From the January 1964 issue of the Harvard Law Review, a review by Judge Henry Friendly of a new book on legal issues raised by aviation, titled “Air Law,” by NYU Law Professor DeForest Billyou:
A reviewer of this book must begin by asking what purpose it was intended to serve. Since some two-thirds of its pages are judicial opinions, one at first supposes it to be “Cases and Materials” designed primarily for use in a law school course. But Professor Billyou does not say this is his object; in his short preface he compares his book with unnamed and outdated “volumes on air law” which the cognoscenti will readily identify as treatises. His purpose, he tells us, is to reveal the “challenging problems” of air law “on the frontier where law, politics, economics and accounting meet” and “the immense effect this ever-evolving transport medium has had upon, and the important issues it is raising with, traditional legal concepts” in many areas (p. v). “If James Watt made more law than Lord Coke,” says the author in a moment of unwarranted exhilaration, “then the Wright Brothers outdid James Watt” (p. v); it is hardly convincing proof of this to find the cases on air law referring to such old friends as Gibbons v. Ogden, MacPherson v. Buick Motor Co., Erie R.R. v. Tompkins, and scores of others that scarcely owe their existence to Kitty Hawk. One concludes that the author’s intention was to compile something that would serve both the classroom and the library.The frequent references in the opinions to old standbys like those just mentioned sharply raise the issue whether there is any such animal as “air law.” Gray laid it down as an a priori truth “that the Law with regard to a natural force cannot exist before the discovery of the force,” a dogma which he reinforced with the witty query, “What was the Law in the time of Richard Coeur de Lion on the liability of a telegraph company . . . ?” Leaving that question to be answered by experts in twelfth-century legal history, I would assert that by the beginning of the twentieth the law of carriers, of torts, and of property had so developed that the airplane no more entered a legal vacuum than it could have flown in a physical one, and that, in the main, “air law” is simply the application of general legal principles and skills to a new industry made possible by technological advance – the equivalent for lawyers of our century of what the railroad, the telephone, and the telegraph demanded of our nineteenth-century forebears.
What is important, however, is not this kind of ontological debate but the pragmatic problem whether it is useful to have a book like Professor Billyou’s. Insofar as the book may have been intended to make possible a law school course on “air law,” I would answer with a resounding no.
The author footnote: “Judge, United States Court of Appeals for the Second Circuit. Judge Friendly was concerned with ‘air law’ problems as a practicing lawyer from 1929 to 1959.” Ouch.
Visitor Again says:
It would have been interesting to see Henry Friendly review efforts to deal with the law surrounding computers and the Internet, including Orin’s own book.
My one brief encounter with “air law” came when my cousin was killed in a passenger plane crash in Taiwan in 1981–the plane broke apart in midair–and I found there were numerous lawyers who specialized in “air law.” Melvin Belli’s office even came knocking at my uncle and aunt’s door. Anyway, while some familiar tort principles are relevant in air crash liability suits, I rather think one’s local personal injury attorney might be out of his league in dealing with the complexities of “air law.”
March 11, 2011, 11:34 pmDave N. says:
Wow, Judge Friendly really pwned DeForest Billyou — and before the word “pwned” was even coined.
March 11, 2011, 11:45 pmOrin Kerr says:
Visitor Again,
Certainly the comparison to Easterbrook’s “Law of the Horse” article is what drew my attention. I’ve long been on Easterbrook’s side: I’ve always been skeptical about “cyberlaw” courses, and especially Lessig’s view of cyberlaw as a lens for understanding other areas. It seems to me that all law is a lens for understanding law: If that’s the justification for cyberlaw, then cyberlaw doesn’t make much sense. So it was really interesting to see Friendly having the same reaction to the cyberlaw of his day.
As for my own casebook, I felt a duty to include materials on the Lessig/Easterbrook debate when I first tried assembling materials for a computer crime law course in 2001. But I took those materials out by around 2004 because my students found them strange: They told me that my course was based on legal materials not covered elsewhere — the CFAA, child porn laws, the EEA, Wiretap Act, SCA, etc. — so that I didn’t need to worry that my course was the Law of the Horse. But it’s still a question I worried about in the early period.
March 11, 2011, 11:51 pmJay says:
When I was in law school, I was impressed by the whole Easterbrook/”law of the horse” line of argument. But now, after a couple years of practice, it strikes me as considerably weaker, and just the sort of argument that has more appeal to law professors and quasi-academic judges than to practicing attorneys. Of course, at some level of abstraction, everything is like everything else, internet law (or air law) is rooted in principles of tort, contract, statutory interpretation, etc. But despite Judge Easterbrook’s and Judge Friendly’s strictures, practicing attorneys do, in fact, develop relatively narrow specialties in such areas of law. I think this is because academics tend to underestimate the importance of both statutory detail and factually understanding particular industries. As Visitor Again observes, a tort claim arising from a commercial airline accident is going to be governed by very different rules than one arising from a car accident; it does little good to ruminate on how the doctrine of comparative negligence is equally applicable to both.
March 12, 2011, 12:09 amStephen Lathrop says:
Anyone who thinks there is no such thing as air law needs to take a look at the Airport Noise and Capacity Act of 1990. It’s an instance of regulatory capture that not only abolishes local and state police power throughout the nation, but also proscribes regulatory changes initiated by any party other than airport operators or airlines. Its effect was to turn aviation noise regulation entirely over to airlines and airport operators—giving them veto power over noise management schemes such as airport curfews, capacity limits, equipment requirements, measured noise limits, or cumulative noise budgets.
Basically, the Act outlawed noise control at airports, which turned out to be counter-productive. It left people concerned about environmental impacts with no recourse but to sue over flaws in environmental impact statements. So they did that whenever airports wanted to expand. Airport development entered an era of ensnarlement from which it has yet to emerge.
March 12, 2011, 12:10 amOrin Kerr says:
Jay, Stephen,
I think the test is a practical one rather than a theoretical one: Do the distinct legal issues actually exist? If they do, then the field is potentially worth studying as a distinct field. It seems from Friendly’s review that, at least in 1964, the answer for “air law” was “no.” Of course, that doesn’t mean it is “no” today.
March 12, 2011, 12:21 amVisitor Again says:
Orin, do you think it is worth studying civil rights law as a distinct field? Are not the principles adequately covered by courses in constitutional law, federal courts and statutory interpretation/construction?
Granted that the most important function of law school is to give students an understanding of legal theory, and that there is little if anything that courses in air law, cyberlaw or civil rights law add in this regard. But I also think, as Jay’s comment above indicates, there is a place in law school for courses that prepare the student for the practice of law on a more practical level. And there is certainly a place for treatises/casebooks that specialize in subjects like cyberlaw, air law and civil rights law. They are useful to the practitioner as well as the student.
To question whether air law, cyberlaw and civil rights law exist as distinct fields of law is pointless and even silly. Again, as Jay indicates, practicing lawyers treat them as distinct fields of specialization even if they do borrow a great deal from the older, basic, established fields of law.
Even given that it was 1964, the late, great Judge Friendly comes off in this review as a bit of an old curmudgeon fighting to keep things the way they were in his day. I started law school at Harvard in 1965, the year following the publication of this review, and I can tell you there was tremendous resistance among the old guard, of which Friendly certainly was a part, to changing the way law was taught. Why, the old guard even insisted on retaining early Saturday morning classes because that was the way it always had been done!
March 12, 2011, 1:55 amOrin Kerr says:
Visitor Again,
As to your first paragraph, I don’t know, but I doubt it.
As to your second, I think the question is whether there is in fact a practical field.
As to your third, if the test is whether there are lawyers that specialize in it, then I suppose every legal doctrine is a distinct field of specialization — as you know, there are lawyers who specialize in extremely specific areas.
As for your fourth, I don’t see Friendly that way. As a practicing lawyer, Friendly was one of the most influential aviation law specialists of the mid-20th century, and served as the General Counsel of Pan Am from 1946 to 1959. When he says there is no field there, he’s not a curmudgeonly outsider fighting change he doesn’t understand. Rather, he’s the consummate insider who has concluded there is no “there” there.
March 12, 2011, 2:13 amStephen Lathrop says:
As a legal layman I’m more or less helpless on any issue of purely legal analysis, theoretical or practical. But as someone who involved himself for years in a practical way with aviation noise issues, I can tell you that whenever things turn legal, the entire enterprise becomes a series of unpleasant practical surprises.
Ordinary exercises of civil authority are taken off the table from the start. Judges defer to airlines, aviation administrators and airport operators to a degree that I don’t imagine could be found in any other field—maybe the nuclear industry. Empirical evidence, presented by plaintiff’s witnesses offering superb career credentials and degrees from schools like MIT, is dismissed as a matter of policy—judicial policy?…administrative policy?… you can’t even tell—in favor of FAA sanctioned computerized modeling done up by businessmen/consultants with mediocre to non-existent technical credentials. Challenges to the FAA-sanctioned computerized models are simply ruled out (first by the FAA, but with 100% assurance of court support).
Demonstrably false assumptions about where airplanes actually fly, rebuttable with published radar data, are accepted as necessary simplifications, no matter how consequential. Analyses based on wildly incorrect mathematics, such as modeling non-linear phenomena with linear equations, are defended and accepted on the grounds that the people presenting them are acknowledged experts hired by the airport operators.
Bizarre assumptions entrenched in expert practice are unblinkingly accepted—with one result that courts take it as scientifically proved that people who live where the passage of every airplane interrupts conversation, will nevertheless not notice at all if their exposures increase from 30,000 to 60,000 annually. From that flows the obvious legal conclusion that any such increase is environmentally insignificant, and thus doesn’t require environmental analysis.
Legal requirements exist that potentially reasonable alternatives be analyzed, but are deferred until AFTER a preferred alternative has been approved and constructed. Even then, alternative analysis is rationed. Reasonable proposals are acknowledged, but arbitrarily dismissed with legal impunity, typically because budget is said to be insufficient. And anyway, aren’t alternatives moot, what with construction ongoing and all?
It goes on and on and on. As someone who spent quite a bit of time in courtrooms as a journalist, I don’t think I ever saw legal practice that looked as incomprehensible and downright weird as what I saw around aviation impact cases. The cause for that seems to be the daunting technical underpinning of most of the issues. There don’t seem to be any lawyers who come pre-equipped with needed expertise. And lawyers don’t want to put such cases in front of juries. Judges who also don’t understand the field, and won’t take the time to learn, seem reluctant to consider technical evidence about even limited topics. They just try to keep the case out of court any way they can. And if they can’t, they decide for the government, or the airline, or the airport operator—regardless of the evidence—to keep from upsetting the status quo on an issue where they know they would be incapable of writing a coherent decision.
You may have mixed me up by your use of “practical” and “distinct legal issues.” Maybe I’m off the mark even mentioning this. But it seems like a practical legal problem to me. And although it may share similarities with other especially-technical legal fields, this problem depends heavily on highly specific laws, regulations, and traditional practices that seem unique to aviation.
I think that background puts in perspective your remark:
Is it possible that an insider who gets everything wired just the way he wants it to be, would then have an interest in suggesting that nothing special is going on? I think maybe so.
March 12, 2011, 9:58 amGerard N. Magliocca says:
Somebody really ought to write a biography of Friendly. Maybe I’ll try someday.
March 12, 2011, 11:01 amAJK says:
I assume Friendly had no objection to treating admiralty as separate field. (If he did, then I suppose that raises a new set of questions.) Why not the same treatment for aviation law? If the answer is that admiralty has a long and established history as a separate branch of law, that strikes me as begging the question: admiralty has only developed that history because of the decision to treat it as a separate field. Why wouldn’t we do the same with aviation? Conversely, if there’s no reason to use different principles in dealing with aviation issues, why use them in admiralty? This is, of course, a separate question from whether or not Billyou’s book is any good, but I don’t see how that discredits the entire concept of the field, or whether the field should exist.
March 12, 2011, 11:22 amdrunkdriver says:
Agreed, and furthermore, even if there was such a distinct field in 1964, the book still could have been worthless to understanding it. The few practitioners in its vanguard, then and now, probably do have grapple with regulatory complexities, distinct factual issues, and in litigation, distinctive discovery protocols. A casebook with Erie and the like isn’t going to bring you up to speed on this.
March 12, 2011, 12:21 pmMoonshineJoe says:
Guys, this entire discussion is really killing my buzz from reading Neuromancer. How am I supposed to make it through 2L year if I can’t dream of a future career in cypher-punk law?
March 12, 2011, 1:05 pmOrin Kerr says:
Stephen,
I’m sorry about your unhappy personal experience in an aviation-related legal case. But I’m not sure what it has to do with Judge Friendly or aviation law as an academic field.
March 12, 2011, 2:12 pmBruce Boyden says:
Well, this is interesting. I came down in to the comments just to say “Law of the Horse!” but the discussion’s gone far deeper than that. Like Orin’s early draft of his textbook, I start my own draft Internet Law casebook with the Easterbrook “Law of the Horse” article, followed by Lessig’s response. I also find Lessig’s response unpersuasive, but I’m much more intrigued by Easterbrook’s thesis, even at this late date. I think it’s useful for students to consider what if anything unifies the course materials. It seems to me that there are three sorts of unifying themes you could have:
1) “X Law” cases are cases that happen to involve “X.” I think this is where Easterbrook’s criticism has the most bite (and sounds like it was Friendly’s criticism as well).
2) There are people who have a certain practice that relies heavily on knowledge of a lot of obscure or very detailed law that otherwise you wouldn’t likely come across. If “Air Law” means air disasters certainly it would fall in this category–Warsaw Convention, mass torts, etc. But it sounds like the book under review didn’t take this approach. My impression is that most “Internet Law” classes don’t take this approach either. There is law related to domain names, and law related to online privacy, both of which are fairly specialized, neither of which have much to do with each other.
3) There’s a unifying theme at the “meta” level. My own take on what makes Internet Law a coherent subject is that it repeatedly poses interpretive and policy puzzles of a particular sort: How do you take old law written with particular assumptions in mind about how the world works and apply it to drastically changed circumstances? Do you just apply it literally? Translate it? Or make up entirely new law? The downside of looking at the field this way, though, is that eventually these questions stop being asked. I.e., “Internet Law” conceived this way will eventually cease to exist, and get absorbed into other areas as simply a stage in their development.
March 12, 2011, 2:55 pmSteve says:
I’m no expert on admiralty law, but it seems to involve a number of genuinely unique legal concepts, like salvage and the like. I don’t think you can just deduce the answer to an admiralty issue by reference to general principles. That makes it worthy of a separate course, in my estimation.
March 12, 2011, 3:52 pmTwenty Two says:
My sense is that “Internet exceptionalism,” of the form frequently advocated in the 1990s and very early 2000s is now buried, cold, and well beyond any potential for resurrection. But that does not mean that there is no such thing as a set of legal questions unique to “cyberlaw,” as you suggest above, Orin. In some areas, such as 47 U.S.C. 230, the law of the Internet really is different in a way that matters. If one views Internet law as no different than the law of the horse, and thus treats legal issues arising online as just the same as any others, the result can often be nonsensical–perhaps due to a failure to recognize structural aspects of the Internet that make it different than the brick and mortar world (the differences being driven by what Lessig referred to as “west coast code”).
March 12, 2011, 6:09 pmTwenty Two says:
I tend to disagree. Both are driven in a meaningful way by the way the Internet is structured–by its “code.” If the Internet was organized differently at this level, for instance in a fashion like centralized telephone networks, domain name law and privacy law would almost certainly be different. Perhaps reference to Tim Wu’s “The Master Switch” is appropriate here.
So while many “cyberlaw” cases are merely cases that involve the Internet (cases involving public school regulation of off-campus, online student speech under Tinker strike me as a good example), I don’t think this concept applies universally.
March 12, 2011, 6:15 pmStephen Lathrop says:
No need to apologize. It was more of a process than a case, but it was a fine experience. I got far more out of it than I had any right to expect going in. And about 100,000 other people seem to have benefitted as well—a very good outcome.
To get there, I just had to learn that all the rules were crazy, then follow every crazy rule attentively, then add some other ingredients that probably wouldn’t interest you. But I thought, I guess mistakenly, that the crazy rules were what you were asking about.
Of course you are right. I have no clue about Judge Friendly, or about aviation law as an academic field.
March 12, 2011, 6:54 pmDavid Sucher says:
I would only hire a lawyer to help negotiate a contract for a new building unless he had substantial expertise in construction. Yes the general principles as to intention and manifestation are the same but I’d want my lawyer to have knowledge of how things are done in that particular field.
So there are two questions, really.
Is “construction law” a field which introduces new principles? Principles which don’t apply to every business or trade? No. (Or at least I don’t think so.)
Would I hire only a “construction lawyer” to help solve a construction problem? Absolutely yes. (I am not talking about appellate issues but just day-to-day stuff.)
Would a course in “construction law” be useful to give students a jump-start to getting a job? I have no idea. Law firms might not be interested in anything but grades in the basics and don’t want novice lawyers to have too much practical knowledge.
March 12, 2011, 7:16 pmMark N. says:
The mention of “construction law” reminds me that I’ve long wanted to see a list of the “X law” courses offered at at least one U.S. law school, ordered by how many schools offer such a course. I’d guess that there’s a lot of interesting stuff once you get down to the “offered by 1 school” part of the list, but I imagine there are some subjects that seem fringe to me that are actually taught by a dozen schools.
March 12, 2011, 9:10 pmSteve says:
The reason why “construction law” is a valuable specialty is that it involves not only familiarity with the legal issues that come up in construction matters, but also familiarity with the language and practices of the construction industry.
To take a different example, “securities law” is of course a specialty taught in law schools, but a good securities lawyer isn’t just someone who can rattle off the elements of a 10b-5 claim. Rather, a securities specialist understands the unique practices of the securities industry as well as having an understanding of the legal principles involved. When a client calls you with a problem, it’s very helpful if you already understand how a brokerage firm works, how a trade is routed, what role a clearing firm has, etc.
An interesting legal education model would involve teaching some of this practical information alongside the legal principles… sort of a law/business hybrid, really.
March 12, 2011, 10:47 pmAJK says:
In my experience it’s much more that focus on the way business is done in that sector that distinguishes (modern) courses on admiralty. I don’t know why the same wouldn’t be possible or desirable for aviation law (to circle back to the original subject).
March 13, 2011, 2:43 pmJC says:
What is it about the law and names? “Friendly” is a classic in the law enforcement field – we’ve all heard about Officer Friendly. But Billyou? It sounds almost imaginary. Of course the cobbling of imaginary law firms is a fertile field, and perhaps worthy of a post somewhere,,,
March 13, 2011, 4:32 pmDBL2 says:
1) Corporate clients care very much about hiring lawyers with deep knowledge of their business. That explains in large part why corporate clients have long-standing relationships with particular lawyers and law firms. Not only is there an efficiency in not having to get a new lawyer up the curve on the business for each new transaction or litigation, but knowledgeable lawyers give better advice.
2) What clients care about, though, is not what academics care about. There are several major law firms in NY with departments that specialize in aircraft finance – leasing, secured loans, securitizations, etc. There is surely a value to clients in retaining law firms with that expertise and knowledge. See point (1) supra. But it’s hard to see why aircraft finance would be of interest from a theoretical point of view. What’s unique about aircraft finance as opposed to any other form of equipment finance? For that matter, does equipment finance generally present any theoretical questions of sufficient interest to justify that as a separate field of academic pursuit apart from corporate finance?
March 14, 2011, 3:53 amAbdul Abulbul Amir says:
.
Here is a hypothetical air immigration law case I have wondered about. A pregnant German is flying direct from Toronto to Mexico city and unexpectedly gives birth along the way. The delivery starts over Indiana and finishes over Arkansas. The plane continues to Mexico City.
Is the child a US citizen? If so, in which state is the birth attributable?
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March 14, 2011, 10:57 amLibrary: A Round-up of Reading « Res Communis says:
[...] Henry Friendly on “Air Law,” 1964 – The Volokh Conspiracy [...]
March 21, 2011, 5:34 pm