I was just sent an article to comment on for a law review. The article describes empirical data showing the "blinders" that prevent judges from "getting it right" even when the facts and law are clear. I was going to reject the invitation to comment (because I doubted I had anything of value to say) until I got to the author's conclusion that his insights should prompt lawyers to more positively consider mediation and arbitration. Since I have to believe that mediators and arbitrators, along with lawyers and their clients, along with all members of the human race, have similar "blinders," and I also believe that our particular democracy gains a lot from trials, judges and juries, blinders and all, I may be compelled to respond. And that is how much of my research and writing gets started—by an invitation to think about something.

Along those lines, I have been invited to participate in a conference on whether there should be a uniform model of state civil procedure. Several authors have suggested that procedural reform should be predicated on empirical data. I believe in empirical data and rely on it a lot in my own work. But the more I think about it, the more I am convinced that the data will not help much in deciding: a) whether a model state code of civil procedure is a smart idea, and b) if it is, what provisions the model should contain. I had already decided to use my half-year sabbatical (starting January 2007) to write about whether society would benefit from a more reduced, confined, simple procedure for most non-criminal cases than that provided by the Federal Rules of Civil Procedure. I think I will now focus that inquiry on how one could decide whether a simpler procedure is a good idea, and the extent to which empiricism can beneficially aid that inquiry. In short, I am inclined to think that the empiricism I so admire cannot tell me those things I would most like to know. But, of course, I may change my mind—and that is one of the joys of research and writing.

One reason that I am not in the middle of a research project right now is that I have just finished a long-time project. My colleague, Professor Margaret Woo, and I just published a book, Litigating in America: Civil Procedure in Context (Aspen Press, 2006). This book is an in-depth description of American civil litigation and civil procedure for foreign law students, lawyers, and judges, along with first-year American laws students, who want a more contextual, historical approach to the topics. Our book assumes no prior knowledge about American government, history or law, and focuses on how civil procedure developed in our country, its underlying values, how it actually works in practice, and how it compares with the processes used in other countries. We think our book fills a void in a literature that tends to treat legal doctrine in a manner more disembodied from context than we find helpful or realistic.

Margaret and I have also recently provided Chinese scholars with our comments on their Third Draft of the People's Republic of China Civil Procedure Code. On this project, three Massachusetts judges, also familiar with the Chinese legal community, assisted us.

Before that, I published an article, The Integration of Law and Fact in an Uncharted Parallel Procedural Universe, in 79 Notre Dame Law Review 1981 (2004), with my former student (now a professor of law), Thom Main. Thom and I noticed that many lawyers were relying on documents and videos not in any way contemplated or regulated by the formal rules of civil procedure. They write their opponents lengthy letters and often even prepare notebooks or films describing in great detail the applicable law and how the facts of their cases intersect with that law in a way that is favorable to their clients. This "uncharted parallel procedural universe" was largely unnoticed in legal scholarship and Thom and I decided to try to shine some light upon it and to explore how and why it developed and its implications.

My most interesting cases involved representing (with my law partner) firefighters against their chief who allegedly stole money from their benefit fund, and then representing their union in collective bargaining negotiations with the town. But my most fun case was something else. We represented college students who, for their film class, were making a movie protesting a bunch of things—the Vietnam War, Richard Nixon, "bourgeois" values and the like—during the early '70s. For their film they staged the kidnapping of a young nude woman in an affluent community. A resident, while riding on horseback, witnessed the scene. She was not amused and called the police. Our clients' parents and the police, who charged them with indecent exposure and didn't buy the students' free speech claim, also were not amused. But the police liked the film. Therein lay a compromise that successfully ended the case.

In my Legal Imagination class, in which we explore how lawyers think, write and speak compared to others, we read Jane Austen's Pride and Prejudice, perhaps the best book on judging ever written. I have read it at least 20 times, and still laugh and cry (with joy) each time. This last month, in preparation for visiting Southern Spain, I read The Ornament of the World, How Muslims, Jews, and Christians Created a Culture of Tolerance in Medieval Spain (Maria Rosa Menocal, 2002). Our contemporary world has a lot to learn.

As implied in the book I just read about medieval Spain, my wife and I love to travel. When in Boston, my spare time is often spent on the Riverway Project, an initiative at Temple Israel (a Reform synagogue) to connect young Jewish adults with their heritage. For a person who is not very religious, it is odd that I am in two Jewish study groups, and working on a book with an erudite friend that will expose our own adult children (if they read it) to the joys of reading and thinking about three millennium of Jewish texts. Go figure.

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