Tuesday, May 13, 2008
The RIAA in the News: Catching Pirates and Conditioning University Funding
The RIAA is turning to states to help with piracy on college campuses. Tennessee has just passed a law, and Illinois is considering one, obliging public universities to implement and enforce measures that seek to prevent copyright infringement via university networks. My (admittedly limited) understanding of currently available means for curbing such activity is that they will necessarily also prevent legitimate uses of university network resources; findings by the Common Solutions Group support my hunch. Further, it seems a heavy burden indeed to place upon universities to monitor this sort of activity—particularly when that burden will fall to state-funded schools.
On a similar note, an article in today’s Chronicle of Higher Education discusses the RIAA’s pirate-catching tactics. What caught my eye was not the RIAA’s use of LimeWire (though I found that inexplicably amusing), but the paraphrased admission by a spokesperson that “the RIAA can tell only when a song is being offered for users to illegally download; investigators have no way of knowing when someone else is actually downloading the song”. This admission goes to the heart of the RIAA’s litigation strategy against P2P users: that simply “making available” a copyrighted work, without more, is sufficient for a finding of copyright infringement—that offering for distribution, in other words, is equivalent to distribution. A number of district courts have tackled this issue in recent months (catalogued and analyzed by William Patry and the EFF, among others), with varied results. I am pleased that the courts are willing to engage in thoughtful assessment of the RIAA’s claims, rather than simply rubber-stamping them (most recently in this decision denying summary judgment for the RIAA against pro-se defendants). I am also concerned, however, that those courts supporting the RIAA’s interpretation of the law are creating a standard that is much too broad, and that will have unintended consequences.
Posted by Nadine Farid on May 13, 2008 at 03:31 PM in Intellectual Property | Permalink | Comments (0) | TrackBack (0)
Political Casualties
Ohio Attorney General Marc Dann will be stepping down later today, after initially refusing to do so in light of a sexual harassment scandal that involved members of his staff (and a pineapple pizza--why these details surface is utterly beyond me). Representative Vito Fossella has yet to step down, though robust talk of his determination to run for re-election has waned. Any bets on Massachusetts House Speaker Salvatore DiMasi?
Posted by Nadine Farid on May 13, 2008 at 03:21 PM in Law and Politics | Permalink | Comments (0) | TrackBack (0)
May Quicksand
As May arrives, law school classes end, and as quickly as possible I find a way out of the quicksand of exam grading.
What's the best way to draw myself out of the quicksand? How best to clear my mind and jump into some summer work? Deadlines won't inspire me now -- I placed an article in the Spring Law Review Lottery. None of my projects are far enough along to contemplate an August cycle submission. I'm truly looking forward to a symposium this summer at Ohio State, dealing with prosecutor discretion, but I can't start work on that manuscript until some data arrives from a research assistant.
So what's the perfect quick-start writing format that will help me put grading and deaning behind me for the summer, even if the larger summer research plans seem indigestible at the moment? I think we've just found another useful role for blogging!
Posted by Ronald Wright on May 13, 2008 at 03:19 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)
The Hazards of Trying to Set the Record Straight
The political campaign season inevitably brings a rash of candidate claims and counterclaims, charges and rebuttals, the presentation of "myths" v. "realities." Conventional wisdom suggests that a smart candidate will leave no misleading claim by his or her opponent unrebutted.
But emerging evidence suggests that that strategy bears the risk of simply reinforcing the initial "false" claim in onlookers' minds. Cognitive psychology research finds that repeatedly exposing listeners to claims like "aspirin destroys tooth enamel" increases the perceived truth of those claims -- even when the statements are explicitly identified as false at the start.
For example, a study in the consumer context -- How Warnings about False Claims Become Recommendations -- focused on older adults and found that repeatedly identifying a claim as false helped folks remember it as inaccurate in the short term, but led them later to recall it as true. In other words, repeating the claim in order to rebut it contributed to listeners' greater familiarity with -- and better memory of -- the original inaccurate claim itself rather than the more complex rebuttal context in which the claim was repeated. The authors concluded that "The more older adults were told that a given claim was false, the more likely they were to accept it as true" after several days had passed.
So what's a beleaguered pol to do? Not fight back, and leave your opponent's misleading claims unrebutted? Or try to set the record straight, and bear the risk that you're just reinforcing the original charge? Sometimes you just can't win for losing . . . .
Posted by Helen Norton on May 13, 2008 at 01:56 PM in Current Affairs | Permalink | Comments (2) | TrackBack (0)
Symbolic Counter-speech and the Pledge of Allegiance
Commentators have been talking about four middle-school students in Minnesota who were suspended for not standing during the Pledge of Allegiance. District policy requires students to stand, although they need not recite the Pledge. The local ACLU sent a letter to the district and over the weekend the suspensions were lifted and the students' records cleared. Good to see the District came to its senses, although it is a shame it took the ACLU, the threat of a lawsuit, and some bad publicity to get it to do so.
Calvin Massey, writing at the Faculty Lounge, suggests that the case is troubling, although not as clear-cut as the ACLU suggests. I would suggest that it at least should be that clear-cut.
The students engaged in what I have described as symbolic counter-speech: Brandeisian counter-speech responding to a symbol, using the symbol and its surrounding details as the vehicle for that counter-speech. One common mode of symbolic counter-speech is nonparticipation in a symbolic activity, such as the ceremonies or rituals designed to honor or affirm that symbol.
Nonparticipation can be understood in two ways. First, it is a protected refusal to engage in expression aganst your wishes. Under West Virginia State Board of Educ v. Barnette, the First Amendment protects unwilling students from being compelled to salute the flag and recite the Pledge. Importantly, however, the symbolic celebration of the flag (to which Barnette provides protection from compulsion) resides the entire ceremony--everything from standing, to facing the flag, to placement of a hand over the heart, to the recitation of some or all of the words. Thus, to have any force, the liberty not to be compelled to participate must apply to every part of that symbolic celebratory ceremony.
But nonparticipation itself is expressive; the act of refusing to join sends a counter-message (silent and non-specific though it might be) about the symbol and its message. An individual's ability to protest a symbol must include the ability to opt-out from everything surrounding that symbol, even something seemingly as innocuous as being made to stand silently.
Massey does raise the spectre of the fact that this occurred in the school setting and the argument that the school has a legitimate pedagogical interest in preventing interference with school business that might come from sitting students fostering a "climate of sullen disrespect." But I do not see how sitting fosters any more of a climate of disrespect than not saluting or remaining silent or omitting certain words. It is a bit more obvious perhaps, but shows the same refusal to engage with the symbol and its surrounding details. I might agree if students engaged in more-disruptive modes of symbolic counter-speech--shouting down the flag, loudly uttering different words (hence the above cartoon), or perhaps even more-dramatic non-participation, such as turning away from the flag (although I would be troubled by the last one). But merely sitting this one out does not cause any sort of disruption in the Tinker sense or even interfere with the school's mission or message in the Morse v. Frederick sense.
Posted by Howard Wasserman on May 13, 2008 at 12:14 PM in First Amendment | Permalink | Comments (4) | TrackBack (0)
Of Witchcraft and Warlords
As Professor Kolber noted several days ago, Congolese are attacking witchcraft with cringe-worthy means. The situation in the Congo is a matter of revived interest personally, due to my involvement on the board of a nascent citizen-journalist NGO based in the Congo and neighboring Rwanda. The problems in the Congo are not limited to deprivations of manhood: The country is mired in a war that has killed 5.4 million people—that’s severalfold the Rwandan genocide and well over ten times the estimated toll of the war in Darfur. The war in the Congo faces little resistance internationally, despite its politics, despite reports of U.N. malfeasance, and despite the death count. The country needs international attention, perhaps a grassroots movement that can serve to motivate action. Bono, are you listening?
Wealthy by African standards, the Congo is hijacked by its own citizenry, especially with respect to the legal rights of the countless women who are the victims of the most brutal rapes imaginable—often at the hands of military personnel sent to protect them. An HBO documentary that debuted in April details the horrors these women experience, from the act of rape, to the murdering of their families, to their social ostracizing, to the impotence of the legal system to address their claims—a system that only recently implemented laws against rape, and that fails to support the enforcement of those laws. The Balkan war tribunal established rape as a war crime, but perpetrators of this crime in the Congo have yet to be brought to justice in any forum. In fact, the International Criminal Court has barely waded into the mire to prosecute those responsible for the atrocities of the war.
As one male interviewed in the documentary stated: ‘If a society does not protect its women and children, what kind of society is it?’ Given the extent of the damage in the Congo, unwavering international support for its citizenry—in the form of, at least, dedication to the prosecution of those permitting the rampant savagery against innocents—is wholly warranted. If a society does not protect its women and children . . . .
Posted by Nadine Farid on May 13, 2008 at 04:02 AM in Current Affairs | Permalink | Comments (0) | TrackBack (0)
Monday, May 12, 2008
'Why I Don't Write'
Three years ago, Paul Horwitz started a wonderful discussion about the value of scholarship by law professors, Why I Write. Those of us who populate the legal blogosphere tend to be writers. We write articles, essays, symposia pieces, and, our appetites still unsatiated, jump into blogging, op-ed writing, and the like. The personal and professional benefits of writing are obvious and immediate. You get bigger raises, get promoted, get invited to speak at conferences, and become part of a national network of scholars in a field that helps assuage some of the loneliness or monasticism of the academic life. Many of my friends in the law professoriate still express amazement that they get paid to write! About things they care about!
An equally interesting, and perhaps more troubling question, is why some professors choose not to write. Even the top law schools -- as presumably will be revealed by Greenbag's pending "Deadwood" rankings -- have professors who have not written a piece of scholarship, legal or otherwise, in years. I have heard various explanations from some non-writers about why (typically post-tenure) they choose not to write, although none of these seems completely satisfying. Unlike the folks at GrumpylawMoneylaw, I don't think the answer is that non-writers are thieves who could easily be brought into the scholarly fold by an aggressive dean or post-tenure review.
Continue reading "'Why I Don't Write'"
Posted by Geoffrey Rapp on May 12, 2008 at 12:52 PM | Permalink | Comments (4) | TrackBack (0)
Quality Judicial Writing?
Justice Scalia's new book, "Making Your Case: The Art of Persuading Judges" -- co-authored with Bryan Garner – offers suggestions for written and oral advocacy. While Scalia and Garner agree on many topics, an interview in the ABA Journal reports that they disagree on a few matters related to effective legal writing, such as the value (or lack thereof) of substantive footnotes, the appropriate use of contractions, and the decision to place string citations in text or in footnotes.
Not surprisingly, the authors have a number of complaints about lawyers' written submissions to the bench. Their critiques of lawyerly writing prompt me to invite nominations for exemplary judicial writing -- i.e., judicial opinions that (apart from whether you agree with their holdings) you find especially clear, cogent, well-organized, and enjoyable to read. I'll start by nominating Justice Jackson's dissent in Korematsu. The opening sentences demonstrate from the start his crisp prose style:
"Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived."
Posted by Helen Norton on May 12, 2008 at 11:28 AM in Teaching Law | Permalink | Comments (0) | TrackBack (0)
"Beyond the Breaking Splendour of the Years"
I've blogged several times before here about the Tri-4-Gey team's efforts, inspired by my colleague Steve Gey and his battle with ALS, to raise funds to battle Lou Gehrig's disease. The excellent news is that they have now raised over $70,000, due in part to the generosity of readers of this blog. You can continue to donate here.
In the meantime, Steve's battle grows ever more difficult. A couple weeks ago, there was a lovely story in the St. Pete's Times by John Barry about how Steve and his students are dealing with the sad situation. Here's a link. Breaks your heart. And inspires it too.
Title: a line from a poem by Dowell O'Reilly
Posted by Dan Markel on May 12, 2008 at 12:20 AM in Odd World | Permalink | Comments (0) | TrackBack (0)
Sunday, May 11, 2008
Do I have Standing to Intervene if a Court Refuses to Follow my Article?
I left practice in part based on the fantasy that I could better influence legal developments by writing articles than I could by litigating appeals; even when a brilliant brief wins, it often results in an opaque and narrow opinion, particularly in the intermediate appellate courts, but a law review article makes its argument forever. Michael Blanchard, a former student, and I criticized the practice of salvaging drug prosecutions when the dope was lost or never recovered, and therefore never tested in a lab, by having police officers give lay opinion testimony that they could tell by looking that the white powder in the missing glassine was heroin or cocaine or methamphetamine. This is scientifically and socially preposterous; almost no one can visually analyze the chemical composition of white powder: most of the volume of street drugs is filler or binder, and some of what is sold on the street is phony--completely drug free. This issue came up in a North Carolina case, State v. Llamas-Hernandez, 659 S.E.2d 79 (N.C. App. 2008) ; the good news is that all three judges agreed that it made little sense to allow officers to testify about something they could not possibly know. The bad news is that two of them nevertheless voted to uphold the conviction.
Continue reading "Do I have Standing to Intervene if a Court Refuses to Follow my Article?"
Posted by Jack Chin on May 11, 2008 at 02:32 PM in Criminal Law | Permalink | Comments (1) | TrackBack (0)
Saturday, May 10, 2008
Weekend Trivia Challenge - Name this Law School
Can you name this law school?
Founded in 1834, it is the oldest law school in its state, and one of the oldest in the nation. Originally a private school, in 2000, it merged with a flagship public university. A bitter battle followed over whether the school should remain in its original locale or relocate to its new university's main campus.
In the end, both sides won. The law school retained its old home while building new facilities 80 miles away at the university's main campus. The bifurcated structure is, according the the school, "two completely unified, interconnected campuses".* The two-campus structure does, however, have its skeptics and critics.
First-year students select one campus, and all required courses are available there. In the 2L and 3L years, students can switch campuses to take advantage of unique programs or classes available only at the other campus. Upper-level students can also take classes from the remote location through a "highly sophisticated, suitable and advanced audiovisual telecommunications system."**
If you need a another hint, highlight this paragraph to see the hidden white text: Included among this law school's alumni is the first secretary of the U.S. Department of Homeland Security.
So, what law school is this?
Continue reading "Weekend Trivia Challenge - Name this Law School"
Posted by Eric E. Johnson on May 10, 2008 at 09:12 PM | Permalink | Comments (2) | TrackBack (0)
Friday, May 09, 2008
The Peevyhouses: The Most Screwed Victims in Case-Law History
Is it a bizarre ritual of professional self-loathing? As law professors, we delight in training the next generation of lawyers by pouring over case after case in which the great wheels of justice grind some sad sack to a pulp.
But who is the most screwed victim in case-law history?
I solicited nominations back in February. A passionate discussion ensued in the comments. Then, I made the difficult decision of choosing four candidates to put on the ballot in April, and the campaigning followed. The people have spoken, and the ballots have now been counted.
I hereby crown Willie and Lucille Peevyhouse The Most Screwed Victims in Case-Law History
In case you slept through expectation damages in Contracts, in Peevyhouse v. Garland Coal & Mining Co., the Peevyhouses signed a contract allowing Garland Coal & Mining Co. to strip-mine their farm, but with the express guarantee that Garland would restore the farm's landscape once they were done. Having taken what coal they could, Garland then refused to pony up the $25,000 required to remediate the land. The Oklahoma Supreme Court acknowledged the breach, but held that the remedy was limited to the diminution in the value of the farm. How much was that? According to Oklahoma's highest court, $300.
Here was the breakdown in the voting:
4% The Boyds, of Boyd v. Racine Currency Exchange, Inc.
6% Mrs. Palsgraff, of Palsgraff v. Long Island Railroad Co.
9% John Moore, of Moore v. Regents of the University of California
81% The Peevyhouses, of Peevyhouse v. Garland Coal & Mining Co.
Wow - the results were so lopsided!
Um, I meant their victory, not their farmland. But you have to admit, they flat-out leveled the competition, ending up with a landslide. Oh, uh, sorry again. My bad.*
Continue reading "The Peevyhouses: The Most Screwed Victims in Case-Law History"
Posted by Eric E. Johnson on May 9, 2008 at 06:08 PM in Life of Law Schools, Teaching Law | Permalink | Comments (0) | TrackBack (0)
Truly Useful Law School Courses
As a faculty advisor, one of my jobs is to approve the courses my first-years plan to take next fall. Law students are fairly conservative and risk-averse in their choices, so usually I see the standard set of courses: Evidence, Bus. Org., Crim Pro, Admin, and the like. But the fabulous E. Noakes of McSweeney's has provided a list of *truly* useful courses that law schools should offer:
Classes My Top-Tier Law School Should Have Offered as Warnings About the Profession.
Cutting and Pasting Legal Lingo
Explaining Business Associations to the People Who Are Running Them
4 A.M. Word Processing and the Law
Ethics of Conspicuous Consumption
Forwarding E-mails: Theory and Practice: Seminar
Arbitrary-Deadline Negotiation Strategies
Crying Quietly: Clinic
Jeans-Friday Advocacy Workshop
Cutting and Pasting II: Plural to Singular
************
I'd like to add a few of my own:
Document Production: Theory and Practice
Windowless Document Warehouses--Practicum
and for the public-interest minded:
Finance and the Law: When Salary Doesn't Even Cover Loan Repayment
Cross-posted at The Faculty Lounge.
Posted by Laura Appleman on May 9, 2008 at 03:40 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack (0)
Some Weekend Reading: A Review of Posner and Powell
Looking for something to do this weekend? I have just the thing for you. Here is a short draft review, which should hopefully be destined for a popular practice journal, of two great new books: Richard Posner's How Judges Think, and H. Jefferson Powell's forthcoming Constitutional Conscience: The Moral Dimension of Judicial Decision. Both are splendid, and I hope the review is a nice introduction. I hope fans of virtue jurisprudence will find it particularly interesting, but it should be of general interest to students of and kibitzers in constitutional law and people who are interested in the judge's craft -- that is to say, everyone who reads this blog. Here's the abstract:
This is a short review of two new books on judging -- Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner. Although both books examine the same topic, and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law, their approaches diverge significantly. Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case. Posner brings his economist's toolkit, supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism, to many of the same questions. Their goals are somewhat different, and their conclusions, despite some common ties, present a striking contrast. These books may be read as complementary and not just competitive accounts. Nevertheless, I suggest that Posner's account is far more descriptively accurate, although Powell leads us, commendably, to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account.
And here's a brief snippet comparing the two authors:
Powell would drape the figure of Lady Justice in new and glorious robes, albeit robes of ancient design. Given his druthers, Posner would criticize the cut of Justice’s robes, scoff that they aren’t warm enough to have any useful function, and digress to note that the taboo against nudity is itself a historically contingent and only locally applicable social norm. (Seriously. Doubters may consult the index entries on “nudity” in Posner’s Sex and Reason.)
Enjoy. May I add self-servingly that I would love to expand this short review into a full-on treatment for a law review, and I invite law review editors who might be interested to let me know.
Posted by Paul Horwitz on May 9, 2008 at 03:32 PM in Books, Constitutional thoughts, Law and Politics, Legal Theory, Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
On Proctoring Your Own Exam...
I'm writing this post from my seat at the front of a classroom where half of my 140 first-year Constitutional Law students are taking their final exam (the other half is in the next room over). And other than trying to pass the time, sitting here also got me to thinking -- how common is it to proctor your own exam?
I have two reasons why I do it here at WCL: First, I save money. WCL has a policy pursuant to which professors must pay out of their own pockets to have someone else proctor their exam. Leaving aside the merits of this policy (which gives you one free proctor for every 70 students over 70, so someone else is proctoring the other room), for a relatively un-well-paid junior prawf like me, I'd rather keep the $100 ($20/hour, including set-up and collection time), and use this time to do work...
Second, I like being here. I'm always paranoid about something "going wrong" on the exam, either administratively or substantively, and feel like I can "do more" (or at least be less paranoid) if I'm in the room... of course, that leads to inevitable awkwardness, but better that than a panicked phone call, or a note from a student (or 20) who wasn't able to clarify something I could've clarified on the spot in 10 seconds.
But it leads me to wonder where others come down on proctoring your exams. Do you like to? Do you not like to? Does your school require you to choose between paying an outside proctor and doing it yourself?
The really sad part is that, come 5:30, they'll all be very happy to be done, and I'll have a pile of 140 exams to grade. Stairs, here I come!
Posted by Steve Vladeck on May 9, 2008 at 03:07 PM in Life of Law Schools, Steve Vladeck, Teaching Law | Permalink | Comments (6) | TrackBack (0)
Observations on exams
Probably like the rest of the professor world, I’ve been grading exams for the last few days. Most exams I took in law school were issue spotters (there were a few that were theoretical, asking questions like “how would you redesign the administrative state,” but I’m not going to focus on those), which generally require students to apply core doctrines to the facts. But this isn’t much like practice, at least in administrative law, which I taught this term. Core doctrines are not usually the focus of arguments in a case. In a case about statutory interpretation, for example, the arguments usually don’t focus on what Chevron means or whether it applies; everyone agrees that Chevron applies. Instead, one side argues that they win on Chevron, and the other side argues why they don’t lose under Chevron. These arguments depend on the text of the statute, canons of construction, purpose of the statute, and legislative history --- none of which directly involve Chevron, or even really legal doctrine at all.
So I decided this term to have one of the questions on my administrative law exam focus on these issues. A week before the exam I gave my students legislative histories and dictionary definitions, and then gave an in class exam that required the students to develop arguments based on these materials (which were sufficiently broad not to telegraph the questions).
The students did well enough, but I noticed a hesitancy to be creative. Students didn’t seem comfortable with making arguments like “court, you should read this provision to mean X and not Y, because . . . .” Anyway, I was wondering if others had thoughts on the matter.
Posted by Andy Hessick on May 9, 2008 at 10:14 AM in Teaching Law | Permalink | Comments (4) | TrackBack (0)
Thursday, May 08, 2008
Voter ID and Election Fraud: A Non-Fix to a Non-Problem?
Lots of people have said interesting things about the Court's upholding of the Indiana Voter ID statute, including Rick Hasen (in a 2006 piece in Slate, voter ID laws in Slate, and a more recent piece here) Vikram Amar, Dan Filler, and Edward Foley and Dan Tokaji.
My perspective comes from my experience with technology here in Tucson, and it makes me think that requiring a photo ID at the polls is almost perfectly calculated to exclude only legitimate voters, while taking care not to catch any fraudsters. Reasonably high quality fake ID's are readily available. The students in my white collar crime clinic prosecuted a man who, for $50, in a matter of minutes, with nothing but a computer, laser printer and laminator, made pretty terrible green cards for the undocumented and pretty good Arizona driver's licenses for thirsty high school kids. Any fraudulent voting operation could easily mass produce acceptable counterfeit photo ID. This guide enables bars to check the validity of ID's by identifying the characteristics of genuine documents--oops, since it is available to the general public, vote fraud folks can also make sure to use the right verification codes. They look legit. So requiring photo ID would not prevent organized vote fraud (if it in fact existed, which many commentators seem to doubt). On the other hand, actual security would be easy to achieve. Every police car in the State of Arizona can instantaneously pull up a driver's license photo on a wireless laptop--the actual photo of the licensee, so the officer cannot be fooled by a fake document. There is no reason, if it is important, that these databases cannot be made available to election workers, and every voter verified--not merely to verify that they have an ID, real or not, but that they are actually who they say they are. And of course, photos of people without driver's licenses could be added to this database, or to another one, at the time of registration. This type of system would have the virtue of actually preventing fraud. However, this type of verification system would also allow most everyone to vote, even if, when asked what kind of ID they have, they answer "nun", the poll worker would just pull up their photo. Since the states don't seem to do this, commentators may be right that there is no actual fraud problem, but that voter ID is another transaction cost designed to drive down Democratic voter turnout.
Posted by Jack Chin on May 8, 2008 at 08:50 PM in Law and Politics | Permalink | Comments (3) | TrackBack (1)
Which Kind of Law Professor Are You?
The first one? Or the second? See here.
Posted by Paul Horwitz on May 8, 2008 at 06:25 PM in Teaching Law | Permalink | Comments (0) | TrackBack (0)
The Litigation Bounty
Yuval Feldman and I have been studying regulatory, organizational and behavioral effects on compliance and reporting. Our first study forthcoming in the Regulation and Governance is here. Recently, we received a grant from the ABA section on litigation to help us with the next stages of our studies. 
The qui tam bounty program under the False Claims Act (FCA) is a particularly interesting strategy of regulatory enforcement. The FCA provides employees a percentage of the recovery from a report of fraud by a government contractor. Enacted during the Civil War, the FCA was designed to encourage reports of fraud by defense contractors. Employees who file a qui tam suit on behalf of the public and are compensated by up to thirty percent of the recovery in a successful suit. Mini-FCAs have subsequently been enacted by a few states. In 1986, the FCA was amended to prohibit retaliation against employees who sue under the Act, but the bounty provisions remain the leading feature of its reporting scheme. To date, the courts have awarded over 3 billion dollars to whistleblowers who filed qui tam suits. Our study is designed to identify empirically the comparative advantages and competences of systems that incentivize litigation on behalf of government. It also aims to provide insights into the internal motivations, benefits and costs of initiating such civil litigation by an organizational player.
Continue reading "The Litigation Bounty"
Posted by Orly Lobel on May 8, 2008 at 04:16 PM | Permalink | Comments (0) | TrackBack (0)
The Company We Keep: Negativity by Association
Tommy Crocker's very interesting post last month questioned folks' eagerness to associate Barack Obama with the views of his pastor, the Rev. Jeremiah A. Wright, Jr. The Washington Post's Shankar Vedantam recently ran a related -- and equally interesting -- analysis that describes social and cognitive psychology research confirming that onlookers frequently denigrate an individual simply because of his or her social relationship with someone perceived as stigmatized.
As Vedantam's article explained, a number of studies have shown that friends, relatives, and roommates of stigmatized persons are more likely to experience social rejection themselves as the result of their relationship with those persons. For example, When We Observe Stigmatized and "Normal" Individuals Interacting: Stigma by Association found that straight male targets were more likely to be denigrated by observers when they were seen talking with a gay male friend than with a straight male friend.
Indeed, observers often form negative impressions of an individual who is simply seen in the presence of a person perceived as stigmatized. For example, The Weight of Obesity in Evaluating Others: A Mere Proximity Effect found that observers rated job applicants who were viewed while seated next to an overweight person more negatively than those viewed while seated next to a person of average size. In other words, physical proximity alone was sufficient to create negative associations, as negative perceptions retained their hold even when the observers were instructed that the individuals seated next to each other did not know each other.
These findings confirm what many already intuit: associating with stigmatized persons may well lead others to view you negatively. Sadly, the authors found that such negative associations were not easily undermined and offered no antidote to stigma by association. Destigmatization is no easy task, as Barack Obama has found. But, as our parents told us, who cares what other people think?
Posted by Helen Norton on May 8, 2008 at 02:18 PM in Current Affairs | Permalink | Comments (1) | TrackBack (0)
Horwitz on Kerr on Horwitz on Cassell on McCain (on Donner, on Blitzen, on . . . )
Much of the discussion of John McCain's speech on his "judicial philosophy" (I cannot help but put that in quotes) has been interesting and even illuminating. My earlier post is here, and I really commend to readers the comments on it by Orin Kerr, especially, and by Trevor Morrison. I also recommend the discussions between Orin and Doug Kmiec at Convictions, and some of the posts at Balkanization. I'd like to add to the discussion by responding at length to Orin's observations in the comments section of my earlier post. Orin writes, quoting me in italics:
In any of the roles you posit, including that of political conservative, I assume the relevant standard should be one of sound judgment and something more than merely strategic calculation; and on that standard I find it hard to see how McCain's boilerplate makes a filling meal.
This is where we disagree, Paul.
Maybe some context would be helpful. Many conservatives feel that they have had a hard time in the last few decades getting what they perceive as "solid conservatives" appointed to the Supreme Court. Yes, there have been many vacancies filled by Republican presidents, but Republican nominees have been hit or miss. Sometimes conservatives get Scalia, but sometimes they get Souter.
In light of this, conservatives often ask themselves a question about Republican presidential nominees: If elected, will this nominee take the need for conservative judges seriously, or will they not take this issue seriously? To many conservatives, their support for a Republican President stands or falls on this issue.
It seems to be that Cassell is just trying to answer this common question out loud in the case of McCain. He's trying to guess if McCain is serious on the issue, and if conservative voters will realize that. Perhaps it is only "strategic calculation," but if so then it's the strategic calculation on which our democracy is based: Choosing who to vote for based on whether the candidate would do what the voter wants. It's not going to be published in the Harvard Law Review, but that's because it's just a prediction of how a candidate would act if elected and how voters might respond.
Let me first of all say that it's a genuine pleasure to have these kinds of discussions with Orin. Seeking in good faith to find and clarify a point of disagreement is just how these dialogues should be conducted, and he has been an extremely skillful and charitable interlocutor by this standard. Thanks.
I think we have indeed come close to identifying our point of disagreement. It may be indeed that Cassell is simply saying that on the basis of this speech, he thinks McCain will take seriously the "no more Souters" goal that has been informally advanced by some sectors of the conservative community (and which was made explicit in yesterday's NY Times story about McCain's speech by at least one person quoted in the article), and he is thus "satisfied" in the particular sense in which you use the word. If so, I don't think that is different from "mollified," but I don't think too much turns on the word apart from nuances of meaning. And, as you say, so what? This is how we pick judges and Justices, those choices have real consequences, and the fact that "politics" are part of the judicial selection process is at least a link between the Court and the democratic process.
I share at least some of these realpolitik leanings. But, and here perhaps is where our disagreement lies, I do not think those leanings should be enough to guide and fill the content of public statements by academics, at the very least (and I count Cassell as one), and perhaps in an ideal world by everyone. After the jump I have an unfortunately large amount to add to this point, which ultimately is not only about Cassell and McCain, but about the duties of academics. I also have some additional comments that go more directly to the McCain speech and to Orin's discussion.
Posted by Paul Horwitz on May 8, 2008 at 10:48 AM in Constitutional thoughts, Paul Horwitz | Permalink | Comments (16) | TrackBack (0)
Federal Rules of Electoral Procedure?
Heather Gerken had a Legal Times op-ed and a Balkinization post discussing proposals for private, non-partisan "shadow institutions" to help resolve electoral disputes involving vote counting, eligibility, and districting. She writes more here. She argues that such institutions can function as a first step towards taking control of electoral processes out of partisan hands and moving us, incrementally, toward the non-partisan processes that all other western democracies use.
I do not study the electoral process, although much of the work in it, particularly Gerken's, is very interesting. But it seems that she and other commentators pushing for electoral reform are playing out, in the electoral context, the same spirit of judicial procedural reform that played out in the late 19th and first three decades of the twentieth century, and which lead to the Rules Enabling Act of 1934 and the Federal Rules of Civil Procedure four years later. (Steve Burbank's 1982 article remains the best history of the spirit of reform that lead to the Rules).
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Posted by Howard Wasserman on May 8, 2008 at 10:16 AM in Law and Politics | Permalink | Comments (0) | TrackBack (0)
Happy 60th Birthday, Israel!
Sadly, I wasn't able to make it to this year's celebrations in Israel for today's 60th Birthday, but I wanted to wish a "Yom Huledet Sameach" to all our Israeli readers and writers. After the jump, I've posted some links care of the AJC, the human rights and advocacy organization. 
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Posted by Dan Markel on May 8, 2008 at 09:52 AM in Current Affairs | Permalink | TrackBack (0)
"Non-recognition" of same-sex couples in Michigan
The Michigan Supreme Court finally came down with their opinion in National Pride at Work v Governor of Michigan. Download pride_at_work.pdf
The case involves the interpretation of Article I, section 25 of the Michigan Constitution, a provision barring the state from recognizing any agreement as a marriage "or similar union...for any purpose" except a marriage between one man and one woman. According to the Michigan Supreme Court, this provision bars the state and its subdivisions from providing employment benefits -- basically, health insurance -- to the "domestic partners" of government employees. The majority reasoned that domestic partnerships, as defined by the public employers at issue (e.g., the University of Michigan and some local governments like the City of Kalamazoo and Ann Arbor) were too "similar" to marriage, because the conditions for being eligible to enter into such a partnership mirrored the criteria for eligibility for marriage. For instance, the City of Ann Arbor barred employees from registering someone as a domestic partner if they were related by a degree of consanguinity that would bar marriage.
The opinion, I think, is deeply confused. (Full disclosure: I was co-counsel for plaintiff-petitioners). The weirdness of the opinion is most obvious in the decision's broad construction of the notion of "recognition." According to the Court, "by providing legal significance to a relationship, the public employer is acknowledging the validity of that relationship." It is this acknowledgment of "validity" (whatever that means) that Article I, section 25 prohibits.
Think about that proposition for a minute.
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Posted by Rick Hills on May 8, 2008 at 07:43 AM in Current Affairs | Permalink | Comments (8) | TrackBack (0)
Effective Testing
Because I will be teaching abroad for part of the summer, I decided to ignore my conscience and administer a Property exam that was half multiple choice/short-answer and half essay. I know a number of professors are ambivalent about using multiple choice on law school exams, but that the option can be useful (not to mention easier on the professor on the flip side, so to speak). I've not yet finished grading, but I'm curious as to (1) whether students study differently when faced with a multiple-choice component on an exam, and (2) whether professors find, consistently, that students who score well on the multiple choice questions also lead the class on the essay portion of the exam. Thoughts?
Posted by Nadine Farid on May 8, 2008 at 03:45 AM in Teaching Law | Permalink | Comments (4) | TrackBack (0)
Wednesday, May 07, 2008
Dep't of Unfortunate Pseudo-Trends
How you can write a whole article about "steampunk" -- in the author's words, "a subculture that is the aesthetic expression of a time-traveling fantasy world, one that embraces music, film, design and now fashion, all inspired by the extravagantly inventive age of dirigibles and steam locomotives, brass diving bells and jar-shaped protosubmarines" -- without mentioning Neal Stephenson's classic The Diamond Age is quite beyond me.
Having said that, I must admit that even raising this objection is rather like criticizing Mazes and Monsters for offering an unrealistic and insulting caricature of Dungeons & Dragons. It doesn't do the author any good, it gives attention to something that would be better off dying for lack of oxygen, and it won't exactly raise my own cool quotient any.
Posted by Paul Horwitz on May 7, 2008 at 09:49 PM in Culture | Permalink | Comments (1) | TrackBack (0)
Hillary Clinton for the Supreme Court?
There has been much talk about Barack Obama naming Hillary Clinton as his running mate. This seems most unlikely, for the basic reason that they seem to dislike each other intensely. Moreover, having the former first couple as the new second couple would create an endless nightmare of message control (if Hillary has trouble keeping Bill on script, how could Obama?).
But there are a lot of Hillary Clinton supporters who will be disappointed by Obama's inevitable nomination. Is there anything to offer them? Lately, I've been thinking about this idea: Suppose Obama announced that he would name Hillary Clinton to the first Supreme Court vacancy of his term. She would be a very strong candidate, bringing a diverse background to a Court that is now composed entirely of former federal appellate judges. She has been a staffer for the Watergate committee, a law professor, a partner in a law firm, a United States Senator, and she has played a prominent role in White House decisionmaking. This is real-world experience of the sort brought to the Court by justices such as John Marshall, Robert Jackson, and Earl Warren. And, of course, she would double the number of women on the Court (or at least maintain it, if Justice Ginsburg retired).
There are a number of downsides. First, she would be 61 in the first Obama term, which is slightly old for a lifetime appointment, although still within the range of plausibility. Second, it's arguably an inappropriate politicization of the Supreme Court. (I can't think of another instance where a presidential candidate announced specific judicial nominees in advance, although of course candidates regularly make promises about the types of judges they will appoint.) Third, it may be imprudent for Obama to tie himself to a particular nominee, given the possibility that some damaging information about Clinton or her husband might emerge in the period prior to the appointment. Fourth, it might limit her effectiveness as a Senator, if she is seen as just hanging on until the next Justice retires or dies.
At the moment, I believe the downsides outweigh the benefits, but if it looks like a significant number of Clinton supporters might otherwise drift toward John McCain, it's an option Obama should at least consider. It's a high level job for which Clinton would be well suited, and it wouldn't require her to work with him on a regular basis (as would a Cabinet appointment).
Posted by Carlton Larson on May 7, 2008 at 04:47 PM in Current Affairs | Permalink | Comments (16) | TrackBack (0)
Cassell on McCain
I have little doubt that Paul Cassell has forgotten more law than I will ever learn, and I trust Tom Smith's repeated assurances that his brother-in-law is a capital fellow. I enjoyed a number of his rulings as a federal district court judge. But his post yesterday on John McCain's speech setting forth his "judicial philosophy" was not his finest moment. In substantial part, here is what Cassell has to say about McCain's speech:
From a conservative perspective, he says all the right things. I take him at his word. I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture.
Cassell is entitled to take McCain at his word, I suppose -- although at least a couple of witnesses earlier suggested that McCain, who voted to confirm Justice Alito and now cites him as an example of the kind of judge he would appoint, privately said that if he were president he would not have appointed Alito. And, of course, unless Cassell thinks campaign finance reform legislation presents no First Amendment problems, he ought perhaps ask whether McCain's deeds, and not his TelePrompted words, pose any problems for him. Maybe Cassell could at least shift from the slavish "take him at his word" to the slightly more skeptical "trust but verify."
But it is meaningless to say that McCain "says all the right things" in his speech, because the truth is that McCain says nothing much at all.
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Posted by Paul Horwitz on May 7, 2008 at 02:17 PM in Constitutional thoughts | Permalink | Comments (6) | TrackBack (0)
Assumption of Campaign Debt
Last night some of the MSNBC commentators were bandying around the possibility of an Obama-Clinton deal in which Clinton withdraws from the election in exchange for Obama's campaign assuming her campaign debt, among other consideration.
I find myself uncomfortable at the thought of a political bargain based upon the assumption of campaign debt. It feels like bribery to me, particularly because a substantial amount of Clinton's campaign debt is owed to Clinton personally (Mitt Romney should have only been so lucky). Is this any different than if Obama offered Clinton personally $10MM cash in unmarked, nonconsecutively numbered twenties to withdraw?
Yet I don't have the same reaction to a deal in which Clinton withdrew from the race in exchange for the vice-presidential nomination or a cabinet position. Should the fact that consideration is monetary matter? What is it that doesn't sit right about this? Is it that money is crass and office is not?
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Posted by Adam Levitin on May 7, 2008 at 02:17 PM in Constitutional thoughts |