Thursday, May 31, 2007
Double Trouble on the Virtual Property Front
Yesteray brought huge news for those of us who study virtual property. And then it brought huge news again.
First, the Bragg v. Linden lawsuit just survived a motion to compel arbitration. That suit started when Second Life caught a player gaming their in-world land auction system and confiscated his ill-gotten virtual gains. He strenuously disputed their story and claimed he was an innocent landowner misled by Linden Labs’ (Second Life’s developer) repeated claims that players really “own” the virtual land inside of Second Life. The suit squarely pits developers’ allged right to make changes to their worlds against players’ alleged rights to be secure in their property. As a legal matter, I think the developers ordinarily have a much better case, but Bragg’s attorney has been able to dig up a whole bunch of Linden PR materials that really make players’ rights sound pretty darn unrestricted. They’re bad facts for Linden, whether or not they end up being legally relevant.
Yesterday’s decision was just a prelude. After procedural wrangling that took the case from small claims court to state court to E.D. Pa., Linden moved to compel arbitration. The Second Life terms of service include an arbitration clause, but Judge Robreno blew away the arbitration clause as unconscionable. Drawing heavily on Comb v. Paypal, he emphasized the nonmutuality of the clause, its California venue, and the effects of its fee structure. It’s hardly a blanket rule against arbitration in virtual world contracts, but it would invalidate a lot of extant arbitration clauses. It also reaches the opposite result than the only other virtual world arbitration case thus far: the Blacksnow case.
Neat stuff. Hat tip: TerraNova
Former students at other schools
I am wrapping up what has been -- for me, at least -- a wonderful time visiting at another law school. Here's a question I've been mulling over, about former-visiting-law-prof practice, expectations, and etiquette, for those who have taught, as a visitor, at schools other than their own, and for those who have been taught by such profs: In your experience, is the professor / former student relationship different when the professor was, at the time of the relevant course, a visitor? In what way?
I've tried to make it as clear to the students with whom I've had the pleasure of working as a visitor that, so far as I'm concerned, they are, no less than students at my own law school (stuck being) "my students" . . . forever. But, how should I expect the relationship to work, really? For example, do students ask professors-they-had-as-visitors for clerkship and other recommendations, career advice and help, etc.? Any thoughts?
Get those potential torture victims off your mother f***ing plane
Thanks to a colleague of mine for pointing me to this story, ACLU Sues Boeing Subsidiary for Participation in CIA Kidnapping and Torture Flights which is available at http://www.aclu.org/safefree/torture/29920prs20070530.html.
In a nutshell, the ACLU announced yesterday its suit against a Boeing Subsidiary for their participation in CIA kidnapping and torture flights. The lawsuit charges that Jeppesen Dataplan, Inc. knowingly provided direct flight services to the CIA that enabled the secret transportation of three individuals to locations in Morocco and Afghanistan where foreign intelligence officials subjected them to torture. While the ACLU was already active in the rendition debate, most recently petitioning the Supreme Court to review the case of Khaled El-Masri (see www.aclu.org/rendition for more information), I believe this is their first effort to seek corporate liability for actions taken in pursuit of the War on Terror.
While this lawsuit will likely encounter many of the same legal problems of El-Masri litigation, it may provide the seeds for a shaming campaign of those companies that knowingly participate in the darker side of the war on terror. For instance, the ACLU and other advocacy groups held a protest rally yesterday outside Jeppesen's offices. You can check out the youtube video discussing Jepperson's involvement in the kidnapping and torture flights here http://www.youtube.com/watch?v=NdLwTu-L4Wo.
Greetings from Ann Bartow in EVEN SUNNIER Columbia, South Carolina!
Not that I'm feeling competitive with fellow guest blogger Lesley Wexler or anything! I jest, of course. I'm not even supposed to start guest blogging here until tomorrow but Dan sent me the keys to the blog this morning, so I thought I'd start fomenting feminist revolution a day early. Or at least say a cheery hello, following Lesley's gracious lead. Hey y'all, how y'all doing?
I'm an Associate Professor of Law (with tenure) at the University of South Carolina School of Law, and just finished up my seventh year here. I've been blogging for going on three years at Sivacracy and at Feminist Law Professors for slightly over a year. I teach and write about Intellectual Property Law and Feminist Legal Theory. Obligatory scholarship plug: most of my writings are available at my BePress page or my SSRN Page. I like puppies, kittens, and long walks in the rain.
I'll pretty much be writing about whatever I friggin' feel like (did I mention that I have tenure?) but will at some point blog a bit about the intersection of copyright law and pornography, though that will not be the topic of my first substantive post, in part to avoid unfortunate puns like "starting off with a bang." I'll probably post about Internet Harassment issues as well. We'll see how it goes.
See you tomorrow!
Policing the (once again) modern city
Readers of the regional pages of the New York Times lately have been treated to some rich reportage on policing in Newark, East Orange, and today New York's Muslim and African immigrant communities. (for my commentary on the first two). Cara Buckley's article on trust building efforts by the New York Police Department show cases the complexity of "law enforcement" in cities like New York that with waves of immigration have returned in many ways to the governance problems (and opportunities) of the early 20th century and raises many good questions for socio-legal researchers. (Yet another reason to get a PhD, these days even the best reporting increasingly resembles social science modes of analysis, with empirical qualitative and quantitative, moves).
What are the consequences of the new emphasis many police departments are putting on reaching their constituents in distinct identity communities (as distinct from the purely territorial model of most post WW II policing)? (a question my colleague David Sklansky's recent scholarship is touching on).
Can smart and sophisticated chiefs like Kelley in New York and Bratton in LA (the parts of the New York Crime Decline that unlike Rudy are worth keeping) overcome the incredibly negative perception in Muslim communities left by the ham handed tactics of the Justice Department and the FBI in the months and weeks following 9/11? (on police leadership see Jerome Skolnick and David Bayley's 1988 classic, The New Blue Line)
How do immigrants themselves map the boundaries between municipal and national governments (NYPD won't report you to the ICE if you are a victim or a witness, but they will if they arrest you) and generally what are the consequences of the intense legal pluralism at work in early 21st century cities?
How do the nationalizing moves in American governance since the New Deal alter the ways city's seek to govern non-citizen subjects in the early 21st century from the approaches taken in early 20th century cities?
On the latter, and for a reminder of why I believe we are in the midst of a new moment for socio-legal studies, like the birth of legal realism, see Roscoe Pound, Administration of Justice in the Modern City, 26 Harv. L. Rev. 302 (1912-13) [link requires HeinonLine access]
Greetings from sunny Tallahassee
Thanks to Dan and PrawfsBlawg for inviting me to blog. By way of background, I am just finishing my first year as an Assistant Professor of Law at Florida State University College of Law where I teach Laws of War, Torts, and Employment Discrimination. I ended up in academia by way of a Bigelow fellowship, so I thought I might also touch on some of the benefits of these pre-tenure track positions. I know several people have extolled the virtues of fellowships, but I think there are even more benefits than meet the eye.
In upcoming weeks, I also plan on blogging about the areas in which I'm reading and writing which include international law, laws of war, and norm theory. My scholarship tends to explore the intersection of security and human rights issues as well as emphasize some of the non-legal roles of international law.
Administrative Law Prof Blog
Before we leave the topic of the super-productive, I wanted to highlight a new blog being edited by my (super-productive) colleague Dru Stevenson. Dru is posting all sorts of interesting stuff at the new Administrative Law Prof Blog in spite of the fact that he's teaching a summer class and writing like crazy. As William says, I don't know how he does it.
Another New Internationalized Criminal Tribunal
The United Nations Security Council authorized the creation of a new criminal tribunal yesterday. This tribunal is to investigate and prosecute "the masterminds of the February 2005 suicide bombing that killed former Lebanese prime minister Rafiq al-Hariri and 22 others." This will be the first internationalized criminal tribunal related to the Middle East. When it came to the Security Council vote, China, Qatar, South Africa, Indonesia, and the Russian Federation abstained. (With regard to South Africa, the abstention is part of a pattern of voting and state practice in recent years that has hesitated to apply international criminal and human rights law. This pattern of state behavior has not gone unnoticed or immune from critical commentary, particularly given how international human rights law was effectively mobilized as one factor bringing about the formal end of apartheid).
The United States is a strong supporter of this new tribunal -- once again demonstrating the U.S.'s support for the idea of criminal trials for serious crimes, so long as the institution cannot independently assert jurisdiction over U.S. citizens. Hence the U.S. preference for specialized tribunals created by the Security Council, over which the U.S. exercises a veto, instead of the permanent International Criminal Court (ICC). Although, even on that score, the U.S. opposition may be thawing a little bit. After all, the U.S. did not oppose the Security Council's referral of the Darfur situation to the ICC.
The Lebanon tribunal will be a mixed (i.e. with Lebanese and non-Lebanese officials) institution based outside of Lebanon (though a specific location has not yet been determined). However, it will proceed according to Lebanese criminal law only.
With regard to the new tribunal, concern has arisen whether Syria's alleged involvement with the assassination, if formally brought to light, may destabilize the region. The interminable peace vs. justice debate continues. Today's WaPo reports:
Lebanon's political leaders are deeply split over the ongoing pursuit of justice by a U.N. commission that has implicated senior pro-Syrian military officers in Lebanon, as well as Syrian officials close to President Bashar al-Assad. Lebanese Prime Minister Fouad Siniora urged the council to establish the court, while Lebanon's pro-Syrian opposition leaders opposed the initiative and in March blocked parliamentary approval for such a court.
Lashing Oneself to the Mast.
With the inspiring image of Dean Kagan shuffling through Whole Foods in my mind, I can now return to my own quotidian drudgery with renewed enthusiasm. And, although I don't happen to be at the helm of one of the world's great law schools at the moment, I have added a new source of pressure to my own schedule: a belated effort at self-improvement. There's nothing like a debut year of academic conferences, workshops, and presentations among the genuinely learned to embarrass new professors with the gaping lacunae in their knowledge.
So, starting with my own area of corporate and securities law, I've attempted to compile a canon of the seminal books, law review articles, and other sources that a doctor of philosophy might have digested through serious professional training. Happily, this very blog has done great work on this front, and Professor Robert Thompson of Vanderbilt conducts an annual survey of the top ten corporate and securities law review articles. Of course, SSRN also deposits a deluge of new pieces into my inbox regularly as well. So, there is no shortage of ways to improve my specific knowledge of this field (perhaps just time in which to do it).
More broadly, there is also the duty as a professor to improve one's general knowledge. Daily newspapers and regular periodicals are a wonderful way to taint whatever moments of discretionary time remain unpolluted in your schedule. But surely no one who is a member of the academy should fail to have read Homer, Shakespeare, Tolstoy, and the other geniuses of the human condition. So I have tried to compile a list of those kinds of things as well.
Of course, drafting lists and then organizing lists of lists doesn't actually accomplish very much. But I am looking forward to adopting at least one habit of -- dare I say it -- highly effective people: listening to audio books. I have signed up for an Audible.com account, purchased an iPod, and downloaded The Odyssey. While standing on the el platform, shuffling through the cafeteria queue, and putting petrol in my car, I look forward to hearing ennobling snippets from the great bard. And at this pace, I should reach civilization in about the same number of years as Odysseus.
Why Watters Matters: An Early Lesson from the First Circuit
Even in a quieter Term, the Supreme Court's 5-3 decision in Watters v. Wachovia Bank, N.A. would hardly go down as one of the more significant, noteworthy, or even interesting rulings handed down, and that will certainly prove to be the case as the present Term races toward its (increasingly controversial) end. That's not to say, though, that Watters won't turn out to have a substantial impact on federal and state commercial regulation in a large class of cases, and we have a First Circuit decision from yesterday as proof of that. [Hat tip to How Appealing.]
First, Watters. I've blogged extensively about the issue and the decision before (see, e.g., here, here, and here), but the short of it is that the Office of the Comptroller of the Currency is entitled to preempt state consumer regulation of "national banking activities" even when those activities are conducted by entities other than "national" banks. In Watters itself, the issue was whether the OCC could preempt state regulation of national banks' operating subsidiaries, and the Court affirmed decisions of the Second, Fourth, Sixth, and Ninth Circuits, all answering that question in the affirmative (although, as I noted at the time, the Court adopted the Ninth Circuit's Chevron-free analysis, rather than the Chevron-laden views of the other three circuits).
The problem is that by focusing on the activity rather than the actor, the Court endorsed a broad understanding of the OCC's preemptive authority, and one that could possibly extend to oust state regulation of all kinds of commercial actors, none of whom are actually "national banks," and none of whom are therefore expressly protected by federal statute. Justice Stevens, in his eloquent dissent, raised the specter of such a possibility, and the First Circuit, yesterday, proved Justice Stevens prophetic. More about the decision below the fold...
At issue in the First Circuit case, SPGGC, LLC v. Ayotte, was whether the OCC could preempt New Hampshire's regulation of gift cards sold by the operator of New Hampshire's three largest malls, given that the cards were "issued" by Bank of America, a "national" bank under the National Bank Act. Specifically, New Hampshire, via a consumer protection statute, sought to prohibit the sale of such gift cards when the cards contained both an expiration date and less-than-obvious administrative fees that would ultimately reduce the face value of the card. Thus, put another way, the case raises the question whether the OCC can preempt state regulation of third parties when the third parties are selling gift cards issued by national banks.
Writing for a unanimous panel, Judge Torruella held that the New Hampshire statute was preempted by an OCC regulation. In the opinion's critical passage, the court, understandably, relied upon Watters:
Because the National Bank Act confers on national banks the power to issue stored value gift cards like those at issue here and to market and sell them through third party agents, we consider whether the New Hampshire CPA frustrates the exercise of that power. The New Hampshire CPA prohibits the sale of a giftcard with a value of less than $100 that carries an expiration date or administrative fees. Ayotte argues that this regulation does not conflict with the National Bank Act or OCC regulations because it regulates only Simon, a company that is not a bank. Ayotte notes that no enforcement action was brought against USB. But this analysis is too formalistic: the question here is not whom the New Hampshire statute regulates, but rather, against what activity it regulates. See Watters v. Wachovia Bank, N.A., No. 05-1342, slip op. at 13, 550 U.S. __ (Apr. 17, 2007) ("We have never held that the preemptive reach of the [National Bank Act] extends only to a national bank itself. Rather, in analyzing whether state law hampers the federally permitted activities of a national bank, we have focused on the exercise of a national bank's powers . . . ." (emphasis in original)).
In other words, it is irrelevant whether the entity being regulated by the state is a national bank or isn't; it matters only whether it is conducting "national banking activities."
This may sound entirely reasonable, save one small problem: There is no support in the National Bank Act for such an activity-specific view of preemption. Quite to the contrary, the Act repeatedly relies upon the special and unique nature of national banks as justifying the preemption of state law. And so, whether the state law or the federal preemption is the wiser policy, there is absolutely zero evidence of congressional intent (which used to matter) supporting preemption of regulation such as that attempted by New Hampshire in this case.
Justice Stevens put it best at the end of his dissent in Watters:
Almost invariably the finding of preemption has been based on this Court’s interpretation of statutory language or of regulations plainly authorized by Congress. Never before have we endorsed administrative action whose sole purpose was to preempt state law rather than to implement a statutory command.
Just over one month later, we begin to reap the consequences.
Wednesday, May 30, 2007
Living Constitutionalism Lives
I do hope Balkin will comment on whether Ackerman's version of "The Living Constitution" is actually a form of originalism, since Balkin has recently argued that the distinction between originalism and living constitutionalism is overdrawn. When Ackerman first presented his theory of constitutional change, Suzanna Sherry, writing in The Ghost of Liberalism Past, 105 HARV. L. REV. 918, 933 (1992) claimed that “Ackerman’s theory is merely originalism flying under liberal colors.” My view is that Ackerman has exactly the psychological profile of the living constitutionalist that I draw in The Perpetual Anxiety of Living Constitutionalism. It is on display, in part, in these engaging lectures.
Farewell and Thanks
Well, I'm signing off. I'd hoped to be able to post some more over the last and next month or so, but the exigencies of moving from Tallahassee to Tucson (and, this week, playing in every single Vegas NL Hold 'Em tourney into which I can find/pay my way) have made that difficult.
I'd like to thank Dan Markel for inviting me to guest-blog here, as well as the rest of the PB crew for tolerating me all this time. I'd also like to thank those folks kind (or, at least, interested!) enough to comment on my posts. It's been a privilege and great fun to be part of such an excellent blog.
Fighting Them There So We Can Train Them To Fight Us Everywhere
Several weeks ago, I pointed out the silliness of what seems to have become one of the primary ex post rationales for continuing the US involvement in Iraq, namely that we can't leave Iraq because then the terrorists would follow us home. (I didn't know it at the time, but former Clinton and Bush anti-terrorism adviser Richard Clarke had made a similar argument a week earlier in the NY Daily News.)
Monday's NYT brought an article pointing to basically the opposite of the President's claims: one of the consequences of "fighting them over there" is that by engaging "them" (i.e., the relatively small number of global-network-style terrorists in Iraq) in Iraq, we're training "them" to fight us elsewhere.
Here's a key quote from the article (which is titled "Militants Widen Reach as Terror Seeps Out of Iraq"):
In an April 17 report written for the United States government, Dennis Pluchinsky, a former senior intelligence analyst at the State Department, said battle-hardened militants from Iraq posed a greater threat to the West than extremists who trained in Afghanistan because Iraq had become a laboratory for urban guerrilla tactics.
“There are some operational parallels between the urban terrorist activity in Iraq and the urban environments in Europe and the United States,” Mr. Pluchinsky wrote. “More relevant terrorist skills are transferable from Iraq to Europe than from Afghanistan to Europe,” he went on, citing the use of safe houses, surveillance, bomb making and mortars.
A top American military official who tracks terrorism in Iraq and the surrounding region, and who spoke on condition of anonymity because of the sensitive nature of the topic, said: “Do I think in the future the jihad will be fueled from the battlefield of Iraq? Yes. More so than the battlefield of Afghanistan.”
How Bout That War
A while back I posted on the state of the war and the president's claims of continuous progress. I thought it might be worth noting something that I remember reading about Paul Wolfowitz back in 2002, before President Bush decided to invade Iraq. On September 22, 2002, the NYT magazine ran a profile of Wolfowitz titled "The Sunshine Warrior". The article was written by now-executive editor Bill Keller, and it is quite favorable toward Wolfowitz in both tone and substance (Keller even seems to accuse Wolfowitz of membership in the reality-based community: "his style ... relies on patient logic and respectful, soft-spoken engagement rather than on fire-breathing conviction.")
The money quote from this article is one that has stayed with me for nearly 5 years now, ever since I read it. I thought it would be worth reproducing here, given both Wolfowitz's role in the news recently and the debate over the latest bill funding the Iraq war. Here it is:
Wars that defend our safety may command a higher price. What price? Would the danger posed by a nuclear-armed Saddam be worth, say, the lives of thousands of American soldiers, if that is what the experts estimated it would take to disarm him by force?
Wolfowitz posed the question himself and answered no. Weapons of mass destruction would not be enough to justify the deaths of thousands of Americans.
Got that? Preventing a nuclear-armed Saddam wasn't worth thousands of American soldiers' lives. But wait....there's more:
And in any case, thousands killed would mean the mission had gone badly wrong. [Emphasis mine.]
So much for the continued progress constantly claimed by the President and his current advisers.
Finally, here's Wolfowitz in his own words:
"So if that's what you estimate the costs of action to be, then you have to have something more on the other side of the ledger than just the possession of weapons of mass destruction,'' he wrote. Whether that ''something more'' that would justify that greater sacrifice meant evidence that Iraq was on the verge of using its weapons, or the prospect of establishing Iraq as an outpost of democracy, or a smoking gun tying Iraq to Sept. 11, he did not specify. ''In the end, it has to come down to a careful weighing of things we can't know with precision, the costs of action versus the costs of inaction, the costs of action now versus the costs of action later.''
Small wonder Wolfowitz won't talk to the press about Iraq anymore.
How Can We Do It?
Yesterday, I wondered about the sorts of schedules that allow for superhuman productivity. The comments to that post focused upon the joys of having a tremendously devoted and supportive spouse, which would explain a great deal. But perhaps not everything: I'm still very curious to know how the Elizabeth Warrens and Noah Feldmans of the academic world manage to churn out their books while still fetching the dry cleaning. When does the reading happen? The administrative meetings? The commuting?
(Please note that I'm not suggesting Professors Warren and Feldman don't have supportive spouses. From what very little I've read, though, their spouses -- respectively, Bruce Mann and Jeannie Suk -- appear to hold impressive and demanding jobs of their own as professors at Harvard Law School.)
For my own part, I blame the internets and their mystical power over us. My advice to new professors would be to ration your time on email and the web to the absolute minimum, perhaps even to the point of spending most of your day on an unconnected computer. I found email, in particular, a tremendous way to fritter away days of my life. First, I never quite managed to deal with all my new messages -- I had a sort of Xeno's inbox, in which I was never able to reply to more than half of the backlog. Second, the great challenge was that, like many new professors, I spent a good deal of time carefully writing and researching responses to questions from students . . . in anticipation of litigation. (Anything you write can and will be used against you, or on an exam, which amounts to much the same thing.)
This difficulty is an example of two broader phenomena: first, as a professor, you are never off duty. You could always be preparing more for class, reading one more article, or writing another piece. Second, no one is going to offer you much sympathy for this situation. Nor, frankly, should they. After all, these tasks redound not to the benefit of an anonymous firm but to your own scholarly identity. Of course, when it comes to grading exams, you should feel free to demand sympathy -- and a salary.
Tuesday, May 29, 2007
Supreme Court Roundup from Aaron Streett
Greetings, sportsfans! With just one opinion this week, the Court is teeing up an extremely busy June. Twenty-eight cases remain to be decided, so the Chief will have to start cracking the whip on his colleagues to meet a nearly one-case-a-day-pace if he wishes to finish on time. In other action, the Court cranked up the grant machine once again as it belatedly starts to populate its puny OT ’07 fall docket. Let’s recap the action.
Ledbetter v. Goodyear Tire & Rubber Co., 05-1074
Title VII requires a victim of employment discrimination to file a “charge” with the EEOC within 180 days of the discriminatory act; failure bars the plaintiff from bringing a federal lawsuit. Plaintiff Ledbetter received an allegedly sex-discriminatory performance evaluation that caused her to be denied an annual raise, but she failed to file an EEOC charge within 180 days. Instead, she filed a charge years later. She tried to satisfy the 180-day limit by arguing that each subsequent lower paycheck she received was a new discriminatory act since it ultimately resulted from the discriminatory evaluation. She did not, however, argue that Goodyear issued each paycheck with discriminatory intent, simply that Goodyear unknowingly carried forward the effect of the discriminatory evaluation.
Affiriming the CA11, the Court found Ledbetter’s claim barred by her untimely EEOC charge. Justice Alito (+ JGR, AS, AMK, CT) held that a claim accrues, and the 180-day clock starts ticking, when both elements of a Title VII violation occur—a discriminatory act coupled with discriminatory intent. Thus, the clock started running with the initial evaluation and raise denial. The clock did not restart with each subsequent lower paycheck because those paychecks were issued without discriminatory intent. SAA found this result compelled by 4 precedents holding that the continuing effects of past discrimination do not restart the 180-day clock. One of those precedents was a 1977 majority opinion by Justice Stevens, which Alito thoughtfully block-quoted for the benefit of the dissenters. (In fairness to JPS, the opinion was from his conservative days. Oh wait, I forgot, he is still conservative!) The Court also rejected Ledbetter’s argument that Bazemore v. Friday (1976) supported a paycheck-accrual rule, reading that decision as merely finding liability based on paychecks issued with discriminatory intent. And the Court rejected an analogy to hostile-work-environment claims, which may be brought within 180 days of the existence of a hostile environment, because Ledbetter’s claim alleged distinct temporal acts, not “a single wrong consisting of a succession of acts.” Finally, SAA declined to consider policy reasons for treating pay claims differently than other discrimination claims: Congress chose to subject all claims to a short, 180-day statute of limitations to prevent stale claims that would require inquiry into an employer’s intent in the distant past.
RBG (+3) dissented, feeling especially lonely for SOC’s fairly reliable vote on sex-discrimination issues. Justice Ginsburg reasoned that pay discrimination is different from other discriminatory employment actions (e.g., termination, non-promotion) because it often becomes apparent only over time, and she distinguished the majority’s precedents on this basis. RBG would treat pay claims more like hostile-environment claims and allow them to be brought within 180 days of any paycheck “infected by gender-based discrimination.” She argued that such an approach would be more consistent with Bazemore and the 1991 Civil Rights Act’s intent to make it easier to challenge the continuing effects of past discriminatory actions. Concerns about stale claims could be addressed through common-law defenses such as laches, RBG thought. She closed her dissent by inviting Congress “to correct this Court’s parsimonious interpretation of Title VII.”
OPINION WATCH: With SAA’s majority opinion in Ledbetter, only the racial-integration cases remain from December, with only the Chief left to write. Unless he lost his majority, this will likely be the most important opinion of JGR’s young career.
The Court’s 4 grants start with a fairly interesting arbitration question and go downhill rapidly from there.
Hall Street Associates LLC v. Mattel, Inc., 06-989
With this grant, the Court wades into a long-percolating 2-2 circuit split over whether parties may contract for more searching judicial review of an arbitration award than the Federal Arbitration Act provides. CA9 and CA10 say no, because the FAA provides the only terms for judicial review of arbitral awards. CA3 and CA5 say yes, because arbitration is all about enforcing contracts, and parties should be able to contract for more rigorous judicial review if they so choose.
CSX Transportation, Inc. v. Georgia State Board of Equalization, 06-1287
Ever wonder why tax assessors are euphemistically called boards of “equalization.” Well, this case won’t answer that question. But it will tell us whether a railroad may challenge a state’s method for calculating property taxes, as opposed to challenging the application of a given method. In doing so, the Court will have to interpret an Act so dense that Congress did not even bother to bless it with a euphonic acronym: the Railroad Revitalization & Regulatory Reform Act (pronounced Rur-rurr-rah by industry insiders).
John R. Sand & Gravel Co. v. United States, 06-1164
Despite the promising title, this case does not involve a reconsideration of Bedroc v. United States (2004)’s landmark holding that sand and gravel are not “valuable minerals” under federal mining laws. That utterly unimportant case epitomized the fractured decisions of the late Rehnquist Court: The Court split 4-2-3, and a footnote war ensued, with plurality author WHR pointedly citing John Marshall in response to JPS’s dissenting invocation of Israeli Chief Justice Aharon Barak. But alas, next Term’s sand-and-gravel extravaganza will probably produce no such fireworks. The question presented is whether the Tucker Act’s 6-year statute of limitations for claims against the United States is jurisdictional or may be waived by the government.
Ali v. Federal Bureau of Prisons, 06-9130
This case concerns a question so pressing that the Court allowed a 6-4 split to develop before begrudgingly granting it today. The Federal Tort Claims Act’s waiver of sovereign immunity does not cover “the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” Might the term “other law enforcement officer” be broad enough to cover a claim against prison officials for losing an inmate’s belongings? The SG hopes so, while inmate Ali understandably sees it differently.
Finally, the Court CVSG’d in United States ex rel. Bly-Magee v. Premo (06-1269), which asks whether public disclosure by a state or local official bars a qui tam False Claims Act suit under 31 U.S.C. § 3730(e)(4)(A).
All in all, next Term looks positively thrilling so far. Until next time, 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.
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The Price of Misdemeanor Representation
Over the weekend, Erica Hashimoto posted her new article, "The Price of Misdemeanor Representation," on SSRN. The article addresses the chronic underfunding of indigent defense. Erica argues that we are spending too much money to provide free representation to indigent misdemeanor defendants who could get the same or better results without a free lawyer. She argues that states should take steps to reduce the number of misdemeanor appointments (including eliminating imprisonment for very minor offenses that trigger a constitutional right to counsel) so that resources can be used to reduce caseloads of indigent defenders handling more serious cases. I'm particularly interested in this subject, having recently finished an article entitled Raise the Proof: A Default Rule for Indigent Defense, where I argue that state courts should raise the standard of proof in indigent defense cases until legislatures comply with national caseload recommendations or provide funding parity between prosecutors and defense lawyers.
To be honest (and to demonstrate some of the humility that my wife claims I'm lacking), I can say that Erica's article is a better read, not to mention more realistic, than my proposal. Her paper deserves serious attention.
Houston Higher Education Law Roundtable
A quick thanks to Michael Olivas and the other faculty and participants at this year's Houston Higher Education Law Roundtable, run by the Institute for Higher Education Law & Governance, for a wonderful chance to participate in a roundtable on higher education law issues last week. The other presentations were wonderful. I look forward to talking more here about my paper when it is ready for dissection; it deals with the varied (and poor) treatments of deference in the Supreme Court's Solomon Amendment decision last year, and more broadly with the role of deference in constitutional law and theory. In the meantime, my general direction can be seen in this paper.
I Don't Know How They Do It.
For those of us who spend an enormous amount of time not getting much done, those of you who do are an endless source of fascination. After a year in academia, I've found myself staring regularly and rudely -- even to the point of further incapacitation -- at the lives of heroically productive law professors: the academics who routinely teach a full course load, graciously handle administrative tasks, perhaps raise a few children, head to the gym each day, all while pumping out cartloads of law review articles, opinions-editorial, books, congressional testimony, &c.
I want to interview all the Noah Feldmans, Elizabeth Warrens, and Lucian Bebchuks to ask about the minutiae of their weekly schedules. Perhaps we could launch a C-SPAN show modeled on Brian Lamb's Booknotes to quiz the hugely prolific on their routines and follow them around for a fortnight. Ideally, we could find answers to the eternal questions, such as: How does the laundry get done? Who buys the groceries? If you eat at home, how does the cooking and cleaning not obliterate the evening? Have you ever watched a single television program in the past decade?
I've heard tale told of certain tremendously successful professors who set a goal of writing 2000 words a day (and, based on their publication records, appear to reach it). The idea is mind-boggling to me. Granted, first-year professors spend more time than most learning how to teach their courses but, when that burden diminishes, the administrative duties increase commensurately. So I still have a very hard time imagining how to build a schedule that fosters such incredible productivity while tackling the mundane tasks required to keep one's household a going concern.
So, how do they do it? Perhaps very junior professors without children are willing to live a squalid lifestyle of pizza & ramen. Perhaps very senior chairs can afford housekeepers and the retinue to sustain a fully supported lifestyle. Perhaps colleagues of a certain generation have extraordinarily accommodating spouses. What can the rest of us do?
The Law Reviews vs. the Courts
[Cross-posted from Concurring Opinions]
I've just posted to SSRN the near-final version of a short essay I wrote for "CONNtemplations," the soon-to-debut online companion to the Connecticut Law Review, titled "The Law Reviews vs. the Courts: Two Views from the Ivory Tower."
The essay advances the (perhaps somewhat counterintuitive) claim that part of the reason why federal judges have found law reviews increasingly unhelpful is because their own discretion, both procedurally and substantively, has been substantially cabined in recent years... I explain in somewhat more detail in the essay, which I (shamelessly) encourage you to check out -- it's a quick read, too. But I wanted to blog about it here to see if folks think there's any possible connection. As Congress and the Supreme Court have narrowed the scope of review in all kinds of cases, as courts have relied that much more frequently on harmless error and the like, etc., is there something to be said for _that_ trend having an impact on the utility vel non of legal scholarship? Or, are we just, as Second Circuit Chief Judge Jacobs recently suggested, hopelessly out of touch?
Everything You Ever Wanted To Know About the State Secrets Privilege
Between packing, moving, and grading, I've fallen way behind in my blogging the last two weeks, and so have missed out on a truly wonderful debate over at National Security Advisors on the state secrets privilege between Bobby Chesney, Jeremy Telman, Amanda Frost, Bill Weaver, and a host of others (most as regular commenters). Bobby collects the posts and summarizes the big themes in his concluding remarks, but the entire exchange is a wonderful primer on the privilege, the current debate over its scope, and the ongoing Hepting litigation (in which, for full disclosure, I am counsel of record for one of the amicus briefs).
One thing that seems to follow from the debate over the state secrets privilege is the extent to which, the further away we get from September 11, the more the major lawsuits will raise questions of secrecy and civil liability. And however unclear and unsettled the law may be in the detention/military tribunal context, I fear that the gray area in which those cases currently find themselves only pale in comparison to this "next" wave...
Sunday, May 27, 2007
Straight to Prison for Scooter?
In just over a week, Scooter Libby will be sentenced for his perjury, false statement, and obstruction of justice convictions. Doug Berman , TalkLeft, and others have begun to analyze whether the government will get the 30 to 37 month sentence they are asking for. Prison time isn't the only important issue to be decided though. Perhaps more significant (at least for pardon purposes) is whether Libby will have to report to prison immediately or whether he'll be granted bail pending appeal. By looking to 18 USC 3143, we're supposed to be able to figure this out by analyzing:
(1) whether Libby poses a danger to the community;
(2) whether his appeal is for the purpose of delay;
(3) whether his appeal raises a "substantial" question of law or fact; and
(4) whether the substantial question is likely to result in a new trial or a new sentence that wouldn't include imprisonment.
In white-collar cases, the offender typically poses no danger to society, so the whole fight is over whether he can point to a substantial legal issue that he is likely to prevail on. How well do courts assess this though? Look at the decisions courts have made in other high-profile white-collar cases:
Bernie Ebbers: Free pending appeal, but conviction upheld
John & Timothy Rigas: Free pending appeal, but convictions upheld
Martha Stewart: Free pending appeal, but conviction upheld
Frank Quattrone: Free pending appeal and conviction reversed
Jeff Skilling: Ordered to prison immediately, and appeal is currently pending
Dennis Kozlowski: Ordered to prison immediately (by a state judge), and appeal is currently pending
Are we to believe that John Rigas was more likely to win on appeal than Jeff Skilling? That seems unlikely. As the White Collar Crime Prof Blog explains, the Second Circuit upheld 22 of the 23 counts against Rigas just a few days ago.
Are judges simply too lenient in doling out bail pending appeal to white collar offenders? The Quattrone example might lead us to answer "no," but the Ebbers, Rigas, and Stewart cases make me think otherwise.
Supreme Court Update from Aaron Street
Greetings, sportsfans! Lawyers are all about delayed gratification. We can walk by a perfectly good Frisbee game or lawn party to enter the law library, content in the knowledge that in another 10 years we’ll have a satisfying career generating discovery requests and a head start on a comfortable retirement. And so Court watchers placidly slog through soul-sapping opinions on the rules for contributory negligence all year long certain that at least they’ll get something juicy at the end of the Term. This week’s action tests exactly how far that faith can be pushed: despite resolution of 6 cases, the offerings barely moved the needle in terms of pure interest. It’s like emptying out your trick-or-treat bag to find only apples. But take heart, dear reader; at least they’re good for you. The same is true for one of this week’s offerings.
Bell Atlantic Corp. v. Twombly, 05-1126
A couple times each Term, the Court takes a relatively minor case and unexpectedly turns it into a casebook-leading decision endlessly cited by millions of practitioners for foundational legal principles. Bell Atlantic may turn out to be this Term’s surprise 800-pound gorilla.
Plaintiffs sued the 4 enormous telecom companies known by the increasingly incongruous term “Baby Bells” (or ILECs, to telecom geeks) under § 1 of the Sherman Act, claiming that they conspired (1) not to compete in each other’s geographic territories, and (2) to resist other competitors (CLECs) who were encouraged to enter the market by the 1996 Telecom Act’s deregulation provisions. The only factual basis pleaded for this claim, however, was that the defendants engaged in parallel conduct. DHS (+6) held that these allegations could not survive a motion to dismiss because they did not plausibly support an inference of an agreement not to compete. Longstanding Sherman Act precedents require an actual agreement; even consciously parallel conduct, without more, is not enough. Thus, at the pleading stage, a plaintiff must allege parallel conduct that makes the existence of an agreement plausible. Or he must allege an actual agreement, but conclusory allegations of an agreement are not sufficient without factual specifics.
The Court explained that this standard is consistent with Rule 8(a)(2)’s requirement of “a short and plain statement of the claim showing that the pleader is entitled to relief” and Conley v. Gibson (1957)’s requirement of “fair notice” of the “the grounds” upon which the claim rests. While a plaintiff need not give “detailed factual allegations,” he must plead sufficient facts that, if true, “raise a right to relief above the speculative level.” In other words, the factual allegations must “plausibly suggest” unlawful conduct, not merely be “consistent with” it. Notably, DHS restated this standard as requiring “enough fact to raise a reasonable expectation that discovery will reveal evidence” to support a claim. Proving that evolving standards of decency aren’t just for death penalty cases, the Court explicitly tied this pleading safeguard to the crushing expense of modern-day discovery (especially in antitrust cases) and the danger of plaintiffs’ using that threat to extort settlements in even “anemic cases.” Citing a 24-year-old footnote sure to be cut-and-pasted into countless motions to dismiss (and proving once and for all that David Souter is the king of marginalia), the Court held that “a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.”
DHS rejected a literal reading of Conley’s oft-quoted saw that dismissal is improper unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” That passage must be read in light of Conley’s other passages requiring factual notice of “the grounds” that entitle a plaintiff to relief. And the “no set of facts” formulation is simply inconsistent with later decisions like Dura Pharmaceuticals v. Broudo (2005), which require a “reasonably founded hope that a plaintiff would be able to make a case.” Nor does Swierkiewicz v. Sorema (2002), which held that a discrimination plaintiff need not plead “specific facts” to support a Title VII claim, cut against the Court’s decision. That case simply corrected one lower court’s requirement of unduly “particularized” pleading; Swierkiewicz did not mean that a plaintiff need not plead enough facts to “plausibly” support relief.
Finally, the Court applied its new standard to the complaint at hand. The parallel conduct alleged by plaintiffs—resisting new market entrants and declining to enter newly deregulated markets with extremely high barriers to entry—is consistent with rationally competitive behavior. Therefore, because plaintiffs did not plead some factual basis to infer an unlawful agreement, they “have not nudged their claims across the line from conceivable to plausible,” and their complaint must be dismissed.
In a 28-page dissent, JPS (+RBG) accused the Court of abandoning good, old-fashioned notice pleading for judicial assessments of “plausibility.” Rule 8 was designed to eliminate the fact pleading required in the bad old days. As much as Justice Stevens apparently loved the white-knuckle two-lane driving of the old days, he could do without its white-knuckle pleading rules. Conley and Swierkiewicz squarely refute fact pleading, notwithstanding the majority’s historical revisionism and ill-advised scrapping of the “no set of facts” test. JPS read the complaint as alleging an actual agreement supported by parallel conduct, and this should be more than enough to survive a motion to dismiss. Any concerns about discovery costs should be addressed by careful management of the discovery process, not by applying a summary-judgment-style standard at the pleadings stage, JPS wrote.
OPINION WATCH: DHS’s authorship of this opinion almost surely means that the conservatives have prevailed in the school-integration cases. Counting those as one, only two cases now remain from December, and only the Chief and SAA have yet to write. I’m sticking by my prediction that the Chief is keeping the race cases, which is well-deserved since he is adopting more than his fair share of dogs this Term (see Hinck below).
Los Angeles County, California v. Rettele, 06-605
When the Court gets jittery, it reaches for its equivalent of a nicotine patch to calm its nerves: a good old per curiam summary reversal of the Ninth Circuit. Everyone on First Street is a little calmer after Monday. The plaintiffs in this case, who are white, sued under § 1983 after officers mistakenly searched their home looking for 4 black suspects. Turns out the plaintiffs had bought the home from the suspects shortly before the police got their search warrant. Just as it only rains when you forget your umbrella, going to sleep naked more or less guarantees that the cops will arrive that night. And so it was here. The officers rousted the plaintiffs out of the bed and forced them to make like Greek statues for 3 minutes (but probably minus the placid expressions on their faces), while police searched the rest of the house. The CA9 found that this treatment unnecessarily denuded the plaintiffs of their dignity and therefore their Fourth Amendment rights. Proving that turnabout is fair play, the CA9 stripped the officers of their qualified immunity. The court of appeals reasoned that once the officers saw the white occupants of the house, they should have known they had the wrong house and stopped the search.
It took the Court 7 pages to set the law aright. Police may reasonably detain a house’s occupants during a search, to protect officer safety and the integrity of the search. Here, they did not have to abandon their search simply because they encountered persons of a different race than the suspects—“the presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well.” This was the rare case in which the CA9 was not politically correct enough, for the Court had to instruct that “it is not uncommon in our society for people of different races to live and work together”, or for that matter, to commit crimes together. Finally, the plaintiffs’ brief au naturel detention was reasonable because the suspects were believed to be armed and could have been hiding a gun under the bed covers. There was no allegation that the police left plaintiffs unclothed any longer than necessary to secure the room.
JPS (+RBG) penned a two-page concurrence in the judgment, blasting the CA9 for issuing a hotly contested 2-1 decision as an unpublished opinion (a well-known CA9 tactic for hiding summary reversal candidates). He also restated his long-held view that the Court should not decide the constitutional merits of a case when it can more easily be resolved on qualified immunity grounds, as this one could. Justice Souter would have simply denied cert.
Winkelman v. Parma City School District, 05-983
The Individuals with Disabilities in Education Act requires federally funded school districts to provide disabled children with a “free appropriate public education.” A “party aggrieved” by the Individual Education Plan (IEP) formulated by the district may, after exhausting certain administrative procedures, file suit in federal court. The question in this case is whether parents may proceed pro se in district court either (1) as representatives of their children’s interests or (2) because parents have interests of their own under the IDEA. The CA6 said no on both counts, citing the common law rule against parents representing their children and holding that parents have no rights under the IDEA, except those that are derivative of their children’s rights.
AMK (+6) reversed. The Court held that IDEA grants parents independent and enforceable rights. While no provision explicitly grants parents the right to bring their own lawsuit, IDEA is replete with references to parental rights and involvement throughout the administrative proceedings. Parents participate in creating the IEP, may request an “impartial due process hearing” to challenge it, and may seek reimbursement of private school tuition if the IEP is inadequate. AMK concluded that it made no sense to read the statute as “barring parents from seeking to vindicate the rights accorded to them once the time comes to file a civil action.” Moreover, one of the statute’s stated purposes is protecting the rights of parents. Citing the “good” line of Lochnerian substantive due process cases—Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923)—AMK opined that parents’ rights under IDEA cannot be lightly dismissed as merely derivative of their children’s. Viewed in light of the overall statutory structure, a parent is “a party aggrieved” under IDEA’s judicial review provision, and may therefore proceed pro se in the federal court. Finally, the Court rejected a Spending Clause argument that IDEA did not give states fair notice that parents have independent rights. The Spending Clause was not implicated because the Court’s ruling does not impose any additional monetary obligations on the state.
Justice Scalia (+CT) concurred in the judgment in part and dissented in part. He would have held that parents have only two types of rights under IDEA that may be vindicated pro se in federal court—a right to private-tuition reimbursement and certain procedural rights during the administrative process. Parents are not, however, granted a blanket right to challenge the government’s failure to provide a free appropriate public education for their child. That right obviously inheres in the child, and “the Court’s spraying statutory sections about like buckshot cannot create a substantive parental right to education where none exists.”
Hinck v. United States, 06-376
The Chief took under a month to crank out this unanimous affirmance of the Federal Circuit. (In retrospect, I guess it’s not fair to call them the Ninth Circuit With Pocket Protectors—when was the last time the CA9 was unanimously affirmed?). Given JGR’s quick turnaround, it looks like the New Chief is faithfully following the Old Chief’s dreaded “10-day Rule” for a clerk’s first draft of an opinion. The most memorable thing about this opinion is its pithy first line: “Bad things happen if you fail to pay federal income taxes when due. Unless you’re Marion Barry.” (In the interests of strict accuracy, I should point out that, technically, not all of that quote appears in the actual opinion.) In any event, a 1996 amendment to 26 U.S.C. § 6404(h)(1) provided judicial review, for the first time, to tax delinquents who wished to challenge the amount of interest the Secretary of the Treasury charged on a tax debt. The amendment granted jurisdiction to the Tax Court to hear challenges within 180 days of the Secretary’s decision. Relying copiously on last week’s tax snoozer, EC Term of Years Trust, the Chief held that the Tax Court had exclusive jurisdiction, and rejected plaintiff’s attempt to file in the Court of Federal Claims. A “precisely drawn, detailed statute” that provides a “specific remedy” for a recognized problem is understood to be exclusive of other general statutes. Enough said.
Roper v. Weaver, 06-313
The Court had granted this AEDPA case to review the CA8’s reversal of Weaver’s death sentence due to the prosecutor’s inflammatory closing argument. But in a per curiam opinion for 5 Justices, the Court dismissed the writ as improvidently granted. The Court explained that it had become aware that the CA8 had granted habeas relief in two other pre-AEDPA cases (including Weaver’s codefendant’s case) where the same prosecutor used the same closing argument. The Court had also learned that one reason Weaver’s habeas petition fell under AEDPA was because the district court had incorrectly dismissed his pre-AEDPA petition for failure to exhaust state remedies, forcing Weaver to refile after AEDPA’s effective date. Thus, the Court DIG’d the case to prevent Weaver’s case from being treated in “a needlessly disparate manner” from the two other “virtually identically situated litigants.” JGR concurred in the result, although he did not agree with all the reasons given by the per curiam opinion.
AS (+CT, SAA) dissented. He would have reached the merits and reimposed the death sentence. The Court was wrong to DIG the case because Weaver was not similarly situated to the other litigants. Even though the district court wrongly forced him to file under AEDPA, that was no reason to hold that AEDPA did not apply. Nor was there any equitable reason to favor Weaver, because he failed to exhaust his appeals of the district court’s improper dismissal, and more importantly, because Weaver challenged AEDPA’s applicability for the first time in his merits brief in the Supreme Court. Nino chided the Court for rewarding Weaver’s flouting of the Court’s rules and allowing the CA8’s “flagrant misapplication” of AEDPA to remain on the books. He suggested that other courts ignore the CA8’s decision and view the Court’s DIG as “a rare manifestation of judicial clemency unrestrained by law.”
Dayton v. Hanson, 06-618
To continue the Halloween candy metaphor, this case is like one of those giant orange spongy peanut things: devoid of substance and wholly unsatisfying. This was the employment discrimination case brought by a fired Senate staffer under the Congressional Accountability Act, which applied civil rights laws to Congress. The Act provided for mandatory appellate jurisdiction in the Supreme Court over any ruling “upon the constitutionality” of the Act. The CADC rejected Senator Dayton’s motion to dismiss under the Speech or Debate Clause of the Constitution, but noted that the Clause may limit the scope of the lawsuit in some respects. In a unanimous 4-page opinion, JPS held that the Court lacked appellate jurisdiction. He explained that the Act itself states that it is to be construed not to impinge on the Speech or Debate Clause. The CADC’s opinion doing just that does not constitute a judgment on the constitutionality of the Act. Treating the appeal as a cert petition, the Court denied cert since there was no circuit split. JGR was recused.
Here’s the quick rundown on this week’s Orders List. The Court granted 3 cases, perhaps most notably Department of Revenue of Kentucky v. Davis (06-666), which despite its docket number has nothing to do with the Antichrist. Although on second thought, AS and CT do see the “Dormant” Commerce Clause as something close to satanic spawn. The QP here is whether Kentucky violated that clause by exempting its own municipal bonds from taxation, while taxing bonds issued by other states. Danforth v. Minnesota (06-8273) asks whether state courts may apply a Supreme Court criminal-procedure decision retroactively on collateral review, when it would not be retroactive in federal court under Teague v. Lane. Last and least, Klein & Co. Futures, Inc. v. NY Board of Trade (06-1625) deals with whether futures commission merchants have statutory standing under the Commodities Exchange Act.
The Court CVSG’d in yet another Dormant Commerce Clause taxation case, General Electric v. New Hampshire Department of Revenue (06-1210), as well as Wyeth v. Levine (06-1249), which asks whether FDA’s drug labeling requirements preempt state-law product liability claims.
Until next time, 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. Made in Bangladesh, assembled in USA. If you would like to subscribe to these updates, please send an e-mail to [email protected]
Sports and Statistical Inequity
Sports are supposed to be played on an even playing field. For example, every team should have an equal chance of making it to the playoffs. But there is one league that defies this logic. In this league, 20 teams have a 20% chance of winning their division, 4 teams have a 25% chance, and 6 teams have a 16.7% chance. In addition, 14 teams have a 7% chance of winning a wild card entry to the playoffs, while 16 teams have only a 6.25% chance of winning it.
What league is this?
Major League Baseball. The National League has 16 teams; the American League 14. Most divisions have five teams, but the American League West has only four teams, and the National League Central has six teams.
This uneven distribution is necessary because of the limited interleague play in baseball. Each league needs to have an even number of teams, so that teams can play within their league. Since there are 30 teams, the leagues have to be split unevenly. (That's why during interleague play there's always two left-over National League teams playing each other.)
The Milwaukee Brewers bore the brunt of this change from explansion -- they switched from the American to the National League, and ended up in the crowded Central. But the switch obviously helped American League teams and hurt National League teams, particularly the Cardinals, Astros, Reds, Pirates, and the cursed Cubs. These teams have almost a 10% less chance of winning their division than the Rangers, Angels, Mariners, and the "Moneyball" Athletics.
Why would any team or any sport allow for this unfairness? I'm sure there was some discussion of it at the time of realignment, and there are occasional posts about it on the Internet. But in a league newly obsessed with the smallest statistical advantages, you would think that these glaring differences would get more attention.
Of course, there are other factors which may dwarf these differences. The American League has the Yankees and the Red Sox, the two teams with the biggest payrolls. The National League Central has been a weak division recently; last year the Cardinals won the division with a 83-78 record -- the worst of any division. In addition, the American League suffered under an unfair (14-12) imbalance prior to 1994.
So is the current breakdown unfair? Statistically, it is undoubtedly unfair. But perhaps the relative silence on this issue means that the reality is somewhat grayer.
Saturday, May 26, 2007
Killing Tyrants and the Death Penalty
Check out Michael Walzer's provocative little article in the current Dissent, "Killing Tyrants." The core question it asks is whether you can be against the dealth penalty and for the execution of tyrants. The rumination leads to an affirmative answer (sort of).
Friday, May 25, 2007
Friends of Bill
According to a possibly apocryphal story, Golda Meir was once asked which Arab country would be the first to make peace with Israel. She supposedly replied that she did not know, but that she did know that the second country would be Lebanon.
Well so much for that. But the more I look the current race for President the more I'm starting to think that while I have no idea who will be the Democratic nominee for President, the nominee for Vice-President (as a matter solely of smart tactics) should be Bill Richardson. He's a (1) governor (2) from the mountain west, an area of real Democratic potential, who (3) supports gun rights, none of which can be said for any of the top tier candidates/likely presidential nominees. Oh, and he's Latino, and fluent in Spanish. And he has better foreign policy credentials than nearly anyone else in the race. And did I mention he's Latino?
I know Dan describes this blog as one where intellectual honesty triumphs over partisanship. But he did insert the "almost" qualifer. Anyway, this is not lobbying for Richardson (assuming I'd have any influence -- though I can always fantasize); it's just an observation on what might be smart politics. I'd be curious what people think. And don't worry, I know that I'm no Golda Meir.
Dicks in Boxes -- and Their Law Revue Outgrowths
I think you'll have to conclude that Columbia's is funnier (from the outside, anyway) -- and has better production value. Enjoy.
Harvard Law Review: "Internecine Warfare"?
The Future of Legislation Courses
Einer Elhauge, guest-blogging at the VC, is musing about the future of statutory interpretation courses in light of Harvard's decision to adopt a "Legislation & Regulation" course into its first year curriculum. I applaud Harvard's decision to make a Legislation course part of the 1L program -- and I would expect many schools that want to stay relevant to follow suit in short order.
But Elhauge seems to assume that the course always focuses on statutory interpretation; that may not be its future because there are a lot of ways to run the course that do not spend most of the course going over chapters 1, 7, and 8 of Eskridge/Frickey/Garrett. I admit that that was the course I took from Eskridge, and was, more or less, the 1L version of the course I taught this past term (with some digressions into democratic theory and direct democracy). It looks like this is Jim Chen's version of the course as well.
Yet there is nothing necessary about this packaging of the course, especially when taught to 1Ls, on whom many of the canons (of federalism and those relating to international law) will be lost. A reasonable version of the course might focus on election law -- an area in which many more young professors are being trained and writing; the version that Garrett teaches (from the very same book) focuses on process rather than statutory interpretation per se. Many will use the class to teach a fair bit of basic Administrative law as well. Moreover, a quick look at Tushnet and Heinzerling's book (and I would expect that Tushnet will teach the course from his own book at some point, if he hasn't already, and that the book will gain substantial market penetration) seems to show that the course can focus substantially on regulatory theory, with very little coverage of statutory interpretation at all. Finally, given the growth of the Con Law curriculum (executive power is now much more than just a quick romp through the Jackson concurrence), I'd expect many schools to turn to Legislation courses to cover Chadha, Clinton, separation of powers more generally, non-delegation issues, and maybe even standing.
In short, much of the action over the next few years as 1L Legislation courses explode will not just be about how to cover statutory interpretation (and maybe Elhauge will be successful in refocusing the field) -- but about whether statutory interpretation will be part of the basic course at all. I concede that I'll probably stick with a statutory interpretation version of the course -- and still see much that can be learned from the textualism/intentionalism/purposivism debates. More, until courts adopt Elhauge's methods, it still seems critical to give students the tools that courts actually use, even if they use them seemingly randomly: you've got to give the students the "doctrine" if they are to be successful lawyers.
Over time, though, it is likely that the Eskridge/Frickey statutory interpretation focus to the course may wane. Although one expects that Manning, Vermeule, Eskridge, and Frickey students who become law teachers will stick with the old model, there will be students of Garrett, Tushnet, Heinzerling, and Elhauge who will populate the academy too -- and they will offer very different Legislation courses. Unlike Civ Pro, Con Law, Contracts, Torts, and Property, I expect that we'll see much more variation in the substance covered in any given Legislation course.
Cardozo Law School on YouTube
Although there is a law school presence on YouTube, there is little "official" content from law schools themselves. More and more conferences are video-recording their proceedings, but these videos are generally put on the school's official site, as are promotional videos put out by the school.
However, Cardozo Law School has six videos on YouTube featuring its professors speaking for a few minutes on topics of legal interest. (Tim Stanley noticed them much earlier this year.) The videos are:
- Marci Hamilton on free exercise
- Michael Eric Herz on designing environmental regulations
- Melanie Leslie on the crime of child endangerment
- Stewart Sterk on Kelo v. City of New London
- Justin Hughes on intellectual property law
- Daniel Crane on New-Deal era antitrust case
I enjoyed these two to four minute clips, but I was curious about their intended audience. My guess is that they're intended to promote Cardozo amongst a general audience, particularly prospective law students who might be poking around YouTube. The user who posted the videos is CardozoLawSchool, which makes me think they are part of an official effort. And there are strong similarities, in the background and the professors highlighted, between the YouTube videos and this official promotional video. But the videos are each isolated vignettes; they are not described as part of an ongoing series or promotional campaign. So I wonder if there are more to come, and for whom they are intended.
Per Gallon Gas Taxes
Gas taxes are typically calculated on a per gallon basis. This makes them different from the vast majority of sales taxes, which typically are calculated as a percentage of the purchase price. I can see plusses and minuses to calculating sales taxes on a per item basis rather than a percentage basis.
The plusses are relatively simple. Pigouvian taxes are supposed to internalize externalities. Petrol has some obvious externalities-- global warming, costs of securing oil supply, etc. These costs are not obviously related to the cost of oil, so it makes sense to charge a fixed price tax regardless of the cost of oil. Moreover, externalities are different for every product, so why charge the same percentage regardless of the item.
There are also some minuses with fixed taxes . One is that its very costly to specify a tax for every product, so some proxy, like purchase price, might save a lot of effort and also avoid having to draw a line between what is product A versus product B. (I don't think these are big problems for gas, but I could be wrong.) Another problem, quite relevant for gas, is that fixed rate prices might need to be adjusted more frequently than other prices and this might be politically difficult. Gas taxes haven't changed much in recent years, in spite of the fact that oil is way more expensive and the perceived externalities of oil in gl9bal warming and national security terms appear to have grown.
The end result is that today gas isn't really taxed much more heavily than any other product in spite of its unique externalities, while in the past gas has been heavily taxed in relative terms. The average total gas tax (state and federal) is around 42 cents. With average retail gas prices at about $3.22, the effective tax rate is around 15%. In 2002, average retail gasoline prices were around $1.43, so the effective tax rate was around 42%. This is an enormous percentage change, and I don't think its been made through any deliberate action.
Thoughts always welcome.
Whose Slide Is It, Anyway?
Elsewhere in the blogosphere, there’s a wonderful example of lawyer-technologist mutual incomprehension playing out. And it all started with the Electric Slide.
This familiar so-called dance, which today would be named the Nanoelectronic Slide or the iSlide, was allegedly choreographed by dancer Ric Silver in 1976. In the last year, Silver began sending DMCA takedown notices to Youtube, claiming that every video of someone dancing the Slide was a copyright infringement. It seems unlikely that Silver really planned to extract a few doubloons of Danegeld from every wedding in the country. Instead, he was hoping for licensing fees from TV shows and other big-time productions, went after the little guys as part of a broad campaign, and wrapped himself in the flag of artistic integrity:
Any video that shows my choreography being done incorrectly is being removed. I don’t want future generations having to learn it wrong and then relearn it as I am being faced with now because of certain sites and (people) that have been teaching it incorrectly and without my permission. That’s the reason I (copyrighted) it in the first place.
One of his DMCA takedown notices targeted Kyle Machulis, a programmer for Second Life who filmed ten seconds of concertgoers attempting to Slide. Machulis turned to the Electronic Frontier Foundation, which has been having a lot of success fighting overly broad DMCA takedown notices, and which promptly filed suit on his behalf. This week, the case settled: Silver agreed to drop any claims of infringement and to place whatever copyright interest he had in the dance under a Creative Commons license, allowing anyone anywhere anytime to slide the Slide without paying the Silver. Machulis and the EFF, for their part, agreed not to pursue their claims that the dance was uncopyrightable and not properly registered, and that dancing embarrassingly badly in public while drunk is a fair use.
Enter Jason Scott (Sadofsky), who has been performing an unbelievable public service as an pre-Internet archivist and as a documentarian first of the history of BBSs and now of text adventures and coin-op arcades. He’s your classic tech blogger: opinionated and committed to the Creative Commons vision of sharing. And he didn’t like the settlement, not one bit.
In a pair of blog posts, Scott called the settlement “Grade A Bullshit.” Scott, who knows his way around copyright law, made the quite reasonable argument that Silver didn’t have a copyright in anything projectable in the first place, so the dance moves were already in the public domain. For the EFF to concede that it could be was a step backwards. He drew a thoughtful response from Jason Schultz, the man-about-town patent-busting EFF attorney who worked on the case. Jason pointed out that upon being sued, Silver had almost immediately promised not to sue any noncommercial users, immediately creating a significant case-or-controversy problem.
So here’s why this little exchange is such a great example of two cultures—lawyer and techie—regarding each other with bafflement: Jason and Jason are in almost total agreement. Both think that the Electric Slide is not and never has been subject to copyright, and that a court ruling to that effect would be just plum dandy. Moreover, they know each others’ turfs fairly well. Jason One (Scott) knows some serious copyright law; Jason Two (Schultz) and the EFF are about as tech-savvy as lawyers come. And yet the attitudinal clash is painful to watch. Jason One speaks a language of principle and clarity of message; Jason Two speaks a language of litigation tactics and trade-offs.
Consider some examples. Jason One thinks that “bringing CC into the mix just confuses the issue.” Those of us who wear lawyer hats would say that for Ric Silver to use a CC license doesn’t mean that anyone other than Ric Silver believes that the Electric Slide is copyrighted. All it means is that Ric Silver will be in big trouble if he sues anyone who uses it noncommercial. But when Jason Two, thinking in these terms, writes, “I can completely understand your frustration with the thought that Mr. Silver might come back and threaten someone who performs the dance for commercial purposes or lacks attribution,” he’s missing the source of Jason One’s anger. Jason One isn’t upset about the actual mechanics of who can sue whom. Instead, he sees a Creative Commons license and a promise not to sue as worse than a promise not to sue alone, because the very fact that Silver is using a CC license without complaint from the EFF seems to say that the EFF thinks Silver has a copyright to begin with.
Or consider the resources issue. Jason Two runs through some of the other litigation that the EFF is involved in and points out that pursuing this case despite a serious justiciability problem would hurt EFF’s credibility and pull resources away from, say, suing Uri Geller. Jason One simply rejects this point of view, saying, “Don’t offer to carry water if you don’t have enough buckets.” That’s a beautifully techie thing to say: it’s clear, it’s humane, and it’s a sensible way to handle the conflicting demands placed on a sysadmin. But note how it ignores the half of Jason Two’s point about credibility. Litigators back off from possible arguments all the time to keep judges from getting angry, but Jason One doesn’t even notice that Jason Two is making this sort of a point, it’s so far off his radar.
These kinds of crossed signals happen all the time at the law-tech interface. (The 09 F9 kerfuffle is another great example.) The language of litigation is performative in ways that are hard for outsiders to parse—but so, too, are the natural and artificial languages of techies. Even two smart and hoopy froods can miss each other’s points like the proverbial ships in the night. Dealing with this divide has to be one of the major tasks of technology law.
The First Summer.
With the academic hiring market having finally dwindled to some manner of finality, scores of newly enlisted assistant professors of law are now wandering about the country. To you I say: Greetings, colleagues, and congratulations! To me, you may reply, what happens next? More specifically, you may be wondering what to do with this hulking great expanse of time that stretches out ahead of you before you're obliged to report for duty at your new law school.
Perhaps you harbor some self-improving notion of gobbling down every treatise in sight or of churning out your first tenure piece. If so, I would counsel caution. From what I can tell, almost everyone wants to read those treatises during that first summer, but very few get very far. And anything you write in these early days could probably stand to be improved by the huge increase in knowledge you'll soon gain from actually teaching a course in your area.
So what should you do with your summer? Here are a few suggestions:
1. Embrace the logistics. Unless you already happen to reside in the city and home where you will live as a professor, you face a series of logistical challenges in getting yourself to those new places. The moving process is all-consuming and horrible. Just acknowledge that unpleasant reality and apply yourself to getting yourself sorted. The big decision is whether to move early or late in the summer. Moving late might appear to have the benefit of deferring pain but, alas, the psychic dread of worrying about the move will be pretty painful in its own right. I recommend that you try to get situated in your new home as early as possible.
2. Take a vacation. Once the move is complete, go celebrate. Don't wait until all the boxes are unpacked -- that could be years. Just take care of most of the big items, then reward yourself. The first year of teaching often involves a great deal of work, very little sleep, and zero sympathy from anyone who is not an academic, so this gap between the end of the hiring process and the beginning of the new job is perhaps the ideal time to savor doing naught.
3. Choose (carefully) your arrival date. The first time you walk through the halls of your new school, your colleagues are likely to greet you with this statement: "Oh, are you here now?" You may be thinking, "Well, not really, I just thought I'd pop in every now and then before I really start." Unfortunately, that basically cannot be done: people will expect to be able to stop by and say hello, to welcome you, to invite you to summer talks and events, &c. So you are either there or you are not yet there. Take some time to pick a start date after which you are comfortable being full-time at your new job -- part-timing is awfully difficult to pull off.
3. Meet your colleagues. Once you are there, throw yourself into the process of meeting your new colleagues. Some schools remain busier than others over the summer, but you are likely to be invited to lunch almost anywhere you go. You won't know exactly why, but during the school year, going on social lunches will feel like a much greater strain on your schedule, so this is the time to do it when everyone is relaxed and eager to meet you.
4. Learn how to learn your subject. If you are able to read all the relevant casebooks, treatises, articles, and opinions in the subject you will first be teaching, wonderful! You scare me. If you aren't, perhaps the next best thing is to learn how to learn your material. In my experience, subject-matter blogs were a wonderful source all throughout my first year. So perhaps you might take some time to find out what the best ones in your area are. I subscribed to daily tutorials of corporate law wisdom generously broadcast to the world by Professors Stephen Bainbridge, Larry Ribstein, Gordon Smith, Victor Fleischer & Christine Hurt. And, as the year went on, I learned yet more from the sages at Truth on the Market, the HLS Corporate Governance Blog, and Securities Law Prof Blog. The only difficulty with all this information was that I often felt like one of B.F. Skinner's pigeons pecking maniacally away at my RSS feed reader.
5. Explore your city. Beyond just your immediate colleagues, you may be lucky enough to be in a city with multiple law schools. And while academic schedules are often less ambitious during the summer, you may be able to find out what sorts of workshops, symposia, colloquia, or other events take place during the school year. Chicago, for instance, features a junior faculty workshop for untenured law professors and fellows at Chicago, Northwestern, Chicago-Kent, Loyola, DePaul, and John Marsall, with appearances by some faculty from as far north as Marquette. Northwestern and the University of Chicago also host law & economics workshops with visitors from all over the country. These venues can often be daunting, but they do a great job of showing beginners how things are done outside of the classroom.
6. Buy yourself something nice. Finally, one benefit of teaching is that you now work largely for yourself. So, while academics are reputed to shuffle about the place in shabby bits of frayed carpeting, you may have stylish colleagues near and far who set a rather high standard. Opinions vary, but I felt that putting on a suit helped convey a sense of seriousness about the project going on in the classroom. Also, Shanghai has some wonderful tailors.
Exam Experimentation Results
I have finally finished grading my final exams for the semester; it takes much longer when you have a baby. As you will recall, I tried to split the difference between in-class and take-home exams by giving a portion of the exam as a take-home and a portion of the exam as an in-class exam. With some important caveats, I think the experiment was a success.
On the plus side, the take-home portion of the exams were, generally speaking, much stronger than the in-class portions of the exams. With the time to develop coherent sentences and thoughts, students were really able to sink their teeth into the material and develop synthetic ideas to frame the course. It was abundantly clear to me that without the luxury of the take-home format and the extended time, essays of this quality could not be produced. They were much more pleasureable for me to read -- and, more importantly, left me with the distinct impression that my students learned a lot (whether because of me or despite me). I also think that because of the topic I chose for the take-home portion, writing the exam itself served pedagogical functions; I think the exam was an opportunity to learn and structure studying -- and the vast majority of students proved that they could use the opportunity to bring some order to the chaos of the Legislation course.
There were some drawbacks, however. First, precisely because the take-home exams were so good, they were much harder to distinguish. In fact, if they had been the sole basis of the grading, I would have had a hard time conforming to our mandatory curve because the distinctions among the exams were rather fine. It could have been done, I think, but I'm glad I didn't need to base the whole grade on the take-home portion. There were much more radical disparaties in students' abilities to think on their feet. Second, as I suggested elsewhere, it was a bit of an administrative nightmare. It was very hard to convince the administration to allow me to pursue this bifurcated strategy for course evaluation, despite my belief in its pedagogical soundness. I was forced to give the students the take-home portion in the 3 days between their previous final and my in-class exam. This was far from ideal: I would have liked to give them the three weeks of exam period to do the take-home portion at their leisure, but this was against the rules. In the end, writing and editing the exam obviously cut into study time for the in-class portion. Sadly, I suspect too many students wait until the last minute to study -- and I didn't make their lives any easier by giving them more to do during their three day window to cram for my in-class exam. But one always pays for waiting until the last minute to cram. Finally, as expected, I paid the price for this model in student evaluations: some students found my "crazy test idea" "brutalizing" and wrote paragraphs excoriating me for it. Of course, my course was an elective and they knew from the first day (when they could switch classes) that it was always my intention to have a two-part final.
Did the pros outweigh the cons? I think so. If the two alternatives are all in-class or all take-home, I would choose my "splitting the difference" any day. But as this discussion makes clear, there are real costs.
Thursday, May 24, 2007
Advertising the Law: Click It or Ticket
There's an old saw that "ignorance of the law is no excuse." In the wake of increasing regulatory complexity, however, this seems to be less and less true. Moreover, there are laws designed to help people -- the earned income tax credit, for example -- that can't help those who are unaware of their potential benefits.
To my knowledge, legal scholars have not paid much attention to advertising the law -- namely, the government's role in spreading the word about what the law actually is. To what extent is the government obligated to advertise law? Can the executive fail to advertise a legislative enactment and, in effect, kill it by inaction? Can a defendant claim failure to advertise and escape civil or even criminal liability? Conversely, what can the law do to make sure it more effectively markets itself?
The recent "Click It or Ticket" campaign is an aggressive government effort to increase seatbelt use, especially among younger drivers. You may have heard the somewhat menacing radio ads, or seen the shadowy television advertisements, featuring younger drivers who get a ticket for failing to use the buckle. There's also the PSA featuring New Jersey Governor Jon Corzine, who recently was injured after speeding and failing to wear a belt.
I'm not sure whether "click it or ticket" will be all that successful in changing the norms of teenage driving. Perhaps getting the phrase "pulling a Corzine" into the lingo would be more viscerally grabbing. After all, the "click it" campaign focuses not on the personal harm from failing to wear a belt, but rather the chances of getting some (small?) legal penalty for doing so. However, the NHTSA claims that "Click It" is "the most successful seat belt enforcement campaign ever, helping create the highest national seat belt usage rate of 82 percent." Perhaps the threat of legal liability weighs heavier on a teen's mind than the possible loss of life.
Finally, I thought I'd link to this -- perhaps my favorite PSA of all time, on so many levels.
Wednesday, May 23, 2007
The Empire Strikes Back: The 80s and the Interpretive Turn
It is familiar and tempting to see Ronald Reagan's presidency as a pivotal turning point in what we might think of as the political economy of empirical socio-legal studies. Ideology is important and Reagan's real successes in restructuring government undoubtedly did make a difference in the demand curve for academy based socio-legal studies. I'm more inclined to see the shift as one cutting somewhat orthogonally to ideology. Presidents from FDR through Nixon governed in what could be called a New Deal model of the state, one emphasizing heavy government investment in public infrastructure, a special relationship with scientific expertise, a Realist stance on the role of law in society and (inevitably) high taxes with re-distributional effects. (And just as importantly lots of state governments followed a similar course, under both Democratic and Republican leadership).
In place of the New Deal state emerged one that has been called neo-liberal, but which in any event emphasizes markets and privatization over public investment, distance from science (if not hostility), and more formalist approach to legality (one that corresponds to a mixture of autonomous law and repressive law in Selznick and Nonet's categories).
The change began in the 1970s at both the state and federal level (think Jerry Brown v. Pat Brown in California) and in both parties (Carter liked expertise but began to turn the country away from many of the other trappings of New Deal governance). Reagan did mark a break, especially with the idea of science. A notion that everything you need to know about governing you learned in Kindergarten (or at least undergraduate economics) seemed to take hold during the '80s. Reagan also helped recast the relationship of the popular leader to the mass media, changing the narrative from that associated government with policies, issues of justice, and science, to one more tuned to emotions and personalities.
Within socio-legal studies this shift in the political economy of empirical socio-legal studies led to some reorientation of the kind of empirical studies of law and social change that researchers were doing (the activist state created change and access), and it helped direct new researchers coming into the field (including yours truly) toward a whole set of research strategies and targets coming out mainly from the qualitative social sciences and the humanities (rather than the traditional social science disciplines). (For an extended version of this analysis with examples and citations see my 1999 review essay, Law After Society, [may require access to a digital license])
The cultural turn, the historical turn, the interpretive turn, are all words that can and have been used to describe this. The merits of this work is a subject of another time (it ranges from the inspired to the derivative like most other literatures I'm familiar with). What is important is that it was seen by many empirical socio-legal researchers as an abandonment of the empirical tradition. Something akin to a culture war broke out in the Law & Society field in those years (although it was very civil as these things go) one that was read sometimes as between quantitative and qualitative scholarship, and sometimes as between research modeled on the sciences and research modeled more on the humanities and philosophy.
If I'm right that we are at new conjuncture for the political economy of socio-legal scholarship this culture war model may be very misleading and one that we would do well to abandon. Tthe cultural/historical/interpretive turn has broadened extraordinarily the field of social practices available for empirical study. Qualitative research strategies like ethnography, historical discourse analysis, and open ended interviews, are vital for producing testable theories about the institutional and cultural dynamics in which law invariably operates. Indeed, as quantitative researchers leverage more analysis out of randomizing opportunities presented by organizational practices (a real advance in many ways), they rely more on assumptions about what is actually going on at ground level in those organizations, assumptions that can be subjected to qualitative data collection.
As neo-liberalism seems to be entering a new phase (call it 2.0 if you like), government (or perhaps goverance, since it often involves the private sector as well) seems to be increasing its demand for socio-legal research and creating new opportunities for access (much of it at the state and local level). If the New Deal state governed through large social institutions and organizations, and the first wave of neo-liberalism seemed to take the view that simple price signals were all that was needed, neo-liberalism 2.0 seems to emphasize subjectivity (cognition, emotion, knowledge) as the target of governance. It is not surprising that such diverse discourses as critical race theory, cognitive science, behavioral economics, experimental psychology, therapeutic jurisprudence, legal consciousness studies, and game theory, should be flourishing in law schools (and elsewhere on campus) these and many others (including much of the new legal history which takes subjectivity very seriously) might be seen as producing knowledge about how law governs subjects (or fails to).
Naturally not all of this scholarship produces "results" that are immediately usable by those engaged in governance, but it does contribute to a productive field of knowledge about legal subjectivities that can be brought to bear on governance and policy issues by those with creativity and patience to produce those links and pathways. What kinds of academic socio-legal knowledge would be valuable to police chief interested in whether she should intensify police on the streets to stop homicides but is worried that this may create more reactive grievance in communities long subjected to police violence.
Nor do the more traditional studies of interpersonal relations or organizations become less relevant, indeed the way organizations manage and invest the subjectivities of their members is one of the things being illuminated by the wave of recent work on organizational compliance with law and work place equality (including work by JSP colleagues Lauren Edelman and KT Albiston). Equally important, by reading and working across these discourses we can learn more about nature of neo-liberal governance itself and the pathways of knowledge and power being opened up by it.
While the revival of interest in the study of law and legal institutions and practices in the traditional social science disciplines like sociology, political science, economics and psychology is impressive and I think enduring, it makes special sense for law schools to be investing in the full range of socio-legal knowledge production, from empirical legal studies, to law culture and humanities. Selznick and Nonet were right that law schools, if sufficiently invested by disciplinary knowledges, would be the right institutions to foster some of the best of this kind of research by integrating these knowledges together around the law's traditional emphasis on governance and normativity.
In a subsequent posting I'll turn from research to pedagogy. Creating genuinely interdisciplinary PhD level programs inside law schools can produce gains for both the JD classroom and the training of future legal academics
Rounding Out My Monica Goodling Obsession
Unlike Orin Kerr, I haven't limited myself to an hour of the Monica Goodling testimony today. In an effort to stall on grading, I've watched way too much of this. (Although it turns out you can get some work done when the Republican congressmen do the "questioning," as they are far more interested in making speeches than asking any questions.) Nevertheless, like Orin, I can't help but notice how inept the questioning is across the board. Those congresssmen actually asking questions seem incapable of going beyond their prepared scripts. And when Goodling gives an answer that offers some humility, a mea culpa, or some cagey evasiveness, the questioners don't seem to know how to follow-up at all. At the end of the day, we are not likely to know much more about why the 8 (or 9) US Attorneys were selected for firing than we did yesterday. What we do know is that the insinuation that Goodling is inept because she went to a "4th Tier" law school must surely be wrong. As Orin says, Goodling comes off a lot better than those asking the questions.
"I plan on being on the hall-of-fame donors list . . . if they have one."
In today's WSJ, Amir Efrati writes about the surprising success of one USNWR "fourth-tier" law school in placing its graduates with some of the nation's biggest and most prestigous firms. What may be more surprising to law profs, however, is how the school has redesigned itself to make its graduates more attractive to those firms.
The article, "How Obscure Law School Places Grads at Top Firms," is about University of Detroit Mercy School of Law, and it describes how the new dean, Mark C. Gordon, has implemented reforms designed to prepare UDM graduates for legal practice. The school has implemented a new program known as the "Law Firm Program," which the article descibes as follows:
[The Law Firm Program] lets students handle a complex case or transaction as if they were part of a large law firm. Each course focuses on a different department in a typical corporate firm, such as real estate, intellectual property, white-collar crime or antitrust law. After a pilot program this past semester, all third-year students will be required to take at least two courses in the program.
In addition, UDM first-years will be required to take a "Core Concepts" course, which features statutory analysis using a problem-solving approach. The school also requires a clinic or externship. Further information about the Program can be found here at the UDM website.
The Program is part of a new set of approaches instituted by the new dean. Gordon, a first-time dean, has established an advisory board of partners at presitigious firms, and he called more than 100 alumni and practicing Detroit attorneys to get their opinions about the law school and its curriculum. As part of his outreach, Gordon has called upon his big firm contacts to consider top UDM graduates for their firms and has arranged for private interviews for UDM students at some of these firms. The article's headline somewhat overstates the reality of the placement success, as only a "half-dozen" students have been placed with big firms such as Shearman & Sterling or Mayer Brown. However, the school's success inspired at least one graduate to offer the quote up above.
Efrati notes that other schools such as Columbia and Stanford offer "deals"-type courses, but quotes Stanford dean Larry Kramer as saying that transaction-simulation courses are "an inefficient way to learn content." However, to my knowledge UDM's "Law Firm Program" is unique. Will other schools be moving in this direction? Does this approach give too much emphasis on life in a big firm? Or are the skills translatable? And how much effect does curriculum have on graduates? The new UDM approach will provide another case study to explore these questions.
On Being Broken
Computers are broken. They have always been broken, and always will be. This may not be a bad thing.
Many great computer technologies never come close to their creators’ full vision. When Doug Engelbart gave his legendary 1968 demonstration of the first fully-worked-out mouse-driven computer interface, “dealing lightning with both hands,” he set forth a Platonic ideal of interactive computing to which the WIMP (Window, Icon, Pointer, Mouse) interfaces that dominate personal computing today are nothing but a series of footnotes. In many ways, they fall far short of his vision; for example, his team worked with many-buttoned mouses, so that entire operations like cut-and-paste could be accomplished without touching the keyboard. The comparatively inarticulate systems we use today have been called, not without justification, “point-and-grunt.”
Or consider two early visions of the Web. Ted Nelson saw the power of hypertext (indeed, he coined the term) incredibly early. He’s spend the last four decades trying to create interactive computer systems for linking information together. He considers the Web a flawed, painfully incomplete implementation of some of the ideas. And indeed, some of his criticisms of it ring pretty true. Pages disappear all the time; you can’t easily see what other pages discuss the page you’re looking at. And indeed, compared with Vannevar Bush’s memex, even today’s most sophisticated Web user with the most sophisticated search tools and the most advanced storage system, is still blundering almost in the dark. The visual, almost tangible, trails of information constructed by researchers that Bush envisioned remain largely out of reach.
It’s possible to see the systems we currently use as horrible corruptions of these ideals. Others (Apple, Microsoft, Tim Berners-Lee, etc.) saw just enough of the vision to rip it off badly. But it’s also possible to see the systems we currently use as being, well, pretty usable. New users of Engelbart’s mice needed weeks of training; by contast, pull-down and pop-up menus, if less elegant, are much easier to learn graudally through experimentation. Making two-way links work would require much tighter coordination between web sites, making it more difficult simply to throw new pages up onto the Web and creating new possibilities for spam and abuse. Compromising a bit on the vision thing can be precisely what makes a system possible in the first place.
And that’s not to say that once we’ve gotten up and running with a compromised, half-broken system, we’re stuck with all of its limitations forever. The Web today is significantly more robust and two-way than it was a decade ago, thanks to such technologies as link: searches, Trackback, and the Wayback Machine. Our pointer devices are getting cleverer, too: the mouse wheel is not to be laughed at and Apple’s move into multi-touch could bring Minority Report to the masses. In the words of Richard Gabriel’s classic essay Worse is Better : “Therefore, the worse-is-better software first will gain acceptance, second will condition its users to expect less, and third will be improved to a point that is almost the right thing.” That’s one view, at least.
Application of this claim to the design of legal systems is suggested as a topic for the comments section.
The First Year of Teaching.
Even with summer -- and for those of us in Chicago, the cicadas -- well nigh upon us, new postings still seem to sprout from time to time on Lawrence Solum's Entry Level Hiring Report. I have enormous sympathy for candidates who do not yet know whether or where they will be reporting for duty this coming fall, but I can attest to the delight that follows all this anxiety when one is finally able to enjoy the first year of teaching.
For me, the fun began just over a year ago when I handed my Blackberry back to the law firm. Certain logistical challenges immediately made themselves known, but even selling, buying, and moving homes can be done with a certain grace when academia lies beyond. In the next few days, I'll talk a little about the highlights and challenges of my first year.
One of the obvious highlights of the year was a fortnight I spent in Shanghai this spring teaching a course on U.S. business organizations to a group of Chinese attorneys. Chicago-Kent organizes LL.M. programs in several cities in China and sends a number of its faculty (even first-year professors) there to teach intensive courses. My class met ten times in twelve days for three hours each class, usually after the students (who were all practicing lawyers) had finished work. A pretty grueling pace, clearly, but more so for the students, who returned home after class to face several more hours of homework in a foreign language.
But there was still plenty of time to see a great deal of Shanghai and its fantastic restaurants. The city's Blade Runner skyline is erupting with ever more building, and some massive proportion of the world's construction cranes are busy in this one city. One could very easily forget that this is a communist country. Except, of course, when the infamous Chinese Google pops up on your browser and when web sites for the New York Times and Washington Post seem to have inordinate problems locating anything deeper than their home page.
The trip crystallized many of the very best things about teaching. First, law professors have a tremendous degree of independence. Neither my dean nor any of my senior colleagues sat in on these classes or monitored what I was saying or doing while was 8,000 miles away representing the school. Of course, reports of a bad outing would certainly have made their way back to the authorities, but the contrast between academia and law-firm life could hardly be starker.
Second, pedagogy is truly a universal vocation. Sure, not every legal subject travels easily to other jurisdictions -- U.S. business courses appear to be of particular interest in Asian countries -- but America still enjoys a privileged status as exemplar of the rule of law almost everywhere else in the world. And almost anyone could teach a course introducing foreign students to the American legal system.
An added bonus from this trip was that it inspired all sorts of ideas for new avenues of work. Corporations may be widely reviled for stunting the democratic growth of developing nations, but as I talked about proxy fights, director elections, and shareholder proposals to students who had never participated in any elections, it occurred to me that there may also be plenty of opportunities for corporate law to introduce democratic concepts to new areas of the world.
Monica Goodling to Testify This Morning
Monica Goodling is set to testify before the House Judiciary Committee in a few hours, yet the Committee is still missing key documents that DOJ and Goodling herself are refusing to turn over. As usual, Peter Henning and Ellen Podgor at White Collar Crime Prof have a thoughtful analysis of what's likely to unfold. Let's get ready to rumble.
Tuesday, May 22, 2007
Here's to You, Augustus Garland
As Senate Democrats discuss a potential vote of no confidence in Attorney General Gonzales, journalists and historians have been searching for historical parallels. Slate’s “Explainer” came up with a few Congressional votes of no confidence:
The vote of no confidence has rarely appeared in American history. In 1950 Congress passed such a vote with respect to Secretary of State Dean Acheson, who they said had not done enough to combat the spread of Communism… . In 1886, Republicans passed a resolution censuring then-AG Augustus Garland, who had refused to turn over executive papers relating to his dismissal of a U.S. attorney from the southern district of Alabama.
Wait a minute. Can we roll the tape on that last one again? An Attorney General who fired a U.S. attorney and then withheld documents on the firing from Congress? It’s deja vu all over again. Others, I’m sure, will have more to say about the parallels or lack thereof between Attorneys General Garland and Gonzales. But in the course of asuaging my curiosity about the 39th Attorney General, I came across a few more interesting facts about the man.
In Ex Parte Garland, 71 U.S. 333 (1867)—yes, that Garland—the Supreme Court held that a presidential pardon overrode a law conditioning practice before the federal courts on a loyalty oath. Garland, who had been in the Congress of “the so-called Confederate States” (in Justice Field’s phrase), couldn’t take an oath that he had, among other things, “never sought, accepted, or attempted to exercise the functions of any office whatsoever, under any authority, or pretended authority, in hostility to the United States.” He did, however, obtain a pardon from President Johnson, presented that pardon, and asked to be allowed to continue practicing. The Supreme Court ruled 5-4 in his favor. Ex Parte Garland, however, was only the second most dramatic Supreme Court case of Garland’s career. On January 26, 1899, while arguing before the Court, he suffered a stroke and died shortly thereafter.
Fun with Funds.
Greetings, all! Dan Markel and his fellow prawfs have very kindly invited me to guest-blawg here for the coming fortnight or so, and I’m grateful for their hospitality. In the past few days, I have completed my first year as a novice professor at Chicago-Kent College of Law, where I first took the chalk in classes on business organizations and securities regulation. Recently, I have published a piece on soccer in the Green Bag, which was a light and (for me at least) highly enjoyable introduction to law review publishing as a member of the academy. But my primary area of scholarly interest relates more specifically to funds: hedge, private equity, venture capital, exchange traded, and especially mutual. While I’ll allow as how funds -- even with the fun put in -- may not immediately set everyone’s adrenaline flowing, political and financial events are conspiring to make the topic of increasing and broader relevance.
First, the political: the discussion of privatizing social security -- which has fallen into remission lately but, like talk of a flat tax, will probably flare up regularly in future -- turns a great deal on the use of funds and the investment industry. Investment advisers (such as Fidelity, Vanguard, et al.), who manage such funds stand to make as much as $100 billion annually, by some estimates, if social security assets are privatized. Whether one has great confidence or none in investment advisers, surely we should take a close look at their record and the structural integrity of the industry before transferring all that money into its care.
Second, the financial: private equity funds have been dominating recent business headlines with reports of increasingly massive takeovers of public companies. The amounts of equity and debt raised by these funds have reached historic proportions, and few if any targets seem beyond their reach now. Factors such as the increasing compliance burdens of public corporations combined with relatively cheap capital are conspiring to fuel the boom, and funds appear to be the most energetic participants. In the coming days, I look forward to exploring specific issues relating to the internal affairs of funds (such as how they are structured, relations between investors and the fund manager, &c.) as well as their foreign policy (what the funds do vis-à-vis their investments and the broader market).
Do Prosecutors Consider Prison Overcrowding When Making Their Plea Bargain Offers?
I'm working on a new paper entitled "An Informational Approach to the Mass Imprisonment Problem" (though suggestions for a better title certainly would be welcome). The core idea is that the problem of mass imprisonment in the United States could be reduced at the margins if prosecutors were more aware of the sheer number of people incarcerated and the conditions of confinement in local prisons and jails. In other words, if prosecutors were regularly advised of incarceration statistics -- the number of people incarcerated, the increase since last year, whether prisons are operating over capacity, and the number of facilities under court orders or consent decrees -- they might give marginally lower plea bargain offers. For instance, a prosecutor with more information about the overcrowding of local prisons and jails might offer 22 months for a drug possession charge instead of the jurisdiction's going rate of 24 months.
From what I've read and from the small number of prosecutors I've discussed this with informally, I get the sense that most prosecutors don't consider prison overcrowding in making their plea bargain offers. (So far, my attempts to survey local prosecutors' offices have failed.) Am I right about this? Do prosecutors give any consideration to the mass imprisonment problem when making plea bargain offers in run-of-the-mill cases? And would it make any difference if they did have this information?
Monday, May 21, 2007
Something Happened: Why so few followed JSP into the pool after '78
The impressive energy around the theme of empirical legal studies today, and frankly the overreaching claims of some whose work can be gathered there, makes it easy to miss that in between JSP's launch in 1978 and the present, the status of empirical socio-legal research as a form of political knowledge has taken some unpredicted turns.
The founders of JSP (Philip Selznick, Sanford Kadish, Sheldon Messinger and Philippe Nonet among them) saw the demand for empirical socio-legal research as rising on the tide of the federal government's active social and institutional reform agenda (see, Joyce Sterling & Bryant Garth 1998 [link requires JSTOR subscription]). As Selznick and Nonet (1978) put it in their programmatic essay Law & Society in Transition: Toward Responsive Law (published in a convenient cheap paper back that struck me as a starting students as being a socio-legal version of Mao's Little Red Book) describing the immediate backdrop to the conjuncture in which their intervention was lost.
The politics of the time placed justice high on the agenda of public concern. Civil rights, poverty, crime, mas protest, urban riots, ecological decay, and the abuse of power gathered unprecedented urgency as social problems. They strained the political community to its limits. The legal order was asked to take on new burdens, find new expedients and examine its own foundations. Suddenly "law and society" became a topic of the first importance, posing problems far beyond the competence of its votaries to meet or even comprehend. (2)
As the language of "strain" and "burden" suggests, their vision was not wholly optimistic about the mostly liberal policy reform agenda they cite, but they did clearly expect that the pressure for social change and institutional legitimacy would produce a continued demand for empirical socio-legal research. JSP would help meet that demand not simply by bringing the tool kits of the social sciences to bare on a common set of legal institutions and problems, but also by integrating this work with the internal jurisprudential work of refining the values of "legality."
But while Selznick and Nonet seemed to anticipate that social reform project of government would continue, the election of Ronald Reagan in November 1980, and the subsequent twelve years of Republican administration, seemed to many observers to mark a fundamental turn in American political economy away from the socially active high tax and redistributive state of the post New Deal period, into a new regime both more (classically) liberal, in the sense of market oriented, and conservative in the sense of wanting to use law to shore up rather than challenge authority. (In fact, this turn, if we can fairly understand it as such, was far broader and deeper than Reagan or the Republican Party, but more on that later... "
Whatever else one makes of the turn that begin sometime in the mid-1970s (I like 1973, the year that Joseph Heller published his novel Something Happened), it is clear that JSP was launched right into it, and that it was redefining the currents of knowledge and power into which the program sailed.
In many ways law and society knowledge remained important in these years, but it was being contested and redefined by neo-correctional criminology and law and economics, sometimes speaking out of the same megaphone. This posture, exemplified by the influential work of scholars like James Q. Wilson and Richard Posner, suggested that empirical studies of law and social change problems was not very important because most of what we needed to know about policy we could learn by reasoning form basic micro-economic theory with little or no empirical input necessary. In most cases the message would be "less is more" when it comes to government. The one exception to this rule would be criminal justice, which quickly became the one kind of activist government allowed to feed and grow in these years. Ironically here JSP's legal process values and law school setting made it an unlikely channel for neo-correctional research to support the burgeoning war on crime. Indeed, Selznick, and other early JSP faculty like Jerome Skolnick and Caleb Foote, had already defined themselves as critics of that war.
If you've read this far you probably can detect where I'm going. Things can change, and things can change back. JSP is tanned and rested and ready for what seems to be a new spring of social policy debate and funding for empirical research, just in time for the 40th anniversary of the Summer of Love...
Well its not that simple. But I do think that some of the fundamental conditions that restrained the growth of a socio-legal research and pedagogy strategy with strong empirical commitments and a critical normative tradition coming out of social theory have changed. In the next few postings, I want to talk about some of them, including, law schools, the new empirical law and economics, the return of law to the disciplines, the prestige of governance itself as a problem for both liberals and conservatives.
Of course you can't go home again. And my optimism is a shadowed both by the sense of what has been lost (rent Bobby if want to be reminded in stirring but fairly predictable ways) and by the ghostly way in which our current leaders echo the past but point uncertainly into the future (e.g., consider Arnold Schwarzenegger promising to restore rehabilitation and proportion to California's prisons but only by adding 53 K new beds first).
Course Preparation Project: Choosing Supplemental Materials (Update)
The posts on supplemental materials have been met with less interest than the casebook posts. I think this makes sense: most of the pedagogical choices are made in the casebook, rather than the statutory supplement. But there are instances of people choosing a different supplement than the casebook, or even eschewing a supplement and putting the materials online. Some of our commenters have already mentioned these examples in the comments.
In addition, it would be helpful to discuss what additional supplemental materials you assign. Do you assign a book from the "Foundations" or the "Stories" series? Do you assign a study aid? Do you suggest one? Have you considered one but then chosen not to, or stopped using it? Input on all of these areas would be helpful to new teachers.
Here are the individual posts by subject:
- Civil Procedure
- Constitutional Law
- Criminal Law
- Criminal Procedure
- Business Associations
- Professional Responsibility
- Intellectual Property (including Copyright, Trademark, and Patent)
- Taxation (Individual)
- Real Estate Transactions
Thanks again for your thoughts.
Islamic Law and Public Reason
Mohammad Fadel recently made two outstanding articles available discussing the compatibility of Islamic law with a Rawlsian conception of political liberalism that is based on the idea of public reason. In The True, the Good and the Reasonable, Fadel shows how the constitutional essentials of a liberal state can be endorsed from within a comprehensive Islamic view of the good; especially in religiously diverse societies, such a view can contribute to an overlapping consensus supporting that basic structure. Fadel argues that freedom of conscience is necessary to accommodate long-standing epistemological skepticism regarding our ability to know the content of divine law as well as to protect free theological inquiry and the doctrinal pluralism that inevitably results. Moreover, Fadel argues that juridical concepts such as the universal human goods and ‘public policy’ should be understood as intellectual precursors to the idea of public reason.
Fadel’s presentation is learned and important, though there are a few junctures at which I would take the discussion in a different direction. Fadel says that his analysis is aimed at Western countries with significant Muslim populations and not at Muslim-majority jurisdictions adapting Islamic teaching to modern conditions. I was surprised that Fadel would cast his piece in this light without engaging more with the old and vast literature devoted to the propriety of living as a Muslim in non-Muslim lands. Alternatively, his analysis seems very relevant to secular regimes in the Muslim world itself whose legitimacy is challenged by religious conservatives as well as to Muslim-majority countries which contain substantial intra- and inter-religious diversity. More broadly, I wonder whether Fadel has selected the right theoretical framework within which to analyze the issue. It seems to me that the conceptual structure of Islamic political thought is not liberal but republican, built around ideals of nondomination, civic virtue, and the public good. Republican and liberal regimes tend to converge on similar constitutional structures—separation of powers, constitutional constraints, public accountability—so if one can reflectively endorse the former one can generally endorse the latter as well. But there are important conceptual differences between the two political theories, and if one theory provides a more direct explanation of the compatibility of Islamic teaching with constitutional democracy then those differences are worth exploring.
In Public Reason as a Strategy for Principled Reconciliation, Fadel argues that, to the extent that rules of Islamic law cannot be justified through public reason, the state may require or prohibit what Islamic law permits, or permit what Islamic law requires or forbids, without substantially infringing on religious freedom. Religious freedom does impose limits, however, on the state’s ability to require what Islamic law forbids or forbid what Islamic law requires. Requirements of Islamic law that are unsupported by public reason can be applied to those who voluntarily submit to its norms, for instance through alternative criminal sentencing or a form of ADR for commercial and family disputes. Although I find Fadel’s analysis of the three primary normative modalities— prohibition, permission, obligation—illuminating, I feel he does not give sufficient effect to the distinction among permissible acts between those that are encouraged, discouraged, and neutral from a religious perspective. Say that the beard and the headscarf are encouraged but not required by Islamic teaching or are neutral from a doctrinal perspective but are recognized symbols of religious identity. Legal prohibitions on these expressions of religious belief still seem to infringe rights of religious freedom. By contrast, Fadel argues that polygamy may be prohibited by the state simply because it is not supported by public reason and not required by Islam. Fadel observes that polygamy is permitted but discouraged within Islam, but does so not to justify the legal prohibition but only to point out that polygamy presents a relatively easy case of legally prohibiting what religion merely permits. I think Fadel’s argument would be stronger if he explored the possibility that the justification for legally prohibiting practices that are permitted but not required by religious teachings depends in part on whether those practices are encouraged, discouraged, or neutral within the religion itself. In any case, Fadel’s argument suggests that we cannot adjudicate the compatibility of a legal prohibition with rights of religious freedom without first understanding the normative status of the underlying activity within the religion itself. And adoption of that position by constitutional courts may thrust the judiciary into deeply controversial religious debates.
Sunday, May 20, 2007
Helprin on Perpetual Copyright
Mark Helprin has an op-ed in today’s New York Times calling for perpetual copyright terms. He acknowledges that the “limited times” requirement of the Copyright Clause would scuttle an explicitly infinite copyright term. But he then borrows a page from Sonny “forever minus a day” Bono and praises Congress’s recent strategy (upheld in Eldred v. Ashcroft), of repeatedly extending copyright terms, saying Congress should continue to extend copyright “as far as it can throw.”
Other bloggers are already busy responding to the op-ed’s policy arguments. Larry Lessig has put together a wiki page for a collaborative rebuttal, Joe Gratz points out that Helprin’s A Winter’s Tale “bears a title and a conceit appropriated from a work in the public domain,” and I’ve taken an entirely uncalled-for cheap shot at Helprin on my personal blog. But in this place of elevated scholarly discourse, I’d like to point out something very intriguing about Helprin’s op-ed: it fits comfortably into neither of the two dominant theories of copyright. His argument isn’t really about economics, and it isn’t really about authors’ moral rights.
Helprin’s central claim is that the expiration of a copyright term amounts to “expropriation” of property. Copyright economists usually trade off reward to authors against public access and defend their preferred balance by arguing that it maximizes public welfare. Helprin, on the other hand, all but pooh-poohs the public interest, writing, “You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge.” He makes some further arguments that term expiration is a wealth transfer rather than a wealth-increaser, but his “common equity” is really where the action is at for him. Taking property away is wrong.
That may sound a bit like a moral rights argument, but it’s not. Common moral rights discourse in copyright holds that an author has brought something unique into the world and imbued it with her personality. That is, it defends special right for creators by pointing to the special nature of creativity. For Helprin, however, the point is precisely that intellectual property is indistinguishable from other forms of property: “Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else?”
It may be that he went this route because the current life-plus-70-years copyright term makes it a little awkward to advance a moral rights argument that would benefit ones’ remote descendants. Or it may be that his commitment to private-property libertarianism made it seem the natural position to take. Either way, it begs the question of whether intellectual property rights really are property rights in the relevant sense.
Most of the time, I happen to think that they are. Society recognizes property rights in all sorts of things, many of them intangible. What makes them “property” rights is the thing; even if you can’t see or touch it, provided there’s enough social consensus as to what the thing is that we can agree when someone has used it, it’s capable of being property. The exclusionary right against the world in a recognizable thing—whether a house, a handbag, a domain name, a logo, or a work of original authorship—to me, that’s “property, and it helps enormously with understanding the law to recognize how similar doctrines operate across the whole range of things that can be property.
This, however, may be one of those cases in which Mark Lemley and Richard Stallman have a point about the rhetoric of “intellectual ‘property.’” As a formal matter, the “expropriation” argument would vanish if Congress abolished copyright for all future works; there would be no property to be expropriated. Presumably Helprin would complain that this proposal would “treat with special disfavor the work of the spirit and the mind” to an even greater extent. But whether they are disfavored or not depends on the whole structure of the law they face and not just the shape of copyright; perpetual copyright terms, but a ban on printing presses, would be little better. What’s really at stake in Helprin’s equal-treatment argument is the opportunity open to those who write and to those who build factories. Focusing on the formal “inequality of real and intellectual property” just distracts attention from whether writers are getting a fair shake.
Sunday's Armchair Travel
With exams almost graded and summer time on the horizon, and with it, some travel opportunities both near and far, I thought I'd share a couple suggestions after the jump of some places to consider visiting based on some positive experiences this past year. Feel free to put in your own rec's in the comments, or if you've been to these places, your reactions too.
The Coast of California
Last August, my wife and I recovered from her Bar Exam by taking the trip up the PCH in California for a week. If you're looking for a reasonably short vacation with lots of fun places to visit, I recommend starting off in San Diego, heading up to LA, Santa Barbara, Carmel, San Francisco and capping it off in Napa. We rented a convertible for the week, and Dollar let us pick it up in SD and drop it off in SF with no charge (or maybe just a nominal charge). We alternated staying with friends and in various hotels and bed and breakfasts. Here are some links to the highlights:
Lodging: cozy rooms adjacent to the ocean at the Colonial Beach Inn in Santa Barbara and the Crystal Terrace Inn in Carmel, and an exquisite stay at the Napa River Inn. Indeed the Napa River Inn was probably the high point of the trip. The Inn included with our stay an envelope stuffed with free or discounted wine tastings at the local vineyards and restaurants in Napa Valley. We're not especially devoted foodies or oenophiles, but even a 2 day trip to Napa can jolt the senses delightfully, especially if you stop by COPIA, the American Center for Wine, Food, and the Arts.
Around the corner from the Napa River Inn, we found the Bounty Hunter. It was an extraordinary place to savor flights of wine and eat scrumptious food; the employees there helped neophytes like us learn about the varietals without a whiff of condescension. We liked it so much we went there twice...if we had time, we also would have revisited Zuzu, a tapas wonderland on the main street of Napa. The nice thing about these places is you can do a course crawl, having starters and wine at the Bounty Hunter and then moseying down to Zuzu for some other tapas and unforgettable desserts.
Other food highlights from the trip include: picnic yummies from the Oakville Grocery in Napa; Pizza at Tra Vigne in Napa; breakfast overlooking the water at the Brockton Villa in San Diego; delicious burekas at Bibi's Warmstone Bakery in Los Angeles; and the pastas at Pazzia in San Francisco (some of my favorite Italian food in an authentic trattoria in SOMA).
More recently, we took a short trip for a close friend's wedding to Montego Bay, Jamaica, where we stayed, as part of the wedding group, in the villas of the Half Moon Bay Resort. If you're pondering a destination wedding, this resort does them frequently and well, and can even host more than one on the same evening, if you're into polyamoury or something. Indeed, there was an interesting, though, as I discovered, not entirely accurate article about Jewish destination celebrations in the WSJ a couple months ago. Stephen Henriques, who is mentioned in the article and can trace his family's Jewish history in Jamaica back several hundred years, officiated the wedding we attended.
As you can see from some of the pictures here, the setting was glorious, and the service was both cheerful and plentiful. Each villa (which you book with family or friends to fill the various rooms) comes with butler, cook, and maid. Frankly, the level of service is almost uncomfortable, and certainly, mostly unnecessary...you're not sure whether to feel grateful for the chance to pump money into the developing economy or to feel guilty about one's own lot in life. Probably a bit of both. At least whilst on vacation, the best way to work though such troubles was to hit the tennis court and beaches, and tip generously. I should mention that the food at the resort or its affiliated restaurants was not especially impressive. When in doubt, you're best off sticking to the fish entrees and the mango-infused desserts, or buying groceries at the local commisary on the grounds and having the cook help you whip up something based on local recipes that is both simple and tasty.
Saturday, May 19, 2007
Congressional Power to Enforce Equal Protection
It's no secret that equal protection doctrine has become more and more incoherent over the past fifteen years. The Supreme Court has upheld government action to which it's applied strict scrutiny (Grutter) and all-but-strict scrutiny (Nguyen v. INS), but has struck down action under the rational basis standard (Romer -- not to mention the rational basis "plus" cases from the 1980's and the "pure irrationality" case of Allegheny Pittsburgh v. Webster County in 1989). And as I discussed in a post earlier this month in Village of Willowbrook v. Olech the Court allowed a "class-of-one" equal protection claim to go forward without any discussion of the implications that holding might have for some basic concepts in equal protection law.
One way to understand these developments is as proof that the Carolene Products approach to equal protection, whatever its merits and to whatever degree courts ever based decisions on it, has run its course. In its place we find an extreme amount of ad hoc judicial decisionmaking. This strikes me as inevitable, given the singularly non-legal content of most of equal protection. Beyond a core commitment to racial equality with regard to certain civil rights, and a broad but vague concern for "class legislation," the equal protection clause doesn't supply determinate answers to questions. Commonly understood, Footnote 4 provided a tool to assist courts in answering equal protection questions fairly accurately if indirectly, through a political access approach.
All this is reasonably uncontroversial, at least in this oversimplified form. What it suggests to me, though, is that equal protection ought to be susceptible to broader congressional enforcement power -- broader, that is, than its power to enforce other 14th Amendment provisions and certainly broader than indicated by the analyses of this power in Kimel and Garrett, the early post-Boerne cases construing the Section 5 power in the equal protection context. First, the legal vacuousness of the equality guarantee must mean, it seems to me, that its meaning must turn on social perceptions of what constitutes "fair" treatment, or classifications in pursuit of a public purpose, or, conversely, legislation simply designed to oppress one class for the benefit of another. Second, it seems to me that a lot of equal protection judicial doctrine (certainly rational basis review and even heightened scrutiny for gender when, as in Nguyen, the classification is upheld) reflects only what courts feel they're competent to say in equal protection cases, rather than solid statements about what equal protection really requires. Thus, even assuming judicial supremacy, the fact is that courts in equal protection cases speak less law than what appears at first blush.
So we're left with a provision that courts have a hard time applying confidently, where there's less in the way of supreme judicial statements of law, and which seems uniquely receptive to social judgments. These considerations seem to make a case for broader congressional enforcement power, even assuming the judicial supremacy model of Boerne v. Flores. I started fleshing this idea out in an article published in the Tulane Law Review, and hope to keep working on it. If nothing else, a focus on congressional power seems more fruitful than more academic analysis of a judicial doctrine that seems to have reached the end of the line.