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Friday, September 30, 2005

New Review

Despite the fact that I am on the Editorial Board of The Journal of Public Deliberation (http://services.bepress.com/jpd/), it took googling myself to find this new review of my book by OSU law professor Peter Shane (a major figure in the e-democracy movement): http://services.bepress.com/jpd/vol1/iss1/art10/. [Sorry for the inability to link--a Mac-related problem that happens when I am in New York]

He botched some of the details (seeing ambiguity in decision rules when I'm pretty sure I was clear about aggregative mechanisms; suggesting my use of Michelman was something less than fully self-conscious; failing to realize that I tried to make very clear that I envisioned my proposal to reform local democracy and direct democracy states before taking on national governmental reorganziation). But his substantive thrust is very useful and I find very little with which I would really disagree. Highly recommended.

Posted by Ethan Leib on September 30, 2005 at 07:05 PM | Permalink | Comments (0) | TrackBack

Make Mine Extra Crispy, Please

From a report on damage caused by the fires that have been plaguing my lovely part of the country in recent days:

"San Timoteo Canyon fire: 1,160 acres burned between Redlands and Moreno Valley in Riverside County; 50 percent contained; destroyed three coops at a ranch believed to have as many as 90,000 chickens; no homes threatened; cause undetermined."

Oh, the humanity!  Wait, make that "Oh, the chickenity!"

Posted by Paul Horwitz on September 30, 2005 at 12:39 PM in Odd World | Permalink | Comments (0) | TrackBack

A Sentence of Celibacy

This just in, via everyone's favorite high-quality news source, Matt Drudge:

No sex. That's part of a sentence imposed on a 17-old-girl by Texas state district judge Lauri Blake.

She's ordered the young drug offender not have sex as long as she is living with her parents and attending school, as a condition of her probation.

Are there constitutional objections here? Perhaps. Is this cruel and unusual punishment? (I can just see the jokes likely to come out of that question. If the ACLU raises such a claim, there will be a race-to-the-bottom by late-night comics, to see who'll be the first to quip "based on my high school experience, no sex at 17 is, alas, not at all unusual.")

Does the state have a legitimate interest here? How much of that interest, if any, comes from the fact that the case deals with a minor? (Could the judge sentence a 25-year-old to no sex?) On the other hand, doesn't the judge have the power to sentence someone to no sex by simply putting her in prison? Does the greater (ability to put in prison) include the lesser (no sex while on probation)?

Perhaps our crim law gurus can weigh in here. In any case, the defendant in the case should probably be counting her blessings. After all, at least she wasn't sentenced to church time. Now that would be cruel and unusual.

Posted by Kaimi Wenger on September 30, 2005 at 12:36 PM in Criminal Law, Kaimi Wenger | Permalink | Comments (4) | TrackBack

Compensation never truly compensates, but it might help at least a bit

In my recent paper explaining what I take to be the retributivist case against the death penalty, I argue that one of the reasons the state should forbear from executions -- as opposed to other punishments such as prison -- is that when the guillotine drops, the opportunity for the state to express its contrition to the erroneously executed is lost.  By contrast, when a state erroneously imprisons someone, it can at least make some amends, even if it cannot return the lost time spent in prison.  This story in the Arizona Daily Star illustrates that principle, but only barely, since the authorities who settled the case have refused to admit any wrongdoing.  (Hat tip to Jack at CrimProf Blog.)

It's a pity because an apology to a man who mistakenly spent more than a decade on death row is well warranted, not to mention good politics.  There should be no shame in admitting that we try to do the best job we can in sorting the guilty from the innocent and sometimes we make mistakes, for which we are sorry.  Rather, the shame is in not doing the best job we can within reasonable resource constraints, and failing to own up at least for that.

The city of Phoenix has agreed to pay $3 million to settle a lawsuit filed by a man who was twice wrongfully convicted of murder and sentenced to death, city officials said.   It's the second settlement Ray Krone, 48, has received this year from the government. In April, Maricopa County agreed to pay Krone $1.4 million in compensation. ...

In addition to mental anguish, Krone said he sued Arizona agencies for the physical pain and suffering he endured. Krone said he was stabbed, his arm was broken and he contracted hepatitis C while in Arizona prisons. Neither the city nor the county admitted wrongdoing by settling the lawsuit, lawyers said. Krone won't see all the $4.4 million from the lawsuit. He said some of the money will go to his parents, who spent more than $300,000 and mortgaged their home to pay for his defense. Krone said he also owes about $500,000 in attorney's fees.

Posted by Dan Markel on September 30, 2005 at 12:46 AM in Criminal Law, Dan Markel | Permalink | Comments (18) | TrackBack

Thursday, September 29, 2005

Designer Siblings

Loyal Texas reader and Rita survivor Ruchira Paul writes in about her book club's latest assignment: My Sister's Keeper by Jodi Picoult.  Here's her summary of the book:

The story is about a family with three children, two girls and a boy.  The
older girl develops a particularly aggressive form of leukemia early in her
childhood and needs a perfectly matched donor to provide her with life
saving cells, fluids and eventually organs, to stay healthy and alive.  The
parents successfully produce a second girl in vitro, with the help of
genetic engineering so she will be that perfect donor.  Things go according
to plan until the younger sister, at age 13, starts to reconsider her role
in the family as the repository of healthy tissue and body parts for her
older sister.  From here on, begins the extraordinary saga of the family's
tug of war with morals, ethics, legality and filial love.

Ruchira also provides the following two articles about real life instances where parents engineer another child to serve their ailing children's medical needs.

I suppose the standard reaction is to condemn this behavior.  But don't we bring children into the world (when we do so voluntarily) as instrumentalities even when we aren't hoping to use their organs and tissues?  Isn't at least part of the reason we reproduce and have children the satisfaction of our own needs?  Don't we always use our children to establish our legacies?  I suppose those who adopt can at least make the claim with a straight face that they want to raise children altruistically--but the rest of us, it seems to me, are largely doing it, at least in substantial part, for some instrumental reason having to do with our own happiness, our own legacy, or the promotion of our own communities of religion, culture, etc..  Admittedly, this kind of instrumentalism is different from the instrumentalism associated with actually violating the "bodily integrity" of our own children (though the techniques do not seem always to require children to go under the knife--umbilical cord cells are often used therapeutically).  But it isn't wholly clear just how different it is: Don't we give parents some latitude for corporeal punishment?  Don't we tend to allow parents to make medical decisions for their children?  I'm not sure I'm even convinced myself--but it is a thought-provoking issue that is more complicated than it appears at the surface. 

Posted by Ethan Leib on September 29, 2005 at 10:21 PM in Current Affairs | Permalink | Comments (7) | TrackBack

Google Print

I have been trying to stay on theme so far this week, but there are so many interesting things going on that I have to deviate today.  In particular on my mind tonight: the litigation between Google Print and the Author's Guild.

For those of you who haven't followed this one, the question is whether Google can build a searchable index that allows queries against a database of books that Google itself scans in. Google has already begun the scanning, and basically Google wants to scan books without the permission of the relevant copyright holders. Some authors have objected, arguing that unauthorized scanning is a copyright violation. Google appears ready to counter by saying that scanning for the purposes of the index is fair use.

Jack Balkin, Tim O'Reilly, Larry Lessig and many others have publicly weighed in on Google's side. But, for three reasons, I am not so sure.

First, to champion the fair use argument, Google needs to explain why it has to build its system without permission, rather than simply asking for permission from authors, copyright clearing houses, and the like. Jack Balkin's post suggests that Jack would happily give permission, and I believe him. But the question here is why other authors should be forced to do as Jack does. There are arguments along that line to be sure (insert your favorite story about coordination and transaction costs here) but the simple argument ("this is good for authors!") is not enough.

Second, none of the comments I have seen speak to the core concern I have: security. If Google makes a giant database with full scanned copies of millions of books, that database will be a target for hackers who want to grab those books for P2P and other forms of unauthorized distribution. Should Google be allowed to impose that risk on unwilling copyright holders? At a minimum, I would think that any fair use claim should be contingent on some minimum level of security. That is, if you are going to take my stuff without my permission, you have an obligation to protect it.

Third, I wonder if the many people supporting Google mean to support Google specifically or this sort of unauthorized use more generally. That is, I might myself be in favor of allowing the Google project. I like Google and could likely be convinced to trust Google to handle this project well. But legal rules rarely work that narrowly; and once this cat gets out of the bag, I fear the implications might be significant, and bad, and not yet fully thought through. For instance, if Google is allowed to do this, would I be allowed to make my own search engine where I scan in all books about Harry Potter and then index the content based on its legal themes? And if there are thousands of similar indexes out there, doesn't that at some point pose too great a security risk for copryight holders, who now will have to police and monitor and interact with a huge number of would-be unauthorized users?

Yes, yes .. I do hear the intuition that is motivating Jack, Larry, Tim, and Google, and I applaud it. I, too, want great indexes of books, and I, too, think books need some sort of powerful search engine if they are to keep up with the very searchable world of online databases, websites, and the like. But I think this fair use argument needs to be handled with extreme caution, and that there really are some serious reasons to pause before giving Google an unfettered right to scan.

Posted by Doug Lichtman on September 29, 2005 at 07:05 PM | Permalink | Comments (9) | TrackBack

Shining Happy People

I am not normally given to posting such pop-cultural items -- this is serious work we're doing here, folks.  But I can't resist passing on this link, from Defamer, to a cute project: someone reworked scenes from Kubrick's horror film "The Shining" and turned them into a trailer for a heart-warming family comedy/drama.  I don't know how many copyright laws were broken, so watch it while you can: in its use of language, in its clips, and especially in its use of "Solsbury Hill," it's a dead ringer for the trailers for "In Good Company," much of the Cameron Crowe oeuvre, and just about every other example of this genre of movie that has appeared on-screen in the last ten years.  Brilliant.

Posted by Paul Horwitz on September 29, 2005 at 02:52 PM in Information and Technology | Permalink | Comments (1) | TrackBack

Joshua Kurlantzick on Kelo

In this month's Harper's, Joshua Kurlantzick has an interesting perspective on Kelo for liberals complacent about the result.  In short, the thesis is that John Paul Stevens' opinion is a greater success for big business than it is a success for big government.  A nice article; do give it a read if you aren't sick of Kelo-related activities.

Posted by Ethan Leib on September 29, 2005 at 01:25 PM in Article Spotlight | Permalink | Comments (1) | TrackBack

Althouse on Art: Does She Need a Weatherman?

Let me add to Dan's comments about the momentary Althouse kerfuffle.  To be fair to her, she did subsequently make her views clearer on VC:

"My comment arose in a discussion of the Scorsese documentary on Bob Dylan, which shows how he did not fit in with the left wing folksingers who tried very hard to keep him in their fold and felt betrayed when he alienated himself from them. My observation is that he was, at heart, a great artist, and it was not possible to do what was needed to be a good lefty, which would require a strong focus on group goals and communal values. He certainly wasn't switching to right wing politics. He was getting out of politics.

I'm calling that right wing. It's certainly antithetical to left wing politics, which requires you to remain engaged and would require the artist to include politics in his art. The great artist sees that those requirements will drag him down. That's what I'm theorizing. Feel free to debate that and reject it if you want. All I'd like to ask is that you get your mind around what I'm trying to say before reflexively rejecting it. I'm not surprised that lefty bloggers and commenters can't do this. They've got to enforce the kind of values that freaked Bob Dylan out and made him want to disengage from their clutches."

Now, I'm usually not totally sympatico with some of Leiter's boundary-guarding and anti-interdisciplinarianism (I'm not picking a fight, mind you!  If it comes to that, Brian, let me just concede up front!), but it seems to me this is the kind of situation in which some of that stringency is called for.  The problem with Althouse's comment, even fairly read, is not that she's not making a potentially valid observation -- namely, that great artists are individualists.  (That comment is, I think, largely blind to the often communal nature of art itself, which regularly involves an artist invoking and building on tradition itself [viz., Dylan's wholesale absorption of countless other artists and styles] -- uneasily, a la Anxiety of Influence, but communally.  And it is blind to the extent to which much art is, visibly or invisibly, deeply collaborative and built on shared premises.  To paraphrase Larry Lessig, who was in turn drawing on Morris Cohen, Robert Hale, and other Legal Realists: "'Private' art is oxymoronic.")  But whether she's right or wrong, there's a colorable argument there.

What is, with respect, silly about all this is that she calls the great artist "right wing" by eviscerating any careful, reasonable definition of the term, or of the term "left wing," and substituting her own definitions.  Some "right wingers" are individualists, and some are far more communitarian in orientation.  Ditto with the left wing.  Some right wingers insist that everything is part of the political/cultural struggle, and others don't.  Ditto with the left.  Some folk singers feel betrayed by those who depart from adherence to tradition; so do some structural engineers, some poets, some biochemists, some conservatives, some lefties, etc.  Conservativism in that sense is endemic to lots of guilds, cultural groups, and other communities -- which, in this sense, might make Dylan anti-conservative!  (Although, given his close ties of fealty to Guthrie, Sonny Boy Williamson, and countless others, I think this too would be inaccurate.)  The problem is not Althouse's argument, although I think that argument is not all that strong; it's the careless use of terms that have a far richer and more complex meaning than she appears to credit in her argument.  To paraphrase Dylan himself, you may call him righty, and you may call him lefty; but why bother calling him either of those things if that's not really what you're talking about?         

Posted by Paul Horwitz on September 29, 2005 at 12:07 PM in Blogging | Permalink | Comments (9) | TrackBack

Chicawgblawg?

If they followed our lead, that's what they'd call it....

Comes now the news that the University of Chicago Law School faculty will, as of Monday, be launching their own blog.  Doug, Lior -- we give you the training and you don't even invite us to join the faculty as tenured professors?  That's gratitude for you!  You could at least send us some maroon-colored coffee mugs or gift shares in the Seminary Co-Op!

Seriously, this will be a blog to watch.  Chicago has a ridiculously superb and prolific faculty full of interesting ideas.  Here's hoping the Pos will divert at least some of us writing from his own blog to this new site, although even if he doesn't there'll still be an embarrassment of riches to choose from. 

One piece of advice: when your interest in (to quote the blog's introductory post) "nascent ideas" and "open, often lively conversation" does not win you a "wider audience," remember these words: "Rory Gilmore sex boat."  I, for one, would like to hear more from Posner on the oeuvre of Meg Ryan and the merits of "That Darn Cat." Or Tracey Meares could write about how shaming sanctions would provide a perverse incentive in criminal cases involving Li'l Kim...or Randy Picker could write a computer program to model the rise in social norms favoring hour-long sci-fi/horror shows on TV...or Adrian Vermeule could write about voting rules and faculty meetings, and demonstrate that the optimal rule involves stripping the faculty of their votes altogether....the possibilities for productive Chi-style writing on the topics that really engage the blogosphere are endless!  Welcome and best of luck to all.

Posted by Paul Horwitz on September 29, 2005 at 11:44 AM in Blogging | Permalink | Comments (4) | TrackBack

This is why I try to watch what I write, even in comments

In a post by Ann Althouse entitled "So what exactly did Scorsese do?", Ann comments (deep in the thread) that

To be a great artist is inherently right wing. A great artist like
Dylan or Picasso may have some superficial, naive, lefty things to
say, but underneath, where it counts, there is a strong individual,
taking responsibility for his place in the world and focusing on that.

May I protest ? It's not right wing to be pro-individual or pro-responsibility.  Indeed, it's part and parcel of classic and contemporary liberalism.  (And we center-leftists or center-centrists have to resist attempts to deny that.)  What Ann's comment overlooks, unfortunately, is that taking responsibility for one's place in the world also entails recognizing that one isn't simply dropped from the sky into adulthood and artistry, but rather that one is raised by family, community, and polity, and the institutions and norms thereof.  Does that mean sacrificing individuals or their liberties and rights to those institutions? No.  But it does require mindfulness of where one comes from and what obligations we owe as much as what liberties we should enjoy. 

What's more, great artists may choose to recognize that balance, if they are wise, but they are not required to be wise, and the greatness of their art does not depend on their wisdom, strictly speaking.  In a good and free society, there is also room for a great artist who lacks political consciousness, and perhaps room for one with wicked views too.  Either way, the suggestion that "to be a great artist is inherently right wing" is preposterous. 

Posted by Dan Markel on September 29, 2005 at 11:33 AM in Blogging | Permalink | Comments (0) | TrackBack

Katrina and the Law: Duke LJ Conference

In exchange for my shilling the space, the editors at the Duke Law Journal have promised extra consideration to PrawfsBlawg readers' contributions submitted to their Annual Administrative Law Conference on March 24, 2006.   The call for papers is here.  Tell 'em we sent you.

Posted by Dan Markel on September 29, 2005 at 11:26 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Conference at UMN

Kristin Hickman, who's a junior prawf at Minnesota wrote me the other day to remind me of an interesting forthcoming conference.  Given all the recent blogging we've had about Kelo, I thought some our readers might be interested in learning about related issues at this tax policy conference about "State Tax Incentives For Economic Development."  It will be at the U. of Minnesota Law School.  FYI, Kristin will be doing a stint with us later this semester.  Woohoo!

Update: Matt Bodie, a Hawfstraprawf, writes to tell me about a similar project there, a conference, entitled "Condemnation for Private Development? The Future of Economic Development Takings after the Kelo Case."  Clay Gillette from NYU will give the luncheon address, and attorneys involved in the case will also be commenting.  Here's the link for more info.

UPDATE: Kristin Hickman wrote me yesterday to inform me that the Supreme Court this week granted cert. in DaimlerChrysler v. Cuno and Wilkins v. Cuno, the cases around which the Minnesota conference revolves.  This should make the conference all the more interesting :)

Posted by Dan Markel on September 29, 2005 at 11:15 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

For Civ Pro Nuts

A law school mate of mine, Ben Spencer, has been a prawf at U. of Richmond for the last few years and, more recently, has started a blog for civ pro geeks afficionados: Federal Civil Practice Bulletin.  (Thanks to Thom Main for the tip.)

Posted by Dan Markel on September 29, 2005 at 11:10 AM in Blogging | Permalink | Comments (0) | TrackBack

Shooting Looters: A Look Back

Today's Times has a long piece that attempts to look at actual evidence of lawlessness in New Orleans following Katrina.    As one might expect, the story that emerges is complicated - there was clearly a serious breakdown in law and order, with some violent crime, and many more "crimes of opportunity."  On the whole, though, the picture is significantly less Hobbesian than it was at the time.  And, given that it appears that few looters ended up hurting actual people, and that reports of utter lawlessness were apparently fueled more by rumor than fact, I wonder if Prof. Kopel of the VC now - as I predicted - regrets calling for looters to be shot on sight

Posted by Dave Hoffman on September 29, 2005 at 09:07 AM in Current Affairs | Permalink | Comments (2) | TrackBack

Wednesday, September 28, 2005

Irreparable Benefits: Comments, Responses

I’m so grateful for the many helpful comments and emails I have received in response to my previous two posts, here and here. Today and tomorrow, I want to try to summarize some of those comments and then respond/reject/blush as necessary.  In specific, today let me focus on the several comments that in essence asked what it meant to say that a harm is irreparable, let alone a benefit.

According to the conventional analysis, preliminary relief is appropriate in cases where there is an on-going risk of irreparable harm. That is, where a party to litigation can show (1) that some harm will continue to accrue during the course of litigation and (2) that the harm will be difficult to undo ex post, it is generally considered appropriate for the relevant court to issue a remedy early in the litigation rather than waiting to craft a remedy only after the merits have been definitively adjudicated. The reason is that under these conditions there is a tradeoff between accuracy and effectiveness. Accuracy is maximized by waiting until all the evidence has been presented and all the arguments have been heard. But effectiveness is maximized by moving quickly, before some part of the outcome has been irreversibly predetermined.

Examples of irreparable harm range across a wide spectrum. Some harms are irreparable because there is no plausible compensation for the loss. The loss of freedom associated with unjust imprisonment might be an example along these lines, as might be the loss of companionship with a child or loved one. Other harms can be made whole in theory but are irreparable in a particular case because the relevant bad actor is judgment-proof. For example, the bad actor might lack the necessary funds, or he might have them but keep them beyond the reach of judicial process. Inconsolable losses and harms imposed by judgment-proof bad actors both present relatively clear examples of irreparable harm because in these situations it is obvious that a remedy offered after the harm has been incurred would be an empty gesture. In these scenarios, the only meaningful option is to avoid the relevant harm in the first place.

Less intuitive but arguably much more common examples of irreparable harm are examples where the relevant harm is irreparable only in the sense that it is difficult for a court to value. In every circuit but the Fifth, for example, copyright infringement is presumed to cause irreparable harm.  The explanation is not that cash would be inadequate compensation—although surely that is sometimes true—but instead that courts have little skill when it comes to estimating the size of the appropriate cash transfer. Bankruptcy is similarly considered to be an irreparable harm,  although here again in most cases there is some amount of cash that would fully soothe the wound. As I mentioned in my first post, speech harms typically follow this pattern, too;  and the same can be said for dozens of other harms that are today routinely deemed irreparable by the courts, for example restraints on employment.

At first blush it might seem surprising that a harm can be irreparable simply because it is difficult for a court to measure reliably. After all, in cases like these courts could simply guess at the correct amount of compensation. Sometimes the award would be too high. Sometimes the award would be too low. But if courts are just as likely to overestimate as they are to underestimate, on average the guesses would end up just right. That said, preliminary relief is probably better than unadorned guessing for two reasons.  First, when faced with uncertainty, courts tend to underestimate harm. This is because evidentiary rules are slanted against speculative injuries—plaintiffs typically bear the burden of proving any harm with specificity—and they need to be, or else the courts would be flooded by disingenuous claims. Second, even if court estimates were right on average, they would be wrong in particular cases, and that might matter tremendously. A plaintiff who can predict that his harm will be greater than the average harm, for example, would have an incentive to engage in costly self-help precautions. A plaintiff who can predict that his harm will be lesser than average, on the other hand, might exercise inefficiently little care. And, strategic behavior aside, many plaintiffs would end up with the wrong distributional outcomes. That might not be a tragedy, but preliminary relief offers another option, and the many examples given in the previous paragraph suggest that courts routinely take it.

My comments thus far focus on irreparable harm, but the basic arguments and examples transfer easily to irreparable benefits. For instance, if a person suffers irreparable harm when imprisoned unjustly, that person enjoys an irreparable benefit when wrongly allowed to walk free. If a court’s inability to enforce its judgments transforms a normal harm into an irreparable one, an inability to collect similarly renders irreparable an ill-gotten gain. If the harms associated with patent infringement are irreparable because it is hard to cash out those harms with precision, so, too, the benefits associated with patent infringement are irreparable because they are hard to accurately monetize. Indeed, no matter whether the issue is benefit or harm, the core characteristic to keep in mind is irreparability. The central question is whether there is some reason that the remedies available at the end of litigation might not suffice to counteract whatever changes might take place during the course of litigation. If so, the tradeoff between accuracy and efficacy emerges, and there is reason to make a slightly rushed decision rather than a more thorough but possibly less effective one.

Of course, when it comes to identifying irreparable consequences, attention to detail is essential. Return to my patent example. A patent holder suffers irreparable harm if infringement is allowed to continue during the course of litigation. The harm is irreparable because it is difficult for a court to play out the necessary counterfactual—namely, how the patent holder’s status would have changed had the infringement been stopped right away. That same patent holder likely does not suffer irreparable harm, however, if it can be shown that the patent has been licensed to a large number of other firms. The existence of those other licenses makes it easy for the court to value the patent, and thus eliminates the problem that originally made the harm seem irreparable.  An accused infringer, meanwhile, seems to enjoy an irreparable benefit if allowed to pursue research that actually turns out to infringe. However, in cases where that research ties directly to the sale of some product or service, it might not be irreparable. If the infringer earned $100 in profits thanks to the impermissible use, the court can even the ledger by taking away that tainted cash. Then again, if the product is an automobile and the infringement involves only a feature on the rearview mirror, valuation problems return because the court likely has no reliable way of disentangling the value of the infringement from the value of the rest of the car.

Posted by Doug Lichtman on September 28, 2005 at 08:57 PM | Permalink | Comments (4) | TrackBack

Controversy in Cyberspace

What occasions controversy and debate on a blog run by talented (present company excepted) young (ditto) legal scholars and read by a quite selective audience of legal scholars, lawyers, students and others?

  • A discussion of Judge Roberts and the Religious Test Clause, with an argument that it ought to be acceptable to treat religion with disrespect and copious references to Satanism: 1 comment.
  • A discussion of Gilmore Girls, which includes the deathless phrase "Rory Gilmore sex boat": 8 passionate comments (including one by me) and going strong.

OK.  Message received.  I promise that tomorrow's posts will include one on why fetuses are persons under the Fourteenth Amendment, and why it would not violate the Eighth Amendment to impose the death penalty in such cases (which will receive from zero to one comment), and one on why Locke, and not Jack, was the rational actor on last week's episode of Lost (for which we will need extra bandwidth to accommodate the extra comments).

COntro

Posted by Paul Horwitz on September 28, 2005 at 08:36 PM in Blogging | Permalink | Comments (0) | TrackBack

Roberts and a Man's Right to Choose an Abortion

I have recently come across this snippet from Roberts' confirmation hearings:

FEINSTEIN: In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender. Specifically, your brief stated, quote, unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender, end quote.

Here is the paragraph from the brief Roberts authored and argued:

There are more interests at stake in the abortion decision than those of the pregnant woman. The government has a legitimate interest in protecting both the unborn child and the health of the mother, Harris v. McRae, 448 U.S. at 324-325; Roe v. Wade, 410 U.S. 113, 162, 164-165 (1973); the parents of a pregnant minor have a valid interest in participating in their daughter's decision whether to carry her pregnancy to term, Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); and the father of the child has a personal interest in the pregnant woman's decision. Thus, unlike the condition of being pregnant, the "right" to have an abortion is not a fact that is specific to one gender. Instead, it is a legal right as to which the law can properly assign different interests to various parties.

As I read it, Roberts' response to Senator Feinstein did not have him backing off of this position in the Bray brief.  This may be bad news for a woman's right to choose.  But it may mean that my argument for a man's right to choose could be heard sympathetically by a Roberts Court.  Of course, Danforth--the case that effectively precludes such a right--is stare decisis.  And we know how deferential to precedent Roberts claims to be.

Posted by Ethan Leib on September 28, 2005 at 04:15 PM in Constitutional thoughts | Permalink | Comments (5) | TrackBack

Managing Casebook Prices

A week or so ago, E.Volokh discussed the problem of self-dealing in assigning casebooks.   He defended the practice of assigning one's own works against criticism by Ian Ayres.  At the time, I found Volokh's rebuttal persuasive enough not to read Ayres' essay.  I've now done so, and found to my surprise that Ayres raises a second, wholly distinct issue: casebooks are too expensive, and there is an easy way to bring prices down.   

[T]he pricing problems with textbooks are eerily analogous to those affecting prescription drugs. In both cases you have doctors (Ph.D.'s or M.D.'s) prescribing products. In neither case does the doctor pay for the product prescribed -- in many cases, he or she doesn't even know what it costs. And the clincher is that in both cases, the manufacturers sell the same product at substantially reduced prices abroad.

The analogy to prescription drugs suggests a possible solution. Perhaps universities can take a lesson from managed health care. Health maintenance organizations are often criticized for being too stingy, but let's not forget that they've played an important role in containing health care costs.

So just imagine what would happen if universities started to provide textbooks to their students as part of the tuition package. Of course tuition would have to rise, but for the first time universities would start caring about whether their professors were too extravagant in the selection of class materials.

This is a pretty radical  solution.  The immediate problem that comes to mind is academic freedom.  When universities "start caring" that professors are "too extravagant" in course materials, what will they do?  Presumably, they will establish caps on the price of materials to be assigned (at best) or mandating materials (at worse).  Either solution would seem require professors to shift the emphasis of their teaching, over the long run, to lectures/discussion supported by cheaply distributed information.  Careful, thoughtful, in-depth treatments (i.e., big books) will become less useful, while short, cheap sources  (i.e., this blog!) will be advantaged.

Do we need the managed care solution? Maybe not.

It seems to me that part of the reason that prices are continuing to rise  in the pharmaceutical industry is the social choice to encourage monopoly profit-taking through the patent laws.  Importantly, customers are prevented from choosing low cost generic alternatives to the brand names. 

By contrast, the analogue to generic drugs - used textbooks - appears to be a thriving market.  Many of the students in my contracts class are not paying list price, but are instead using copies from last year's class.   Publishers  (for many reasons) do not control the secondary market in books.  If it is true that "first edition" prices are on the rise, schools could do their students a good service by encouraging used-book markets (as Temple does) instead of engaging in a top-down price control system.

(Hat tip: ContractsProf Blog.)

Posted by Dave Hoffman on September 28, 2005 at 01:35 PM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Paging Daubert. . . . Daubert, are you in the building?

Scientists claim that MRIs can be 90% accurate as lie detectors.  How fast before the technology is tested in court?

Posted by Hillel Levin on September 28, 2005 at 12:53 PM in Hillel Levin | Permalink | Comments (3) | TrackBack

Conclusive Proof That The Blogosphere Is A Big Deal...

...and possible evidence that it has peaked:

        It is mentioned on tonight's episode of Gilmore Girls.  An excerpt:

Rory: "I can't believe I'm on the blogosphere."

Paris: "See for yourself.  Just Google "Rory Gilmore sex boat."

Posted by Paul Horwitz on September 28, 2005 at 01:13 AM in Blogging | Permalink | Comments (10) | TrackBack

Tuesday, September 27, 2005

A Religious Test Too Far

Let's imagine for a moment that President Bush this week nominates an ardent Satanist to replace Sandra Day O'Connor on the Supreme Court.  (Hey -- it could happen!  I once saw a young man at my local Catholic church wearing a jersey with "Satan" boldly lettered across the back.  Turns out he's a hockey player, but still. )  There is no doubt that the Senate could not bind the nominee by oath to renounce Satan and all his work.  But what if a Senator were uncomfortable with a devil-worshipper on the Court?  (I know folks on the left and right wings think this is already the case, but never mind that.)  What if the Senator were fine with the fact of the nominee's Satanism, but concerned that rooting for chaos is inconsistent with the rule of law; or worried that the Satanist would not honor his oath when being asked to judge the religious claims of Christians?  Would that Senator, if she cast a no vote, be acting unethically?  Unconstitutionally?

It seems to me the Becket Fund for Religious Liberty answers both these questions "yes."  The Fund recently sent a letter to the members of the Senate.  It is apparently "appalled by the misuse of religion some are urging on the United States Senate."  It argues that "a decision to disqualify a nominee based on his or her religion . . . violates Article VI [the Religious Test Clause, specifically], and thus the Senator's oath of office."  It accordingly threatens to bring an ethics complaint against any Senator "who uses religion as a disqualification for federal office."  (I had thought Senate rules did not permit outside parties to bring ethics complaints, which would make the threat especially empty.  Am I wrong on this?)

Now, I am a big fan of much of the Becket Fund's work, a good friend works there, and I have greatly respected the folks I've met there.  But I think they're simply wrong on this one.  As the Fund cannot help but acknowledge, the Religious Test Clause was a specific response to the long-standing practice, in England and the colonies, of expressly requiring individuals seeking public office to swear oaths asserting the nominees' affiliation with particular denominations or agreement with particular theological propositions.  That was the evil aimed at by the Test Clause, a fact underscored by its placement in Article VI as a corollary to the Oath Clause: "[government officers are to be] bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."  Folks today may think that's not much of an achievement, and that the clause ought to be read for more than that.  But it did achieve an important purpose, given the seriousness with which oaths were taken in this period; that this is no longer the case speaks to the degradation of the importance of oaths in the modern era, not the meaning of the clause.

The Fund acknowledges that no one is talking here -- ie., in the case of Judge Roberts or future nominees -- about "explicit religious tests."  But it says that "many [I'm sorry, Eugene, but this is a weasel word] are urging the United States Senate to apply a subtler form of religious test in the confirmation process."  Alas, the Fund does not spell out what that subtler form of religious test is; it refers later in the letter to "using fervent religious faith" as a disqualification, but I think it is fairly clear that the Fund is referring to more than this.  Rather, it seems the letter is referring to Senators who believe a nominee's adherence to religious doctrine might lead him to wrongly (by their lights) interpret the Constitution, or lead them to place religiously motivated ideology ahead of their judicial oath.  The problem is that, the "subtler" the form a "religious test" takes, the more it simply reduces to a Senator believing that a nominee's ideology, which could be religiously motivated but need not be, is inconsistent with service on the Court.  Senators are generally free to reject nominees for ideological reasons, and those ideological reasons surely include religiously motivated ideological reasons.  If you believe the Constitution forbids abortion, and that a nominee fiercely believes in the value of abortion and will interpret the Constitution to achieve abortion for all, it is not improper to reject that nominee -- even if their advocacy of abortion is religiously motivated. 

This is all a far cry from requiring an individual to swear an oath setting out particular religious views.  I agree with the Fund that some of the discussion that took place around the Roberts nomination betrayed a crude understanding of the intersection between law and religion, but that does not justify misreading the Religious Test Clause.      

Two further observations.  First, if the Fund believes "subtler" forms of religious tests might violate the Clause, it seems to me they ought to address on an equal basis other "subtle" forms of religious discrimination.  Nominees are asked in Senate disclosure forms to state their religion; does the Fund object to this question?  And what of the panoply of legislative acknowledgements of religion -- chaplains, invocations, and the like?  To be sure, the Supreme Court has said that these practices are historically well supported; but, having overleapt the original understanding of the Religious Test Clause in favor of sweeping reading of the Clause, the Fund is already in the realm of non-originalist reasoning and can hardly appeal to it elsewhere.  And what of litigation over teaching evolution or intelligent design, on an equal or unequal basis, in the public schools?  If the Fund believes that an otherwise acceptable vote can be rendered the stuff of an ethics complaint because of the motive of a Senator, does it believe that the federal courts in Establishment Clause cases may inquire into legislative motives, or that the first prong of Lemon v. Kurtzman ("the statute must have a secular legislative purpose") is unobjectionable?

Finally, there's an irony here.  The Fund says in its letter, "not every mention of religion is improper.  Religion, like ethnicity or race, is a natural part of one's background and may be referred to as naturally -- and as respectfully -- as those other things are."  Really, though, it moves perilously close to meaning that religion may be referred to publicly "only as respectfully as those other things are."  But this is ultimately the opposite of respect.  To genuinely respect religion, as we should, is to take it seriously -- as we should.  And to genuinely take it seriously may sometimes mean to debate it (or particular religious doctrines or views or arguments), to disagree with it (ditto), even to argue that a particular religious view is unworthy of respect.  Like the Becket Fund, I believe strongly that religion has a vital role to play in public discourse and debate and should not be excluded from the public square.  But to take this view seriously means that religious views -- not like ethnicity or race, but like ideology, politics, and other strongly held views -- is, for most purposes, entitled to be praised or condemned just as those other things are.    

Posted by Paul Horwitz on September 27, 2005 at 11:53 PM | Permalink | Comments (1) | TrackBack

Diversity and the Supreme Court

You may have missed this post by Russell Robinson if you've stopped checking the "Think Progress" blog written by former clerks to the Supreme Court.  Although it is reasonable not to check regularly because posting has been sparse these days, do read Russell's meditation on the new kind of diversity Bush may promote if he nominates any of the women currently on the short list.  If any of the women were confirmed, non-top ten law schools will be represented on the Court.

He suggests that this might put liberals in an awkward position: 

Although doing so may conflict with their ideological commitments, liberals might point to the nominees' lack of Ivy League credentials in order to question their competence. They may thus inadvertently reinscribe the general suspicion that women and people of color aren’t good enough.

Let's hope the liberals aren't this elitist and stupid.

Posted by Ethan Leib on September 27, 2005 at 08:50 PM in Current Affairs | Permalink | Comments (1) | TrackBack

When does constitutional dicta become law?

In its 2005 decision in Lingle v. Chevron, the Supreme Court authoritatively  discussed and appeared to resolve an issue that was neither essential nor particularly relevant to the issue on which it granted cert.  (As briefly and simply as possible, the issue in Lingle was the relationship between substantive due process and regulatory takings; the issue I'm interested in that the Court appeared to resolve is the precise reach of the heightened scrutiny for regulatory bargains developed by the Court in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994). The relevant parts of the decision appear in Part III of Justice O'Connor's Lingle majority and are not discussed in Justice Kennedy's brief concurrence.) 

The Court had expressed a similar conclusion, also in dicta, in a few recent decisions, but it had never come out as boldly and prominently with its conclusion.  What was especially surprising was the fact that the Lingle decision was 9-0, and that at least three justices (including Justice O'Connor, who wrote Lingle) had previously dissented from various prior cert. denials that had concerned petitions raising this very issue. In those dissents, the justices explicitly stated a proposition counter to the one they signed on to, as dicta, in Lingle.  Furthermore, ten years earlier the Court had vacated a judgment of the California Court of Appeal that was consistent with the Lingle dicta and remanded the case back to the state court, thereby setting in motion a chain of decisions in lower federal and state courts that is inconsistent with what the Court has now declared, by dicta, to be the law of the land.  Now obviously, the Court and individual justices are free to change their minds.  But in dicta?  Without a case before the Court that squarely raises the issue?

So my request, dear prawfsblawg readers and especially commenters, is for other, similar instances of this phenomenon of dicta, repeated over time and in an increasingly authoritative manner, potentially hardening into law -- a phenomenon that appears to me, in my relative jurisprudential ignorance, to be fairly odd.  What have the implications been?  For example, may those state courts that had earlier followed what they thought was the Court's preferred direction now change course, if they are so inclined? Are they required to do so, as a matter of federal constitutional law?  (Obviously, they can reaffirm their earlier decisions as a matter of state constitutional law -- and states typically have analogous takings clauses in their constitutions, that they often, though not always, see as coextensive with the federal constitution.)  On the other side, to what extent may litigants continue to make the argument that the Supreme Court's statements are merely dicta, now that  the dicta has been repeated multiple times and in a manner that is explicitly authoritative?

Posted by Mark Fenster on September 27, 2005 at 06:19 PM | Permalink | Comments (4) | TrackBack

Irreparable Benefits: An Example

Thanks to everyone who emailed or posted with comments on yesterday's first entry.  Tomorrow, I hope to join in on several of those threads and talk about the issues they raise.  Today, however, I had promised an example that might make my argument more concrete.

To that end, suppose that the plaintiff in a given case holds a patent on a chemical process shown to significantly reduce the rate of genetic mutation in a certain type of animal cell. The process at the moment has no specific medical application in humans, but the plaintiff believes that the process will ultimately mature into an important human therapy. The defendant, meanwhile, recently began work on a similar chemical process, also hoping in the end to find applications related to human ailments. The plaintiff’s legal allegation is that the defendant’s process infringes the patent and the defendant therefore should not be permitted to engage in further research without permission. The defendant’s response is that its research is permissible, either because its process does not fall within the scope of the patent’s claims or because the patent is invalid in light of the prior art.

If the patentee moves for preliminary relief,  the first hurdle will be to show that something irreparable is at stake. Patent harms are not literally irreparable—most patent-related injuries can be fully compensated by some ex post cash payment—but they are typically deemed irreparable because they are difficult for courts to value. I will say more about this argument later, but for now note that almost every “irreparable” harm is actually irreparable only in this limited sense. Speech harms are an obvious example. Limitations on speech are routinely characterized as harms for which there can be no adequate compensation.  However, a civil rights activist hoping to stage a peaceful demonstration on a particular Sunday would surely willingly trade that opportunity if compensated by the funding necessary to sponsor, say, ten demonstrations the following week, or, better yet, a mixture of demonstrations, public hearings, and other means through which his message might be heard and thoughtfully evaluated. The real problem with most speech harms is therefore not that after-the-fact cash remedies cannot make the relevant victim whole, but instead that courts cannot reliably estimate the size of the necessary cash payment. The same difficulty applies to most patent harms, and patent harms are for this reason today presumptively eligible for preliminary relief.

With irreparable harm shown, the next step in the analysis is to apply the three classic factors and therefore to consider: (1) the likelihood that the plaintiff’s patent is valid and infringed; (2) the irreparable harm that would be imposed on the defendant by a wrongful court order to halt its research; and (3) the irreparable harm that would be imposed on the plaintiff were the court to deny relief only to later rule that the patent was in fact valid and infringed. The first factor requires little explanation. If the plaintiff’s case is a slam-dunk, the injunction should issue immediately, regardless of the relative irreparable implications. Conversely, if the plaintiff’s allegations are preposterous, no injunction should issue, again regardless of the irreparable consequences. Both of these conclusions follow from the simple fact that preliminary relief is not meant to contradict the outcome on the merits. If the merits are clear, the court’s decision with respect to preliminary relief is also clear—at least in all but the most unusual circumstances.

Things are more interesting in cases where the merits are murky, because in those cases a court must confront the possibility that its ruling with respect to preliminary relief will ultimately turn out to be inconsistent with its final judgment on the merits. This is where the standard for preliminary relief does its heavy lifting. Start with the possibility that the court will refuse to issue the injunction at the preliminary stage but then, after a full hearing on the merits, conclude that the defendant’s research did in fact infringe. As the traditional analysis suggests, one cost associated with this errant denial is any irreparable harm that might be suffered by the patentee. This is a private cost suffered by the complaining patent holder, but it is also a social cost in that mistakes like this will over the long run dampen the ex ante incentive to pursue patent-eligible research, discourage patent holders from litigating even valid claims, and likely drive inventors to invest more heavily in costly self-help protections.

There is another cost associated with this errant refusal to enjoin, however, and that is the irreparable benefit that accrues to the infringer. This cost is one that the traditional analysis overlooks, yet—like the irreparable harm normally considered—it, too, has unintended private and social consequences. Undeserved irreversible gains skew the defendant’s incentives with respect to the question of whether to litigate or settle.  They also encourage the defendant to invest further in his research, a wasteful outcome in cases where that research will ultimately turn out to be impermissible. Most importantly, undeserved irreversible gains undermine the defendant’s incentive to “invent around” the patent rather than infringing it. This latter implication is of particular consequence given that the patent system is designed to encourage innovation not merely by rewarding patent holders for their accomplishments but also by forcing rivals to discover comparable, non-infringing substitutes for patented inventions.

Turn now to the opposite category of court error, namely an instance where the court issues an injunction at the preliminary stage but then, after a full hearing on the merits, concludes that the accused research was in fact permissible. The traditional analysis focuses exclusively on any irreparable harm imposed on the defendant. For example, the defendant might be forced to substitute an alternative chemical process for the disputed one, or the defendant might have to freeze its research project for the duration of the litigation. Again, to the extent that ex post remedies will suffice to undo the effects of these changes, the court can safely ignore them.  However, to the extent that these harms have lasting implications—private harms suffered by the defendant and societal harms associated with the unintentional disruption of research that the patent system meant to allow—the conventional approach to preliminary relief will rightly count them as reasons not to issue the injunction.

My point, predictable at this stage, is that similar private and social concerns arise with respect to the plaintiff’s wrongful but irreversible gains. An errant injunction could translate into several years of exclusive rights that the patent system did not intend to recognize. Maybe the implications of those bonus years can be undone by some accurate ex post financial penalty. Where valuation is a problem, however, this irreparable benefit is yet another cost associated with an errant decision to enjoin. It is a deviation from the intended ruling on the merits, and, like the irreparable harm that might be wrongly imposed on the defendant, it has distributional implications for the affected party and dynamic implications for society more generally.

With irreparable harm shown, the next step in the analysis is to apply the three classic factors and therefore to consider: (1) the likelihood that the plaintiff’s patent is valid and infringed; (2) the irreparable harm that would be imposed on the defendant by a wrongful court order to halt its research; and (3) the irreparable harm that would be imposed on the plaintiff were the court to deny relief only to later rule that the patent was in fact valid and infringed. The first factor requires little explanation. If the plaintiff’s case is a slam-dunk, the injunction should issue immediately, regardless of the relative irreparable implications. Conversely, if the plaintiff’s allegations are preposterous, no injunction should issue, again regardless of the irreparable consequences. Both of these conclusions follow from the simple fact that preliminary relief is not meant to contradict the outcome on the merits. If the merits are clear, the court’s decision with respect to preliminary relief is also clear—at least in all but the most unusual circumstances.

Things are more interesting in cases where the merits are murky, because in those cases a court must confront the possibility that its ruling with respect to preliminary relief will ultimately turn out to be inconsistent with its final judgment on the merits. This is where the standard for preliminary relief does its heavy lifting. Start with the possibility that the court will refuse to issue the injunction at the preliminary stage but then, after a full hearing on the merits, conclude that the defendant’s research did in fact infringe. As the traditional analysis suggests, one cost associated with this errant denial is any irreparable harm that might be suffered by the patentee. This is a private cost suffered by the complaining patent holder, but it is also a social cost in that mistakes like this will over the long run dampen the ex ante incentive to pursue patent-eligible research, discourage patent holders from litigating even valid claims, and likely drive inventors to invest more heavily in costly self-help protections.

There is another cost associated with this errant refusal to enjoin, however, and that is the irreparable benefit that accrues to the infringer. This cost is one that the traditional analysis overlooks, yet—like the irreparable harm normally considered—it, too, has unintended private and social consequences. Undeserved irreversible gains skew the defendant’s incentives with respect to the question of whether to litigate or settle.  They also encourage the defendant to invest further in his research, a wasteful outcome in cases where that research will ultimately turn out to be impermissible. Most importantly, undeserved irreversible gains undermine the defendant’s incentive to “invent around” the patent rather than infringing it. This latter implication is of particular consequence given that the patent system is designed to encourage innovation not merely by rewarding patent holders for their accomplishments but also by forcing rivals to discover comparable, non-infringing substitutes for patented inventions.

Turn now to the opposite category of court error, namely an instance where the court issues an injunction at the preliminary stage but then, after a full hearing on the merits, concludes that the accused research was in fact permissible. The traditional analysis focuses exclusively on any irreparable harm imposed on the defendant. For example, the defendant might be forced to substitute an alternative chemical process for the disputed one, or the defendant might have to freeze its research project for the duration of the litigation. Again, to the extent that ex post remedies will suffice to undo the effects of these changes, the court can safely ignore them.  However, to the extent that these harms have lasting implications—private harms suffered by the defendant and societal harms associated with the unintentional disruption of research that the patent system meant to allow—the conventional approach to preliminary relief will rightly count them as reasons not to issue the injunction.

My point, predictable at this stage, is that similar private and social concerns arise with respect to the plaintiff’s wrongful but irreversible gains. An errant injunction could translate into several years of exclusive rights that the patent system did not intend to recognize. Maybe the implications of those bonus years can be undone by some accurate ex post financial penalty. Where valuation is a problem, however, this irreparable benefit is yet another cost associated with an errant decision to enjoin. It is a deviation from the intended ruling on the merits, and, like the irreparable harm that might be wrongly imposed on the defendant, it has distributional implications for the affected party and dynamic implications for society more generally.

Naturally, there is much more to say on all of these topics. For instance, there are interactions among the various long-run incentives I consider above, and those interactions amplify some concerns but mitigate others.  Moreover, the concept of irreparability is actually significantly more complicated than I have thus far let on; some errors, for example, turn out to be irreversible when they manifest themselves as undeserved losses but fully reversible when they manifest themselves as unearned gains.  For now, however, I want to stake out only one basic proposition: when evaluating a motion for preliminary relief, any deviation from what will be the ultimate resolution on the merits is relevant, no matter whether that deviation is perceived to be a benefit or a harm. All that matters is that the deviation is unintended and irreversible.

Posted by Doug Lichtman on September 27, 2005 at 05:21 PM | Permalink | Comments (3) | TrackBack

Anna Nicole Goes to the Supreme Court

I don't have much to say about it, but it seemed blogworthy.

Posted by Hillel Levin on September 27, 2005 at 03:07 PM in Hillel Levin | Permalink | Comments (6) | TrackBack

Debate Club

Coinciding with this week's Scopes II trial in PA, the Legal Affairs Debate Club takes up the issue of the legality of teaching intelligent design in public schools this week.  Participants are Bekcwith and Laycock.  Looks promising.

Posted by Hillel Levin on September 27, 2005 at 11:50 AM in Hillel Levin | Permalink | Comments (5) | TrackBack

When Nuns Can't Fly

Nun2_1Ryan Singel writes about a fascinating story for Wired.com of a nun trapped on an airline passenger screening watch list:

Sister Glenn Anne McPhee is a busy woman.

As the U.S. Conference of Catholic Bishops' secretary for education, Sister McPhee oversees Catholic education in the United States, from nursery school through post-graduate. Her job includes working with the Department of Education, speaking frequently at conferences and scrutinizing religious textbooks to clear them with the teachings of the church.

For nine months in 2003 and 2004, Sister McPhee also took on the task of clearing her name from the government's no-fly list, an endeavor that proved fruitless until she called on a higher power, the White House.

"I got to the point I could hardly go to the airport, because I couldn't anticipate what would happen and I couldn't do anything," she said in an interview with Wired News. "I missed key addresses I was to give. I finally got to the point where I always checked my bag, because after I got through the police clearance, then they would put me through special security where they wand you from head to foot all over. They would dump out everything in your bag, then roll it into a ball and hand it back to you." . . . .

McPhee’s tale is revealed in Freedom of Information Act documents obtained by Marcia Hofmann of the Electronic Privacy Information Center.  These documents will be released in full later this week, and apparently, they contain numerous instances of complaints of citizens wrongly placed on the no fly and watch lists.

McPhee’s problems began in 2003 at BWI airport.  After her first encounter with being on the list, and having missed her flights as a result of a 3-hour delay while she was extensively searched, she “called a family connection who works at an airline and who had access to the watch lists provided by the government to the airlines.”

She learned that she

was being stopped because the list said that an Afghani man was using the last name McPhee as an alias. The list had no first name for him, and the intensive checks would continue until she cleared her name with the ombudsman at the Transportation Security Administration, according to this family connection.

McPhee then began trying to clear her name:

"I was now leaving three hours ahead, being at airports ahead of time, only to still miss planes. I was delayed up to five hours," McPhee said. . . .

McPhee said she called the TSA's complaint line and left numerous messages. Though the recording promised that someone would call her back in 72 hours, the TSA never called her back.

Call logs from TSA's call center acquired by EPIC have no notation of contact with McPhee until May 13, 2004. . . .

The matter finally got resolved when McPhee used her highest connections to get off the list:

Finally, in May 2004, word of Sister McPhee's crusade made its way up to the head of the U.S. Conference of Catholic Bishops, the Rev. Monsignor William P. Fay.

"(Fay) said, 'How are you doing your job?' and I said, 'Barely,'" McPhee said.

Fay then personally wrote to Karl Rove, the top political adviser to President Bush, who contacted then-Homeland Security chief Tom Ridge, who passed the task to a top Homeland Security lawyer.

McPhee said the lawyer immediately got the TSA to respond, and also gave her his cell-phone number in case she was ever stopped again. . . .

Actually, I misspoke when I said McPhee used her highest connections to get off the list.  Her highest connection, God, couldn’t get her off the list.  Only Karl Rove could.  What if you don’t have connections to Karl Rove?  You just have to pray . . . but as we learned, that won’t get you off the list.  So I guess you’re just eternally damned. 

Posted by Daniel Solove on September 27, 2005 at 02:57 AM in Daniel Solove, Information and Technology | Permalink | Comments (8) | TrackBack

Thoughts on Employment and a Non-Gun-Ownership Requirement

Another day, another workplace killing. Things aren't getting any better, are they?

Here's a question, perhaps a suggestion: Should companies, as a condition of employment, start requiring workers to sign an agreement of non-gun-ownership? This would require an employee to state that she does not own any guns, and that she will not purchase any guns during her employment. It seems that if an employer required an employee to agree to non-gun-ownership, the likelihood of a workplace killing by that employee would be lessened.

Such a change wouldn't altogther end workplace killings. There's the possibility that the employee would lie on her application, or would simply acquire a gun after being fired and use it to attack her workplace. On the other hand, it is all but certain that there is some population of unstable, disgruntled employees who own guns, and that for some of those employees, their easy access to currently-owned guns is an important enabling factor that facilitates a decision to transfer their anger into actual killing of their co-workers.

Would a requirement of non-gun-ownership be legal or enforceable? I'm not sure. (Do we have any employment law people here?) A while ago, Eugene Volokh blogged about a court upholding a ban on gun ownership by public housing residents -- apparently that kind of restriction on gun ownership is allowed. On the other hand, there is (at least in one state) a self-defense exception to the at-will employment doctrine.

If this kind of provision is legal, then perhaps it is something employers (and their insurers) should start looking into. Is anyone aware of employers who currently have such a policy?

Posted by Kaimi Wenger on September 27, 2005 at 01:16 AM in Current Affairs, Deliberation and voices, Kaimi Wenger | Permalink | Comments (49) | TrackBack

Monday, September 26, 2005

Kelo Debate

Will Baude recently live-blogged a debate on Kelo between professors Nicole Garnett and Thomas Merrill for the Yale Federalist Society. 

Although live-blogging has never really connected with me, Will does an admirable job.  The post is worth reading, as Garnett and Merrill cover some really intriguing ground.

Posted by Hillel Levin on September 26, 2005 at 05:41 PM in Hillel Levin | Permalink | Comments (0) | TrackBack

Irreparable Benefits

The concept of irreparable harm is likely familiar to most legal readers. An irreparable harm is a harm that cannot be meaningfully compensated by some ex post exchange of cash, goods, or services. I want to begin my visit here at PrawfsBlawg by asking whether the law should be thinking in parallel about the inverse concept – irreparable benefits which I will for now define to include benefits that, once enjoyed, cannot be meaningfully dislodged.  (Yes, yes, this is the subject of a current paper I’m playing with, so I’m very excited for feedback and criticisms and supportive examples and such.)

Consider, for instance, the standard for preliminary relief. In every circuit, a motion for preliminary relief is today evaluated in light of three main factors: (1) the likelihood that the requesting party will ultimately prevail on the merits; (2) the irreparable harm the requesting party will suffer if the injunction is wrongly denied; and (3) the irreparable harm the opposing party will suffer if the injunction wrongly issues. The idea is to account for and minimize irreversible court error. In a case where denial of the injunction would be irreversibly harmful and there is a real chance of wrongful denial, courts are more reluctant to deny. Conversely, if issuance poses the greater irreversible threat, courts are more reluctant to issue. The analysis is often cast in terms of a sliding scale: “the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side.”

This standard approach accounts for irreparable harms but neglects entirely irreparable benefits. That is hard to understand. If the goal is to minimize deviations from what will be the ultimate ruling on the merits, errant irreversible gains can be just as troubling as errant irreversible losses. Both can have lasting distributional implications, and both distort important incentives like the incentive to sue or settle. When an injunction wrongly issues, then, aren’t there actually two errors to count: the irreparable harm wrongfully imposed on the nonmoving party and the irreparable benefit mistakenly conferred on the moving party? Similarly, when an injunction is wrongly denied, aren’t there again two errors to fret: the irreparable harm wrongfully suffered by the moving party and the irreparable benefit inadvertently accorded the nonmoving party?

In my post tomorrow I’ll come back and talk through a specific example – a patent example, and the example that first got me puzzling about this – and hopefully through that be able to respond to some obvious criticisms like the worry that “irreparable benefits” is mere semantics or that this approach double-counts the same underlying wrong. But, for now, let me just thank Dan for inviting me, and all of you for letting me run some ideas by you over the next week or two.  Again, comments welcome, both here and via email at dgl at uchicago dot edu.

Posted by Doug Lichtman on September 26, 2005 at 04:57 PM | Permalink | Comments (20) | TrackBack

A new visitor

I'm pleased to announce that on this auspicious day we also have a new visitor with us for the next few weeks: Doug Lichtman, who teaches IP, communications law, and law and technology over at the University of Chicago.  Doug will be doing some experimental blogging, which I'll leave to him to explain. 

Welcome, Doug!

Posted by Dan Markel on September 26, 2005 at 04:20 PM in Housekeeping | Permalink | Comments (0) | TrackBack

Partnership and Design

As you can see, we are exploring some new designs here at PrawfsBlawg, essentially to accomodate our new partnership with Aspen Publishers.  Just to forewarn you, there's a high likelihood we will be changing some of the color scheme here, but this is our working beta version for now.  You should see that we have conceptually designed the two sidebars: the left sidebar has materials relating to the content of the blog, while the right sidebar includes information about the bloggers, current and past, as well as some of the sites with which we enjoy a parasitic relationship.

Aspen, many of you know, is one of the premier publishers of legal casebooks and related legal education materials, and we're glad to have their support as our exclusive supporter for the foreseeable future.  Fear not, we have secured editorial independence, and the fact of their sponsorship -- at least in principle -- shouldn't affect the content.  But who knows, if the payola is there...caveat lector.

Posted by Dan Markel on September 26, 2005 at 03:49 PM in Housekeeping | Permalink | TrackBack

Foreign Law Revisited: Is Private Law the Same?

Like Kelo, some subjects just won't die.  The debate about using foreign law in the interpretation of our domestic laws is one of them.  Another voice can be found in this new paper by John McGinnis.

I couldn't help revisiting the subject today because I am teaching Hadley v. Baxendale, a case Grant Gilmore has called "a fixed star in the jurisprudential firmament."  The case was decided by a mid-level appellate court in England but it supplies a rule widely followed in American contract law on the subject of consequential damages.  I'll spare you all the details.

A few things to note about the case:  Baxendale's counsel (who won the case) cited American treatises, American cases, and said to the panel: "We ought to pay all due homage in this country to the decisions of the American Courts upon this important subject, to which they appear to have given much careful consideration."  Moreover, one of the three judges made clear during oral argument that he found what we now call the Hadley rule persuasive at least in part because the French civil law had been following the rule for a hundred years.

I thought these tidbits were interesting in light of ongoing debates about the use of foreign sources and authorities in the construction and interpretation of domestic law.  To be sure, the argument is usually about constitutional law.  But I wonder if those who are sure that our public law must be disinfected from foreign legal sources feel the same way about our private law. 

Posted by Ethan Leib on September 26, 2005 at 03:40 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Now you are concerned about legalisms?

David Kopel (over at Volokh) was one of the very first to propose shooting the Katrina looters, even though such action would be plainly illegal.

Today he applauds a consent decree in which everyone agrees that it was illegal to confiscate guns in the aftermath of Katrina.

I guess the laws are worth upholding, except when they aren't.

Posted by Hillel Levin on September 26, 2005 at 10:01 AM in Hillel Levin | Permalink | Comments (0) | TrackBack

Scopes II

The first trial over a challenge to the introduction of "intelligent design" into the public school curriculum gets under way today in Harrisburg, PA.  This will be worth watching.

Posted by Hillel Levin on September 26, 2005 at 09:35 AM in Hillel Levin | Permalink | Comments (2) | TrackBack

Secure Flight: A Lesson in What Not to Do

Secureflight1The Secure Flight Working Group (formed at the request of TSA) just issued a scathing report about the Secure Flight program.  Perhaps this explains why the TSA recently announced it was scaling back Secure Flight.  The report’s major conclusion is that the Working Group wasn’t given adequate data to evaluate Secure Flight:

The Working Group received limited information about the technical architecture of Secure Flight and none about how software and hardware choices were made. We know very little about how data will be collected, transferred, analyzed, stored or deleted. Although we are charged with evaluating the privacy and security of the system, we saw no statements of privacy policies and procedures other than Privacy Act notices published in the Federal Register for Secure Flight testing. No data management plan either for the test phase or the program as implemented was provided or discussed.

The main problem with Secure Flight is that it is not transparent.  Our society is one of open government, public accountability, and oversight of government officials – not one of secret blacklists maintained in clandestine bureaucracies.  Increasingly, the facts coming out about Secure Flight demonstrate that the TSA is acting like a bureaucracy run amok.  The program seems to lack clear goals; it seems to lack much thought and consideration about how to address a number of very important problems and issues.  The Working Group report concludes:

Congress should prohibit live testing of Secure Flight until it receives . . . from the Secretary of the Department of Homeland Security . . . a written statement of the goals of Secure Flight signed by the Secretary of DHS that only can be changed on the Secretary’s order. Accompanying documentation should include: (1) a description of the technology, policy and processes in place to ensure that the system is only used to achieve the stated goals; (2) a schematic that describes exactly what data is collected, from what entities, and how it flows through the system; (3) rules that describe who has access to the data and under what circumstances; and (4) specific procedures for destruction of the data. There should also be an assurance that someone has been appointed with sufficient independence and power to ensure that the system development and subsequent use follow the documented procedures.

Posted by Daniel Solove on September 26, 2005 at 01:34 AM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

Junk Faxes Are Back: Thanks, Congress

Junkfax1Recent lawsuits and new FCC rules made sending junk faxes harder.  So Congress got into the action to help us receive more junk faxes.  As Chris Hoofnagle explains:

Junk faxes, unsolicited commercial facsimile messages, are on the rise again, despite the fact that they have been illegal to send since the enactment of the Telephone Consumer Protection Act of 1991. Why? Because Congress just pumped new life into the junk fax industry.

After the court decisions and new FCC rules, a coalition called the "Fax Ban Coalition" lobbied Congress to ease restrictions on junk faxes.  The result was that Congress

swiftly passed the Orwellian-named Junk Fax Prevention Act, which created an "established business relationship" rule for junk faxes. In effect, this means that any business that you call or visit can fax you, even if you don't give the business your fax number. The established business relationship exemption is perpetual, but requires that the business put an opt-out notice on the fax advertisement.

Gee, thanks Congress. 

Posted by Daniel Solove on September 26, 2005 at 01:18 AM in Daniel Solove, Information and Technology | Permalink | Comments (4) | TrackBack

Sunday, September 25, 2005

Mulroney Unleashed

The diminishing amount of non-premium material from Canadian newspapers, and distance and work, have had me paying less close attention to Canadian news lately.  Thankfully, today's NYT brings this delightful set of excerpts from a book of transcripts from interviews of a somewhat uncensored Brian Mulroney.  (OK, OK, Canadian news isn't everyone's cup of tea, if I may be beveragically correct about it; but there are at least a few of us, lurking Red-and-White Menaces, on this blog, so deal with it.)  The excerpts are mostly decidedly no credit to Mulroney -- unvarnished is fine, but self-inflating ("I led a revolution?"  Just to be clear here, the man is taking credit for the end of the Eastern Bloc) and self-pitying are unfortunate.  But I did like this quote, in which he talks about his disgust for Ottawa:

"This place is sick. They're all married to one another. They're shacked up with one another. Their wives are on the CBC payroll. It's just awful, the goddamned incest here. Ottawa is really a sick place. This is really a sick town. A sense of loyalty and friendship and mutual respect in some cases is nonexistent, and there's something in the air here that transforms people from supplicants to sinners overnight."

Now, this is not quite the definition of a gaffe -- a politician telling the truth in public.  Mulroney isn't in office, and the folks he's referring to are mostly members of the Liberal establishment, not the Conservatives.  (Not that there weren't lots of instances of Conservative incest.)  Doesn't mean he ain't right, though.

ron

Posted by Paul Horwitz on September 25, 2005 at 11:12 PM in Current Affairs | Permalink | Comments (1) | TrackBack

Saturday, September 24, 2005

The Nielsen Ratings: Just Who, Exactly, Participates?

Neilsen2_1Ann Althouse is upset -- a favorite TV show of hers has been cancelled.  One new fall TV show was just cancelled after just two episodes.  It is highly likely that the Nielsen ratings played a role in these tragic events.  The decisions about what entertainment we watch on TV are driven by the Nielsen ratings.  I have always wondered about the accuracy of the Nielsen ratings.  Many of the Nielsen information gathering techniques seem quite cumbersome, and I assume that the compensation for people’s efforts can’t be all that great.  From the Nielsen website:

What techniques do you use to collect viewing information?

Nielsen Media Research uses People Meters, set-tuning meters, paper diaries, and telephone interviews (called telephone coincidentals).

People Meter

The People Meter is an electronic metering system placed in randomly selected households – 5,000 households for nationwide audience measurement. The meter measures three things – the tuning station of the TV set (on, off, time), what channel/station is being tuned, and who is watching. The People Meter is used to produce household and persons audience estimates for broadcast and cable networks and nationally distributed barter-syndicated programs.

Who is watching television is measured by the "People" part of the meter. A fixed box is placed on or near the television, and each member of the household is assigned a personal viewing button (often, a remote clicker is also personalized). These personal buttons, allow Nielsen Media Research to determine "who" is watching which program.

Set-Tuning Meter

In 49 of the nation’s largest markets, an electronic metering system is used by Nielsen Media Research to provide set-tuning information on a daily basis. The TV-set-tuning information is collected from a sample of homes in these 49 markets (separate than the People Meter), and overnight household tuning ratings are reported on a daily basis for these local areas. This meter is placed onto the back of each television set in the home and monitors the tuning status of each TV set in the household.

Diary

Diary measurement is used to collect viewing information from sample homes in every television market in the United States. Each year we process approximately 1.6 million paper diaries from households across the country for the "sweeps" ratings periods. The standard report months – the "sweep" months – include November, February, May and July of each year.

The paper-viewing diaries are mailed out to randomly selected households in all 210 local markets in the U.S. Each household’s member in the diary sample is asked to write down what programs and channels they watch over the course of that one week.

So families must agree to have their TV watching monitored 24-7 (or to keep extensive diaries about it) and cannot tell anybody about this (Nielsen requires that those it monitors keep the fact confidential) -- all for a small amount of money.  Why would anybody want to do this?  Are the type of people who choose to do this really representative of the TV-watching population as a whole? 

Posted by Daniel Solove on September 24, 2005 at 07:15 PM in Culture, Daniel Solove, Information and Technology | Permalink | Comments (8) | TrackBack

New Orleans' Legal Community

Brian Leiter's report here on the tough expectations Tulane Law School has for its returning faculty post-Katrina was certainly sobering, and reminds those of us fortunate enough not to be hit by the disaster that life may never return to "normal" for many of our colleagues in New Orleans.

Now comes this Joseph Nocera column in the Times ("To be Better, New Orleans, Think Smaller", available only for a price) which offers an even more stark view.  Nocera spoke to Henry F. Owsley, a New Orleans native who works in NY as an I-Banker for the bankruptcy specialist Gordian Group.    According to Owsley:

New Orleans is a little like a bankrupt company . . . You have to think of it like a restructuring: what can be revived and what can't? 

Owsley, through Nocera, concludes that the "legal communities will largely disappear, and the universities, including Tulane, will shrink drastically as they lose both professors and students.  'The universities may eventually have to serve a largely local clientele for years to come' . . ."

Nocera, in essence, says that New Orleans partisans may find solace in a smaller, more manageable city - smaller tax revenues will mean that "local government is going to have to be run more efficiently," smaller classes will mean that the "school system could be good", and federal money will shore up basic housing stock and anti-flooding measures.  Some (including Owsley) recommend turning New Orleans into more of a gambling destination; others conclude that gambling is merely a "quick fix."

All in all, it is a sobering column.  I do not know if the empirical predictions about the diaspora of the legal community will be born out.  It would seem to me that the local bar will tend to remain clustered around its pillars: Tulane/Loyola; and the Federal Courthouse. The sooner these institutions reopen their doors and (especially) libraries, the faster the lawyers will return. 

To the extent that the legal community of New  Orleans is something that helps to drive the region's success, there may be reasons to reward those law firms that return to the area in force.  There is likely to be a large amount of legal work involved in the disbursement of funds from private and public sources in coming years.  I wonder if regulations that established a preference for the local bar for such work would be (a) wise; and (b) constitutional?

Posted by Dave Hoffman on September 24, 2005 at 06:25 PM in Current Affairs | Permalink | Comments (12) | TrackBack

Real ID Act Online Forum

There's an interesting discussion about the Real ID Act over at the MIT Online Forum.  (Hat tip: beSpacific)

Posted by Daniel Solove on September 24, 2005 at 05:35 PM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

A Pseudo-Intellectual Feast

For those of you who are putting together your Christmas/Hannukah/etc. shopping lists, or for those of you who (like me) are compulsive late-night Amazon purchasers, may I recommend The Complete New Yorker, a collection offering 80 years of The New Yorker, copied onto eight CDs, from its inception in 1925 through February 2005 (with annual supplements offered each year).  That's 4,109 issues, at a discounted cost on Amazon of $63.  It's really a fascinating archival history of the last 80 years, especially of America and American culture, albeit as seen through the lens of writers inhabiting that little island off the coast of America.

For lawyers and those interested in moments in American history, it offers a plethora of distractions.  To wit, based only on my stream-of-consciousness searches in the last day or so: a three-part profile of Felix Frankfurter dating from 1940 ("Some people claim . . . that although Frankfurter was hugely successful as a teacher, he didn't really teach law, he 'taught Frankfurter,' and Harvard let him get away with it."); a profile of A.A. Berle, Jr.; a report from the "I Am An American Day" ceremony in Central Park in 1944, at which Learned Hand delivered his Spirit of Liberty speech ("For me, writing anything is like having a baby"); a report from the early 70's on a reunion of Holmes clerks; a great Jeffrey Rosen piece on law and social norms scholarship at Chicago; Calvin Trillin's piece on HLS in the 80's, "Beirut on the Charles"; and so on. 

Then there are the other wonderful pieces: the famous Woolcott Gibbs profile of Henry Luce, publisher of Time and Life, written parodically in old-fashioned Time-speak ("Backward ran sentences until reeled the mind."); the uncollected J.D. Salinger stories, including "Hapworth 16, 1924," the last (but not best) word on the Glass family; early iterations of books by Truman Capote, John Hersey, Robert Caro; all the original Pauline Kael reviews; and then there are the ads, which are incredible.  My personal favorite: revisiting Elizabeth Wurtzel, back when she was an up-and-comer and not simply the pair of breasts that inspired a cinematic disaster, and her great review of Guns N' Roses' "Use Your Illusion" albums.  "[I]s Axl Rose a true paranoiac, or are his public tantrums and thumb-sucking bouts a deliberate play for attention?  [Time would answer that question in favor of the former thesis, I think.]  That this remains a question suggests that Guns N' Roses are the quintessential postmodern band -- they leave you suspecting that they just may be what they appear to be."  Excellent stuff.  

Posted by Paul Horwitz on September 24, 2005 at 04:08 PM in Books | Permalink | Comments (0) | TrackBack

Prawfsblawg hits the NY Times

A post from Prawfsblawg was referenced in the New York Times today at this link. Of course, our name was spelled incorrectly. But it is nice to reach this milestone (even if it won't get us much traffic).

Update:  The post was by Brooks Holland, to whom we owe our thanks for his guest stint, as well as to the incomparable Doug Berman, who both graced this site the last month or so with their insights and wit.  See you back here soon.

Posted by Ethan Leib on September 24, 2005 at 04:06 PM in Blogging | Permalink | Comments (2) | TrackBack

Friday, September 23, 2005

Scalia on Art: The Government Knows It When It Sees It

Here is a short piece describing a recent talk by Justice Scalia at Juilliard, suggesting that government, in its role as arts funder, may engage in content selection and therefore discrimination.  "The First Amendment has not repealed the ancient rule of life, that he who pays the piper calls the tune," Scalia is quoted as saying.  He adds, in language paraphrased by the writer, that if government does fund artwork, "it is entitled to have a say in the content, just like when it runs a school system."

No great disagreement here.  But this article lends itself to two thoughts:  1) To the extent the Solomon Amendment case turns ultimately on government's role as speaker and funder, it certainly suggests the orientation of Scalia's vote on this case.  2) What relevance should this position have for Justice Scalia in cases involving public funding of religious programs, or public funding of non-religious activities carried out by religious groups?  Does this suggest Justice Scalia believes it is constitutional to impose conditions on such groups -- for instance, that no money flowing to such a group be spent on anything that may contain religious content, or that a religious group receiving government funds may engage in x religious speech but not y religious speech?  This is not a gotcha post; commenters are welcome to discuss the ways in which Justice Scalia is or is not consistent in his views on this point.  But I think it's an interesting subject for musing and discussion. 

A

Posted by Paul Horwitz on September 23, 2005 at 04:40 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Gelernter's Amendment

Yale CS professor David Gelernter offers some thoughts on abortion in this LA Times editorial.   After offering a wild-eyed rabble-rousing trivial  tempered  critique of Roe  ("Make-a-Wish theory of jurisprudence"; "closing their eyes and wishing hard"; "Rube Goldberg democracy"), he turns to a more serious  policy proposal:

How can democracy reassert itself given American political reality? Congress could propose, and the nation could ratify, a two-part constitutional amendment.

Part one would legalize abortion with suitable restrictions. Part two would nullify Roe and reaffirm that only Americans and their elected representatives have the power to make law in this nation. All courts would be implicitly instructed by this slap-in-the-face clause to butt out of law-making.

If we were to take Gelernter seriously (for a moment, and ignoring the slur that the Justices aren't "Americans") what would "Part Two" look like? 

In the early part of the 20th century, progressives who feared the Lochnerizing court suggested an amendment that would require 7-2  supermajority votes by SCOTUS to overturn federal statutes (Learned Hand, whose biography by Gunther I am currently reading, suggested that the supermajority requirement be confined to 5th and 14th amendment DP decisions).  Would this requirement solve Gelernter's problem? 

Tough to say.  The answer turns on what he means when he says that only the legislature  can  "make law in this nation"? 

Posted by Dave Hoffman on September 23, 2005 at 11:12 AM in Constitutional thoughts | Permalink | Comments (5) | TrackBack

And so what if she did?

Some folks (including here at prawfs) seem awfully concerned with whether Justice Ginsburg ever favored lowering the age of consent to 12.

My response: So what if she did (or does)?

Don't get me wrong.  I'm as horrified as anyone else at the idea of legalizing sex with a 12 year old.

But why should anyone care about Justice Ginsburg's policy preferences on this question?  After all, there's been no hint that she would (never mind whether she possibly could) impose such a preference from the bench.  Indeed, the only evidence that she ever espoused such a view emerges from a piece of legislation she may once have supported--and is not, to my knowledge, reflected in any argument she ever made as an attorney arguing a case to judge, let alone as a judge herself.

Conservatives especially should applaud her restraint, for she evidently has no intent to legislate this from the bench.  Isn't that what conservatives always demand, judges who check their policy preferences when they put on the robes?  Recall that were Justice Thomas a legislator, he would vote against bans on homosexual sodomy; and yet the very same religious right that demands such bans just can't get enough of Thomas, because he understands the difference between a judge and a legislator.  These same people should give Ginsburg a medal for recognizing that it isn't her job to decide the age of consent, whatever her policy preferences are.  Instead, they just give her grief.

If you don't like her policy views on this question, don't vote for her for senator.  Luckily, she's not running.

Posted by Hillel Levin on September 23, 2005 at 10:54 AM in Hillel Levin | Permalink | Comments (14) | TrackBack

TSA for Tots and Scaling Back Secure Flight

Tsatoy1Now your kid (or you) can re-enact the excitement of airline screening!  Yes, the airline screening playset pictured here is real!  But unfortunately, the toy is a far cry from reality, since it doesn’t appear that the passenger comes with removable shoes.  And sadly, it doesn’t appear that the set comes with a No Fly list.  What kind of silly toy would dare to exclude the Secure Flight system? 

Speaking of Secure Flight, there has been a major development in this TSA program to screen airline passengers.  From the Wall St. Journal:

The TSA has been considering using commercial data for Secure Flight, but came under intense criticism from privacy advocates, the Government Accountability Office and others. In response, the agency has decided to launch the program without using commercial data, said TSA chief Kip Hawley. "There's no question it would be helpful, but it brings with it a lot of privacy concerns," Mr. Hawley said. . . .

Collecting full names and birth dates will reduce false matches by 60%, Justin Oberman, who runs the program, told Congress this summer. But to further increase accuracy, the TSA considered the commercial data, which could include information culled from marriage and birth certificates, credit-card records, court filings, newspaper clippings and other sources.

The TSA secretly tested this procedure without informing the public -- hiring a contractor that collected 100 million records -- which brought sharp rebukes from the GAO and privacy advocates. The agency apologized and reissued its privacy statement.

But it remains unclear what commercial data would be used for. Mr. Oberman suggested to a congressional committee that the data could be used to find people who aren't on the watch list -- members of "sleeper cells" that the FBI doesn't know about -- as well as to better match travelers to known names. "If we just rise and fall on the watch list, it's not adequate," he said in July.

From the beginning, the Secure Flight program has been something of a disaster.  Originally named CAPPS II, it was scrapped due to unclear goals and privacy problems.  TSA gave it a makeover, renamed it with the happier name of "Secure Flight," and made stronger assurances that privacy would be protected.  But once again, the TSA got into trouble by violating the Privacy Act in breaking its promise not to store data about consumers from commercial entities. 

Now Secure Flight, which was supposed to be the scaled back version of CAPPS II, is being scaled back.

But many questions still remain:  What gets a person on the No Fly list?  What can people do to get off the list?  How long will this take?  What mechanisms (if any) will exist to ensure that there is public accountability for the system? 

Hat tip: Secondary Screening

Posted by Daniel Solove on September 23, 2005 at 03:08 AM in Daniel Solove, Information and Technology | Permalink | Comments (5) | TrackBack

Thursday, September 22, 2005

Law schools and institutional design

The comments to a post from a few days ago led in a direction that interests me (and that was nascent in the original post): the variability of law school institutional structure, and the effect of any individual structure on the operation of a law school. Commentors and my own limited experience (at my home institution, from call-back interviews, and through discussions with friends at other schools) attest to fairly dramatic differences in decanal power and faculty governance and autonomy across schools and, I imagine, across time within schools.  On one end of the continuum is the "strong dean" model, in which the administration has control over at least the agenda, and perhaps even the final decisions, regarding the significant issues of long-term institutional management (appointments, tenure, major capital expenditure etc.). This model seems as though it would be fairly rare in its extreme form, and more likely to arise in a private law school (although the latter is pure conjecture), but I can imagine a version of this with a powerful dean who has strong input on every decision being not uncommon. On the other is the "weak dean" model in which the faculty, through institutionalized committees, controls all issues of long-term institutional management and only delegates to the administration issues relating to day-to-day operation. 

In the abstract, I see no necessary reason why any one form couldn't work, and work well, and I can imagine strong arguments in favor of each. The up-side of a great and powerful dean is that it frees faculty from governance and allows them to concentrate on research and teaching; but the down-side of a bad powerful dean, or of a competent one who doesn't favor policies that I do or who just doesn't like me, seems pretty stark.  Faculty governance can be great with a reasonable, cohesive faculty that has the ability to resolve short- and long-term issues rationally, if not optimally; but this is academia, kids, and it don't always work that way. 

These seem like fairly obvious issues of institutional design, but then academia and law schools are peculiar institutions to which democratic principles and/or Weberian rationality don't always apply. I'd be interested to see some comments, conjectures, and preferences expressed about the institutional design of law schools. It would also be interesting to hear from students and alumni about their perspectives and experiences in experiencing law school operation from the relative outside.

Posted by Mark Fenster on September 22, 2005 at 08:53 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Married in Massachusetts, Moved to Connecticut

I'd like to follow up on this post, wherein I discussed the Connecticut Attorney General's determination that Connecticut will recognize Vermont and California civil unions, but not Massachusetts same sex marriages.  His reasoning was that Connecticut's legislature clearly rejected same sex marriage, and therefore did not intend to recognize same sex marriages from other states.  I suggested that an equally plausible interpretation and application of Connecticut law and legislative intent would be to convert Massachusetts same sex marriages to civil unions at the Connecticut border.

Let me explain why I think my interpretation is not only equally plausible, but indeed preferable.  As I understand the Attorney General, Connecticut would allow a person married under Massachusetts law to move to Connecticut and "unionate" (whatever the proper verb is here) with someone else, since the Massachusetts same sex marriage has no legal implications in Connecticut.

I do not believe that this is consistent with the Connecticut legislature's intent.  Although the legislature did reject same sex marriage, it also unequivocally chose to respect and recognize strong marriage-like bonds between people of the same sex.  The most reasonable way to apply this "split the baby" approach to the "Married in Massachusetts, Moved to Connecticut" question would be to give Massachusetts marriages the same legal status as Vermont, California, and Connecticut civil unions.

Reminder: This discussion is not about the normative or constitutional questions surrounding same sex marriage.  Those discussions are for another day.

Posted by Hillel Levin on September 22, 2005 at 09:45 AM in Hillel Levin | Permalink | Comments (0) | TrackBack