I wrote my first Law Review article when I was a first-year law student and another one before I graduated from law school. Both of them involved legal issues that we were concerned about in the Nixon Administration: concerted refusals to deal by gasoline station operators, and application of the new Federal Advisory Committee Act, which threatened to impede the confidentiality of interest group negotiations in which John Dunlop specialized.
I wrote my second article, on railroad labor economics, while I worked at Conrail. When I went to Villanova in 1981, I was eager to continue my writing and was very much focused on transportation law and economics. At about the same time, I was the cochairman of the Railroad and Airline Labor Committee of the American Bar Association and lobbied the other members of the committee, jointly divided between management and labor, to designate me to write a book on the Railway Labor Act. Ultimately, this came to nothing, because the union guys didn't particularly want such a book, and if one were to exist, they didn't want it written by someone, like me, whose representation had been predominantly on the management side and who had litigated many labor injunction cases against rail labor
During my service as Deputy Undersecretary of Labor during the Ford Administration, I had two primary intellectual interests: labor-management relations and regulatory reform. I was Secretary Dunlop and Secretary Usery’s point person on regulatory reform for the Labor Department which has as many or more regulatory programs under its umbrella is any other cabinet department.
When I left government in 1976, it was natural that I would continue to be involved in regulatory reform efforts. I participated in some seminars at Harvard on the subject, often informal dinners hosted by Dunlop, and the Administrative Conference of the United States reached out to me to do a major report on negotiated rulemaking. I completed that report shortly after I went to Villanova and then did reports on government information in electronic form under the Freedom of Information Act and under initiatives intended to promote its accessibility. Future Supreme Court justices Stephen Breyer and Antonio Scalia were members of the Conference, and I regularly engaged them in critical discussions of my work.
My work for the Administrative Conference facilitated my move toward law and technology as a scholarly interest.
Shortly after I went to Villanova, Georgetown Law Center hosted a symposium on common law wrongful dismissal. Harry Rissetto, my good friend and mentor, from Morgan, Lewis, and Bockius, attended, along with me. Afterwards, Harry said, “You could write a book about this.” At the same time, John Wiley & Sons was just starting a professional law book division and reached out to me to see if I would be interested in writing a book about wrongful dismissal. I jumped at the chance. Because of my in experience as a book author, Wiley retained Rissetto as a reviewer. I started work on the book in late 1982, and it was published in 1984. It sold extremely well. At the time, popular professional law books sold in the low thousands, and I think Employee Dismissal Law and Practice so 5,000 or 6,000 copies. I went on the road as much as I could, soliciting invitations to speak at law review symposia and CLE programs on wrongful dismissal. I also wrote several law review articles during this period on the subject, drawing on my research for the book.
Because the Employee Dismissal book had done so well, Wiley was responsive to my suggestion for another book. I suggested one on Labor Injunctions. If the Labor Section of the ABA would get behind it, I would do it myself. Labor Injunctions was published in 1986. It sold several hundred copies, but was not nearly as popular as Employee Dismissal, and so Wiley and I agreed to let it go out of print in the early 1990s.
Labor lawyers naturally are interested in alternative dispute resolution, because of the prevalence of collectively bargaining arbitration. During the early and mid-1980s I wrote a number of articles on alternative dispute resolution including one of the earliest ones on negotiated rulemaking, a pet idea of John Dunlop’s, which I had helped him flesh out.
Michael Baum was a lawyer who was enthralled by the bureaucracy of the American National Standards Institute. Michael promoted himself as something of an expert on Electronic Data Interchange (“EDI”), a series of projects aimed at developing standards so computer systems for different enterprises doing business together could talk to each other. Michael and I agreed with Wiley to co-author a book called EDI, Electronic Publishing and Xact. The collaboration did not go well. Michael was a cumbersome writer and our interests in the subject matter rarely converged. I entertained notions and I could dump him from the project and finish it myself, but he proved unwilling to withdraw, and Wiley was unwilling to remove him from the project. The book was published, but never attracted much interest.
As the Clinton Administration was developing its policy toward the Internet and as interest groups and the Congress were beginning work on what became the Telecommunications Act of 1996, the publisher of Wiley's law book division approached me to see if I would write a book on the “information superhighway.” I was a bit reluctant, pointing out how badly the EDI book had done, but Wiley persisted arguing that the public and the bar’s interest in electronic communications had increased considerably with all the talk about the information superhighway. So I accepted the invitation and wrote the first edition of Information Superhighway as the 1996 legislation was being developed.
I was very active in high-level policy discussions in Washington and elsewhere, had written a white paper on the Internet and related technologies at the request of the incoming Clinton Administration, and was a regular participant in a small group of lawyers – six of us – who met monthly at Wilmer, Cutler, and Pickering to develop concepts for light-touch Internet regulation. One of the products of these discussions was Section 230 of the Communications Decency Act and the safe harbor provisions of the Digital Millennium Copyright Act, the latter of which provided simplified private procedures for adjudicating legal challenges against content posted on third-party platforms. I drew on these experiences to fill out the new book
Information Superhighway was an immediate hit. It sold several thousand copies, and continue to be supplemented at least annually, sometimes twice annually and is now in its sixth edition under the new name of Digital Communication Law.
I continued to be active in the labor and employment law community and so was very much aware of the Americans With Disabilities Act and the Civil Rights Reform Act of 1991. I told Wiley that I could do books on both of these subjects while the legislation was being written. We could release the books as soon as the legislation was enacted, and get a jump on the competition. Wiley liked the idea, and the result was Civil Rights in the Workplace for the Reform Act and Americans With Disabilities Act Handbook for the ADA. Both books did well, especially the ADA book. It is now in its fifth edition and I have supplemental it at least annually and sometimes twice annually since its initial publication.
The practicing Law Institute also reached out to me and asked if I write a book on law and technology. I didn't want to compete with myself or with widely on the Internet subject matter, so I suggested to PLI that I do a book on trade secrets. I did that, and it is still in publication in the third or fourth edition. Because my interest in technology and law and more to do with the impact of technology on legal institutions rather than computer law as it was commonly understood. Also proposed a little book called how to practice law with computers that gave practical advice to law firms on introduction of PCs, selection of hardware and software, and on adapting commercial software to law practice needs. This little book came out 1992 and did well enough to have a lifetime of 45 additions and spawned a couple of offspring.
PLI also wanted to try its hand at publishing a trade book – one intended for the general public rather than a practicing lawyer audience, and priced below $20. The lawyer books cost several hundred. So I did a little paperback, called Your Rights in the Workplace. PLI distributed it – I used to go over to the Barnes & Noble bookstore in Rosemont and rearrange the copies on the shelf so that they would be more prominently placed. But the demand proved puny.
By the early 1990s, my scholarship was defined by three poles: labor and employment law, dispute resolution, and law and technology. Involvement in Project Bosnia, beginning in 1995, shifted the focus somewhat to international law. Some of my early work in this area concerned the effect of the Internet and small computer technologies on international relations and law, the context of project Bosnia, but it gradually broadened to include international human rights law, the context of the KLA book.
Then, my interest in music and work on the albums and the musical You Took Away My Flag drew me toward exploring the impact of small computer and Internet technology on entertainment and entertainment law. That produced a number of Law Review articles on both music and video entertainment.
Eliot's and my interest in drones spawned more than a dozen magazine articles, law review articles, and two books on drone technology and law. And my learning to fly helicopters produced the article on law enforcement helicopters and then several on helicopter air ambulances.
Industrial development and the Industrial Revolution was a longstanding interest of mine. I began to read about the beginning of the U.S. Industrial Revolutions with the textile mills of New England. I became fascinated with spinning, weaving, and sewing technologies. I took spinning, weaving, and sewing lessons, and bought a spinning wheel, a loom, and a sewing machine. As I conducted research for an article on Schumpeter’s Creative Destruction, using the textile industry as a case study, I was spinning yarn, weaving scarves and a blanket out of the spun yarn, and sewing shirts and vests.
The trilogy on cowboys was the result of an impulsive trip to Dodge City, KS. I like to take two or three long-distance Amtrak trips per year. I was about due for one in the spring of 2019, and I looked at the Amtrak schedule to see where I could go overnight, spend a day or two and then come back. Dodge City presented itself as a possibility. So I booked a trip in the Southwest Chief (former Santa Fe Chief) sleeper to Dodge City Kansas. Dodge City has defined itself for tourists based on its reputation a century and a half ago as the center of the wild west and cattle drives. After I spent a day and a half roaming Dodge City and going through the excellent Dodge City Boot Hill Museum, I was fascinated by Wyatt Earp and the conditions that produced him. Even before I got back to Chicago, I was sketching a law review article that became the Rise and Fall of the Cowboy. Writing the article, I learned quite a lot about the economics of the beef industry and its labor markets and transportation infrastructures. I needed a strategy for limiting the scope of the Rise and Fall article to reasonable bounds, and temporal limits seemed logical. So, after I finish the Rise and Fall article, I started on the second one, The 20th century Cowboy. It focused on how changes in technology and legal regulation shaped the transformation of the beef industry from the 19th into the 20th century.
Given my interest in drones and computers it was natural to become curious about the possibility that robots might do cowboy work, and that gave rise to the third article in the trilogy” 21st-century Cowboy: Robots on the Range.
The first cowboy article contained substantial analysis of the mechanisms for trying to reduce law and order on the cattle ranges and in the cattle towns this drew my attention to the citizen posse and its relationship formal law enforcement officers. It was an intellectual connection to my early interest in dispute resolution,. When I decided to move to Virginia, I wanted to introduce myself to the Virginia bar, and decided a good way to do that was to write some articles for the Virginia bar magazine. I decided that an article on Virginia's somewhat unusual procedure that permits any citizen to go before a magistrate and obtain an arrest warrant without involvement by the police or the professional prosecutor would be good subject matter. That article was published, and then I did a follow-up on pro se prosecution of such private criminal complaint. The second article also was published by the Virginia bar magazine. That spawned the longer traditional review article on private citizen involvement in commencing and controlling criminal prosecutions. Meanwhile, my interest in the posse comitatus concept crystallized into an article on the possibility that urban gangs might be entrusted with law enforcement and communities in which legal and economic systems have largely broken down.
Along the way, technology in law came together again in an article Defending (and Defending Against) Face Recognition By Law Enforcement, which was published just after I moved to Virginia.
Soon after I did my first articles and books, I fell into the pattern of dictating drafts of everything I wrote. At first, this meant creating tape cassettes of dictation that a secretary at Villanova or Chicago-Kent would transcribe. Later, as the technology improved, it meant dictating directly into the built-in software or into Dragon Anywhere Speaking on my iPhone, and then correcting the machine transcription. On average, I wrote seven or eight pages a day, using this process.
