Friday, March 30, 2007
Team Gey Doubles Its GoalLast week I blogged about Team Gey, FSU's joint student-faculty triathalon effort to raise money for Lou Gehrig's Disease, aka ALS. I'm happy to report that not only did over 40 people compete, but the enterprise raised almost $40,000 for ALS research, which was double the group's earlier goal, and which we hope will accelerate research for a cure for our ailing colleague, Steve Gey. Here's a pic of the sweaty crew:
Importantly, around the same time that Steve's accomplishments as teacher, scholar, and friend were recognized by the outpouring of support for Team Gey, he received an important honor in recognition of his outstanding contributions to science education and law. Indeed, as Ed Brayton of Science Blogs reports,
Steve Gey was set to receive the NCSE's Friend of Darwin award for his tireless service to the cause of protecting science education over the last 20 years. The NCSE board had voted unanimously to give him the award. They usually like to sneak up on the recipients of this award at conferences or gatherings and present it to them when they least expect it. Knowing that they were having a banquet after the triathlon, I figured that would be a great time to do it. Glenn Branch of the NCSE was kind enough to mail the award down there and my friend Barbara Leech, who helped organize the whole thing and ran in the triathlon, got to present it to him. Prof. Gey was very surprised and touched to be given the award and I know it meant a lot to Barbara to be able to make the presentation to someone she respects and admires so much. Just a great event for everyone involved.
If you're still interested in donating to this worthy cause, you can do so here.
SSRN's Barbados Group
If you have signed up for SSRN's email abstracting service, you received an intriguing dispatch earlier this month. The email was from SSRN co-founder Michael Jensen announcing a new SSRN abstracting journal. The journal is entitled, "Barbados Group for Development of a New Paradigm of Performance Research Paper Series." In the SSRN email announcement, Jensen stated:
This abstracting journal will post the work of the members of The Barbados Group, an international, self-selected group of scholars, consultants and practitioners whose intention is to create a New Paradigm of Performance, the working name for which is The Ontological Foundations of Performance. This new paradigm is based on the fundamental proposition that the performance of an individual, group or organization is a correlate of the way the world in which and on which that entity is performing "occurs" for that entity. Our new paradigm also offers access to this "occurring" through a specific use of a distinct aspect of language.
According to the announcement, the Group's work will establish "a new paradigm" that brings "a new understanding of the source of action that provides powerful access to elevating individual, group and organizational performance." In providing the outlines of this new paradigm, Jensen stated: "The foundations of the new paradigm utilize the perspectives provided by the disciplines of neuroscience, complex adaptive systems science, rhetoric, and philosophy." The Group's fourteen members have fascinatingly diverse backgrounds: there are a number of CEOs from consulting and educational firms; business school professors; a philosophy professor; and a senior astrophysics educator.
How did this Group come about? I asked Professor Jensen about this, and he said:
The group came together because in one way or another we found we were interested in (what I call) the ontological foundations of human behavior and performance. None of us knew us all, but we collected together and have been meeting for almost 4 years now, over the phone about every month or so and in person about twice a year. Our first meeting was in Barbados, so therefore the name. Landmark Education has provided financial support for expenses.
The Barbados Group Abstracting Journal is available here. Thus far there are twelve papers up, including A New Model of Leadership by Jensen and Allan Scherr of ALS Consulting. Some of the papers are .pdf files of PowerPoint slides. [As a side note, it is interesting to note SSRN's experimentation on this. As the SSRN abstracts of these slide files note: "SSRN is experimenting with enabling the distribution of different types of files: slides, spreadsheets, video, etc. This is the third upload of a pdf file of Powerpoint slides. We are interested in our users desires to distribute files that go beyond word processing text files. You can communicate with me [Michael Jensen] on these issues via my email address below."]
Although the Barbados group is self-selected, Jensen encourages our readers to send drafts to him for possible inclusion in the journal. From my vantage, this new research does not appear to draw on legal research. However, there are certainly interdisciplinary applications. One Barbados paper which is still in PowerPoint stage but which I look forward to reading is Jensen's The Puzzling State of Low-Integrity Relations Between Managers and Capital Markets.
Part 6 of History of Infield Fly Rule
PART 6: THE ENLIGHTENMENT
by Tony D’Amato
Lefty Leibniz, hotshot reliever for the Hanover Huns, famously proclaimed after chug-a-lugging seven straight steins of Erfahrung Extra-gewichtig Pilsner in a local tavern that this was the best of all possible worlds. Some time later he was brought in from the bullpen to face the Paris Polysémiques. It was the bottom of the ninth, the score was tied, there was one out, and the Sémics had the bases loaded with Denny "the Dip" Diderot hugging third, "Jay-Jay" Rousseau cheating off second, and "the Baron" Montesquieu hanging a wide lead off first. Tensions reached the boiling point. The batter, Voltaire, muttered curses at Leibniz in pidgin French. Leibniz shrugged them off, pumped, shook, and heaved. Voltaire swung for the seats but only managed to pop the ball up high over the mound. The umpire was yelling something as Leibniz allowed the ball to bounce, then deftly flipped it to the third baseman who sidearmed it to second, apparently executing a double play. The umpire yelled "Infield fly--one out only." "What do you mean?" Leibniz yelled back. "Can't you count up to two?" Meanwhile Diderot took advantage of the distraction to run home, scoring the winning run. The ebullient crowd burst the barricades. Leibniz threw a tempestuous tantrum, screaming that the Infield Fly Rule was the single most idiotic thing in the entire world except his colleague Spinny Spinoza.
Making his way through the melée, Voltaire approached Leibniz and asked whether he would prefer an alternative world that was exactly like the present one except without an Infield Fly Rule. Leibniz immediately realized that if he said yes, he would be admitting that the present world is not the best of all possible worlds. Immediately he switched to his second argumtative defense: shaking his fists and cursing Voltaire in exceptionally low German.
Later, rejoicing over the victory in the clubhouse, Voltaire recounted to Diderot what he had said to Leibniz. Diderot said excitedly:
“Your interpolation defeats absolutely the claim of Leibniz that our world is tops of all possible worlds, and to boot by his own suspenders. In consequence the rule of the infield fly has this day destructed this imposter in the baseball as well as in the logic. Name of a name! It is incroyable that I will not include this item in the encyclopedia during which I am developing.”
But by the next morning, Diderot forgot his promise to Voltaire. Thus, a major counterfactual disproof was left out of what was to become the world's most famous encyclopedia. It is exhumed here for the very first time.
Thursday, March 29, 2007
"Newt's got the sexual mores of a billy goat."
Last October the good Professor Bainbridge announced that he was leaving the world of political blogging behind. As he said at the time (former link here):
After three years of blogging, it's time to do a major rethink. With the blogging "market" increasingly crowded, the model of an eclectic, general interest blog is a less viable one. Perhaps more importantly, I'm just getting tired of the punditry style of blogging. . . . [A]s far as day-to-day blogging goes, I've pretty much decided to rebrand ProfessorBainbridge.com by repositioning it as what it started out to be; namely, a niche blog focused on business law and economics.
[Professor Bainbridge's] overhaul does mean that one of the crossover voices in the blawgosphere will go silent. And I wonder -- when the next Harriet Miers comes along, will he be able to ignore the issue? If so, the legal blogosphere has just lost some of its muscle.
The rethink did not go as planned, however, and ProfessorBainbridge.com remains a blog with corporate law and law and economics, as well as politics, Catholic church policy, wine, and cars. For example, yesterday's post about Fred Thompson's potential presidential campaign contains the quote used above.
I'm not sure how ProfessorBainbridge.com's readership has changed as a result of his various decisions, but I appreciate hearing his voice on these issues. He's staked out a unique position in the blawgosphere, and his voice is a valuable contribution. I don't always agree with him, but just because he is a coporate law guru doesn't mean his other opinions aren't useful, thoughtful, and entertaining.
It will be interesting to see what happens to blogs over the next 2-3 years. I have a feeling we are in for a revolution, once the next new "it" software application comes along. But established voices are established for a reason. I'll keep reading ProfessorBainbridge.com, even if I don't know the difference between an Oregon and a California Pinot Noir.
Whither Constitutional Commentary?
Constitutional Commentary has been housed at the University of Minnesota for some time. It stayed there even when Frickey and Farber left for Boalt. But now Jim Chen and Michael Stokes Paulsen are leaving the school too. Will Constitutional Commentary remain there? Under whose direction? Inquiring minds want to know.
Opinio Juris Online Symposium
FYI: Opinio Juris today launched its inaugural on-line symposium on “Challenges to Public International Law.” Papers are by junior scholars, with commentary by senior scholars. The discussant comments and replies will be posted later today. There will also be “open comment threads” so that any of OJ's readers can weigh-in with their own comments on any of the papers. The introductory post (with links to the papers/discussions) can be found here.
Our participants (and paper topics) are:
Jacob Cogan, Assistant Professor, University of Cincinnati Law School
Non-Compliance and the International Rule of Law
Commentator: Joost Pauwelyn , Professor of Law and Director of JD/LLM program at Duke Law School
Gregory Gordon, Assistant Professor of Law, University of North Dakota Law School
Toward an International Criminal Procedure: Due Process Aspirations and Limitations
Commentator: Mark Drumbl , Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee Law School.
Vik Kanwar, JSD candidate, NYU, visiting fellow, Loyola New Orleans Law School
The Legislator of Last Resort: Security Council’s Emerging Role in WMD Proliferation Crises
Commentator: Sean Murphy, Professor of Law, George Washington University Law School
Eugene Kontorovich, Visiting Professor, Northwestern University Law School
Ineffecient Customs in International Law
Commentator: Andrew Guzman, Professor of Law, UC Berkeley, Boalt Hall
And you can access Opinio Juris in general at: http://www.opiniojuris.org
The End of the Electoral College is Nearer
Maryland is poised to become the first state to agree to bypass the electoral college and effectively elect U.S. presidents by national popular vote under legislation moving briskly toward the desk of Gov. Martin O'Malley (D).
But the bill comes with a big caveat: It would not take effect until enough other states agree to do the same. "It's a long way from home," said Senate President Thomas Mike V. Miller Jr. (D-Calvert). "I don't know if it will happen in my lifetime."
The bill, which the Senate approved 29 to 17 yesterday, would award the state's 10 electoral votes to the presidential candidate who wins the most votes nationwide -- not statewide. A similar bill was approved yesterday by a House committee and is expected to come before the full chamber today, and O'Malley signaled his backing.
Supporters of the measure, being championed by a national nonprofit group, say deciding elections by popular vote would give candidates reason to campaign nationwide and not concentrate their efforts in "battleground" states, such as Florida and Ohio, that have dominated recent elections.
Part V of the History of the Infield Fly Rule
PART 5: THE AGE OF RELIGION
by Tony D’Amato
According to recent computerized compilations of medieval box scores, the E.R.A. (earned run average) of medieval pitchers was surprisingly low. This fact has figured prominently in the oft-heard theory that the balls used in the Middle Ages were not as "lively" as they are today. Manufacturers, however, insist that the baseball has not changed one iota since its standardization in the early Olympics.
It should come as no surprise that the most important contribution to the Infield Fly Rule made in the Age of Religion was authored by its most imposing figure, St. Thomas Aquinas. He might never have seen a baseball game were it not for an invitation he received from Pope Urban IV, who was traveling to Paris to root for the visiting team, the Papal Bulls. Aquinas was a quick study, and by the top of the sixth he had learned the rules of baseball. Or so he thought. The batter for the Bulls lifted a pop fly, and the umpire immediately yelled "Infield fly! Yer out!" Aquinas had counted on a sure double play. From his diary we learn that he said, "Urban, what manner of abomination is this?" "Tom, my son," the Pope replied, "it is a rare rule of baseball. Aristotle speaks of it."
After a few months of study, Aquinas concluded self-referentially that he could not attack Aristotle without jeopardizing the entire edifice of natural law upon which the Church had been justifying itself through his own efforts. Then one day a shaft of golden sunlight came through the window and fell upon his brow. "Aha!" he exclaimed presumably.
Aquinas had realized that the Infield Fly Rule was the work of devilish pragmatism, concocted to perpetuate this morally pointless mind-numbing sport. Satan, with consummate ad hocery, had invented the Infield Fly Rule in utter disdain of all relevant theories. Therefore no theory could now be cobbled together that would defeat the King of Darkness. Aquinas resolved to fight pragmatism with pragmatism. Recalling the game he had witnessed, it had been a left-handed pitcher who threw the ball that was popped up. Using rapid mental extrapolation in an age even before sampling was invented, Aquinas concluded that infield flies only occur when the pitcher is left-handed. Since the Latin term for the left hand is "sinister," and inasmuch as the Church traditionally considered the left hand diabolical, it followed conclusively that all left-handed pitchers were agents of the devil. Aquinas posted a "finding" (Dominus prohibitum) on the church bulletin board banishing left-handed pitchers from the game of baseball. In one bold stroke he had purified the game as well as rendering the Infield Fly Rule inoperative.
For the next century or two, left-handed ballplayers were not allowed to pitch. On those occasions when a right-handed pitcher pitched into an infield fly, he was branded a "closet lefty" and taken out of the game. But over time there came a Reformation: the Aquinan rule was modified to disallow left-handed pitchers only when there were runners on first and second and fewer than two outs. The rule was further chipped away in an oft-shepherdized game (many fans in those days brought their sheep with them) in which the left-handed pitcher was taken out but all the available relief pitchers were left-handed. A dispensation was allowed in that situation for the relief pitcher, provided that he confessed to a venial sin within three days. In turn, this latter provision was dropped when the abrasively atheistic Mongolian Hordes came into town. Following eleven straight humiliating losses to the Hordes, the Catholic teams banded together in a nationwide protest, claiming that they were being discriminated against on account of their majoritarian beliefs. As a result the Aquinan rule was only honored in the breach (in the dugout) until it was eventually forgotten. Nihil Obscura (“not my problem”).
Wednesday, March 28, 2007
For years, I obsessed about my hair. Not about how long it should be. Or what color. Or whether to have bangs or not. But whether to wear it up or down when I taught.
Let me explain. New prawfs face lots of high-stakes decisions when it comes to structuring the classroom environment. What book should I use? Should I cold-call students? Use first or last names? Power-point? Jeans or suits? Women (and perhaps men) face an additional decision: how to wear our hair when teaching.
In my first three years, I never ever ever wore my hair down when I taught. Instead, I generally wore it pulled back in a low, neat ponytail. I associated wearing my hair pulled back with being older, more authoritative, and less sexy, and wearing my hair down with being younger, more carefree, and more "girly." As a young female prawf, I wanted my students, male and female alike, to view me as a professor and not a "girl their age." I never thought twice about my conclusion until Christine Hurt asked me incredulously if I "thought I looked more grown-up in a ponytail?"
Many cultures have norms concerning how women should wear their hair depending on age and marital status, so I don't think I'm completely crazy to ponder the hair up/hair down decision. On the other hand, I decided to test Christine's theory and start wearing my hair down occasionally to class. So far, my students still seem to respect me (even after showing clips of William Shatner singing).
Sigh. If only I had the Starfleet's hairstylist to help ...
Part IV of History of Infield Fly Rule
The Dark Ages
by Tony D’Amato
We skip over the Roman period which was only noteworthy for two things: the failure of the Roman sports announcers to figure out whether to call the game in the accusative or dative, and the record achieved by DiMaggius who hit safely in LV straight games in the Colosseum.
Baseball went into relative decline during the Dark Ages due to a shortage of playing time. Numerous wooden mechanical pitching machines that had been used in batting practice were requisitioned for pitching tar at castle walls. Nevertheless, this dull era produced one bright moment: the invention of the balk. Under this new rule, if the pitcher balks, the runner on first is awarded second base. Then, according to custom, the runner takes it home and carefully mounts it on his living room wall.
Supreme Court Yesterday by Aaron Streett
Greetings, sportsfans! Just two opinions yesterday, as the Court’s glacial opinion-writing pace continues. In one, the Court restricted qui tam suits under the False Claims Act; in the other, it resolved an intramural squabble between Guam’s elected officials. Needless to say, we’re still waiting for the good stuff. Given the Court’s backlog, the 3-argument-a-day April schedule, and the Gitmo residents seeking an expedited hearing this Term, the Justices will have to do one heckuva job to get all of their opinions out by July 4. Let’s recap the action.
Rockwell International Corp. v. United States, 05-1272
Rockwell’s engineers came up with a creative way to dispose of toxic runoff from the nuclear weapons plant it operated for the U.S. government. They just mixed the toxic pond sludge with concrete, and voila, you have “pondcrete”—the low-cost building material for the 21st century. One of Rockwell’s engineers, James Stone, predicted that the mutant blocks would disintegrate, causing massive contamination. After Stone was fired, he leaked information to the press, and an FBI investigation and public outcry ensued. He later filed suit under the False Claims Act, alleging that Rockwell committed 26 environmental frauds on the government, only one of which involved the concrete from the black lagoon.
The False Claims Act allows such qui tam suits, whereby an individual (the relator) sues a fraudulent government contractor, and then gets to split the damages with the feds. But the FCA eliminates jurisdiction over qui tam actions that are based upon “publicly disclosed allegations or transactions” of fraud, unless the relator was the “original source”—i.e., he had “independent knowledge of the information on which the allegations were based.” 31 U.S.C. § 3730(e)(4)(A)-(B). Stone claimed that he was an original source of the pondcrete claim and that this created jurisdiction over all of his claims.
Justice Scalia (writing for JGR, AMK, DHS, CT, and SAA) found no jurisdiction. First, interpreting “allegations” in § 3730(e)(4)(B), Scalia held that an original source must have direct knowledge of the information underlying the allegations in his own complaint, not the allegations that were publicly disclosed. The Court then held that the relevant complaint is the most recent amended complaint (or pretrial order), not the initial complaint. In other words, a relator cannot bootstrap jurisdiction by initially pleading one claim of which he had direct knowledge, and then later adding other claims culled from newspaper clippings. Judged by these standards, Stone was only arguably an original source for his pondcrete claim, not the other 25 claims. Justice Scalia concluded that Stone didn’t even have direct knowledge of that claim because the pondcrete didn’t begin disintegrating until after Stone left Rockwell. And Stone’s prediction was insufficient to give him direct knowledge because the pondcrete dissolved for reasons he did not anticipate.
Justice Stevens, joined by RBG, dissented. He would have held that “allegations” means the publicly disclosed allegations of fraud, and he accused the majority of ignoring the most natural meaning of the term. Stone would have been an original source under JPS’s test due to his press leak shortly after his firing. JPS also would have based FCA jurisdiction on the original complaint, citing the general rule that jurisdiction is ordinarily determined then, and chastising the majority for forcing courts to reassess their jurisdiction with every amended complaint.
Justice Breyer was recused, being too busy preparing for his game-show appearance.
Limtiaco v. Camacho, 06-116
Justice Thomas (+JGR, AS, AMK, SGB) wrote the Court’s 5-4 opinion, siding with Guam’s attorney general over its governor, the pugilist-turned-politician, Felix “Macho” Camacho. The question was whether Guam’s debt limitation is linked to the appraised valuation of property in Guam or the assessed valuation, a much lower number. The Guam Organic Act, 48 U.S.C. § 1423a, states that Guam may not incur debt in excess of 10% of the “aggregate tax valuation” of the property in Guam. CT held that this phrase naturally refers to assessed value, as that is the value typically used for tax purposes. He noted that most U.S. states tie debt limitations to assessed value, and their statutes use similar wording. If Congress wanted Guam to use appraised value, it would have said “appraised valuation” or just “valuation.”
DHS dissented. He saw the statutory language as indeterminate. Or in Souter-speak, “the congressional mind does not emerge from the words ‘tax valuation.’” Looking to the organic acts of other territories, he divined a congressional purpose to tie a territory’s ability to borrow to its ability to tax. Because market value is the only fixed measure of taxing ability, whereas assessed value can be easily manipulated, DHS would have held that appraised value was the proper interpretation. Justice Alito, showing dangerous ideological drift after just one year on the bench, sided with the Court’s tax-and-spend liberals in allowing Guam to run up its debt.
Stoneridge Investment v. Scientific Atlanta 06-43
A potential securities-law blockbuster. The Court held in Central Interstate Bank v. First Interstate Bank (1994), that the 1934 Securities Exchange Act does not create liability against aiders and abettors of securities fraud. Liability was limited to “primary” actors—the corporations that make the fraudulent statments—or secondary actors (banks, lawyers, etc.) that meet all of the requirements of primary actors. But might a company that engages in a sham transaction with a primary actor, knowing that the primary actor will use the transaction to fraudulently inflate revenues, be a primary actor itself, even if it does not make misstatements of its own? That’s the question in Stoneridge. There’s a very similar question in the massive Enron class action just decertified by the 5th Circuit and on its way up to the Court. There, the CA5 held that the investment banks that papered Enron’s infamous limited partnerships were not liable under the ’34 Act. Look for the Court to either consolidate the Enron case with Stoneridge for next Term, or at least hold Enron pending the decision in Stoneridge.
U.S. v. Williams, 06-694
This case involves the “pandering” provision of the Protect Act of 2003, which prohibits the promotion of child pornography on the Internet. The CA11 struck it down as vague and overbroad, claiming that it unconstitutionally criminalizes much non-commercial and non-inciteful speech about child pornography. For example, the court of appeals opined, a grandfather’s innocent email entitled “Good pics of kids in bed,” could be covered by the law.
Until next time (opinions tomorrow??), that’s
today’s yesterday's baseball.
Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. Any resemblance to actual persons, living or dead, is unintentional and purely coincidental. If you would like to subscribe to these updates please send an e-mail to firstname.lastname@example.org
Hasen on the Death of Bush v. Gore
Do take a look at Rick Hasen's new piece, The Untimely Death of Bush v. Gore, up on SSRN. It is a very helpful discussion of what could have been -- but what was not -- wrought from the equal protection rationale of the case, its self-conscious refusal to be precedent notwithstanding. Here's a taste:
Now, a little over six years later, Bush v. Gore is dead. The death did not
come in the usual way that Supreme Court cases die: through outright or sub
silentio reversal in a later case. Indeed, no Court opinion—majority, concurrence
or dissent—has cited the opinion since it was decided. But election law
developments in this relatively short time since Bush v. Gore show that
conservative federal circuit court judges so far have been able to block the
“lemonadization” of Bush v. Gore. Worse, the Supreme Court’s recent opinion in
Purcell v. Gonzales, allowing Arizona to implement (at least temporarily) its
controversial voter identification law, shows that the Court itself has not
understood the problems it caused with its Bush v. Gore opinion. The Court’s
decision to quickly issue an opinion in Purcell, the casual empiricism of its
unanimous opinion, and its discouraging of pre-election litigation all are
By stating Bush v. Gore is “dead,” I am not making the claim that the
Supreme Court will never rely on the case as precedent in an election
administration dispute. I mean instead that the promise of election reform
inspired by the case is now dead.
As Larry Solum would say in blue, Highly Recommended!
From the Annals of Promotion
The new Harvard Law Review issue is online. It features two excellent "Recent Cases." Also this piece by Dean Kagan, introducing a fascinating set of commentaries written by law professors on various cases decided by Richard Posner as a Seventh Circuit judge, in which she writes: "Case comments, as readers of all law reviews know, can be deadly affairs." [emphasis added]
I'm sure the authors of the "Recent Cases" published in the very same issue will send notes to Dean Kagan complimenting her on her thoughtful timing in saying so. My recommendation to them: don't say anything directly threatening, and disguise your handwriting -- letters cut out of fashion magazines and newspapers would be a traditional and tasteful way to go.
Seriously, it's an interesting issue. Nice piece in the Posner section by my former prof John Manning, and an interesting Note about original meaning and its limits. Enjoy.
Is copying from oneself without attribution a problem?
So I was doing a little research on the uses of presidential signing statements in statutory interpretation and came across this paragraph:
It is sometimes possible to extend the scope of the burden allocation strategy by analogical reasoning. The role of presidential signing statements in statutory interpretation, for example, might be determined by analogy to their prominent role in treaty interpretation. But whether the analogy is apposite will often be subject to legal and factual debate - the president's role in treaty formation differs importantly from his role in the legislative process - and the proper allocation of the burden will once again become as contestable as the underlying question.
That's from Adrian Vermeule's 2000 NYU L. Rev. article, "Interpretive Choice." 75 NYU L Rev 74, 122. I thought I had seen that before. Here's what appears by Adrian Vermeule in a 1999 article in the Univ. of Chi. L. Rev. article, "Interpretation, Empiricism, and the Closure Problem." 66 Univ. of Chi. L. Rev. 698, 706 n. 24:
Extending the scope of the burden allocation strategy by analogical reasoning is possible. The role of presidential signing statements in statutory interpretation, for example, might be determined by analogy to their (prominent) role in treaty interpretation. But the relevance of the analogy will often be subject to legal and factual debate--the president's role in treaty formation, for example, differs importantly from his role in the legislative process--and the proper allocation of the burden will once again become as contestable as the underlying question.
No attribution to the 1999 paragraph appears in connection with the paragraph published in 2000. Of course, all Vermeule did was copy himself without attribution -- hardly a serious academic crime. But is there something wrong with it at all? I'm not sure. To be fair -- and to be clear that this is not meant to be a "gotcha" post -- I'm sure I've done similar things. Indeed, cutting and pasting our own footnotes to buttress basic claims we make in multiple papers is probably quite commonplace -- and it would be awkward to cite ourselves for a string of citations, some of which we've undoubtedly pulled from other papers! Still, I wonder if some have thoughts on the issue.
Update: Adrian Vermeule responds below the fold --
Hi ethan – I saw your post. Thanks for your thoughts and for provoking discussion on the self-citation issue. I guess I was assuming that a graf or two is “fair use,” as one of your commenters notes, and that too much self-citation is somehow a bit icky (although sometimes necessary); but in matters like this we should all follow whatever the majority thinks is the best convention, I suppose.
Tuesday, March 27, 2007
US News rankings
According to Orin Kerr, over at the Volokh Conspiracy, the new US News rankings have leaked. It looks like there was a fair bit of moving around in the 15-35 range, with The Usual Suspects continuing to occupy the top few places. Ohio State and Fordham are up, Notre Dame and Carolina are down, etc., etc.
The Place of Artists' Endeavors in a University
One of the unexpected joys of service to the university is that I get to attend meetings of the "XYZ" committee, which addresses various issues of significance to quality and governance standards across the university. Recently, a particularly fascinating question arose, but I'll leave the names of the players out, since I'm more interested in thinking about this issue in the abstract and seeing where the different arguments go.
Here's the question: should graduate students in a research university get to sequester or limit access to their dissertations so they can privately reap the benefits of future publication with a for-profit publisher? Those of you enjoying the discussion Bruce led last week regarding SwapNotes might want to weigh in.
In the sciences context, my sense is that issues over patents are worked out ex ante through contract and universities are obligated to share the fruits of research especially when such research is funded with public money. Thus, graduate students working in university labs probably have to share patents' revenue with the university but practices may vary by agreement. In the social sciences and humanities, professors tend to enjoy the "teacher" exception to copyright's work for hire doctrine that Bruce and Michael Froomkin talk about in the comments to Bruce's post. My sense is that such an exception enjoys an uncertain status in law today, but that express contracts between faculty and universities would govern the issue, and that copyright for those works is not a property right invariably enjoyed by faculty, though in the absence of an asserted right by the university, it probably belongs to the professors. (I checked with Bruce and his sense was that as a matter of practice copyright tends to belong to the professors, but the law was a bit unclear. There may be an implied license for the university in the absence of a contractual provision to the contrary.)
So what's the deal with graduate (or less relevantly, undergraduate) students? The tough issue arises when universities say: we want a digital copy of that dissertation so the fruits of your state-subsidized research can be shared with the world. In that situation, the university might be impinging on the ability of graduate students to sign contracts with commercial publishers, who want exclusive distribution rights and would view the publication of a novel to be pretty worthless as an investment if it's substantially available online via google and a library's electronic database.
Thinking this through: Graduate students might not enjoy the "teacher exemption" to the work for hire doctrine if graduate students are paid employees of the university because they are not yet full-fledged "teachers." On the other hand, unlike professors, grad students are often paid principally to teach, not to research. This is pretty tricky, since it would suggest that grad students should then benefit from a "teacher" exception...
My sense is that in the absence of a contractual provision to the contrary, students will own the copyright in their works, even if they are also employed by the university or if they are producing such a work for credit.
In most cases graduate students have not signed away their copyright interests to the school, though I wouldn't be surprised if public universities (and for the purpose of this post I'm interested only in public universities) do give notice to graduate students that a dissertation must be archived at the university's library. If they do give such notice, that might create an implied license and the question is what is the scope of that license, and what ought it to be? Depending on the context, students might have already agreed to that in the particular context of university handbooks that tell students they must lodge copies of their work with the library for purpose of graduation.
The concern raised above about publishers seeking more rights is especially salient for students graduating with advanced degrees from creative arts programs, where their dissertation actually is the production of creative writing, music, or art. One major concern of imposing a library's right to reproduce the dissertation electronically is a collective action issue: if one school insists that the library of that school creates and makes available a digital file of poetry or a novel, then students will go to schools where that requirement doesn't exist. Unless all the creative arts programs abided by the same rule, students would be drawn to places where they can ply their craft in subsidized domains but then reap all the private benefits.
Why might universities seek such digital reproduction rights? Perhaps out of fidelity to the idea that if the state's taxpayers are subsidizing the research, they and the scholarly community should enjoy (free? easy? immediate?) access to that research when submitted as part of a PhD or Master's degree. Of course, in the case of students in the performing or creative arts, the dissertations are not exactly "research." Thus, to save the creative arts students from this otherwise plausibly reasonable practice of promulgating knowledge, one might try (however perilously and controversially) to distinguish between departments whose dissertations are "knowledge" and those whose departments are not in the business of producing conventional knowledge, but rather "arts." Thus, English PhD's about Shakespeare would be promulgated, but if Shakespeare himself is in your creative writing department, then he can sequester his dissertation until it's been published. The downside of such a rule is that it also hurts those budding Shakespeare scholars trying to get Norton or FSG (or HUP/CUP/OUP) to publish their books too. Is this distinction tenable? Desirable? If it is both tenable and desirable, does it say anything about what universities should be in the business of cultivating or producing?
Finally, here's a possible problem: if public universities don't assert any dissemination norms beyond lodging a paper copy of the dissertation with the university library, what rights or interests can/ought the taxpayers assert if Billy Shakespeare decides to burn his dissertation, after lodging his one paper copy in the archive of the library? Do the taxpayers have any legitimate interests then? Or is it too bad, so sad? Maybe Lior will weigh in...
Much of this back and forth can be resolved, I suspect, if there are clear expectations enunciated at the outset by the university. My own sense, probably, is that if the university didn't articulate its interests clearly, then at least in the interim silence, the students should be able to effectively sequester their works until publication (by allowing only a paper copy in the library). Going forward, I'd probably say that everyone must lodge digital reproductions, but the "arts" students can sequester public access for ten years upon graduation; but after that, the university can publish its digital files in its database for Google to pillage. For departments in the business of "knowledge" production in the form of articles, I'd say a policy of no sequestering is appropriate to allow for immediate dissemination. I'd prefer to have no sequestering as the rule in all non-arts disciplines to facilitate dissemination, but I'm aware that some university presses won't publish books that are drawn dominantly from sources already available. (Hence, the problem with the scholars who are expected to publish their dissertation in book form, rather than in articles.) What do you think should be done? Should public universities be able to assert any rights or interests in the works of their students?
Posted by Dan Markel on March 27, 2007 at 01:40 PM in Dan Markel, Deliberation and voices, Information and Technology, Intellectual Property, Life of Law Schools | Permalink | Comments (5) | TrackBack
History of the Infield Fly Rule Part III
PART 3: THE CLASSICISTS
by Anthony D'Amato (Law, Northwestern)
Plato was the first to address the issue of an ideal baseball. Such a ball, he reasoned, would be a perfect spheroid. If struck by a bat, the ball would travel outward in a smooth parabolic arc. An ideal baseball could not travel straight up. Although Plato was aware of empirical reports that pop flies occasionally went straight up, he held that if such behavior occurred it was due to manufacturing imperfections in the internal constitution of the ball. In an ideal game of baseball played with a perfect ball, Plato argued, there would be no pop flies and hence there would be no Infield Fly Rule. Therefore the Rule was merely an illusion, one of many fostered by watching too many cave movies.
Plato's student Aristotle held a somewhat higher tolerance for reality. Although he allowed in deference to his teacher that a baseball game might be an illusion, it nevertheless had a solid ring to it, especially when combined with peanuts, popcorn, and beer. He suggested that baseball occupied a privileged existence in the golden mean between the ideal world and the real world.
Aristotle is best known today for his explanation of the Infield Fly Rule. He took up the matter at length in his Metaphysics. He reasoned that Plato was on to something in spotting the discrepancy between baseballian perfectionism and the apparently ad hoc, if not illusory, character of the Infield Fly Rule. The more Aristotle thought about it, the more he concluded that the Infield Fly Rule presented the greatest logico-empirico puzzle of his era.
He began his analysis by wondering why an unsupported baseball, save perhaps for the special case described by Zeno, always fell to earth. Aristotle hypothesized that the ball was seeking to return to its origins. A baseball, after all, is made up of four elements: cork, gum Arabic, horsehide, and yarn. (And not earth, wind, fire, and water, as at least one student every year says on the final exam.) Since each of the material ingredients has a natural yearning to return to the place from whence it came, when all of them are tightly packed into one spheroid their aggregated yen to rejoin the ground is well-nigh insatiable.
Now the necessary propositions were in place for Aristotle to begin his attack upon the main question: whence the Infield Fly Rule? The answer must lie in the nature of the game. Since a baseball strives to fulfill its own teleology by constantly attempting to return to the earth, the "game" of baseball must consist of an artificial effort by the fielders to thwart the ball's downward proclivity. Thus, the fielders try to keep the ball in the air by having the pitcher throw it, the catcher receive it, and the others intercept it in mid-flight by the deft employment of grotesque gloves. If all nine players in the field succeed in their joint enterprise of preventing the ball from ever hitting the turf, they will achieve shut-out.
One of Aristotle's students asked him why pitchers reach down, grab some dirt from the mound, and assiduously rub it on the baseball. Aristotle's reply is given in Book Twelve of the Metaphysics. The experienced pitcher is aware that the longer the baseball is kept from reaching the earth, the more frustrated it becomes. By rubbing dirt on the baseball, the pitcher attempts to temporarily placate the ball's desire to hit the ground.
The intellectual stage had now been set for Aristotle's brilliant explication of the Infield Fly Rule. We begin by assuming the opposite of that which we wish to prove, namely, that there is no Infield Fly Rule. We recall that the fielding team must do everything in its power to prevent the ball from hitting the ground. But if there are baserunners and fewer than two outs, an infielder might feign to catch the ball and yet let it drop, thus commencing a double play. In that event the baseball would have reached the ground through the deliberate and intentional efforts of the fielder in violation of his immanent obligation to keep the ball in the air. In short, we have arrived at a teleological hoistus petardis.
To rescue the game of baseball from the perilous abyss of self-contradiction, the Infield Fly Rule that we so recently snubbed is now yanked back into the picture. The logic of the rule is impeccable, as seen even today in its extensive employment in the finest legal reasoning. Our Aristotelian sorites stacks up as follows: since the fielder can catch the infield fly, it follows that he should catch it. But if he should catch it, then he ought to have caught it. Since he ought to have caught it, then he is deemed to have caught it. But if he is deemed to have caught it, he might as well catch it. Since he might as well catch it, he catches it. Thus the ball has been prevented from hitting the ground after all. Quod erat demonstrandum (“thank you very much, ladies and gentlemen”).
Something To Chew On
My coauthors Jon Klick (FSU law) and Thomas Stratmann (GMU econ) and I are happy to announce the birth (or, perhaps, rebirth) of our paper, "Cheap Donuts and Expensive Broccoli: the Effect of Relative Prices on Obesity."
Here's the abstract:
Americans have been getting fatter since at least the mid 1980s. To better understand this public health problem, much attention has been devoted to determining the underlying cause of increasing body weights in the U.S. We examine the role of relative food prices in determining an individual's body mass index, arguing that as healthful foods become more expensive relative to unhealthful foods, individuals substitute to a less healthful diet. Using data from the National Health Interview Survey (NHIS) for the period 1982-1996, we find that individual BMI measures, as well as the likelihood of being overweight or obese, exhibit a statistically significant positive correlation with the prices of healthful relative to unhealthful foods. These results are robust to endogenizing the relative price measure. While the magnitudes of our estimates suggest that relative price changes can only explain about 1 percent of the growth in BMI and the incidence of being overweight or obese over this period, they do provide some measure of how effective fat taxes would be in controlling the obesity epidemic. Our estimates imply, for example, that a 100 percent tax on unhealthful foods could reduce average BMI by about 1 percent, and the same tax could reduce the incidence of being overweight and the incidence of obesity by 2 percent and 1 percent respectively.
Here's the full SSRN page (full text can be downloaded at the bottom of that page).
Update: One further note. Jon will be presenting this paper at Yale's Law & Econ workshop this Thursday, March 29. Jon was nice enough to invite me along, so I'll be there rooting him on and otherwise keeping quiet (stop laughing!).
Monday, March 26, 2007
Dellinger & Schroeder on USA & Executive Privilege
Walter Dellinger and Christopher Schroeder have a very interesting article up on Slate about the fired USAs, executive privilege claims, and the possibility of compelling WH aides' testimony. Here's the conclusion
So, where should this come out? Communications among senior White House staff members, and between them and the president, ought to remain confidential where the only charges being investigated concern "mere" patronage appointments to the U.S. attorney posts. To give one example, the claims of executive privilege are sufficiently strong that Karl Rove, as the president's political adviser, should not be compelled to testify about conversations with President Bush or his other senior advisers if the only thing to investigate concerning Rove is whether he ousted a U.S. attorney to make room for the appointment of a crony. For these allegations, Congress can rely upon compelled testimony from Justice Department officials and others outside the White House, and voluntary testimony and evidence from within the White House.
But if there is a plausible basis for believing that the Bush administration replaced any U.S. attorney to improperly obstruct a criminal investigation or improperly prompt an indictment, or a plausible basis for believing that earlier congressional inquiries were wrongfully impeded, then claims of executive privilege should give way for evidence pertinent to that charge. We can't say whether such a plausible basis exists because that would require a familiarity with the facts that we just don't have. Our solution isn't perfect, but it accommodates the competing interests of the branches. And it sure beats stalemate.
[Emphases are mine.]
"Fuck," Fairman, Leiter, and SSRN Rankings
Following a mini-controversy in the usual quarters, Brian Leiter writes about his decision not to include Chris Fairman's paper, Fuck, in his count of the 15 most downloaded law faculties for 2006. Fairman himself, knowing a good thing when he sees it, has written an interesting short piece about which is available, naturally, on SSRN, here.
Brian is dismissive of the fuss, calling it "amazing[ ]" that some people objected to the exclusion of Fairman's paper from his count. He writes that his reason was obvious: "its unusually high download count was due to its provocative title, not its scholarly content." He writes further: "If Ohio State had been included in the list of the 15 most downloaded faculties for 2006, it would have been because 90% of its downloads were due to this one paper. No other school's rank was so much a function of one paper by one person. SSRN is a pretty weak measure of scholarly performance--as I made very clear--but it is just a joke if one paper by one person essentially determines a school's rank." Finally, he denies that he excluded the paper for any reasons of bias or out of an antipathy to civil rights scholarship, and reiterates his reason for doing so: "the best explanation for why the paper was downloaded as much as it was had to do with its title, not its scholarly importance or impact."
In writing a short piece on law reviews, the online age, and law school reputation gatekeepers for an online law review supplement, I've been grappling with Brian's thoughts on some of these issues, which can be found at the above link and in this piece. Although I am fairly sure I disagree with him (I'm still trying to discern precisely what he thinks, and to decide precisely what I think), his thoughts are well worth reading. I surely think Leiter had no thoughts of bias when he excluded the paper. My thoughts run, I guess, to the following sorts of questions:
First, if the problem is one of download counts for schools being influenced by only one or two professors' work, why not just omit the top posters for all schools on a consistent basis, as Fairman argues in his response? Or conversely, since Leiter already lists the top three posters for other schools, why not just do that here? Second, if, as Leiter reasonably concludes, "SSRN is a pretty weak measure of scholarly performance," why take such care to carve out an exception here? Third, why bother keeping such a measure at all? Leiter has a perfectly reasonable response to this -- he maintains a law rankings site and wishes to be catholic in what he includes there -- but we might ask this question more broadly: Why do we care about such measures so much, even while we all question and dispute them so closely? (See here for one answer.) Finally, in what sense is SSRN a measure of scholarly performance at all? If it's because people make an informed choice whether to download a paper after reading the abstract, why exclude Fairman? Isn't it at least partially the case that downloads often reflect scholarly reputation, more or less crudely measured by the fame of the author or the prestige of his/her school? Is this really a measure of performance? Is it that much better a measure of performance than an author's ability to capture attention by writing a piece that deliberately reframes the debate on an interesting issue and, not incidentally, has a smashing, epater-les-bourgeois-type title? Of course, perhaps that's not really what happened with Fairman's piece -- maybe it's all about the title -- but is that all that different from capturing attention because you teach at a fancy place and have a fancy title? Maybe it's a little better -- but is the Emperor that much more dignified if he manages to throw on a pair of socks, and not much more?
Let me add a slight update: A correspondent suggests that Leiter's post contains an answer at least to the questions posed above involving excluding or listing separately the top three downloadees -- namely, that the Fairman situation is different because it involves a single paper by one person skewing, rather than multiple papers from the top three downloaded profs. Viz., from Leiter's post: "If Ohio State had been included in the list of the 15 most downloaded faculties for 2006, it would have been because 90% of its downloads were due to this one paper. No other school's rank was so much a function of one paper by one person."
Chinese bishops and religious freedom
Shameless self-promotion time: In today's issue of USA Today, I have this op-ed, "China's lesson on religious freedom," which is about the Holy See's resistance to China's efforts to select Catholic bishops. Here's a bit:
Although its government likes to claim otherwise, and apparently hopes people won't notice, meaningful religious freedom does not exist in China. . . .
And so, it was probably more disappointing than surprising when the government-controlled puppet church, the Chinese Patriotic Catholic Association, late last year purported to ordain a new bishop for Roman Catholics in the Xuzhou Diocese, about 400 miles south of Beijing, over the objections of the Holy See.
Why should we care? . . . [I]s there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries — the Holy See or the People's Republic — picks Chinese bishops? . . .
The struggle for the church's freedom in China reminds us that what the separation of church and state calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not to prevent religious believers from addressing political questions or to block laws that reflect moral commitments. Instead, "separation" refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing — neither above and controlling, or beneath and subordinate to, the state. This freedom limits the state and so safeguards the freedom of all — believers and non-believers alike.
Just a note to readers that I'll be guest-blogging this week on the Volokh Conspiracy, discussing my recent paper, which was largely vetted here, on the Religious Test Clause and judicial nominations. Thanks to the VC folks for inviting me. The first post can be found here.
Sunday, March 25, 2007
Addicted to Coke
I cover the Coke v. Long Island Care at Home case here quite a bit. Some main-stream media coverage is available in today's paper here. At long last, the Supreme Court is set to hear oral argument on April 16, 2007.
I was just thinking about some of the ramifications of the Court's having punted the issue back to the Second Circuit rather than hearing the case the first time it came before the Court in 2005. Here's a potentially interesting one from an institutionalist perspective: Congress was fully Republican in 2005 so if the Court had agreed with Coke back then that the DOL regulations were inconsistent with the 1974 FLSA, the doomsday scenario portrayed by the health care industry and the goverment (at least their prospective prognostications rather than the potential back pay ramifications) could have easily been averted. Republicans simply could have amended the FLSA and explicitly passed a bill making clear that home health care aids employed by third parties need not be paid minimum wage and overtime. No one could doubt that George W. Bush would have signed that bill into law, given that he completely tanked Clinton's effort to get the regulation changed to have the home health care aids covered rather than exempted by the FLSA. Even conservative justices could have seen this congressional response on the horizon and would not necessarily have felt the need to overturn the Second Circuit decision. It would have given them the freedom to issue a clean rule of law decision on the merits.
Of course, I am assuming that Coke has the better "rule of law" arguments. Almost all of the strong arguments on behalf of the DOL reg (and virtually all of the amicus briefs coming to the defense of the reg) are economic policy arguments that really have no place in deciding the real issues before the Court: What did Congress intend in 1974 and was the DOL's interpretation afforded the proper degree of deference about what Congress intended then? Even the latter question itself requires a construction of what Congress intended because the degree of deference a court must give the DOL depends on the degree of delegation Congress intended to afford the DOL in its rule-making powers. The Court will also have to assess, under Mead, whether the DOL had an intention in 1975 to promulgate the reg at issue under its delegated authority or whether it intended the reg merely to be an "interpretation" that lay outside its delegated authority. Whatever one thinks about the merits of these questions, it should be relatively apparent that they do not involve an assessment of what the economic impact would be in 2007 should the reg be struck down.
It is worth noting, I think, that institutional incentives are somewhat different now that the Court is deciding this case in 2007 rather than 2005. The other institutional actors are now quite differently aligned -- which may have effects on how justices perform their roles. Essentially, the Court's ruling will not be capable of being overturned, as it was in 2005: If Coke wins at the Supreme Court, the Democratic Congress will have no interest in revisiting the decision since we can assume that Democrats generally favor Coke's position. If Coke loses, the 2007 Democratic Congress would be unlikely to be able to change the decision because no legislative action could withstand a veto by President Bush.
So what would the institutionalist predict? I would guess that the balance of powers in 2007 may render conservatives less likely to vote with Coke even if they were otherwise sympathetic to her "rule of law" arguments. That is, of course, bad news for Evelyn Coke.
[There is one more point to make from an institutionalist perspective that may moot my analysis above: Conservatives could vote with Coke but use reasoning that would leave open to Bush -- as the ultimate policy-maker of the DOL -- a second bite at the apple. Even if Coke wins at the Supreme Court, the DOL could quickly use a proper notice and comment procedure to re-issue the reg, invoking their full legislative authority. Fashioning the new reg as a "legislative regulation" would likely entitle it to full Chevron deference in the courts. Although there is an argument that Coke could still have the reg struck even under Chevron's more deferential review, virtually everyone agrees that it would be substantially more difficult for her to win under that standard, which is why so much hinges on the Court's view about whether the Second Circuit properly afforded the DOL only Skidmore deference under Mead's reasoning.]
Saturday, March 24, 2007
Why the NCAA Tournament is Boring...
So, I'm sitting here, watching Ohio State / Memphis at Philadelphia International Airport, and I think I've finally figured out why this year's "Big Dance" has been so dreadfully unexciting, the close games notwithstanding:
All the favorites are winning!
I mean, seven of the eight teams in the Elite Eight are 1 or 2 seeds (meaning, they all were expected to get this far), and the eighth (Oregon) is a 3-seed. Talk about "chalk."
Don't get me wrong -- for fans of these eight teams, this is great fun. But face it -- most of us aren't. Most of us, who either don't have a team, or won't admit which pathetic team we do "have" (although my alma mater DID win the D-III NCAA title last weekend -- GO JEFFS!), would usually spend this weekend rooting for the underdog -- last year's George Mason, for example. When our team is out, we root for the little team(s) that could.
This year, however, the biggest "upset" that could happen in the Elite Eight is Oregon beating Florida (which would be an upset, for sure, but not on par with upsets of tournaments past). Indeed, this year's NCAA men's tournament looks like what the NCAA women's tournament used to -- where you could always win your bracket just by picking the top seed to advance in every game. Three years in a row, the Elite Eight had at least seven of the top eight seeds. And that's why it's boring. When there's no true Cinderella, and when your team isn't one of the giants, it's just too hard to get excited.
Fortunately, opening day is now just nine days away. Let's Go Mets!!!
More on the Lords and Electoral Accountability
T omorrow's Last Sunday's NYT has a nice analysis on the on-going efforts to redesign the upper house of Britain's parliament. We discussed this issue last week here. My focus then was Rory Stewart's general ideas about what upper houses are good for. Now let's consider a more specific detail about the proposal (which the House of Lords has just rejected): to make the House of Lords seats 15-year non-renewable elected terms drawing from party lists instead of life appointments drawn from lists of nobles.
The article quotes Bruce Ackerman's LRB column on the matter (available here) as follows:
“The promise of democratic legitimacy is a sham,” wrote Bruce Ackerman, a professor of law and political science at Yale, in The London Review of Books. “The bar on re-election strips voters of their basic tool for democratic accountability: the politicians’ fear that their constituents will throw them out of office.” Or, as one Labor legislator, Tom Levitt, said in the House of Commons, “it’s not the election that makes democracy, it’s the re-election.”
There is something fishy about this logic. To be sure, there may be better democratic institutional designs that would enable the re-election of Lords. But can it really be considered a move of democratic regression to change from life appointments to 15-year elected terms? Maybe British society can only stomach a single change and it is better to hold out for a better option. But it seems to be going a bit far to call the change a "sham" from the perspective of democracy.
[On a partially related theme, consider the on-going efforts to get US Supreme Court terms to be non-renewable 18 year terms. The fact of non-renewability can contribute both to independence and democratic accountability.]
In addition, the fact that candidates for the House of Lords would -- under the proposal -- come from party lists is said to diminish from "democracy." But, on the contrary, one can see the connection to parties as facilitating democratic accountability. Ackerman's analogy, trying to explain why re-election is important, is instructive here:
Contrast the intransigence of George W. Bush – who is prohibited from running again – to the increasingly rebellious congressional Republicans, who grimly recognise that the president’s policy on Iraq is endangering their re-election in 2008. Even Bush might be more responsive to public disillusionment with the Iraq war if he were contemplating another run for the White House.
But isn't it the case that Bush's behavior will have electoral effects on the party he runs, his term limit notwithstanding? Democratic accountability is complex and is never as clean as democratic minimalists who focus on "voting the rascals out" hope. Indeed, tying Lord behavior to parties may facilitate the very accountability some are looking for through re-election.
The Fifth Step
This article from NBC News Service discusses President Bush's continued support for AG Alberto Gonzales in the wake of revelations that Gonzales attended a November 27, 2006, meeting to approve the firing of USAs. According to the article,
At the Nov. 27 meeting, the attorney general and at least five top department officials discussed a five-step plan for carrying out the firings, Gonzales’ aides said late Friday.
At that session, Gonzales signed off on the plan, drafted by his chief of staff, Kyle Sampson. Sampson resigned last week....
The plan approved by Gonzales involved notifying Republican home-state senators of the impending dismissals, preparing for potential political upheaval, naming replacements and submitting them to the Senate for confirmation.
That last part seems difficult to buy.
First of all, we have ex-COS to the AG Kyle Sampson's email clearly advocating use of the 2006 amendment to 28 U.S.C. §546, concerning USA vacancies (see this NPR article, quoting a December 2006 email in which Sampson advocates using the provision regardless of the risk of political fallout because "If we don't ever exercise it, then what's the point of having it?"). This is relevant because the two key elements of the provision are that (a) it eliminates the district court's role in selecting an interim USA 120 days after a vacancy is created when no replacement has been confirmed, and (b) it allows the AG's interim choice to serve indefinitely, provided that the Senate does not confirm a replacement (which of course it can't unless the President makes a nomination).
Secondly, we have the January 13, 2007, email from Sampson to Democratic Senate Judiciary staffer Jennifer Duck, which I've already discussed here at PrawfsBlawg. If you read through the rest of that email (page 5 of the TPM document where I can find it), you see a reference to Tim Griffin, the Karl Rove protege who was named interim replacement for former USA Bud Cummins in the Eastern District of Arkansas.
The reference says that Griffin "has expressed interest in the position; no nomination is yet ready."
What makes this notable is this quote from a March 14 NYT article:
The dismissal of the seven prosecutors was preceded the previous summer by the removal of Mr. Cummins in Arkansas. He was succeeded by J. Timothy Griffin, a former prosecutor who had once worked with Mr. Rove. In a Dec. 19 e-mail message, Mr. Sampson wrote: ''Getting him appointed was important to Harriet, Karl, etc.,'' a reference to Ms. Miers and Mr. Rove.
Mr. Sampson's e-mail message, sent to the White House and Justice Department colleagues, suggested he was hoping to stall efforts by the state's two Democratic senators to pick their own candidates as permanent successors for Mr. Cummins.
''I think we should gum this to death,'' Mr. Sampson wrote. ''Ask the senators to give Tim a chance, meet with him, give him some time in office to see how he performs, etc. If they ultimately say 'no never' (and the longer we can forestall that the better), then we can tell them we'll look for other candidates, ask them for recommendations, interview their candidates, and otherwise run out the clock. All this should be done in 'good faith' of course.''
(I particularly like the use of quotations around the words "good" and "faith". Can a series of acts be done in "good faith"? Is that even possible? Don't they have to be done in good faith, or not?)
In any case, the "gum this to death" and "otherwise run out the clock" stuff makes it pretty clear that Sampson, at least, didn't think that submitting nominations to the Senate was a key element of the plan. Perhaps Gonzales disagreed with Sampson about this, but the more the AG's story changes, and the more the facts raise questions about what his role actually was, the harder it is to figure out.
Getman on Being Where You Are Right Now
For a short piece for another online law review companion, I've been reading through Julius Getman's book In the Company of Scholars. Here's a thought from that interesting volume:
[B]eing a younger faculty member at a prestigious school where the seniors are likely to have firm ideas about scholarship is not always a blessing. At such schools the junior faculty often live uneasily in the shadow of their illustrious predecessors. At Yale I realized how lucky I was to begin my career at Indiana University at a time when the school had many able young people, few seniors seeking to influence our work, and little prestige among elite law schools.
From my limited first- and second-hand experience, I think there is something quite true about this -- and that in this season, as the blogs announce the arrival of a new crop of young legal scholars who now, decisions made, must sort out exactly where they fit in the world of legal academia and how they feel about it, it's a useful thing to ponder. What do you think? Is Getman being a little naive here? Or is he right to warn that the most prestigious schools, unless they are very careful, will sometimes tend to eat their young, or at least curb their ambition and courage, unintentionally or otherwise?
Yesterday's NYT had an interesting, to say the least, article by Thom Shanker and David Sanger about the US's prison down on Gitmo. Here are the first three grafs:
In his first weeks as defense secretary, Robert M. Gates repeatedly argued that the detention facility at Guantánamo Bay, Cuba, had become so tainted abroad that legal proceedings at Guantánamo would be viewed as illegitimate, according to senior administration officials. He told President Bush and others that it should be shut down as quickly as possible.
Mr. Gates’s appeal was an effort to turn Mr. Bush’s publicly stated desire to close Guantánamo into a specific plan for action, the officials said. In particular, Mr. Gates urged that trials of terrorism suspects be moved to the United States, both to make them more credible and because Guantánamo’s continued existence hampered the broader war effort, administration officials said.
Mr. Gates’s arguments were rejected after Attorney General Alberto R. Gonzales and some other government lawyers expressed strong objections to moving detainees to the United States, a stance that was backed by the office of Vice President Dick Cheney, administration officials said.
Today's NYT article by Jeff Zeleny brings news of the President's reaction to yesterday's 218-212 House vote to both fund the war and place restrictions on Bush's authority to conduct it. The President
angrily denounced the bill as one in which Democrats had "voted to substitute their judgment for that of our military commanders on the ground in Iraq."
Apparently substituting judgment for the military's (ok, Gates is SecDef, not a military commander) is good for the Goose, but not so good for anyone else.
Two other notes:
- In answer to a reporter's question after the article appeared, WH spokesman Tony Snow referred to "legal constraints" in explaining why the Gitmo facility couldn't be closed. See this post by Marty Lederman at Balkinization for interesting discussion of the legal issues concerning Gitmo and Snow's statement.
- Shanker and Sanger write in their article that
One official made it clear that he was willing to discuss the internal deliberations in part because of Mr. Gonzales’s current political weakness.
So, is this "official" a roosting chicken, or is he a guy sending a signal to the WH to get rid of Gonzales (and to GOP members of Congress not to defend him)--or both?
Friday, March 23, 2007
Judge Sarokin: Punitive Damages vs. The Death Penalty
Judge Sarokin writes:
The Supreme Court recently decided that the due process clause prohibits calculating punitive damages based upon harm caused to strangers. (Philip Morris USA v. Williams). In other words, when punishing a corporation with money damages, a jury must engage in individualized decision-making, but maybe not so in deciding the imposition of the death penalty. (In re William Weaver, NY Times 3/22/07)
I suggested in an earlier post (Punishing Punitive Damages) that it might not be inappropriate in awarding punitive damages to consider that the corporate defendant had a history of the same wrongful conduct and knowingly continued it, and that an award based upon that history would serve to punish the defendant and deter it and others from doing the same. But the Court having confined a jury's consideration to the individual claimant where only money is involved, it is difficult to reconcile that with the argument that a jury can consider the effect upon "strangers" where life is involved. True, in the punitive damage case the "strangers" were other victims, and here they are potential perpetrators, but in each instance, we are talking about persons not before the court.
It can be debated whether or not the death penalty actually deters anyone. But assuming, as Justice Kennedy stated that "Deterrence is one of the reasons we have the death penalty", the question remains whether or not that policy should be presented to a jury as a reason to execute a particular individual. Assuming a jury is undecided, should the possible effect upon unknown others tip the scales and result in the imposition of the death penalty?
Of course, all of this is played out against the unfortunate and almost insurmountable barrier to habeas corpus imposed by the Antiterrorism and Effective Death Penalty Act. In effect and logically, it permits the prosecutor (and others) the opportunity to claim that the state court decision was not contrary to "clearly established federal law as determined by the Supreme Court of the United States" (as the statute requires), if the members of the Court themselves cannot agree on the resolution of the underlying question!
New Blog and Website for Women and the Law
There's a great new resource that's launching this month on the web and in real space: it's called Ms. JD, and you can learn more about it at their website. There are some interesting posts up already including one by Elena Kagan and one by 9th Cir. Judge Smith ("Wanted for Judicial Clerkships: Women with More Law Review Credentials"). The blog features (or promises to feature) posts on a regular basis by Barbara Babcock, Harold Hongju Koh, Shirley Hufstedler, Herma Hill Kay, Dahlia Lithwick, Judge Dorothy W. Nelson, Judge Deanell Reece Tacha, and Judge Kim Wardlaw. Here's a little more information:
What is Ms. JD?
Concerned by the rates at which women opt out of the legal profession, the lack of representation of women in the highest courts and echelons of the legal community, and the role of gender in the progression of many women’s legal careers, a group of female law students from Boalt Hall (UC Berkeley), Cornell, Georgetown, Harvard, NYU, Stanford, UCLA, UT Austin, the University of Chicago, the University of Michigan, the University of Virginia, and Yale came together and created Ms. JD. Serving women in law school and the legal profession, Ms. JD will be an online community that provides a forum for dialogue and networking among women lawyers and aspiring lawyers. Ms. JD will launch at a national conference co-hosted by Yale Law Women at Yale Law School on March 31, 2007.
Best of luck to Liz Pederson and the others behind this valuable project.
Is Jim Cramer Advocating Securities Law Violations?
Henry Blodget asks the question here. At issue are these comments:
Now, you can't "foment." That's a violation. You can't create yourself an impression that a stock's down. But you do it anyway, because the SEC doesn't understand it. That's the only sense that I would say this is illegal. But a hedge fund that's not up a lot [this late in the year] really has to do a lot now to save itself.
This is different from what I was talking about at the beginning where I was talking about buying the QQQs and stuff. This is actually blatantly illegal. But when you have six days and your company may be in doubt because you're down, I think it's really important to foment—if I were one of these guys—foment an impression that [the stock] isn't any good.
* * *
What's important when you're in that hedge-fund mode is to not do anything that's remotely truthful. Because the truth is so against your view that it's important to create a new truth to develop a fiction.
Was Cramer being tongue-in-cheek? Or was he describing his own past business practices? Blodget believes that Cramer possibly "has committed professional suicide." A question for securities folks out there: is the scheme Cramer describes illegal? Where do we draw the line between savvy market play and illegal market manipulation?
In the context of the current controversy over the President's USA "dismissals", as he called them the other day, this is a relatively minor legal point. But hey, this is a blawg, so I'll make it anyway.
The DOJ has claimed that the pre-2006-amendment statutory procedure for interim filling of a USA vacancy was "constitutionally-suspect".
On page 3 of this email thread involving former COS to the Attorney General Kyle Sampson, on the one hand, and Senate Judiciary Committee staffer Jennifer Duck (as well as some others), Sampson writes as follows (see especially the last paragraph, and point (3) in it--you can see a larger version of the text by clicking on the image):
Here's what Article II, Section 2 of the US Constitution says about presidential power:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
I am certainly not an expert on constitutional law. But the text here seems quite clear: "the Congress may by law vest the appointment of such inferior officers, as they think proper...in the courts of law...". So what part of having district courts appoint interim USAs, pursuant to statute, is constitutionally suspect? Am I missing something?
[Update/Note: This post by Orin Kerr is definitely worth a read on the general issue of statutory authority, though Kerr doesn't address in it the specific questions about which I'm wondering.]
Perhaps the constitutional concern is this part of Article II, Section 2:
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
I guess the idea would be that, since the President is constitutionally empowered to fill "all vacancies", then Congress can't tell constrain the mode of filling these vacancies. But this provision quite clearly concerns only those vacancies that "happen during the recess of the Senate", and not any others. So it seems to me that only recess vacancies could possibly be protected from statutory rules for filling them, and even then I wonder if it is constitutionally possible for Congress to limit this power of the President's by statute (please comment if you know the specifics regarding Congress's authority to limit the recess-appointment power).
Finally, if you look at the post-amendment statutory language of § 546 (below), you'll see that the new statute allows the President's interim choice to serve until confirmation of a permanent replacement. Doesn't that conflict with the "shall expire at the end of [the Senate's] next session" clause of the text above? So if Congress cannot limit the recess-appointment authority, in which case the pre-amendment statute would seem to be unconstitutional as applied to recess appointments, then doesn't the new statute provide unconstitutionally long terms for interim USAs appointed by the President?
For what it's worth, prior to the 2006 amendment, the relevant statutory text was
§ 546. Vacancies (a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant. (b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent. (c) A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court. 
28 U.S.C. § 546 (2000 ed., Supp IV).
Here's the text that results from the 2006 revision (note that para (c) is the key one i think, tho (b) means that the administration can't choose someone whom the Senate has voted down):
§ 546. Vacancies
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.
Note that I got this from wikipedia (http://en.wikipedia.org/wiki/2006_Dismissal_of_U.S._Attorneys_controversy#USA_PATRIOT_Act_revisions); please let me know if you spot any errors in the text here.
Thursday, March 22, 2007
New version of Connectedness and its Discontents
Just a heads up that I've revised and posted a new draft of my essay on the construction of criminal histories for migrant offenders. The piece is called Connectedness and its Discontents: The Difficulties of Federalism and Criminal Law, and it's coming out soon in a new issue of the peer-reviewed journal, the Ohio State Journal of Criminal Law. The issue promises to be very interesting, with a symposium on mercy, one of my favorite topics. The issue will include contributions from, among others, my colleague Wayne Logan (who's replying to my response to his earlier piece), Steve Garvey (Cornell), Heidi Hurd (Illinois), Mary Sigler (ASU), Jeffrie Murphy (ASU), Judge Nancy Gertner (D.Mass.), Chris Slobogin (Florida/Stanford), Antony Duff (Stirling, UK), Stephanos Bibas (Penn), and David Dolinko (UCLA).
After the jump is my abstract of the essay, which you can download here. I believe the citation will be something like 4 Ohio St. J. Crim. L. 573 (2007). This was my first time writing on "horizontal federalism" and criminal law issues, and I'm grateful to have had the chance to do so; it's a wonderfully rich area.
This essay raises questions about the appropriate way for states to construe the criminal history of offenders migrating across states.
In a recent article, Professor Wayne Logan asked two important questions that have been given spare and insufficient attention. The first focuses on how states construct the criminal histories of the offenders who are now in their midst. The second asks what tradeoffs are implicated as states make their choices regarding how to interpret the pasts of these itinerant offenders as they relate to registration requirements or sentence enhancements for recidivism. Answering the first question, Logan observes the existence of two archetypal approaches a state might adopt when assessing an offender's prior record: an internal one and an external one. Under the internal approach, the use of out-of-state convictions, and any punishment resulting from those convictions, [must] satisfy the eligibility requirements of the forum state's registration or recidivist enhancement law. On this view, for example, a state would not apply a recidivist sentencing enhancement to an offender on the basis of a conviction in another state for conduct that would not be illegal in the forum state. By contrast, under the external approach, a forum state faithfully implements the consequences of the legal judgments of its fellow sovereign states, rather than re-examining those determinations to see if the underlying circumstances (or length of sentence) would have initiated the same legal consequences in the forum state. Consequently, with the external approach, an offender's former actions potentially trigger a marked trail effect in the new forum state. Of course, jurisdictions need not be consistent between recidivism and registration requirements: some states might adopt, for instance, an internal approach with respect to recidivist sentencing enhancements but an external approach to sex offender registration laws.
With respect to the second question, Logan capably shows how the competing internal and external approaches raise difficult theoretical and practical policy questions. Indeed, simply by ventilating the various issues as he does, Logan helpfully foregrounds many otherwise easily obscured value trade-offs, and thus makes a profound contribution to the study of federalism and American criminal law.
This essay registers no real quarrel with Logan's analysis of the scope and nature of criminal justice connectedness. My focus instead is on the normative argument in Logan's apparent preference for the internal approach. I choose this focus not because I am convinced that the external approach is the obviously superior one. Rather, I think Logan overestimates its deficiencies. The goal here, then, is simply to adumbrate a few of the rejoinders available in defense of the external approach against Logan's criticisms. To the extent these responsive arguments are persuasive, then state courts and/or legislatures will be in a better-informed position to select an approach more consonant with their particular concerns and objectives.
The Pre-Socratics (Part II of Tony D'Amato's Concise History of Baseball's Infield Fly Rule)
by Tony D’Amato
Although the proximate cause of the Peloponnesian War was a disputed umpire's call in a game between the Spartans and Athenians, this incident got lost in the numerous retellings of that celebrated conflict. As proof, we find no mention of it in The Iliad. Fortunately, its author attained lasting fame anyway by his discovery of the homer. Many other useful additions to baseball were made by the Greeks in the years that followed, such as the treiska miasmos (three-strikes-and-yer-out), the spheros entroadyton (passed ball), and the treiska katabasis (ground-rule triple) which was reduced to a double in 1708 by the Queen's Commissioner of Spherical Bodies, Sir Isaac Newton. And mention must be made of colorful expressions that were coined during the Hellenic era, such as “How ‘bout dem Hittites!”
In turn, baseball had a salutary effect upon Grecian culture. When the early Olympic games suffered from a drop in attendance during an extended Reading Period, the fast-food concessionaires, afraid of losing their livelihood, lobbied vigorously to get baseball included as an Olympic sport. Their initiative saved the Games. A veritable gaggle of Greeks poured into Olympia, and T-chitons with team logos did a brisk business. Yet the very best sellers were red-figure baseball cards featuring players in the nude. Today, alas, only the Vatican has a complete set, which is kept in an electrum-and-alabaster shoebox in the Original Attic of the Penitenteria Apostolica's Librorum Prohibitorum.
But although the game of baseball grew more complex by the accretion of the aforementioned rules under the tutelage of the Greeks, its underlying theory remained elusive until 450 B.C., when a major insight was contributed by the famous shortstop-second-base combination of Zeno and Parmenides playing for the Athenian Nemeses. A pop fly ball inspired Zeno to formulate his First Paradox of Motion. Zeno realized that if the ball were hit straight up, a point would be reached at the exact apex of its flight when it would be motionless. At that instant of supreme indecision the ball would not know whether to go up or down. Yet a ball that is completely still at a given moment cannot spontaneously start moving a moment later. It follows as a matter of logic that the baseball will remain suspended in mid-air.
Several weeks after posting his thesis on a public billboard in the Agora, Zeno had the opportunity to introduce his Paradox into an actual game. It was the top of the ninth inning and the visiting Visigoths were ahead by a score of 49 to 1. There were no outs and the bases were loaded as usual. The batter for the Goths hit a high pop fly directly over home plate, and Zeno strolled in to position himself under the ball. But just as the umpire began to yell "Infield Fly!" Zeno shushed him and demanded that the game be called on account of darkness. Zeno argued that the ball would never come down. It is immobilized at its highest point, he assured the umpire, and will remain there for all eternity. So strong were Zeno's famed powers of persuasion that a hush descended over the stadium and the umpire was plunged into deep cogitation. Meanwhile, the baseball unceremoniously reversed its course, bounced off Zeno's head, and fell to the turf. The alert catcher scooped it up, stepped on the plate, and fired to third. The third baseman tagged the bag, wheeled, and fired to Parmenides at second. The umpire yelled "Three outs—triple play!" Immediately all the Visigoths poured out of the dugout. In the fracas that ensued, one of them set a precedent by killing the umpire. The Hellenic League Council declared the Nemeses winner by forfeit with a final score of 50 to 49. Zeno was feted as a hero, and the Infield Fly Rule was retroactively amended so that it would not apply to philosophers who are beaned by the ball while sincerely arguing the Rule's inapplicability.
However, Zeno's Paradox did not solve the question of why the Infield Fly Rule arose in the first place, a dilemma that would have to await the genius of Aristotle. But Zeno's work did inspire one of Euclid's famous postulates—you know, the one about the triangle. Euclid began by noting that in the infield fly as described by Zeno, the upward leg of flight of the baseball was equal to the downward leg, since they formed a straight line superimposed upon one another. This was true even if the ball itself never came down. Now, Euclid reasoned, what if one were to pry apart the two legs from the bottom? This would create a new figure, which Euclid named a "triangle." Upon pondering this new geometric construction, Euclid further observed that merely separating the legs would not increase the length of either of them. Thus, the "sides" of the "triangle" remained equal when pushed apart. To test his theory, Euclid drew a diagram depicting the two sides of the triangle as squeezed back together. They merged into a single vertical line representing the height of the triangle, just as Zeno had earlier predicted. Euclid proudly announced that in all future triangles the height of the triangle will be represented by a vertical dotted line—a lasting virtual homage to Zeno and his critical insight into the deep metaphysics of the Infield Fly Rule.
All Quiet on the Internet Front
There's an unbelievable amount of Internet Law news hitting the wires today.
The litigation over the Child Online Protection Act has finally produced a judgement on the merits, after two Supreme Court decisions on the preliminary injunction and a big kerfuffle over broad third-party subpoenas issued to search engines by the government during discovery. The ACLU et al. won, unsurprisingly.
Viacom has been sued under 17 U.S.C. § 512(f) for sending a takedown notice to YouTube that demanded that a parody that contained clips of the Colbert show (a meta-parody, I guess) be removed. I haven't read the complaint yet, but the plaintiffs will have to show that Viacom "knowingly materially misrepresent[ed] that [the] material or activity" at issue was infringing -- in other words, that Viacom knew (not just should have known) it was a parody protected by fair use. That seems pretty unlikely.
On a related note, Wall Street Journal columnist Walter Mossberg had a column this morning on the Viacom v. YouTube suit, on which I hope to post more thoughts soon.
NBC Universal and News Corp. (i.e., Fox) have agreed to enter a joint venture that will make video clips and entire television episodes and movies available online, some of it for free. There's very little detail at this point, but obvious questions are what quality the video will be, how easy the site will be to use, what sort of security the videos will have, and whether it draws enough of an audience. I watched my first episode of broadcast TV online recently, and while it was smaller than I prefer, it got the job done. Oddly, while the show itself was high quality, the commercials were pixelated and skippy. But that's better than the reverse I suppose.
And Justice Breyer recently got an earful about the high cost of e-discovery. From the article, it sounded pretty clear what litigation associates are going to be doing during all those extra hours they're going to be putting in this year.
It's days like this make teaching Internet law challenging. Just this morning I told my students that there wasn't much law yet on Section 512(f), but we may get a third (or fourth) important decision on it. And online video distribution seems to be mutating by the hour.
Hayden & Wilson v. Toensing & Elliot
Various apologists for the Bush administration have argued that Pat Fitzgerald never should have been appointed special prosecutor on the grounds that, said apologists claim, Valerie Wilson wasn't covered by the Intelligence Identiy Protection Act (IIPA). It's a required element of any crime charged under the IIPA that the agent whose cover is blown be "covert", not just classified. Covert status requires having been recently (I believe, within 5 years of any chargeable leak) involved in intelligence activities outside US borders.
Victoria Toensing, who helped write the IIPA as a Senate staffer in 1982 and has a history of working for Republicans (a fact I note simply to point out that she is not simply "a Washington lawyer", as some media outlets have taken to referring to her) wrote in a February, 2007, WaPo column that
On Dec. 30, 2003, the day Fitzgerald was appointed special counsel, he should have known (all he had to do was ask the CIA) that Plame was not covert, knowledge that should have stopped the investigation right there. The law prohibiting disclosure of a covert agent's identity requires that the person have a foreign assignment at the time or have had one within five years of the disclosure, that the government be taking affirmative steps to conceal the government relationship, and for the discloser to have actual knowledge of the covert status....
Plame was not covert. She worked at CIA headquarters and had not been stationed abroad within five years of the date of Novak's column.
Ms. Toensing recently testified to the House Oversight Committee to similar effect.
Equally informed on this matter appears to be PrawfsBlawg commenter Elliot, who recently wrote
I have read the requirement that such an employee would have been out of the country in the prior five years. On this, I don't think Plame qualified.
I admit to a certain amount of respect for the uncanny ability of folks like Toensing and Elliot to know the details not only of CIA personnel matters, but also the stamp contents of a (presumed, on my part) stranger's passport. I've always wondered how it is that such folks have managed to ascertain Valerie Wilson's travel history. I wonder, do they know where and when I travel? How about my dog---do they know when she gets her walks? Her treats? But I digress.
There certainly is decent circumstantial evidence that Wilson was covered--e.g., the fact that the CIA referred the case to DOJ in the first place, the fact that DOJ began an internal investigation, the fact that AG Ashcroft (a man not to my knowledge generally known as a water-carrier for either the CIA or Democrats) recused himself when Karl Rove's involvement became clear.
But hey, never mind all that. Here's an excerpt from last Friday's House Oversight Committee hearing, courtesy of ThinkProgress. "Cummings" is Rep. Elijah Cummings (D-MD), and "Wilson" is Valerie Wilson:
CUMMINGS: Ms. Wilson, first of all, thank you for your service. Ms. Wilson, even today your work for the CIA is so highly classified that we’re not permitted to discuss the details, but we can clarify one crucial point — whether you worked undercover for the CIA. You said your position was covert but I’ve heard others say you were not covert. In fact, one of the witnesses who will testify a little bit later, Victoria Toensing, is making that same argument. In an op-ed that appeared in the Washington Post on February 18, she says it quite bluntly. She says, “Plame was not covert. She worked at CIA headquarters and had not been stationed abroad within five years.” I know there are restrictions on what you can say today, but is Ms. Toensing’s statement correct?
WILSON: Congressman, thank you for the opportunity. I know I’m here under oath, and I am here to say I was a covert officer of the Central Intelligence Agency. Just like a general is a general whether he is in the field in Iraq or Afghanistan, when he comes back to the Pentagon, he is still a general. In the same way, covert operations officers who are serving in the field, when they rotate back to a temporary assignment in Washington, they, too, are still covert.
CUMMINGS: Is it possible that Ms. Toensing had more information than you do about your work or had access to secret document that you don’t?
WILSON: I would find that highly unlikely, congressman, because much of that information about my career is still classified.
CUMMINGS: On Wednesday night, I know that Mr. Waxman, our chair, and Congressman Reyes, the Chairman of the House Intelligence Committee, spoke personally with General Hayden, the head of the CIA. And Mr. Waxman told me that Gen. Hayden said clearly and directly, “Ms. Wilson was covert.” There was no doubt about it. By the way, the CIA has authorized us to be able to say that. In addition, I understand that Chairman Waxman sent his opening statement over to the CIA to be cleared and to make sure that it was accurate. In it, he said, “Ms. Wilson was a covert employee of the CIA.” “Ms. Wilson was undercover.” The CIA cleared these statements. I emphasize all of this because I know that there are people who are still trying to suggest that what seems absolutely clear isn’t really true and that you weren’t covert. And I think one of the things we need to do in this hearing is make sure there isn’t any ambiguity on this point. Just three more questions, did you hold this covert status at the time of the leak? Did you — the covert status at the time of the leak?
WILSON: Yes I did, congressman. Yes.
CUMMINGS: Number two, the Identities Protection Act refers to travel outside the United States within the last five years. Let me ask you this question. Again, we don’t want classified information, dates, locations, or any other details. During the past five years, Ms. Plame, from today, did you conduct secret missions overseas?
WILSON: Yes I did, congressman.
CUMMINGS: Finally, so as to be clear for the record, you were a covert CIA employee and within the past five years from today, you went on secret missions outside the United States. Is that correct?
WILSON: That is correct, congressman.
[The emphases are mine.]
I'll note one thing for the record: Cummings asks about "five years from today", which would start the window at March 16, 2002. Bob Novak's column blew Wilson's cover in July 2003. Elementary arithmetic operations suggest, therefore, that either Wilson is lying or mistaken on the one hand, or she had satisfied the foreign-mission requirement as of July 2003.
One last note for entertainment's value: Novak has a new column today, in which he writes:
[Waxman] is no fool who would misrepresent the director of central intelligence. Waxman was correctly quoting Hayden. But Hayden, in a conference with Hoekstra yesterday, still did not answer whether Plame was covert under the terms of the Intelligence Identities Protection Act....
Hayden's endorsement of Waxman's statement astounded Republicans whose queries about her had been rebuffed by the agency. That confirmed Republican suspicions that Hayden is too close to Democrats.
My own private Everest
Boulderites love challenges. Some compete in triathlons. Still more do century rides. The truest Boulderites risk death scaling the likes of Mt. Everest. Me? I tried using technology in the classroom. And I wore a ballgown to class this week.
Let me explain. I am an old-fashioned girl. In many ways. I still own a VCR. But especially when it comes to teaching. Give me a nice, freshly-washed chalkboard any day, and I'll teach you a good tax class. What's our taxpayer's amount realized? Up on the board. Her basis? Up on the board. Her taxable gain? Up on the board. Works like a charm for the step-by-step analysis needed in tax.
So why risk a sure thing?
Simple: the dreaded 2:30-4:30, post-lunch, food coma time slot. For tax. I knew I had to take drastic steps. So, I set a goal -- to show five video clips related to tax issues.
So far I've done three. The first was from the Daily Show, about Oprah's car giveaway (tax-free gift? or taxable prize?). Another was from Up for Grabs, which portrayed the melee and lawsuit over Barry Bonds' record-setting home run ball (taxable treasure trove? Or mere appreciation?). Despite a trial run in an empty classroom, it still took me a couple tries to work everything smoothly. But clip #3, I did all by myself.
And the ballgown? Not exactly high-tech. But once I broke out of my comfort zone, I couldn't stop. I was teaching Pevsner, about a woman who worked at Yves St. Laurent and had to shell out for lots of fancy clothes she never wore outside of work due to her simple lifestyle. The court denied her a business deduction, because she "could" wear the fancy gowns elsewhere and she'd look "nice." My long black gown nicely proved the point that sure, you can wear a fancy floor-length dress anywhere, but you sure look silly doing so!
So that stuff? Maybe just Mt. Kilimanjaro level. But blogging? That's at least K2. I'll have to be careful during the rest of my stint (and with my remaining two clips). After all, 80% of climbing accidents happen on the way down from the summit.
How have you challenged yourself in class lately?
Variations in Law School Student Cultures
I am editing a symposium article I wrote for the University of Connecticut Law Review’s conference, Wal-Mart Matters. Once again, I am reminded how impressed I was by the dedication and devotion of the student organizers at the symposium who worked hard to make it a success. At this point, I have been to quite a few of these law review events and student-run conferences in all parts of the world. In Hartford, the level of participation, cordiality, and hospitality exemplified by the UConn law students was truly something to write home about. The students would bend over backwards to attend to every small detail. Students insisted on taking your coat and hanging it, getting you drinks, food, calling cabs for you, calling the hotel, completely by their own initiative, to make sure they now about a late check in/out, and they had this eagerness . And on a Saturday morning, the law students filled up a very large lecture room, each one of them dressed in a well-tailored suit.
I remember two year ago, when I was on the market, I was struck by variations in student cultures in law schools, that at least at first glance, didn’t seem to follow any predictable patterns of ranking, geography, public/private law school. I have heard however some people say that in colder or more isolated cities, students are more devoted to their extra-curricular law school activities. A friend of mine who recently moved from the Mid-West to a Californian Law School recounts how astonished he was initially when his new West Coast RAs informed him they were only available three days a week, as they needed a long weekend every week for play. I have also heard it said that in public law schools, students tend to be more active and act less as consumers and more as institutional citizens. Thoughts and impressions?
Le Grand Content
The meaning of life on YouTube -- this power point presentation is hilarious, in a Francophile way.
Wednesday, March 21, 2007
What's next? Student Suspended for Sign: "End Homework"
Judge Sarokin writes:
Let me see if I understand this. A high school student was suspended for unfurling a sign on a public street, the content of which was inconsistent with the school's policy---in this case its anti-drug message. And the Supreme Court is struggling with this? Unless there was a factual finding below that this conduct was disruptive and part of a school function, it is inconceivable to me that the suspension can be sustained. The mere fact that the subject was drugs cannot possibly limit the student's free speech rights.
Suppose the sign read: "Legalize Pot"? And let's take out of the equation that the sign was displayed in a public forum and not in school or at a school function. Suppose, in a classroom devoted to teaching the students the dangers of drugs,a student announced that he believed that marijuana should be legal. Could that student be suspended because he enunciated a view that was inconsistent with the school's policy regarding drugs?
And if the argument is not limited to drugs, but encompasses all speech contrary to the stated goals or policies of the school, what of the student who unfurls a sign outside the school: "Bring Back Prayer in the Schools" or "End Homework" or "Stop Dissecting Frogs"? I can understand that the Court is anxious to establish some guidance regarding the limits, if any, to student speech, but boy, is this the wrong case to do that!
Federal Law and the Bar Exam
Seth Chandler, guest-blogging at the Conglomerate, has a very thoughtful post on the absence of federal law from the bar exam. As he persuasively describes, "bar licensing authorities persist in hurting business and hurting the public by not requiring lawyers to know essentially anything about federal statutory law."
One of my frustrations with the materials for Contracts courses is the focus on common law and the small role assigned to federal and state statutory provisions. I would imagine that a lot of this is bar-related. But there is also a chicken-and-egg problem here -- the bar tests what the schools teach, and the schools teach what the bar tests.
I hope folks at all levels start to think more about how we can remedy the weaknesses of the current state-bar-exam approach. Even though Seth apparently received a fairly harsh assessment in the past, I for one think his thoughts deserve serious consideration.
Supreme Court Update by Aaron Streett
Greetings, sportsfans! When Chief Justice Roberts testified in his confirmation hearing that he hoped to increase unanimity on the Court, skeptical observers did not realize that he had a secret plan: grant more Ninth Circuit cases. That strategy continued to pay dividends yesterday, as the Court unanimously reversed the CA9 for the sixth time this Term, and the CA9 ran its overall record to 0-9. Only time will tell whether the Ninth Circus can match the 1976 Buccaneers’ 0-14 mark. You may recall that the Bucs’ coach, when asked about the execution of the Tampa Bay offense, responded, “I’m in favor of it.” While no one is proposing execution here (which the CA9 would stay anyway), you have to admit that this is getting kind of ridiculous.
Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., 05-1429
The question here was whether federal bankruptcy law precludes the enforcement of a pre-petition contract that required a debtor to pay an unsecured creditor’s attorney’s fees. The Ninth Circuit had devised a unique rule that a creditor may not recover attorney’s fees it incurs while litigating issues peculiar to bankruptcy law. Justice Alito explained quite concisely that the CA9 rule “finds no support in the Bankruptcy Code.” Section 502(a) of the Code states that a court must allow a creditor’s contractual claim unless it falls within any of the exceptions set forth in § 502(b). None of those exceptions covers contractual claims involving creditor’s attorney’s fees. So the only question is whether the debtor’s contractual obligation to pay attorney’s fees is enforceable under state law, which applies to bankruptcy proceedings in the absence of conflicting federal law.
It turns out the court of appeals made up its rule out of whole cloth, apparently by misinterpreting earlier circuit precedent that had concluded attorney’s fees claims were barred as a matter of state law, not under the Bankruptcy Code. Seeing the writing on the wall, PG&E made “no effort to defend the [CA9’s] rule.” It did, however, come up with some creative statutory arguments why attorney’s fees still might not be allowed under the Code. Unfortunately for PG&E, it did not raise those arguments below, and the Court refused to consider them. Justice Alito wrote, “this demonstrates the critical importance of retaining appellate specialists in the early stages of litigation.” (In the interests of accuracy, I should note that I just now made that quote up.)
Travelers thus stands for one important legal principle that you won’t find mentioned in the syllabus: Even if you have CA9 precedent directly on-point, you might want to consider marshalling some additional support for your arguments (say, something with some basis in the western legal tradition).
· No new cert grants on Monday’s Orders List. Now that the OT ’06 docket is full, the pendulum has swung back recently toward the stinginess with grants that we saw earlier this Term.
· The Court CVSG’d in Joblove v. Barr Labs, Inc. (06-830), whose question presented concerns a Big Pharma tactic that is becoming increasingly common: Whether the Sherman Act prohibits a manufacturer of a patented brand-name drug from agreeing to share profits with the manufacturer of a generic substitute, in exchange for the generic’s agreement not to market its product.
Until next time (opinions tomorrow??), that’s today’s baseball.
Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. I’m Aaron Streett and I approve this message. If you would like to subscribe to these updates, please send an e-mail to email@example.com
I am signing off for now... Thanks to the Prawfsblawg folks, especially Dan, for allowing me to blather on for a while. I hope to be invited back soon for another guest stint - it has been lots of fun.
Public Schools as First Amendment Institutions?
I've been reading the oral argument transcripts in Morse v. Frederick. Interesting reading. With the luxury of a Wednesday-morning quarterback, I'm not blown away by Kenneth Starr's argument (not that I could do better!); he seems to suggest that while Tinker's rule protecting student political speech should be maintained, there should be some kind of per se carve-out for drug-related speech, presumably for the reasons so eloquently offered by Mr. Mackey. I don't think those two principles sit together well. But let me move past that and focus on a related but different aspect of the argument. In effect, Starr and Edwin Kneedler, the Deputy SG, argue that public schools should be able, "under our policies of federalism . . . and democratic theory[,] to fashion [their] educational mission[s] subject constitutional safeguards." Pursuant to this principle, "a school does not have to tolerate a message that is inconsistent with its basic educational [mission]."
Sound familiar? To those few valiant readers who have struggled through my most recent paper, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, it should. This is very much the sort of argument I have advanced in the university context, as to both public and private institutions. I have argued that under some circumstances, universities ought to enjoy substantial autonomy to shape their own institutional missions and to regulate speech and other aspects of campus life in accordance with those missions. So does that make me a fan of the arguments advanced by Starr and Kneedler? If universities are entitled to be treated as First Amendment institutions and granted substantial autonomy accordingly, are K-12 public schools similarly entitled?
My tentative answer is, not exactly. I am not averse to treating public schools as First Amendment institutions in a variety of ways. But there are important distinctions between public schools and universities, and those differences should shape our legal treatment of those distinct institutions. First, universities are sites for the exchange of ideas, and for the production of free speech, in the form of research, publication, speeches, conferences, and so on. Public schools, on the other hand, primarily serve the First Amendment as sites for the production of the facility for free speech: that is, they teach children so that they will have the capacity to be engaged and active citizens elsewhere and later in life.
That distinction may actually point in favor of the approach that Starr and Kneedler propose. But there are other differences that may point in the opposite direction. One aspect of my institutional approach has tended to be that a variety of speech institutions deserve greater autonomy because they are highly self-regulating, and that self-regulation takes place through a variety of norms and traditions that tend to be fairly stable, fairly disciplined, and fairly protective of and conducive to free speech values. It is not clear the same can be said of public schools and public school administrators, and there may therefore be a greater need to subject them to a greater level of constitutional constraint. Moreover, I tend to assume that there is greater room for a variety of distinct educational missions among universities, and thus greater room for a varying approach to speech rules among those universities. By contrast, it may be that the "institutional mission" of the public school is more uniform, and that this mission requires a more uniform approach to student speech, and thus calls for less deference to a public school's "autonomy," even if there are still substantial reasons to defer to a school administrator's on-the-ground judgment about particular facts. I note that the growing number of magnet schools and other mission-specific public schools might change the validity of this second argument.
In short, I don't think we should discount Starr and Kneedler's argument out of hand, but I think their particular focus on deference to a public school's "institutional mission" is more misplaced in the public school context than it would be in the university context. Deference to a public school administrator's factual judgment in particular cases is different from deference to a public school's general educational mission, and we ought not conflate the two, which I fear their argument does. There is room for a variety of educational missions and corresponding speech regimes in the wider universe of universities, and we can be somewhat assured that deeply settled norms of self-regulation, as well as market forces, will offer meaningful constraints in these circumstances; it is less clear that the same is true in the public school world.
What's my sense of how Morse itself should come out, regardless of the First Amendment institution issues? I think the focus on drugs, or even on some kind of per se rule against advocating illegal conduct, is a dead end. I certainly do not think schools should be free to suppress any and all such messages in any public school location. For example, I think a rule saying that a teacher in a lunchroom can punish a student for telling a table of classmates that he thinks the drug laws should be reformed, or that the President should authorize assassinations even where not legally authorized to do so, would be wrong, although it seems to me Justice Scalia's comments at oral argument almost seemed to favor such a rule. Certainly such an approach would eviscerate Tinker. I would rather see the Court focus on two questions: location (or context) and disruptiveness. Future conduct like that of Frederick in this case could still be prohibited under a reasonable consideration of those factors, it seems to me, without giving administrators a roving license to selectively and clumsily punish student speech in a content- or viewpoint-based manner based on their own, often dim understanding of their educational "mission."
Advanced Special Topics in What I'm Thinking About This Week
They're rumored to be cake for all involved. For the prawf: an easy prep related to your current research. For the student: an all-but guaranteed easy B+ (at least), no exam, one meeting a week. Maybe a nice recommendation at the end of it all. What are "they"? Seminars, of course!
But what are they really about? More precisely, what should they be about? Is the point of a seminar (a) to teach substantive law on more advanced topics and in more depth than in a traditional class? Or is it (b) to give students an opportunity to critically engage with and discuss current scholarship on a given topic? Or both?
More after the jump ...
Let's say you teach a tax policy seminar, and you want to cover consumption taxes. (I know, this is tax. But the questions apply across all fields!)
Is your goal to teach students (not all of whom have the same tax background, even if basic tax is a pre-req) (1) what consumption taxes are, (2) the various ways they could be implemented, and (3) how our current system already contains elements of a consumption tax?
How do you get all these points across? Do you assign articles, or more descriptive pieces? Do you assign problem sets, like in most traditional tax classes? If so, then how does this seminar differ from a two-credit class?
Or is it to have students debate whether a consumption tax would be better than our income tax? Or to read and evaluate the latest consumption tax literature? Can they really debate the merits of a consumption tax without a full understanding of how they work and how they could be implemented? If you want them to read and debate current literature, do you care if the students "get" all the author's main points? Or do you just want them to use the articles as a jumping-off point for a lively discussion? How do you generate and guide the discussion, if at all? Do you assign several small reaction papers, or one longer research paper?
My own thinking is to combine the two next time I teach a seminar. We'll spend two weeks on each topic. The first week, we'll do substantive law background, where I'll teach like I usually do, through problem sets. The next week, I'll assign two articles with contrasting views to generate discussion. I'll try designating 2-3 students to be discussion leaders for each of these sessions, to ensure that at least some people have done the reading in depth. I hope those students will take ownership of the sessions and feel responsible for making sure a good discussion ensues.
What do you hope to accomplish in the seminars you run, and how do you structure the course to attain those goals?
Tuesday, March 20, 2007
An Update on the UC Irvine Proposed Law School
Unlike previous reports, and an announced dean’s search in the professional announcements SSRN list, the question of a new University of California law school at UC Irvine is still up in the air. This morning, the California Post-Secondary Education Commission today voted 7-3 against the proposed new law school at UCI. The matter now returns to the UC Board of Regents. Here is an op-ed on the matter from today’s Sacramento Bee opposing the proposal.
Law and Religion at St. John's
If you are in or near New York City, here is an event that might be of interest: On Friday, March 23, from 9:00-3:00, St. John's University School of Law is hosting a symposium (CLE available!) on "Law and Religion in the Public Square." Noah Feldman is the keynote speaker, and presenters include Chris Eberle, Philip Hamburger, John McGreevy, Kent Greenawalt, Leslie Griffin, Bernadette Myler, and -- well, me. "My" panel is on "religion and group rights":
Conventionally, the free exercise of religion is thought to protect individuals. Recently, however, courts and commentators have asked anew whether our constitutional commitments also protect the rights of religious institutions or groups. Courts have debated, for instance, the supervision of diocesan finances by a bankruptcy court or administrative agency, the requirement thatreligiously affiliated organizations pay for employees’ contraception and churches’ decisions about the hiring and firing of clergy. Arguing from history and doctrine, panel participants will consider the concept of church autonomy in American law.
Is Torture a Fate Worse than Death?
Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. [Emphasis added.] Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?
Commenting on this quote, Adler writes that
I have long taken it for granted that there are some things worse than death. Certainly torture, if severe enough, can be worse. Apparently this is not a universal view, however.
I couldn't agree more with Adler on this point. And, apparently, neither could John McCain after being tortured. According to this article in Sunday's NYT, in the years after McCain was captured by the North Vietnamese,
he spent two years in solitary confinement, was bound, kicked and stomped, had his left arm broken again, suffered from dysentery, and tried to commit suicide [emphasis added].
(Note: according to this bio at Answers.com, McCain's "contemplated suicide" because he signed "a confession that he was a 'black criminal' and an 'air pirate'." The bio does not say that he never did attempt suicide, for what it's worth.)
(Another note, from an October 18, 2006 abcnews blog post: "While campaigning for Republicans in Iowa today, Sen. John McCain (R-AZ) jokingly said 'I think I'd just commit suicide,' when he was asked how he would react if the Democrats gained majority control of the United States Senate." McCain's still alive, so I guess he decided a Democratic Senate is not worse than death, after all.)
Closed Chambers? Not Exactly
A curious story in the New York Times today, in the business section. The story recounts State Farm's plan to work through state regulatory channels to reopen Katrina-related insurance claims rather than through the federal district court judge (L.T. Senter Jr.) with carriage of a related case in which a settlement plan has been languishing. What I found interesting was not those details, but the fact that the story quotes an anonymous "clerk." Here's the key excerpt:
Judge Senter would not comment yesterday. One of his clerks, speaking on condition of anonymity because he does not want to become part of the public debate, suggested that the judge cared more about resolving the case than who was supervising it. “The judge is all for anything and anyone who wants to move these cases toward resolution,” the clerk said. But, he added, the judge could still call both sides back into court.
Now, I don't know whether the person quoted is a law clerk to Judge Senter. I suppose it could have been the clerk of court, or just a poor use of the word "clerk," though when I see the possessive -- "one of his clerks" -- I tend to assume the person is a law clerk. Nor do I know whether the clerk in question, assuming the attribution is genuine and it is a law clerk, is a short-timer or a career law clerk. But it is a rarity to see a law clerk to a federal judge quoted talking about an ongoing case, even anonymously. It tends to leave rather a bad taste in my mouth. I'm not a Kozinskiesque insister on lifelong silence from law clerks -- my somewhat fence-straddling view is that law clerks should take their obligation of confidentiality very seriously and maintain it during and for quite some time after their clerkships, but that eventually the interests of history may outweigh the sanctity of that vow. (None of which, to my mind, excused the law clerks who chose to talk to Vanity Fair relatively soon after the Bush v. Gore case, and whose justifications for doing so seemed to me to be both insufficient and melodramatic.) But during the pendency of a case? No way -- even for such an innocuous quote as this.
I haven't done the spadework to determine whether any canon of judicial ethics could conceivably cover such a situation; comments are welcome. Given the small staffing of the chambers, I should think it would not be difficult for a judge to investigate such a "leak." But, of course, that raises the possibility -- the likelihood? -- that it was not really a true leak, and that the clerk spoke with his/her judge's permission. And that raises another interesting question: if a judge orders a law clerk to communicate anonymously with the press concerning a pending case, must/should the law clerk refuse to follow the judge's order?
Comments are welcome. Please phrase your answers in the form of a question.
Monday, March 19, 2007
Article Placement: Inside Deals and Beyond
The allegedly traditional means of placing a law review article is to send it out in season, and then play the expedite game. But from conversations with colleagues at Arizona and elsewhere, I wonder if the traditional method is getting harder. One development is the increasing number of law review pages devoted to symposia, resulting in fewer spots for unsolicited pieces, and reinforcing the importance of good connections. There is also the hand-carried piece; a friend at a highly ranked school who vouches for a paper can help get it accepted, again, a connection-driven method. I've also heard of successful publicity campaigns, sending the journals not a mere request for expedited review, but a series of updates on how many blogs have featured a piece, impressive SSRN download stats, and what the commentators have said about its insights and novelty. And a scholar whom I greatly admire has a hatful of top placements with no special connections. S/he sends out 10 page prospectuses to top journals pitching an as-yet unwritten piece, seeking a commitment in advance; this strategy worked even when this scholar's CV had few or no glittering publications. It will always be true that some scholars with no connections will send out articles blind and bring home top placements, and that connections at top schools won't hurt a great piece. But is tougher that it used to be to be to get an article accepted in a strong journal when it has been expressoed out over the transom? Is the traditional method insufficient to get serious attention? Tales of both injustice and successful manipulation of the system are welcome, feel free to name names.