newspapers, and the late Lawrence Eagleburger.

The main issues of those days on the international stage were about the first Gulf War (after the invasion of the Kuwait (by its size and by the might of its military powers counting as a small country within UNO, like Switzerland) by Saddam Hussein’s regime), the fall of the Berlin wall, the unification of Germany, Soviet-American relations before, during and after the demise of the USSR, securing a smooth transition of the regime while working with Boris Yeltsin, avoiding a collapse in the released former Soviet Republics, then supporting freedom in those new independent states and in the newly independent Russian Republic, avoiding a loss of control over nuclear warheads or a spread of those, including the brain-drain problem, the Middle east peace process, discussions with Nelson Mandela and Frederik de Klerk linked to the end of Apartheid in South Africa.

These are just some quotes of interest:

“If I took your gloomy view, I should commence immediate inquiries as to the most painless form of suicide. But I think you listen too much to the soldiers. No lesson seems to be so deeply inculcated by the experience of life as that you never should trust in experts. If you believe the doctors nothing is wholesome; if you believe the theologians nothing is innocent; if you believe the soldiers nothing is safe. They all require to have their strong wine diluted by a very large admixture of insipid common sense (Lord Salisbury in a letter to Lord Lytton, Viceroy of India, June 15, 1877” (p. 37).

In the late eighties, Central America was a main concern. “No other foreign-policy issue was so visceral or polarizing. For much of the decade, it had been the Holy Grail of both the political left and the right. To the conservatives, the Sandinistas were a Soviet beachhead in Central America, and the Monroe Doctrine required their removal. But Democratic opposition to President Reagan’s preference for a military solution had resulted in 1983 congressional prohibitions against direct or indirect lethal aid to the contras. An effort to circumvent these bans in turn spawned the disastrous Iran-contra affair, which, when it was disclosed in 1986, diminished the Reagan presidency and left President George H.W. Bush a legacy of enormous suspicion and distrust (…) I was heartened by what seemed to be a genuine sense of good will toward the President-elect. “You have a great chance to reinvigorate a bipartisan foreign policy”, Senator Joe Biden told me. “Everybody here likes you and George H.W. Bush – in spite of your tough campaign. We respect for you both. I want you to know I’m ready to be enlisted in a bipartisan foreign policy approach”. Biden added that he wanted to work with me to create some mechanism for closer consultation with the White House on foreign policy matters (…) We reached out to former President Jimmy Carter, in particular, who played a crucial role as head of the Carter Center, reinforcing in the clearest terms our commitment to a bipartisan policy. Carter helped convince Daniel Ortega to accept his electoral defeat, and telephoned me with that good news at 4:15 a.m. on the morning of February 26, 1990” (p. 48-49, 60).

First meeting with Israel Prime Minister Yitzhak Shamir on April 5, 1989: “Mr. Prime Minister, we both know that the media like to pigeonhole people with catchphrases. You’ve been described to me as a man of principle who is incapable of being practical. I’ve probably been described to you as a man totally lacking in principle who cares only about being practical. Let me tell you, like you, I’m very much a man who believes in principle, but I also think you have to be practical if you are going to realize your principles. I also suspect you’re more practical than your reputation. I think that you and I may be able to surprise some people by working together” (p. 119).

“Traditionally, the Saudis preferred a certain timidity in these peace-process matters, but as the King began responding to my remarks, I sensed a sea changed in his tone, a confidence that had not been present during my four meetings with him during the crisis. For the first time, he seemed prepared to adopt a leadership position on the peace process. He confided something I had never heard from him before: if a homeland could be found for the Palestinians, he was prepared to approve full economic and diplomatic relations with Israel. “What you have just said, Mr. Secretary, is what is in my heart”, he replied. “I want once and for all to reach a settlement of the Arab-Israeli problem. The Palestinian-Israeli problem is the main headache in the region, the crux of all our problems. It gives Saddam and others, like Qaddafi, material on which to promote themselves. It should no longer linger on. It must be solved” (p. 418-419).

“(…) One of my own cardinal precepts of negotiating. I react poorly when an interlocutor reopens an item that’s already been resolved. I do not believe in that – a deal is a deal” (p. 463).

Eduard Shevardnadze’s declaration, Washington, September 21, 1989: “We fought together in World War II – we saved civilization. Reforms are now covering everything in the USSR. We are a union of fifteen states and of diverse nationalities. Now, we have a nationalities policy that will enable us to stabilize things. Each republic is sovereign and self-managing – or will be (…) We are working to overcome the incompatibility of our economic system with those of Western countries. We want economic cooperation. Perestroika will succeed” (p. 144-145).

On May 4, 1990, “The President’s speech, that day, had been designed to show Moscow that we were moving forward with a serious effort to make NATO more of a political alliance and to strengthen  CSCE. The President had also written Manfred Woerner to begin an intra-alliance process to change NATO – a process we intended to complete at a NATO summit by early summer. We wanted that meeting to showcase how much NATO had changed – and provide Gorbachev and Shevardnadze ammunition against their domestic critics (fn. p. 246).

“While the Commonwealth was young – Boris Yeltsin had told me in Moscow that it was a “fragile infant” – it had been effective in reducing disputes among the republics. “We won’t allow conflicts between us and Ukraine”, he pledged. “We seek to be flexible and not push Ukraine around”. Yeltsin later noted that there were 11 million ethnic Russians in Ukraine and said, “I don’t think Ukraine will take any sharp turns due to this fact.” He also said that Ukraine was the “main destabilizing factor”, but stressed his good personal relations with Kravchuk. “I talk constantly with him by phone” (p. 624).

About letting Saddam know what to expect in case of an invasion of Kuwait: “We still hoped the crisis could be defused. On July 28, 1990, the NSC staff drafted, and State routinely cleared, the following presidential message to Saddam: “I was pleased to learn of the agreement between Iraq and Kuwait to begin negotiations in Jeddah to find a peaceful solution to the current tensions between you. The United States and Iraq both have a strong interest in preserving the peace and stability of the Middle East. For this reason, we believe these difficulties are best resolved by peaceful means and not by threats involving military force or conflict”. It’s clear this message was not sufficiently firm and, coming three days after Glaspie’s meeting, may have been interpreted by Saddam to mean that we weren’t overly concerned” (p. 272). (The invasion took place August 2, 1990).

Haiti: taking what democracy gives you: “ My position was simple: if you support democracy, you support what democracy brings you, so long as the process is free and fair, and the victors are not clearly bent on using the electoral process simply to gain power and then in effect destroy democracy by establishing authoritarian rule. By his resounding 67 percent margin of victory, for better or worse Aristide embodied the democratic concept  - even if it could be argued that he himself was something less than the perfect embodiment of that concept” (p. 601-602).

The economics of diplomacy: “The administration moved quickly on the economic front. During the transition and early in 1989, Brent Scowcroft and I worked with Federal Reserve Chairman Alan Greenspan and Treasury Secretary Nick Brady to craft a plan to reduce the burden of debt in the Third World, especially in Latin America. Brady’s plan differed in detail from the strategy we pursued under the Reagan administration – the so-called Baker plan – which had extended the maturities of existing loans and offered additional ones. The new plan emphasized debt forgiveness. Both, however, shared a fundamental tenet: relief was linked to reform. By August, Mexico had negotiated important debt relief under the Brady Plan. Other Latin American nations were to follow” (p. 606).

“In June of 1989, as Secretary of State, I recommended that President Bush announce a unilateral U.S. ban on the importation of ivory. This initiative paved the way for the international ban that was agreed to at the October 1989 meeting of the Convention on International Trade in Endangered Species in Lausanne, Switzerland. I also urged the Department of Defense to provide surplus Army helicopters to Kenya to help in Dr. Richard Leakey’s fight against elephant poachers. When prohibitive maintenance costs made that idea unfeasible, I directed that $2 million in Agency for International Development funds be given to the Kenyan Wildlife Service instead” (fn. p. 218).

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