Thursday, April 17, 2014
Law Professors and Social Media
As someone who writes and teaches in workplace privacy, I have been thinking a lot about the role of social media in our workplace. I have been on Facebook for a long time, but I keep it entirely personal, and do not become Facebook "friends" with colleagues. Since joining the academy, however, I have received increasing numbers of "friend" requests from people I meet at conferences. I recognize that many others use Facebook as solely or largely professional.
I felt (whether true or not) that I was missing out on academic conversations that were taking place on social media. In order to try to remedy the situation, I recently joined Twitter, (#ProfVSchwartz) and have decided to use Twitter in a purely professional manner. I am using Twitter to be in touch with colleagues, not with my outside friends, just as I am using Facebook to be in touch with my outside friends, not my colleagues. It remains to be seen whether this balance will work for me.
Do you use social media? Do you feel it is becoming necessary in order to stay on top of the most current conversations? Perhaps my experience is unique because the sub-set of IP professors use social media more than others? What sort of balance have you struck between maintaining your privacy, and keeping up with social media?
Wednesday, April 16, 2014
The American Presidency and Partisan Conflict
In my previous post, I observed that reserving all of the presidential power for one side of the political aisle denies representation to half the country, a serious problem in itself. It also causes other problems. In particular, a one-party executive fans the flames of partisan conflict.
With the marked transfer of domestic and foreign policymaking power from Capitol Hill to the Oval Office over the past 75 years, the White House has become the dominant power center in the national government. Presidents control the issuance of regulations for air quality, energy exploration, education, health care, consumer protection, and many other concerns. They also establish national policy through signing statements, executive orders, and the granting of waivers from statutory obligations. Thus, for example, President Obama has doubled fuel efficiency for automobiles, expanded offshore drilling for oil and gas, and granted waivers from No Child Left Behind and the Affordable Care Act.
While presidents exercise considerable domestic authority, they dominate Congress even more in foreign affairs. Presidents play a far larger role in the determination of U.S. policy—and Congress plays a far smaller role—than intended by the founding fathers. Whether Truman with Korea or Obama with Libya, presidents send troops into combat without congressional authorization. Presidents also reach agreements with other countries without congressional participation, they unilaterally recognize other governments and terminate treaties, and they decide on their own about restrictions on the rights of U.S. citizens to travel abroad.
When one person exercises the enormous power of the modern U.S. presidency, we invite hyperpolarization. Under the current system, Democrats and Republicans fight tooth and nail to capture the White House. They spend hundreds of millions, now billions, of dollars. Moreover, once an election is over, each party launches its effort to win the next presidential race. The party of the president unites behind the president’s initiatives to ensure a successful administration. The losing party tries to block the president’s proposals so it can persuade voters to change parties at the next presidential election. Republicans lined up against the Affordable Care Act to "break" the Obama administration, and Democrats lined up against Social Security reform to weaken the Bush II administration.
Hydrofracking and "Home Rule" Principle as a Canon of Statutory Construction
The dispute over hydraulic fracturing ("hydrofracking" to its critics) in New York State will finally be resolved in a showdown before the Court of Appeals this June. The question in Norse Energy v. Town of Dryden is whether the preemption clause of the New York Oil, Gas, and Solution Mining law preempts the town's power to zone out hydraulic fracturing. In an effort to re-focus the dispute on the general idea of "home rule" as a way to side-step contentious political issues, I wrote an amicus brief on "home rule" principles as a way to resolve the case (Download NY Zoning Amicus Brief Electronic Copy 3-28-2014), and I managed to persuade a dozen of my fellow profs to sign on. (Susan Kraham, Columbia clinical prof, kindly agreed to be Counsel of Record, dealing with the paper chase of New York courts' primitive lack of an electronic filing system).
Both the brief and an article I wrote for Albany Law Review that was derived from the brief (Download Albany Law Review Draft) make the case in favor of mushy "home rule" principles over hyper-persnickety textualism in construing state statutes' preemption clauses. The "home rule" principles defended in the brief and article do not invariably favor local power: When a local law imposes substantial external costs on non-residents or internally imposes a burden on settled expectations of resident landowners, then these principles would construe even ambiguous preemption clauses in state statutes to preempt local law. (The analysis here runs parallel to Paul Diller's analysis in Intrastate Preemption, a terrific piece that I routinely assign in Local Government Law classes. (Paul was my former student at Michigan Law, by the way, which makes me feel both proud and over the hill).
The idea of using a "localism" canon of construction to resolve statutory ambiguities in state law bears an obvious analogy to "federalism" canons of construction that have inspired far more commentary. There are, however, some important differences between the state-local and federal-state contexts that, as I explain after the jump, give state courts more justifications than federal courts for relying on mushy, arguably policy-laden canons.
I want my Westlaw Classic
Oh yes I do! Sure, I feel about as outdated as this commercial in saying so, but Westlaw is now telling me that Classic database is disappearing in about two months, and I'm not happy. I tried to use WestlawNext when it first came out. The "copy with citation" feature was nice for quotations, and I liked the idea of a more Google-like approach. But the search results were just bizarre to me. It was more akin to the anti-Google -- I'd type in search terms or even a case name, and I'd get everything other than the case or article I was looking for. I retreated back to Classic after just a few frustrating forays. I like Classic's pure Boolean option -- I know it'll give me a complete result. Or, when I'm looking to skim the surface of a topic, the "natural language" search has actually worked pretty well for me. I don't see any need for change, certainly not based on my early Next experience.
Now, it looks like I will have no choice. Is anyone else in the same boat as me? Can we try to save Classic? Or should I just accept reality and try to adapt to Next? Your thoughts would be much appreciated.
[I should make clear -- I'm sure I was misusing Next. But it was supposed to be easier! If you have thoughts on what I was doing wrong, I'd appreciate those, too.]
Do Chemerinsky and Menkel-Meadow's Views on Curriculum Represent a Consensus View in the Legal Academy?
I'm focusing on only one piece of this op-ed by Erwin Chemerinsky and Carrie Menkel-Meadow. They write:
Some, including the Bar Association’s task force, have suggested that states should reduce the level of undergraduate education required to take the bar exam. Yet the profession benefits enormously by having attorneys who have undergraduate degrees in other fields: This makes them more well rounded and better-educated citizens, as well as better lawyers. Many other countries have begun to recognize this, and nations like South Korea, Japan, China and Australia have recently shifted to the American model of requiring an undergraduate degree before law school.
Another common suggestion — also made by President Obama — is to reduce law school to two years. This is a terrible idea.
The profession needs law schools to produce lawyers who are better prepared to practice law, not less well trained. That would be impossible in two-thirds of the time. If law school were of just two years’ duration, the first things to be cut would be clinical education and interdisciplinary courses, which are the best innovations since we went to law school in the 1970s.
We agree that legal education could benefit from further innovation, but not in the ways many of the critics advocate. Law schools need to teach a greater diversity of subjects to improve legal judgment and decision-making. In this respect, law schools should emulate business, architecture and planning schools. These have adapted to new economic realities by emphasizing the teaching of leadership, corporate governance, new finance and negotiation skills.
Law school faculties, in their teaching and their scholarship, must deal with the emerging problems of the 21st century. Law schools need to develop new courses to provide students with the expertise to deal with the crucial problems of our time in fields like banking law, national security, conflict resolution, food safety, Internet law and migration policy. There should be “problem-based” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace.
None of this will be possible if law school is cut to two years. Sometimes, less is not more. And sometimes, the rhetoric of crisis leads to proposals that are far worse than the actual problems we face.
I agree with the last sentence, as it turns out, although that has nothing to do with whether there is a crisis or not (I'm not sure the label is terribly useful, but neither is it outrageous), or whether law school reform is necessary (law school reform is always necessary). It's not just that treating reform in this area as a response to a crisis may lead to ill-considered reforms, although I think that is true. Rather, I'm worried that if the "crisis" is seen as having passed, it will sap the will and energy to think about useful long-term ways to reform or remake law schools. Law schools are ostensibly faculty-governed, and faculty have an ongoing ethical and professional obligation to monitor what they are doing and think about how they could do it better, crisis or no. I also agree that increasing and even mandating finance and accounting related offerings would be a good idea for law schools.
That's a side note. What I am really interested is in asking whether Chemerinsky and Menkel-Meadow's views represent a consensus view in the legal academy. I'm pretty sure the answer is "no." Of those interested in law school reform issues, as far as I can tell, many believe there is nothing wrong with a two-year law degree, or with a two-year degree for licensing purposes with the option of additional years of study. Of those who prefer a required third year of study, I suspect that a fair number of them favor it for traditionalist reasons and are not looking to redo the third year altogether; of that group, some hold those views strongly and others are just casual defenders of the status quo. Of those who favor a third year of study that does different things than the current curriculum does, I suspect that many of them would rather have that year emphasize lawyering skills and not "21st century" issues like "national security, conflict resolution, food safety, Internet law and migration policy."
And, sadly, I suspect a large (but shrinking?) number of law professors are still just not that concerned with these issues at all. Given a relatively costless choice like, say, going to an AALS panel on law school reform or hanging out in the hotel lobby, a substantial number will still choose the latter option. (Although I will note that the numbers of people attending those sessions, and voicing interest in such issues at their own institutions, has certainly grown.) In an ostensibly faculty-governed environment in which the faculty often don't govern much and mostly do their own thing in their own classroom, apathy is always a problem.
None of this makes Chemerinsky and Menkel-Meadow wrong, of course. (I think they are.) But I wouldn't treat their views as representative of the legal academy.
One last word, on “'problem-based'” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace." I think the idea of problem-based seminars on public policy issues is a good one. (And not just public policy issues: they could and should work with issues involving the private sector as well.) In my view, the benefit of such seminars, if they're done right, will derive substantially from bringing in people other than lawyers as students and speakers. Most public (or private) policy issues involve a variety of stakeholders with different skills and interests, and this would be a useful way to learn what (if anything) lawyers can contribute, how they should deal with these different stakeholders, and what the non-lawyer stakeholders think is good or bad from their experience working with lawyers.
But not on "world peace," for God's sake! Too many law schools are already too intent on being "national" schools dealing with national or global issues, emulating schools at the top of the food chain. They are too little concerned with local issues, with the fact that they serve a local market, with forging relationships with local lawyers and stakeholders, and with performing actual services for the state, city, or region in which they are located. Regardless of the conclusions these seminars draw, the recommendations they make, or the service they provide--which, obviously, need not fall into some cliched and rather ideologically particularized vision of "social justice"--it may be that by focusing on difficult local issues, these seminars could provide a useful education to the students, expose students, experts, and stakeholders to each other and help them to sit down at the same table, provide the kinds of recommendations that might be useful to local governments (or private interests) in an age of straitened resources in which many states and localities simply buy public policy solutions off the rack from various think tanks and interest groups, and actually give something back to the region in which a law school is located.
None of this is adequate reason, in my view, for a mandatory third year; and the more national or global the subject these seminars handle, the less useful and educational they will be. Nor must or should these courses have a specific, heavy ideological tilt; they're about problem-solving, not political indoctrination. (Maybe a seminar on public policy issues surrounding a local crime problem would recommend stop and frisk! Or a seminar on why a locality is having trouble growing new businesses would conclude that local licensing and zoning requirements are overly burdensome and monopolistic and should be lessened or repealed! Who knows?) But the idea itself is a good one.
Extreme views in the classroom
The Chronicle of Higher Ed reports that Frazier Glenn Cross, Jr., the white supremacist suspected in the shootings of three people earlier this week, was invited two years ago to speak in a class on "New Religions" at Missouri State University. (H/T: My colleague Tom Baker). The professor issued a statement yesterday defending the choice, saying he wanted to educate his students on white supremacist views (and their dangers) and that the students would not believe the true nature of these views just by reading a textbook or hearing the professor lecture about them. According to the article, it went about as you would expect--Cross yelled at the students, used racial slurs, and praised violence, and apparently the students yelled back at him. It sounded like a productive exchange.
I do not think there is any question that it is appropriate to present Cross' views in a classroom setting. And the alternative proposed by the ADL in the story--inviting experts who have studied the subject firsthand--are not sufficient. If the point is to get students to engage with and understand these views, then hearing them characterized and filtered through an expert (no doubt, since this is the ADL, an expert who believes these views are harmful and should be suppressed) is not a substitute for engaging with the primary materials. One can question whether white supremacy is a new religion, but I will defer to the instructor on that. The broader point is there are situations in which it is appropriate to present, in unfiltered fashion, even the worst and most offensive political, religious, etc., ideas.
There is a nice question about inviting him to speak in the classroom, as opposed to having students read his writings or hear his speeches--there were more than enough available on the internet (maybe this is what the ADL rep meant in the story by "multimedia tools," although that is such an inanely empty phrase). And this issue is more pedagogical than political. Some of this is my general objection to the use of guest speakers in the classroom. But some is the question of whether having him address the students directly was necessary to the pedagogical goal. They can experience and understand these views first-hand without having to experience him first-hand. Having him shout at the students (and having them shout back) shows that he is crazy and not to be taken seriously, but it does not really show his ideas or thoughts or require them to wrestle and deconstruct them, which is supposed to be the goal. It is the difference between a cable tv shoutfest and an academic discussion.
And I wonder if the visceral responses about "endorsing" and "providing a platform" goes away if students were reading his writing rather than seeing him in-person.
Standing and the proper defendants
To absolutely no one's surprise, a panel of the D.C. Circuit rejected the challenge to the constitutionality of the Senate's filibuster rule (shout-out to Josh Chafetz and Michael Gerhardt for the citation). The district court had found none of the plaintiffs (Common Cause, some members of the House, and some people who would have benefitted from certain filibustered bills, notably the DISCLOSE Act and the DREAM Act) lacked standing--none had not suffered any cognizable injury in fact, they could not show the bills would have passed but for the filibuster, and no injunction could have accorded them relief. Fed Courts 101 (and still a course everyone should take).
The circuit court took a different path: The problem was that the plaintiffs had sued the wrong defendants. The proper defendants were the Senate and the Senators who made, retained, and voted according to the filibuster rule with respect to the bills at issue. But all Senators would enjoy absolute legislative immunity, so they could not be sued. Nor could a court impose the remedy the plaintiffs wanted--an injunction prohibiting the 60-vote requirement and compelling the Senate to adopt a simple-majority rule.
To get around that, the plaintiffs sued Vice President Biden (in his role as President of the Senate) and a bunch of non-Senator Senate officers (Sergeant-in-Arms, Parliamentarian, and Secretary) as the people responsible for "enforcing" or "executing" Senate rules. (Powell v. McCormack being the obvious precedent). But that did not work here, because the named defendants did not do anything that caused the alleged injury, since the injury was the Senators' use of the 60-vote requirement.
Tuesday, April 15, 2014
A (Limited) Defense of Saving Players for "Crunch Time"
If you love sports and you’re interested in empirical methodology, the last ten-plus years (call it the Moneyball Era) have been very good indeed. The increase in attention to statistical studies of sports has grown a ton (though of course it has much longer roots that date at least back to Bill James and early sabermetrics in the late 70s).
One of the most interesting parts of this movement has been to do what good research so often does: Take a longstanding belief and show that it’s nothing more than smoke and mirrors. For instance, does icing the kicker work? According to this study, the answer is simple: Nope (not that it’s stopped NFL coaches from doing it, of course).
Consider as well the practice in basketball games of sitting players early on so that they will be available (and not in foul trouble) when it’s late in the game and “crunch time” arrives. As many people, including Richard Thaler, have argued, this strategy is probably counterproductive because you get just as many points for baskets scored early in a game as you do during late-game moments, so that sitting players to save them for late-game heroics probably just means you’re shortening their total on-court minutes to the team’s detriment.
The point of this post is not to propound a full defense of the crunch time strategy. This is because I think it’s basically right that basketball coaches are too cautious with saving players for late-game situations, and would probably do better to just max out their points earlier on even if that meant more players would foul out.
The point of this post, rather, is to point out one reason why the story of the crunch time strategy may be more complicated, and somewhat more compelling, than its critics have let on. I elaborate this point below the fold.
What should every lawyer know?
It is schedule-selecting time again, particularly for 1Ls trying to map out the next two years. A colleague proposed a different way of thinking of this: Lawyers, as Tocqueville's American aristocracy, should have some core base of legal knowledge when they leave law school. Thus, there is some set of courses every law student should take--beyond classes targeting the areas in which a student wants to practice, bar-tested classes (although there is some overlap), and classes providing general skills and experiential practice. What is the law school canon? It must be a small portion of the 59 post-1L credits, thus leaving students room to 1) explore specific areas of interest and 2) do some skills/experiential stuff.
Accepting the underlying premise (and I understand that some people might not), what courses belong in that canon? If you were advising 1Ls on the doctrinal classes they should make sure to take before they graduate, regardless of anything else, what would they be? [Update: Just to clarify: This is for upper-level courses; I take as a given that the current 1L curriculum is unchanged] [Further Update and Clarification: I am not talking about career advice and what they should take for career/practice purposes, but general legal knowledge]
A tentative list:
• First Amendment
• Bus Orgs/Corps
• Federal Courts (at least if you are even thinking about being any type of litigator)
• Administrative Law
This is 19 credits, leaving another 40 for the student to play around with. What am I missing? Is there anything that should not be on the list?
Clarifying Again: Let me try to put the question this way. People would say you should not leave college without taking a basic course in some area of human knowledge and creation, such as, say, Shakespeare (even if your career is not going to involve his work in any way). So what are the legal equivalents of Shakespeare?]
Monday, April 14, 2014
We're Number 8! We're Number 8!
Congrats to our blogmaster Dan for not only hitting the ninth anniversary at Prawfs (willow/pottery or leather gifts, please), but also hitting eighth in the Caron law prof blog traffic rankings, with almost two million page views As I mentioned in an earlier post, we're glad that you come to Prawfs, whether it be for our series of posts or just one particular discussion, and we hope to give you reason to keep coming back.
And while we're on the traffic rankings subject, I've noticed that the law prof network blogs now automatically refresh after a spell. How do folks feel about this feature? And does each "refresh" count as a new page view?
The American Presidency: Does It Work Anymore?
Absent a major change in the political climate and a Democratic wave election in November, we can expect many more articles like Peter Baker's in the New York Times on the frustrations facing President Obama for the remainder of his term in office. As Baker observed, it is becoming increasingly difficult for presidents to get sweeping legislation through Capitol Hill.
While it is tempting to blame Congress, partisan polarization, or other features of the contemporary political system, it also seems clear that there is a deeper structural problem at work--the U.S. presidency no longer works well. I consider the defects in the presidency at some length in "Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch." In this and upcoming posts, I will discuss some of the key problems with the presidency.
For example, barely more than 50 percent of the public has a voice in the policymaking decisions that emerge from the Oval Office. While presidents may once have aspired to act as the representative of all Americans, and George Washington may actually have done so, contemporary presidents generally hew to the views of their partisan base. Even when they attract only 53 percent of the popular vote, presidents claim a broad mandate for their partisan platforms and remind the other side that “elections have consequences."
All citizens want to have a voice in their government, but nearly half the public is denied a chance for meaningful input into the development of presidential policy. This is fundamentally unfair. To paraphrase John Stuart Mill, instead of having an executive branch “of the whole people by the whole people, equally represented,” the United States has an executive branch “of the whole people by a mere majority of the people, exclusively represented.” Or as Jill Lepore wrote in The New Yorker last month, "one-half of the people ought not to be ruled by the other half." (To be sure, Lepore was speaking about women being ruled by men, but the point still stands.)
Sunday, April 13, 2014
The best sports deal ever
That is how Sports Illustrated describes the deal struck between the NBA and the owners of the Spirits of St. Louis when the Spirits folded and four ABA teams joined the league, which had paid them $ 300 million over the past three-plus decades. The SI story does a good job of elaborating on the deal's business and legal details, the negotiations leading to the original deal, and the litigation and settlement that ended it.
Pursuant to a recent confidential settlement (disposing of a lawsuit to obtain rights to certain international and online revenues), the old deal is over; the former owners (brothers Ozzie and Daniel Silna) will be paid more than $ 500 million, plus a small stake in the NBA's new TV contract. All told, the Silnas will make more than $ 1 billion (from a team they bought for $ 1 million in 1974).
Saturday, April 12, 2014
Lamberth in Cobell Part 2: Contextualizing Litigation Tactics
As a follow up to my first post on Judge Lamberth and the Cobell case and as a way of responding to questions that Glenn raised in the comments, I want to briefly note some historical antecedents of the lawsuit to situate the parties' litigation strategy in a broader context. I’ll take up the DC Circuit’s decision to reassign the case, and the ultimate result of the Indian trust litigation, in additional posts.
The General Allotment Act of 1887 (the Dawes Act) was in no uncertain terms designed to destroy the tribes and assimilate Indians into anglo-American social and economic systems. Senator Henry Dawes said that the Indians "have got as far as they can go, because they hold their land in common. . . . There is no selfishness, which is at the bottom of civilization."* The Dawes Act would therefore impose individual land ownership on Native Americans in 80- or 160-acre allotments carved out of tribal lands. The government ended up taking some 90 million acres--65% of tribal lands--for sale to non-Indian settlers and entities (railroads, ranchers, etc.). The plan was to force massive cultural change--having to tend their allotments would instill in the Indians proper anglo-American values. Or so went the thinking. In 1881, President Chester Arthur boasted that allotment "would have a direct and powerful influence in dissolving the tribal bond, which is so prominent a feature of savage life, and which tends so strongly to perpetuate it." In 1901, Teddy Roosevelt characterized the allotment system as "a mighty pulverizing engine to break up the tribal mass."
Thursday, April 10, 2014
Law prawf letter on Adegbile nomination
A group of law professors is circulating this letter to Senators Leahy and Grassley [Updated verion] regarding the Senate's rejection Debo Adegbile to head DOJ's Civil Rights Division; several Senators expressly pointed to Adegbile's past representation of Mumia Abu Jamal as the basis for their opposition. While not asking the Senator to reconsider Adegbile's nomination, the letter expresses concern for what this rejection says about the right to counsel (issues I discussed), the obligations of lawyers to take-on pro bono representation, and what happens if lawyers are tagged with the sins of their clients (pointing not only to Chief Justice Roberts, as did several commenters to my earlier posts, but also to John Adams for his (successful) representation of the British soldiers charged in the Boston Massacre).
The authors are looking for law professors to sign on to the letter. If interested, you can do so online at this link. The deadline for signing is April 17.
Health Insurance, Socioeconomic Status, and Health
Earlier this week, I wrote about the link between health insurance and health and suggested that socioeconomic factors such as education and wealth can be much more important for health than access to health care. There are some interesting studies in this area.
For example, researchers looked at health outcomes in England under that country’s National Health Service (NHS) and found that the higher the socioeconomic status of a person, the lower the death rate. People in the highest civil service grade for government employees had a mortality rate about half that of people in the lowest civil service grade, even though they all had good access to health care. In addition, the gap in mortality rates among men in England by socioeconomic status has actually widened over time since the introduction of the NHS in 1948.
Or consider an interesting policy experiment in Canada during the 1970s. For four years, the province of Manitoba guaranteed a minimum annual income for all residents of Dauphin, a small, rural city. Health status improved significantly. When Dauphin residents were compared with residents of other rural communities in Manitoba, the data showed that while people in Dauphin were more likely to be hospitalized before implementation of the minimum income program, the gap in hospitalization rates disappeared by the end of the program. The decline largely occurred for hospitalizations that tend to be sensitive to levels of income security.
Wednesday, April 09, 2014
Does this apply to legal scholarship?
One thing I’ve learned in my life is that — creatively — it’s better to have one person love you than to have 10 people like you. It’s very easy to like someone’s work, and it doesn’t mean that much; you can like something for a year and just as easily forget it even existed. But people remember the things they love. They psychologically invest in those things, and they use them to define their lives (and even if the love fades, its memory imprints on the mind). It creates an immersive kind of relationship that bleeds into the outside world, regardless of the motivating detail.
(Practical) learning experiences
FIU today hosted an oral argument of the United States Court of Appeals for the Armed Forces, as part of the court's Project Outreach, a public and military education program. My colleague Eric Carpenter, who joined the faculty this year after twenty years in the Army, including a stint teaching at JAG School, arranged the visit. His Military Justice class wrote an amicus brief and one student was given ten minutes of argument. The court followed the argument with a public Q&A session for students, military lawyers and personel, and others.
It was a great learning experience; it would be great if other courts would so similar things in law schools and other public places.
Overcoming the Public-Private Divide in Privacy Law (Part 1)
I'm working on a project I'm calling "Overcoming the Public-Private Divide in Privacy Law." Under the traditional public-private divide in privacy law, cases in which the privacy-invading party is in the public sector get analyzed under a 4th amendment framework, and cases in which the privacy-invading party is in the private sector get analyzed under a hodgepodge of non-4th amendment frameworks including privacy torts, trade secret law, state and federal statutes, etc. In the descriptive portion of the project, I want to offer an account of the ways in which this traditional public-private divide has broken down.
First, courts have been drawing analogies across the private and public sectors without any real consideration for when these analogies make sense. For example, in public sector workplace privacy cases courts, including the Supreme Court, look to the private sector, although when private sector workplace privacy cases arise courts generally note emphatically that the Fourth Amendment framework does not apply. By contrast, in private sector trade secret cases, courts will look to the 4th amendment cases for analogies, but the 4th amendment cases tend to reject analogizing to trade secret cases.
Second, the private-public divide in privacy has broken down in various ways with respect to how information is obtained and whether it remains in the original sector. This includes reverse FOIA claims and privacy merchants selling data to the government.
I would love any thoughts/suggestions regarding these or other breakdowns in the divide.
Entry Level Hiring: The 2014 Report - Second Call for Information
This is a reminder of the Entry Level Hiring Report. The numbers will be low this cycle, but the spreadsheet as it stands as of April 9 is certainly not the final list.
If you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
(Comments are closed on this post in order to drive comments to the original post.)
A Typology of Authorship in Highly Collaborative Works
To paraphrase Anna Karenina for the kajillionth time, all copyright scholars think Garcia was wrongly decided,* but every copyright scholar thinks so in their own way. When the Ninth Circuit held a couple months back that an actress has a “copyright interest” in the film in which she briefly performed, the (understandably) apoplectic reaction was as entertaining as the decision was mysterious. I’m on board with the general reception that the Garcia opinion was the copyright equivalent of sitting on a whoopee cushion, so instead of beating that long-deceased equine, I will instead explore a related issue raised by the case.
Copyright’s notion of authorship works great when we’re dealing with the classic, solo Romantic author: Some genius artist sits alone in a room painting a masterpiece all of her own invention, and—boom—thanks to section 201(a), the copyright in that work vests in her, making her the author of the work for the duration of the copyright, and the owner of the work until she transfers her copyright.
But a much harder question arises when we complicate the story of authorship to include multiple collaborators on a project. The solo writer or painter is clearly the author of their work, but when we imagine a fashion photograph involving a photographer, model, makeup people, and numerous technicians, the notion of authorship becomes far murkier. This is, then, one of the major issues raised by Garcia: how do we allocate authorship when many people make expressive contributions to a final creative product?
So this post seeks neither to praise Garcia (obv.) or to bury it (that’s been done amply and adequately already). Instead, below the fold, I want to develop a typology of the different kinds of creative contributions people make to works, and how these different kinds of contributions might give rise to what we call copyright authorship. Importantly, this is not a normative claim that all of the contributors in these classes are or should be entitled to joint or freestanding copyrights, but merely to organize and make sense of the different kinds of contributions to works that could plausibly be understood to be the result of creative authorship.
Happy 9th Birthday, PrawfsBlawg!
Here are some selections from our birth-week--for some reason I had misremembered our birthday as April 9, but in fact it was April 5, 2005.
I grow old, I grow old ... I shall wear the bottoms of my trousers rolled.
Next year, to celebrate our 10th, I'll be buying a round of Ensure shakes for all the geezers at our Prawfs-Co-Op happy hour.
Tuesday, April 08, 2014
A Remarkable Opinion in a Landmark Case
I want to tell some of the story of a case over a couple posts and I can't do justice to the whole thing in this format, so I'll focus on an episode involving what federal district Judge Royce Lamberth (a Reagan appointee) said in the course of granting a procedural motion in one of the largest class actions in American history. The next post will be about what happened to the judge and the case after he said it.
The 1887 Dawes Act, one of the government's attempts to solve "the Indian problem," placed Native American lands into a government-managed trust, allotted small parcels to Native families, and took the rest -- millions of acres -- as "surplus" disposable for profit. Allotted trust lands were supposed to be managed for the benefit of their Native beneficiaries, but over 120 years the federal trusteeship was plagued by mismanagement. In 1996, Eloise Cobell and others filed a lawsuit against the Departments of Interior and Treasury, on behalf of what the plaintiffs estimated was a class of 500,000 beneficiaries, for an accounting of trust assets. The case dragged on for 9 years and already included a number of memorable events (including contempt citations issued to the Secretary of the Interior), before Judge Lamberth issued his opinion granting the plaintiffs' motion for permission to send notice to the class that government-issued trust information might be unreliable. The plaintiffs pointed to evidence that the Interior and Treasury Departments hadn't kept adequate trust records or adequately protected physical and electronic trust documents against corruption.
A couple illustrative passages from the opinion, after the jump:
Will the Uninsured Become Healthier Once They Receive Health Care Coverage?
The Affordable Care Act might not bend the cost curve or improve the quality of health care, but it will save thousands of lives, as millions of uninsured persons receive the health care they need. At least that’s the conventional wisdom. But while observers assume that ACA will improve the health of the uninsured, the link between health insurance and health is not as clear as one may think. Partly because other factors have a bigger impact on health than does health care and partly because the uninsured can rely on the health care safety net, ACA’s impact on the health of the previously uninsured may be less than expected.
To be sure, the insured are healthier than the uninsured. According to one study, the uninsured have a mortality rate 40% higher than that of the insured. However, there are other differences between the insured and the uninsured besides their insurance status, including education, wealth, and other measures of socioeconomic status.
How much does health insurance improve the health of the uninsured? The empirical literature sends a mixed message. On one hand is an important Medicaid study. Researchers compared three states that had expanded their Medicaid programs to include childless adults with neighboring states that were similar demographically but had not undertaken similar expansions of their Medicaid programs. In the aggregate, the states with the expansions saw significant reductions in mortality rates compared to the neighboring states
On the other hand is another important Medicaid study. After Oregon added a limited number of slots to its Medicaid program and assigned the new slots by lottery, it effectively created a randomized controlled study of the benefits of Medicaid coverage. When researchers analyzed data from the first two years of the expansion, they found that the coverage resulted in greater utilization of the health care system. However, coverage did not lead to a reduction in levels of hypertension, high cholesterol or diabetes.
Monday, April 07, 2014
Another (easy) procedure case
SCOTUS today granted cert in Dart Cherokee Basin Operating Co. v. Owens, to resolve whether a Notice of Removal must include evidence in support of subject matter jurisdiction (as the district court held here and the ) or whether it is enough that the Notice contain a "short and plain statement" of jurisdiction (as seven circuits have held), with no evidence necessary until arguing the Motion for Remand. I concur with Scott Dodson that this is going to be a 9-0 reversal, likely written by Justice Ginsburg.
Many in the wave of procedure/jurisdiction cases from the Roberts Court have been unanimous or near-unanimous. And Dart fits a particular pattern--a lopsided circuit split, with most of the circuits getting it right and the Court granting cert to bring the outlier court into line.
Update: Scott points out two subsidiary issues in the case. First is how to treat an insufficient short and plain statement (assuming that is all that is required in the Notice)--whether it represents a jurisdictional defect, which can be the basis for a motion to remand at any time, or a procedural defect, which must be asserted within 30 days. Second is whether the court of appeals had jurisdiction over the case under the Class Action Fairness Act, whether the court complied with CAFA's timing requirements, and whether the defendant filed its cert petition in a timely manner. The latter potentially complicates things.
Eich and the Politicization of the Corporation
Just a brief word on the (forced) resignation of Mozilla CEO Brendan Eich because of his Prop 8 donations: welcome to the continuing politicization of the corporation. If corporations have speech protections and can play an active role in ideological debates of all stripes, then it matters if the CEO takes a different political position than the majority of stakeholders in the enterprise. The CEO controls the company and speaks for the company. So it is not suprising that stakeholders would be concerned about a CEO that did not reflect their values.
I think we're entering interesting and perhaps dangerous territory here as corporations take on First Amendment roles beyond their core business. Corporations will always be associated with "core concern" speech directly related to the company's products and services. But there is no need for "symbolic" speech that is unrelated to the business. As I discussed at the Glom with regard to the Chick-fil-A controversy, gay marriage has little to do with delicious chicken sandwiches. It is needlessly entangling of commerce and politics to make the purchase of a sandwich into a political act, especially when many participants in the enterprise have no interest in fomenting such a debate. But those lines are blurring. So Chick-fil-A begat the Eich resignation, because Mozilla customers and employees did not want their association with the company to end up labeled as support for limitations on gay marriage.
And that's the concern with Hobby Lobby, too -- if the court upholds First Amendment religion clause rights for a private, for-profit corporation, those who control the corporation will control its religion, too. That means whatever ideologically-charged positions the controllers choose to take, the rest of the participants will be dragged along as well. And that will make the corporation even more of an ideological battlefield.