ARTHUR D. AUSTIN
Edgar A. Hahn Professor of Jurisprudence
Case Western Reserve University
Franklin Thomas Backus School of Law
11075 East Boulevard
Cleveland, Ohio 44106
Phone: (216) 368-3289
J.D. Tulane University (1963). Judge, Tulane Moot Court.
B.S. University of Virginia (1958).
B.S. in Commerce "With Distinction;" Beta Gamma Sigma (honorary commerce
society) for top 5% of the Class; Wickliffe Yulee Scholarship (awarded by the
Department of English on a competitive basis for creative writing).
University of London, Summer School in Literature and Art in Georgian England 1740-1830,
Certificate of Completion (1957).
MILITARY SERVICE: Army, 1952-54, service in Korea. 32nd Infantry Reg., 7th Infantry Div.
Sergeant, Combat Medic Badge, Purple Heart, Bronze Star with "V". Order of the Bayonet.
See News & Views, Veterans of the 32nd Infantry Regiment, p. 22-24 (12/06).
ADMITTED: Virginia (1964); U.S. District Court, Northern District of Ohio (1968);
District of Columbia (1971).
PROFESSIONAL BACKGROUND: Department of Justice (on temporary leave of absence with
the Policy Planning Section, Antitrust Division, Washington, D.C.), 1970-71.
TEACHING POSITIONS: School of Law, Case Western Reserve University, 1968-present.
School of Law, Cleveland State University, 1966-68.
Bowling Green State University, 1964-66 (Business Administration – Business Law).
College of William & Mary, 1963-64 (Business Administration – Marketing and
SUBJECTS: Antitrust, Intellectual Property (Patents, Copyright, Trademark), Contracts,
Antitrust and International Competition, Trends and Tensions in Legal Education, Unfair
CHAIR: Appointed first Edgar A. Hahn Professor of Jurisprudence by the Board of Trustees,
Page 1 of 18
Case Western Reserve University, July 1, 1978.
CANARY LECTURESHIP: With Mrs. Canary, originated and implemented the Sumner Canary
Lectureship. Speakers include Jeane Kirkpatrick (First American Woman U.N. Ambassador),
Justices O’Connor, Scalia, and Chief Justice Burger. Member, Advisory Committee, Sumner
Canary Lectureship Fund of The Cleveland Foundation.
CWRU LAW SCHOOL AWARDS: Elected member, CWRU Chapter of The Order of the Coif,
June 11, 1969; Alumni Distinguished Teacher, 1987; The Daniel Webster Award, presented
by the Class of 1991; First Year Professor of the Year, presented by the Class of 2002.
CONSULTING: Private consulting in Antitrust and Commercial Law (Contracts). Jury
research and surveys of hung juries in complex antitrust litigation, including City of
Cleveland v. Cleveland Electric Illuminating Co. (two trials – hung jury, verdict for
defendant) (1981); MDL New Mexico Natural Gas Antitrust Litigation, 607 F.Supp. 1491
(D. Colo. 1984); Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. 1990-2 Trade
Cas, 69, 182 (MD, N.C., 1990). For jury publications see p. 7, infra.
LEGISLATIVE TESTIMONY – Subcommittee on Monopolies and Commercial Law – House
Judiciary Committee, July 1, 1976; (Written Statement Submitted.) Fed. Communication
Com., Cross-Media Ownership, July 1974. (Written Statement Submitted.)
OTHER ACTIVITIES: Presentations to law firms and other professional venues, participation
in interdisciplinary programs, service on University committees, etc. Media consultant on
various legal issues. Arbitrator, American Arbitration Association. Commissioner, Phlegm
Snopes Basketball Tournament, 1984-93.
COMMENTARY ON PUBLICATIONS:
My publication trail recognizes the ongoing transformation of Legal writing through
successive paradigms – formalism, doctrinalism, postmodernism, to the recent experiments
with blogging and texting. Meanwhile the AALS endorses scholarship anarchy:
“The school should commit itself to avoiding prejudice against any particular methodology
or perspective used in teach or scholarship. When evaluating any work embodying innovative
or less widely pursued methodologies or perspectives, the standard should be neither higher
no lower than the standard used for evaluating more traditional work.” Report of the AALS
Special Committee on Tenure and the Tenuring Process, LEG. EDUC. 477, 505 (1992).
It is the Law Academy's commitment to the deconstructive fashions of indeterminacy that
accounts for the judiciary's failure to rely on law review articles for guidance and advice.
The traditional dedication to Linear problem solving and parsing complicated issues has been
ambushed by narratives, theoretical bombast, blogging, and most recently – the twitter
subversion. The net effect of a mushy evaluation process is the erosion of the Academy's
authority to influence the direction of Law.
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(L): Denotes Lead Article
Antitrust 3 Deconstruction 14
Jury Research 7 Etcetera I 15
Contracts 9 Etcetera II 17
The Law Academy 9 Etcetera III 17
Law Narratives: Storytelling 13 Dos Passos & Faulkner Visit U.Va. 18
ANTITRUST: LAW, ECONOMICS, POLICY (Matthew Bender, 1976).
A Price-Fixer's Memoir: Exculpation And Revenge While Confronting The Antitrust
Abyss, Antitrust Source, www.antitrustsource.com, Oct. 2008. Ivy League Price-Fixing:
Conflict from the Intersection of Education and Commerce, (L) 21 Journal of Legal
Commentary 1, (2006). Adam Smith on the Inevitability of Price Fixing, (L) 55 Case
Western Reserve U. L. Rev. 501 (2005). Antitrust Deconstructed, 22 Stetson L. Rev.
1101 (1993). Antitrust Reaction To The Merger Wave: The Revolution vs. The
Counterrevolution, 66 N.C. L. Rev. 931 (1988). City of Cleveland Electric Illuminating
Co.: Monopolization, Regulation and Natural Monopoly, 13 Toledo L. Rev. 611 (1982).
The Legality of Ticket Tie-Ins In Intercollegiate Athletics, 15 U. Rich. L. Rev. 1 (1981).
The National Commission for the Review of Antitrust Law and Procedures: Reports on
Symptoms But Ignores Causes, 54 Notre Dame Law 873 (1979). Negative Effects From
Treble Damage Actions: Reflections On The New Antitrust Strategy, 1978 Duke L.J.
1353. Reprinted in 21 Corp. Prac. Commentator 574 (1980), 26 J. Reprints for Antitrust
L. & Econ. (1996). The Individual Coercion Doctrine In Tie-In Analysis: Confusing and
Page 3 of 18
Irrelevant, (L) 65 Calif. L. Rev. 1143 (1977). Cited 557 F. Supp. 739, (D.C. Houston
1982). 660 F.2d. 1123, 1130 (1981). 1981-1 Trade Cas, (CCH) p 63, 976 (1980). 475
F.Supp. 973, 988 (1979). Reprinted in Corp. Couns. Ann. – 1978 at 485. Statement
Submitted to the Subcommittee on Monopolies and Commercial Law, Hearings, 94th
Cong., 2nd Sess., July 1, 1976, #41. (Testified at invitation of Chairman Peter Rodino).
The Credibility of a Television-Newspaper Advertising Relevant Product Market, 27 Fed.
Comm. B.J. 251 (1974). Reprinted in Advertising Law Anthology, Vol. III 1975-76, at
191). Critical Review: Justices' Theory On Crossownership Doesn't Fit Facts, Study
Asserts, Broadcasting, July 15, 1974; The Hard Choices FCC Now Confronts on
Crossownership, Broadcasting, Aug. 5, 1974.
A New Antitrust Problem: Vertical Integration In Correspondent Banking (with
E. Solomon), 122 U. Pa. L. Rev. 366 (1973). Cited 422 U.S. 86 (1975). 535 F.2 1010
(1976) at 1012. The Antitrust Threat to Real Estate, 2 Real Estate Rev. 9 (1973). The
Emergence of Societal Antitrust, 47 N.Y.U. L. Rev. 903 (1972). The Antitrust
Implications of Compensating Balances (with E. Solomon), (L) 58 Va. L. Rev. 1 (1972)
Reprinted in 89 Banking L.J. 675 (1972). Cited 503 F.2 114 (1974) at 119. Real Estate
Boards and Multiple Listing Systems as Restraints of Trade (L) 70 Colum. L. Rev. 1325
(1970). Reprinted in N.Y. L.J. (Mar. 1971). Cited 629 F.2d 1351 (2007) at 1368, 1369,
1370, 1372, 1374, 1376, 1378, 1386. 783 F. Supp. 952 (1992) at 959, 962. 934 F.2d 1566
(1991) at 1580. 707 F. Supp. 111 (1988) at 115. 136 Cal. App. 3d 534 (1982) at 538.
692 P.2d 1055 (1984) at 1067. 89 N.J. 306 (1982) at 317. 452 Pa. 304 (1973) at 357. 96
WN. 729 (1982) at 738. 16 Cal .3d 930 (1976) at 932; 934. Conglomerate Merger: A
New Source of Antitrust Tensions, (L) 21 Case Wes. Res. L. Rev. 181 (1970) Reprinted in
12 Corp. Prac. Commentator 261 (1970). Mo. Dig. Legal Articles, Mar. 1971, at 1.
A Priori Mechanical Jurisprudence in Antitrust, 53 Minn. L. Rev. 739 (1969). “I
found your analysis both interesting and stimulating.” Milton Handler, Letter, 1/8/75.
(Reprinted in Corp. Couns. Ann. – 1970, at 331. Antitrust Proscription and the Mass
Media (L), 1968 Duke L.J. 1021. The Tying Arrangement: A Critique And Some New
Thoughts, 1967 Wis. L. Rev. 88. Cited 394 U.S. 495, 512 n.2 (1969). 68 F.R.D. 65
(1975) at 86, 88, 93, "In the words of a leading commentator:") 95, "Professor Austin's
analysis is also consistent with the underlying of the Law of Tying. . . ." 117. 823 F.d
1215 (1987) at 30. Product Identity and Branding Under the Robinson Patman Act, 12
Vill. L. Rev. 251 (1967). Reprinted in Corp. Couns. Ann. – 1967, at 382. Reciprocal
Page 4 of 18
Trading and the Antitrust Laws, 2 J. Purchasing 5 (1966). Robinson-Patman and
Meeting Competition: A Myriad of Problems With No Solutions, 40 Tul. L. Rev. 313
(1966). Reprinted in 4 Ill. Continuing Legal Ed. 1 (1966). A Survey of the Problems
Encountered in Combating Reciprocal Trading Under Existing Trade Regulation Laws,
(L) 41 Ind. L.J. 165 (1966). Meeting Competition In Good Faith and the Premium
Product, 14 Cleve. St. L. Rev. 610 (1965). The Impact of Oligopoly On Warranty Law, 2
Am. Bus. L.J. 293 (1964). Add Two More Names to the List of LTV Villains, Cleve. Plain
Dealer, December 19, 2001, at B11. The Long Shadow of the Raiders’ Al Davis, Daily
Legal News, Jan. 30, 1996, at 1. Before There Was Modell, There Was Steinbrenner,
Daily Legal News, Jan. 18, 1996, at 1. Price Fixing: American as Apple Pie, Daily Legal
News, Nov. 21, 1995, at 1. Thanks to Dita Beard and ITT, Bill Gates and Microsoft Are
Blind-Sided by The Tunney Act, Daily Legal News, May 18, 1995. Antitrust Litigation
Problems: Don’t Blame the Jury, Blame the Supreme Court, Daily Legal News, Mar. 9,
1995, at 1. Original Labrador Retrievers vs. American Labs: Is the AKC Politically
Correct?, Daily Legal News, Nov. 27, 1994, at 1. Did Antitrust Division Blink at
Microsoft?, Daily Legal News, Aug. 17, 1994, at 1. Can Justice Breyer Tidy Up the
Antitrust Mess in the Supreme Court, Daily Legal News, June 18, 1994, at 1. Is There a
New Merger Wave Sneaking Up on the Clinton Administration?, Daily Legal News, Apr.
21, 1994. Business Failures Expose Some Anti-Trust Deficiencies, Daily Legal News,
Nov. 26, 1993, at 1. The Baseball Exemption: Mr. Justice Holmes’ Aberration, Daily
Legal News, Oct. 22, 1993, at 1. "As soon as the exemption is lifted the union would sue
them for price fixing." Interview in the Youngstown Vindicator, Sec. G, Feb. 12, 1995,
G 1. A Jury Verdict for American Airlines Within Three Hours!, Daily Legal News, Aug.
25, 1993, at 1. Summarizes a presentation on jury comprehension of below cost pricing
strategy in Antitrust Litigation to Gibson, Dunn, and Crutcher Litigation Retreat, San
Diego, Calif., April 23 – 25, 1993. The Big Three in a Menage-A-Trois, Daily Legal
News, April 28, 1993, at 1 (Reprinted in Cleve. Plain Dealer, Carmakers Get Antitrust
Deal, May 13, 1993, at 7E. Everything In This Life Is A Restraint of Trade, Daily Legal
News, Mar. 16, 1993, at 1. Should Law Firms Engage In "Ancillary" [Non-Law]
Businesses?, Daily Legal News, Feb. 10, 1993, at 1. Economics: The Deja vu Science,
Cleve. Plain Dealer, Dec. 5, 1992, at 7B. The Feds Bust the Ivy League for Price Fixing,
Daily Legal News, Nov. 28, 1992, at 1. Antitrust Plagues the NFL Like Stink on a Skunk,
Daily Legal News, Oct. 27, 1992, at 1. Why Is the Antitrust Division Picking On Us?,
Page 5 of 18
Daily Legal News, July 25, 1992, at 1. A Big Bang in Antitrust: The Demise of Chicago
Economics, Daily Legal News, June 30, 1992, at 1. How Colleges Can Get Together To
Fix Prices, Cleve. Plain Dealer, Sept. 1, 1989, at 5-B. Exile May End for Antitrusters,
Cleve. Plain Dealer, Jan. 16, 1989, at 9A. The Resurgence of the Urge to Merge, Cleve.
Plain Dealer, Mar. 21, 1988, at 9A. Bork’s Antitrust Revolution, Daily Legal News, Aug.
15, 1987, at 1. Will USFL Shoot Itself?, Cleve. Plain Dealer, June 16, 1986, at 13A.
Funny Thing About Antitrust Law, Cleve. Plain Dealer, Apr. 8, 1983, at 19A (reprinted in
In Brief, (CWRU Law School). Sept. 1983, at 33). Bringing Free Enterprise to Big-Time
College Sports, Chron. Higher Educ., Mar. 23, 1981 (Reprinted in Cleve. Plain Dealer,
Apr. 29, 1981). Is Congress Rendering Antitrust Impotent?, Nat’l L.J., Jan. 7, 1980, at
Book Reviews and Essays:
G. Stigler, Memoirs of an Unregulated Economist, 12 Geo. Mason L. Rev. 459 (1990).
Antitrust Law and Economics: The Ivory Tower Strikes Back, 57 U. Cin. L. Rev. 1371
(1989). The Ivory Tower is my response to a hostile review of my review of Gellhorn's
Nutshell (identified below). It is a typical – and productive – disagreement over the
indecipherable mysteries of Antitrust. R. Wills, J. Caswell, J. Culbertson, eds., Issues
After a Century of Federal Competition Policy, 33 Antitrust Bull. 417 (1988). Gellhorn,
Antitrust Law and Economics (1986), 56 U. Cin. L. Rev. 193 (1987). Fisher, McGowan,
Greenwood, Folded, Spindled, and Mutilated: Economic Analysis and U.S. v. I.B.M.
(1983), 58 Tul. L. Rev. 1282 (1984). Weistart & Lowell, The Law of Sports, 58 N.C. L.
Rev. 660 (1980). Cited 977 F.2d 1081 (1992) at 1099. Silk, The Economist (1976), 26
Emory L. Rev. 393 (1977). Okun, Equality and Efficiency: The Big Tradeoff (1975);
Lodge, The New American Ideology (1975); Gaddis, J.R. (1975), 26 Case W. Res. L.
Rev. 944 (1976). Markham, Conglomerate Enterprise and Public Policy (1973);
Goldschmid, Mann, Weston, Industrial Concentration: The New Learning (1974), 25
Case W. Res. L. Rev. 972 (1975). Green, The Closed Enterprise System, 23 Case Wes.
Res. L. Rev. 678 (1972). Reviewed: Arthur Keeffe, Nader’s Raiders Report; Not Quite
the Critics’ Choice, 60 ABLJ at 861 (1974). Blair, Economic Concentration: Structure,
Behavior and Public Policy (1972), 26 Vand. L. Rev. 1107 (1973). Weisskopf,
Alienation and Economics (1971), 121 U. Pa. L. Rev. 409 (1972). Reid, Mergers,
Managers and the Economy (1968), 44 N.Y.U. L. Rev. 1205 (1969). Singer, Antitrust
Page 6 of 18
Economics: Selected Legal Cases and Economic Models (1968), 20 Case W. Res. L. Rev.
514 (1969). Hawley, The New Deal and the Monopoly Problem (1966), 65 Mich. L. Rev.
James Lawless, Antitrust Ace Drawn to City – CEI Contest, Plain Dealer, Oct. 5, 1981.
COMPLEX LITIGATION CONFRONTS THE JURY SYSTEM: A CASE STUDY (Univ. Pub. of
America, 1984). Cited 629 F. Supp.540, 541 (D.C. Mass. 1986). Reviewed: Jacqueline
Zanca, Wider Role Urged for Jurors Hearing Complex Litigation, Legal Times, April 22,
1985, at p.3. MacCoun, Book Review, Judicature, Vol. 69, June-July, 1985, p.56:
“He [Austin] concludes that the court system should focus its attention on
creating a more educational atmosphere for jurors, and he reviews several means
of doing so, including improved instructions, better trial management, procedural
suggestions for foremen, pretrial charges to the jury, the use of note-taking and
trial transcripts by jurors, and two-way communication between the judge and the
The Jury System At Risk From Complexity, The New Media, and Deviancy, 73 Denv. L.
Rev. 51 (1995). How The Dominant Juror Dominates, 21 Trial Law. Q. 23 (1990).
Research Supports Note-Taking By Jurors, Cleve. Bar J., Dec. 1984, at 46. Reprinted in
News & Views, State Bar of New Mexico, vol. 23, no. 51, Dec. 20, 1984, at 1 and
Lawyer-Pilots Bar Assoc. J., vol. VII, no. 1, Winter 1985, at 20. Second Trials,
Litigation Mag., Winter 1984, vol. 10, no. 2, at 34. Reprinted: THE LITIGATION MANUAL:
JURY TRIALS 391 (2008). Jury Perceptions on Advocacy: A Case Study, Litigation Mag.,
Summer 1982, vol. 8, no. 4, at 15. Traficant Needs to Win Over Just One More Juror,
Cleve. Plain Dealer, February 21, 2002, at B9. Was the Hughes Jury Nullified?, Daily
Legal News, Sept. 25, 1997, at 1. Finally, No Bafflegab—Just Justice, Cleve. Plain
Dealer, June 6, 1997, at 11B. Why Jurors Don’t Heed the Trial, Nat’l L.J., Aug. 12,
Page 7 of 18
1985, at 15. Discussed in Neil Skene, Jurors Need Help To Do Their Jobs, Burrell's,
Aug. 12, 1985. Some Ironies of Jury Nullification, Daily Legal News, Oct. 19, 1995, at
1. Handicapping the O.J. Jury, Daily Legal News, Sept. 27, 1995, at 1. When a Jury is
Locked Up, Cleve. Plain Dealer, Sept. 7, 1995, at 11B. Jury Trials Taking a Pounding,
Cleve. Plain Dealer, Mar. 14, 1995, at 7B Reprinted in The Times Union, Albany, NY.
The Trivialization of the Jury System, N.J. L.J., Nov. 14, 1994, at 21. Jury Experts, Jury
Bonding, and the Dominant Juror, Daily Legal News, Sept. 16, 1994, The Jury System As
A Bat, Daily Legal News, July 16, 1994, at 7. They’re Turning Juries Into Social
Workers, Cleve. Plain Dealer, Feb. 26, 1994, at 7B. Cited: 108 Harv. L. Rev. 1111,
1118, n. 43 (1995). Judges and Lawyers Talk About the Future of the Jury, Daily Legal
News, Feb. 22, 1994 at 1. Next to Shooting Pool, I Like to Interview Jurors, Daily Legal
News, Jan. 1, 1994, at 1. The Truth-and-Consequences of Jury Bonding, Special
Supplement to the N.J. L.J. (135 N.J. L.J.), Oct. 4, 1993, at 26. Are Juries Obsolete in
Complex Litigation? No, But . . . (Maybe), Daily Legal News, Apr. 13, 1993. Another
View on Juries, Nat’l L.J., Mar. 22, 1993, at 15. The Admissibility of Science or "Junk
Science," Daily Legal News, Dec. 19, 1992, at 1. Trial Juries Not Likely to Bend in a
Lawyerly Wind, Cleve. Plain Dealer, Dec. 20, 1991, at 21C. Litigator: Beware of the
Hidden Camera!, Md. Bar J. vol. 24, July/Aug. 1991, at 37. What Jurors Like-and
Dislike- About Exhibits, Products Liability, Commentary & Cases, May 1986, at 8.
Adversary System Is Threat To Jury Trials, Cleve. Plain Dealer, May 1, 1985, at 21A.
The Power Juries’ Struggles, Cleve. Plain Dealer, Oct. 16, 1984, at 13A.
Book Reviews and Essays:
Hamlin, What Makes Juries Listen (1985), 8 Am. J. Trial Advocacy 509 (1985).
Jurywork: Systematic Techniques (Nat. Jury Project), Litigation Mag. Spring, vol. 11, no.
3, at 3 (1985). J. Gunther, The Jury In America (1987), Cleve. Plain Dealer, Sept. 20,
1988, at 10B.
Page 8 of 18
Mutuality of Obligation: A Multi-Dimensional Doctrine for All Seasons, 30 Ohio St. L.J.
61 (1969). Cited 16 Ohio App. 3d 4 (1983) at 7, 185 Neb. 531 (1970) at 535. "See
Austin . . .; CORBIN ON CONTRACTS . . .; WILLISTON ON CONTRACTS . . ." Mutuality of
Remedy in Ohio: A Journey from Abstraction to Particularism, 28 Ohio St. L.J. 629
(1967). Ed Keating Lectures to a Contracts Class, Daily Legal News, June 14, 1996, at
1. "Nobody in Their Right Mind Would Sign a Document Like That," Daily Legal News,
Mar. 27, 1996, at 1. Shanker’s Campaign to Save the Statute of Frauds, Daily Legal
News, Aug. 16, 1995, at 1. He’s Better Than Kosar, Testaverde, Walsh or Erickson at
the Same Stage, Daily Legal News, June 21, 1995, at 1. The Wacky World of Rassling
and the Zashin Report, Daily Legal News, Jan. 10, 1995, at 1. The Bizarre World of
Contracts, Daily Legal News, Oct. 1, 1993, at 1. Allocating Risks In The Sports Contract
Minefield, Daily Legal News, Sept. 24, 1986, at 1.
Book Reviews and Essays:
Schlesinger, Formation of Contracts, 20 Case W. Res. L. Rev. 942 (1969). Friedman,
Contract Law in America (1965), 39 S. Calif. L. Rev. 157 (1966).
The Law Academy
THE EMPIRE STRIKES BACK: OUTSIDER AND THE STRUGGLE OVER LEGAL EDUCATION
(New York University Press 1998). For an account of the prepublication process of the
book's evolution see p. 15, infra. For critical commentary see:
“The Empire” is the legal-education establishment, the old-line doctrinalists and
vocationalists, who are trying to protect academic turf against the encroachments
of “the Outsiders.” The Outsiders are the critics of tradition --- the
deconstructionists, postmodernists, critical legal scholars, critical race theorists,
radical feminists, oppression theorists, etc. --- who by questioning the role of
reason in the law, call into question the idea of law itself.” Erik M. Jensen, Book
Review 52 Okal. L. Rev. 515 (1999).
Page 9 of 18
According to NYU Press publisher Niko Pfund, “The idea was to get over all the
shouting and to create a book that strengthens the criticism and makes more
understandable the impulses behind these movements….On one page he may
accuse the storytellers of fabrication, but on the next, he decries the Socratic
method as an excuse to be lazy and mean. In the end, he argues that objective
analysis is the only criterion for judging legal scholarship and that by rejecting it,
the storytellers risk both their own credibility and the future of their enterprise.”
Cynthia Cotts, Work of Critical Race Theorists, Feminists Rapped in New Book,
Nat’l Rev., Oct. 26, 1998, at B-4.
“A form of power engineering is being engaged in by each group. The Empire
seeks to protect and expand its sphere of influence. The Outsiders are intent on
seeking the lacunae in the system that the disenfranchised can slip into and on
establishing a new paradigm that acknowledges their legitimacy. For Austin,
there seems to be no middle ground or room between the two groups for
compromise. He sees the ultimate result as “a fractious, distracted, and
demoralized environment, with the students, and eventually the profession, paying
the price.” (p.200).” Karen J. van Ingen, The Empire Strikes Back: Outsiders and
the Struggle Over Legal Education, The Lawyer’s Bookshelf, N.Y. Law J, October
The Law Academy and the Public Intellectual, (L) 8 Roger Williams U. L. Rev. 243
(2003). "The article is excellent. I very much enjoyed reading it and will refer to it in my
work on the subject." Letter to the Author from Judge Richard Posner, Nov. 25, 2002.
Cited: Richard A. Posner, PUBLIC INTELLECTUALS: A STUDY OF DECLINE, Epilogue, 409
n.28 (2003). The Postmodern Buzz in Law School Rankings, 27 Vermont L. Rev. 49
(2003). The Postmodern Infiltration of Legal Scholarship, 98 Mich. L. Rev. 1504 (2000).
The Top Ten Politically Correct Law Review Articles, 27 Fla. St. U. L. Rev. 233 (1999).
The Cleveland School of Scholarship, 3 Green Bag 2d 73 (1999). The Deobjectification
of Legal Scholarship by Tenured Radicals, 2 Green Bag 2d 243 (1999). Race and
Gender Exclusivity in Legal Scholarship, 4 U. Chi. L. Sch. Roundtable 71 (1997). The
Top Ten Politically Correct Law Reviews, (L) 1994 Utah L. Rev. 1319. CRITICAL
DISCUSSION: Cheryl B. Preston, It Moves, Even If We Don’t: A Reply to Arthur Austin,
The Top Ten Politically Correct Law Reviews, 63 Tenn. L. Rev. 735 (1996); Ken Myers,
David Letterman, Watch Out: Professor Issues Top 10 of PC; Nat’l Law Journal, March
13, 1995; P. C. Law Students, Crain's Detroit, March 27, 1995, at 30; Reviews Reviewed:
Page 10 of 18
Scholar Assigns "PC" Rankings, ABA J., June 1995, at 44. R. Sloane, Ten Most
Politically Correct Law Reviews, New York L.J., Feb. 18, 1997.
Orwellian Lawspeak Infiltrates Legal Education, 19 Vt. L. Rev. 1 (1994). The
Reliability of Citation Counts in Judgments on Promotion, Tenure, and Status, 35 Ariz.
L. Rev. 829 (1993). Cited: Rosa Ehrenreich, Look Who's Editing, Lingua Franca,
Jan/Feb 1996, at 58, 61. The Greening of Law, (L) 28 Idaho L. Rev. 213 (1992).
Commentary on Jensen’s Commentary on Commentary, 24 Conn. L. Rev. 175 (1991).
The "Custom of Vetting" as a Substitute for Peer Review, 32 Ariz. L. Rev. 1 (1990).
CRITICAL DISCUSSION: Ken Myers, The Kindness of Their Colleagues: More Academics
Decry Vetting; Nat’l L. J. (1989). Myers concludes: “Barack Obama, student editor-in-
chief of the Harvard Law Review, says “the vetting” plays no part in the editorial
process. He says: “We don’t even look at them. We don’t care who’s in there.” Mr.
Obama says writers list acknowledgments out of “genuine appreciation” and
“occasionally to stroke” other professors.” Id.
The Wasteland of Law School Fiction, 1989 Duke L.J. 495. Womanly Approach
Harms Future Lawyers, Nat’l L. J. A23, May 18, 1998. The editor assured me she had a
headline that would attract letters. She was right; an editor's delight, a group of angry
responders. See Nat'l L.J. June 1, A20, July 6, A22, July 13, A24 (1998). Tenure:
Headed for the Tar Pits?, Daily Legal News, April 24, 1997, at 1. The Last Year at Law
School: A Waste of Time?, Daily Legal News, March 8, 1997, at 1. Law Professors
Making Fools of Themselves as "Public Intellectuals," Daily Legal News, Feb. 18, 1997,
at 1. Geraldo’s Law, Daily Legal News, Dec. 4, 1996, at 1. The New Bluebook: Another
Edition of Planned Obsolescence, Daily Legal News, Oct. 22, 1996. Has The American
Lawyer Subverted the Legal Profession?, Daily Legal News, Sept. 20, 1996, at 1.
According to Professor Styx, The Socratic Method Has to Go, Daily Legal News, Aug.
20, 1996, at 1. Exclusivity in Legal Scholarship, The Scrivener, Spring 1996, at 4.
(Article incorporates comments made in a speech to the Scribes Mid-Winter Meeting,
Jan. 4, 1996, San Antonio.) Why Do Liberals Control Legal Education?, Daily Legal
News, Feb. 28, 1996, at 1. The Growing Rift Between the ABA and Legal Education,
Daily Legal News, Oct. 11, 1994, at 1. Harvard Law School: The Beirut of Legal
Education, Daily Legal News, July 29, 1993, at 3. The Committee Meets to Vote On
Critical Legal Studies Coming to Scoff Law School, Daily Legal News, Jan. 15, 1993, at
1. The Judge Asks: "What’s Going On With Legal Scholarship?," Daily Legal News,
Page 11 of 18
Aug. 14, 1992, at 1 Reprinted in Detroit Legal News, Aug. 28, 1992. PC Worms
Gnawing In Law Schools, Cleve. Plain Dealer, July 3, 1992, at 7B. Some Thoughts on
Legal Scholarship, In Brief, Jan. 1988, at 27. (Remarks at the Distinguished Teacher
Award dinner, 1987.) Is The Casebook Method Obsolete? 6 Wm. & Mary L. Rev. 157
Book Reviews and Essays:
"Sometimes It’s Tough To Get Out of Bed When You’re Wearing Silk Pajamas," R.
Kahlenberg, Broken Contract, 78 Iowa L. Rev. 427 (1993). Trashing and Bashing Legal
Education, Robert Granfield, ELITE LAWYERS (1992), 14 Miss. C.L. Rev. 97 (1993).
“Austin clearly has a fetish about footnotes…He already found two
publications…masochistic enough to print his iconoclastic views. Last year he addressed
the subject at the National Conference of Law Reviews. Now, in his Skullduggery
article…he is it again.” For Connoisseurs of Citations, Law Journal Spread a Feast of
the Arcane, Durham Morning Herald, Durham, N.C. (N.Y. Times service) June 17, 1990.
Political Correctness is a Footnote, (L) 71 Or. L. Rev. 543 (1992). Cited 246 Conn. 413
(1998), at 29. Footnote Skullduggery and Other Bad Habits, 44 U. Miami L. Rev. 1009
(1990). Article discussing “Skullduggery”: David Margolick, AT THE BAR, N.Y. Times,
June 8, 1990, at B10. Reprinted in Margolick, AT THE BAR: THE PASSIONS AND
PECCADILLOES OF AMERICAN LAWYERS. Footnotes as Product Differentiation, 40 Vand.
L. Rev. 1131 (1987). Discussed in Edward A. Adams, Writer Gives Advice on
Footnoting, Nat’l L.J., Jan. 11, 1988. Cited 783 So.2d 611 (2001) at 8. 797 So.2d 84
(2001) at 9: 804 So.2d.650 (2001) at 8. The cite was used in a disagreement over
footnote location – exclusive use in the text or optional use in text and at the bottom of
the page. Judge Woodard's three identical opinions supported the option using my article
in support of "an uncluttered, flowing, working style. . . ."
Page 12 of 18
-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --- -- -- --
The above illustration accompanies Margolick’s review
Law Narratives: "Storytelling"
Narrative Writing as Legal Scholarship: An Interview with Derrick Bell, In Brief, Sept.
1992, at 3. The Bell interview serves as an introduction to the storytelling genre by a
major practitioner. My responses:
Chasing Cardozo and Langdell Out of the Closet, 27 Oklahoma City L. Rev. 23
(2002). Chasing Cardozo incorporates a presentation to the Popular Culture
Page 13 of 18
Association/American Culture Association Annual Conference April 19-22, 2000, New
Orleans. The Alchemy of Promotion and Tenure, (L) 75 Denver U. L. Rev. 1 (1997).
Evaluating Storytelling As a Type of Non-Traditional Scholarship, 74 Neb. L. Rev. 479
(1995). Quoted: Anna Snider, New Trends In Legal Education, L.A. Daily J., Aug 7,
1996. Austin "dismissed the new style of writing by describing it as a mish-mash of
'doggerel photography, ramblings on pop culture [and] haiku'". Scoff Law School
Debates Whether A Male Can Teach A Course in Feminist Jurisprudence, 18 J. Legal
Prof. 203 (1993). An Allegory on the Banks of the Nile, 39 Kan. L. Rev. 929 (1991). The
Waste Land, 1991 B.Y.U. L.Rev. 1229. The Judge Wants To Know What’s So
Scandalous About Tonya Harding, Daily Legal News, Mar. 25, 1994, at 1.
The Dark Side of the Second Amendment, 4 Green Bag (2d) 229 (2001). Scrambled
Sentences--Deconstructed, The Law Teacher, Fall 1995, at 4. Deconstruction: A Road to
a Derridain Cul-de-sac Where "There is No There There" and "There is No About About
for Anything to Be About," 12 Cardozo Arts & Ent. L.J. 181 (1994). Deconstructing
Voice Scholarship. 30 Hous. L. Rev. 1671 (1993). Why Haven’t the Crits Deconstructed
Footnotes?, 17 Nova L. Rev. 725 (1993) (Humor in the Law Edition). Storytelling
Deconstructed by Double Session, 46 U. Miami L. Rev. 1155 (1992). "Perhaps, then, the
word meaning should be discarded since it carries with it the notion of message or
point." Id. at 1158.
A Primer on Deconstruction, 71 N.C. L. Rev. 201 (1992). "Professor Austin
concludes that, although deconstruction may be the ultimate word game, it has no
relevance to law. Finally, in a fit of 'aporia', the author deconstructs himself." Editor's
Preface, supra at 201. What Differs? Who Differs? What is the Différance?, 13 Cardozo
L. Rev. 1351 (1991). Antitrust Deconstructed (included under Antitrust, supra). In
which I offer the market system as the solution to the footnote plague. "Even Richard
Posner has not thought of selling footnotes." Id., at note *, p. 725.
Page 14 of 18
Reviews and Essays:
“A Family Circle From Hell”, 26 Thomas Jefferson L. Rev. 409 (2004). “She (Kathy
Boudin) mentioned that she enjoyed the class, then made a fleeting reference to the
'underground.' "I assumed she was referring to Cleveland's notion of 'underground' –a
rapid transit ride to the airport." Referenced in Susan Braudy, FAMILY CIRCLE: THE
BOUDINS AND THE ARISTOCRACY OF THE LEFT. 169 (2008). Id. at 409. Huber, Galileo’s
Revenge: Junk Science in the Courtroom, 29 Hous. L. Rev. 481 (1992). B. Burrough &
J. Helyer, BARBARIANS AT THE GATE: THE FALL OF RJR NABISCO, 44 Ark. L. Rev. 159
(1991). E. Bronner, Battle for Justice, 1989 B.Y.U. L. Rev. 1277. Stevens, Power of
Attorney: The Rise of the Giant Law Firm, 11 Harv. J.L. & Pol’y 527 (1988). Macaulay,
Law and the Balance of Power, 1967 Duke L.J. 1069. Stone, Human Law and Human
Justice, 31 Mo. L. Rev. 323 (1966). Wyzanski, Whereas - A Judge’s Premises: Essays in
Judgment, Ethics, and the Law, 43 U. Det. L. Rev. 453 (1966). Hofstadter, Horowitz,
Right of Privacy, 43 U. Det. L. Rev. 307 (1965).
Kristein, A Man’s Reach: The Selected Writings of Judge Jerome Frank (1965),
60 Nw. L. Rev. 414 (1965). Stone, Legal System and Lawyers’ Reasonings (1964);
Friedman, The Changing Structure of International Law (1964), 3 Am. Bus. L.J. 206
(1965). P. O’Donnell & D. McDougal, Fatal Subtraction (1992), Daily Legal News, Oct.
2, 1992, at 1. F. Robinson, Extra Innings, Cleve. Plain Dealer, Sept. 11, 1988, at 9H.
Levy, The Establishment Clause: Religion and The First Amendment, Cleve. Plain
Dealer, Jan. 4, 1987, at 10H. Taylor, The Smoke Ring, Cleve. Plain Dealer, Dec. 23,
1984, at 35F. Gilder, The Spirit of Enterprise, Cleve. Plain Dealer, Dec. 23, 1984, at 35F.
M. MacDonald, America’s Cities, Cleve. Plain Dealer, Oct. 21, 1984, at 45P.
Parsing the Plagiary Scandals In History and Law. (L) 5 Pierce L.Rev. 367 (2007).
Scholars United Against Suppression of the Cleveland School, 9 Green Bag 221 (2006)
(with Jensen). One Person’s Challenge Is Someone Else’s Stress, 3 Tex. Rev. of Law &
Pol. 175 (1998). The Browns’ New Ticket Policy: A Lesson in Economics I, Ohio Law,
Sept/Oct. 1987, at 21. P.C. Colleges Eliminate "Sexist" Fraternities, Insight on the News
(Wash. Times), April 5-12, 1999, at 28. From Flem Snopes to Bill Clinton: Somehow
We’ve Been Here Before, Insight on the News (Wash. Times), Sept. 7, 1998, at 30.
Page 15 of 18
FDR’s Legacy to the Legal Profession, Daily Legal News, July 11, 1997, at 1. The
Revolution of Kathy Boudin, Daily Legal News, July 19, 1996, at 1. See, “A Family
Circle from Hell”, Book Reviews and Essays, infra. Jim Ling, Two Plus Two Equals
Five, and LTV, Daily Legal News, May 28, 1996, at 1. Who Turned Alger Hiss?, Daily
Legal News, Apr. 18, 1996, at 1. John Grisham: The Case of Alleged Copyright
Infringement, Daily Legal News, May 23, 1995. ‘Voodoo Science’ - It’s Kind of a Parlor
Game, Daily Legal News, Apr. 28, 1995, at 1. The Top Five Trials of this Century, Daily
Legal News, Feb. 15, 1995, at 1: Alger Hiss; 2. Loeb – Leopold; 3. Sacco-Vanzetti; 4.
Julius & Ethel Rosenberg; 5. State v. Sheppard. "Where is O.J.? Down the list, another
deviancy case in the image of the Bobbitts and the Mendez brothers. O.J. is having his
Warhol fifteen minutes." Id.
Why the Tribe Went After Those Insidious Scalpers, Cleve. Plain Dealer, Sept. 13,
1994, at 7B. Don’t Call Him A ‘Sloppy Journalist’, Daily Legal News, May 27, 1994, at
1. Are Mega Law Firms Headed for the Tar Pit?, Daily Legal News, Jan. 25, 1994, at 1.
No Good Old Amateur Days in College Football, Cleve. Plain Dealer, Oct. 14, 1993, at
7B. It Sounds Like 1960 Rhetoric, Cleve. Plain Dealer, Aug. 16, 1993, at 7B. Robert
Bork’s Legacy Zaps Lani Guinier, Daily Legal News, July 8, 1993, at 1. Anita Hill:
Mystique and Mystery, Daily Legal News, June 2, 1993, at 1. Buy an Idea and Buy a
Law Suit, Daily Legal News, Oct. 2, 1992, at 1. The Custom-and Misdemeanor-of Ticket
Scalping, Daily Legal News, Sept. 10, 1992, at 1. Borkchop Strategy Locks Court, Cleve.
Plain Dealer, Oct. 5, 1990, at 3-B. K-Mart Yuppism Infects the Law School, The
Alternative, Dec. 1985 (CWRU Law School student paper – under Oscar Bealing
pseudonym). The Boss is a Closet Yuppie, The Alternative, CWRU Law School (Oct.
1985). You Could Tell Where the Ball Would Bounce, Cleve. Plain Dealer, Aug. 10,
1984, at 9B. The Creation and Growth of the Canary Lectureship, In Brief, Mar. 1984, at
24. Regina v. Queensbury, 32 Univ. Rev. 179 (1966). Prejudice and Change of Venue,
68 Dick. L. Rev. 401 (1964).
The Effects, Present and Ultimate, of a Guaranteed Annual Wage, Va. Bus. Rev.
30 (1958) (published as a student, University of Virginia). The Line, Univ. of Virginia
Magazine, Easter's 1957 (Fiction - published as a student). Wickliffe Yulee Scholarship
(awarded by the Department of English on a competitive basis for creative writing 1956)
Eight articles narratives included in Thomas E. Baker, Humorous Diversion for
the Gentle Reader, 51 Drake L. Rev. 105,127, 137-8 (2002).
Page 16 of 18
PRINT MEDIA QUOTES/REFERENCES: N.Y. Times – 9/24/82; 6/8/90, Wall St. J, 5/10/88;
1/22/97; N.Y. Law J. 2/18/97. L.A. Daily J. 8/7/96. ABA Journal 8/1/88; 5/20/98; June ’95 at
44. National L.J. 9/24/82; 1/11/88; 3/13/95. Christian Science Monitor 8/16/85. Columbia
Journalism Rev. May/June 1984. West Palm Beach Evening Times 8/12/85. Columbus (OH)
Dispatch 8/26/85. Hinckley Record (OH) Austin writes law review articles and occasional
columns for the Cleveland Plain Dealer. He favors a real-life spot, the Buzzard’s Roost, to do
his writing. “It’s very quiet – They know me and don’t bug me.” April 1996. Id. 4/96.
“Virginians Are All Snobs, And I Like Snobs” Faulkner at U.Va. (1957).
THE PREPUBLICATION NARRATIVE OF THE EMPIRE STRIKES BACK (1998). A documentary
account of the prepublication contacts, tensions, and commentary originating from an
invitation to me from Richard Delgado and Jean Stefanic, editors of N.Y.U.'s Critical
America series to submit a book manuscript. The narratives open with dialogue over the
proposals' theme and bite. The "process" – editorial judgments, exchanging perspectives,
the role of critical review by N.Y.U. staff – commingled to the satisfaction of everyone.
(Revised Edition 2008). PHLEGM SNOPES ON CONTRACTS (2005). Through “eyes the
color of stagnant water” Phlegm lives a life of dodging, subverting, co-opting, but mostly
succumbing to, the subtle shifting concrete of Contract. Like Dilsey, he survives.
Encounters include commentary from the author, copy of the ultimate U.C.C. 2-302 K,
juror interviews, a classic example of the dreaded Conclusion Of Law exam answer,
capped with exams dating back to 1978 in which Fragile Snopes, Phlegm’s mother, said:
“The abominations of civilized society are television, MacDonald's, Shopping Centers,
and Coke Cola.” She subsequently added e mail, Dean Smith, and juicyfaced law
professors. Free to students, all others $100.00.
Page 17 of 18
Dos Passos & Faulkner Visit U.Va.
John Dos Passos William Faulkner
Circa 1935, Charlottesville, VA.
Page 18 of 18