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Wednesday, August 31, 2005

Flooding in New Orleans

Here are shocking satelitte images of the flooding of New Orleans, before and after, from NASA.   The picture of the flooding is on the top; the picture of New Orleans before the flooding is on the bottom.

Neworleansbefaft

NASA website

Red Cross donation website

Prof. Orin Kerr's donation challenge

Posted by Daniel Solove on August 31, 2005 at 09:58 PM in Daniel Solove | Permalink | Comments (3) | TrackBack

Instapundit and the ACLU

Here's one for the annals: Glenn Reynolds (aka Instapundit) made the comment that "demonizing the ACLU is silly" and noting that the ACLU continues to do important work. And in response, a number of rabidly anti-ACLU blogs are now engaging in mass delinking of Instapundit.

Well, I tend to think that the ACLU does a lot of good, too. I don't agree with everything they've ever done, but I'm very glad that they exist. And I think that InstaGlenn is spot-on in his assessment -- the recent trend among conservatives towards demonization of the ACLU is wrongheaded.

But what to do to show that agreement? Well, if the way that one shows disagreement in the blogosphere is by de-linking him, then I suppose that the way to show agreement is by . . . linking him! (How's that for analytical reasoning hard at work?)

We've already got a blogroll link to Instapundit on the sidebar. But just to make clear that the prawfs (or at the very least, this prawf) support his defense of the ACLU, here are a few other links to Instapundit:

Instapundit's collection of Katrina relief organization links (a very useful collection, by the way).

Instapundit making fun of people who de-link him over the ACLU: here and here.

Instapundit on the ACLU, earlier. (The de-linkers must not mave noticed it the first time).

Posted by Kaimi Wenger on August 31, 2005 at 04:20 PM in Blogging, Kaimi Wenger | Permalink | Comments (1) | TrackBack

Law Firm Partnership: A Pyramid Scheme

Cartoon_lawyer_1Making partner at a law firm these days is becoming increasingly difficult.  From Law.com:

A report released in March by Citigroup Private Bank showed that the number of equity partners at law firms grew by just 2.5 percent last year, which is down from 3 percent from three years ago and 4.5 percent five years ago.

And as profits per partner climbed 9 percent last year to an average $960,000 among the top 100 firms ranked by The American Lawyer, a sister publication of The National Law Journal, it appears that gaining entry into the elite club is more difficult -- and more profitable.

It resembles a pyramid scheme gone bad.  Not so bad, however, if you’re already a partner. 

Posted by Daniel Solove on August 31, 2005 at 02:32 PM in Daniel Solove, Life of Law Schools | Permalink | Comments (1) | TrackBack

Merck: What Now

Slate offers an interesting look at the decisions facing the various Vioxx litigants in the wake of the August 19 whopper of a judgment (discussed by us previously).

Over the coming months, Merck and the lawyers representing Vioxx plaintiffs will have a series of crossing-the-Rubicon decisions to make in this litigation: Each side will have to choose between expensive piecemeal litigation, expensive class-action litigation, expensive settlement, or expensive bankruptcy. And they'll make those choices with precious little information, while their costs spiral upward. So here's a little backgrounder on the calculus behind Merck's and Vioxx plaintiffs' fight-or-flight decision-making.

The article is useful as a window into the Merck litigation, but the points it makes--particularly about various strategic decisions that must be made with incomplete information--can be generalized to all types of civil (and to a lesser degree, criminal) litigation.  It should be used in introductory procedure courses as an illustration of the choices lawyers and litigants must make and the factors that go into making those choices.

Posted by Hillel Levin on August 31, 2005 at 12:10 PM in Hillel Levin | Permalink | Comments (0) | TrackBack

Looting v. Finding

 I encourage everyone to respond to  Orin Kerr's challenge to raise money for victims of the hurricane.  Great idea!

After donating, consider  media's different captions under these photos:

Photo1A young man walks through chest deep flood water after looting a grocery store in New Orleans on Tuesday, Aug. 30, 2005. Flood waters continue to rise in New Orleans after Hurricane Katrina did extensive damage when it made landfall on Monday. (AP Photo/Dave Martin) Email Photo Print Photo







Photo2Two residents wade through chest-deep water after finding bread and soda from a local grocery store after Hurricane Katrina came through the area in New Orleans, Louisiana.(AFP/Getty Images/Chris Graythen)













What distinguishes "finders" from "looters"?

Note: I'm not saying that taking items isn't theft, nor that society shouldn't condemn the anarchy that currently plagues  New Orleans.   But we ought to be applying labels consistently, or not at all.  And I'm not sure that there is a widely shared belief that taking necessary groceries after a natural disaster is "looting."  Clothes, jewels, etc. are a different matter.

(Hat Tip: Atrios.)
[UPDATE: Eric Muller beat me to the comment about these pictures.  He also has a great post on the idea of shooting looters here.  And as a commenter notes, MetaFilter had a discussion on the caption topic yesterday.  Guess that will teach me not to do a thorough pre-emption check before blogging.]

Posted by Dave Hoffman on August 31, 2005 at 11:49 AM in Current Affairs | Permalink | Comments (8) | TrackBack

The Tragedy of New Orleans

Neworleans1It is heartbreaking to see this wonderful city in such devastation.  The problem seems unfathomable.  What do we do when an entire major metropolitan city has become completely uninhabitable for months?  Nearly a million people homeless, totally displaced, without a place to work or live – for a long and indefinite period of time.  To reiterate earlier posts, if you want to donate, here’s the website of the Red Cross.

Posted by Daniel Solove on August 31, 2005 at 10:01 AM in Current Affairs, Daniel Solove | Permalink | Comments (0) | TrackBack

Internet Shaming Redux: The Case of the Stolen Cell Phone

Cellphoneshame2A story from Wired describes the latest Internet shaming episode:

A New York stock clerk who had his camera phone swiped from his car this month says he was able to peer into the life of the gadget's new owner. The thief evidently didn't realize the copious photos and videos he was taking with the hot phone were accessible through a web account. . . .

Because the camera phone can only hold a limited number of images, Sprint lets subscribers upload photos from the device to a web account. "I decided to go and check out the web space and see if there were any pictures uploaded to it, and he had taken almost 40 pictures and five movies and uploaded them all," says Clennan [the theft victim].

Most of the images show the same young man, flexing for the camera in various states of dress, kissing a young woman, posing with apparent friends and family members, and generally having a good time with a new toy.

When Clennan checked the account's e-mail outbox, he found the new owner had forwarded some of the photos to a particular Yahoo e-mail account.

Clennan sent his own message: "Like to steal cell phones and use them to take pics of yourself and make videos.... HA! (G)uess what pal ... (I) have every pic you took and the videos. I will be plastering the town with pics of your face."

The article continues:

Far from chastised, the man fired back a taunting one-line note, apparently with his own name in the header, dropping the name of a woman Clennan had been dating, and who'd sent text messages to the stolen phone.

Clennan retaliated by posting the story and some of the photos to a Long Island web board, where it immediately began gathering the kind of interest that accumulates to photo-driven internet phenomena like the Korean Dog Poop Girl and the New York subway flasher.

Urged on by netizens, Clennan says he finally took the trove of evidence to the Suffolk County, New York, police last week, and they're considering filing petty theft charges in the case. "The detective actually laughed," says Clennan. . . .

Contacted by e-mail, the camera phone's new owner told Wired News he didn't steal the device, but merely found it on a street corner. The young man says he's 16 years old, and Wired News has elected not to report his name.

The case provides another instance of Internet shaming to discuss and debate.   In recent posts, I've been critical of Internet shaming.  One of the problems with this incident is that the facts are still unsettled about how the teenager acquired the camera. 

In this case, the theft victim placed online many pictures of the person -- as well as images of other people who appeared in the pictures.  These pictures were then copied by netizens, morphed into "Wanted" posters, and plastered about the Internet.  I've included an example in this post, but have blocked out the person's face and name, both of which appear in the original version.  I checked the website where the theft victim placed the photos and here's his latest update:

[EDIT]
THE PICTURES HAVE BEEN REMOVED TO PROTECT THE PRIVACY OF MINORS. WHEN I FIRST POSTED THIS STORY I DID NOT REALISE THE PERSONS IN QUESTION ARE MINORS. I ENCOURAGE ALL OTHERS WITH PHOTOS OF THESE PEOPLE TO DELETE THEM FROM THEIR WEBSITES AS WELL. [EDIT]

The pictures, however, still float around the Internet.  Despite the theft victim's change of heart, it's too late to take the pictures back. 

Posted by Daniel Solove on August 31, 2005 at 01:44 AM in Daniel Solove, Information and Technology | Permalink | Comments (8) | TrackBack

Tuesday, August 30, 2005

Relief for Katrina Flood Victims

As reader Stephen Aslett reminds us, now is a good time to consider donating to the hurricane relief operation undertaken by the  Red Cross.  For those who are from New Orleans or concerned for the residents  and looking for current information, this discussion board appears to be quite useful.

Posted by Dave Hoffman on August 30, 2005 at 03:12 PM | Permalink | Comments (1) | TrackBack

A new anti-Roberts Ad

The liberal blogosphere has Some liberal bloggers have been pushing an advertisement intended to be "shown in red and blue states and put pressure on Senators around the country to oppose Roberts's confirmation."  The video link can be found here (click in the upper right-hand corner). 

The ad isn't subtle.   The theme is that if Judge Roberts is confirmed as a Supreme Court Justice, Christian children will be reading the Koran in Michigan public schools; Jewish children in Utah from the Book of Mormon; Muslim students in Brooklyn from the Torah.  To be generous, the claims made in the ad are somewhat fantastical.  The images of the children praying  are way over the top - - and when a map of America gets  hit hard with a gavel you have to laugh out loud.   

Posted by Dave Hoffman on August 30, 2005 at 12:09 PM | Permalink | Comments (4) | TrackBack

Assessing the judicial clerkship market

As I wind down my August guest stint here, my thoughts begin to turn to what is likely to consume much of my thinking time in September: trying to help my best 3L students obtain judicial clerkships.  In prior posts (some of which are linked below), I and others have used this space to explore the impact of clerks and clerking, but I now would like to explore the dynamics of the clerkship market.

As many readers may know, the judicial clerkship market has been going through significant changes of late.  Over the last few years, many (most?) federal judges and most (all?) law school have abided by the Law Clerk Hiring Plan, which has changed the demographics of applicants from 2L students to 3L students (and recent grads).  And this year, some (many?) federal judges are participating in an internet-based application system (known as OSCAR) which will enable submission of clerkship application materials online.

I have heard anecdotal reports about how these developments might be impacting the clerkship market — e.g., it was suggested recent grads now have a leg up because they can apply for and accept positions before 3Ls are supposed to apply — and I suspect that the overall applicant pool has grown.  But I have not seen any efforts to systematically measure or normatively assess  these recent "shocks" to the federal judicial clerkship market (and their likely ripple effect on state clerkship application or other aspects of the legal hiring market).   

Is anyone out there formally exploring these issues or have suggestions for key research questions in this arena?

Some recent PrawfsBlawg posts on clerking issues:

Posted by Douglas A. Berman on August 30, 2005 at 11:02 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Monday, August 29, 2005

Fox News: The Gift that Keeps on Giving

SHEPARD SMITH: You’re live on FOX News Channel, what are you doing?

MAN: Walking my dogs.

SMITH: Why are you still here? I’m just curious.

MAN: None of your fucking business.

SMITH: Oh that was a good answer, wasn’t it? That was live on international television. Thanks so much for that. You know we apologize.

Click here to get the video.

Hat Tip: Wonkette (who else?)

Posted by Hillel Levin on August 29, 2005 at 02:49 PM in Odd World | Permalink | Comments (1) | TrackBack

Fox News and Vigilante Justice Gone Bad

Foxnews1There have been some interesting discussions recently about people taking matters into their own hands and shaming others whom they witness committing crimes.  A while back, I wrote about the shaming of the dog poop girl, whose picture and personal information were placed on a website after she failed to clean up her dog's poop on the subway.  Kaimi Wenger also had some interesting thoughts about the case here and here, as well as did Marcy Peek in a post about Internet vigilantism.  Just the other day, Brooks Holland writes about a case involving the shaming of a NYC subway flasher, where a woman caught a picture of him on her cell phone camera and posted it online. 

Fox News now has gotten into the shaming business. An LA Times article states:

Randy and Ronnell Vorick thought La Habra was about as far away as one could get from terrorism. They were wrong.

For the last 2 1/2 weeks, the lives of the couple and their three children have been plunged into an unsettling routine of drivers shouting profanities, stopping to photograph their house and — most recently — spray-painting a slogan on their property.

Their house, a suburban fixer-upper the Voricks bought three years ago, was wrongly identified in a cable news broadcast as the home of a terrorist. . . .

In what Fox News officials concede was a mistake, John Loftus, a former U.S. prosecutor, gave out the address Aug. 7, saying it was the home of a Middle Eastern man, Iyad K. Hilal, who was the leader of a terrorist group with ties to those responsible for the July 7 bombings in London.

Hilal, whom Loftus identified by name during the broadcast, moved out of the house about three years ago. But the consequences were immediate for the Voricks.

Satellite photos of the house and directions to the residence were posted online. The Voricks told police, who arranged for the content to be taken down. Someone even removed the street sign where the Voricks live to provide some protection.

This Fox News incident raises the problems with condoning or facilitating people taking the law into their own hands and attempting to shame people by disseminating their personal information. There's little due process in these endeavors and often shoddy and incomplete fact checking. How can we prevent innocent people from being wrongfully labeled as criminals? Moreover, the shaming incidents inspire a kind of mob justice, and they can lead to violence. As for Fox News, it has apologized for the incident:

"John Loftus has been reprimanded for his careless error, and we sincerely apologize to the family," said Fox spokeswoman Irena Brigante. Loftus also apologized and told The Times last week that "mistakes happen."

"I'm terribly sorry about that. I had no idea. That was the best information we had at the time," he said.

But the problem with the apology is not just that the address was wrong.  It is with Loftus's eagerness to facilitate vigilante justice. The problem with vigilantism is that it often leads to more problems than it cures.  Bernie Goetz isn't somebody we want to bring back.

Posted by Daniel Solove on August 29, 2005 at 12:05 PM in Criminal Law, Daniel Solove, Information and Technology | Permalink | Comments (10) | TrackBack

The debate on the Living Constitution: When will it end?

Never, apparently.  Dahlia Lithwick keeps up her barrage, and promises yet more.

Posted by Hillel Levin on August 29, 2005 at 11:26 AM in Hillel Levin | Permalink | Comments (0) | TrackBack

More Ferment on Prawf Political Contributions

Jim Lindgren over at Volokh highlights yet another article which analyzes political contributions by law school professors.   The article, by  John McGinnis, will appear in the Georgetown Law Journal soon, and is summarized by the NYT here.   Bainbridge and Leiter have, not surprisingly, taken opposite positions on the significance of the work.   As I've previously written, I think conservatives entering the job market today have some significant advantages over their liberal counterparts.  This is especially true if you properly ignore the exceptional - and statistically insignificant - practices of the  top-tier schools - which is why Lindgren's Republican Harvard thought experiment doesn't speak to me.

I will say that this particular iteration of the old debate introduces one new idea.  Northwestern Law Dean David E. Van Zandt, commenting on the article, told the Times that:

"[The phenomena of left-leaning professors is]  a little worse in law school.]  In other disciplines, there are more objective standards for quality of work.  Law schools are sort of organized in a club structure, where current members of the club pick future members of the club."

Do our readers agree with the statement that law school hiring is less objective than other disciplines? 

I'm not sure how to get a grip on this problem.   Is the perception that we are less "objective"   driving the pro-Ph.D. bias exhibited by top-schools?  What does it mean to be objective in hiring?  Given that lack of objective quality is sometimes a synonym for non-peer reviewed journals, is Dean Zandt implicitly claiming that student run  law reviews are causing  prawfs to tilt left(er) than they otherwise would?

Posted by Dave Hoffman on August 29, 2005 at 10:10 AM | Permalink | Comments (1) | TrackBack

Hiring Chairs: Declare Yourselves Please (Updated with Spreadsheet!)

A friend of mine on the market for entry level hiring recently asked how to find out who's chair of hiring for rookies at different schools.  (This is because many people send targeted applications to schools, in addition to filling out their FAR forms.)  At the AALS meat market, there is a handy packet of info detailing all the memberships of the committees at various schools, but that's obviously too late.  So as a service to the aspirants, PrawfsBlawg invites faculty to disclose in the comments to this post the relevant person at a given school.  Candidates (or others) with correct information are welcome to post comments too.  The risk-averse (those who doubt the veracity of the information in the comments) can just send their packets to "Chair of Entry Level Hiring Committee," Your Dream Law School.  (Please pass this post to your friends/collleagues. Thanks.)

UPDATE FROM 8/29:

One good and decent reader of this blog sent me a spreadsheet, which I've attached here(download law_school_addresses_full.xls).  The spreadsheet has the names, schools and addresses of 24 schools, some of which have already been discussed in the comments threads.

If you have any more names, please drop them in the comments thread. Thanks!  Also, if you're an aspirant prawf looking for advice about the job market, most of the posts on Prawfs on this subject have been gathered under the "life of law schools" category, which you can access on the right hand side of the blog.

Posted by Dan Markel on August 29, 2005 at 09:29 AM in Life of Law Schools | Permalink | Comments (44) | TrackBack

Sunday, August 28, 2005

Maybe I'm just a cynic ...

Is it just me, or does much of the media seem a little too excited about the prospect of a category 5 hurricane striking a major U.S. city? On MSNBC right now, in response to a slight slowing of Katrina's sustained wind speeds, the weather person almost seems to be saying, "Don't worry, this'll stay category 5 and highly destructive, I promise!" Over at Instapundit.com, Glenn Reynolds wonders whether the media's over-hyping of previous hurricanes led some people in New Orleans not to respond quickly to the government's earlier evacuation recommendations.

Posted by Brooks Holland on August 28, 2005 at 05:02 PM in Current Affairs, Odd World | Permalink | Comments (0) | TrackBack

Cell Phone Photos on Craigslist--The New Shaming?

It’s been a busy first week of teaching—which, incidentally, has been tremendously fun—but I’ve been able to keep an eye on this story out of the NY Daily News, where a woman on the R train in Manhattan used her cell phone camera to record a subway flasher in the midst of his act. After the flasher fled, the woman published the photo online, generating much publicity for the guy. At least one other woman has come forward to say she recognizes the flasher as the same guy who flashed her in a subway station.

New York may have a unique history of these public flashers, who frequently do a lot more than just flash.

Michael Daly in today’s Daily News briefly surveys the unsavory history of subway flashers in New York, dating back to the origination of underground travel in the Great City. In my 11 years of criminal practice in New York, I represented plenty of these offenders and I’ve heard about nearly as many from female friends who unfortunately have encountered them in person. Some, like the guy photographed on the R train, look for victims isolated in places like empty subway cars and subway stations; others effectively employ New York’s human congestion in the subway system and elsewhere for easy and anonymous physical contact. Either way, these offenders cause serious harm to their victims. And Daly's sources are largely correct, I think, that many are otherwise “normal” men with jobs and families, and that traditional laws enforcement techniques often may do little to deter them.

Will public exposure and scorn through the internet succeed? It’s hard not to enjoy thinking of this guy, whose photo has been splashed all over the internet in apparent mid-stroke, sweating out every encounter with someone who might have seen him on-line and wondering whether his family has seen or heard of his ignominious photo. But the NYPD, commenting on this case, encouraged woman to use their cell phone cameras whenever safely possible. Apart the obvious evidentiary value of such photographs to the police—especially with an offender who remains at large—is victim-initiated public shaming through the internet good policy that should be encouraged?

Daly thinks it is. According to the original Daily News article, the woman who published the photo said, “He made me feel creepy … I want to embarrass him.” Certainly an understandable response. And, Daly encourages other women to do the same with their cell phone cameras, arguing that the threat of public exposure is the best way to deter these offenders. Does victim-initiated public shaming have a special retributive or deterrent force that government-sponsored shaming cannot achieve, particularly with crimes like public flashing? Or is it too vulnerable to abuse and inaccuracy in a public forum—the internet—that may produce irrevocable harm to anyone who is falsely accused?

Posted by Brooks Holland on August 28, 2005 at 04:19 PM in Criminal Law | Permalink | Comments (11) | TrackBack

With Grit Like That...

I'm proud to point out that a college classmate, Howie Axelrod, makes his debut today in the NYT Magazine with this inspiring story (entitled A Baseline Recovery) about James Blake, the American tennis player who broke his neck in a game last May and has since recovered to play again.  I'd never heard about Blake before I saw Howie at our 10th reunion this past June, who told me about the story.  Having read it now, it'll be hard not to keep one's eyes on him.  An amazing story about perseverence. 

Posted by Dan Markel on August 28, 2005 at 04:10 PM in Odd World | Permalink | Comments (3) | TrackBack

Saturday, August 27, 2005

What course is most "under-taught" in law school?

Orin Kerr over at Volokh in this post reports on his instinct "that computer crime is going to develop into an upper-level elective offered at most or all law schools within a decade or so."  My immediate reactions was, c'mon, most or all law schools need to have a course (or two) on sentencing before they need a course on computer crime.  (All these insights are surely influenced by biased perspectives: Orin is working on a computer crime casebook; I have an Aspen casebook entitled Sentencing Law and Policy, and have recently finished a new supplement covering Blakely and Booker and other fascinating topics.)

My second reaction to Orin's post was to ponder more broadly the topic of "under-taught" courses in law school, and to want to seek the wisdom of PrawfsBlawg readers on this topic.   So, the question is:

What legal topic do you think should develop into an upper-level elective offered at most or all law schools in the coming years?

In the area of criminal law, I strongly believe sentencing is the course that should become a modern law school staple (and I'd put a course on habeas and other post-conviction issues second).   Especially if this question gets answered with a focus on what is central to modern day practice, today's world in which 95% of all convictions flow from guilty pleas means that effective prosecutors and defense attorneys must be knowledgeable about a range of sentencing issues.

But, outside the field of criminal law, I have very little insight on the topic of "under-taught" courses in law school.   I bet there are all sorts of business law topics which merit, but do not currently receive, serious law school coverage.  Other fields I am sure have their missed topics, too.  I hope the diverse readers of PrawfsBlawg might help expand my horizons by suggesting answers in the comments.

Posted by Douglas A. Berman on August 27, 2005 at 09:29 AM in Life of Law Schools | Permalink | Comments (29) | TrackBack

The Washingtonienne Case and the Still-Very-Much-Alive Public Disclosure Tort

Over at Balkinization, I've posted some comments about the Washingtonienne case, which I blogged about here earlier this summer.  In my post at Balkinization, I'm responding to an article in the Washington Post written by Professor Andrew McClurg that casts doubt on the viability of the public disclosure tort based on First Amendment law.  I take issue with his reading of the law, and I contend that the tort remains very much alive and well, despite rumors of its demise or infirmity. 

Posted by Daniel Solove on August 27, 2005 at 02:43 AM in Blogging, Daniel Solove, First Amendment, Information and Technology | Permalink | Comments (0) | TrackBack

Thursday, August 25, 2005

Philadelphia Police & PETA Protests

Around 8:00 EST tonight, around a dozen or so protesters from the animal rights group PETA stopped by my very small, very quiet, residential street and began a loud protest.  Their target was the house belonging to a neighbor, who works somewhere in the depths of the GlaxoSmithKline public relations department (she isn't a spokesperson, and so far as I can tell, has never appeared publicly for Glaxo.)  She also will be let go from Glaxo at the end of the year, and is moving to D.C., to be with her husband, who works in a liberal lobbying firm.  This isn't the first time my street has encountered these activists: a month ago, someone spray painted some nasty things on her front door.  Glaxo apparently paid to have the door cleaned and re-painted.  Good for them.

I couldn't tell exactly was the message of the protest was, because the bullhorns/whistling/chanting was too loud for coherence (plus, I was hopping mad.)  It seems to me that going after middle managers where they live is unlikely to win converts for any cause, although maybe that isn't the point.  It also shortly became hard to focus on the message when another neighbor (a sweet, short, architect) came out of his house holding a five-foot-long sword.  It looked sort of like this.

The cop on the scene (who I gather PETA had brought with them) sorted out the sword situation and the protesters moved on after ten or so minutes.  What I found interesting is that when I asked the policeman (in plain-clothes, to "defuse tension" he said) why he couldn't enforce the applicable noise, blocking the sidewalk, protest-permit or disturbing the peace regs, he made two claims: (1) the police never enforced those rules against protests smaller than 75 people; and (2) the protesters' constitutional rights made it "impossible" to enforce any laws unless they "hurt someone."  He suggested I hire a lawyer an get a court order enjoining a further protest.  I told him that I thought that lawyers were too expensive, and he laughed.

Pretty wild night.  Not the department's prior practice on protesters.  But maybe things have changed.

Posted by Dave Hoffman on August 25, 2005 at 10:32 PM | Permalink | Comments (6) | TrackBack

It's Alive!

Dahlia Lithwick has just published her summary of the replies to her question, highlighted here by moi, Is the living Constitution dead?

As it happens, my contribution did not make the final cut.  So here it is for you, dear readers.  Think of it as an exclusive perk for prawfsblawg readers: content not available anywhere else on the web!

I'm not sure the arm's-length at which liberals now hold the Living Constitution is due so much to embarrassment as to a strategic reassessment. 
See, the trouble with the Living Constitution is that both sides can play that game. 
Liberals look at conservative 11th Amendment jurisprudence (which is decidedly not textualist), Scalia's take on affirmative action (which is hardly originalist), and the majority and concurring opinions in Bush v. Gore (which is difficult to square with odes to federalism, minimalism, and originalism), and wonder whether it makes more sense to place some obvious constraints on judges.
Liberals look at the conservative backlash to Roe v. Wade and see that contemporary politics is now organized along the NARAL/Family Research Council axis and wonder whether a little democratic populism and judicial minimalism might be a good thing.
Indeed, taking a broader view of this country's history, it is not clear that we can expect courts to be out in front on progressive values and causes through the march of time.  And, putting aside that history, it is even less clear why anyone would think that a bunch of graying and balding lawyers who answer to no one--no matter how good and well-meaning they are--would be.
(Lawyerly caveat: There are times when a Living Constitution would be nice. . . .)

Now tell me, are you surprised?

(Oh, and now she asks for submissions arguing that the Living Constitution, if it is alive, should be executed.)

Posted by Hillel Levin on August 25, 2005 at 06:34 PM in Hillel Levin | Permalink | Comments (1) | TrackBack

Rappaport on Stevens

Mike Rappaport at the Right Coast has some thoughts about the Stevens speech reported in the New York Times

Stevens is reported to have said that he would have made different decisions as a legislator from the ones he made as a Justice if he had been presented with the question of the policy soundness of issues at stake in Raich and Kelo.  That is, as a policy matter he would prefer for the the Feds not to be able to go after California medical marijuana users and would have preferred that the property-holder not be kicked off her land in New London to make room for economic development.  Still, he claimed, the law required a different outcome and he went with the law.   

No major surprises here: sometimes judges would prefer a different outcome from the one they think is required by law.  Indeed, we generally like these stories (even when they come from Scalia) because they remind us that our judges aren't simply using their authority to enact their policy preferences.

Now what does Rappaport make of this unexceptional point?  Very hard to decipher.  Here's his analysis: 

In analying Stevens' comments, we can distinguish several ways in which a judge can behave:

-- First, the judge can decide a case as he would if he were a legislator.

-- Second, the judge can decide a case in accordance with the content of a constitutional provision (or of several interrelated constitutional provisions) that he believes would be desirable.

-- Third, the judge can decide based on the content of a constitutional provision that he believes the Framers gave to it.

While Stevens is portraying himself as restrained by the law, he in fact seems to fall under the first and the second categories.

In the case of Raich involving medical marijuana, Stevens is saying he would vote to allow the use of such marijuana.  That just means he is not following his desires in the first sense.  In the case of Kelo, it is a little harder to interpret Stevens.  Since Stevens claims to believe that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials," one might think he feels bound by the Framers' meaning.  But I don't think so.  Instead, I think he believes that what he regards as the most desirable reading of constitutional clauses generally is to allow the government to make economic decisions without constitutional restraint and therefore he is forced to construe the public use provision of the clause more leniently than he might otherwise desire. If I am right, then Stevens is restraining himself only in the second sense -- he is deciding the case differently than he would vote for as a legislator, but he is still choosing to give the constitutional provisions the meaning he believes are desirable.  He cannot claim to be bound by directions that he would not choose.

I find it hard to make much sense of this.  Is Rappaport's point that Stevens' purported preference for his account of the rule of law is still ultimately a ruling in accordance with his preferences generally such that Stevens gets no "credit" for ignoring the policy preferences he would have had as a legislator?  That can't be quite what Rappaport means because the justice who makes decisions based on what the Framers may have thought is just as committed to an interpretive preference that he gets to follow when interpreting a provision against her policy preferences.  For some reason, though, Rappaport thinks originalist decisions have some special status and furnish their judicial adherents with a free pass to make the claim that they ignored their preferences altogether in their judgments when they, all the same, get to rule in accordance with their interpretive preference.

So we learned something, I suppose, from Rappaport's analysis: policy preferences and interpretive preferences are two different matters and when a justice claims that she ignored her policy preferences, don't think she got nothing out of the decision because she got to follow her interpretive preference.  Fair enough.  But two points, then, in response:

1.  Originalists get no special consideration: they are also following their interpretive preferences.

2.  If we had to choose, I think we would tend to want justices who follow their interpretive preferences over their policy preferences when the two conflict.

Finally, good luck with your proposed amendment, Mike.  It sure beats a federal marriage amendment.  But, with all due respect to those of you worked up about Kelo, can't you think of more important and fundamental ways to amend the Constitution?

Posted by Ethan Leib on August 25, 2005 at 03:24 PM in Blogging | Permalink | Comments (16) | TrackBack

How Companies Help Phishers and Fraudsters

A friend of mine recently received in the mail a letter purporting to be from Citibank.  It contained a sheet of paper saying: “Please see the enclosed for information regarding your Citi Mastercard Customer Credit Card account ending in [last four digits] issued by Citibank USA, N.A.”  Inside the letter were two little brochures – a notice of change to Citibank’s policies; and a complete privacy policy with an opt out form at the end. 

She went to Citibank’s website and downloaded their privacy policy and noticed some suspicious differences between the opt out form in the letter [on the left] and the one from Citibank’s website [on the right]. 

Privacy_notice2c_3 Privacy_notice_real1b_4

 

Two notable differences are: (1) the form from Citibank’s website has a toll free phone number you can call to opt out; the form in the letter does not; (2) the addresses of the processing centers where the opt out forms are to be sent are different.

So my friend then called Citibank to find out what was going on.  Had a fraudster acquired a card in her name?  Was the letter an elaborate fishing scheme? 

My friend recounted the conversation the best she could so I could recreate it on this blog.  This is reconstructed from her memory, so it’s not exact.  Although the transcript below doesn’t contain the precise words spoken, it hopefully will capture the gist of the conversation.

Click on the continuation to read more.

CUSTOMER SERVICE REPRESENTATIVE #1 (REP):  Hello.  May I have your account number?

MY FRIEND (F):  No, I'm sorry, I don't have an account with you.

REP:  Oh.

F:  I'm calling because I got this piece of mail yesterday that's supposedly from Citibank, but it looks suspicious to me.

REP:  OK.

F:  First of all, it refers to a Citi Mastercard account that I don't have.  So my first thought was maybe someone else opened a credit card account in my name.

Second, the letter included a Privacy Notice saying that if I want to limit who my personal information goes to, I should write down my credit card numbers -- there are spaces to write two of them -- and  send them to this processing center in Des Moines, Iowa.  The notice says I can do this over the phone, but doesn't give a phone number. It says I should call the number on my bank statement or on the back of my credit card -- neither of which I have, of course, since I don't have this credit card account.  So then I started wondering if someone posing as Citibank might have sent me a fake notice to try to get me to reveal my credit card numbers.  If that's the case, I thought you might want to know that somebody's doing that in Citibank's name.

A third option might be that this mail actually is from Citibank, and there's some sort of mistake in your records about this account that I've never opened.  If that's what's happened, I should fix that.

I did some looking around online this morning to try to figure out whether this letter was really from Citibank or not.  I Googled the processing center address on the Privacy Notice, and wasn't able to find any reference to this P.O. box in Des Moines.  I also found the Citi Mastercard Privacy Notice on the Citibank website, which I compared to the one I got in the mail.  [Explains differences in the form.]

[long pause]

REP:  Well, you don't have to fill out the Privacy Notice, m'am.  You could just throw it away.

F:  I'm definitely not filling it out -- I don't have an account with you.  But can you help me confirm whether this mail is actually from Citibank?  Could you tell me, for example, whether you've got a processing center at this address in Des Moines, Iowa?

REP:  Just one moment.  [Clicks away on computer.]  M'am, it doesn't look like we have a processing center in Des Moines.

[long pause]

REP:  Can I have your name?

F:  My name is [name]

REP:  Just a moment.  [Clicks away on computer.]  M'am, we don't have you on record as having an account with us.

F:  Right.  That's because I don't have an account with you.

[long pause.]

F:  So, if this letter didn't come from Citibank, maybe I should make some sort of complaint or let someone know?  Can I do that through you, or can you direct me to someone else I should talk to?

REP:  Maybe you should talk to someone in the credit card department.  Hold on just a moment and I'll transfer you.

[He puts me on hold for a few seconds.]

CUSTOMER SERVICE REPRESENTATIVE #2 (REP):  Hello.  May I have your account number?

F:  I don't have an account with you.

REP #2:  Oh.  May I have your Social Security number, then?

F:  No, you don't need my Social Security number.  I don't have an account with you.  I'm calling because I received a letter in the mail from Citibank yesterday about a Mastercard, but like I said, I don't have a credit card with you --

REP #2:  M'am, I'm sure you probably do have a credit card with us.

F:  No, I'm pretty sure I don't.

REP #2:  Yes, you probably do.

F:  No.  I have one major credit card, and it's not through Citibank.

REP #2:  Oh?  What kind of credit card is it?

F:  It's a Mastercard --

REP #2:  Uh-huh.  What bank is it with?

F:  National City.

REP #2:  Yeah, well, we own parts of National City.  So I'm sure your credit card is with us. 

[pause]

F:   Um, all right, then.  Can you tell me whether you've got a processing center in Des Moines, Iowa?

REP #2:  [impatiently] We sure do, m'am.

[pause]

F:  OK.  Thanks for all your help.

REP #2:  You're welcome.

There are many morals to this story:

1. This conversation is indicative of the kinds of conversations that we have with customer services representatives with banks and other businesses.  The representatives read from a script and can’t seem to respond without it.  They contradict each other, don’t seem to know what’s going on, and have little authority to do much of anything.  Increasingly, we’re having these frustrating encounters that are wasting our time.

2. Citibank’s customer service representatives seem nonchalant at the fact that a person, without a Citibank credit card, has called up and said she received something in the mail making reference to her Citibank credit card account number.  Shouldn’t Citibank be concerned about this?  It could be a case of credit card fraud or an elaborate phishing endeavor.  Citibank should investigate this.  Instead, they don’t seem to give a damn.

3. Companies contribute to phishing because they don’t establish with their customers clear protocols for valid communication.  This allows phishers to send fake emails and other communications falsely pretending to be from particular businesses.  If businesses established very clear rules about how they contact their customers, fraudsters would be less able to trick people. 

A personal example: I recently got a call from a computer which told me that there might be fraudulent charges on my credit credit card.  I was to call the number the computerized recording gave me.  This phone number didn’t match the phone number on the back of my card.  It could have been from a phisher.  So to be safe, I called the regular number on the back of my card, and the representative said that the computerized recording was bona fide and connected me to the fraud department.  Of course, the problem here was that my credit card company should not have given me a new number to call different from the one it had already given me on the back of my card.  This would assure me that I wasn’t calling some bogus number and giving out my credit card info to a fraudster.  The epilogue – there was no fraud.  I bought gas for my car and groceries in the same day, which apparently triggered the system.  Go figure! 

Posted by Daniel Solove on August 25, 2005 at 01:33 PM in Daniel Solove, Information and Technology | Permalink | Comments (16) | TrackBack

We're Number Three!

California, my new residence, is the number three state for identity theft, with 122.1 victims per 100,000 people. That's a more than 1% a more than .1% chance of being an identity theft victim. According to the article, the same states seem to top list after list -- California, Nevada, Arizona, Florida, Texas. Other states with high incidences include New York and Illinois.

I guess that life's not always such a cakewalk here in the blue states, after all.

Posted by Kaimi Wenger on August 25, 2005 at 01:33 AM in Information and Technology, Kaimi Wenger | Permalink | Comments (1) | TrackBack

Wednesday, August 24, 2005

Prawfs in Jeans?

I'm sick of wearing sportcoats to look professorial on the days I teach.  Anyone think it's totally inappropriate to wear jeans? 

Posted by Ethan Leib on August 24, 2005 at 03:19 PM in Life of Law Schools | Permalink | Comments (30) | TrackBack

Kahan on the "White Male Effect"

Dan Kahan has a great post over at Balkinization on "What Fearless White Men Are Afraid Of."  The post helpfully  summarizes his recent co-authored piece on Cultural Status Anxiety, which seems destined to be a real blockbuster for those of us who are interested in demographic differences in risk perception. 

Posted by Dave Hoffman on August 24, 2005 at 01:50 PM | Permalink | Comments (1) | TrackBack

"State Supreme Court upholds rights, responsibilities of same-sex parents"

That's the title of this article reporting on a series of California Supreme Court decisions.  I blogged about these cases previously, and since that post seems as relevant now as it did then, here it is again:

The California Supreme Court is currently considering whether to extend parental rights and responsibilities to same-sex former partners who raised children together prior to separating.  Two adults of the same gender raise children together, and then they separate.  In one case (also described in this NYT Magazine article from last year), the custodial adult refuses to allow the other adult to see the child.  In another case, the non-custodial adult refuses to pay child support.  These cases present both sides of the parenting coin: rights and responsibilities.

A number of thoughts:

1.  This would be much less of an issue if states recognized same-sex marriage or civil unions (as California now does).  If the couples had married or unioned, their rights and responsibilities would have been clear.  And if they had chosen not to marry or union, their rights and responsibilities would have been clear as well: the very same rights and responsibilities as heterosexual couples in similar situations.

2.  These cases demonstrate precisely why heterosexist marriage laws are not simply discriminatory on the basis of sexuality, but also on the basis of gender.  The rights and responsibilities of one adult depend on nothing other than the gender of the other.

3.  My concern is less for the adults here than it is for the children.  Adults make difficult (and sometimes poor) decisions all the time.  If they alone had to suffer the consequences of their decisions, then so be it.  But the primary people suffering here are the children.  For those who believe that marriage is primarily for the welfare of children, what would you say to the children of these relationships?  These are children who are lacking financial support, and children who are no longer permitted to see a parent who has raised them.  I understand that many conservatives believe that children do better when raised by two heterosexual parents.  (I won't take the time now to attack that claim; for the purposes of this discussion, I will accept it.)  But wouldn't the children in these cases be better off with two homosexual parents who are responsible for them than they would be with just one parent?  The reality is that there are thousands upon thousands of same-sex couples who choose to raise families together; and there is nothing that can stop them.  By denying them the opportunity to marry or union, their children lose.

Marriage is a conservative institution.  Society has an interest in encouraging people to become legally and socially responsible for one another, and especially for children whom they choose to bring into this world together.  That is the role that marriage plays, and that is why it should be provided to same-sex couples.  And yet, for social conservatives, virtually the only thing that matters in determining whether a couple may marry is the relative contours of each partner's genitals.

Posted by Hillel Levin on August 24, 2005 at 11:24 AM | Permalink | Comments (0) | TrackBack

Is the Living Constitution Dead?

Dahlia Lithwick asks whether there can be a spirited and reasonable defense of a Living Constitution--or whether Scalia is right.

She writes:

A Nexis search for the words "living Constitution" turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it's hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words "living Constitution," like the words "feminist" or "liberal," have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Many prominent liberal thinkers have retreated from William Brennan's soaring language about the need for a "living Constitution," because, I think, it embarrasses them. The idea that, as Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions," has been rebutted roundly with the notion that it's even more arrogant for nine unelected officials to gauge anything at all. Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.

So, I turn to you, dear readers, smart thinkers, and posters of great wisdom in the Fray, to ask simply: Is the living Constitution dead? Are the critics correct—was it all just a great drunken binge of Brennan and Thurgood Marshall's? What is left in its place? Is there room for a Brennan-esque defense anymore? Or am I correct in guessing that Scalia is right this time? Send replies to livingcons@hotmail.com . The best of your answers will be coming soon to a Jurisprudence near you.

Go join in the fun . . . and tell her I sent you.

Posted by Hillel Levin on August 24, 2005 at 11:08 AM in Hillel Levin | Permalink | Comments (5) | TrackBack

Conglomerate: Junior Scholars Workshop Paper 2

The Conglomerate is running a wonderful online workshop for junior corporate law scholars.  The idea is that works in progress will be posted online with some initial comments, and then all visitors are free to join in with additional thoughts.  The first paper, about shareholder primacy, was by Matt Bodie.  The second, by Michael Woronoff and Jonathan Rose, discusses anti-dilution in convertible securities.  If you are interested in participating in a great event, go over there and put your two cents in! (Note: for aspiring professors, thoughtful comments on other folks work sounds like a great way to get readers of your own.)

Posted by Dave Hoffman on August 24, 2005 at 11:02 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

Solove vs. Kerr: The Fourth Amendment, New Technology, and Judicial Deference

4a1It’s come to fisticuffs.  Professor Orin Kerr and I have taken our many debates out of the halls of GW Law School and into the pages of a forthcoming symposium issue in Fordham Law Review. 

My piece is a short essay, entitled Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference, which critiques an article Orin wrote in Michigan Law Review about the Fourth Amendment, judicial review, and new technologies.  Orin argued that “courts should place a thumb on the scale in favor of judicial caution when technology is in flux, and should consider allowing legislatures to provide the primary rules governing law enforcement investigations involving new technologies.” 

I argue vigorously that Orin is wrong.  My essay is a short easy read, and you might find it entertaining to watch me dismantle my colleague and friend – or laugh at me for failing in the attempt.  You can be the judge.

And Orin, of course, wanted to have the final word, so read his short reply essay to my attack, which will also appear in the Fordham Law Review.   

In the end, my scorecard has me winning by TKO.  Orin’s scorecard, surprisingly, has him winning by TKO.  So to settle this thing, let us know what you’ve got down on your scorecard. 

Posted by Daniel Solove on August 24, 2005 at 10:43 AM in Constitutional thoughts, Criminal Law, Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

Iraq's Founding

With all of the news about Iraq's Constitution swirling about, I'm a bit surprised that more hasn't been said on the various blawgs (or, at least, the ones that I read regularly).

The American constitutional experience suggests that there must be more to a Founding than simply a blueprint for government--though there must certainly be that. There must also be a founding mythos; a powerful story and looming personalities whose philosophies, experiences, and personalities can rally a nation--for the first generation and beyond. Where would we be without Jefferson, Hamilton, Washington, Madison, Adams, and the rest? Where would we be without Valley Forge, Washington's cherry tree, the Declaration of Independence. . . ?

I most definitely do not mean to suggest that we ought to look at the American Founding solely through the Great Men lens. Nor do I suggest that the American experience must necessarily be repeated in other cultures. But it seems plain that a well-grounded procedural and substantive document alone cannot sustain a nation. After all, given America's tumultuous history, replete with foreign wars, civil wars, existential crises, and competing visions, it is only through reference and resort to our unifying founding mythos that we retain our commitment to the Constitution itself (for better and worse).

I wonder what the Iraqi story will be. My prediction is that the precise contours of Iraq's Constitution will matter less for the future than the presence or absence of unifying mythos and personalities surrounding the Founding and the Framing.

Posted by Hillel Levin on August 24, 2005 at 10:06 AM in Hillel Levin | Permalink | Comments (5) | TrackBack

What is Jury Reform?

The Vioxx case seems to have attracted the attention of our intrepid blawgers; and, more broadly, the Tort Reform alarm has been sounded again. 

The refrain goes like this: Exhibit A: McDonald's hot coffee.  Exhibit B: Vioxx. . . .  Of course, the Reformers will no doubt fill the comments section with many other examples to add to the list.  Let's assume that the Reformers are right, and all of these awards are indeed indefensible.

My question is rather simple: Why is it only the perceived overcompensatory awards that raise the hackles of the Jury Reformers?  Why don't the Jury Reformers seem to care about the undercompensated and non-compensated victims?

Posted by Hillel Levin on August 24, 2005 at 09:38 AM in Hillel Levin | Permalink | Comments (5) | TrackBack

Tuesday, August 23, 2005

Griffin and Zhu on Individual Investors

Paul Griffin and Ning Zhu have posted a new interesting piece on SSRN: Are All Individual Investors Created Equal?  Evidence From Individual Investor Trading Around Securities Litigation Events.  From the abstract:

This study examines the trading behavior of a large sample of individual (retail) investors around securities litigation events. We test the hypothesis that the response of these investors around the end of the litigation class period (at the time of a corrective disclosure) and the start of the class period (at the time of disclosure of allegedly false positive information) differs on the basis of the informedness of the investors. Our tests reject the hypothesis that more informed investors exhibit the same trading behavior as less informed investors. These results contribute to the literature by documenting differences in individual investor trading around events that reveal the start and end of an alleged financial fraud. These events can be relatively difficult to interpret and, so, it is not unreasonable that we should observe differences on the basis of informedness. We also examine individual investor trading within the class period and adduce that trading intensity is higher earlier in the class period, and higher overall relative to a control period. These findings are inconsistent with the often-applied proportional trading model for the calculation of class action damages, which assumes all shares trade with equal probability.

If I were still a defense-side securities litigator working on loss-causation briefs, I'd find this extremely useful.  Go on, give them a hit.

Posted by Dave Hoffman on August 23, 2005 at 11:54 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Anecdotes and Jury Reform

I have to disagree with Ethan (in his most recent concession), Paul, Kate Litvak (in the comments) and the many, many other folks who believe that the Merck verdict highlights the need for further limitations on civil juries in tort cases.  The issues involved in mass-tort reform are complex, so let me just start the ball rolling here, possibly to return later in the week.

I'll begin with the obvious: the Vioxx case tells us about as much about the health of the civil jury system as President Bush's speeches do about the state of the Iraq War.  Anecdotal stories about complicated social events may signal something about reality, indeed, may provide some vivid and incidentally truthful examples,  but to know what is actually going on, we need something more.  We need comparisons across time, across decision-makers, across jurisdictions, across countries.  In a word: data.  I know that most folks on the blog will agree.

All the data I've seen suggests that punitive damage awards are and remain rare; juries are just as if not more predictable than judges in both the liability and damages phases of civil trials; there is no clear "sock the rich defendant" effect nor are there non-wealth related demographic differences in jury awards; and (crucially) there is no good evidence that liability concerns are reducing Big Pharma's innovation pipeline.  The obvious place to look is Ted Eisenberg's SSRN page -- so go there for a taste.  And then go read Marc Galanter on how anti-jury forces go about pressing the anecdotal case.  I'll be fair: here is Prof. Polinsky in response.  [Note: if you want to engage in a debate about decision making by model juries, like Prof. Sunstein et al., that is a discussion for a different post.]

Now, Paul worries that "this can be a bet-the-company set of cases, insurance notwithstanding."  Set of cases is the key qualification, and the result in Texas tells us basically nothing about the answer to this question.  But it strikes me as extraordinarily unlikely.  This case was decided on its facts, and it is clear from the news reports that the defense team made a complete hash of things.  They lost.  It happens.  They will try again, probably with lawyers who don't read their opening to the jury and fail to adequately prep their deposition and trial witnesses (if that is the cause of those witness's awful testimony, as opposed to, well, the truth coming out). 

Maybe Merck will lose a few more cases.  Then they will settle - rational plaintiffs won't force them into a litigation induced bankruptcy (the asbestos cases are an exception the proves the rule, generating from the long lag time and poorly capitalized primary defendants, as well as *real* attenuation problems).  Settlement costs will be absorbed by insurance, by higher drug prices, and, therefore, will be spread to society at large (including government drug benefit programs).  If the pressure gets too large, Merck will petition legislatures for relief - as Big Pharma did in the autism/vaccine mess - and likely will get it, evidence of wrongdoing notwithstanding.

Let's pretend, though, that Merck chooses to go into bankruptcy to get the liability off its back.  The loss will fall primarily on its investors, as Kate Litvak points out.  But why do we care?  If, as Prof. Bainbridge concedes,   the "evidence of cover-ups and so on at Merck is non-trivial," haven't those investors already made lots of money they should not have made on Vioxx's deceptive marketing (i.e., marketing that misstated the benefits and hid the costs of the drug)?  If the investors lose money now, all other things being equal, doesn't that amount to the sort of wealth transfer the legal system is comfortable with?

All of the forgoing analysis puts to one side the possibility that the Texas Vioxx jury was acting in a nullificatory way, acting to control wrongdoing when the ordinary democratic branches have failed to do so.  If that were the case, of course, I think we would want to spare the messenger, and turn our eager reforming eyes on the government that has failed us.

Posted by Dave Hoffman on August 23, 2005 at 11:24 PM | Permalink | Comments (2) | TrackBack

More on Merck and Insurance

I appreciate, as Ethan has made clear in the comments section, that his post below is taking into account increases in insurance premia and indirect consequences.  We should also remember, however, that this is an alleged mass tort, and there are limits to liability insurance -- not to mention, the bigger the award, the more resistant the insurer will be to paying in the first place.  Merck itself has something to say about its liabilty insurance and litigation reserves (see here; excerpts follow):

* * * * *

...the Company has product liability insurance for claims brought in the VIOXX Product Liability Lawsuits with stated upper limits of approximately $630 million after deductibles and co-insurance.  This insurance provides coverage for legal defense costs and potential damage amounts that have been or will be incurred in connection with the VIOXX Product Liability Lawsuits...The Company has Directors and Officers insurance coverage applicable to the VIOXX Securities Lawsuits and VIOXX Derivative Lawsuits with stated upper limits of approximately $190 million.  The Company has fiduciary and other insurance for the VIOXX ERISA Lawsuits with stated upper limits of approximately $275 million.  Additional insurance coverage for these claims may also be available under upper-level excess policies that provide coverage for a variety of risks.  There are disputes with certain insurers about the availability of some or all of this insurance coverage and there are likely to be additional disputes.  At this time, the Company believes it is reasonably possible that its insurance coverage with respect to the VIOXX Lawsuits will not be adequate to cover its defense costs and any losses.

Recently, Merck received notice that the Company's upper level excess insurers (which provide excess insurance potentially applicable to all of the VIOXX Lawsuits) commenced an arbitration seeking, among other things, to cancel those policies, to void all of their obligations under those policies and to raise other coverage issues with respect to the VIOXX Lawsuits.  Merck intends to contest vigorously the insurers' claims and will attempt to enforce its rights under applicable insurance policies.  The amounts actually recovered under the policies discussed in this section may be less than the amounts specified in the preceding paragraph.

...As of December 31, 2004, the Company had established a reserve of $675 million solely for its future legal defense costs related to the VIOXX Lawsuits and the VIOXX Investigations. 

* * * * *

So, certainly one case in Texas, even absent the cutoff on punitives required by Texas law, will not bankrupt the company.  But there are numerous other individual damages cases against Merck, some in states without limits on punitives (other than those required, rightly or wrongly, under BMW); there is an MDL class action, and there are at least two state class actions; there are ERISA-based actions and shareholder actions.  In short, yes, this can be a bet-the-company set of cases, insurance notwithstanding. 

We might conclude that if Merck deliberately wronged its patients, this is not in itself inappropriate.  But given the difficulty involved in determining liability fairly (for instance, the plaintiff in Texas is about to receive millions of dollars in a case in which there is strong doubt about the link between the drug and the decedent's cause of death), and in allocating any available resources fairly and equitably among the class of genuine injured and more soi-distant plaintiffs ( insert obligatory cite to asbestos fracas here), and then considering the social cost that bankrupting a drug company would entail, I do think there are genuine reasons to think a better system of resolving these issues must be available.  I don't know that Ethan says otherwise.  He simply says we cannot think of the Texas case itself as a company-buster.  But I think there is good reason to focus on this case and its implications.  

Posted by Paul Horwitz on August 23, 2005 at 08:32 PM in Law and Politics | Permalink | Comments (3) | TrackBack

Merck, Juries, and Insurance . . . and Reinsurance

Many have weighed in about the astronomical jury verdict against Merck.  The New York Times has found a way to justify it (sort of) in spite of very thin evidence of causation; most are outraged, including Bainbridge and Ribstein, among many others.  Gordon Smith at the Conglomerate offers a sober assessment, as always. 

Although I'm certainly disturbed to learn that some jurors apparently considered which verdict would get them on Oprah, I'm not really sure what the take home message is.  I want to be outraged but I like our jury system too much to use this as an opportunity to disrespect the institution more generally (though I suppose I'm open to the abolition of the jury in certain kinds of cases).  One thing, however, gives me some peace in the face of the talk about Merck going out of business over this and the hyperbole invoked by those worried about the future of Big Pharma in America: Merck won't likely be paying for the entire verdict out of its own pocket.  Layers and layers of insurance cover these sorts of cases: Merck undoubtedly has insurance, and the insurance company probably has reinsurance.  To be sure, premiums may rise for the industry (though don't forget that the insurance industry is itself a competitive marketplace) and litigation will ensue between Merck and its insurer and reinsurers.  But let's not overstate the case against the astronomical award: it isn't going to put Merck out of business.

Posted by Ethan Leib on August 23, 2005 at 02:08 PM in Blogging | Permalink | Comments (19) | TrackBack

Joining the Alumni Section

This is a great blog, and it’s been fun to post a few initial thoughts here and learn from the comments and trackbacks.  Blogospheric responses to my posts were thoughtful, and were particularly enlightening on the issue of sex offender residency restrictions, which I'll be discussing in a forthcoming paper.  Thanks for the temporary platform and for reading and responding.

Posted by Lior Strahilevitz on August 23, 2005 at 12:45 AM in Blogging | Permalink | Comments (0) | TrackBack

Monday, August 22, 2005

Toward a General Theory of Writing Off the Purchase of a Flat-Screen TV as a Job-Related Expense

I am always humbled and awed by the breadth of law school subjects for which television shows serve as a vital pedagogical resource.  (Or perhaps the operative factor is my own genius in bending the medium to my own purpose.  Either way, I'm humbled and awed.)  Last year, my First Amendment seminar was enriched on numerous occasions by references to the short-lived, much-missed Amish in the City.  Today, on the first day of constitutional law, the subject was republicanism and the image I wanted to suggest was that of the New England town meeting.  Being in sunny California, an illustration was needed -- and what better source than Gilmore Girls?  I have not yet found a teachable moment related to 7th Heaven or Britney & Kevin, but hope springs eternal.

Posted by Paul Horwitz on August 22, 2005 at 10:57 PM in Culture, Life of Law Schools | Permalink | Comments (0) | TrackBack

Wikipedia: Order Without Law?

Over the last year, Volokh conspirators Kerr and Volokh, among others, have expressed a fair degree of skepticism about the accuracy and appropriate citation of entries in the online encyclopedia, Wikipedia.  I tend to agree that the content of any given article in Wikipedia isn't sufficiently reliable to allow a reasonable judge, lawyer, academic or student to depend on.  I also agree with Prof. Kerr that there is no reason to believe that entries will naturally evolve toward accuracy -- the metaphor of evolution itself suggests why not

However, the question remains: how do the collaborative efforts of thousand of unpaid volunteers even come close to accuracy when any user can easily import her/his foolish views into any article?

The answer, I believe, lies in Wikipedia's dispute resolution policy. That policy, as written and applied, suggests to me that Wiki-community has created a set of norms to deal with conflict that look very much like the famous neighbor-ranchers of Bob Ellickson's Shasta County, as detailed in his book Order Without Law

When authors disagree as to the proper content of an article, they are directed to first remember Wikipedia's prime directive: adopt a neutral point of view.  This is apparently an important normative goal for members of the community.  They are told to always avoid the dispute by being respectful of others' edits, not "reverting" (or deleting the entire previous work of) others but instead improving it. 

If avoidance fails, Wikipedians are told to talk about the problem on each encyclopedia page's discussion tab.  There, they are to "avoid personal attacks," assume the other person is "acting in good faith", and to "stay cool."  Importantly:

[T]alking to other parties is not simply a formality to be satisfied before moving on to the next forum. Failure to pursue discussion in good faith shows that you are trying to escalate the dispute instead of resolving it. This will make people less sympathetic to your position and may prevent you from effectively using later stages in dispute resolution.

That is: Wikipedians don't "sue" Wikipedians.  They convince them.

If discussion fails, Wikipedia offers four second order resolution systems: discussion with third parties (there are pages devoted to such discussions), surveys, mediation, and (to aid in one of the previous methods) a third-party advocate. 

If none of these methods work, Wikipedia offers "formal" arbitration, which involves a committee  consisting of senior members of the community, empowered to make a final decision about a dispute.  Referrals to the committee are quite rare.

These norms may seem quite involved for what an unpaid project.  And, it is fair to wonder: does anyone pay attention?

If my experience is any guide, the answer is yes.  Check out this page, which recounts (in part) the Wikipedians' struggle to decide if my comments on this blog, and Eugene Volokh's responses, belong in an article about the retributive attempt to build a hotel on Justice Souter's New Hampshire property. 

You should go read the page to get its flavor, but in brief, one fellow ("OtisTdog") was unhappy with quotations to blogs (insufficiently neutral and authoritative, he claimed (Take that, Kerr!)).  The following sequence of events seemed to follow.

  • He "reverted" revisions he disliked;
  • Others criticized him for doing so, reminded him of the policy against reversions, and threatened a ban;
  • He called for mediation;
  • The community decided mediation was premature;
  • He eventually admitted that his "bull-in-a-china-shop entrance [was] born of unfamiliarity with the way things are done here" and moved toward a compromise position; and he now
  • "[G]enuinely appreciate[s] the chance to work this out here in the talk page instead of playing the revert game."

Is the original article accurate?  Not really, as I noted on the discussion page in question.  But who cares?  There is a whole ADR and conflict resolution system being set up behind the scenes, in the absence of (a) money; (b) the Bar; or (c) personal contact. And we don't have to go to Shasta County for months on end to see it.

For more on this fascinating topic, see this article by Joseph Reagle,

Posted by Dave Hoffman on August 22, 2005 at 08:04 PM in Odd World | Permalink | Comments (5) | TrackBack

Nudity for a SCOTUS Clerkship

Will Baude has posted Part I of a 20 questions interview with Article III Groupie here.  It is certainly worth a quick read--and raises the provocative question of whether you would would pose nude on the internet for a SCOTUS clerkship.  I suppose I would have at a certain time in my life; now, likely not.  Well, I might pose nude but I wouldn't need a SCOTUS clerkship as special inducement.

A quick counternarrative of interviews with SCOTUS justices: my interview was fairly substantive--but only because I was forcing substantive matters into the interview.  The people who interviewed successfully, I'm told, talked about Chicago, Chicago sports, flying planes, and growing marijuana.  So for some of you SCOTUS clerkship hopefuls out there: talking about baseball may serve you better than talking about statutory interpretation. 

Posted by Ethan Leib on August 22, 2005 at 04:46 PM in Blogging | Permalink | Comments (1) | TrackBack

Hello Again

Thanks to Dan & Ethan for allowing me to rejoin the blog.  I've had a good summer "off" (consisting of blogging at the Conglomerate, writing, and visiting scattered family units).

My first time here, as our loyal readers may recall, I posted about a variety of random loosely connected topics, including: Nikolai Chernyshevsky, Internet lawlessness, juries, corporate law and the Lord of the Rings, a possible SSRN/Google deathmatch, faking conservatism, Kelo, and then more Kelo.  It was fun; I got  hate mail!  I even made it onto Wikipedia.

This time around, I'll try to be more focused.  To do so, I've developed a list of rules that may help me to comply with Kaimi's on-topic/off-topic guidelines

  1. Only blog about Kelo when traffic is down;
  2. Never blog about privacy except when Dan Solove is on vacation;
  3. Try hard to resist self-referential posts that contain numbered lists;
  4. Don't criticize other bloggers, unless they aren't lawyers or legal academics, in which case, savage them;
  5. Don't blog about the first amendment unless Eugene Volokh is on vacation on a desert island without WiFi access;
  6. Avoid linking to my SSRN page (its been done before!) even though it is now clear that SSRN hits are quite valuable;
  7. Do mention Howard "the blawg daddy" Bashman often;
  8. Don't blog about law school rankings, ever.  He who shall remain unnamed has got it covered;
  9. Don't try to preempt other academic writing on a subject by merely by posting a short blog entry -- the rule is clear that preemption requires at least two major or five minor trackback entries;
  10. Always remember the key to success:  more cowbell.

Posted by Dave Hoffman on August 22, 2005 at 11:15 AM in Dave Hoffman | Permalink | Comments (1) | TrackBack

Portrait of a Spammer as a Young Man

Spammer1The AP has a very interesting story of the high-rolling lifestyle of a spammer:

Christopher Smith's neighbors didn't know exactly what he did for a living. But they knew well that he liked to collect expensive cars and set off fireworks at all hours.

At an age when most of his peers could barely afford a new car, Smith was amassing a collection that would include BMWs, Hummers, a Ferrari, a Jaguar and a Lamborghini. And when other 20-somethings were trying to save for down payments on modest starter homes, Smith paid $1.1 million for a house in a more affluent suburb.

Smith got all that through his successes in massive unsolicited e-mail marketing, authorities say. The Spamhaus Project, an anti-spam group, considered him one of the world's worst offenders.

He was just 25 when the feds in May shut down his flagship company, Xpress Pharmacy Direct, and seized $1.8 million in luxury cars, two homes and $1.3 million in cash held by Smith and associates.

But even then, prosecutors say, he refused to give up.

They say he tried to relaunch his online pharmacy from an offshore haven — the Dominican Republic — intending to build his business back up to $4.1 million in sales by its second month, right where it was before. . . .

Christopher Smith was arrested when he flew back to Minneapolis this summer.  Here's more about Smith’s life as a spammer:

The high school dropout, operating under the nickname Rizler, got his start in the late 1990s, selling police radar and laser jammers. Along the way he added cable TV descramblers and other products.

After Time Warner Cable got an injunction in 2002 putting Smith out of the descrambler business, he diversified and generated more than $18 million in sales from drugs online, including the often-abused narcotic painkiller Vicodin, without obtaining proper prescriptions, federal prosecutors say. . . .

Neighbors didn't know exactly what Smith did for a living. Parson said he told one person he had a lawn service, another that he was "into computers" and yet another that he was "into pharmaceuticals."

"There were these Hummers outside, the limos outside," she said. "It was like, 'Where do these people get their money from?'"

There’s a lot more to the tale in the article. If it weren’t for the bad ending, the spamming lifestyle was starting to sound quite fun. Sadly, there appears to be much more money in creating spam than blog posts. Sometimes, the world works in perverse ways.

Posted by Daniel Solove on August 22, 2005 at 12:02 AM in Daniel Solove, Information and Technology | Permalink | Comments (1) | TrackBack

Sunday, August 21, 2005

Where are we going?

As the beginning of classes rolls around here (at FSU) tomorrow, I am grateful for the good ideas generated by the various recent guest bloggers here at Prawfs.  Many thanks to you, Rick and Nicole, who both signed off this past week, and who both helped contribute to the dialogue here immeasurably.

I'm happy to announce that my good buddy, future co-author, and past co-blogger, Dave Hoffman, will be returning to join the Prawfs ranks for the coming semester.  We should also have a gaggle of other interesting bloggers guesting with us...stay tuned.

We've recently hit a milestone of sorts, and so now is a good moment to take stock.  The growth of the Prawfs community astounds me.  (Recently, we hit  over 250,000 page views!).  This is great--we've only been on-screen for five months after all.  But more remarkable than sheer numbers is the flavor of the site, over which I have had only bare influence and control.  The success is due in large part to the panache, humor, and insight of my co-bloggers, and I want to thank them first and foremost, but not just them.  The readers of this blog are wonderful contributors in their own right and continue to teach me through their perceptive and substantive comments.  Indeed it was the comments that inspired our recent change in self-description along the banner of the page.  If we are planning to be here for the long haul, we can't just describe ourselves as young legal turkeys.  Finally, I'd like to thank our friends at the other prawf(-like) blogs -- this includes you too Will.  These fine souls charitably linked to us as we were getting started, and suffer us kindly still.  Billions of thanks to you all as we head into the new academic year.  As always, if you have ideas on how to improve the site or other suggestions, please email me at prawfsblawg at gmail.com.  And of course, if you are so inclined, please take a moment to send an email with a link to the blog (http://prawfsblawg.blogs.com)  to six or ten (or three hundred) of your friends, colleagues and students:-).

And to all, a happy semester!     

Posted by Dan Markel on August 21, 2005 at 09:59 PM in Housekeeping | Permalink | Comments (0) | TrackBack

Saturday, August 20, 2005

End to guest-blogging

I'm grateful to the bloggers and readers at Prawfsblawg for the chance to join the conversation these last few weeks.  I look forward to learning from my friends and colleagues here in the months and years to come.  Now, back to my usual blog[o]spheric haunt, "Mirror of Justice."  Best wishes!

Rick

Posted by Rick Garnett on August 20, 2005 at 12:39 AM | Permalink | Comments (0) | TrackBack

Friday, August 19, 2005

Are the NYC Subway Searches Reasonable? Let's Take a Poll!

According to the New York Daily News web site, a recent poll by Quinnipiac University of 1,601 registered New York City voters shows that 72% support the current random subway searches to prevent a terrorist act. "That support was solid among blacks, whites and Hispanics," according to the Daily News article.

I’m not a statistician, so I can’t comment on a the value of this poll at revealing true NY’er sentiment. But, the poll results jibe with my own anecdotal sense of how people in NYC are thinking about this issue. And, they raise for me again a question that I posited in my initial post: whether and to what extent a community’s willingness to share in law enforcement burdens may inform Fourth Amendment jurisprudence.

Of course, the Fourth Amendment would become a pretty empty right if opinion polls could determine the reasonableness of police action. Yet, when both the specific harm to be prevented and the law enforcement mechanism offered to prevent it are shared so communally—as with terrorism and arguably the NYC subway searches—I become a little more uncomfortable with the idea of the Fourth Amendment ignoring a community’s plea to allow law enforcement to protect it in a manner it is willing to accept. As the Fourth Amendment struggles with the unique communal harm of terrorism, perhaps this democratic norm of community burden sharing can play a greater role in informing reasonableness determinations.

But, how do courts objectively identify a community’s judgment of what burdens it is willing to share to remedy specific communal harms, or even the relevant “community” in the first place, so that this concept does not overwhelm reasonableness inquiries? How do courts further limit “community” police action to target only communal harms, both in scope and duration? Should “community” police action become a distinctly reasonable law enforcement endeavor apart from other forms of police work? Or should this concept be limited to serving as one of many factors at play in a broader reasonableness inquiry—a role it implicitly may occupy already, particularly in the Court’s “special needs” jurisprudence? Or is there another role for it here?

Tracey Meares and Dan Kahan have presented a thoughtful yet broad theory of “community burden sharing” in the area of community policing and gang violence. See e.g., The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U. Chi. L. Forum 197. Albert Alschuler in the terrorism context has suggested a more restrained, “relevant factor” approach to this concept in his impressive article, Racial Profiling and the Constitution, 2002 U. Chi. L. Forum 163, 229-30, and he and Stephen Schulhofer have expressed well-founded concerns about the breadth of Meares and Kahan’s community burden sharing theory. See Antiquated Procedures or Bedrock Rights? A Response to Professor Meares and Kahan, 1998 U. Chi. L. Forum 215. Alschuler’s view strikes me as more balanced. Tough questions, though, and terrorism only makes them harder.

Posted by Brooks Holland on August 19, 2005 at 05:48 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (11) | TrackBack

Regrets, lawyers have a few...

Over at the ABA Journal's e-report, this link sets out some responses from lawyers to a question that might be of great interest to all the incoming first-year law students:

If you could go back and attend law school again, what opportunity do you wish you had pursued?  Or what seemed like a big deal at the time but, looking back on it, you would not pursue again?

This afternoon I gave these questions some thought and was pleased to discover that answers did not instantly jump to mind.   But, upon reflection, I regret being too focused on law firm jobs when I considered summer and post-clerkship employment possibilities.   I have always felt I under-utilized my 1L summer by taking a job at a small firm where I was really a glorified paralegal and received little significant experience.  And, while clerking, I did not explore the government or public interest opportunities that might have been available; I simply took for granted that I would return to the large NYC firm where I spent my 2L summer.

Of course, with loans to pay and other economic constraints, the almighty dollar (justifiably) played a role in my perspective and approach to employment opportunities.  And, knowing I wanted to teach, I (rightly) believed the big firm path was a good means to that end.  Nevertheless, my own (small) regret now finds expression in my advice to students to have a dynamic perspective on, and flexible approach to, their employment goals.

Others?

Posted by Douglas A. Berman on August 19, 2005 at 05:45 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Testimonial? Hopefully the Supremes Will Say Soon

Richard Friedman of Michigan Law School notes on his Confrontation Blog that he and recent Supreme Court champ Jeff Fisher (the guy who won both Crawford and Blakely) have filed petitions for cert in two cases that address the scope of "testimonial" statements under Crawford. Rich's blog post links to the two briefs.

The Supreme Court responded with appropriate swiftness to the serious uncertainty that Blakely generated about the federal sentencing guidelines. The Court genuinely needs to respond soon to the equally serious uncertainty that Crawford's testimonial concept has injected into criminal trial practice. Indeed, the uncertainty from Crawford may have proved even more dramatic, as Crawford implicates long-standing practices in the state court system as well, and thus has resulted in divided rulings from both state and federal courts across the country. Just as Chief Justice Rehnquist worried in Crawford. It's about time the Court let everyone know the answer to this not-so-little mystery. Good luck Rich and Jeff!

In the meantime, in addition to reading Rich's very informative blog, interested parties should keep an eye out for an upcoming  issue of the Brooklyn Law Review devoted to Crawford. The issue results from a great conference held at Brooklyn Law School last February. You can read more about the conference and it participants, and even see video of the conference presentations, here.

Posted by Brooks Holland on August 19, 2005 at 12:25 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Who's Afraid of Being a Humanitarian Imperialist?

My colleague and friend Fernando Teson recently published a thought-provoking essay entitled Ending Tyranny in Iraq in the special 2005 issue of Ethics and Int'l Affairs that focused on ethics and the use of force after Iraq.  The article's goal, and it is accomplished deftly, is to undermine those arguments that deny that the invasion of Iraq was a humanitarian intervention.  Teson allows that one might plausibly criticize the Coalition's leaders for their motives, but he contends that their action -- the invasion of Iraq with the goal of regime change from Saddam to constitutional democracy -- was praiseworthy.  He reaches this conclusion by drawing on Mill's distinction between one's motive and one's intent, and separating one's critique of the act of invasion from the critique that may be made against the actors who authorized the invasion. 

Teson observes that various war critics said that the problem with the war is that the stated rationale was removing WMD and that the "ending tyranny" argument was selected as a post hoc rationale.  Teson in fact marshalls the evidence that the human rights angle was always articulated in conjunction with other goals the Coalition had in Iraqi regime change.  I think he is right, though he would concede (based on subsequent conversation) that the human rights rationale of the intervention was not deemed as a necessary or a sufficient rationale by those who embraced it when moving the country toward invasion.   

What's interesting is that  Teson argues that the invasion and replacement of Saddam (followed by democratic elections) can be justified as a humanitarian intervention even if the Coalition had stated different rationales for Iraq's liberation (including self-interested ones that encompassed suppressing a perceived threat to national security or securing access to oil) and had failed to articulate the humanitarian rationale at all.  In other words, he states that it is permissible to justify an action on the basis of a rationale that was not articulated by its advocates at the time the action was being contemplated and urged in the public sphere. 

"Why," he asks, "should the deficiencies of the rhetorical skills of politicians be dispositive?...  Suppose I rescue someone held hostage by a villian, and when asked to justify my action I say that I did it because I thought (unreasonably and mistakenly) that the villian was threatening my life.  My act of rescue is still justified, even if I failed to invoke the right reasons, and even if the reason I invoked did not justify my behavior." 

Thus, even though one might be critical toward the motives of the decisionmakers who authorized the invasion (and their actions taken to establish the bona fides of those motives, ie., making negligent or fraudulent intelligence assessments on WMD), Teson says one can still praise their act of ending Saddam's reign.  He goes further, stating that insofar as persons should be praised for rightful acts, then the Coalition leaders warrant praise for that righteous act, even if they warrant scorn for all the other bad actions and blunders that have since followed the invasion. 

This last argument I think is one of the more controversial moves in the paper, and at some level, it's an unnecessary one, because the Bushies did in fact advance the human rights rationale all along.  But to stick to Teson's hypo and accompanying analogy, I think it might fairly be said that the state is differently situated than the "wrong" rescuer, because the state has duties to its citizens that an individual does not; it might make sense to distinguish intent and motive when we are applying the criminal law (liability) and then assessing sentences (good motives get lighter sentences according to the conventional wisdom).  But that distinction might not make sense in the context of assessing democratic state actors  If the state's leaders simply get to select justifications for their decisions ex post, then the leaders are not fulfilling their fiduciary role to its citizens; their retroactive justification stymies democratic politics.  In administrative law, this is generally frowned upon under the Chenery doctrine, which constrains what rationales an agency can invoke to defend its actions under judicial scrutiny; the agencies can only " defend their actions on the basis of reasons articulated prior to judicial review" because, as Hal Krent explains , the Chenery doctrine prevents "agencies from making policy outside of public scrutiny."   What Teson's argument overlooks is the countervailing moral consideration that should incline us against permitting the retroactive selection of rationales in the political context: namely, that democratic politicians must keep democratic faith. 

The deficiency of Teson's analogy is not decisive though -- precisely because the Bushies did in fact advance the human rights rationale all the way through (see Teson at p. 10 n. 26) -- albeit in more muted tones (I believe) than the other rationales advanced.   To my mind, the Paul Berman argument in favor of the invasion as a strike against tyranny remains true; but the attractiveness of the cause's justice has to be weighed against whether, at the time, it drained critical focus away from threats such as Al Qaida (and North Korea and Iran, among others.) Similarly, the attractiveness of the putative human rights victory has been undermined by the incompetence demonstrated in reconstruction efforts.   You don't get to call an intervention humanitarian by taking a regime from one tyrant and then making life worse for the "rescuees."

In this respect, it's possible that Teson, when he wrote the piece, was too sanguine about the "liberal constitution" that will govern Iraq.  It will surely be an improvement over the status quo ante bellum.  But, to focus on just one issue, women's rights are squelched in the emerging constitutional design, at least according to most reports, and if women are not free and equal in the new regime, then it is hard to give the invasion the imprimatur one would otherwise be tempted to confer on it.

It's a fascinating paper, though, and I especially enjoyed the development of the moral argument against reliance upon Security Council authorization.  In the same issue, Terry Nardin has a response to Teson, and Teson has a reply, at the end of which he accepts the charge that he is a "humanitarian imperalist."  Who else will join in his crusade? 

Worth reading -- especially in conjunction with NYU Prawf (and new father (mazel tov!)) Noah Feldman's TNR review essay of the Torture Papers available here.

Posted by Dan Markel on August 19, 2005 at 08:23 AM in Article Spotlight, Dan Markel, Law and Politics | Permalink | Comments (5) | TrackBack

Thursday, August 18, 2005

Holmes and Posner on the Natural Aristocrat

From today's reading (I am doing a session for first-years tomorrow on success in law school, and I am always drawn on such occasions to Holmes's exhortation in "The Profession of the Law"), this in a letter from Holmes to Alice Stopford Green: "Nature is an aristocrat or at least makes aristocrats, e.g. the cat."  No surprise that it comes from Posner's collection, The Essential Holmes.  Groupies of the Pos will recall his relationship with his own cat (although who owns whom is always a question in the minds of man and cat alike), amusingly recounted in the New Yorker article reprinted here:

"My cat doesn't like me," he says mournfully. "This cat, to whom I am slavishly devoted. She tolerates me, she's polite, but she clearly prefers Charlene. She regards me as a servant. I feed her, I brush her, I clean the kitty-litter box, I shower her with endearments-I've even started taking her to the vet to try to bond with her. Charlene says that I love Dinah more than anything human, but that is false." Posner has resigned himself to loving Dinah in the self-abasing tradition of courtly love, the object forever unattainable.

If my dear wife is reading this, take note: I still want a dog! -- even if Holmes and Posner themselves should stand in my way.  Aristocrats have their uses, to be sure -- if one is looking for a dilettantish wit, a subject of gossip, or someone to open a new supermarket.  Our own sleek, furry member of the aristocracy is pleasant enough company, although she is never silent and takes our being asleep as a personal affront.  But a man needs a best friend.   

Posted by Paul Horwitz on August 18, 2005 at 08:56 PM | Permalink | Comments (1) | TrackBack