Blog Posts: Book Club

Lawyers as Heroes and Collateral Damage from the Cold War

Saving Nelson Mandela book cover

I tend to enjoy blog posts that are informal and personal, so I hope you will not mind if I adopt that tone. After all, if you take too much time composing, it’s not really blogging, is it? None of what I say below will be carefully researched or, for that matter, carefully edited. Do not take this approach in law school except, of course, if you’re writing a blog.

Since I am being personal, I will begin by saying that Professor Ken Broun, the author of “Saving Nelson Mandela,” is a prince among men. You ought to get to know him if you have chance. Although he retired recently, he is still a big presence around Carolina Law, and a visit to his office will be well worth your time. He can regale you with stories about South Africa, or his time as mayor of Chapel Hill, or his years as dean of Carolina Law or his frequent jazz piano gigs around town.

I had many reactions to Professor Broun’s book but in this brief note I will focus on two: lawyers as heroes and collateral damage from the Cold War.

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4 Comments | Posted by Thomas A. Kelley III (Tom) on Mon. July 21, 2014 10:00 AM
Categories: Book Club

A Former Public Defender Weighs In On "Saving Nelson Mandela"

Saving Nelson Mandela book cover

I am delighted to have been invited to engage in this discussion and to offer my reflections on “Saving Nelson Mandela,” Prof. Ken Broun’s important book chronicling the Rivonia Trial. As a former public defender who has represented clients in highly publicized cases, I was most interested in the ways in which the trial was not that different from even the most routine criminal cases. Like my third-year law students who represent children in the juvenile delinquency courts of North Carolina, the defense team, led by Bram Fischer, had to make strategic decisions regarding pre-trial motions, whether to have their clients testify, and what approach to take during sentencing. They also had to master the art of cross-examination — not only to soften the impact of damaging testimony by exposing a witness’s bias but also to demonstrate that hearsay was unreliable in order to convince the judge to exclude it. As Prof. Broun noted, these basic trial advocacy skills were critical in shaping the way in which the evidence came in as well as Justice de Wet’s attitude toward the defendants; in fact, the lives of Nelson Mandela and his co-defendants may have been saved because the defense attorneys were such “devastating cross-examiner(s).”

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2 Comments | Posted by Tamar R. Birckhead on Mon. July 14, 2014 10:00 AM
Categories: Book Club

Studying Constitutional Law in South Africa: My Personal Experience

Saving Nelson Mandela book cover

The book that we are reading this summer has deep personal meaning for me. South Africa, Nelson Mandela, and the book’s author, Professor Ken Broun, all played crucial roles in my development as a lawyer.

In the summer of 1996, there was no more interesting place on Earth for an aspiring lawyer interested in constitutional law than South Africa, where new President Nelson Mandela was leading his nation toward a new, post-apartheid constitution. I had just finished my 1L year at Carolina law, and had decided to spend my summer in Cape Town, South Africa, studying international law and international business transactions at the University of the Western Cape.

My interest in South Africa had been sparked by world events, but the intellectual fire was stoked into a blaze by my exposure to Professor Broun, with whom I was going to work as a Research Assistant during my 2L year. That summer I studied law, but I also had amazing experiences.

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No Comments | Posted by Richard E. Myers II on Mon. July 7, 2014 10:00 AM
Categories: Book Club

Ken Broun Offers Insight Into "Saving Nelson Mandela"

Saving Nelson Mandela book cover

I am delighted that UNC School of Law has chosen my book, Saving Nelson Mandela, as the selection for this years Admitted Students Book Club. I intended for the book to be a story about people who fought against the tyranny of a brutal government and a racist system. Some of those were activists who were in the front lines. Others were lawyers who gave the best that they had, both to save the lives of their clients and to help them promote the cause in which both lawyers and clients believed.

In 1963, when Nelson Mandela and nine others were charged with the crime of sabotage under a recently enacted South African statute, most people in that nation and around the world expected that the defendants would be hanged. The defendant had, most certainly, committed acts that would constitute a violation of the statute. The statute clearly provided for the death penalty as an option for the trial judge.

Something happened during the course of the trial that changed the outcome from death to life imprisonment. All of the eight defendants convicted served intolerably long sentences, ranging from 22 to 27 years. Yet, all survived their prison ordeal to emerge as leaders of a new, democratic South Africa.

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5 Comments | Posted by Kenneth S. Broun (Ken) on Fri. June 27, 2014 10:00 AM
Categories: Book Club

Join Us for the 1L Book Club

Saving Nelson Mandela book cover

Last summer, we issued an invitation to our incoming first-year class: let’s read a book together this summer about law and lawyers. You’re all about to begin three intense years in close quarters, undergoing professional legal training. Let’s find a way to share broader thoughts about the whole enterprise, kicked off by reflections offered by selected Carolina Law faculty members.

We turned last year to Jonathan Haar’s “A Civil Action,” a harrowing account of a childhood leukemia epidemic in a suburban Boston neighborhood in the 1970s, and the toxic tort lawsuit eventually brought by anguished parents and their flamboyant lawyer, charging that industrial chemical waste, leaching from nearby corporations into a nearby stream, may have been responsible for the children’s illnesses and death.

In some ways, this year’s selection could not be further removed: an ocean away, in sub-Saharan Africa; a different legal system, apartheid South Africa of the 1960s; with completely different legal issues – not the American law of toxic torts but the South African Sabotage Act, a case with allegations of criminal conspiracy, sabotage, even high treason, with death by hanging awaiting defendants who included Nelson Mandela, Walter Sisulu, Govan Mbeki and other “enemies of the state.”

Yet themes that were central in last year’s reading reappear: the nuanced roles of lawyers and judges play in any legal system, the clash of contesting parties and values, and the sometimes dismaying relationship between law and “justice.” The tale told in “Saving Nelson Mandela: The Rivonia Trial and the Fate of South Africa” (Oxford Univ. Press, 2012), authored by former UNC School of Law Dean and Emeritus Professor Kenneth S. Broun, begins with the arrest of key South Africans, who are members of the African National Congress and the banned Communist Party. They were seized on July 11, 1963, at the suburban home of an affluent white family in Rivonia, a Johannesburg suburb, where they had in fact gathered regularly over several years to plan actions meant eventually to overthrow the government.

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No Comments | Posted by John Charles Boger (Jack) on Thu. June 19, 2014 10:00 AM
Categories: Book Club

"A Civil Action" - A Peek at the Rules of Evidence

A Civil Action book cover

As I promised in my last post, I want to get back to the conflict of myths that underlies our roles as lawyers in both civil and criminal cases. The reality of trial practice in America is that very few cases actually proceed to trial. Most criminal cases are resolved by plea, and most civil cases settle. As I said earlier, for judges, trials and wide-ranging searches for the truth about some big issue tend to be antithetical. Pretrial devices such as interrogatories and requests for admission are supposed to make sure the trial is only about the issues that are disputed. “A Civil Action” provides us with an opportunity to consider how evidentiary systems and civil pleading rules are designed to narrow, not broaden, the focus of the finder of fact.

In the book, the author reminds us that as a Harvard Law School professor, Charles Nesson had spent many years pondering the nature of judicial proof — proof in the courtroom — and its relationship to the truth. His very famous blue bus example demonstrates the difficulty posed by statistical probability cases. In the example, an individual is injured in an accident caused by a bus, and the company that operates 80 percent of the buses on the route is the Blue Bus company. As a matter of statistics, it is more likely than not — the burden of proof in civil cases — that the injuries were caused by a driver for that company. But as the book notes, Nesson was certain that “[a] verdict based simply on the odds, … even very good odds, has no legal or moral force, and sooner or later the public would find such verdicts and the judicial system that permitted them unacceptable.” By the time Nesson gets to court with the case as an attorney, however, he believes that half a billion dollars should or could change hands as a result of punitive damages, awarded on statistical likelihoods of cancer causation.

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No Comments | Posted by Richard E. Myers II on Wed. July 31, 2013 10:00 AM
Categories: Book Club

"A Civil Action" and Multiple Truths

My Jamaican grandfather used to say, “There are three sides to every argument; your side, my side and the truth.” And my mother used to ask my brothers and me, “What is this argument really about, because it’s not about this…” (whatever this happened to be, a slice of pizza, who got to sit closer to the television, etc.).

I’m happy to join this conversation about “A Civil Action.” In the book, there are multiple people with multiple visions of what the story was really about. There are people who were drinking contaminated well water. Many of them were made ill by something. There are the lawyers, who have very different visions of what that something was, and of the relative roles of plaintiff’s lawyers and defense lawyers, and of the import of the larger narrative. There are the competing government narratives – the engineer who certified the water safe, the mayor who was trying to avoid drought conditions and make water affordable, the EPA regulators who were trying to find out what happened, while avoiding being sucked into an acrimonious lawsuit. There are scientists and doctors trying very hard to account for water flow underground, and the timing of the leach of chemicals into wells, and the relative concentration of particular chemicals, and the carcinogenic effects of those chemicals. Some of them may have been acting in bad faith, others in good faith but misguided, others still may have been absolutely right. And there is our invisible narrator, who needs a hero for his story, and he has chosen plaintiff’s lawyer Jan Schlichtmann despite, or maybe because of, his flaws. Their varying roles were crucial lenses through which they viewed the facts of the case.

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No Comments | Posted by Richard E. Myers II on Thu. July 25, 2013 11:44 AM
Categories: Book Club

"A Civil Action:" Torts, Environmental Law, and the Right to be Free from Externally Imposed Harms

A Civil Action book cover

In my last posting, I told you that when I read “A Civil Action” the first time, it really started me thinking about the relationship between torts and environmental law, and also the whole basis for torts and other common laws in general.

At the time that the action takes place in the book, the Environmental Protection Agency and many states were first starting to really apply hazardous waste laws (CERCLA and RCRA) to real-life situations. When you finish the book, you will learn that the EPA and Massachusetts later conducted a clean-up of the Woburn site. Both CERCLA and RCRA require the contributors of hazardous waste to a location to pay for cleaning up or remediating a site so that there is no longer risk of increased health consequences to humans or the environment. These laws, passed in 1976 and 1980, were based on the power of Congress to “regulate interstate commerce,” a very important power that you will learn more about in law school. Public health is an interstate commerce issue and the reach of the companies that dispose of wastes (and the wastes themselves) also cross state boundaries.

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3 Comments | Posted by Victor B. Flatt on Wed. July 24, 2013 10:00 AM
Categories: Book Club

"A Civil Action:" The Relationship of Torts to Environmental Law

I was very pleased to learn that the book for entering first years at Carolina Law was “A Civil Action.” Like Professor Birckhead and many others, I first read this book over a decade ago, and it is a pleasure to read it again. I have perhaps had more of an interest in this book than even the other professors in the conversation because my primary area of teaching and scholarship is in environmental law, which is designed, in part, to control the effects of pollution on human beings. As you get to the end of the book, you will hear more about the parallel process of clean-up under federal environmental laws that is a complement to the tort case brought by Schlichtmann.

I am also a Torts professor, and the case described in a Civil Action is a torts case. Reading the book for the first time made me reflect a good deal on the relationship of torts to environmental law, and in fact inspired a vein of scholarship which I will discuss in my next blog.

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1 Comment | Posted by Victor B. Flatt on Thu. July 18, 2013 3:57 PM
Categories: Book Club

"A Civil Action" and Procedural Justice

A Civil Action book cover

In my last post, I highlighted several themes that resonated with me while reading “A Civil Action.” Now I will continue the conversation with a discussion of the concept of procedural justice, as it touches upon the questions that I posed regarding the purpose of the litigation process and the lawyer’s duty to her clients.

One of the most striking aspects of the book for me was the complete absence of the plaintiffs from the bulk of the narrative. After Jonathan Harr chronicles the illnesses and subsequent deaths of the Woburn children in the first few chapters, the plaintiffs aren’t mentioned again in any meaningful way for hundreds of pages. It is not until p. 316 that we hear of them again, when it is noted almost in passing that the lawyers provide the families with daily copies of the trial transcripts, which few of them read consistently. In contrast to the total immersion in the litigation by Schlichtmann and his associates, we learn that “as the weeks dragged on and the daily transcripts mounted into a towering pile, [the plaintiffs’] lives settled back into the normal daily routine of work and school. The trial — their trial — became a distant echo.”

The next mention of the families is not until p. 441 when they are beckoned to a meeting with Schlichtmann to discuss settlement and their options.

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6 Comments | Posted by Tamar R. Birckhead on Wed. July 17, 2013 10:00 AM
Categories: Book Club
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