November|December 2003

THE ECONOMICS OF LAW

I share Lincoln Caplan's concern ("Esq., RIP," May | June) when he worries that "civic commitment" and "expressions of principles" will be left behind by the mergers that are swallowing up smaller firms like Hill & Barlow. I feel uneasy whenever a profession becomes just another group that defines its existence by market forces. Look at what happened to Arthur Andersen.

James Walter Cosby
Columbus, Ohio

GUNS IN COURT
David Kairys ("A Philadelphia Story," May | June) argues that firearm manufacturers somehow oversupply certain markets in order to "funnel handguns to stricter states, like New Jersey," insinuating that the marketing strategies of these companies involve the illegal sale and criminal use of their product. But what's his proof? He notes that "more handguns are produced than can conceivably be purchased by law-abiding customers." Ford, G.M., and Chrysler produce more products than they sell each year. By Kairys's logic, car manufacturers must be marketing their vehicles to getaway drivers.

Education and familiarization with firearms will do more to prevent accidental shootings than lawsuits. It's a shame that Kairys chooses to portray firearm ownership in America as something to be defeated instead of something to be cherished as a right of a free people.

James R. Colbert Jr.
Rochester, N.Y.



BLACK'S SEA

As a great admirer of Charles Black, I found Aviam Soifer's article about him ("The Jazz Man," March | April) delightful. What's more, the article provided the apparent solution to a mystery: how Black could have been just plain wrong on the one important matter on which I had the privilege of dealing with him.

At issue was the proper scope of an arcane feature of maritime law, the uniformity doctrine of admiralty. Traditionally, the uniformity doctrine limited the ability of states to alter federal laws that govern the financial responsibilities of vessels, cargo owners, seamen, and others under maritime law. The uniformity doctrine didn't prevent states from directly regulating vessels in their own waters in order to protect physical interests, such as air quality, structures ashore, and shoreline environment. The federal government had long avoided such regulation (not even attempting, for example, to regulate vessel until 1950, and then only on a wartime emergency basis). When Congress finally acted to protect the marine and shoreside environment from vessels in the Ports and Waterways Safety Act of 1972, it expressly disclaimed any intent to preempt state regulation of vessels in state waters.

Beginning in the mid-1970s, those seeking to prevent state regulation of oil tankers invoked the uniformity doctrine, puffing it up to huge proportions as some broad form of preemption by the federal courts (not Congress) of state police powers in all matters maritime. The idea was absurd, and without foundation in admiralty law, yet Professor Black inexplicably failed to say so and thus lent it weight. His error had serious consequences: It helped lead federal courts to invalidate state efforts to regulate the safety of tankers and other vessels.

But Soifer's article has made the inexplicable explicable: Black valued civil and human rights above all. Like others (including me), he believed federal power should redress and override the narrow-mindedness and local prejudice that led to discriminatory state laws. It's easy to imagine how this worthy and apparently almost obsessive focus could have produced a blind spot in his own specialty and led him to accept a superficially analogous argument about federal versus state power in a salty context.

Eric Redman
Seattle, Wash.


CORRECTION
A headline in the July | August issue said that Matthew Kammersell "ended up  in prison" for sending a threat using AOL Instant Messenger. While Mr. Kammersell was sentenced to four months in prison and four months in a halfway house following the recommendation of the judge in the case, Mr. Kammersell ended up serving no time in prison and four months in a halfway house. The magazine regrets any confusion the original headline may have caused.