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March|April 2005
Pop Con By David A. Strauss
Lawyers, Unite By Scott Cummings and Ingrid Eagly
Elsewhere
America the Mercurial By Michael Ignatieff
Asking for Trouble By Phillip Carter

Elsewhere

American contracts are wordy, D.C. crooks are savvy, prosecutors are greedy, and law professors footnote their alpacas. These and other happenings from the nation's law reviews.


SPRECHEN SIE CONTRACTS?

In the United States, business contracts frequently contain hundreds of pages—James C. Freund, a top New York mergers and acquisitions lawyer, refers to his work product as the "three-pound acquisition agreement." Lawyers say that contracts are lengthy because the contracts have to sweat the details if clients are going to get exactly the deal they want. But a recent article in the Chicago-Kent Law Review argues that all those extra pages may not actually be helping clients. "How Do German Contracts Do as Much With Fewer Words?" compares American business contracts to their terser counterparts in Germany. Claire A. Hill and Christopher King conclude that German contracts work just as well, and at a fraction of the length.

The authors make a compelling case that the billable hours it takes American lawyers to write up prolix contracts often cost Americans more in fees than it would cost to go to court to resolve an ambiguity. Yet Hill and King are pessimistic that American lawyers will soon be cured of logorrhea, a problem they see as endemic to the country's legal system. German commercial law often provides uniform solutions to common disputes, meaning that specific German contracts can refer to general laws about issues, where U.S. contracts need to spell out the rules. There are social forces at play as well. German corporate lawyers find it impolite to be too pushy in contract negotiations; even though they bill by the hour and have an incentive to stretch out the work, they are quicker than U.S. lawyers to quit negotiating and advise their clients to sign.

Another pair of scholars is at work comparing the length of legal documents in different countries, but on a broader scale. Professors Robert Cooter and Thomas Ginsburg are writing a book on a subject they call "leximetrics." Their research finds that dramatic differences in the lengths of contracts and laws are quite commonplace in comparisons of countries with different legal histories. Their work examines the length of similar laws in different European countries and finds that British laws tend to be about three times the length of German ones and nine times as long as laws in Norway.

As Hill and King's article suggests, there's no reason to think that British laws work better than their counterparts in Norway just because they are longer. But longer laws do seem to have a cascading effect throughout a country's legal system. Countries with longer laws tend to have longer contracts, longer civil codes, and longer judicial opinions. These countries also tend to have more lawyers per capita. Someone has to read all that stuff. Chicago-Kent Law Review, Volume 79, Number 3; Illinois Law and Economics Working Papers, Number LE-012

THE PHILIP K. DICK SCHOOL OF LAW

In Steven Spielberg's film Minority Report, crime fighters of the future specialize in catching criminals before they act. The tactic relies on technologies available only in the science fiction of Philip K. Dick, the novelist whose work the film adapted. Yet the idea of predictive punishment has captured the imagination of law professor Christopher Slobogin. In "The Civilization of the Criminal Law," he suggests an approach to criminal justice that focuses on the future, now. In his proposed system, criminals like repeat sex offenders could get life sentences. Perpetrators of crimes of passion, meanwhile, might be set free, assuming they were found to be unlikely to offend again. How would these determinations be made? Slobogin is vague on who will do the determining, but his paper suggests that psychologists should bear the brunt of predicting the future, making it about as likely to be realized as one of Dick's dystopian visions.

That said, at least one state has taken Slobogin's thought, if not his approach, to heart. For several years, the Commonwealth of Virginia has used a statistical system to predict the likelihood of recidivism. Judges are encouraged to consult a checklist of defendant characteristics, like age, gender, and employment status, designed to predict the odds of future offenses. Low-scoring defendants are able to avoid jail time while those with high scores get stiff sentences. The system has succeeded in reducing the number of criminals sent to jail; whether it is constitutional remains to be seen. Vanderbilt Law Review, Volume 58, Number 1

THE DATA ON THE DISTRICT

When the Department of Homeland Security unveiled its color-coded threat level system in early 2002, Washington, D.C.'s police department developed its own terrorism response system, intended to increase security measures in the capital when the threat level was elevated. Though the police department has been cagey about releasing the details of its system, unofficial data suggest that elevated threat levels correspond with a 50 percent increase in the number of police on the streets of the city—with most of that increase focused in the neighborhood of the National Mall, where government offices are concentrated.

Between March 2002 and July 2003, there were four "orange alerts," and with each alert, the D.C. police department dispatched reinforcements. A forthcoming paper from the Journal of Law and Economics scrutinizes these fluctuations in the police presence and examines how the increases affected the incidence of crime unrelated to terrorism—muggings, murders, and other conventional mayhem.

Though it seems intuitive, there has been little research to prove that having more police on the beat makes for a safer city. What's more, the studies that have examined the relationship between cops and crime, lacking orange alert-like controls, have usually supported the opposite conclusion: Neighborhoods with more police tend to be more dangerous. But Jonathan Klick and Alexander Tabarrok's paper shows that, in D.C. at least, the addition of more police officers translated into a significant decline in crime. Around the National Mall, orange alerts corresponded with a 15 percent drop in crime. Auto thefts plummeted 43 percent.

For criminals not deterred by the heightened police presence, a second article in Law and Economics suggests another reason not to commit a crime in the nation's capital. "Salaries, Plea Rates, and the Career Objectives of Federal Prosecutors" finds that prosecutors are significantly more likely to bring cases to trial in cities like Washington, D.C., than in places with fewer high-paying private sector jobs. In regions with competitive markets for lawyers, the men and women who choose jobs as prosecutors tend to be better credentialed than those in uncompetitive markets. Even though government salaries are comparable across the country, Richard T. Boylan and Cheryl X. Long's study shows that prosecutors' offices have better luck recruiting the best and brightest—and harnessing a more ambitious work ethic—if the local for-profit competition pays better.

The authors speculate that the higher trial rates arise because prosecutors who work in these competitive markets see their government jobs as opportunities to get trial experience that will make them more desirable on the open market—a theory bolstered by the high turnover rates for prosecutors in places like Washington, D.C. In other words, a significant gap in pay between public and private sector jobs seems to have a silver lining for prosecutors' offices by indirectly helping attract elite young lawyers. But the odds are they won't stick around for very long. Journal of Law and Economics, Volume 48, Number 1

EVERYTHING YOU EVER WANTED TO KNOW ABOUT*

Usually, readers of law review articles don't have to wait long to get a sense of the professor behind the scholarship. A law review article's first footnote, marked by an asterisk, will lead to a paragraph that is part Acknowledgments and part About the Author. To discover the identity of Charles A. Sullivan, however, readers of his recent Georgetown Law Review article have to turn to the last page. There, a footnote marker, in the form of a smiley face, leads to a short note thanking his research assistants and explaining that Sullivan is a law professor at Seton Hall who went to Siena College (undergrad) and Harvard (law school). Sullivan's burying of his biography is not an act of humility, but rather an homage to an earlier convention: Until almost 60 years ago, the article reports, bylines were often reserved for the final page of law review articles.

Sullivan's article, "The Under-Theorized Asterisk* Footnote," chronicles the evolution of a convention "used by every scholar but analyzed by none." As Sullivan noted to Elsewhere in an e-mail message, "It's a tongue-in-cheek effort." He has taken his silly scholarship seriously, however, carefully documenting the rise of the asterisk footnote, which has gone from relative obscurity to standard practice and has grown from modest to mammoth proportions.

The asterisk footnote made its first appearance in the Harvard Law Review in 1939; by the mid-1960s, it was widely employed; by the 1990s it had taken on a life of its own. Sullivan has collected specimens that acknowledge dozens of collaborators and readers, ones with dedications to inspirational figures in the lives of the authors, ones with extended thank-yous to family members, and, in more than one instance, pets. Rebecca J. Huss's recent article in the Loyola University of Chicago Law Review, for one, uses the asterisk footnote to honor the memory of "Cornelius von Owen, the most hopeful dog I have ever known." An asterisk note in the UCLA Women's Law Journal notes, without further comment, that "Robert Seibel and his wife own four llamas and an alpaca among their menagerie of pets."

The "theory" of the article is that all the bragging, thanking, and acknowledging is a way to signal to law review editors just how important a piece really is. Sullivan thinks the editors fall for the trick. Why else would there be articles that cite "51 individuals, 23 conferences and workshops (in at least three countries), and 34 research assistants"? Sullivan found that footnote in a 2000 volume of the Harvard Law Review—from which his own scholarship, no doubt modestly footnoted, was rejected. Georgetown Law Journal, Volume 93, Number 2

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