Faculty Working Papers

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Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Classic Catalog to locate a working paper.

Recent Working Papers:

Proportionality in Perspective: Historical Light on the Law of Armed Conflict

Abstract:

“Proportionality” – the doctrine that military attacks must not cause “excessive” harm to civilian life and property – was not mentioned in any international convention on the law of armed conflict until Additional Protocol I (1977). Commentaries by the Red Cross depict AP I’s rule as a return to traditional understandings, implicitly repudiating their abandonment by the western Allies in the Second World War. The historical record is quite different. Leading commentators before the Second World War endorsed food blockades and massive destruction of infrastructure. American military commentators, down to the 1970s, assessed World War II practice as broadly consistent with international law. At the time it was negotiated, AP-I was not seen as a radical departure from Twentieth Century practice. It should not be interpreted to impose disabling constraints on contemporary military action. Different military challenges justify different levels of harm to civilians. The context of military action must matter as much as any abstract formula like “proportionality.”

“Reverse Carolene Products,” the End of the Second Reconstruction, and Other Thoughts on Schuette v. Coalition to Defend Affirmative Action

Abstract:

This Article tries to make sense out of the political process doctrine in the wake of Schuette v. Coalition to Defend Affirmative Action.

The political process doctrine made a certain amount of prudential sense when created in the late 1960s to invalidate referenda overturning fair housing laws; the Court correctly discerned that these repeals were motivated in substantial part by racism. Moreover, the justices likely thought that the constitutional-amendment-by-referendum process was grossly unfair to blacks for “reverse Carolene Products” reasons, preventing them from counteracting the political disadvantages of an isolated and unpopular minority with the advantages of a concentrated interest group.

The political process doctrine became entirely unstable once the issue of “what’s good for African Americans” and “what’s motivated by racism” became less clear. This had occurred both because of a huge decline since the 1960s in racist attitudes by whites, and because the issues have changed from rectifying overt racial discrimination to more complex social policies. If the political process doctrine is unstable with regard to African Americans, it becomes positively incoherent and unworkable once one considers the diversity both among and within other “minority” groups. 

The Supreme Court is left with four options when it confronts the political process doctrine in the future. Option one is to limit the political process doctrine to the facts analogous to the facts that led to its adoption: a minority group and its allies manage to get a law or law passed protecting them from discrimination, but the majority overturns those laws via a constitutional amendment that changes the political process to their disadvantage.

The second option is that the doctrine would only apply when voters overturn government policy meant to mitigate an unambiguous “racial injury” identified by the Court. This category is likely to be vanishingly small, at best.

Third, if a liberal majority retakes the Court, it could follow Justice Sotomayor’s lead and embrace an expansive version of the political process doctrine.  How to do this coherently remains unclear.

Finally, the Court could follow Justice Scalia’s suggestion and eliminate the doctrine. This path would have the virtue of forthrightness and clarity, but that goes against the grain of the Supreme Court’s jurisprudence on race, which has long preferred opacity and complication. Moreover, Scalia is shy three votes for this reversal.

And so, the political process doctrine, problematic thought it may be, seems likely to survive in some form for quite some time.

The Law and Economics of Litigation

Abstract:

This chapter examines the basic model of the law and economics of litigation. Because the Rules of Civil Procedure and the Economics of the Litigation/Settlement decision are covered in separate chapters of this volume, this chapter will focus on private civil litigation, in particular the litigation value of a lawsuit and the incentives generated for filing a suit. The chapter begins with the simple one-stage single plaintiff/single defendant investment model of litigation, and sets out the conditions for filing, default, settlement, and litigation. The analysis then examines the effects of litigation cost and fee‐shifting as well as the effects of percentage contingency fee arrangements within the standard one‐stage model.

The model is then modified to take into account sequencing and option value. We show how litigation with multiple stages and the revelation of information alter the investment value of litigation, as well as the effects of litigation reform proposals such as fee‐shifting. Finally, the chapter discusses third party or external effects. We examine how these additional complications affect the outcome of litigation, the viability of a lawsuit and the predictions of the standard model of litigation.

This chapter is not intended to be a comprehensive overview of economic analyses of litigation and civil procedure (See Cooter & Rubinfeld (1989), Kobayashi & Parker (2000), Spier (2007)). Rather, this aim of this chapter is to set out the basic mechanics of the law and economics of private civil litigation, and examine how a more robust examination of sequential decision‐making in litigation alters some of the basic predictions of the simple model.

What To Do About Federal Agency Science: Some Doubts About Regulatory Daubert

Abstract:

It is tempting to think that because the Daubert/Rule 702 reliability test has improved the quality of expert evidence in toxic tort and other cases, applying that test to federal agency decision making would also improve the quality of scientific evidence relied upon by agencies. As this Article shows, however, that supposition is likely wrong, because (a) there is little reason to think that courts have more institutional competence to deal with scientific issues than do agencies; (b) much of the criticism of agency reliance on science is based on the regulatory standard the agency is using, which is not a “Daubert” issue; and (c) while Rule 702 requires courts to exclude speculative evidence about past events, the regulatory mission of agencies often requires them to engage in speculation about prospective risk. Courts have other mechanisms they can use to nudge agencies toward better scientific decision making, but “regulatory Daubert” should be a non-starter. There is one major exception: because Rule 702 evolved to deal with the specific problem of adversarial bias by expert witnesses, applying Rule 702’s reliability standards is appropriate when considering expert evidence of causation of individual injury in a hearing with adversarial experts, as in claims arising under the Vaccine Act.

Does the Magna Carta Embody a Proportionality Principle?

Abstract:

American scholars often argue that the Magna Carta embodies a “proportionality principle” mandating that the punishment fit the crime. This principle, according to a familiar narrative, found expression centuries later in the English Bill of Rights, which was reproduced another century later in the American Bill of Rights. Justices on the U.S. Supreme Court have claimed the authority of the Magna Carta when infusing the Eighth Amendment with a proportionality principle not immediately evident from its text. 

This Essay explores and questions the narrative. The argument that the Magna Carta embodies a proportionality principle seizes upon three Chapters (20 to 22) that provide that a penalty not exceed “the degree of the offense.” Yet these sections exclusively concern the Norman practice of amercements—a penalty imposed for a litany of administrative offenses that were almost never of a criminal nature. Furthermore, given the prevalence of violent crime and the widespread acceptance of cruel punishment, it is implausible to project humanitarian motives onto the authors of Chapters 20 to 22. The Essay concludes with broader reflections on the uses made of the Magna Carta in this year, the 800th anniversary of its sealing.  Like virtually every legal document in recorded history, the Magna Carta embodies at some level a proportionality principle. But as jurists purport to extract more meaningful and specific lessons from the Magna Carta on this and other points, their arguments lapse into poor scholarship and hopeless anachronism. 

Patent Licensing and Secondary Markets in the Nineteenth Century

Abstract:

The selling, buying and licensing of patents is controversial today. Inventors, companies, and universities who license their patents are labeled with the “patent troll” epithet, and academics, judges, lobbyists and others have decried this commercial activity as a new, harmful phenomenon. This historical claim, though, is profoundly mistaken. This essay contributes to the ongoing academic and policy debates by presenting new historical data and summarizing preexisting historical scholarship on the hoary practice in America’s innovation economy of both patent licensing and the buying and selling of patents in what economists call a “secondary market.” Famous inventors, such as Thomas Edison and Charles Goodyear, used this business model, as did many other inventors and companies. In sum, patent licensing and secondary markets have long been a key part of America’s innovation economy since the early nineteenth century.

Collective Redress for Antitrust Damages in the European Union: Is this a Reality Now?

Abstract:

Private antitrust litigation is now a reality in the EU and the implementation of the 2014 Directive on actions for damages from competition law infringements will further stimulate such litigation. In 2013, the Commission also adopted a Recommendation on Collective Redress, which takes the form of a horizontal framework whose principles are set to apply to claims regarding rights granted under EU law in a variety of areas, including competition law. The Recommendation takes a conservative approach to collective redress, largely due to the fear that Member States may adopt mechanisms triggering unmeritorious litigation. Many in the EU consider that the US class actions regime has led to excessive litigation by entrepreneurial lawyers that, in the end, produce limited benefits to victims while creating significant costs to society. This view is, however, questionable since district courts, which are called to certify class actions, have in recent years exercised a more rigorous analysis of the claims presented to them. In addition, by opting for an “opt in” regime and the “loser pays” principle, while not authorizing contingency fees and punitive damages, the Recommendation may have made it harder for victims with small claims (i.e., individual consumers that have been overcharged for the goods they purchase) to obtain compensation for the harm suffered.

Loyalty Rebates after Intel: Time for the European Court of Justice to Overrule Hoffman-La Roche

Abstract:

In June 2014, the GCEU confirmed the Decision of the European Commission that condemned Intel for breaching Article 102 TFEU by adopting exclusive rebates and “naked restrictions”. This judgement, in which the GCEU considered that in line with Hoffman-La Roche loyalty rebates should be quasi-per se illegal has been subject to many criticisms as not in line with the teachings of economics. This paper discusses the shortcomings of this judgment and argues that it is great time for the CJEU to abandon the application of its quasi-per se rule of illegality approach to exclusive dealing and loyalty rebates and replace it by a structured rule of reason. Such an approach would have many advantages and create greater coherence in the case-law of the CJEU on unilateral pricing conduct.

The Regulatory Adventure of the Two Norwood Builders: Sherlock Holmes Crosses Paths with Congress, the President, the Courts, and the Administrative State, in the Press

By: Ross Davies

Date Posted: 2015

No.: 15-14

Full text (most current version) on SSRN

Abstract:

It was almost certainly some combination of law on the books and law in the works that inspired the New York World to publish its 1911 version of the Sherlock Holmes story, “The Adventure of the Norwood Builder,” in not one, but two, formats. (In its Sunday editions from April 9 to July 2, 1911, the World republished the thirteen stories from The Return of Sherlock Holmes in their original sequence, with “Norwood Builder” appearing on April 16.) The law on the books was a series of interpretations of the Mail Classification Act of 1879 by the U.S. Post Office Department (in 1901) and the U.S. Supreme Court (in 1904). The law in the works was the ongoing congressional and presidential interest in tinkering with postal service in general and second-class mail rates in particular — an interest that manifested itself in 1911 in the form of hearings conducted in New York City by a special federal Postal Commission headed by Justice Charles Evans Hughes. The results were: (a) a colorful, relatively small, booklet version of “Norwood Builder” (and similar booklets of the other stories in the series) for in-town readers of the World, and (b) black-and-white, relatively large, tabloid versions of the same stories for out-of-town subscribers to the newspaper. Unfortunately, decisions by several of America’s great libraries to discard their hard copies of the World have left us (at least for now) with the rather plain tabloid version of “Norwood Builder,” but not the colorful booklet version, to share with readers of the Green Bag Almanac & Reader.

Metaphysical Univocity and the Immanent Frame: Defending Religious Liberty in a Secular Age?

Abstract:

This article is the first installment of three articles. This article examines and appropriates concepts such as metaphysical univocity (a scheme initiated by John Duns Scotus and enriched by insights proffered by Muslim philosopher Ibn Sīnā) and then considers the immanent frame as part of my defense of religious liberty. The second installment applies my defense to current controversies in the United States. The third installment utilizes ideas and concepts from the first two articles as part of a comparative study of religious liberty in Turkey wherein I considers the status of religious minorities within Turkey’s borders. This tri-part study is sparked by the contention that:

The freedom to practice one's chosen faith is of vital importance to the United States. It was a quest for religious freedom that motivated many of America's founders, and this remains fundamental to [the United States]. As President Obama said in 2010, "The principle that people of all faiths are welcome in [our] country, and will not be treated differently by their government, is essential to who we are." Today, throughout the world and indeed even here in the [Organization for Security & Cooperation in Europe] (OSCE), governments and societies are struggling with rising religious diversity even as they are called upon to protect the fundamental rights of individuals in all communities who seek to practice their own religious beliefs.

As [former] Secretary Clinton put it, "religious freedom provides a cornerstone for every healthy society." The right to believe or not to believe, and to practice one’s convictions without fear of government interference or restriction, is a basic human right. Today, religious freedom is restricted in ways both overt and subtle in too many countries, including participating States. [Ambassador Ian Kelly, United States Mission to the OSCE, Delivered at the OSCE (March 3, 2011).]

The first installment of this project shows there are, indeed, grounds for pessimism regarding the fate of religious liberty in both the Latin West and the United States.

Judicial Treatment of Daubert Motions: An Empirical Examination

By: James C. Cooper

Date Posted: 2015

No.: 15-12

Full text (most current version) on SSRN

Abstract:

In 1993, the Supreme Court established a new standard for the admissibility of expert evidence with its decision in Daubert v. Merrell Dow Pharmaceuticals. Daubert, provided an interpretation of Federal Rule of Evidence 702 that replaced the “general acceptance” standard under Frye v. United States, with one that focuses on methodological rigor. Several studies have attempted to examine the extent to which Daubert has been an effective gatekeeper in purging “junk science” from the courtroom. Rather than attempting to measure impacts from Daubert, this study examines the way in which courts handle Daubert motions. Utilizing a sample of 2,127 Daubert motions made in 1,010 private civil federal district court cases from 2003-2014, and involving 57 different causes of action, this paper empirically examines how courts handle Daubert motions. The data suggest that Daubert rulings serve as inflection points in litigation, and that the longer a Daubert motion pends with the court, the lower the odds of settlement. Using a Cox proportional hazards model, I estimate that the relative odds of settlement is nearly ten-times lower for cases with median motion pendency times compared to those in the 10th percentile, and cases with pendency times in the 90th percentile are three times less likely to settle than those with median pendency durations. The apparent impact of Daubert rulings on case termination suggests that courts might reduce litigation time and costs if they were to adopt “Lone Pine”-type procedures that structure expert discovery and concomitant Daubert motions early, especially for claims that require expert testimony to prove certain elements.

Patent Assertion Entities and Antitrust: A Competition Cure for a Litigation Disease?

Abstract:

PAEs have been much in the news because of certain practices that imply their demand for royalties is nothing more than extortion based upon the nuisance value of a lawsuit the PAE might bring, or explicitly threatens to bring, if no agreement is reached with the party practicing the patent. The PAE phenomenon has prompted suggestions that the antitrust laws be applied to limit the effect that PAEs have upon innovation by the companies most affected, typically those in the high-tech sector.

We conclude there is no evidence at this point that PAEs create a new or unique antitrust problem, that their business model warrants more or less scrutiny than others as a matter of antitrust analysis, or that competition enforcement agencies would be coming to the aid of consumers by devising creative extensions of or departures from the standard antitrust framework in order to address PAEs’ conduct and business arrangements. If and when PAEs present legitimate antitrust problems by acquiring or otherwise creating market power to anticompetitive ends, which is certainly possible, the standard antitrust framework is fully capable of reaching that conduct and providing adequate remedies.

This is not to say some activities of PAEs are not problematic or do not call for law reform insofar as PAEs are exploiting aspects of the litigation system to extract settlements based not upon the merits of their claims but rather upon the cost of defending against them. The rise of PAEs, however, does not mark the first time lawyers have found a way to profit from bringing or threatening to bring cases purely for their settlement value. Indeed, this has been a recurring problem, though it has arisen in a variety of otherwise unrelated types of litigation.

Therefore, we suggest caution before changing substantive antitrust standards or enforcement policies to reach PAEs rather than proceeding upon the reasonable premise that the inefficiencies associated with PAEs are the result of a litigation problem.

Amicus Brief in Obergefell v. Hodges

By: Andrew Koppelman Ilya Somin

Date Posted: 2015

No.: 15-10

Full text (most current version) on SSRN

Abstract:

This Supreme Court amicus brief argues that denial to same-sex couples of the right to marry is sex discrimination.

If April DeBoer were a man, or James Obergefell a woman, or Valeria Tanco a man, or Greg Bourke a woman, then state law would readily give them the relief they seek. But because the state laws challenged in these cases provide that only a man can marry a woman and only a woman can marry a man – or that existing marriages will be denied recognition if they do not fi t this description – April and James and Valeria and Greg are being discriminated against on the basis of their sex. Such gender-based classifications constitute sex discrimination. Accordingly, they must be subjected to intermediate scrutiny.

NFIB v. Sebelius and the Constitutional Debate over Federalism

By: Ilya Somin

Date Posted: 2015

No.: 15-09

Full text (most current version) on SSRN

Abstract:

The litigation that culminated in the Supreme Court’s ruling in NFIB v. Sebelius represented a class between two opposing visions of constitutional federalism: one contending that courts should allow Congress nearly unlimited power over anything that might potentially affect the national economy, and another that advocates strong judicial enforcement of constitutional limits on federal authority. This clash can be traced through all three arguments offered to justify the Affordable Care Act individual health insurance mandate: claims that it was authorized under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause. It also lies at the heart of the otherwise distinct debate over the constitutionality of the ACA’s Medicaid expansion.

Efforts to justify the mandate or the Medicaid expansion without giving Congress virtually unlimited power fall apart under close inspection. The same is true of Chief Justice John Roberts’ opinion holding that a modified version of the individual mandate is authorized by the Tax Clause, though not by the other two clauses cited by the government.

Neither side in the conflict over constitutional federalism won a decisive victory in NFIB. Events since that ruling demonstrate that the debate between them is likely to continue for a long time to come.

NFIB is noteworthy for the way it made clear the depths of the division between the two visions of federalism. It may also have been the first major Supreme Court case in which the blogosphere played a major role in developing legal arguments and shaping public debate. Both the conflict over federalism and the role of the blogosphere in shaping legal debate are likely to recur in future cases.

The Costs of Regulatory Redundancy: Consumer Protection Oversight of Online Travel Agents and the Advantages of Sole FTC Jurisdiction

By: James C. Cooper

Date Posted: 2015

No.: 15-08

Full text (most current version) on SSRN

Abstract:

Every administration in recent history has attempted to reduce regulatory redundancies. One area of regulatory redundancy that deserves attention is the FTC’s and Department of Transportation’s (DOT) consumer protection authority over online travel agents (OTAs), which generated $111 billion in revenue last in 2013. This regulatory redundancy guarantees that two agencies will oversee OTAs, prevents harmonization of online consumer protection policy, and is likely to impose unnecessary costs on OTAs to adhere to two separate regulatory regimes. The importance of this conflict will grow as privacy and data security become preeminent consumer protection issues and DOT expands its jurisdiction to online information providers. Efficiency suggests the FTC as the sole consumer protection overseer of OTAs. Only the FTC has the current capacity to regulate all OTA activities, and it enjoys unrivaled expertise with respect to e-commerce consumer protection. Further, in contrast with FTC’s ex post enforcement approach, which focuses on actual or likely consumer harm, DOT’s ex ante regulatory approach is ill-suited for the fast moving world of e-commerce. Finally, the FTC faces more serious internal and external constraints on its enforcement authority, which tends to temper the potential for regulatory overreach. There are several possible ways to effect this regulatory reform, ranging from the complete abolition of DOT’s aviation consumer protection authority and the FTC Act’s common carrier exemption, to a memorandum of understanding between FTC and DOT that harmonizes policy.

Living Originalism: The Magical Mystery Tour

By: Nelson Lund

Date Posted: 2015

No.: 15-07

Full text (most current version) on SSRN

Abstract:

In a brilliant theoretical maneuver, Professor Jack Balkin has proposed to marry originalism and living constitutionalism. His move resembles President Jefferson’s appeal to Americans, in his First Inaugural Address, to accept that “we are all Republicans, we are all Federalists.” If Balkin’s goal is to send originalism to the same fate as the Federalist Party, he has already made substantial progress.

This short essay begins with a summary of the core features of Balkin’s theory. It then turns to the recent work of Professor Steven G. Calabresi. A founder of the Federalist Society who clerked for Judge Robert Bork and Justice Antonin Scalia, Calabresi was also a special assistant to Attorney General Meese and a speechwriter for Vice President Quayle. He went on to become one of the most frequently cited academic originalists of his generation, but he has now fully converted to Balkin’s “living originalism.”

Calabresi’s conversion suggests that wedding bells are ringing pretty loudly for Balkin’s union of two theories that were once thought to be irreconcilable. This essay argues that the marriage will leave originalism in much the same position as the legal death that married women experienced under the old rules of coverture.

On Engineering Urban Densification

Abstract:

City planning in America began as a Progressive Era exercise, intended to pre-serve property values and implicitly incorporate the social norms of officials and planners. Over time, rigid zoning was replaced by flexibility, accompanied by opaque bargaining between localities and developers. Still, even in vibrant large cities, homeowner preferences for low density largely prevailed over attempts to enhance agglomeration through increasing density. The effect is to reduce economic opportunity for individuals, and cities less prosperous.

One method of increasing agglomeration is the imposition of densification, utilizing the assembly of transient coalitions that could impose grand bargains between alderman and strong mayors. Expert planners would devise detailed quotas for desirable and undesirable uses in different parts of the city, and recipients of favorable zoning would receive regulatory property that is locked in place by procedural and constitutional requirements. Roderick Hills and David Schleicher advocate this approach in City Replanning.

This Article reviews the history of idealistic, and later pragmatic, comprehensive planning and zoning. It then analyzes the case for agglomeration, and how it might be obtained through density mandates. The Article subsequently reviews undesirable consequences of such mandates. It asserts that grand bargains attenuate democratic decisionmaking, significantly reinforce the perceived evils of the current system, and are apt to be ineffective.

Preemption in the Rehnquist and Roberts Courts: An Empirical Analysis

By: Michael GreveJonathan KlickMichael PetrinoJ.P. Sevilla

Date Posted: 2015

No.: 15-05

Full text (most current version) on SSRN

Abstract:

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have assumed a distinctly ideological flavor. Preemption cases are much more likely to be contested than they were in earlier decades; and in those cases, once-rare judicial bloc voting has become common.

The Mainstreaming of Libertarian Constitutionalism

Abstract:

Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.

Giving It Away at The Strand: A Short Story of Rights and Relationships in Intellectual Property

By: Ross Davies

Date Posted: 2015

No.: 15-03

Full text (most current version) on SSRN

Abstract:

In early 1916, Arthur Conan Doyle (the versatile and productive Victorian/Edwardian-era writer remembered nowadays mostly for his Sherlock Holmes stories), sent a letter and a package to Herbert Greenhough Smith, his longtime editor at The Strand Magazine. Could it be that Conan Doyle was having a little fun, making a slightly grim legal joke about his demand that the Strand return his old manuscripts? He may well have known enough about intellectual property law, or about the history of publishing, to be aware that some of the most important ownership-of-manuscript lawsuits had involved letters and diaries. And in “The Adventure of the Golden Pince-Nez” (the story in the package Conan Doyle had sent) the killing of an innocent person – a character who might have been based on Herbert Greenhough Smith – happens during a righteous attempt by another person to recover wrongfully withheld letters and a diary.