Sunday, August 31, 2008
A word of great gratitude is in order for our August crew of guest-bloggers: thanks much to Brooks Holland, Verity Winship, Lesley Wexler, Bruce Boyden, James Grimmelmann, Adam Kolber, Brian "Zoom" Galle, and Adil Haque. Some of them may be lingering around for a little while longer this coming month, but we also have some new folks to welcome to our conversation.
To that end, please welcome for the first time to Prawfs: Hadar Aviram (crim/Hastings) and Marc Blitz (OKCU/con law). Additionally, please welcome back Mark Fenster (Florida, property and cultural theory); Carissa Hessick (crim/Arizona State); and Jonah Gelbach (law and econ/UArizona B. School). There's an outside chance we'll have wonderblogger Birdthistle back too, depending on how the person-to-person defense is going. Welcome all!
Aviram and Scott Chatting
My superstar colleague, Hadar Aviram, was just interviewed by Law & Policy's editor Colin Scott about her recent article, "How Law Thinks of Disobedience: Perceiving and Addressing Desertion and Conscientious Objection in Israeli Military Courts." You can listen in here.
I'm looking forward to having Hadar blog with us soon.
How Should Punitive Damages Work?
Update 8/31: I'm moving this up to save having to write a new post. I just wanted to share the exciting news that I've just accepted an offer to publish this piece in the University of Pennsylvania Law Review in volume 157 (spring 2009 sometime). Interestingly, the piece didn't get picked up through an expedite, which should hearten those authors who wonder whether and how much "law review strategery" is necessary. I owe a giant thanks especially to Jason Solomon and the attendees at Prawfsfest! at Hofstra, who helped me see the need to restructure the piece entirely in the last month. Once I get some more revisions on that death penalty paper done in the next few days, I will blog about this paper some more.
I'm very excited to announce that I've recently uploaded to SSRN a working draft of my new paper, How Should Punitive Damages Work? You can download it here. It's still a work in progress but I hope to have solved a few policy and constitutional issues in it. As the sequel to my Retributive Damages piece coming out this January in Cornell LR, it tries to lay out in more careful detail how to build a better punitive damages regime. This particular piece focuses on issues common to all kinds of punitive damages cases.*
After providing some background, I explain that there are three normative goals that punitive damages can and should achieve:
1) the public interest in retributive justice, which is vindicated through what I call "retributive damages."
2) empowering victims with a mode of recourse that permits but does not obligate the victim to vindicate the injury to his/her dignity interest, an interest that is not otherwise compensated under traditional compensatory damages, and which I, following some Commonwealth jurisdictions, call "aggravated damages."
3) the pursuit of cost-internalization or "optimal deterrence" the extent to which it is permitted after Philip Morris. These are called "deterrence damages."
To make punitive damages work well, I argue that we have to separate retributive damages from damages meant to achieve deterrence or to vindicate the victim's dignity and autonomy interests. Because these purposes are distinct, a jurisdiction that conflates them risks both under- and over-protection of various defendants. Once we correctly understand these distinct purposes, our institutional design for civil damages should map these values appropriately.
The Article begins that task, first by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages vindicate, and second, by addressing the critical implementation issues associated with this pluralistic scheme of extra-compensatory damages: insurance, settlement, and taxation.
The argument is largely a prescriptive one: that is, if you agree with these rationales, which have been separately defended in the literature, then here's how to build an attractive pluralistic damages regime. However, I also want to ensure that this pluralistic extra-compensatory damages regime is in fact consistent with the Supreme Court's various cases, so there's an element of doctrinal analysis too.
Indeed, there are a number of constitutional arguments I make that counter, on the one hand, arguments by those like Tom Colby, who thinks that "retributive damages" would require the panoply of criminal procedural safeguards, and on the other hand, arguments by those like Marc Galanter and David Luban, who think the fact of privately initiated lawsuits for punitive damages means that relatively nothing in the way of procedural safeguards are constitutionally required or normatively justified.
My own view is that both of these positions are wrong. I explain why after the jump.
In short, pace Colby, retributive damages are not criminal fines because they don't entail criminal convictions or trigger the cluster of collateral consequences that typically attach to all sorts of convictions. But they are, contra Galanter and Luban, nonetheless a rebuke of the defendant that involves elements of both public censure and punishment, albeit of a civil, not criminal, kind. Thus, for reasons I elaborate in Part III of the paper, retributive damages are best understood as an intermediate civil sanction that require (constitutionally and normatively) an intermediate level of procedural safeguards, that is, a level falling roughly between what is due defendants facing on the one end, compensatory damages, and on the other, criminal fines. Where there is no obvious "intermediate" level, some analysis of how the safeguard works to advance the reduction of Type I or Type II errors is required. Along the way, I also explain which procedural safeguards would be appropriate to implement "deterrence damages" and "aggravated damages."
I note that this version of my paper includes a bunch of claims that critique Tom Colby's SSRN draft (from June 27th, 2008) of his forthcoming Yale LJ piece. I shared my draft with Tom yesterday (8/27) to make sure he was comfortable with the way I was characterizing his arguments, and after reading it, he informed me that in the non-public version he's currently editing, he had already made some changes in light of some earlier comments I sent him, and that, in light of the draft I sent him yesterday 8/27), he is now planning on making a few more changes that are responsive to my points. I mention this chiefly to signal that I will revise my draft a bit later on to make sure it addresses the changes Tom plans on making to his final draft. But as of now, the version of my article on SSRN addresses the June27th version, which is available here. His SSRN link is here in case you want to see subsequent drafts. Once his final paper comes out, I'll be sure to post a revised version of mine that avoids any confusion. I confess that the moving target aspect of some of this exchange is a bit cumbersome, but I guess when SSRN gets you tomorrow's research today, you have to accept the consequences!
* I hope to finish the series of articles this spring by writing something tentatively called, Punitive Damages and Complex Litigation, which addresses the specific questions associated with misconduct by entities and misconduct that affects multiple parties within and across jurisdictional lines. I'm planning on putting the three pieces together into a book, tentatively called The Punitive Damages Mess: How To Fix It.
Electoral College ties
Sandy Levinson and others have, in recent years, been calling attention to what they regard as the Constitution's failures. One such failure, it is often contended, is the Electoral College. Well, today a good friend of mine sent in some thoughts about a "fascinating, and utterly absurd" electoral (theoretical) possibility . . . .
He writes: "There is a not crazy scenario where the electoral college ends up 269-269: Take the Bush-Kerry map and add to Obama IA, NM, and NV . . .. After the election, the Dems will have a majority in something like 28 or 29 state delegations, and would need 26. Conservative Dems in MS will not vote for the Dem. It'd be interesting to see what Stephanie Herseth in SD and Earl Pomeroy in ND would do. They are both partisan Dems in very red states with only one seat. Or Mike Castle in Delaware, Republican in one-seat Delaware. I suspect that the Dems could engineer it so that they give enough conservative Dems a pass to remain at 26 and bribe some who would lose their seats with cabinet posts, etc. . . .
There are, by the way, one or two states that would have equally divided delegations and the GOP would have majorities in something like 20 or 21 delelgations.
But here is an interesting scenario: If they were unable to get 26 state delegations to pick a nominee, there's still the question of the VP. That's just a straight vote in the new senate, but before Jan 20, so Dick Cheney has the tie breaking vote. So, the Dems need 51 votes and the GOP needs 50 votes. Let's say that the Dems pick up 4 seats. Not including Lieberman, they would have 54 seats and would be able to yield 3 votes and still have 51. I'm guessing that it's easier for a red state senator to vote for Obama than a red district house member, since only a third face re-election in 2 yrs and it's just a vote for VP.
Here's another twist: the 12th Am provides that a quorum for these votes consists of at least one member of 2/3s of the states for the pres vote. Not an issue because the Dems have at least one house member in at least 38 states. In the Senate, I don't think this would be subject to filibuster. The 12th Am seems to speak in mandatory terms about there being a vote and sets the majority vote req't. And any question would be settled by a ruling from the chair (by Cheney), which could be overturned by 51 votes on the floor, which the Dems will have. But, under the 12th Am, 67 senators would be required for a quorum. So, the GOP could duck and hide to prevent a quorum. However, under Senate rules, the Maj Leader has the power to invoke a live quorum call, which empowers the sergeant at arms to arrest and detain senators who don't show up.
Then, there would be the question of what criterion a member or senator should use, and presumably they would pick whatever worked. Nationwide popular vote? Vote in your district or state?
Fascinating, and utterly absurd."
Saturday, August 30, 2008
Palin & the structural protections of federalism
The blogs are abuzz with whether or not Palin ought to be regarded as sufficiently experienced to serve as VP. The typical defense of Palin's nomination emphasizes that she is the only one of the four nominees for Prez or veep with 'executive" experience, having served as a mayor of a small town and, briefly, as governor of a small state.
Naturally, opinions on the merits of Palin's candidacy correlate heavily with partisan prior commitments. But, as a federalism nut with weak partisan loyalties, I am much more interested in what Palin's nomination says about the structural protections for federalism in America. The argument that her experience trumps that of three Senators because it is "executive" in nature is, as a practical matter, an enormous boost to state politicians in the federal system, simply because there are obviously far more elected non-federal executives than federal ones. Thus, mayors and governors will gain an advantage over members of Congress in competing for the Presidency. If one buys the notion that these politicians will carry with them an affection for their old role as non-federal office-holder, then one might argue that the Presidency will tend to reflect state politicians' point of view.
The argument that executive experience is superior to legislative experience might even give mayors and governors an advantage over congress persons when running for congressional office. The reason is that executive experience tends to be less ideologically divisive than legislation. A chief executive can take credit for good economic performance in his or her state without alienating blues or reds; moreover, an executive can make lots of managerial micro-decisions that are not ideologically freighted and, thus, win a non-partisan reputation for competence: Think of Mayor Bloomberg's pressing for hybrid cabs or making the clean-up of the East River a top priority.
These are just theoretical speculations. As I have observed in an earlier post, the dominance of governors as candidates for the Presidency is a relatively recent affair, dating from Watergate, when claiming the mantle of an outside untainted by Washington's ways was an electoral advantage that boosted the candidacies of Jimmy Carter, Ronald Reagan, Bush II, and Bill Clinton. (By contrast, Truman, Ike, Kennedy, Johnson, and Nixon were all federal politicos or, in Ike's case, a federal bureaucrat). The Watergate-derived outsider's advantage might be waning. Therefore, I'll be curious to see how well the "executive experience" argument fares in Palin's campaign. Quite apart from its partisan ramifications, its success promises to be an aid to federalism. And nowadays I am inclined to think that federalism needs all the help that it can get.
Sarah Palin and Union Politics
In all the hubbub about the Republican VP pick, I have seen little on something that I thought was quite remarkable: the populist rhetoric in McCain's introduction. Here are some excerpts from his speech:
I'm very happy today to spend my birthday with you and to make a historic announcement in Dayton, a city built on hard, honest work of good people. Like the entire industrial Midwest, Dayton has contributed much to the prosperity and progress of America, and now, in these tough, changing times, after all you've done for our country, you want your government to understand what you're going through, to stand on your side and fight for you. . . .
Friends, I've spent the last few months looking for a running mate that will who can best help me shake up Washington and make it start working again for the people that are counting on us. . . . And it's with great pride and gratitude that I tell you I have found the right partner to help me stand up to those who value their privileges over their responsibilities, who put power over principle, and put their interests before your needs. . . .
The person I'm about to introduce to you was a union member and is married to a union member and understands the problems, the hopes and the values of working people, knows what it's like to worry about mortgage payments and health care and the cost of gasoline and groceries . . . . She's fought oil companies and party bosses and do-nothing bureaucrats and anyone who puts their interests before the interests of the people she swore an oath to serve.
Many have suggested that McCain selected Palin to help win over Hillary Clinton voters -- middle- and working-class folks who live in the heartland and are feeling the brunt of our economic woes. And indeed, if you were reading the above speech without any other context, you'd probably think it was a Democrat talking. McCain seems willing to take his campaign on a much more populist turn. He's going after the union vote.
The real question, in my view, is whether policy will follow rhetoric. Will McCain-Palin advocate for greater restrictions on trade? Will they adopt a more restrictive position on immigration policy, or will they drift back towards McCain's more pro-immigration views? And given that Palin is a former union member, and her husband is a Steelworker, will they support the Employee Free Choice Act?
Friday, August 29, 2008
The West Wing: 4-for-4?
Earlier in the week, I wrote about the idea that The West Wing's final season seemed to have predicted three of the four players in the 2008 presidential election: the young, charismatic, relatively inexperienced minority Democrat; his older, establishment, foreign-policy-steeped running mate; and his moderate, anti-GOP-establishment, foreign-policy-focused Republican opponent.
So how does Sarah Palin (anti-choice and very socially conservative, beloved by the Religious Right and chosen to appeal to the unenthusiastic conservative base, governor of a small state) compare with The West Wing's Ray Sullivan (socially conservative and anti-choice, intended to appeal to a suspicious and unenthusiastic conservative base, governor of a small state (West Virginia))? The obvious difference, besides gender, is in experience (the Sullivan character was a former U.S. Attorney and a two-term governor) and [ed.: apparent, at this point] intellectual heft. Frankly, had the show's writers written Sarah Palin as the GOP nominee for vice president they would have been ripped apart by commentators as liberals stacking the narrative deck and making Republicans look unrealistically unserious.
Thanks Again, and Tune in Next Week...
Thanks to Dan and the Prawfsblawg crew for inviting me back for a return visit, I've really enjoyed it. In fact, I'm excited to announce that beginning on Tuesday, you will be able to find me blogging on a permanent basis at Marquette University Law School's new faculty blog, along with former Prawfs guests Michael O'Hear and Paul Secunda and other Marquette faculty members. Come visit! To find the blog next week, visit Marquette Law's home page and look for the link.
Will Sarah Palin suffer the same fate as Harriet Miers?
So, despite my apparent hostility to Obama's selection of Biden, and my sense that Obama was not at the top of his game during most of last night's acceptance speech, I think the election is now the Dems to lose for the reasons illuminated in Prof. Russell Korobkin's post:
The homepage of the town of Wasila, Alaska (population 5469 as of the
last census), has links to three news stories. The lead story, as you
might expect, is that the town's former mayor, Sarah Palin, has been
named John McCain's running mate. The second story announces the
town's new website. The third advertises the "Baby and Me Lap
Sit-Program at the Library."
Before serving as Wasila's mayor, Sarah Palin earned a B.A. at the
University of Idaho, worked as a sports reporter for an Anchorage
television station, and did commercial fishing with her husband.
At age 72, John McCain has already lived longer than his father, John
McCain Jr., who died at age 70.
Sarah Palin looks like an interesting woman, but let's hope she
doesn't have to stare down Vladamir Putin any time soon.
Whether it's warranted or not, I suspect Palin's selection is a big area of political opportunity for the Dems. I wonder if enough GOPniks will think of her the way some did of Harriet Miers. I also doubt that disgruntled Clinton supporters will now feel more comfortable with the GOP simply because Palin is pro-life/anti-choice, and if you're upset about the sexism in the campaign against Clinton you're not likely to feel welcomed by Palin's pro-life commitments. These are just my untutored reactions. What are yours?
It's Official: Judge Kent Is Not Funny
Judge Samuel Kent, once the sole district judge in the Southern District of Texas, Galveston Division, has been indicted on sexual abuse charges after an investigation lasting several months. He is alleged to have assaulted a member of his court staff in 2003 and again in 2007. Judge Kent is widely known as the author of a number of humorous procedural decisions, such as his opinions denying a motion to transfer venue, transferring a case sua sponte, and criticizing the quality of the parties' briefs on a motion for summary judgement (that last one got him a reprimand). Two of those opinions are in my Civil Procedure textbook, which means I'll be teaching them again next spring.
I've always enjoyed reading these opinions, but I've always felt a little guilty about that. While amusing in the abstract, they are distinctly less amusing when you recall that the rights of real parties were affected by the outcome. The pervasive use of humor in the opinions, in that light, seems more cruel than light-hearted. (For more, see Steven Lubet's article in the Green Bag.) Nevertheless, they make for a good break in the middle of an otherwise dreary chapter on venue.
So, how should I teach the two Kent cases? Should I skip over them? Not mention the indictment? A sexual abuse charge is certainly a mood-killer. Here's my tentative plan: I'll use the case as a teaching moment, much as I did once when teaching J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc., a great opinion on the avoidance of forfeiture doctrine by Chief Judge Sol Wachtler of the New York Court of Appeals. I.e., someone's being funny, or brilliant, or famous, does not necessarily mean that they are entitled to respect, or not evil. Mood-killer or no, I think my students may get more out of that than "Alas, this Court's kingdom for a commercial airport!"
Why don't feminists like federalism?
I might be mistaken, but my impression from the work of Reva Siegel (on the 19th Amendment), Anne Dailey, Jill Hasday, Kristi Collins (on the domestic relations exception to Article III diversity jurisdiction), and others, is that scholars sympathetic to feminism do not like judicially enforced federalism very much. In particular, it is sometimes claimed that relegating family law to the states is like treating family relations as a private matter beyond governmental control law as a private matter -- in effect, licensing private patriarchy. (See, for instance, Reva Siegel, She the People, 115 Harv. L. Rev. 947, 1000-1001 (2002)).
Feminist dislike of federalism seems odd to me for two reasons. First, women have done pretty well by the states. It was, after all, entrepreneurial western states that first enfranchised women in the late 19th century as a way to entice them westwards: Tiebout-style competition for mobile citizens seems, at least in this case, to have benefited women. And women fare well in voice as well as exit at the state level: The National Conference of State Legislators that women hold roughly 22% of state legislative seats, a number that has steadily risen over the last forty years. By contrast, there only 16 women in the Senate and 78 women in the House (roughly 16-17%).
So why the skepticism about states and the general complacency about broad national powers? True, some states can be nastily patriarchical -- but so can the feds: Males dominate both institutions, after all. The difference is my second reason for why feminists ought to like federalism: States provide far cheaper and more abundant access to elected office than Congress. The cost of running for state legislative office outside of California in the mid-1980s generally ran under $50,000, according to Thad Beyle's 1993 report for the Congressional Quarterly -- far lower than the cost of running for the U.S. House of Representatives, I'm guessing. If one assumes that women have less access to money and power than men, then why would want to allocate more power to an institution -- Congress -- that is likely to be costlier to access?
Of course, I could be wrong on my assessment of feminist scholarship: There might be lots of decentralizing feminists out there that I have overlooked. (And I'd be obliged to anyone who points them out to me). But, assuming my initial cursory survey is correct, I am curious why feminists are not more fond of an institution that, more or less, has done well by women.
Why course packets ought to be fair use
Yesterday I received a set of "scholarly perspectives" from UCLA Law School -- a handy little reprint containing digested versions of their faculty's scholarship. Doug Lichtman's contribution contained the following statement about publishers' desire to facilitate the creation of course packets -- an assertion that is, from my experience, so wildly implausible that it makes me suspect that Lichtman has never actually spoken with an employee of a publisher's "permissions department" in person.
Here is the statement: "Without fair use, copyright holders would for the most part license [course packet excerpts from their copyrighted works], anxious to earn the additional royalties associated with classroom adoption and cognizant of the fact that a faculty member can always assign other reading if a given copyright holder asks for an unreasonable price or imposes unreasonable terms."
As someone who has done a bit of casual field research in this area, this statement seems to me an especially egregious example of economoid tendencies to mistake a model for reality. In fact, in my several interactions with the permissions departments of various publishers, I have never detected the slightest hint of anxiety to negotiate a plausible price. The reason, as I'll explain after the jump, is that assembling material for a course packet is like assembling parcels for a New York City skyscraper: The transaction costs destroy the possibility of a voluntary assembly even when the assembly value obviously exceeds the value of the disassembled pieces. This is why I'd argue that course packets ought generally to be "fair use."
When I've asked publishers for permission to use a chapter -- always less than 10% -- of a historical work, the clerk at the end of the 'phone never budges from a price that is wildly disproportionate to the value of the property that I am trying to purchase. They simply do not care that (for instance) charging my students $10-15 each for the one-time use of a 20-30 page chapter of an out-of-print history of political parties is preposterous. Inevitably, I walk. Inevitably, the clerk does not give a damn. Inevitably, the publisher loses the opportunity to earn a few bucks off of a book that now gathers dust in libraries.
The clerk knows that I can easily choose another book on political parties: Morton Keller, Richard McCormick, Joel Silbey, John Aldrich, and many others allegedly vie for my business. Much more significant, the clerk knows that I can simply write up my own summary of the relevant history using their copyrighted material, which is what I generally end up doing. (Publishers cannot copyright history itself, after all). Indeed, I tell the clerk all of this in response to the absurd price quote before I thank him or her and hang up.
So why does the clerk not negotiate "anxious[ly]" as Lichtman predicts? The reason is probably transaction costs: I suspect that it simply is not worth publishers' money to hire someone with the knowledge and training to exercise discretion in the permissions department to negotiate over the penny-ante sums available in the course packet business. Instead, the clerk is given a price sheet -- say, a nickel per page -- from he or she can no more budge than a salesclerk at CVS can haggle over the price of toothpaste. Course packets are custom-tailored anthologies, typically used for specialized seminars with small numbers of students. The material is assembled from a lot of different books and magazines, so no single copyright holder will reap a significant reward. Sure, the Copyright Clearance Center will handle the 'phone calls for the prof -- but they do not haggle over the price: If they did, they'd get the same response that I got. And the CCC has no more capacity than the permissions department gnome to negotiate intelligently over the relative value of, say, Silbey's chapter on the "Shrine of Party" versus my time in writing up a summary of the same.
The transaction costs are the result of what my former colleague and co-author Michael Heller would call a "tragedy of the anti-commons." (His recent and extraordinarily readable book, Gridlock Economy , provides illustrations in areas ranging from real estate to intellectual property). Lots of owners have small entitlements necessary for a more valuable assembled item, such that assembling the bits into a single valuable whole becomes a major headache. Like a land assembly, a course packet assembly can falter simply because the publishers cannot pool their resources to hire an agent with authority to bargain intelligently over a realistic price for their bits of prose. (Unlike land assemblies, the particular transaction cost is not strategic behavior but simple administrative costs of collecting and evaluating information).
Keep in mind that this price ought to be very, very low, if the publisher is economically rational. The publishers, after all, are absolved from the need to pay production, shipping, marketing, or administrative overhead: The prof handles all of that. The books' being out of print, any money that the publisher makes is pure profit, and the course packet itself is free advertising for the press and author. Academic presses are happy to move even 2,000 copies of a book that is expensive to produce and usually badly marketed. The notion that they would lose revenue from charging a low price -- say, a cent per page -- for chapters of out-of-print academic titles is goofy.
Sadly, the sort of frictionless world of anxious sellers and cagey buyers that Lichtman assumes in his scholarship has become the foundation for really bad "fair use" precedent in Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996)(en banc) (a case that Lichtman cites approvingly). Moreover, I doubt that the Congress will amend the statute any time soon: The classic Olsonian political economy of course packets is that publishers are well-organized and student-consumers are not, leading to Congress' refusing to touch preposterous results like MDS.
The rational solution would be to treat as "fair use" any course packet that used a fraction of a book so small that it would be implausible to expect the students to buy the whole book. Lichtman's response would be, I'd guess that such a doctrine might undermine some incentive for publishers to increase production to sell to a market that they are manifestly ignoring. When he produces some evidence that publishers have any interest in serving this market, I'll re-think my position that Lichtman is an apostle for pure deadweight loss.
But I've got no time to investigate the question right now: I've got to write up a summary for a course packet.
Thursday, August 28, 2008
Io v. Veoh: Harmful to YouTube?
Yesterday's decision in Io Group, Inc. v. Veoh Networks, Inc. is generally being hailed around the blogosphere as a win, or at least a bit of good news, for YouTube in its ongoing infringement fight against Viacom. See the L.A. Times, CNet, Wired, Silicon Alley Insider, Techdirt, TechCrunch. Certainly Google is trumpeting the case as a win.
The piece of the decision most commenters are focusing on is the holding that Veoh's automated reformatting of uploaded materials does not create copies for which Veoh is responsible. That's clearly a good precedent for ISPs that process uploaded content somehow (and follows on the heels of the Second Circuit's similar decision in the Cablevision case).
But there's a key component of the decision that is not at all helpful to YouTube.
The Io court specifically noted that Veoh was able to invoke the DMCA safe harbor, shielding it from liability, because "there is no indication that Veoh has failed to police its system to the fullest extent permitted by its architecture." (Slip op. at 29.) Among those policing efforts was Veoh's practice of using "digital fingerprint technology" to "prevent[ ] the some infringing content from ever being uploaded again." But as I've said before, I believe the real driver behind Viacom's suit to be its claim that YouTube has filtering technology that it refuses to use to police Viacom's content. From Paragraph 7 of the Viacom First Amended Complaint:
Moreover, YouTube has deliberately withheld the application of available copyright protection measures in order to coerce rights holders to grant it licenses on favorable terms. YouTube’s chief executive and cofounder Chad Hurley was quoted in the New York Times on February 3, 2007, as saying that YouTube has agreed to use filtering technology “to identify and possibly remove copyrighted material,” but only after YouTube obtains a license from the copyright owner.... Those who refuse to be coerced are subjected to continuing infringement.
So Viacom's claim is that YouTube is not policing its system to the fullest extent permitted by its architecture, and in fact is holding some tools back as a bargaining chip. To the extent Io and other decisions are holding that, to preserve its DMCA immunity, an ISP has to police its system to the best of its abilities, YouTube may be in trouble (assuming Viacom's facts are accurate).
It's important to note that in the Io decision, the implicit requirement to police the system comes up in the context of discussing vicarious liability, which is not immunized under the DMCA safe harbor. And vicarious liability has two prongs to it, (1) the "right and ability to supervise the infringing activity" and (2) a "direct financial interest" in those activities. The Io court's discussion of policing occurred in the context of addressing the first prong. The second prong would still need to be demonstrated, and that would likely require a showing that, e.g., YouTube's ability to sell ads was somehow enhanced by the infringing content. Maybe that would succeed, maybe it wouldn't.
But I think the same "duty to police" theory may apply under the core of the safe harbor itself, Section 512(c)(1)(A)(ii). Section 512(c)(1) was not at issue in Io because Io never actually even sent a takedown notice; after spotting infringing files on Veoh's site, it decided to proceed directly to an infringement complaint. (Is this another case of, perhaps, some pre-1998 law school grads being a menace?) Section 512(c)(1) says that, in order to keep its immunity, an ISP hosting infringing content must do a few things, one of which is "act[ ] expeditiously to remove, or disable access to, [infringing] material" if it becomes "aware of facts or circumstances from which infringing activity is apparent." Congress called this a "red flag" provision in the legislative history; an ISP cannot simply ignore red flags indicating infringement and wait for the takedown notices to flow in, if it wants to preserve its immunity.
Does choosing not to use a filter that would screen out additional copies of a work cited in a takedown notice constitute ignoring a red flag? Io suggests that the answer may be yes, and if so, YouTube may be in trouble.
Human "dignity" and relationships
My fellow "Mirror of Justice" blogger, and legal-ethics scholar, Rob Vischer, had an interesting post the other day about David Luban's new-ish book, Legal Ethics and Human Dignity. In particular, Rob focused on this passage:
"I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans -- between, so to speak, the dignifier and the dignified. To put it another way, 'human dignity' designates a way of being human, not a property of being human."
This reminded me of the following passage from Gaudium et spes:
"God did not create man as a solitary, for from the beginning 'male and female he created them.' Their companionship produces the primary form of interpersonal communion. For by his innermost nature man is a social being, and unless he relates himself to others he can neither live nor develop his potential."
For my own part, I was reminded by David's thoughts of two things: Steven Pinker's recent essay, "The Stupidity of Dignity" and the concluding chapters of Nicholas Wolterstorff's latest book, "Justice: Rights and Wrongs".
There's been plenty of commentary in the blogosphere about the Pinker essay, so I'll put that aside. But Luban's focus on "relationships between humans" as the location (not the best word, I admit) for "human dignity" seems to connect interestingly with Wolterstorff's elaboration of his account of "human dignity adequate for grounding human rights". (In his view, such an account is necessary and only a theistic account is possible.) For Wolterstorff, the key is "bestowed worth" (think of "The Velveteen Rabbit"): "What we need, for a theistic grounding of human rights", he writes," is some worth-imparting relation of human beings to God that does not in any way involve a reference to human capacities. I will argue that being loved by God is such a relation; being loved by God gives a human being great worth."
Now, this is (obviously) not Luban's argument. But is it like Luban's argument, in a way that might be instructive? Any thoughts?
Why do courts keep getting this stuff wrong?
Before my current video evidence fascination, the focus of my procedure scholarship had been the distinction between subject matter jurisdiction and substantive merits in federal question cases. I have tried to construct arguments for clear distinctions between them, where jurisdiction should not be affected by the ultimate validity of the claim under substantive federal law. In particular, my argument was that merits (and not jurisdiction) turns on the question "who can sue who for what conduct and what remedy." We also can put it in Hohfeldian terms--merits alone turn on whether the applicable law imposes a duty on defendants and grants rights to plaintiffs as to some conduct. Thus, when a plaintiff's claim fails because the applicable federal law does not reach and regulate the actors and/or conduct at issue based on the facts and evidence adduced, that claim fails on its merits, not for want of subject matter jurisdiction.
So I continue to be disheartened by cases such as In re DRAM Antitrust Litigation from the Ninth Circuit, where the court found that the FTAIA was not satisfied in the factual situation at issue, then dismissed for lack of subject matter jurisdiction, rather than for failure to state a claim or summary judgment.
The Sherman Antitrust Act and the Foreign Trade Antitrust Improvements Act ("FTAIA") is a central example that I have used in several articles on this subject. The Sherman Act prohibits contracts in restraint of trade affecting commerce. Under the FTAIA (enacted in 1982), contracts and agreements in restraint of purely foreign trade are excluded from the Sherman Act's coverage (i.e., are not prohibited by the Sherman Act), unless they have a direct and foreseeable affect on non-foreign interstate commerce. So if a claim is brought based on restraint of foreign trade and the plaintiff cannot prove a direct and foreseeable affect on non-foreign interstate commerce, the plaintiff loses. But, and here is the key, the plaintiff loses because the substantive federal law was not violated by the conduct and actors at issue--the claim failed on the merits. The plaintiff could not sue this defendant for this conduct. The plaintiff had no right under substantive federal law to be free from purely foreign restraints of trade and the defendant had not duty under substantive federal law to refrain from conduct that imposed a purely foreign restraint of trade.
But the plaintiff does not lose because the court lacked subject matter jurisdiction, because the relevant jurisdictional statutes were satisfied. After all, the court had jurisdiction for any claims arising under the laws of the United States or, more particularly, claims arising under laws regulating commerce. This claim did arise under the Sherman Act, in that the plaintiff brought a claim into court seeking relief on a claim that existed by virtue of federal law and was made possible by federal law. That the claim failed under the statute (because some element was not satisfied on the facts) should not affect jurisdiction Indeed, if the failure of the plaintiff's claim deprives the court of jurisdiction in the type FTAIA case at issue here, then every failure of a federal statutory or constitutional claim must become a jurisdictional defeat--which no one ever has said is the case.
Interestingly, Judge Noonan concurred (agreeing to a jurisdictional dismissal), but captured the merits/jurisdiction line. He wrote "[I]s has been the judgment of Congress and the Supreme Court that the economic interests of consumers outside the United States are normally not something that American law is intended to protect." Exactly. Substantive federal antitrust law does not protect those economic interests--it does not grant consumers outside the U.S. rights against foreign conduct. This is all about the reach of substantive federal law; it has nothing to do with the adjudicative authority of federal courts.
It all seems so simple, but the courts keep missing it. Maybe that is how law professors stay in business.
The Morality of Our Friends in Brooklyn
Well, that's not quite the topic under investigation, but some number of the Friends of Prawfs will be hosting or participating in a fascinating symposium at Brooklyn Law School on Friday Sept. 26th on the topic of Is Morality Universal and Should the Law Care?
I've posted the description and agenda after the jump. Sadly, I'll have to miss it. That day I'll be presenting this new paper -- How Should Punitive Damages Work? -- at the Canadian Law and Econ Association annual conference in Toronto. I'll have more to say about that article in a separate post, but one should never miss an opportunity to invite others to be among the first 1000 downloaders of a new article... In any event, I look forward to reading the remarks of the Brooklyn conference attendees; I suspect that they will appear in the Brooklyn Law Review, which is a co-host for the event.
Btw, I found out about the conference from the LSN Professional Announcements email. But folks, why spend big bucks on SSRN when you can run these paid announcements for CFPs, jobs, conferences, etc. on Prawfs?? We're here for you too :-)
Discoveries about the ways our minds work lead us to ask
important questions that concern the law. Among them are:
Do we have a universal set of moral principles, which
suggests that people should be held responsible for
complying with them regardless of articulated legal
standards? Is there a universal set of justifications and
excuses for otherwise bad conduct? Do we have a strong
impulse toward retribution, and if so, should the law
reinforce or temper that impulse? Are there universal
principles of social cognition, and if so, how should the
law respond to their existence? Can we tie any such
patterns to evolution? Are we configured to blame more
easily than to praise, and how does the law reflect this
Participants in the symposium include experts in law,
psychology, linguistics, philosophy, history, and
psychiatry. Their presence at the symposium will highlight
both the occasional consensus and more frequent controversy
about these most important questions. The symposium is co-
sponsored by the Center for the Study of Law, Language and
Cognition and the Brooklyn Law Review.
8:15 am Registration, Continental Breakfast, Opening
9:00 am Moral Universals vs. Adaptive Flexibility
John M. Darley, Dept. of Psychology, Princeton University
Adam J. Kolber, Univ. of San Diego School of Law; Brooklyn
Bailey H. Kuklin, Brooklyn Law School
Laurence R. Tancredi, New York University School of
Miriam H. Baer, Brooklyn Law School
11:15 am Break
11:30 am Moral Attribution: Positive and Negative
Susanna L. Blumenthal, University of Minnesota Law School
Lawrence M. Solan, Brooklyn Law School
Joshua Knobe, Dept. of Philosophy, University of North
Jason Mazzone, Brooklyn Law School
1:00 pm Luncheon
2:00 pm How Universal are Moral Universals?
Paul Bloom, Dept. of Psychology, Yale University
Ray Jackendoff, Center for Cognitive Studies, Tufts University
John Mikhail, Georgetown University Law Center
Michael Cahill, Brooklyn Law School
4:45-5:00 pm General Discussion
Kevin M. Carlsmith, Dept. of Psychology, Colgate University
Brooklyn Law School
250 Joralemon Street
Brooklyn, New York
Wednesday, August 27, 2008
Co-authorship & Tenure Regs
Hastings has what I take to be an antiquated regulation about co-authorship in its tenure standards:
"Co-authored works will be considered to the extent that the candidate's contribution can be separately evaluated."
I can only guess that this kind of thinking came out of an age where casebook authors assigned one another separate chapters that could be sent out for review individually. But this regulation is clearly out of date, in my humble opinion. Thankfully, we're about to revisit the issue and I would be very curious about what modern standards look like on the question of co-authorship. And if you were writing tenure standards anew, how would you handle the issue?
The symbolism of procedure
It appears I thought more highly of Hillary Clinton's speech than Paul did. I thought she said pretty much all the right things in the right way; there are some more things I would have liked to have been made more explicit, but overall I thought it did the trick.
But I actually found more meaning and expressive impact in the roll call procedures tonight. Obama agreed to a roll call vote in which some Clinton delegates could vote for her (through New Mexico, about 340 delegates had voted for Clinton, the rest, having been released this afternoon, voted for Obama), then Clinton moved to cut-off the roll call, suspend procedures, and nominate Obama by acclamation. Through the use of procedure, both got some form of what they wanted and it ended in an unequivocal, unanimous endorsement of Obama.
This strikes me as a good object lesson in the power of procedure and in the way it can be used to send messages and form meaning around and about the events it governs. I am trying to figure out how to use this in any or all of my procedure classes.
It's always a great pleasure to do guest stint at Prawfs, and this time was no exception. Thanks to Dan et al. for having me around, and to commenters and readers for being part of the conversation.
Of course, no Prawfs visit would be complete without at least a little shameless self-promotion, so let me take this final moment to mention a new work in progress I just posted to SSRN, Property Rhetoric and the Public Domain. This is the companion piece to an earlier work, Crystals in the Public Domain. Both parts of this two-part project seek to show that the much-maligned propertization of intellectual property may have unforeseen benefits for the preservation of the common entitlements in information. It went live on SSRN literally moments ago, so if you go now, you may have the (admittedly not that exciting) distinction of being the first downloader (!).
Until next time, happy trails, y'all.
I didn't watch Hillary Clinton's speech last night; I'm not a huge pomp-and-circumstance fan, and in any event I was busy spooking myself (not for the first time) with Jacob's Ladder, and seeing with a parent's eyes just how beautiful Macauley Culkin was as a young child. I understand that the notices have been quite positive and that the consensus was that she made much more than a tepid effort at salving the wounds of her disappointed supporters.
On the other hand, the second paragraph of the Times coverage of the speech today was this:
Mrs. Clinton . . . also took steps on Tuesday — deliberate steps, aides said — to keep the door open to a future bid for the presidency. She rallied supporters in her speech, and, at an earlier event with 3,000 women, described her passion about her own campaign. And her aides limited input on the speech from Obama advisers, while seeking advice from her former strategist, Mark Penn, a loathed figure in the Obama camp.
The story doesn't give much evidence of Clinton's efforts to keep the door open for 2012/2016 beyond what it offers in that paragraph. But that first sentence is telling. When "aides" are telling the paper of record that their boss took "deliberate steps" to keep open her route to the presidency, two things seem clear: it is unlikely that the aides are freelancing, and it seems evident that someone in her camp wanted this to be the second paragraph of the story.
Does that erase the job she did with her speech? No, and by all accounts she went to the mat for the victor in her speech. But it does suggest that, as usual with the Clintons, it's still all about . . . the Clintons.
Bivens and telecom immunity
I previously have written about the congressional grant of retroactive immunity to the telecommunications companies for assisting the federal government with warrantless domestic surveillance. I have argued that the immunity grant appears constitutionally valid, at least as to a challenge under United States v. Klein and other arguments about retroactive changes to the law.
But a conversation yesterday suggested one possible basis for challenge that I had not considered: the Bivens doctrine. Bivens is the implied right of action to recover damages against federal officials (and others acting under color of federal law) for past constitutional misconduct. The argument appears to run as follows: the absolute grant of immunity (upon an easily made showing) leaves the victims of domestic surveillance without any remedy for having been spied upon--there is no other statutory remedy, no one was prosecuted based on the information uncovered, and, since the program was discontinued, no one has standing to enjoin it. For these plaintiffs, as Justice Harlan wrote concurring in the judgment in Bivens, "it is damages or nothing."
As the doctrine has developed, most recently in Wilkie v. Robbins, a Bivens claim is available against individual federal actors unless there is 1) any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages or 2) even absent an alternative remedy, a Bivens remedy is a subject of judgment: “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation." Prior to Wilkie, "special factors counselling hesitation" were largely coextensive with adequate alternative remedies. The longstanding presumption had been that a Bivens action must be recognized unless Congress has provide some minimally adequate alternative (even if not coextensive or even comprehensive) statutory remedy for the misconduct. And no case had declined to recognize a Bivens claim absent some other remedial scheme. On that understanding, the grant of immunity might be in trouble.
But the language (if not the actual facts) of Wilkie disaggregate the two--special factors may counsel against a Bivens claim even absent an alternative remedy. And the D.C. Circuit recently took that step in Wilson v. Libby, rejecting Valerie Plame Wilson's and Joseph Wilson's constitutional claims against Scooter Libby, Dick Cheney, and others, even though this left them entirely (or largely) without remedy for the harms they suffered by the disclosure of Valerie's status as a CIA agent.
And even if an adequate alternative remedy still is necessary to reject a Bivens action, I wonder if statutory immunity works a denial of that remedy. After all, the same pre-existing common law immunities that apply as to state government officials under § 1983 (notably qualified executive immunity) also apply to Bivens claims against federal government officials. Thus, an individual's Fourth Amendment Bivens claim against Secret Service agents fails if the officers can show they are entitled to qualified immunity--even if it leaves the plaintiff without a remedy. It is not that the Bivens claim is not recognized because of "special factors;" it is that it is defeated by an affirmative defense of immunity. That seems to me more analogous to what is going on with telecom immunity. And no cases of which I am aware applies the two-step Wilkie/Bivens factors to qualified immunity.
One argument could be that there is a difference between qualified immunity and the absolute immunity granted to the telecoms. But I am not sure that works, because Bivens claims also can be defeated by a defense of common law absolute judicial immunity--again, even if that leaves the plaintiff without remedy. Another argument could be that telecom immunity is a statutory defeat of a constitutional claim, which is different than the other immunities, which are relics of the common law that Congress has not overruled by statute. In other words, common law immunities that defeat constitutional claims are less problematic than statutory immunities that defeat constitutional claims. But either is "sub-constitutional."
So I think the Bivens argument also fails, but it gets into a lot of open issues. Thoughts?
Using Class Blogs
This semester I'm experimenting with a class blog in my civil procedure class. It is primarily for civil procedure in the news and is available only to students in the course. Each student must blog once during their assigned week, but may blog more. They are not graded on their posts. In an ideal world, blogging might help them recognize procedural issues around them and practice making the main point concisely. I've also told them that they should feel free to raise questions to which they don't know the answer.
I would love to hear about others' experience with using blogs in a course. (And is it the same as using discussion boards?) In particular, I'm concerned with getting students to read it regularly and with integrating it with the rest of the class. One thought (although it might cause more problems than it would solve) would be to use one post in the semester as the basis for an exam question, a policy that I would announce up front with an eye to encouraging students to read and comment on the blog. I also would like to use these news stories to mix up my two-hour, early morning Friday class. Maybe by student presentations? Maybe I would pick a story to highlight? Your thoughts are welcome.
We've Been Framed
Have you been watching the recent commercials for General Motors? (See here.) In an audacious move to celebrate GM's 100th anniversary, the company decided to stop giving employees a discount on GM cars. Not only that, they are spending millions and millions of dollars to advertise the decision to end (at least for a while) a substantial employee perk. The people in the commercial are supposed to be GM employees. What are they so happy about?
No doubt, you are already familiar with psychological framing effects. For example, stores typically tout their cash discounts, though they could just as easily tout their credit card surcharges. Similarly, though GM bills its plan as the "Employee Discount for Everyone," it could also be billed as a discount for no one. Shhh!!!!
As it happens, GM has halted employee discounts in the past. The last "Employee Discount for Everyone" was quite successful, and they have no doubt returned to it with an even bigger promotional budget. And their cars probably are selling at good prices. But pitching that the cars are well priced is apparently less enticing than pitching GM's decision to stiff its employees. Mad men, indeed!
Tuesday, August 26, 2008
Measuring Teaching Success
With the start of the new school year, I’ve seen a lot of interesting a valuable discussion about teaching methods, such as whether to use the Socratic method or PowerPoint, or whether to ban or limit laptops in class. What I sometimes wonder most, though, as a relatively new teacher with no formal training in education, is how I should measure my success at achieving my ultimate goal: student learning … which of course is itself a loaded concept, since from what I can tell different law professors prioritize different things to be learned: doctrine, theory, critical thinking skills, professionalism, and so on. But whatever I want my students to learn, how should I measure my success at getting students to learn it through whatever methods I've chosen?
I’ve detailed a few thoughts and ideas of my own below the jump, but would love to hear others.
The standard answer I have received to my question is student evals. And, my student evals have aided me tremendously in refining my teaching methods—I'm always impressed with how seriously some students take this opportunity to voice their opinion about their education. But I see some limitations to student evals, too.
Some students don't complete the evals or take them as seriously as others, which leaves me with no idea of whether I've reached these students. Additionally, our evals, like many of the evals I remember completing as a student, ask pretty general questions like: “What has the professor done especially well?”, “What should the professor do to improve the teaching of this course?”, and “General comments.” As a result, some students, particularly my 1L students who are still learning about legal education, seem to tell me whether I accomplished their goals for the class, which may not be the same as my goals for them. These evals certainly help me to evaluate whether I’m communicating my goals well, but I’m not confident that they provide a complete evaluative resource. I also get students' evals only after the course has ended. I want to know whether I’m helping students while I’m instructing them.
So, I’ve tried a few other things. The last couple of semesters other faculty members who are not on our PRT committee have agreed to attend my class to evaluate my work. These observations have been great, because I get no-agenda feedback from faculty who know what I’m trying to accomplish, and who can watch the class and individual students more objectively from their observation post. Of course, it’s still a teacher’s perspective of whether I’m effectively reaching the students, but along with my evals, this perspective has helped to round out my sense of whether I’m accomplishing my goals.
Last semester in con law I also required students to submit written questions to me at the end of each chapter or significant section in our casebook. I thought these questions really gave me a good sense of what the students were taking out of our classes right after we finished them, and offered me the chance to respond directly to those questions—I could devote some class time to more common questions, post my thoughts on our TWEN discussion board, or simply alter my approach to future materials.
And, to return to the topic of “Socratic” teaching, I regularly question my students in class not only to give them a chance to work through legal problems with me before I test them, but also so they can show me through their responses what they’re getting out of the class.
Any other thoughts or ideas out there on how we law professors should evaluate the success of our chosen teaching methods?
Why are non-profits, well, not for profit?
I've started a few blog posts on non-profits and politics, but it's hard to get far into that swamp before you end up asking the question, "Hey, what's the point of having these non-profits around, anyway?" So maybe it makes more sense to start at that end. The classic economic account, per Henry Hansmann, is that some firms must find a device for credibly signaling that they will not shirk. For example, since no one can tell easily whether health care is of high or low quality, customers will be reluctant to pay for it unless they have some guarantee the hospital won't cut corners in order to maximize revenues. So non-profit status is a commitment device for providers of credence goods. Since the pledge makes it hard to raise capital, these goods can only be provided if they come with a subsidy.
Recently, Malani and Posner have cast some doubt on Hansmann's story by pointing out that many non-profits seem uninterested in advertising their non-profit status. They then leverage this insight into a claim that the subsidy for charitable works should be open to for-profit firms. One could quibble with Malani & Posner's premise here. For example, their big example is hospitals, but it may be that hospitals were overwhelmingly non-profit for so long that customers now assume they are for-profit, or that hospitals choose names, like "City Hospital" or "University Hospital" or "St. Jude's" that themselves signal a commitment to health care over profit.
In any event, there are a couple of other strong economic justifications for the non-profit sector, and I think they both demand that subsidy recipients be non-profits. Neither would be undermined by the Posner/Malani claim that non-profits do not signal their status. Both are, like Hansmann, market failure stories. The first is a coordination problem.
What do I mean, coordination problem? Well, as Acemoglu et al. point out in their neat LEO piece from last year, "Incentives in Markets, Firms, and Governments," there are times that a firm would actually prefer that the incentives it offers its employees be low-powered -- that is, produce only weak motivation. Their key example is the Freakonomics tale of teacher testing -- give teachers strong reasons to improve test scores, and they teach to the test or cheat. This "bad" effort in response to incentives may crowd out or swamp any beneficial effects from increasing "good" effort.
Here's the problem (as I see it; Acemoglu et al. are a little sketchy on this part). It's hard for a firm acting alone to offer only low-powered incentives. If my rivals can offer a share of profits, I'm likely to be outbid for the best talent; high performers will want to get large rewards for doing better than others, so that my low-powered compensation scheme selects for workers who see themselves as less able. In order for anyone in the industry to offer low-powered incentives, they all have to commit to that compensation scheme.
The U.S. scheme for subsidizing and regulating the non-profit sector could be a way of getting to that result: a whole industry committed to low-powered (e.g., not profit-based) compensation. And, as it turns out, the sectors where this tactic is necessary look a lot like Hansmann's description of what should be a non-profit, because a key component of the "bad" incentives dilemma is that we're trying to produce goods where the quality is hard to measure, so we have to use imperfect incentive schemes.
Is this making sense to anyone so far?
Anyone Starting with Heller?
The editors of the widely-adopted Stone Seidman Con Law book have decided to frontload Heller -- and include it in their 2008 supplement to read in connection with page 8. That is, before Marbury. Is anyone out there who uses Stone Seidman following their suggestion? I'm not this year: I don't have enough time to get through all I need to in Con Law I -- and all the hype associated with Heller notwithstanding, I can't justify putting it into the course, nor putting it first. I understand how it could be pedagogically useful if I had the time but I am not ready to take the plunge. You?
U.S. News and Part-Time Program "Gaming"
The front page of today's WSJ has an article about a possible change in the U.S. News law school ranking formula. The change, which has already been much discussed, might require law schools to count the LSAT scores and GPA of part-time students in schools' overall LSAT and GPA numbers.
I'm sure others will have more to say about this than me. I just want to draw your attention to one curious sentence in the article: "Mr. Morse of U.S. News says the magazine will run tests of how the change would play out in rankings, and then decide in January." Now, the sentence does not precisely say that the U.S. News formula decision will depend on "how the change would play out in rankings," but it sure seems to imply it. Otherwise, why are they running the tests?
Presumably, U.S. News wants to be sure that such a change in methodology would not make the rankings seem less legitimate. But if there is some gold standard that U.S. News uses to see how well its tests come out, then just show us the gold standard law school rankings! Perhaps there is some other explanation. Perhaps one can test the "stability" of the rankings or some other set of criteria that are neutral with respect to the rankings of particular schools. But, it will not be shocking to suggest that the primary impetus for the testing may have more to do with the business goals of U.S. News rather than the development of an unbiased, careful approach to measuring law school quality.
Monday, August 25, 2008
Arts as Game
A couple of weeks ago I did a four-part series on the Scrabulous litigation (Part I, Part II, Part III, Part IV), which ended with musings about the relationship between games, expression, and copyright. Games, like copyrightable works, can be "played;" but despite this similarity in terminology, I argued that games are fundamentally different from other forms of expression, a fact that justifies the traditional rule that games are not copyrightable. The artistic expression in games does not encompass the actual gameplay, which crucially depends on the involvement of the player; the expression only sets the conditions for game play. Therefore, a game that "plays the same," but does not sufficiently copy the individual elements of another game (board, pieces, rules sheet), is not infringing. The art in games is in the environment, not in the game itself.
Yesterday's New York Times Book Review flips that analysis around. In a review of Michael S. Gazzaniga's Human: The Science Behind What Makes Us Unique, Daniel Levitin notes Gazzaniga's intriguing hypothesis concerning the evolutionary purpose of art:
Gazzaniga doesn’t shy away from hard problems, like why humans, alone among species, have art. The attraction to stories, plays, paintings and music — experiences with no obvious evolutionary payoff — is puzzling. “Why does the brain contain reward systems that make fictional experiences enjoyable?” he asks. Part of the answer, he argues, is that fictional thinking engages innate “play” modules that enhance evolutionary fitness (that is, the ability to propagate one’s genes) by allowing us to consider possible alternatives — hypothetical situations — so that we can form plans in advance of dangers or even just unpleasant social situations. “From having read the fictional story about the boy who cried wolf when we were children,” he writes, “we can remember what happened to him in the story and not have to learn that lesson the hard way in real life.” Art may be more than a leisure activity. Artistic, representational thinking could have been fundamental in making us the way we are. As Gazzaniga concludes, “The arts are not frosting but baking soda.”
So putting my argument and Gazziniga's together, play is not art, but art is play. What gives?
Gazziniga's hypothesis, at least as described in the review, seeks to create an evolutionary payoff for art in that it encourages advanced planning for life-threatening or at least status-threatening situations. One objection might be that that only captures a small amount of art. So, we might be better prepared to deal with large, insectoid creatures while stuck on a remote cargo vessel (lesson: never breach quarantine!), or perhaps a neighbor you suspect of murder (tip: keep a lot of flashbulbs handy), but what does Monty Python and the Holy Grail prepare us for? Or Beethoven's Fifth Symphony? Or Mondrian's Composition with Red, Yellow, and Blue?
Of course, a good response might be that, once the "play module" that allowed imagining threatening situations was created, it also allowed all sorts of other activity not directly related to evolutionary fitness, much in the same way thumbs may have originally evolved to hold tools, but now allow us to hitchhike and confirm approval.
I don't think that issue needs to be run to the ground because I don't think the two theories are inconsistent. Gazziniga's argument seems to be, not so much that art itself is play, but that it creates the environment for play -- the "play" being the thoughts that occur in the brain of someone listening to a tale, or viewing a cave drawing, and empathizing with the protagonists or imagining similar events happening to them. This sort of reaction to the work -- the internal appreciation of a copyrighted work as it is in play -- is not within the scope of copyright for the same reason game play is not. Game play is the interaction between player and game, and thus not fixed within the game's expression; neither is the imaginative response to a work being displayed or recited. It might intrude on the copyright owner's rights, of course, if that imaginative response is then set down in some sort of permanent medium somewhere, because it might then act as a vehicle for the further transmission of the original author's expression; and that opens the door to some extremely difficult questions now that recording thoughts in tangible media is so easy. But the thought itself is not within the scope of copyright -- even if a person has such a good memory that their brain is a "material object[ ] ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated" -- the definition of a "copy."
In Defense of Biden: A Reply
Wes Oliver, a former Biden campaigner and a prawf at Widener, writes in with the following response to my post on Biden. Here's his reaction, which I also respond to after the jump:
First, let me say that I appreciate the invitation to respond. Much like the candidate I went to Iowa to support, I appreciate hard-hitting yet respectful debates. Before I respond to your specific points, let me just offer a couple of observations about Joe Biden that may not be apparent to folks who only watched the meager coverage he received in the coverage of the primary. This is one charismatic campaigner – with an extraordinary depth of knowledge -- two characteristics that manage to display themselves simultaneously. Previous campaigns have led us to believe that a very sophisticated discussion of policy is not something candidates are supposed to do – that the public will be turned off. The problem has been that the candidates who have taught us this “lesson” were not blessed with a great measure of charisma in the first place. Joe Biden has the remarkable ability to be fired up – and fire up a crowd – while he is explaining details about a matter of national security or economic policy.
quick example – the one that first made me a Biden
fan: On September 10, 2001, I was sitting in an apartment in Portland,
Maine flipping channels and saw Biden on C-SPAN. I always thought he
insightful, so I stopped and watch. Biden began explaining that we
prepared to meet the threats of the Cold War era, but that our defense
did not account for the threats of the modern era – that a small
cell terrorist group like al Qaida, not the threat of thermo-nuclear
posed the greatest threat to American security. I was drawn in and I
not a foreign policy guy – his account made sense and it was gripping and conveyed a real sense
of urgency. Anyone could get his head around what Biden was saying and yet
his analysis lacked nothing in sophistication. THEN, he said, “the
next attack on this nation will come in the hull of a ship or the belly of a
plane.” My second thought after the towers came down: “My
God, Joe Biden was right.” (My first thought was the same mix of
horror, anger, sadness and disbelief that I am certain I shared with everyone
reading this.) This is, of course, a dramatic example, but I’ve
seen him hold an audience of ordinary, hard-working Iowans in the palm of his
hand as he dissected Bush’s Roadmap to Peace in the Middle East or
explained how government development of infrastructure is the key to economic
revitalization. He is the rare politician who can take complicated,
important ideas, make them accessible and make people who lack expertise in the
area he’s describing care passionately about the ideas. He does it
without dumbing down his discussion – he teaches using the advice Oliver
Houck gave me when I started teaching – teach with enthusiasm, everything
else will take care of itself.
To address the specifics of Dan’s post. And Dan, while I like and respect you greatly, I strongly disagree on your points, offering the specifics that follow:
1) Biden’s “support” for the war has been caricatured. True, Biden voted for the Authorization to Use Military Force but he and Richard Lugar proposed an amendment (the Biden-Lugar Amendment) which would have required a UN Authorization OR the president to personally certify that Iraq posed an imminent threat to the United States, not just its allies, before using force. This would have effectively prevented the Iraq invasion, or ensured that we did it with the support of the international community, which wasn’t likely, but would have created a very different international climate. (The amendment had wide bi-partisan support but Joe Lieberman shut down this amendment by moving for a cloture vote.) Biden was then perhaps the greatest critic of the way we were planning to go to war. He may have been the one to have coined the phrase “we can win the war, but we are not prepared to win the peace.” Every night or so I saw him on tv saying this. Biden was, at every turn, an opponent to the way we were carrying out this operation. And he was the first to offer a reasonable political solution to get us out without leaving chaos behind – a proposal accepted by 75 members of the US Senate to create three states within the country.
2) As to what Dan describes as the boneheaded comment about Obama. He did say Obama was clean and articulate. Context, however, is everything. In that same quote he described him as brilliant and used the color metaphor “lightening in a jar.” (What would give to have a student describe you as “lightening in a jar”?) This was an off-the-cuff comment that, when looked at in context, had no malice – quite the contrary. He has gotten so much grief for leaving the word “cut” off of clean. And for the articulate comment – I understand the objection, but I am certain he meant, by the standards of presidential candidates, Obama is articulate and exceedingly so – and is he ever. He sure can fire up a crowd with sharp and soaring rhetoric – Joe Biden wasn’t saying Barack could conjugate. If anyone should be offended by this, it would be, I guess, Barack Obama. And Obama thinks that, other than himself, the best qualified person in America to be president is Joe Biden. Obama said at an Iowa debate that he knew Biden’s heart and that he knew that was not a racially animated statement. Does Biden gaffe? Sure. The flip side of Biden’s gaffes is that he is exceedingly candid and THAT comes across in spades.
3) The plagiarism point. Is it is honesty or dedication to learning that you’re questioning here? His entire life since that moment has been dedicated to the scholarly understanding of issues and presenting them unvarnished to the American public. Biden did more than any candidate in the primaries to explain the complexities of the issues facing this country without dumbing down the issues. (See discussion above.) Maybe it is my Baptist upbringing, but I still believe in redemption – and if this isn’t a redemption story, I don’t know that I’ve heard of one.
Thanks for allowing me to respond.
Wes, thanks for the response. To my mind on point 1, Biden's support of the AUMF is not an inherently obvious mistake--given the intelligence stories from many credible sources, I'm sure I would have been inclined to do the same, even though like Biden, and many Republicans too, I have grave reservations about the way the war was conducted. FWIW, Biden opposed the surge. At the time, I believed the surge was the right thing to do; once we mangled another country, we have some strong obligation to fix it or at least provide the conditions of security to help the citizens of that country rebuild it. So far, it's proven its worth and so that's another major issue Biden's been on the wrong side of, though again, reasonable people may disagree about that.
As to the gaffes, though they are plentiful I don't for a minute think he's an evil or malicious person; he's just insensitive to various social cues and norms [said the professor who gets chastised by his wife for that on a daily basis; of course I'm not on a ticket for VPOTUS]. The significance of the plagiarism during law school seems more problematic than the Kinnock-cribbing, b/c he used to credit Kinnock in previous iterations and probably innocently forgot to during the stump speech. But lifting 5 pages from a law review article that's not yours, if true, is more than just a blunder. In any event, I hope I'm wrong about his gifts and remain open-minded. Thanks for your response, Wes
Laboratories of Democracy: Some questions for skeptics
I ignore this blog for just a couple of weeks, and what do I find gets posted in my absence? Brian Galle's and Joseph Leahy's working paper defending Susan Rose-Ackerman's thesis that state politicians do not innovate because they are risk-averse and seek to free-ride off of each other's innovations. Being this blog's resident federalism fan, I have mixed feelings about their paper. On one hand, the paper is admittedly an outstanding contribution, confirming my suspicion that all of the best work on federalism is done by tax and environmental law folks: Galle, being a tax guy, predictably integrated the best economics (e.g., Besley & Coate, Breton, etc), while all of the constitutional law folks are still parsing the punctuation of some squishy preemption opus from the SCOTUS.
On the other hand, sometimes I think that federalism gets a lot of unfair knocks from scholars who compare federal regimes to some idealized "socially optimal" world and, unsurprisingly, find that federalism falls short of their imaginary ideal. Galle and Leahy, I think, fall prey to this tendency when they conclude that "state and local governments ... are unlikely to innovate in all instances at the optimal social level" (page 7). To which I respond: So what? Neither will Congress.
In particular, why do Galle & Leahy assume that federal politicians are immune from the "information externality" that allegedly afflicts non-federal politicians? Rose-Ackerman's claim is that non-federal politicians will not innovate because they are all hanging back like penguins at the edge of a glacier, waiting for some hapless penguin to dive in first and reveal the presence of some lurking predator below. No one wants to be the first mover when they can reap the benefits of other first mover's experiment by being a copycat -- make a big splash, catch some fish -- without the risk of being eaten if the innovation flops.
But why is not Congress just another gaggle of penguins, so far as the information externality is concerned? Federal politicians act as individuals when they innovate, staking out areas of policy expertise through hearings and bills, trying to win visibility on an issue so that they can run (for instance) for President. Think of Estes Kefauver and organized crime, Edward Muskie and environmental law, Abe Ribicoff and auto safety. The information externality afflicts these politicians every bit as much as it afflicts governors. If it turns out, for instance, that environmental regulation is a bust with voters, then the Senator who championed it will look bad, making it risky for any federal politician to get out in front on the issue. If, by contrast, environmental regulation is successful, then it will be easy enough for rivals to jump on the bandwagon after success is proven in the field.
So how exactly will federalization of any issue ever internalize any information externality? Why are not members of Congress, governors, mayors, etc., all a bunch of penguins -- some of whom are less risk-averse than others and jump off the ice berg first, in hopes of catching more fish?
Request for Information: Changes in American Religious Demographics
I wonder whether I can appeal to my reader(s) -- hi, Mom! -- for some research assistance. I'm looking for basic information on changes in American religious belief -- what religions Americans profess, how deeply, and so on -- over the last 50 years or so. I'm sure there are some very basic sources here that will give me all I need, but for some reason I've come up a cropper in my quick searching. Can someone point me where I need to go? Feel free to use the comments or to email me directly. Many thanks....
What We Talk About When We Talk At Length And Tediously
No, that's not a reference to the Socratic-vs.-lecturing debate. Rather, I commend to readers today's "schedule" for the Democratic National Convention, penned by hit-and-miss humorist Christopher Buckley, who hits on this occasion, in the Times. I'm not sure what my favorites are, but up there would have to be the description of the "interfaith gathering," in which "Democrats of many interfaiths" will gather, "just as Republicans do on Sundays in actual churches with spires and vast parking lots," Bill Clinton's "lower-lip-biting demonstration," and, of course, Michelle Obama's keynote address: "Don't You Think I'd Know if My Husband Were a Muslim?"
Good stuff. Clip it and keep it on your calendar to help keep track of events this week.
Sunday, August 24, 2008
A Cautious Dissent On Biden
I hate to
pee rain on the upcoming parade, but yesterday morning's news that Obama picked Biden to be his Veep was pretty disappointing to me. Here are any number of things that come to mind as reasons why he shouldn't have been chosen, at least based on my quick and untutored reactions.
a) Like the majority of Dems in the Senate during the first Iraq war, he voted against the effort to liberate Kuwait. This strikes me as an obviously wrong decision. By contrast his vote for authorizing the second Iraq use of force resolution is one that I think reasonable American politicians could disagree about. The fact that Obama voted against it and Biden voted for it may be a kind of triangulation device but I can't tell.
b) While he was recently running for the Dem nomination for POTUS, Biden dissed Obama as not ready for prime time. Now we get to hear that statement over and over again. Not to mention his other bone-headed comment about Obama as a nice mainstream articulate black guy. Thanks JB. I'm looking forward to more of your insights into a diverse America.
c) As a professor, I can't help but notice that Biden had (at best) an utterly mediocre academic background, and he was busted for plagiarism as a student and as a presidential candidate. Really, do academic achievement and intellectual integrity matter so little??
d) Notwithstanding the coverage in the Times today about Biden's foreign policy chops -- but see supra a) -- Biden brings little identifiable talent or credentials of the sort that will help Obama secure the election, or persuade the voters that he's above politics as usual. Who does he pick as his running mate? A six-term senator.
I know Biden's supposed to be a great guy and that he's gone through lots and also improved over time in terms of his legislative abilities. And I'm genuinely open to learning more about Biden as the next few days and months come around. (Wes Oliver, come educate me gently!)
But I can't believe we had to wait so long to find out that Biden's the VP selection. I can only imagine that Biden's public skeletons were the least evil of the others under consideration. And in terms of whether he's "ready" to be President, sure, he's been in the Senate since he was 29. But is there any plausible sense that he's got the game to be POTUS? I'm looking forward to being proven wrong, but I worry that if Biden's indicative of Obama's judgment on serious matters, the Dems need to worry more. I suspect that the race just got even tighter.
Update: Wes Oliver and I continue an exchange here.
The Political Clairvoyance of The West Wing
Like most youngish, over-educated lefties of the past decade, I was a big fan of The West Wing. I even wrote about the many issues of presidential succession that the show portrayed during its seven-year run. This election cycle has been interesting for different West Wing reasons: The show's rough political clairvoyance.
For non-viewers, the last two seasons of the show were devoted to the race for the Democratic nomination and the general election to replace President Bartlet. The featured candidate was Matthew Santos (played by Jimmy Smits), a young, charismatic, relatively inexperienced minority member of Congress, who comes from nowhere to win the nomination against the sitting Vice President following a contentious and wide-open Convention and, ultimately, a close election that came down to the popular vote in one Mountain West state, maybe Nevada or New Mexico.
I read a few months ago that Santos was expressly modeled on Barack Obama, who had just been elected to the Senate and had given the well-received 2004 DNC speech. And I recently had been thinking that Santos' opponent might have been modeled on what many Democrats believed John McCain was, at least prior to McCain's political conversion/awakening over the past year, Democrats taking a closer look at his record, and the recent nasty turn the campaign has taken. The GOP nominee, Arnold Vinick (played by Alan Alda in an Emmy-winning turn)) was an experienced, socially moderate, fiscally conservative foreign-policy focused western-state (California) Republican Senator, who often disagreed with his own party, was often derided as a RINO (Republican-in-Name-Only), who overcame early poor showings to win the nomination, and who would have considered serving in a Democratic administration. In fact, we first meet the Vinick character when Bartlet offers him the job of U.N. Ambassador (which he turns down to run for President) and the show ends with Vinick agreeing to serve as Santos' Secretary of State (do not count on that last one happening in real life).
So I was interested in this take on Obama's selection of Joe Biden as running mate:
And what, pray tell, does the captivating Democratic candidate do when it comes time to pick a running mate? He chooses an older member of the party establishment, with a background in foreign policy, who helps bring heft to the ticket.
Santos picked Leo McGarry (played by the late John Spencer), who had been Bartlet's chief-of-staff and a former cabinet member, a long-standing party leader, a smart politician and tough political fighter. Not exact parallels, because Biden's experience is purely in the Senate. And Biden still had presidential aspirations, which McGarry did not. And we have to hope Biden's heart is in better shape than McGarry's (and Spencer's). But close enough to make this an interesting conversation.
By the way, if you are going to use the show to play the futures market on McCain's running mate, Vinick chose the governor of West Virginia, a hard-right, crime-fighting social conservative. Does anyone on the supposed short list fit that bill?
D.C. Cab and Fairness vs. Welfare
My trip home from the airport yesterday was my first ride in a metered D.C. cab. As reported at the CoOp by Larry Cunningham, the D.C. taxi system recently switched over from their infamous "zone" system to computerized metering by time and distance. This produced much bellyaching from cabbies, not because they enjoyed swindling tourists, but rather because they now have to pay taxes. Their incomes are newly subject to audit -- the meters produce a record of receipts (minus tips), while the zone system was a cash business. This means as much as a 30+% cut in take-home pay. (Well, except for the one(s?) who were reporting their income voluntarily.)
For me, as a former tax-enforcement official, the most interesting question here is why the D.C. Cab story isn't more popular (and it can't all be Mr. T's acting). That is, why don't governments require industries to structure their transactions in ways that facilitate tax enforcement ? That would distribute the true tax burden more equitably, instead of randomly favoring people who are self-employed or work in all-cash industries. But, as Kaplow & Shavell would remind us, in exchange for this increase in fairness there would be some welfare losses from changing the market's most-preferred transaction structure.
Or would there? What the D.C. story illustrates for me is that the scheme the market has chosen might itself be driven by tax-avoidance, not efficiency. Changing to meters might be *both* more fair and more efficient. And fairness sometimes has welfare benefits: reducing evasion would allow lower rates on those of us who pay all our taxes now, which should diminish what economists call the "excess burden" or deadweight loss of the tax.
Lesson: Let's all grow mohawks and wear large gold chains.
Saturday, August 23, 2008
Notre Dame Law Review symposia
This is a bit shameless, I know, but I cannot help it. The Notre Dame Law Review has released two symposium volumes: "Separation of Powers as a Safeguard of Federalism" and "Stare Decisis and Non-Judicial Actors". (The latter volume also includes our own Paul Horwitz's outstanding paper, "Three Faces of Deference".) "Separation of Powers" includes papers by Justice Scalia, Brad Clark, Bill Eskridge, Beth Garrett, John Manning, Peter Strauss, Carlos Vazquez, and Ernie Young. "Stare Decisis" features articles by Amy Barrett, Thomas Healy, Mike Paulsen, Kim Roosevelt, and Mark Tushnet. Congrats to the outgoing Editorial Staff. You did great work on these volumes, and you've made your teachers proud.
Laptops and perverse incentives
Among those who want to ban laptops because of a dislike of stenographic notetaking, any proposal always includes some mechanism to enable students to obtain mostly-stenographic notes. Eugene Volokh's new policy provides that one volunteer student in each class will take notes that will be made available to the class. I am experimenting this semester with recording and providing audio files for each class (when i can get my MP3 player to work). Others make PowerPoint slides available, etc. Two common themes in all this.
One is an assumption that banning laptops will not break students of their (what we believe problematic) addiction to verbatim notes, which is what we are using to justify prohibiting each student from taking (verbatim) notes on her own. Is the assumption that forcing students to take "better" notes (danger quotes intentional) will not work and they will need to get their transcripts some other way? And the only way to sell a no-laptops policy is to ensure they get their stenographic fix another way? If so, I think the paternalism objection falls away somewhat--we no longer are doing iit "for their own good" (i.e., teaching them how to take notes the "right way"), but only to create the discussion environment we (as professors) want, which we can do however we think best (through our choice of classroom styles or through our choice to look at faces and not laptop backs). The assumption seems to be they are not going to learn to take notes any differently.
Second, as an e-mailer noted about my use of audio recording, these alternatives create the perverse incentive to skip class. Students need not go to class to get the notes they need--they can just download the audio file or get the common notes from the designated notetaker. I believe (and hope) that some combination of grading class participation, rigorous attendance policy, and my conducting an interesting and entertaining class on an interesting subject takes care of that. But it is an interesting example of unintended consequences--in taking steps to enhance the quality of the in-class experience, we give some students a reason/justification not to show up for the experience.
Friday, August 22, 2008
Hi, My Name Is Bruce, and I Use the Socratic Method
If it's August, law professors must be talking about teaching. Much of the discussion this time around has focused on the Socratic method, and almost all of it is negative (Orin Kerr offers that it should at least be part of the mix). This definitely makes me feel a little retrograde and unimaginative, since I use some modified version of the "Socratic method" in almost all of my classes. (Well, I think I do; I suppose there's a question of definition here.) It's not through lack of interest in doing something different; I've been searching teaching materials for a while now looking for new ideas. But I have to admit I think it works tolerably well. Here's my response to the standard critiques:
1. "Socratic method" is a demonstrably poor teaching technique. I think the answer to this depends on what we're talking about. If it's Kingsfieldian grilling, I agree, particularly if the aim is to purposefully confuse or intimidate the students. But if the objection is to any in-class discussion, I disagree. I started off teaching in another field (history). Specifically, I led discussion sections for a large history class, and quickly came to the conclusion that producing a good discussion is really hard. But it also seemed to me a good way to teach, if pulled off correctly.
It works best, I think, for exploring complicated readings where there is no clear right answer -- in other words, just about everything I teach. The trick in history was to find good discussion topics that didn't just recite the facts from the readings. But in law, at least the subjects I teach (civ pro, copyright, Internet law), good questions are all over the place. If the reading is a case, the relationship between the reasoning and the facts is almost always rife with gaps or hidden premises. Figuring out the reasoning itself is often a challenge. And then sometimes it's fun to apply it to different facts (i.e., the standard Socratic model), or ask if the case was correctly decided and get a counter-argument going.
From the studies I've seen, I have no doubt that this is a good exercise for the students who participate in any given discussion. The question, particularly for large classes, is whether there are other methods that could be used on a daily basis that would better engage that day's listeners. I'm aware of "pair and square" and other such breakout session techniques, and I should probably be using them more, but I have my doubts that they could be used effectively to cover every case or statute or article, even if supplemented with lecturing. If anyone wants to point me to some descriptions of specific alternative techniques I should be using, I'd be very grateful.
There's an obvious downside to discussion-centered class sessions, which is it's a bit hard to pull it all together and emphasize the points that have right answers (e.g., what current Supreme Court doctrine is). Last year in Civ Pro I fell into a habit, which I think I'll stick with in that class, of summarizing the key points from the last class at the beginning of the next class. It would probably be even more effective to do that at the end of class, but that would require more time management skill than I have.
2. Professor-led discussion is just "hide the ball." There's bad ways to lead a discussion, and this is one of them. In a sense all discussion is "hide the ball" if there are particular points the professor wants to draw out. But the more obvious points should emerge on their own. I take the common student refrain, "I'm not sure if this is what you're driving at, but..." as a red flag that the point I'm after may be too obscure/complicated/unnecessary.
3. It's too intimidating. There's a certain amount of intimidation just from public speaking, but I think students for better or worse need to overcome that -- so why not in a nice, safe environment like law school? But I would agree that intimidation beyond that is unlikely to be effective, and the prof needs to remove it as much as possible for a good discussion. Intimidation might be a good learning tool when speedy execution of simple tasks is crucial to survival (e.g., boot camp), but I doubt it's a good way to encourage creative problem-solving, a skill that lawyers actually need.
4. Students who haven't done/understood the reading waste everyone's time. This is tricky to handle, certainly, but for some reason I haven't found this to be a big problem. Usually it's possible to find someone else to pick up any slack. A separate issue are the students who don't believe they should have to listen to other students talking, whether they are right or wrong. But it seems to me a crucial lawyering skill is listening to someone speak, not completely coherently (like a client, or a judge, or opposing counsel), and trying to figure out if anything is wrong with it.
But like I said, I'm open to suggestions, other than 100% lectures.
PCAOB is constitutional
Abusive e-mails from students
Gordon Smith has shared a student e-mail and his response over at The Glom. Maybe it is just me, but I was pretty surprised that Gordon has only gotten three confrontational e-mails from students in his time. And I thought the student's e-mail was very mild relative to some crazy student e-mail I've received in my much shorter time. But then it doesn't surprise me that I might provoke students just a bit more than Gordon, who seems like a really nice guy.
A Provocative Take on No-Laptop Policies
Doug Berman is surprised by Eugene Volokh's one-laptop policy (in which one student takes notes for the rest of the class):
Indeed, though I am disinclined to assert that this alone shows how quickly professorial power can corrupt philosophical commitments, I do find remarkable the dramatic move to collectivism here. Not only is Eugene severely restricting laptop liberty, but he also is mandating that individuals share the fruits of their labor with a student collective all for purported good of the UCLA School of Law.
Are laptop bans incompatible with a libertarian philosophy?
It seems like every semester I give serious thought (at least, I tell myself I do) to changing my courses by (among other things) changing my casebooks. But, I almost always end up staying pat. Let's indulge, for present purposes, the hopeful premise that this pattern does not merely reflect laziness. Why not change? Well, why change? The books I use for my large courses (e.g., Dressler's Criminal Law, Volokh's First Amendment, Garvey et al's Religion and the Constitution) are, I think, very good. I'm used to them. I know how (I think) to get a lot, for my students' benefit, out of them.
But . . . who am I kidding? Changing books would (wouldn't it?) shake things up, make it likely that I'd rethink some things or see some things in a new light, provide new vehicles for teaching old questions and concepts (which might not, when taught with the new vehicle) seem so "old" after all. And so on.
I'd love to hear from prawfs who have switched -- not so much because of a serious problem with the old book, but just in order to get the perceived, or hoped-for, benefit, of new-ness -- and also from students who might have had the chance to experience both "old book" classes (i.e., classes where the instructor is working with a text that she has been using for many years) and "new book" classes. Any thoughts?
Is criminal liability always narrower than civil liability?
Is criminal liability always narrower than civil liability and should it be? In a paper recently posted on SSRN, Wendy Gerwick Couture suggests that, when it comes to securities fraud, criminal liability is more expansive than civil liability.
Here's the evidence she points to:
First, prosecutors may use the criminal wire and mail fraud statutes, which have no civil equivalent, to prosecute conduct that does not violate the securities fraud statute..... Second, an individual defendant may be held criminally, but not civilly, liable for allegedly false forward-looking statements accompanied by meaningful cautionary language. Third, an individual defendant may be criminally prosecuted for aiding and abetting securities fraud, but an investor injured by the defendant's conduct is barred from asserting a private right of action. Fourth, some state blue-sky laws impose criminal liability for conduct that is not civilly actionable as securities fraud. Fifth, courts do not subject criminal indictments for securities fraud to the same degree of pretrial scrutiny as civil securities fraud complaints, leaving more issues to the jury.
According to Couture, the consequences include:
- "chilling corporate disclosure"
- "creating a class of reasonable investors who make investment decisions on the basis of vague statements of corporate optimism" because companies avoid forward-looking statements for fear of criminal liability
- "transferring enforcement responsibility away from the SEC to the DOJ and the individual states"
- "discouraging professionals from advising emerging companies"
- "affording prosecutors undue discretion in deciding what conduct to prosecute"
- "coercing defendants into agreeing to unfavorable settlements with the SEC" because of worries about criminal liability"
- "leaving injured investors without compensation" because they aren't compensated through criminal actions.
A few observations: The paper suggests that this broader criminal liability is an anomaly. Is it? Many of these arguments seem to extend beyond the securities law context. I suspect the standards for wire fraud could be compared with any number of civil standards and be considered a broader basis of liability. I also wonder whether other constraints on criminal law make its enforcement narrower despite these standards. (E.g., concerns that criminal sanctions would lead to an Arthur-Andersen-type bankruptcy.)
New technology and laptops in the classroom
On the Law Prof Listserv, James Maule (Villanova) talks about the SmartPen (available at Target for about $ 150). The pen allows students to "write" notes on special paper and records what is written for later uploading; it also contains a mini audio recorder and speaker. James asks how this device affects the laptops-in-the-classroom debate. James was tipped off to this new toy by James Levy at Nova-Southeastern.
This is actually an interesting solution. One of the pedagogical goals behind a laptop ban (for me, at least) is to get students away from stenographic notetaking and from mindlessly typing every word without really engaging in what is said or in the overall discussion. To the extent this thing imitates a pen, it forces students to take notes as if on pen-and-paper, with the same selectivity and brevity, so it does solve the stenographer problem. And the recording aspect decreases the felt need to write down every word in real time--part of the reason I have started recording classes myself and making the files available to students. On the other hand, because the "notes" can be automatically downloaded into a computer outline, it allows students to skip an important cognitive step at the back end-- retyping and reorganizing class notes (along with other materials and notes) into a complete and comprehensive outline, an active process that I believe helps students put everything together and understand it all and see the links among the different sources.
Since laptops-in-the-classroom seems to be a hot topic today, I will, despite anonymous student's displeasure, add something. Professor Maule, upon reading the original post, e-mailed the following:
One downside to recording classes is that it encourages non-attendance. That problem became so significant in my evening Grad Tax classes that I asked the program to stop recording classes. Other faculty have followed suit. Another downside is that students use the recordings to extract verbatim transcripts, using voice-to-text software. Aside from copyright issues, it's intellectually counterproductive (and a huge waste of time better invested preparing for class and working through one's own hypos and problems).
I agree with Professor Maule about the counterproductivity of using the recordings to extract verbatim transcripts; I would not do it and my preference is that they not. But many students seem to want that and if this allows them to get the transcript while also actually engaging in class discussion, I achieve the pedagogical goal I am after. As for attendance: first, my school has a strict attendance policy and I will keep a closer eye on this than I have in the past (which I can do in two relatively small classes), and second, participation (which obviously requires attendance) constitutes 15 % of the final grade, so that should put people in the seats.
Thursday, August 21, 2008
Boilerplate in Law Enforcement Contracts (Part Two)
I want to follow up on my last post on boilerplate by suggesting that boilerplate in law enforcement may function as an alternative to rulemaking and as a way to avoid more formal processes.
Below are the two SEC settlement provisions that first sparked my interest. Here's the problem these provisions address: since 2002, money penalties collected by the SEC can be distributed to injured investors in the form of "Fair Funds," raising the possibility that the money will be treated as damages rather than civil fines. The category matters because it affects rules about offsetting against private damages, how the money is taxed, whether claimants to the fund have a say in distribution, etc. In other words, there's real money at stake.
The SEC responded through recurring provisions in settlement agreements, including:
“Regardless of whether any such Fair Fund distribution has been made, amounts ordered to be paid as a civil penalty ... shall be treated as a penalty paid to the government for all purposes, including all tax purposes.”
“To preserve the deterrent effect of the civil penalty, Defendant shall not ... argue [in any related civil action] that he is entitled to ... offset or reduction of such compensatory damages award by the amount of any part of Defendant's payment of a civil penalty in this action.”
On the one hand, these seem perfectly sensible. They protect the deterrent effect of the penalties by preventing deduction and offset and they anticipate issues that are bound to come up. Moreover, using these terms is fast and flexible. After all, boilerplate can be abandoned in future agreements if the situation or policy changes. On the other hand, these provisions make rulemaking unnecessary or at least less pressing, so using boilerplate may be a way to avoid the contention inherent in more formal processes. In terms of content, it also seems odd to me that the SEC can determine tax treatment, although tax scholars may know better.
Wednesday, August 20, 2008
Great Ping-Pongers in the Law
Inspired by this little video calling the Pos to a duel on the green, I think it's well-past time for the prawfs tournament of champions to take place in the royal *sport* of
ping-pong table-tennis. Perhaps my FSU colleagues Dave Markell (former Delaware juvie champion) and Adam Hirsch will volunteer to set up their own table tennis grudge-match contest -- or face off in doubles(?) against Richard and Eric Posner, or any other dynamic duo at the AALS meeting in San Diego. Weather there should be very cooperative and everyone knows table tennis is a welcome respite from picketing. (H/t: Elie at ATL)
Toujours l'audace? Peut-etre non.
A commenter writes, a propos Dan's post about possible gender bias at law reviews (a question I don't take up here):
[E]ven if it turns out that women are less prone to audacious scholarship than men, what possible bearing should that have on whether the academy prefers audacious scholarship? if people with brown hair are more audacious cooks than people with blond hair, should we denigrate audacious cooking because of it?
That comment of course raises the question whether we should prefer "audacious" scholarship in the first place. Audacity is one element, and far from the only one, that characterizes some great scholarship. It is, I would suggest, much less present in most good scholarship. More importantly, it also happens to be present in much lousy scholarship. If editors select for audacity as opposed to solidity, particularly given their understandable experience-based difficulties in separating wheat from chaff, aren't they also increasing the likelihood of publishing work whose claims are ultimately false, unfounded, and/or already disproven -- whose "audacity" is really a form of braggadocio and puffery?
Here, the obligatory cite is to Daniel Farber's articles on the perils of "brilliance" in legal scholarship, which are always worth reading....
Don't Be a Menace
Despite the digression on legal residencies, the main point of my original post was to ask a different set of questions. I was interested by the idea that even within the world of the black-letter, lawyers who don't know certain things about a field are a menace to their clients. I'm curious what those things are on a field-by-field basis, and how long it takes to teach them. In particular, how do we help them avoid wandering onto thin ice?
Here's an example from my own teaching. Section 230 is the single most important thing I teach in my Internet Law class; it's a central topic for any worthwhile course in the field. The courts have read it broadly--and remarkably uniformly--as immunizing online intermediaries from liability for harmful content supplied by users. Thanks to Section 230, your ISP isn't liable if you use its facilities to send out defamatory emails. Web forum operators aren't liable for privacy-invading messages posted there; Craigslist isn't liable if its users post ads looking for white tenants only.
The basic parameters of Section 230 immunity are pretty well settled by now. It's true that there's some interesting litigation around the margin, but the core protection is about as clear as anything ever gets in law. And yet, plaintiff after plaintiff files a lawsuit that's obviously preempted by Section 230. As Eric Goldman predicted, it's getting to the point where attorneys filing such suits are flirting with Rule 11 sanctions. And yet the lawsuits keep on coming.
I've talked to a few attorneys without an Internet law background about about Section 230. Their attitude towards it could best be described as "disbelief." A categorical immunity this broad and absolute was simply outside their past experience. No matter what I said or how many citations I gave them, they really didn't think, in their heart of hearts, that it could possibly be the law. Section 230 is a spring-gun doctrine, highly dangerous to those who trespass in the field of Internet law.
Thus, one facet of my larger question is what to do about spring-gun doctrines throughout the law. Dedicated classes in a subject can spend major class time on them--often time disproportionate to the policy issues they raise or the complexity of the law. That presupposes, however, that students are taking a class in the subject. Or, we can point them out from a safe vantage point without getting into the details. Don't even think of going in that cave without a map. Again, though, the scattered nature of legal education means that no one graduates having received all the warnings they probably need to hear. The true skill that lawyers need is to recognize the warning signs of thin ice in a doctrinal area they don't already know. I have no good idea how to teach that one well.
The administrative state- for bad and for good
Hitler's extensive use of the administrative state has been widely acknowledged as something that set apart the Holocaust from prior genocides. This observation is, of course, not to trivialize other genocides, but to draw attention to the ways in which the use of the state machinery facilitated the seeming efficiency of the horrors perpetuated against Jews, gays, Roma stinti, communists, and others during WWII.
What I think is interesting is that the German government has been using many of the same administrative tendencies to help foster restitution. While some of their programs are relatively well known, I thought I'd mention the relatively newly minted German Ghetto Labor Compensation fund (as distinguished from the German Pensions for Work in Ghettos). This fund provides a payment of 2000 euros to victims of Nazi persecution who were (a) held in a ghetto, (b) worked without force during this period, and (3) whose work has not already been taken into account for an old age pension.
Not suprisingly, the German government is requiring a fair amount of documentation from the applicants to cross check with their own labor rolls and other papers. So many lawyers across the country are helping fill out application forms which must be "fully completed, signed, and authenticated. " Hat tip to my brother, Seth, for setting up a clinic in Houston to do just that.
Application forms in English are available at: https://www.badv.bund.de
Application forms in German are available at: https://www.badv.bund.de
Of Course the Errors Are Yours!
Not infrequently, law review articles contain a "*" footnote that acknowledges a list of people who gave useful feedback and then adds a disclaimer like, "Any remaining errors are my own." Well, of course any errors are your own! Does anyone see any value to such disclaimers (which appear frequently in academic books in other disciplines as well)?
I think I understand the motivation behind the admonition. Prof. X reads your article and gives some useful feedback. But Prof. X may not have read it carefully, the piece may have changed after Prof. X read it, you may have ignored Prof. X's advice, and so forth. The disclaimer is meant to say, "Don't think badly of Prof. X because he didn't catch the glaring logical or factual errors in this paper. Don't think Prof. X necessarily agrees with my position." I think it is also meant to be a signal to Prof. X: "Thanks for giving me whatever feedback you did. Don't feel like the flaws in this paper reflect badly on you."
And, of course, aside from the extra line or so of text, there's little harm in the practice. On the other hand, perhaps the admonition itself suggests that those who give feedback might possibly be just a wee bit to blame. Doesn't the admonition at least reflect the sense that such an inference is plausible? If not, then why include it? Perhaps we better reinforce the norm that those who give feedback should not be thought responsible for the ensuing errors by not mentioning the norm itself!
P.S. Dan Markel is not responsible for any flaws in this blog post. They are solely my own. Why would you even think that Dan Markel, who has not asked me to take down this blog post, might be just a little bit responsible?