Recent Publication 130 Harv. L. Rev. 521

Recent Publications — November 2016


Baseball and the Law: Cases and Materials. By Louis H. Schiff & Robert M. Jarvis. Durham, N.C.: Carolina Academic Press. 2016. Pp. xxvi, 1014. $120.00. Litigation involving America’s national pastime abounds. From challenges to discrimination against black players to the fate of broadcast rights when a team declares bankruptcy, Baseball and the Law examines the many, sometimes unexpected, legal regulations of the sport. The authors have adopted a familiar casebook format, presenting edited opinions followed by notes providing legal and factual context. While this book’s format is traditional, the content is anything but. One section, for example, is dedicated to the problem of “knotholers,” fans who watch games without paying the price of admission (often, in recent years, from nearby rooftops) (pp. 856–78). The notes after a section on team-name trademarks discuss, among other things, the history of Major League Baseball nicknames (the Cleveland Spiders were so named after they got a set of skinny new players). Chapters are designed to orient readers to the variety of legal issues involving commissioners, teams, stadiums, players, fans, and amateurs. Through the authors’ efforts to collect and organize these cases, Baseball and the Law illuminates how the law shapes the way baseball is played and enjoyed.

Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle over America’s Lands, Endangered Species, and Critical Habitats. By Lowell E. Baier. Lanham, Md.: Rowman & Littlefield. 2016. Pp. xxix, 648. $75.00. Environmental litigation has exploded over the past decades as nonprofits — wielding a variety of complex and aging statutes — have sued federal agencies charged with protecting the nation’s resources. In his insightful book, Inside the Equal Access to Justice Act, Lowell Baier looks beyond these substantive statutes to the little-known role that the Equal Access to Justice Act (EAJA) plays in funding the legal fees of the environmental groups that bring these lawsuits. Expansively tracing the history of the EAJA and its role in the contemporary environmental movement, Baier explores how the intricacies of the legislative process can have far-reaching effects on the development of the law. In addition to assailing the inefficiencies of environmental litigation and its distortion of administrative processes and policies, Baier paints a way forward to better serve public lands policy by amending the EAJA to ease the litigation burden on agencies as they attempt to give life to the policy goals expressed by Congress. Drawing on decades of experience as a litigator and his passion for old-school wildlife conservation, Baier’s critical eye charts a provocative, if measured, path forward for environmental administration.

Just Medicine: A Cure for Racial Inequality in American Health Care. By Dayna Bowen Matthew. New York, N.Y.: New York University Press. 2015. Pp. xii, 271. $30.00. Professor Dayna Bowen Matthew has set her sights on a clear and glaring problem with the American health care system: inferior medical treatment for racial minorities. Linking this phenomenon to social-science literature on implicit racial bias, Matthew identifies unconscious racism in the decisions of both patients and providers, leading to disparate care and outcomes. After surveying historic and modern racial discrimination in American health care delivery, Matthew introduces the Biased Care Model, a conceptual framework that “identifies the mechanisms by which implicit biases affect disparate health outcomes” (p. 4). Though Matthew offers a grim diagnosis, she also advances a treatment plan; indeed, Matthew contends that we can take steps to eradicate disparate outcomes by charging health care providers with both the moral and legal responsibility to correct unconscious racism. This, Matthew posits, must begin with reforms to our federal civil rights regime that take account of contemporary knowledge of human psychology. Real change, however, will require a much broader scope of action. At the confluence of two major topics in the legal and political discourse, this book is worthy of attention.

The Psychology of Tort Law. By Jennifer K. Robbennolt & Valerie P. Hans. New York, N.Y.: New York University Press. 2016. Pp. xiv, 313. $89.00. As taught in most law school classrooms, the conventional wisdom is that tort law operates as an effective mechanism to deter unreasonable conduct by imposing liability for the costs of such conduct. Rational actors, forced by tort law to internalize the costs they unreasonably impose on the world, behave with appropriate care and take only reasonable risks. Yet tortious behavior flourishes. Why? Because human psychology is more complex than Judge Learned Hand’s famous formula admits. In this first in a series on psychology and the law, Professors Jennifer Robbennolt and Valerie Hans “explore tort law through the lens of psychological science” (p. 6), from conduct to judgment. Using research on heuristics, anchoring, loss aversion, and more, the authors assess how the law fits with psychology: How do decisionmakers — potential tortfeasors all — actually internalize the law of negligence? How do jurors calculate damages? How do lawyers — those most reasonable of reasonable persons — weigh settlement offers? In a light and conversational style that melds classic tort cases with modern psychological research, Robbennolt and Hans begin to answer these questions.