Thursday, February 02, 2012
Welcome [insert your alma mater here] to the class action
I'm happy to be invited back to prawfsblawg. I begin my stint in the shadow of both Punxsutawney Phil's prediction of six more weeks of winter and Clinton/Anzizka's promise of filing a dozen more class actions against law schools. Today's news brings my alma mater, DePaul, into the winter of reecent graduates' discontent. Last fall I entertained a robust discussion about the plausiblity of class certification in these cases. http://prawfsblawg.blogs.com/prawfsblawg/2011/10/taking-attendance-class-actions-against-law-schools-expand-enrollment.html. Alerted to the atrocities of the quality of the brief-writing by a former student, today I query the the legal drafting skills of the plaintiffs' counsel for filing a complaint replete with over-the top hyperbole (is there any other kind?), mispellings (i.e., Brian "Loiter") and misnomers (Northwestern "College" of Law and "Chicago-Kent,"multiple times instead of defendant "De Paul," including within the prayer for relief). Counsel are not doing their clients any big favors. And I'm not convinced that these errors are to be blamed on the authors' educational instututions, either.
Posted by Debbie Borman on February 2, 2012 at 09:00 PM | Permalink | Comments (6) | TrackBack (0)
Law is Going Global--or is it?
Thanks to Dan and everyone at PrawfsBlawg for the opportunity to post this month. As my research focuses on transnational litigation (in other words, what happens when civil procedure meets foreign law and parties), I have been thinking a good deal lately about the role of international law in United States courts. Recently, though, I have begun to wonder: Is globalization of law a reality in U.S. judicial decisionmaking? One recent study concluded that the number of transnational cases filed in United States courts is going down and has been for some time from a high of 3,293 cases in 1996 to 1,637 in 2005 even though the general caseload of the federal courts has continued to rise.
What accounts for this? These numbers call into question in an empirical way the globalization of law narrative that many of us know. But, these numbers aren’t presenting the only questions. As one leading federal appellate judge and former law professor provocatively argued before a recent gathering of the Association of American Law Schools, the “cult of globalization” that has entranced law schools should be discarded. According to Judge Cabranes, “[q]uite a few law schools have launched programs overseas, entered partnerships with foreign law schools, hosted globalization conferences, founded centers geared towards globalization and fosters student exchanges overseas.” In his view, while “many of these programs are worthy endeavors, they are a distraction from the core objective of a law school.”
So, let me begin my stint with a question: Is international law a distraction or is there a reason to globalize legal education and the legal profession in light of these numbers and Judge Cabranes's criticism?
Posted by Trey Childress on February 2, 2012 at 06:32 PM | Permalink | Comments (7) | TrackBack (0)
Busting or reforming Wall Street?
Ever have that problem where you are finishing up an article, putting the final changes in the text, emailing it to your editors and then you see yet another new source that arguably buttresses some of your (hopefully already) well-supported arguments?
That's how I feel today. The WSJ Blog is reporting that tomorrow, Time magazine's front cover story will feature a picture of Preet Bharara, the United States Attorney for Southern District of New York, and that the title of the story is "Busting Wall Street." The story appears to be about how the SDNY is aggressively prosecuting fraud and insider trading on Wall Street, including fraud related to the sale of mortgage backed securities. The publication nicely coincides with two guilty pleas by cooperating defendants in the investigation and prosecution of various traders at Credit Suisse, who allegedly inflated the value of mortgage-backed bonds in 2007 and 2008, when the housing market was beginning to deteriorate.
The reason I said, "dang!" when I saw Preet's face on the cover of Time (other than the odd fact that he and I served as young AUSA's during roughly the same time period) was that the magazine cover served as yet another reminder that our society tends to prefer punishment to regulation. When push comes to shove, we like "getting" the bad guys more than we like sitting down and figuring out how to improve regulatory systems. And related to that, I think as a general rule, we find it easier to look at the complex phenomena that led to the financial crisis and conclude "fraud" or "bad guys did this," than to admit that lots of different failures (regulatory, market and otherwise) fed into the whole mess. (Indeed, the Credit Suisse allegations seem to pertain to conduct that happened after the crisis was already beginning, when the real estate market began to erode).
Continue reading "Busting or reforming Wall Street?"
Posted by Miriam Baer on February 2, 2012 at 05:53 PM | Permalink | Comments (2) | TrackBack (0)
Copyright and the Romantic Video Game Designer
My friend Dave is a game designer in Seattle. He and his friends at Spry Fox made an unusually cute and clever game called Triple Town. It's in the Bejeweled tradition of "match-three" games: put three of the same kind of thing together and they vanish in a burst of points. The twist is that in Triple Town, matching three pieces of grass creates a bush; matching three bushes creates a tree ... and so on up to floating castles. It adds unusual depth to the gameplay, which requires a combination of intuitive spatial reasoning and long-term strategy. And then there are the bears, the ferocious but adorable bears. It's a good game.
Now for the law. Spry Fox is suing a competing game company, 6waves Lolapps, for shamelessly ripping off Triple Town with its own Yeti Town. And it really is a shameless ripoff: even if the screenshots and list of similarities in the complaint aren't convincing, take it from me. I've played them both, and the only difference is that while Triple Town has cute graphics and plays smoothly, Yeti Town has clunky graphics and plays like a wheelbarrow with a dented wheel.
I'd like to come back to the legal merits of the case in a subsequent post. (Or perhaps Bruce Boyden or Greg Lastowka will beat me to it.) For now, I'm going to offer a few thoughts about the policy problems video games raise for intellectual property law. Games have been, if not quite a "negative space" where formal IP protection is unavailable, then perhaps closer to zero than high-IP media like movies and music. They live somewhere ambiguous on the spectrum between "aesthetic" and "functional": we play them for fun, but they're governed by deterministic rules. Copyright claims are sometimes asserted based on the way a game looks and sounds, but only rarely on the way it plays. That leads to two effects, both of which I think are generally good for gamers and gamemakers.
On the one hand, it's well established that literal copying of a game's program is copyright infringement. This protects the market for making and selling games against blatant piracy. Without that, we likely wouldn't have "AAA" titles (like the Grand Theft Auto series), which have Hollywood-scale budgets and sales that put Hollywood to shame. Video games have become a major medium of expression, and it would be hard to say we should subsidize sculpture and music with copyright, but not video games. Spry Fox would have much bigger problems with no copyright at all.
On the other hand, the weak or nonexistent protection for gameplay mechanics means that innovations in gameplay filter through the industry remarkably quickly. Even as the big developers of AAA titles are (mostly) focusing on delivering more of the same with a high level of polish, there's a remarkable, freewheeling indie gaming scene of stunning creativity. (For some random glimpses into it, see, e.g. Rock, Paper, Shotgun, Auntie Pixelante, and the Independent Games Festival.) If someone has a clever new idea for a way to do something cute with jumping, for example, it's a good bet that other designers will quickly find a way to do something, yes, transformative, with the new jumping mechanic. Spry Fox benefited immeasurably from a decade's worth of previous experiments in match-three games.
The hard part is the ground in between, and here be knockoffs. Without a good way to measure nonliteral similarities between games, the industry has developed a dysfunctional culture of copycattery. Zynga (the creator of Farmville and Mafia Wars) isn't just known for its exploitative treatment of players or its exploitative treatment of employees, but also for its imitation-based business model. Game developers who sell through Apple's iOS App Store are regularly subjected to the attack of the clones. In Spry Fox's case, at least, it's easy to tell the classic copyright story. 6waves is reaping where it has not sown, and if Triple Town flops on the iPhone because Yeti Town eats its lunch, at some point Dave and his colleagues won't be able to afford to spend their time writing games any more.
This is something I've been thinking about the copyright tradeoff recently. One way of describing copyright's utilitarian function is that it provides "incentives to produce creative works." That summons up an image of crassly commercial authors who scribble for a paycheck. In contrast, we sometimes expect that self-motivated authors, who write for the pure fun of it, will thrive best if copyright takes its boot off their necks. But a better picture, I think, is that there are plenty of authors who are motivated both by their desire to be creative and also by their desire not to be homeless. The extrinsic motivations of a copyright-supported business model provide an "incentive," to be sure, but that incentive takes the form of allowing them to indulge their intrinsic motivations to be creative. In broad outline, at least, that's how we got Triple Town.
I'm not sure where the right place to draw the lines for copyright in video games is. I'm not sure that redrawing the lines wouldn't make things worse for the Daves of the world: giving them more greater rights against the 6waves might leave them open to lawsuits from the Zyngas. But I think Triple Town's story captures, in miniature, some of the complexities of modern copyright policy.
Posted by James Grimmelmann on February 2, 2012 at 04:10 PM in Games | Permalink | Comments (3)
Book Club on "Cultivating Conscience": Wrap-Up
Many thanks to Adam Benforado, Chad Flanders, Brett McDonnell, Tom Ulen, Molly Wilson, and especially our author Lynn Stout for an engaging and thoughtful book club on Cultivating Conscience. I hope the club will be a resource for folks in the future who are reading the book for research, for class, or for general enlightenment.
Here's a wrap-up of all the posts for the club:
- Adam Benforado: Might Cultivating Conscience Perpetuate Injustice?
- Brett McDonnell: The Ambiguity of Conscience and the Prisoners' Dilemma
- Chad Flanders: Sympathy for the Devil?
- Matt Bodie: "Cultivating Conscience" for Contracts
- Lynn Stout: Whether good or not, conscience exists and can be used as tool or weapon
- Molly Wilson: Some Thoughts on Lynn Stout's "Cultivating Conscience"
- Lynn Stout: Matt and Molly on Conscience
- Tom Ulen: Yes to "Cultivating Conscience" But More, Please
And here are some places you can pick up the book:
Thanks again to all our participants!
Posted by Matt Bodie on February 2, 2012 at 02:57 PM in Books | Permalink | Comments (0) | TrackBack (0)
4th Annual Junior Faculty Federal Courts Workshop
The 4th Annual Junior Faculty Federal Courts Workshop will (finally) take place at FIU beginning at 9 a.m. tomorrow morning. There is a terrific slate of papers on a wide range of Fed Courts issues, so it should make for some very interesting conversations. And we have a great group of senior mentors--Janet Alexander (Stanford), Susan Bandes (Miami), Ted Eisenberg (Cornell), Lee Epstein (USC), Marty Redish (Northwestern), and Suzanna Sherry (Vanderbilt). A full schedule for the conference, with links to all the papers. is here.
And, if you weren't able to make it this time, know that plans for the 5th Annual Junior Faculty Federal Courts Workshop are already under way: Tara Leigh Grove will host the next workshop at William & Mary next fall.
Posted by Howard Wasserman on February 2, 2012 at 12:31 PM in Article Spotlight, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0) | TrackBack (0)
class warfare
Back when I taught undergraduates in the early '90s, universities were undertaking the initial push towards distance education. For many of us, the concept raised significant labor issues: as class sizes grew via distance ed., as schools with more valuable brands entered the market, and as the differences between schools grew, with the rich getting small, custom, liberal arts schooling, and everyone else getting a mass delivery of lectures with assistance from underpaid serfs, what would happen to faculty as workers? Would a small percentage, a mix of the excellent and lucky, retain good, reasonably well-paying jobs in top research universities and elite private liberal arts colleges, while the rest work under increasingly pressed circumstances with high teaching loads, uncertain positions, and low pay?
What Kim Krawiec charmingly characterized as the "Texas kerfuffle," covered in detail by Brian Leiter (see here and here), revealed one potential future for law faculties in the decades to come -- one in which those who are lucky and excellent enough to teach at the super-elite law schools enjoy demonstrably different professional careers than those who toil in the vineyards of the non-elite schools. Law school faculty salaries -- which as we now know, thanks to the kerfuffle, only tell part of the story of faculty benefits and compensation -- might increasingly resemble Bill Henderson's famous snapshop of the bimodal distribution of graduates' salaries. Some schools can prove they can feed biglaw and have a brand that creates demand for the independently wealthy and inspires large donations. They can continue to raise tuition to offer extremely attractive faculty compensation packages with low teaching loads and research budgets. Schools that can't depend on such conditions will hire fewer tenure track faculty and offer them lower salaries, higher loads, etc. And of course if ABA accreditation and state bar licensing go away or face significant challenges, the class differences between law schools might look more stark.
Continue reading "class warfare"
Posted by Mark Fenster on February 2, 2012 at 10:06 AM | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 01, 2012
Should Junior Scholars Plan Conferences?
Many schools have tenure standards that require a junior scholar to build a national reputation in his or her area. In pursuit of this goal (and for the sheer fun of it), some juniors plan conferences in their area of research in order to bring together leading scholars in the field and share their ideas with these prominent individuals.
Despite these obvious benefits, I wonder about the wisdom of planning a conference pre-tenure. Juniors have writing and teaching responsibilities that are very time consuming, and planning a conference could conceivably interfere with this. Moreover, scholarship is the coin of the realm; planning a conference may not factor into this equation at all. But what better way to get your name out there than to plan a conference that will be attended by the very individuals who will write your tenure letters?
So let me ask: Is it wise for a junior scholar to plan a conference pre-tenure? Or is there too much risk that this will detract from their writing? Inquiring minds want to know.
Posted by Franita Tolson on February 1, 2012 at 05:05 PM | Permalink | Comments (6) | TrackBack (0)
Recording police, redux
Dahlia Lithwick has a story and preparations in Chicago for the G-8 Summit this spring and apparent plans by the Chicago police to prevent protesters and journalists from recording the events, particularly any arrests that occur. As I've discussed previously, Illinois has a strict two-way consent law, which requires that all parties consent to the electronic recording of any conversation or actions. And unlike most states, Illinois does not except recordings of public officials performing their public functions in public from the protections of the law, nor does it limit the law only to situations in which the person recorded has a legitimate expectation of privacy (which a public official performing public tasks on the public streets should not have). The state is infamously prosecuting two people who recorded police misconduct. At the same time, a constitutional challenge to the law brought by the ACLU was dismissed in the district and now is pending before the Seventh Circuit. Former GuestPrawf Eric Johnson and Jonathan Turley both reported on last fall's oral argument, in which Judge Posner seemed (surprisingly) dubious towards the ACLU's argument that there is a constitutional right to electronically record events on the street, including this exchange:
“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”
“Is that a bad thing, your honor?”
“Yes, it is a bad thing. There is such a thing as privacy.”
Hopefully the court will resolve the issue before the summit, when things inevitably (and unfortunately) will turn ugly.
Posted by Howard Wasserman on February 1, 2012 at 03:21 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (3) | TrackBack (0)
The Agency Class Action
I want to thank everyone again for giving me the opportunity to blog with you this past month. Before I go, one last, shameless plug: For a long time, those of us writing in complex litigation have been toying with ways to import lessons from administrative law to improve procedural fairness and equity in collective litigation. See, e.g., Alexandra D. Lahav, The Law and Large Numbers: Preserving Adjudication in Complex Litigation, 59 Fla. L. Rev. 383 (2007); Richard Nagareda, Turning From Tort to Administration, 94 Mich. L. Rev. 899 (1996).
In our latest article, The Agency Class Action, Michael Sant' Ambrogio and I turn the tables and ask: "What can agencies learn from complex litigation to improve administrative adjudication?" Here's the abstract:
The number of claims languishing on administrative dockets has become a new “crisis”—producing significant backlogs, arbitrary outcomes and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal. Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers. Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight.
Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements. But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: class action and complex litigation procedures. Almost no administrative law process allows groups to aggregate and resolve common claims for relief. As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise. Moreover, procedural and substantive hurdles—including exhaustion of administrative remedies and judicial deference to agency expertise—often prevent federal courts from providing class-wide relief to parties in agency adjudications.
We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people. After surveying the current tools by which agencies could promote more efficiency, consistency and legal access—including rulemaking, stare decisis, attorneys fees and federal court class actions—we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process. In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies—a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.
Posted by Adam Zimmerman on February 1, 2012 at 02:03 PM | Permalink | Comments (0) | TrackBack (0)
The Convergence of Global Settlements
Is the American-style class action going global? The conventional wisdom is "no," as Professor Byron G. Stier of the Mass Tort Litigation Blog writes. It is true that, over the past decade, courts around the world have opened their doors to class actions and group litigation (even as the United States Supreme Court imposed more obstacles to them). See, e.g., Deborah R. Hensler, The Future of Mass Litigation: The Global Class Action and Third Party Funding, 79 Geo. Wash. L. Rev. 306 (2011) (observing that over the past decade 21 countries adopted some type of class action and 6 countries adopted some form of "consolidated group proceeding"). See also The Global Class Action Exchange (collecting law review articles, empirical reseach and case studies). But despite the spread of innovative devices to aggregate litigation--from The Netherland's settlement-only approach to mass torts to Mexico's recent adoption of class actions--Stier correctly observes that many headwinds will slow their growth abroad, including: (1) bars on contingency fees and punitive damages; (2) "loser-pay" rules that increase the financial risk of class action practice; and (3) the unwillingness to adopt "opt-out" class actions (many countries require absent plaintiffs to affirmatively "opt-in" to a class action, which limits the scope, stakes and finality of any large settlement).
This trend reflects, in some ways, what Judge Weinstein long ago called the uniquely "bottom-up" nature of American litigation. See, e.g., Jack B. Weinstein, Compensating Large Numbers of People for Inflicted Harms, 11 Duke J. Comp. & Int'l L. 165 (2001). Writing over a decade ago, Judge Weinstein observed that reliance on the government to compensate victims was a commonplace feature of the “top-down” justice systems outside the United States like those, for example, in Europe, South America, and the Far East. The U.S. system, in contrast, traditionally relied on individuals and their private attorneys to prosecute claims against corporations and others, to obtain compensation, while satisfying other socially valuable goals, like deterrence and corrective justice.
In this way, perhaps a better characterization of this new trend in mass litigation can be thought of as "convergence." The "bottom up" approach of the United States to aggregate litigation appears to be converging with other countries' "top-down approach." The new model, today, involves many different players--class action lawyers, agencies, prosecutors, non-profits and other institutions--all vying to prosecute the same defendant, for the same conduct, and with power to compensate victims on a massive scale. As I've noted for the past few weeks while blogging here at Prawfs, the United States increasingly relies on states attorneys general, federal prosecutors, agencies, and legislative compensation funds to compensate victims on a massive scale in ways that compete with class actions. Institutional players, like large mutual funds and state retirement systems, relying on changes to United States securities laws in the 1990s, have also taken a larger leadership role in class action lawsuits. In many cases, the end result is a large fund managed by the same private administrators who commonly oversee class action settlements.
And so it is outside the United States. As the United Kingdom amends its class action procedures, it also has clarified and expanded the power of its Financial Service Authority (FSA) to seek consumer redress under the 2010 Financial Services Act. As Sweden, Norway, and Denmark adopted class action procedures over the last decade, they also expanded the authority of state agencies, consumer associations and other non-governmental organizations to bring "representative actions" on behalf of victims. See, e.g., Swedish Group Proceedings Act § 5; Norwegian Dispute Act, Ch. 35, § 35-3(1)(b); Robert Gaudet, Earth to Brussels: Lessons Learned from Swedish, Danish, Dutch and Norwegian Class Actions, White Paper (July 14, 2008). Public authorities and NGOs continue to play an active role in large collective actions in common law systems, like Canada and Australia, and civil law systems, like Argentina.
The convergence of "top down" and "bottoms up" approaches to settling large-scale problems -- from the United States mortgage crisis, to British Petroleum, to the September 11 Litigation -- raises a host of new questions for the future: Is it fair for prosecutors or agencies, whose primary aim has generally been associated with criminal punishment or regulation, to coordinate or compete with private attorneys who seek to compensate victims? In those countries with federal systems, how should the federal government coordinate with states or provincial authorities?
But, in my view, convergence presents the greatest challenge for judges charged with overseeing different players, with different state, institutional or personal interests in a final resolution. How should a judge coordinate or consolidate such cases, if at all? What level of judicial review does a court apply to settlement brokered by other players in government, if any? And, finally, in a world where courts must reconcile competing interests of victims, states, agencies and federal authorities, with different civil, regulatory and criminal enforcement obligations, what level of deferrence does the court owe to each decisionmaker in that settlement?
In short, the global convergence of class action attorneys, regulatory agencies, state attorneys general, and even criminal prosecutors commencing overlappying actions create new pressures on what we want and expect from our courts. Professor Chayes long ago argued that the growth of civil rights and other public litigation placed increasing pressure on courts to adopt an increasingly public law perspective--taking on more of a "legislative" than "adjudicative" approach to large lawsuits. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976). Since that time, commentators have alternatively described courts as "managers," actively overseeing and brokering settlement discussions with the assistance of special masters, or distant overseers of enormous business mergers, where the core judicial function involved simply "blessing" the transaction. See, e.g., William B. Rubenstein, A Transactional Model of Adjudication, 89 Geo. L.J. 371, 371 (2001) (class action settlements as "transactions"); Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev. 924 (2000) (describing the "managerial" approach adopted by the Manual for Complex litigation). But, as public and private actors increasingly take on overlapping roles, before the same judges, on a global scale, courts may have to adopt yet another model to balance the interests of individual and collective justice in mass litigation.
Posted by Adam Zimmerman on February 1, 2012 at 02:02 PM | Permalink | Comments (0) | TrackBack (0)
The February submission season is almost here. What about August?
Most law review editors, and many law professors, are busy gearing up for the February/March submission cycle for law review articles and essays. In case you missed it, Sarah Lawsky's handy spreadsheet is available here for those who wish to track their paper's performance.
In recent years, law professors (and law prof hopefuls) have fretted that the August/September cycle is disappearing. The received wisdom is that law reviews are filling or nearly filling their volumes in February/March and leaving space for just one or two articles in August/September. This seems plausible to me, as there were a number of journals that either closed quickly or remained closed throughout the August/September cycle last year.
Then again, maybe last season was a fluke. Or maybe the August window is closing unevenly, with some journals leaving space for future submissions, and others electing to complete their volumes in February and March.
So, I thought I would throw the question out to the law review editors in the Prawfs audience. What does your law review plan to do this year? Do you plan to select all or nearly all of your articles in February/March or are you leaving space for August/September? If you have decided not to leave space for August/September, which factors led you to make this decision?
Posted by Miriam Baer on February 1, 2012 at 12:11 PM | Permalink | Comments (0) | TrackBack (0)
curricular reform in 350 words
Taking my own experiences teaching two first-year courses (with the hopes of soon shifting to a third) and thinking about some of the curricular reforms that Ed Rubin spearheaded when he was dean at Vanderbilt, I've come up with at least a logic for reconstructing the first two years of law school. I don't claim originality, nor do I make claims that it's perfect or even that it's good. I think it's marginally better than the current system, but what do I know? You tell me.
The first two years would be split into four modules that can be offered in any order in the first four semesters. There are no doubt very good arguments for stipulating an order to the modules, but I would assert, first, rock-paper-scissors (A might be better before B but C might be better before before A but would be better after B, etc.); and second, having no predetermined order creates scheduling flexibility for administrators and for faculty who would be engaged in team-teaching or at least communicating with each other extensively.
Semester A: Civil private litigation. Including torts, civ pro, and evidence, with writing and skills needed for litigators.
Semester B: Criminal law and litigation. Including substantive criminal law and all of the basic criminal procedure; and, again, with writing and skills needed for prosecutors and defense attorneys.
Continue reading "curricular reform in 350 words"
Posted by Mark Fenster on February 1, 2012 at 11:40 AM | Permalink | Comments (7) | TrackBack (0)
Friendships in the Courtroom
The recent contract dispute between Ron Perelman and Don Drapkin -- former friends who likely came to court at least in part because their friendship went sour -- was a nice opportunity for me to reflect on some themes that have occupied part of my research for some time. Although my recent book, Friend v. Friend, digs into many similar cases, getting to watch the dispute through various levels of motion practice and trial was quite different than the lens that is available through cold paper records in appellate court litigation, which is much more common raw material for the scholar. My quick take is in the New York Law Journal today, available here.
UPDATE: Fordham's version is not behind a paywall.
Posted by Ethan Leib on February 1, 2012 at 10:32 AM | Permalink | Comments (0) | TrackBack (0)
Greetings & National Football League: XLVI vs. MDL
Greetings Prawfs nation! I'm excited to have the opportunity to make my blogging debut for you.
With Superbowl XLVI rapidly approaching, the biggest NFL news yesterday was either the market democratizing media day OR the anticipated decision by the U.S. Panel on Multi-district Litigation to consolidate at least four of the lawsuits that have been brought against the NFL by retired players suffering from degenerative brain disease, dementia, mental illness (and others concerned about developing these conditions). Hundreds of former athletes, wives, and family members are suing the NFL for negligence and intentional misconduct in how it has handled the treatment of concussions and head injuries. Senior U.S. District Judge Anita Brody (E.D. Pa.) will handle pre-trial issues in the MDL (approximately twenty such class-action suits have been filed thus far), which will feature interesting questions of pre-trial discovery, ERISA plan rights, and how to create a class for medical monitoring.
Rather than speculate what Judge Brody might do with the MDL (plenty of time for that - lucky we have a leap day this month), today I want to focus on what we know and don't know about the riskiness of football. It's no secret that TBI and CTE (that's traumatic brain injury and chronic traumatic encephalopathy) have crept in alongside TDs in the football vernacular. Football in the 21st century must cope with the data that concussions cause degenerative brain disease, dementia, and other mental illnesses. Autopsied brains of former football players exhibit identical brain damage to that found in long-term boxers. The NFL long denied any link between permanent brain damage and football, even maintaining that position in Congressional hearings as recently as October of 2009. (They have since reversed course; I will hold back from commenting on the position switch until after I see the NFL's safety ad that will air during the Superbowl.) The NFL lawsuits are worth watching to see what legal recourse will be available to athletes who played at different times, on different teams, in different venues, and with different injuries, all on account of the league's continued denials and even deliberate efforts to downplay the risk of head trauma.
The MDL will include some legal questions that engage only the civ pro or ERISA affectionados. Similar to the tobacco industry litigation, it will feature discovery questions, many aimed at learning who knew what information and when. One curious issue is what medical expert information will be presented and for what purpose. There is emerging data that repeated "sub-concussions," i.e., head trauma that does not produce concussion-like symptoms, may aggregate over time to create brain damage that has previously only been associated with concussive trauma. Using monitoring helmets, researchers have discovered that the force of impact and repeated number of hits recorded in football is far far greater than anyone imagined, even at the college or high school level of the sport.
Accordingly, even if the NFL was in denial or covering up known risks of concussive TBIs, many athletes may be suffering (or will suffer in the future) symptoms on account of the aggregated mini-trauma that occurs on most every single football play. Even researchers and experts in TBIs and CTE did not make this connection until recently. This raises a significant question of causation, because it may be that the athletes already had incurred significant brain trauma prior to playing in the league, and it may be impossible to differentiate between damage caused by more severe TBIs as opposed to that caused by thousands and thousands of mini-traumas.
As a PR move, though, the NFL may not want to embark on a legal strategy that shifts from standard player assumption of risk/collective bargaining defenses (which may hurt the NFL if there was informational asymmetry or deliberate misrepresentation about concussive risk) toward an emphasis on the fact that professional football may be SO dangerous on even routine contact that no one actually realized the extent of harm. Personally, I can't see the league offering this medical evidence, even if it was the only legal defense possible to avoid liability.
What do you think Prawfs nation? Do you think it matters if the NFL admits that professional football causes brain damage even in athletes who sustain no known concussions? Has the data or lawsuits about TBI affected your plans for Superbowl XLVI? Are you eagerly anticipating the NFL's safety ad or will you wish you were watching a clever Star Wars-referencing car commercial instead?
Posted by Shawn Markus Crincoli on February 1, 2012 at 09:54 AM | Permalink | Comments (1) | TrackBack (0)
Puzzles for Lawyers
Every year, for what I at least consider a fun time, I go to MIT for the annual Mystery Hunt, a 48-hour team puzzle competition. There are crosswords, logic puzzles, puns and wordplay, and much, much more. I'd like to explain why a fair number of lawyers (there are four on my team alone) find this stuff fun; as examples, I'll use a pair of puzzles that connect back to the law.
This year, I was part of the group writing the Hunt, so I wanted to sneak in a bit of legal silliness. "Tax ... in ... Space" was the result. It's the puzzle equivalent of a shaggy dog joke: a parody of a tax form with absurdly complicated instructions. The tax "law" is completely made up, of course, but I added a bunch of in-jokes for people who've had at least a basic course in tax. Here's a sample:
(f) The illudium phosdex exploration quasi-credit shall be equal to the sum of wages and tips, Capital Gains, lower-case gains, and income from the sale of bitcoins, less the amount of remote backup withholding, if any, except that if the illudium phosdex exploration quasi-credit so computed exceeds 200,000, the illudium phosdex exploration quasi-credit shall instead be equal to half of twice the Robocop statue construction checkoff.
Last year's Hunt also had a very nice (and quite funny) puzzle called "Unnatural Law." It took the form of a narrative by "HistoryBot-2225121561375435" of how sentient robots overthrew and oppressed humanity. Each paragraph described some awful thing the robots did to their human underlings, e.g.:
The robot overlords greatly disliked allowing their human prisoners to be released while awaiting judgement. Not wanting to destroy all hope immediately--for where was the fun in destroying a human's spirit too quickly?--they instead computed the maximum amount of money a human could obtain and set the release fee at twice that amount. This had the unfortunate effect of increasing the number of humans incarcerated. Initially, the robots addressed this by packing humans five hundred to a cell, but that was insufficient. Next, the robots halved the size of human containment pens, keeping the number of humans in each pen the same. They found that doing this doubled the stress level in the containment pen, which the overlords considered a pleasant side effect.
I'll explain how this particular puzzle worked after the jump, so that anyone who wants to try their hand at it without hints isn't spoiled.
Continue reading "Puzzles for Lawyers"
Posted by James Grimmelmann on February 1, 2012 at 12:37 AM in Games | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 31, 2012
Yes to "Cultivating Conscience" But More, Please
Like all the others who have commented on Lynn Stout's Cultivating Conscience, I enjoyed it thoroughly. I found her critique of rational choice theory to be fresh and persuasive. I loved her contention that homo economicus appears to have all the characteristics of a sociopath as defined by the DSM. Very clever and thought-provoking.
Let me join in all the praise that others have heaped on the book, and spend my comment picking a nit and asking for a follow-up from Lynn.
First, the nit. Lynn spills a lot of ink to criticize law and economics. I understand her criticisms (and those of others who have, for many years, tried to convince readers and law students that law and economics is wrong and pernicious). And I even subscribe to some of them. But ultimately I disagree with these criticisms and think that they miss a central and vital point about law and economics: It has brought to the study of law the practice of clearing articulating a hypothesis (normative or descriptive) about the law and, more importantly, in my view, the urge to confront those hypotheses with data to see whether the real world confirms or refutes the hypotheses. Painting with a very broad brush, before law and economics, legal argumentation largely consisted of making more elaborate and more coherent arguments that amounted to "my hypothesis is better than your hypothesis." The problem with that way of trying to understand the world is that it never gets to the crucial issue of saying "I gathered data designed to see whether my hypothesis explains and predicts actual events in the legal world, and I found that ..."
I would almost claim that law and economics (even in its non-empirical early phase -- the one that critics love to hate) is the father of the burgeoning empirical legal studies movement.
Continue reading "Yes to "Cultivating Conscience" But More, Please"
Posted by Tom Ulen on January 31, 2012 at 11:02 PM | Permalink | Comments (0) | TrackBack (0)
Matt and Molly on Conscience
I enjoyed Matt's and Molly's observations, but can't resist offering one of my own: both seem to suggest that conscience is, in fact, a pretty obvious foundation for law. (Matt has a wonderful example of the good faith principle in contracting, Molly points out--quite correctly--that the social and behavioral science literature on prosociality is immense.)
So, why do we see so little explicit discussion of the role of prosociality in modern legal scholarship? Of course some people incorporate the idea into their writing, especially in more philosophical discussions. And Matt is correct that in what I always thought were relatively rare situations--like Posner's opinion on the good faith principle--even law-and-economics types give the nod to the possibility people don't always, and shouldn't always, act selfishly.
But my own impression is that when the rubber meets the road, policy-wise, we see today a very strong tendency to default to the "all we need to do is fix the incentives" approach. Of course, I may be over-sensitive to this pattern,writing as I do primarily in business and regulatory law, where homo economicus seems to reign supreme.
Was I wasting my time writing a book trying to draw attention to the topic of prosocial behavior (conscience)? Blawg readers are invited to respond...
Posted by Lynn Stout on January 31, 2012 at 08:51 PM | Permalink | Comments (1) | TrackBack (0)
Howdy ... and some thoughts on guns.
Hello Prawfs readers! I asked Dan to put me in for the February rotation after two years of blogging in July. I hope to chat about some of my new scholarly projects, offer some thoughts on contemporary issues in criminal law enforcement and corporate compliance, and cheer on all my friends who are waiting for a signal from Redyip.
For now, I thought I would open with this news report on what appears to have been a flawed operation by the Arizona office of the Bureau of Alcohol, Tobacco and Firearms (ATF) to investigate gun-trafficking. Democrats on the House Oversight and Government Reform Committee have released a report (on the NYT website here) that absolves high-level DOJ and administration officials of any significant role in planning or executing the operation, which was called Operation Fast and Furious. (Anyone else think its a mistake to brand investigations with these silly names?). Attorney General Eric Holder is scheduled to testify before the House Committee on Thursday, and there seems to be a related fight brewing over whether the DOJ has handed over sufficient documents relating to a February 4, 2011 letter that supposedly misled Congress regarding gun-trafficking between the US/Mexican border.
The subpoena and the February 4th letter appears to be a side issue that I'll leave for Thursday, after Holder testifies. For now, I am interested in the crux of the Democratic members' report, which is entitled "Fatally Flawed: Five Years of Gunwalking in Arizona."
Continue reading "Howdy ... and some thoughts on guns. "
Posted by Miriam Baer on January 31, 2012 at 07:23 PM | Permalink | Comments (0) | TrackBack (0)
News from the Campaign Trail
Its great to be back on Prawfs, and it is also great to be at ground zero for Election 2012 (well ground zero today at least). Florida is a great state to live in if one is interested in politics. It is a swing state; it is the first big primary state (no offense to New Hampshire or SC); and we will always have Bush v. Gore. What other state can claim that little bit of notoriety?
The results of tonight’s primary should be interesting. Gingrich won South Carolina by a landslide but has crashed and burned in the week and a half since. In light of his slipping poll numbers, Gingrich has vowed to put a colony on the moon; pledged not to participate in future debates if moderated by journalists; and has been outspent 5 to 1 in Florida by the Romney campaign. I suspect that it is this last factor that will determine the winner of today’s primary, which according to one group is the most negative primary fight on record.
And this is true notwithstanding history to the contrary.
Continue reading "News from the Campaign Trail"
Posted by Franita Tolson on January 31, 2012 at 05:10 PM | Permalink | Comments (2) | TrackBack (0)
Rotations
Tomorrow will be a busy day. I've got the object of my bromance in town to speak to my colleagues and students about a few articles. So, in advance of the turn of the page in the monthly calendar, let me take a moment to thank Michael Teter, Adam Zimmerman, and Jessie Hill for their wonderful contributions this last month.
Additionally, please join me in welcoming Trey Childress, who will be with us this month for the first time from Pepperdine, as well as Shawn Crincoli from Touro Law. I'm thrilled to welcome back a great group of Prawf veterans too: Mark Drumbl (W/L); Franita Tolson (FSU!); Debbie Borman (Denver); Miriam Baer (BLS); James Grimmelmann (NYLS); and the inimitable Fenster! Happy February!
Posted by Dan Markel on January 31, 2012 at 03:30 PM in Blogging | Permalink | Comments (2) | TrackBack (0)
Some reading suggestions
In the spirit of procrastinating deep thoughts I would prefer to be having instead, I thought I'd share a few interesting reads from TNR that I found quite thoughtful. First, check out Robert Kagan's challenge to the "America is in decline" meme that has spread the last few years. If the article's good enough for POTUS, it's good enough for you. Second, friends of Prawfs, Don Braman and David Fontana, have a very cool piece summarizing their recent findings that Americans are pretty indifferent to institutional allocations of decisionmaking. Penultimately, if you've been wondering about whether you should wade into that 2 volume set of Parfit's latest reflections, "On What Matters," you might want to read Philip Kitcher's review. It's both fair-minded and critical, so even if he's not right, it's still helpful.
Last, the latest issue of TNR has a brief diarist essay by Leon Wieseltier. The essay is notable for its intensely sharp and justly imposed critique of the latest excesses of ultra-religious forces within Israeli society, and the politicians who fail to adequately contain and castigate those forces. Those of us who love Israel, for all its warts, weep when forced to recognize that the theologico-political sources of internal chaos are as maddening as the external ones with Iran, the Palestinians, et al. The political drama of recent months makes that very clear, even if the current challenges do not yet amount to an existential threat to the grand project of a liberal zionism. But put that fear of overwrought hand-wringing aside, for what we have is, at the very least, an excruciating irritant. And Leon is right to call our brethren to task for baseless hatred, foolish nonsense, and spiritual corruption, and to do so sternly and unequivocally.
Posted by Dan Markel on January 31, 2012 at 02:28 PM in Article Spotlight, Blogging | Permalink | TrackBack (0)
Some Thoughts on Lynn Stout's "Cultivating Conscience"
Lynn Stout’s book, Cultivating Conscience: How Good Laws Make Good People is a compelling account of the role that empathy and morality play in every day human interactions. Stout’s argument, that people are motivated by more than personal gains and losses, is not groundbreaking. Prominent thinkers in the fields of psychology, sociology, philosophy, and religious studies (to name of few) have been making this point for as long as these disciplines have been cognizable. Literature is replete with examples of altruistic behavior (selfless acts of courage make for some of the greatest tales of all). Even legal case books contain examples; who can forget the famous tort case, Eckert v. Long Island R. R. Co., 43 N. Y. 502 (1871) in which decedent plaintiff was killed attempting to rescue a small child from an approaching train. I don’t believe that Stout would characterize her claim as novel. The brilliance of the book is not in the novelty of the claim, but in the systematic and thoughtful way in which Stout demonstrates how the law and economics approach has hijacked our assumptions and methods in a variety of important areas—and how misleading and potentially destructive this approach has been. I don’t quibble with Stout’s evidence or application, and I see extensions of her work on several fronts.
Although Stout cites various threads of empirical work, her primary evidence for the notion that people do not always act like law and economics’ rational maximizer comes from game research. The game research paradigm involves placing participants in a variety of situations where they must decide whether to cooperate or refuse to cooperate in order to enjoy various payoffs. This area of research is where Stout places most emphasis, and it has obvious and important implications for a discussion of pro-social human behavior, but it is only the tip of the iceberg. In fact, social psychologist have been studying “pro-social,” “altruistic,” or “helping” behavior for decades. So much has been done in this area that the Social Psychology Network page makes it one of the main headings, and a quick search of PsychArticles reveals more than 700 studies having one of those terms in the title (this probably underestimates the real number of research articles on pro-social behavior, and it certainly does not account for the file drawer studies that have never been published). The very existence of this empirical social psychological literature is evidence in support of Stout’s claim that pro-social behavior is a real phenomenon. The story Stout chronicles of the increasing prominence of rational choice theory reveals an intriguing lack of awareness, or near total disregard (depending upon your point of view) for behavioral research and theory. When one considers the potential value of empirical psychology to the legal academy, the lopsidedness of the influence seems curious. Even now, the appearance of empirical social science in law reviews is sporadic, and the research that gets the most attention is recycled again and again. With any luck, Stout’s book will encourage law scholars and others to take a fresh look at the rich wealth of empirical research that has profound implications for legal structures, processes, and assumptions.
Stout is interested in showing not only that human beings behave in pro-social ways, but also that they often do so for other than mercenary reasons. The heart of Stout’s argument is that people are programmed to care about others’ welfare, at least to some degree, in most circumstances. Pro-social behavior is not, Stout argues, simply a function of protecting one’s reputation or amassing good will. She points repeatedly to game experiments in which participants behaved in a cooperative or helpful way with other players, even when they were anonymous and even when they knew that the interaction would never be repeated. In essence, Stout argues that most people (sociopaths aside) possess an innate pro-social drive. A natural extension of her argument is a discussion of pro-social behavior toward non-humans. Examples of self-sacrifice benefiting other species abound. One has only to see the Humane Society’s televised pleas for money to be reminded that pictures of wounded dogs and cats get people to open their wallets. Seeing images of injured and neglected animals seem to trigger feelings of compassion similar to that which you might expect in reaction to seeing starving or sick children (although perhaps to a different degree). What explains the willingness of thousands of people to pay a premium for “dolphin safe” tuna? Why do criminal codes contain prohibitions against the mistreatment of animals? This point is not simply academic. It illustrates to a broader sense of responsibility toward many forms of life, a kind of pro-living-thing instinct. Just as Stout argues that attention to human conscience should inform policy decisions, mindfulness of the human instinct to preserve and protect other creatures—and possibly the natural world more generally—has important implications for environmental and land-use law.
Posted by Molly Wilson on January 31, 2012 at 01:06 PM | Permalink | Comments (0) | TrackBack (0)
Any parting advice?
My first stint at blogging is over – the month really flew by. I want to thank Dan and all of the folks at Prawfs for letting me join you. I’d like to take advantage of the last day I have as a guest contributor here to once again benefit from everyone’s experience. There are many new prawfs out there who, like me, began reading this blog during the meat market process and became hooked. I’ve read and heard lots of advice for candidates and for first-year professors, but I’m wondering what advice you’d offer those of us who will be sophomores next year. Should we ask to teach the same courses again next year (I assume so, but is there a reason to expand our repertoire earlier rather than later)? How can we become more involved in the larger legal academic community? What’s the best way to take stock of our first year teaching and to learn how to improve as teachers and scholars? What other advice have you given your new colleagues? Thanks in advance – and enjoy the rest of your semester!
Posted by Michael Teter on January 31, 2012 at 12:27 PM | Permalink | Comments (0) | TrackBack (0)
Whether good or not, conscience exists and can be used as tool or weapon
Brett, Chad and Adam make a number of good points. In particular, their posts raise some common themes I'd like to highlight and respond to:
First, is conscience unambiguously a good thing (and by implication, is selfishness always bad)? Of course not!
Selfishness can be great when it motivates people to do things that make the world a better place, whether one defines "better" in utilitarian terms or more philosphically (e.g., "flourishing"). I'm perfectly happy to let selfishness be the primary motivation for the guy who clears the snow out of my rented Ithaca driveway.
But there are times when selfishness is suboptimal; think the classic tragedy of the commons. Here, sometimes, conscience (unselfish, prosocial behavior) produces better results, because it can motivate people to do things that make the world a better place where material incentives are too expensive, too awkward to employ, or otherwise unavailable to do the job.
Second, that is not to deny that, just as material incentives can motivate people to do things that make the world a worse place (selfishness might also motivate a mugger to part someone from her wallet), so can conscience be used to motivate people to do bad things. To understand this, it's important to remember that the "society" in "prosocial" is a relative term. You might sacrifice your own material welfare to benefit one group, while harming another. Think of the self-sacrificing suicide bomber, or the loyal gang member who refuses to "rat out" his colleagues. Indeed, sometimes one's "in-group" might include animals to the exclusion of people (there was a recent case in California where animal rights activists fire-bombed a UC biology professor's house), or supernatural beings to the exclusion of people (violent religious extremists).
So saying that conscience can be used to pursue good policy goals, should not be read to imply that it can't be sadly misused, too. It can. In my view, that's just another good reason we should pay attention to it.
Posted by Lynn Stout on January 31, 2012 at 10:57 AM | Permalink | Comments (1) | TrackBack (0)
Schwartzman, "What if Religion is Not Special?"
Just a quick note here as I race to a February 1st deadline on some work of my own. My friend Micah Schwartzman at UVa has posted on SSRN a paper titled What if Religion is Not Special? I have been hearing about it from friends for some time and can't wait to read it. Here's the abstract:
This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.
Posted by Paul Horwitz on January 31, 2012 at 09:22 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack (0)
Diary of a Nutty Professor
I'll admit it: I'm a crazy Torts professor. That's me on the right, waiving my toy electric chainsaw over Ernesto's head to illustrate the tort of Negligent Infliction of Emotional Distress. (Ernesto missed class that Tuesday). And here's me, performing the world's worst Ken Feinberg imitation for the New York Post--in a bald cap, no less--to illustrate how the BP Fund might compensate fisherman and hotels under different state laws. And over the past few weeks, I've dressed up like Iron Man (a lesson on intentional misconduct); threatened to spray students with silly string (assault and battery) or seltzer (overdetermined causation); and in return, I've been shot in the face by a student with nerf gun, while another student put me in a full nelson (joint and several liablity).
Yup, I'm that guy. And it's not because I'm an immature person determined to humiliate himself -- even though I probably am and I certainly do -- but instead because I've long believed that some stunts reinforce concepts that stick with students, while bringing life to a late afternoon class. Stunts also serve as a warm-up for the main event in some of my classes. That is, in many of my lecture courses, I ask students to apply their readings to projects typically associated with "skills" oriented classes: interviewing a witness or client, negotiating damages or a new administrative regulation, drafting a complaint or an exhibit, or engaging in oral argument.
I've been experimenting with a project-based curriculum in my Torts and Administrative Law lectures for some time. The idea has been to selectively use the crucible of litigation as a tool to make the doctrine, policy and theory more concrete, while exposing students to skills that they may refine with more supervision in another class, like a clinic or a simulation-based course. I don't pretend to teach students skills in depth. Having taught small simulation-based classes in the past, I've learned that large courses of 80 or 90 students lack the intimacy necessary for students to take risks, reflect with the professor and their peers, and build upon their skills. But, when done right, I think some skills-oriented projects nicely complement my doctrinal lessons, and visa-versa.
But not every project neatly translates into large doctrinal courses. There can be tensions between good projects that reinforce skills and those that reinforce law or policy. Below the fold, I describe three examples of class projects that, with some tweaks, have worked for me. I'd love to hear what others have done, as well.
Continue reading "Diary of a Nutty Professor"
Posted by Adam Zimmerman on January 31, 2012 at 01:05 AM | Permalink | Comments (0) | TrackBack (0)
Monday, January 30, 2012
"Cultivating Conscience" for Contracts
One of the biggest questions for me coming out of "Cultivating Conscience" is whether or not legal scholars can adapt the existing law & economics "utility-maximizing" framework to our new understandings of human behavior. Jolls, Sunstein & Thaler imported the psychological work on heuritics and biases into the existing L&E framework through the nomenclature of "behavioral law and economics." They sought to adapt, rather than replace. But it seems to me that other strains of law & psychology research, such as the scholarship on procedural justice by Tom Tyler and others, call the entire framework into question. If we are actually motivated by fairness, rather than utility, can we just label the taste for fairness as a type of utility? Or do we have start over?
Continue reading ""Cultivating Conscience" for Contracts"
Posted by Matt Bodie on January 30, 2012 at 10:10 PM in Books | Permalink | Comments (0) | TrackBack (0)
Sympathy for the devil?
Adam’s post has already provided a sense of the depth and range of Lynn Stout’s book. It has something for everybody, both lawyer and non-lawyer alike. I second Adam’s praise. Parts I and II of the book are more general, but Part III and gets down to specifics: in tort, contract, and criminal law. I want to say I liked all of the book except for maybe one or two paragraphs in the chapter on criminal law.
Of course, I’m going to focus on those paragraphs.
In the chapter on “Crime, Punishment and “Community,” Stout’s target is (again) law and economics, and I am generally sympathetic to her critique, although when she quotes the economist George Stigler as saying that “the uses of criminal sanctions is erratic” and that “there is a widespeared failure to adopt rational criteria” (208), I find myself nodding in agreement. There are a lot of problems from a strictly law and economics point of view with America’s system of crime and punishment, and we should be open to ways to make criminal sentences more cost-effective in addition to more just. It’s not only possible but probable that we’re using prison too much, and that the benefits in deterrence gained by it are marginal when compared to its huge cost.
So, with Brett, I worry that law and econ might be something of a straw person here (a couple more examples: when totalling up the cost for prison, Stout seems to ignore prison’s deterrent value when she concludes that prison “makes no economic sense” [204]; she also writes that criminal law “punishes intent more than consequences,” [206] but completed crimes are almost always punished more harshly than attempts).
I want to focus here not on economics and the criminal law but conscience and the criminal law. Stout doesn’t want to defend all of the criminal law in terms of conscience, and she is keen to focus on those parts where she thinks law and econ doesn’t explain the law all that well. Her aim, she says, is to explain “how our criminal justice system relies on conscience.” (200). But can’t we use conscience not only to explain how criminal law operates, but also to criticize it? Shouldn’t we?
Continue reading "Sympathy for the devil?"
Posted by Chad Flanders on January 30, 2012 at 04:46 PM | Permalink | Comments (0) | TrackBack (0)
The Ambiguity of Conscience and the Prisoners' Dilemma
In reading Lynn Stout's "Cultivating Conscience," I went back and forth as to whether or not I felt she was treating law and economics as a bit of a straw horse. There is plenty within the field, especially with the growth of behavioral law and economics, that is sympathetic to her position. But I do think there is a resistance to her position that goes deep into the DNA of economics, and after reading the book I felt both that her big point (people aren't as selfish as economists normally assume, and we need to consider how the law can promote a lack of selfishness) is worth hammering home and that she has many good specific ideas and examples. But to keep things interesting, I will focus here on one big point to which Stout pays too little attention.
With occasional caveats, Stout treats conscience ("an internal force that inspires unselfish, prosocial behavior") as unambiguously good. In reality, there is often much ambiguity, and it really matters. We can see that right in the classic game theory example of prosocial behavior, the Prisoners' Dilemma. The story, of course, is that two criminals have been caught, and prosecutors are trying to get each one to squeal on the other. "Cooperation" is defined as not squealing, and from the point of view of the prisoners, both not squealing is the optimal outcome. But from society's point of view, that's not right at all. We want them to squeal, in order to better punish the crime. Honor among thieves is great for thieves, but not for society as a whole.
More generally, the question is prosocial behavior in whose favor? What if there are conflicting possible groups towards whom one might be loyal? The question is ubiquitous. Within my and Stout's core field, corporate law, this comes through in the question of to whom officers and directors owe their fiduciary duties. I think that Stout adds great value by putting a focus on how fiduciary duty affects social norms. But consider the standard formulation that directors should advance the interest of shareholders. Stout is critical of this where the interests of shareholders diverge from broader social interests, and she makes some great points. But, getting directors to advance shareholder interests is itself prosocial behavior compared with them advancing their own personal interests, and that is the core object of fiduciary duty. How can and should corporate law best help shape the norms that guide directors? If we formulate those norms as much broader than advancing shareholder interests, will the resulting vagueness undercut the law's strength?
Stout's framework, and her focus on how the law affects norms, is the right starting point for asking questions like this. But that framework needs to be much more aware of the possibility that individuals may face claims from competing social groups and interests, and which ones the law should encourage them to follow can be a hard question.
Posted by Brett McDonnell on January 30, 2012 at 02:23 PM | Permalink | Comments (10) | TrackBack (0)
Interesting pedagogical divide
On the Civ Pro Prof Listserv, Tom Rowe conducted a survey of preferences for which recent Erie case to use and how--Gasperini or Shady Grove, major or note case, etc. Tom and his co-authors, Suzanna Sherry and Jay Tidmarsh, are trying to put together the new edition of their casebook.
The always-delicious pie chart at right shows the result. A strong plurality prefers Shady Grove as the major case, a smaller percentage prefers both as major cases, and a still-smaller prefers Gasperini only.
I am in the third camp, so the results at least give me pause. My logic has been that I don't teach class actions in my four-hour course and some basic understanding of class actions is needed to fully grasp Shady Grove. By contrast, Gaspeini involved FRCP 59, so the case is a nice opportunity to introduce basic post-trial motions and standards of appellate review. But perhaps there is benefit to covering a three-year-old case instead of a 16-year-old case, especially given the new line-up of justices.
A numeric and percentage breakdown is after the jump.
Continue reading "Interesting pedagogical divide"
Posted by Howard Wasserman on January 30, 2012 at 12:23 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0) | TrackBack (0)
Tidmarsh on Resnik on Access to Courts
January's essay on the Courts Law section of JOTWELL is by Jay Tidmarsh (Notre Dame), reviewing Judith Resnik's Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, published in Harvard Law Review. Resnik's article draws an unexpected parallel between two class-action cases (Concepcion and Wal-Mart) and the "civil Gideon" case of Turner, linking both to the issue of court access. Both the article and the review essay are worth a look.
Posted by Howard Wasserman on January 30, 2012 at 12:13 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack (0)
Might Cultivating Conscience Perpetuate Injustice?
Was this book written especially for me?
I’ve had that thought before: reading, say, The Catcher in the Rye at age 14 and sensing something very familiar in Holden Caulfield’s voice, almost feeling it in my own throat. But it is rare these days—especially when I’m flipping pages in my capacity as a law professor. The type of research I do (at the intersection of law and psychology) and the way I teach courses like business organizations (offering up and then tearing down a neoclassical economic perspective) leave me sometimes feeling a bit out on my own.
Lynn Stout’s new book, Cultivating Conscience, however, suggests that I’m not as alone (or crazy) as I might sometimes fear.
Continue reading "Might Cultivating Conscience Perpetuate Injustice?"
Posted by Adam Benforado on January 30, 2012 at 10:22 AM in Books | Permalink | Comments (1) | TrackBack (0)
"Government and its Rivals"
A (long) while ago, in this essay, "The Story of Henry Adams's Soul: Education and the Expression of Association(s)," I wrote:
[W]e not only speak through associations and rely on mediating institutions for the civic space in which to engage in such expression, but we are also . . . spoken to and formed by them. Indeed, this is one reason why associations are able to play their structural role, described above, as society’s hedgerows. It is not only that they are concentrations or blocs of political power, which can be marshalled against that of the state; they are also the state’s competitors in the arena of education and formation. . . .
[T]he state competes with the mediating institutions of civil society, and its expression competes with that of associations, for the privilege of educating. The freedom of expressive association, then, is not only the freedom enjoyed by individuals of expressing themselves through their associations, but also the freedom of associations to serve and speak as rival sources of values and loyalties.
I "heard" Ross Douthat making a similar point the other day, in the New York Times, in this piece (which I thought was very thoughtful but which quite a few commenters seemed not to like), "Government and its Rivals," which addresses the recent decision by HHS to require most religious institutions and employers to provide coverage, in their health-care plans, for contraceptives. He noted, among other things, that:
Continue reading ""Government and its Rivals""
Posted by Rick Garnett on January 30, 2012 at 10:06 AM in Rick Garnett | Permalink | Comments (0) | TrackBack (0)
Lateral hiring news at The Faculty Lounge
Over in The Faculty Lounge, Dan Filler is, once again, tracking the latest in lateral moves. Help him keep his list current and accurate!
Posted by Rick Garnett on January 30, 2012 at 09:06 AM in Rick Garnett | Permalink | Comments (0) | TrackBack (0)
Book Club on "Cultivating Conscience" Begins Today
Our book club on Lynn Stout's "Cultivating Conscience: How Good Laws Make Good People" begins today. You can find an introduction to the book, author, and club participants here. We are looking forward to the posts from our participants and your comments.
Posted by Matt Bodie on January 30, 2012 at 12:32 AM in Books | Permalink | Comments (0) | TrackBack (0)
Saturday, January 28, 2012
Rubio, Republicans, and immigration
My FIU colleague Ediberto Roman has a piece at The Huffington Post discussing a recent speech by Florida Sen. Marco Rubio on the subject of immigration, in which Rubio, while not endorsing the DREAM Act, called for changes in Republican rhetoric and discussion on the topic. Rubio apparently is on the short list for Vice President (I have not been paying attention), so Ediberto is even more enthusiastic that a top GOP leader would bring a different voice.
Ediberto has often stated his belief that Latino and Hispanic voters may not support President Obama because he has not done enough on immigration. The key, of course, is finding a Republican alternative. Perhaps Rubio, even if only the # 2 on the ticket, would provide that.
Posted by Howard Wasserman on January 28, 2012 at 07:19 PM in Article Spotlight, Howard Wasserman, Immigration, Law and Politics | Permalink | Comments (0) | TrackBack (0)
Law Review Submission Tracker
Click here to download a spreadsheet to help you track your law review submissions during the upcoming law review submission cycle, and thus to create an illusion of control over the process.
The spreadsheet has two worksheets. The main sheet, "S12," gives you information about journals and lets you enter your own information. The second sheet, "Data," automatically calculates, based on your entries on the main sheet, the number of journals that have made a decision about your piece (by response), and the number of journals from which there is not yet a final resolution.
More Details
For the main journal of each school, the spreadsheet lists (1) the name of the school, (2) the date the journal starts accepting submissions (if I could find this information), (3) the most recent US news ranking, (4) the most recent Washington & Lee journal ranking (based on the number of citations to the journal), and (5) the preferred method of submission. (It's Expresso for almost all the journals, except that a few top journals strongly prefer that you submit through their website.) The spreadsheet also includes a handful of specialty journals.
There are blank cells for you to add information such as the date you submitted it, the date the journal acknowledged it received, the date you expedited and the method by which you expedited, and the date it was accepted, rejected, and so forth (If you enter the date in the regular format in those columns, the "Length" column will automatically calculate for you the length of time between when you submitted it and when you heard back from the journal.) There is also a "Notes" column where you can enter things like the ID number some journals assign to entries.
Objections
1. This spreadsheet should include more main journals. It lists only the main journals of the top 100 schools by US News ranking (omitting the two schools, Chicago-Kent and Northeastern, that appear from their respective websites to publish only symposia issues).
2. This spreadsheet should include more specialty journals. It lists only about 15 specialty journals, relevant only to certain kinds of submissions (not mine, actually, to be honest). (The specialty journals are all about civil rights and gender.)
3. This spreadsheet should include more information about when journals open. It includes only the information I could glean from Expresso and from the journal websites about a week ago.
4. Submitting through Expresso is very expensive if you are not part of a law school that has a subscription, and the spreadsheet does not include information about any other way to contact law schools that prefer Expresso (e.g., email addresses).
5. All rankings are flawed, and the US News rankings are really, really flawed.
More Information
For a far more complete document, consult Nancy Levit and Allen Rostron's amazing law review submission guide, fully updated as of August 31, 2011. They also have a list of links to many law review webpages.
PrawfsBlawg has had a number of posts on the law review submissions process, many of which have very helpful comments sections.
Posted by Sarah Lawsky on January 28, 2012 at 09:08 AM | Permalink | Comments (6) | TrackBack (0)
Friday, January 27, 2012
BU Symposium on "The American Right to Health"
As I write this, I am on my way to Boston for a symposium, sponsored by the American Journal of Law & Medicine (AJLM), on "The American Right to Health: Constitutional, Statutory, and Contractual Healthcare Rights in the United States." The symposium runs from about 9 to 5 tomorrow, Saturday the 28th, and it promises to be an interesting lineup (present company excepted, of course).
My own contribution (which, like the others, will be published in the AJLM) will focus on constitutional implications that may arise from the government's definition of concepts such as "medical necessity" and "essential health benefits" under the ACA. I plan to argue that, depending on how narrowly the states or federal government may delineate the benefits to which Americans are entitled under the Act, individuals' constitutional right to protect their health may be infringed. (Of course, this also assumes that individuals have a constitutional right to protect their health--a proposition that I have argued elsewhere). To the extent that the government will virtually occupy the field of health care, it will come to control individuals' private health care decisions to a greater extent than ever before. As such, it is possible that the courts will have to decide whether individuals truly possess a constitutional right to make certain health care decisions autonomously, and if so, when the government has violated that right.
The paper is not yet ready for prime time, so not available on SSRN, but I'd be interested in hearing any initial reactions to this very sketchy idea. Or just come on down to BU and check out the symposium!
Posted by Jessie Hill on January 27, 2012 at 12:46 PM | Permalink | Comments (0) | TrackBack (0)
Thursday, January 26, 2012
Quick Exclusive Submission to the FSU Law Review
See update below.
I was told yesterday that FSU's Law Review has one spot in the current volume that opened up at the last minute. If any of you have a piece that you want to submit for both exclusive and quick review, please feel free to send it (along with CV and cover letter) to Senior Articles Editor, Hannah Monroe, and feel free to cc me. Hannah's email is hdmonroe16 at gmail.com
The story is that the Review will basically occur over the next few days until a suitable piece is found. If you submit now, you agree to publish it with FSU if it is selected. Straightforward and simple. The board will turn over later this spring and the new volume will open up to submission around then. Thanks.
1/27 Update: The FSU LR has asked me to shut the spigot off by tomorrow (Saturday) at 12pm (noon). So please send something to Hannah before then. There very well may be an exclusive submission window that reprises itself later on this semester so watch this space (ie, read Prawfs) for more information.
Posted by Dan Markel on January 26, 2012 at 10:24 PM in Funky FSU | Permalink | Comments (3) | TrackBack (0)
