Tuesday, September 30, 2008
Does combat experience make one a better President?
How much weight should a voter place on combat experience when selecting a President? McCain’s military experience is, of course, an important part of his Presidential appeal. But military heroics historically have been an important resume builder for many Presidential hopefuls – sometimes (as with Winfield Scott, the Whig who lost to Franklin Pierce in 1852) their only qualification for office.
Being an academic weenie devoid of any experience remotely combat-oriented (unless one counts a few unfortunate faculty meetings), my professional bias is to think that voters over-value combat experience. Physical courage or tactical skill on the battlefield does not obviously translate into effectiveness in the White House. Why would one believe that bravery in assaulting a machine gun nest or fortitude in a POW camp would suggest skills like canny bargaining for votes in Congress, or Bismarckian sophistication in diplomacy, or eloquence in mobilizing the public with a stirring speech?
But it turns out that the thirteen Presidents with combat experience do surprisingly well. (I left out Nixon, Carter, and Reagan, because, although they served in the military, they saw no combat). Using the Wall Street Journal's survey of historians and political scientists as the measure of quality, military Presidents do alright, having an average rank of 18, a bit above the mean of 21.5. Five out of thirteen Presidents with combat experience rank in the top ten (Washington (1st), Teddy Roosevelt (5th), Truman (7th), Ike (8th), and Jackson (10th)). Their high rankings are brought down by the four dismal Civil War generals who served during the Gilded Age (Grant (29th), Hayes (24th), Garfield (33rd), and Harrison (30th)). But leaving out Garfield and Zachary Taylor (tying for 33rd) on the ground that they died so soon after taking office, the eleven remaining battle-hardened Presidents earn an average rank of 15 – a substantially higher ranking than Presidents without combat experience. Indeed, my informal group of six most intellectually sophisticated Presidents (John Adams, Thomas Jefferson, John Quincy Adams, James Madison, William Howard Taft, and Woodrow Wilson) does no better, earning an average score of 15. Bravery in combat, it turns out, works just as well as intellectual prestige in insuring a successful Presidency.
What explains the “combat advantage”? Probably, it is a random artifact of too few data points. On the off chance, however, that the data really does suggest a positive relationship between combat experience and Presidential greatness, I suppose that they provide a reason, albeit a modest one, to support McCain.
intellectual histories of intellectuals (legal and otherwise)
I hereby commend Neil Gross's sociological study of Richard Rorty, a book that's noteworthy even if you're not particularly interested in Rorty or philosophy and would prefer to think instead about the sociology of law professors and the legal academy. Gross's project is to study the trajectory of an academic's career and thought, and how that trajectory in turn affects and is affected by the institutional, disciplinary, and intellectual worlds with which s/he interacts. Of course this is the stuff of every biography of an intellectual or academic -- if you want to a masterwork of an intellectual biography of a legal intellectual, see, for example, Nicola Lacey's biography of H.L.A. Hart. But Gross is a sociologist and neither a historian nor a philosopher, and his book is not an attempt to ask the question, "Who was Richard Rorty?" Instead, his question is, "What were the conditions that enabled someone to become Richard Rorty?" Inevitably, the answer to this question requires the stuff of biography: profiles of his parents, his upbringing, and education; a sketch of the many stops of his career, from Yale to Wellesley to Princeton to Virginia to Stanford, with points in between; and a precis of his work (which may or may not be entirely accurate -- Gross concedes that he's not a philosopher). So if you're looking for an answer to the first, traditional question, you can find it here, although somewhat inartfully rendered and without great attention to specifically philosophical questions.
But his question is one with broader, and to me more interesting, implications than those of traditional biographies. What are the conditions under which a school or approach comes to dominate a field (in Rorty's case, analytical philosophy), and how does an emerging scholar make her way with and against the grain that school or approach establishes? Although the question is implicit in any biography of a noteworthy academic or intellectual, Gross foregrounds and brings an accessible sociological approach to his answer. One could of course ask that question from the top down, with a history of the field. But a bottom-up approach that views the academy from the perspective of an individual reveals things that are lost in the big picture. Specifically, Gross argues that issues of status and identity drove not only Rorty's success but also his approach. Rorty's apparent intellectual shift "from technically oriented philosopher to free-ranging pragmatist" (p. 15), Gross claims, was as much about internal career shifts and his conception of himself as it was the result of the great revelations of a great mind that a traditional biography would identify. We know and see this in the academic world of our everyday lives -- some are certainly smarter, more creative, and more productive than others, but no one is truly transcendent and everyone must negotiate the institutional structures and carrots and sticks that the academy throws before them. The traditional intellectual biography implies transcendence. The sociological biography foreground the limits of structure and history, and therefore something both greater and smaller than individual genius. Inevitably, to emphasize the sociological aspects of intellectual work is reductive, of course, but I've got nothing against reduction so long as it's well-argued and supported.
So, inevitably, I read this book in relation to the legal academy. For a top-down version of Gross's argument, one could begin with Jack Schlegel's remarkable history of realism's empirical wing, which focused on the institutional identity of law professors and the friction that first-generation empirical scholars faced between their interest in methodology and the constrained epistemology of the pre-war legal academy. That's an essential read if, for example, you're interested in historicizing the current boom in empirical legal studies (and interdisciplinary scholarship generally). Schlegel offers some snapshots of individuals -- his take on Underhill Moore is unforgettable -- but Gross's book suggests an even more all-encompassing biographical vision offers additional insights. Ultimately, I think what's at stake in all the various legal blogosphere arguments about the direction of law schools -- from the influx of PhDs to the rankings controversy, from curricular reforms to rethinking the third year of law school -- is not only the specific issues in dispute but also, as Gross and Schlegel both show, about what it means to be a law professor and a legal intellectual. We make our way as scholars in a strange and fragmented set of institutions and intellectual worlds, attempting to satisfy our individual intellectual and professional preferences within an historical context and institutions that are well beyond our control. What we are presently doing may (if we're among the lucky few) in the future be seen as the stuff of intellectual history; but we all work in institutions that also require sociological study. Compared to the narrative drive of history and biography, sociology is boring, but it's equally important.
The Paulson bailout and Andrew Jackson's attack on the "Monster Bank"
In the wake of the House of Representative's rejection of Paulson's bailout measure, I cannot help but think that the spirit of Andrew Jackson lingers among America's electorate. The rhetoric among members of Congress, op-eds, blogs, all sound suspiciously similar to Jackson's message accompanying his veto of the renewal of the Bank of the United States' charter. Henry Paulson seems to be our latter-day Nicholas Biddle. The investment banks now holding mortgage-backed securities play the role of the bank of the United States. One does even need to edit the current attacks on banks, eastern capital, government aid to private corporations to put these contemporary messages into the mouths of Jackson, Amos Kendall, and the other "hard money" Jacksonians who decried the "exclusive privileges" of the "rich and powerful" shareholders of the "monster bank."
But it is the location of the anti-Paulson votes that make me think that we are re-living a Jacksonian War against the Bank(s). Look at the New York Times map showing votes in favor and against the bailout. I have done no minimally scientific survey, but I am struck by how an initial glance shows that support for the bailout tracks the Yankee diaspora that supported John Quincy Adams. Note, for instance, that the Seventeenth Congressional District in Ohio (the southern half of Connecticut's Western Reserve, an abolitionist Yankee stronghold), the burnt-over district of New York (another Yankee abolitionist stronghold), Boston, San Francisco (settled by Yankees a century and a half ago) all signed up for the bailout. These are areas that have traditionally voted Whig and trusted government. They still trust government, and they'll be likely Obama votes, as they were loyal Adams votes.
By contrast, those Republican rebels who voted against the bailout seem to come disproportionately from the Appalachian diaspora of Scotch-Irish and Welsh voters who were Old Hickory's strongest supporters. The districts that went against the bailout include most of North Carolina, Virginia, Kentucky, eastern Tennessee (the Cumberland Gap), the Ninth Congressional District of Pennsylvania (Altoona), north Texas, southern California, and north Missouri. These voters tended to be resentful towards cultural elites in New England, suspicious of financial elites in Philadelphia and New York, and angry at being left out of the scramble for special privileges in the national capital
Could it be that the old Jacksonian mindset lives on in the great, great grandchildren of the Old Jacksonians? And that our latter-day Biddle, Henry Paulson, has been struck down by Jackson's intellectual heirs? If my vague suspicion is correct and we are seeing a resurgence of Jacksonian distrust of capitalists, then my further prediction is that this is going to be a bad year for Republicans. Republicans have done well when the neo-Jacksonians' resentment can be channeled against New England intellectual elites; Republicans do badly when the neo-Jacksonians turn their rage against Wall Street. The vote against the bailout might suggest that the latter, not the former, will govern ballots this November.
And now for something completely different . . .
Jonah has the whole financial-crisis thing well in hand, it seems -- lucky for me, since all I have to offer is (a) I doubt Sarkozy's right; (b) I doubt Sen. McCain is more to blame than, say, Rep. Frank; and (c) I'm glad the Dow is up today -- and so I thought I'd register my regret that the intrusion of Serious Events overshadowed the news (or, maybe, "newslet") that I'd been anticipating for several weeks, i.e., "Pulpit Freedom Day" (link).
Anyway, the Washington Post reports, here, more than 30 ministers this past Sunday (intentionally) "[d]ef[ied] a federal law that prohibits U.S. clergy from endorsing political candidates from the pulpit." (Paul Caron has more, typically thorough, coverage here; I blogged about this general matter a few weeks ago, here; and my colleague, Lloyd Mayer, has a good paper on the religious-freedom issues here.)
So, what will the I.R.S. do? Stay tuned . . . .
Liquidate It, Baby!
As part of my one-man assault on PrawfsBlawg's bandwidth, I thought it might be helpful to recall some Great Depression Greatest Hits. All of what follows is drawn from Brad DeLong's "Slouching Towards Utopia?: The Economic History of the Twentieth Century". Whatever you think of Brad's politics, he's a brilliant economist who can bring it when it comes to both macro and economic history.
Contemplating the wreck of his country's economy and his own political career, Herbert Hoover wrote bitterly in retrospect about those in his administration who had advised inaction during the downslide:The 'leave-it-alone liquidationists' headed by Secretary of the Treasury Mellon felt that government must keep its hands off and let the slump liquidate itself. Mr. Mellon had only one formula: 'Liquidate labor, liquidate stocks, liquidate the farmers, liquidate real estate'.He held that even panic was not altogether a bad thing. He said: 'It will purge the rottenness out of the system. High costs of living and high living will come down. People will work harder, live a more moral life. Values will be adjusted, and enterprising people will pick up the wrecks from less competent people'
Sounds kind of familiar. I've seen a bunch of people make these sorts of points lately. Here's DeLong again:
But Hoover had been one of the most enthusiastic proponents of "liquidationism" during the Great Depression. And the unwillingness to use policy to prop up the economy during the slide into the Depression was backed by a large chorus, and approved by the most eminent economists.
DeLong goes on to quote two such economists, Schumpeter and Hayek. Here's a take on Schumpeter:
As Schumpeter put it, policy does not allow a choice between depression and no depression, but between depression now and a worse depression later: "inflation pushed far enough [would] undoubtedly turn depression into the sham prosperity so familiar from European postwar experience, [and]... would, in the end, lead to a collapse worse than the one it was called in to remedy." For "recovery is sound only if it does come of itself. For any revival which is merely due to artificial stimulus leaves part of the work of depressions undone and adds, to an undigested remnant of maladjustment, new maladjustment of its own which has to be liquidated in turn, thus threatening business with another [worse] crisis ahead"
This doctrine--that in the long run the Great Depression would turn out to have been "good medicine" for the economy, and that proponents of stimulative policies were shortsighted enemies of the public welfare--drew anguished cries of dissent from those less hindered by their theoretical blinders....
John Maynard Keynes ... tried to bury the liquidationists in ridicule....
Now, I know that good libertarians are supposed to dislike Keynes, and that Hayek and Schumpeter have something akin to patron-saint status. For what it's worth, here's how Milton Friedman viewed the debate:
Later on Milton Friedman would recall that at the Chicago where he went to graduate school such dangerous nonsense [i.e., Hayek and Schumpeter] was not taught--but that he understood why at Harvard-where such nonsense was taught-bright young economists might rebel, reject their teachers' macroeconomics, and become followers of Keynes. Friedman thought that Keynesianism was wrong--but not crazy.
Food for thought.
More on Credit Markets
Here's a WSJ blog post with more on the state of credit markets, and the limited relevance of stock markets (which as off this writing are still up a good bit) for understanding the current crisis. Emphasis in the original.
September 30, 2008, 11:09 am Overnight-Lending Markets Still Flashing Red Posted by Editor Min Zeng and Mark Gongloff report.
If you only watch the stock market, where the Dow was recently up more than 250 points, you might get the mistaken impression all is well with the world on the Tuesday after the latest Black Monday.
But, as has often been the case during this crisis, credit markets are singing a different tune. Overnight dollar Libor rates more than doubled to 6.875%, as banks hoarded cash for the quarter end amid signs the financial crisis was spreading. It’s more than a little ironic that while investors are buying banks’ stocks — shares were up sharply across the sector — banks themselves were unwilling to buy each others’ shortest term debt. Banks are so desperate for funds that they paid 11% for $30 billion in overnight funds from the European Central Bank, up from 3% just Monday....
In short, credit is frozen, in part because institutions are hoarding liquidity for the end of the quarter....
And it isn’t just Wall Street. The commercial paper market, where companies raise short-term financing, also felt the pressure of tightening conditions. One trader at a primary dealer said volumes are holding up around Monday’s levels, but overnight rates on asset-backed commercial paper jumped to 6% to 7.5% from 2% for better-rated companies on Monday. It isn’t helping that today is the last day of the third quarter, bringing banks’ efforts to get their books in order to a head.
The Risks of Inaction
Here's a post from William Buiter, over at FT. Read the whole thing (especially the paragraph ending in "Those who genuinely hold these views are mad, but honest and principled. I wish them a good depression."). Here's a lengthy excerpt concerning what might happen if nothing is done (emphasis added):
What is likely to happen next? With a bit of luck, the House will be frightened by its own audacity and will reverse itself. If a substantively similar bill (or a better bill that addresses not just the problem of valuing toxic assets and getting them off the banks’ books, but also the problem of recapitalising the US banking sector) is passed in the next day or so, the damage can remain limited. If the markets fear that the nays have thrown their toys out of the pram for the long term, the following scenario is quite likely:
The US stock market tanks. Bank shares collapse, as do the valuations of all highly leveraged financial institutions. Weaker versions of this occur in Europe, in Japan and in the emerging markets.
CDS spreads for banks explode, as will those of all highly leveraged financial institutions. Credits spreads generally take on loan-shark proportions, even for reputable borrowers. Again the rest of the world will experience a slightly milder version of this.
No US bank will lend to any other US bank or any other highly leveraged institution. The same will happen elsewhere. Remaining sources of external finance for banks, other than the facilities created by the central banks and the Treasuries, will dry up.
Banks and other highly leveraged institutions will try to unload assets at fire-sale prices in illiquid markets. Even assets not viewed as toxic before will become unsaleable at any price.
The interaction of a growing lack of funding liquidity and increasing market illiquidity will destroy the banks’ business models.
Banks will stop providing credit to households and to non-financial enterprises.
Banks will collapse, both through balance sheet insolvency and through liquidity insolvency. No bank will be safe, not even the household names for whom the crisis has thus far brought more opportunities than disasters.
Other highly leveraged financial institutions collapse on a large scale.
Households and non-financial businesses revert to financial autarky, among wide-spread defaults and
Consumer demand and investment demand collapse. Unemployment shoots up.
The government suspends all trading in financial stocks until further notice.
The government nationalises all US banks and other highly leveraged financial institutions. The shareholders get nothing up front and have to wait for an eventual re-privatisation or liquididation to find out whether they are left with anything at all. Holders of bank debt get a sizeable haircut ‘up front’ on the face value of the debt and have part of the remainder converted into equity that shares the fate of the old equity.
We have the Great Depression of the 2010s.
None of this is unavoidable, provided the US Congress grows up and adopts forthwith something close to the Emergency Economic Stabilization Act as a first, modest but necessary step towards re-establishing functioning securitisation markets and restoring financial health to the banking sector. Cutting off your nose to spite your face is not a sensible alternative.
In an earlier post, I criticized as "wrongheaded" the idea that what happens in the stock market is an appropriate metric for the severity of the financial crisis. A commenter suggests that if I'm so smart, I should write something about credit markets. To that effect, here's a quote from a Bloomberg article today (HT: Calculated Risk; all emphasis added):
The London interbank offered rate, or Libor, that banks charge each other for such loans climbed 431 basis points to an all-time high of 6.88 percent today, the British Bankers' Association said. The euro interbank offered rate, or Euribor, for one-month loans jumped to a record 5.05 percent, the European Banking Federation said. The Libor-OIS spread, a gauge of the scarcity of cash, also increased to an all-time high.
``This is unheard of, the money markets should be the engine driving the financial system but they have broken down,'' said Kornelius Purps, a fixed-income strategist in Munich for UniCredit Markets and Investment Banking, a unit of Italy's largest lender.
What's happening here is that banks won't lend to each other. That might not bother you, but it should. The role of credit markets is to move money from savers, aka depositors, to firms that invest in the real economy (producing stuff that leads to jobs). If credit markets break down, that channel doesn't exist, and the end result will be a major slowdown on the real side of the economy.
Yields on overnight U.S. commercial paper jumped 171 basis points today to an eight-month high of 3.95 percent, according to data compiled by Bloomberg. Average rates on paper backed by assets such as credit cards and auto loans rose 229 basis points to 6.5 percent, the highest since 2001. Companies sell commercial paper to help pay for day-to-day expenses such as salaries and rent.
And more still:
``The money markets have completely broken down, with no trading taking place at all,'' said Christoph Rieger, a fixed- income strategist at Dresdner Kleinwort in Frankfurt. ``There is no market any more. Central banks are the only providers of cash to the market, no-one else is lending.''
I know some people oppose a bailout because it offends their ideological sensibilities, that government shouldn't get in the way of the well-functioning markets. Anyone holding that view should re-read the last sentence from Rieger: "Central banks are the only providers of cash to the market, no-one else is lending."
This is just one article, but it gives you a flavor.
My Op-Ed on the Bailout
Here's an op-ed I wrote that was published in today's Arizona Daily Star (Tucson's newspaper). Note that I didn't choose the title (my suggestion was something like "We Need a Bailout Bill"). Also note that I had a 550-word budget and a lot of ground to cover. I'll try to expand on the points in the op-ed later today if I can.
Monday, September 29, 2008
[Update: I want to apologize if I hurt anyone's feelings with my use of the word "wrongheaded", or any of the other stuff below. I meant this to be a serious post, about the fact that some -- yes -- serious people in the blogosphere are focusing on the wrong topic (the stock market and an out-of-date, broadly worded letter) rather than the right one (the crisis in our credit markets). I hope anyone reading this post will read it in that spirit.]
Over at Volokh, there's a debate going on about the bailout. Eric Posner's Poof! is in general on the mark in its criticism of Ilya Somin and Casey Mulligan (note: I haven't had time to read Mulligan's post). Somin replies in disagreement.
The main point Posner makes is that a potential drop in global stock markets worth $2.5 trillion shows that turning down a $700 billion bailout (actually, the cost would be less, maybe much less than this) is a dumb move. Somin responds by noting that the stock market lost more in the crash of 1987. He also notes "A recent petition signed by over 120 prominent economists from across the political spectrum".
Neither of these defenses is serious. [Update: Please note that I am saying the defenses, of the position that the bailout should have been defeated, are unserious. I didn't mean and have no reason to suggest that Somin himself is an unserious person for making them.]
First, the proximate threat at the moment is to credit markets, not stock markets. And credit markets are, to be frank, in very deep shit at the moment. The stuff that's happening to the stock market is not the flood, but rather its runoff. For the moment, anyway, arguments over the stock market distract from the real issue. In fairness, Somin's original post is in large part a response to others claiming the stock market drop was definitive. But his post says next to, or maybe exactly, nothing about credit markets, debt-deflation, or anything else that is of first-order relevance at the moment. He's arguing over a sideshow. (And he's arguing over the wrong sideshow, at that: the S&P500 is a much better measure of the stock market than the Dow.)
Second, as to that letter signed by all those prominent economists (a number of whom were classmates or professors of mine, and all of whom I respect, given that I know them or their work). Here's the first line on the website for that letter:
(This letter was sent to Congress on Wed Sept 24 2008 regarding the Treasury plan as outlined on that date. It does not reflect all signatories views on subesquent plans or modifications of the bill)
The letter is now 5 days old. In the days since, the plan that the letter criticizes has been greatly modified. As anyone who has followed the legislation at issue and the history of the letter itself should know, and as the disclaimer I just quoted states, the critiques made in the letter concern the original Paulson plan, not yesterday's bill. It's either lazy or dishonest (my money's on lazy in this case) to continue citing this letter as a basis for opposing today's bill. [Update: some readers seem to think that I am implicitly suggesting that Somin is dishonest because I note that one must either be lazy or dishonest to cite this letter without the since-added disclaimer cited above. I'm sorry that readers drew that inference, which I didn't intend: the parenthetical remark was meant to specifically make clear that I meant not to imply dishonesty. Moreover, in an update responding (unpersuasively, in my view) to this post, Somin has now added the disclaimer.]
I don't know how all the signatories would respond if asked whether the bill defeated today would gain their support, but I'm sure that at least some would say yes.
I'll have more to say, but the fact is that we find ourselves on the edge of a major precipice. It's too serious a time to be distracted by the arguments Somin is making.
Email I Just Sent Raul Grijalva's Campaign Manager
I just called the main campaign number and was told I should contact you by email. I made a donation to Congressman Grijalva's campaign earlier this year, at a house party. I believe it was $50, though perhaps it was $100.
After hearing that Congressman Grijalva voted against the bailout, I would like my money back. This was a time to make a courageous vote, one that was in the best interests of the Congressman's constituents even if many didn't realize it. If a member from a safe district like yours can't be counted on to show leadership and do the right thing, it's no wonder that someone like Giffords (my rep, for whom I will now not vote) wouldn't. The stakes are way too high for this stuff.
Please return my contribution to the following address:
Please also take me off your mailing list, as I won't be interested in supporting Congressman Grijalva in the future.
Jonah B. Gelbach
Update: Here's my response to Orin Kerr's comment below (for some reason I can't get this comment to stick, so I'm using an update).
If the merits were obvious and widely accepted, then I don't think it would be particularly courageous to vote yes. The problem is precisely that they aren't.
That said, almost every economist I read and/or talk to thinks this bill was above the bar (the one I've talked to who doesn't knows who he is), and that the alternative of doing nothing is too bad to consider seriously. Of course, if you think the alternative to this bill is likely to be another, better one, then that's a different story. But my strong prior is that that scenario is wishful thinking: I fear we will get either nothing or something worse. I hope I'm wrong.
As to whether "the vote carries a sort of moral judgment rather than a mere personal disagreement," I think the best I can say is to echo Fed Vice Chair Donald Kohn, as paraphrased here:
it is bad public policy to hold the jobs of tens of millions hostage in an attempt to teach a few feckless financiers (or even somewhat more thriftless borrowers) even a much-deserved lesson.
Personally I think rolling the dice on the medium-run economic well-being of millions of people does rise to the level of moral judgment. I read a bunch of stuff on the Great Depression this summer, mostly by Ben Bernanke (it's not that widely known, but BB is a leading GD scholar). One of the things that jumps out at you is just how stupid the policymakers of the time were. And we don't even have their excuses: we know about the GD, and we know about Keynes, and we know how to avoid the disaster (or at least how best to try).
Finally, I will suggest some sites for good info about the economics of what's going on. In no particular order:
1. This column by Bruce Barlett, former Reagan and Bush/41 economist.
2. Andrew Samwick. Dartmouth econ prof, former economist at CEA under Bush/43, and a super-respected guy.
3. Paul Krugman's blog. Yes, I know Krugman is anathema to anyone who is not a political liberal. But whatever you think of his political ideas and columns, he is a giant of modern macro and knows this stuff cold.
4. Brad DeLong's blog. Ditto everything I just wrote about Krugman. If it bothers you, ignore the political stuff and just read the economics, which is extremely thorough and well-written
5. Felix Salmon
This morning the University of Florida Law School hosted a symposium in honor of our colleague of 51 (!!) years, Walter Weyrauch. Walter was studying social norms and the unwritten laws of small groups well before such study was cool; his recent book on the oral law of the Romani is illuminating and brilliant (Gypsy Law: Romani Legal Traditions and Culture, U. California Press, 2001). A stellar group, including Lynn LoPucki (UCLA), Inga Markovits (Texas), Michael Reisman (Yale), and Alison Barnes (Marquette) spoke of Walter's work and its influence.
LoPucki summarized the great article he co-wrote with Walter, A Theory of Legal Strategy, 49 Duke Law Journal 1405-86 (2000), which, as its title suggests, argues that legal strategies are frequently more determinative of litigation's outcome than substantive law. In many ways, this is a fairly obvious insight, particularly for practiced litigators and for anyone who teaches procedure or skills-based courses. If we're all really realists now, then we all know the extent to which the law in action regularly supersedes the law in books. Of course, it's one thing to recognize an insight's obviousness; it's quite another to reveal the insight's implications.
But how do we teach this to students? And do we? If we emphasize legal strategies, aren't we feeding into students' (and the broader culture's) cynicism about law and its practice? On the other hand, if we try to hide the strategic element of legal practice, aren't we cheating our students, either offering them homilies about the rule of law or simply keeping them blind to the realities of legal practice? The two co-authors themselves suggested they use different pedagogical strategies. LoPucki foregrounds the strategic element of bankruptcy practice, disclosing all the tricks of seasoned bankruptcy attorneys. Weyrauch suggested a hesitancy to articulate the unarticulated rules of the game, allowing them to emerge from class discussion and case law study. In response to a question I asked about this to the panel, Reisman said that of course we must teach the failures of the legal system to engage and enforce justice because of strategies the litigants use, and work towards legal reform that can correct unjust results and unfair strategies; and while this may be right, it seems to apply only to those spectacular cases when a just substantive end can be easily identified. Everyday legal practice offers instead plenty of banal instances in which two equally sophisticated or unsophisticated parties face off against each other, and a winning legal parry isn't producing any obvious injustice.
How do we teach strategies in a way that doesn't unravel or at least undercut the entire enterprise of legal pedagogy? Or is the question naive, and in fact what we're doing inevitably isn't teaching how to practice law but how to win while practicing law?
Advice for Beginning Scholars
The other day, I asked Jeff Lipshaw to look over the paper of a person in his area who was going on the market after a few years in practice. I thought the feedback Jeff offered was the sort that could fruitfully apply to a number of aspiring scholars. In the comments, I invite you to offer your own thoughts. Here it is, with Jeff's permission, somewhat redacted:
1. As a matter of style, use footnotes, not endnotes. Scholars will want to see the basis for statements you are making. It's a pain to go to endnotes. Eugene Volokh has a nice template for creating a document that looks like a law review article.
2. The overwhelming burden is to demonstrate to law professors that you think and write like a law professor, not a practitioner. Be careful, therefore, about not falling into a practitioner's trap of using case cites to support empirical assertions. If you are making an empirical assertion, one needs empirical data, or one needs to weaken the point, like "courts are still struggling with the issue."
3. Remember your audience. It's not judges or practitioners. It's other law professors. Pure doctrinal work nowadays [is a risk] without sufficient theoretical or social science orientation for a hiring committee to say "whoa, now there's a practitioner who really gets it." You really want to center your discussion in the scholarly debate on this issue, bringing in the cases to support your scholarly contribution. Think of it this way: how would you make this a piece that [some big dog in the area] wants to read and respond to? A good thesis would state for example not that there should be uniformity and consistency in the law, but rather WHY the lack of uniformity and consistency in this area is a social problem, who in the academy has addressed it (or if you are the first, why that is), and why you are making a scholarly contribution. If you have experience as a practitioner that informs your theoretical views, don't be afraid to assert it, even as "casual empiricism." [But be sure to know the limits of your method and and its opportunties.]
What I would emphasize is point number 3. Unless you're already a professor at Yale Law School, where the soft expectation is to create a literature rather than advance it, many good articles intervene in ongoing academic debates. Additionally, having courts as interlocutors (or your target audience) is a generally risky strategy compared to having other academics who have weighed in on an issue; it's especially useful to pick a debate where leaders have already made some claims and you want to show what's missing or overlooked in those accounts as a springboard for advancing your take. Of course, that advice does not apply to everybody. But it is probably worth your consideration; my sense, moreover, is that I suspect it's an important way to signal to law review editors that you are somehow advancing the discussion. Of course, I'd be curious to hear what others have to say about this topic.
The House has just voted 206-227 to kill the bailout bill. It seem unclear what will happen next.
Unclear, that is, except that if nothing is done, our economy is headed for disaster.
From everything I've read, this bill was far from perfect. But it was above the line, given the possible costs.
I have tenure, and I am well paid, so I imagine I'll be fine. If you don't, or aren't, or you are worried about people who don't or aren't, then you might want to consider calling your House rep to explain that you would prefer not to tell your grandchildren about the time that the "leadership" of your country was too stupid to avoid repeating the mistakes of the Great Depression.
I'll try to write more about all this.
Fey as Palin Redux
I saw Tina Fey's second skit as Sarah Palin on SNL this weekend. I said, "That's pretty good, but it would be even funnier if they used some lines actually spoken by Sarah Palin." Turns out, they did!
"Freedom of Memory Today"
Someday, we may be able to pharmaceutically dampen or erase traumatic memories from the recent past. Such technologies raise many interesting legal and ethical questions. On occasion, though, questions about memory erasure already arise. In this four-page article in the journal Neuroethics, I discuss a real-life case of intentional memory erasure and some of the issues it raises. The case reveals why the contours of our "freedom of memory"--our limited bundle of rights to control our own memories and be free of outside control--already warrant some attention.
Season of atonement
Tonight marks the onset of the Jewish New Year and with it, the ten days of Awe culminating in Yom Kippur. It's traditionally a period of asking for forgiveness and seeking with humility opportunities to repair wrongs and harms that one has caused. In that spirit, let me ask the readership of Prawfs for their collective forgiveness for the shortcomings you've found in my blogging or administration of the website. Perhaps your comment was deleted for reasons you think unfair or inappropriate; perhaps you read something by me or others that you think was unfairly critical or too personal or haughty in tone, or on a subject that didn't "belong" here. In any event, for these wrongs, and others, I am sorry, and I hope to do better in the coming year. If you have suggestions for how to do so, please feel free to email me.
In the meantime, I wish all our readers and writers in the Prawfs community and beyond a sweet, healthy and happy new year, replete with love and laughter, wisdom and patience, passion and joy.
"Text More Than We Talk"
Apparently, Americans now send and receive more text messages per month than they make or receive phone calls. See here. (Of course, more information is likely transmitted per phone call than per text message, but the headline is nevertheless interesting.)
Imagine what technology holds in store for us: Someday, we'll be able to think about the text message we'd like to send without having to type it in. Then, text-to-speech converters will turn that text into speech that sound like our actual voices. Eventually, the whole process will be interactive, so that we can think about our messages, the other party will hear them, and then we can repeat the process interactively.
Amazing! Alexander Graham Bell would remain right-side-up in his grave!
Shareholder Primacy and How It Squeezes America's Workers
Once upon a time, when I was circulating the proposal for my book, The Big Squeeze, several publishers asked me , "Who are the potential audiences for my book?" Among the target audiences I mentioned were not just classes in labor relations and sociology, but also classes in ethics, business ethics, human resources.
In several of his recent posts, Matt Bodie made me think that list should have also included law school classes in Corporations. In his post "Causes of the Big Squeeze" and in his post "The Big Squeeze and the Uncorporation," Professor Bodie discusses the notion of "shareholder primacy" and in doing so, he examines an underlying theme in my book.
In The Big Squeeze, Tough Times for the American Worker, I examines a significant problem within corporate America: the way that many corporations and corporate executives place such overwhelming emphasis on their No. 1 goal -- serving their shareholders (by maximizing share price and profits) -- that they often shortchange and sometimes cheat their employees on wages and benefits. (And too many corporations cut costs by failing to operate safe workplaces.)
Several line managers I wrote about detailed how they faced such huge pressures to minimize payroll costs to help maximize profits that they felt considerable pressure to keep wages at a minimum and even to break the law at times, by, for instance, pressuring employees to work off the clock. One Wal-Mart store manager told me of a strategy that she used to minimize payroll costs: force out older workers who earned $9.50 an hour and replace them with new hires earning $6 an hour. (One way to squeeze out older workers was to transfer them to the midnight shift unloading trucks.)
Professor Bodie is right that some inefficiencies had crept into the system during the golden era of the social contract when workers were taken care of by management. But those inefficiencies were often understandable and none too burdensome because, at the time, American companies were not yet facing huge pressures from competitors in Asia and Europe. But now with pressures from globalization and imports (as well as pressures from Wall Street to maximize share price), it seems that many corporations have been so aggressive wringing out inefficiencies and costs that they have gone overboard. Many companies give their employees paltry raises that do not keep up with inflation, offer health plans that many workers can't afford and shed thousands and thousands of workers in wave after wave of downsizing.
This helps explain why more and more people (including some law professors) are saying there's a need to replace or reform the American model of shareholder primacy -- a primacy that is often at the expense of not just workers and their families, but also whole communities.
Professor Bodie raises the idea of the uncorporation, and that notion raises some intriguing possibilities. Uncorporations sometimes take the form of private partnerships or LLC's that can be more specifically tailored to the parties' preferences -- like advancing social responsibility.
My book explores how CEOs in publicly traded corporations face huge pressures to maximize share price and profits (and minimize costs and payroll) because CEOs know that Wall Street may demand their heads if they don't deliver. In my chapter on model companies -- model because they treat their employees so well -- I note that when Fortune Magazine first published its list of the 100 best companies to work for in 1998, 71 of those companies were publicly traded, while by 2006 just 50 were.
In my chapter, Taking the High Road (p. 158), I detail the philosophies and practices of several companies that do the right thing. I discuss Costco, Patagonia and the hotel-casinos of Las Vegas. It's no coincidence that Patagonia, which I describe as being wonderful to work for, is not publicly traded. Each year Patagonia pays for 40 of its employees to take two-month leaves of absence to volunteer for the environmental organization of their choice. Patagonia gives eight weeks paid maternity leave and paternity leave as well as eight weeks paid leave when an employee adopts a child. As Patagonia's owner and chairman noted, it would be extremely hard for him to do these things if his company were publicly traded. Accountants and shareholders would probably throw a fit.
I also write about Cooperative Home Care Associates, a homecare agency in the Bronx that treats its low-paid workers extremely well. Cooperative Home Care might be another species of uncorporation worth studying -- it's a worker-owned cooperative.
As Professor Bodie writes, some business entities might adopt the uncorporate form because it could make it easier for them to eschew social responsibility by, for example, treating their workers poorly. By becoming uncorporations, business entities do not have to hold shareholder meetings--meetings that critics often use to confront (and berate) executives who run companies known for stinginess or worker mistreatment. And uncorporations don't have to make nearly as many public filings, which often contain information that companies would prefer to hide. The Service Employees International Union has launched a campaign that is devoted solely to pressure -- and hold accountable -- private-equity firms (are they a species of uncorporation?) because some of their far-flung subsidiaries treat their workers poorly.
For those so inclined, forming an uncorporation makes it easier to treat workers generously, but evidently, for those otherwise inclined, forming an uncoporation can also make it easier to treat workers ungenerously. I'm looking forward to reading the brilliant law review articles that professors and law students write someday about the advantages and disadvantages (and the generosity and stinginess) of uncorporations.
Sunday, September 28, 2008
Rethinking debate formats
Full disclosure: I watched only a few minutes at the beginning and end of Friday's debate. I did not expect that I would hear anything different from either candidate than the standard talking points squeezed into an answer that may or may not be responsive to a direct question. And I knew that nothing I did hear was going to change my mind. Plus, given that I already have a dog in this fight, I either would get nervous or apoplectic--and who needs that?
This is, in part, a product of the debate format, which really does nothing more than give each candidate time to hit his usual talking points in response to vague questions, perhaps with a minimum of direct engagement between them (something moderator Jim Lehrer repeatedly tried to force, although without great success). I have written about the question of debate format in discussing a proposal by Charles Collier to make the debates more like trials, with candidates questioning one another directly and the moderator, a la the trial judge, enforcing rules of timing, scope, relevance, etc. A new piece in Northwestern's Colloquy by Alexander Blenkinsopp criticizes Collier's trial analogy and argues for a model with an active moderator, one who does not just ask questions, but who pushes the candidates with sharp follow-up questions. His model is Meet the Press and the model moderator is the late Tim Russert; his legal analogue is the civil-law judge, who acts as the evidence gatherer by doing most of the questioning of witnesses. Sandy Levinson apparently agrees with the need for more-active moderators (perhaps drawn from the smartest and more-principled of the commentariat--he names, among others, Andrew Sullivan, Paul Krugman, Charles Krauthammer, and E.J. Dionne) to press candidates with hard questions and follow-ups in ways that the "neutral" reporters cannot or will not. Some good comments to this post, as well, including one call to return control over debates to a neutral organization (who remembers when the League of Women Voters ran the show?) and to devise a format with questions asked by panels of experts in different areas.
These latter arguments suggest that the appropriate legal analogue is not trial, but oral argument. A judge or (taking the idea for a group of experts) panel of judges asks questions and pushes the candidates to answer without falling into talking points, with the expectation and freedom to ask follow-up questions and get the candidates out of their comfort zones. Admittedly, some tinkering is necessary so the format does not become all about the moderators/experts/commentators and not the candidates and their positions--there actually is an occasional problem with oral arguments becoming all about the justices/judges and not about the attorneys, parties, and the case. But this format has the benefit of getting information out of candidates in a way other than how they might want and with opportunities to see the holes in the candidate's position. Doing it jointly draws contrasts directly and immediately.
Note that the common theme among all format changes seems to be the search for the appropriate moderator role. The oral argument/panel of experts/Blenkinsopp model is about enhancing the moderator's power, but in an appropriate way that hopefully makes the debate more informative and less predictable. Professor Collier's proposal (somewhat of a piece with talk about bringing us back to a Lincoln-Douglas model of only direct candidate exchange) is about reducing all power of the moderator, turning her into largely a timekeeper and traffic cop.
The question, it seems to me, is whom do we trust to better push each side, through questions and follow-up, in a meaningful way to create a beneficial, informative format--"judges" or the opposing candidate. I am not certain what my response is. A lot may depend on the skills of the particular candidates (conventional wisdom is that neither McCain nor Obama is particularly good at this). Watching congressional hearings or floor debates does not inspire confidence that many likely presidential candidates are good at exchange, as opposed to rote speech-making.
Finally, an interesting tidbit. On Sunday's This Week , McCain defended his refusal to look at Obama during the debate by saying "I'm focusing on the people and the American people that I'm talking to. That's what the debate's all about." But I wonder if most people think the purpose of a debate is to debate--to talk to and engage with your opponent on the issues, for the benefit of the American people who are watching. That is what distinguishes a debate from a televised speech. The fact that McCain saw this as nothing other than a joint speech/press conference suggests that some format change is necessary.
If A Candidate Says Something, Does That Count As Saying Something?
So, back in the primaries, Obama stated that if as president he had information about the whereabouts of bin Laden or his aides in Pakistan, and if Pakistan wouldn't or couldn't act to stop them, then he, Obama, would act, even if it meant violating Pakistani sovereignty. I'm not an IR/IL expert, but my understanding is that there's no legal problem with this: one of the responsibilities of sovereignty is not to protect or fail to stop those who would carry out violent acts against other nations. But leave that issue aside, because the criticism that McCain currently makes of Obama on this point isn't that Obama would act to protect the US (I can't remember if McCain originally made that criticism). Rather, it's that Obama says he would, out loud. According to McCain, there's some sort of hand-tipping going on that is somehow bad. Let's say for the sake of argument that McCain's right on this point.
Then how to explain today's statements by McCain on This Week? It all started with a comment that Sarah Palin made yesterday in Philadelphia. Asked by a Temple University grad student, Michael Rovito, whether "we do cross border, like from Afghanistan to Pakistan" due to the instability and threats from the western Pakistani area of Waziristan, Palin replied:
"If that's what we have to do stop the terrorists from coming any further in, absolutely, we should,"
Now, I'm no linguist, but it sounds to me like Sarah Palin has agreed not only with Obama's position, but has also said so, out loud. Asked about this by George Stephanopoulos today, McCain said that Sarah Palin "'shares' his views".
Ok. Obama says do something if necessaary. McCain says he shouldn't say that out loud. Palin says, out loud, that we should act if necessary. McCain says she shares his views. Asked by Stephanopoulos whether Palin didn't state that view out loud, McCain basically said no; at least, he wouldn't concede the point (I can't find a transcript yet or I'd provide the whole exchange). Stehpanopoulos then asks something like, "So she shouldn't have said it?" McCain won't agree. Then, having said Palin shares his views, and having refused to say she shouldn't have said those views out loud, McCain says the following:
"In all due respect, people going around and… sticking a microphone while conversations are being held, and then all of a sudden that's—that's a person's position… This is a free country, but I don't think most Americans think that that's a definitve [sic] policy statement made by Governor Palin."
So which is it?
1. McCain and Palin agree with Obama on the policy and are happy to say so out loud, in which case McCain disagrees with himself on being open about policy.
2. McCain and Palin agree with Obama on the policy but Palin shouldn't have said so out loud, in which case McCain disagrees with Palin's having been open about policy.
3. Palin shares McCain's views but didn't really take a definitive position when she held a conversation taking Obama's policy position out loud, in which case McCain and Palin share each other's views but may or may not share Obama's views on policy, and despite saying out loud that she does share that view, Palin has not definitively stated, out loud, what her view is, and therefore has not run afoul of McCain's view that one should not state one's policy views out loud.
Baffling, and ever more farcical.
Friday, September 26, 2008
Innumeracy, the Bailout, US Debt and Apple Pies
Did you know that you can track the US debt to the penny daily through a US Treasury website? Today the total was $9,788,080,661,828.23. And we may hit 10 trillion plus as the Treasury funds its bailout package through sale of Treasuries. I'd trade the accuracy (do we need really need to know about the 23 cents?) for more information about what is included: for instance, does the takeover of Fannie Mae and Freddie Mac affect this number?
Now we need to translate into something that can help us picture it. Let's see ... McDonald's apple pies? If $700 billion = 2000 McDonald's apple pies per US resident, then today's federal debt is almost 28,000 McDonald's apple pies per US resident. (Yes, even lawyers sometimes deal with numbers, contrary to my students' belief.)
Here's an image from John Allen Paulos' excellent book, Innumeracy: Mathematical Illiteracy and Its Consequences: "It takes only eleven and a half days for a million seconds to pass, whereas almost thirty-two years are required for a billion seconds to pass." And a trillion? Yikes.
Some Vacant Chatter on Deeply Meaningful Melodies
After reading Paul’s post below, I became very concerned that The Volokh Conspiracy might surpass this blog in vacant chatter, so I’ve decided to quickly add some more here so that we (like the Minnesota Twins last night) can once again take a half-game lead.
Here at Oklahoma City University School of Law, one of our great strengths over the past few years has been in law and rock music. Alex Long, who has blogged about this topic before, published the seminal article on this subject while on the faculty here a few years ago (We’ve now sadly lost him to the Univ. of Tennessee’s Law and Lyrics program, but are committed to rebuilding our strength in this area). Mike O’Shea has also made some trailblazing contributions to deciphering the mumbled, feedback-smothered words of My Bloody Valentine songs.
Following the example of others who have started up a “research canons” project here on PrawfsBlawg, I’d like to begin this master compilation of law-related lyrics on various subject areas, along with my tentative hypotheses about their law-related meanings, so that we might – together – create a database on law and rock music that will one day replace the casebooks we currently use in class:
Property is the obvious place to start, since famous rock bands have been kind enough to write songs dedicated to takings clause questions (Joni Mitchell: “they paved paradise and put up a parking lot” and Jethro Tull: “They say they gave me compensation... That's not what I'm chasing. I was a rich man before yesterday. And what do I want with a million dollars and a pickup truck? When I left my farm under the freeway”). Evidence is also a popular subject among rock singers, as is clear from REO Speedwagon’s famous song about hearsay (“heard it from a friend who, heard it from a friend who, heard it from another you been messin’ around”) and from Arlo Guthrie’s song Alice’s Restaurant (that discusses the introduction into evidence of visual diagrams and photographs).
But what I think is of more interest to me are the more subtle legal analyses one often finds in more obscure indie rock pieces, like the following:
ON EMPIRICAL ANALYSIS OF JUDICIAL VOTING
“Cause you go on and off, there ain’t no way of ever finding out.
It’s the law man, you gotta understand,
think about the [impossible to make out: symptoms too much?].
Never underestimate a single opportunity.”
(Moving Targets, Faith on the LP Burning in Water (1986))
This has got to be about Justice Kennedy and the impossibility of predicting whether he’ll be with the liberal or conservative bloc. Note that the lyrics also insinuate – years before the damning New Republic article -- that opportunism may be at the root of this unpredictable behavior. That's all just a (possibly mistaken) hypothesis. But what’s remarkable about the song is its prescience: it was released in 1986, over a year before Justice Kennedy was nominated to the Supreme Court! Now I’m not saying that the quantitative analysis here is necessarily up to the standards of the best empirical analysis in legal scholarship, but it’s pretty good considering they didn’t yet have any votes from Justice Kennedy to analyze.
ON JURISPRUDENCE AND POLITICAL THEORY
“They take away our freedom
In the name of liberty
Why don’t they all just clear off
Why don’t they let us be.”
(Stiff Little Fingers, Suspect Device, on the LP Inflammable Material (1979)
Isaiah Berlin is the most famous figure to outline the distinction between negative and positive liberty and to explain why it is dangerous to substitute negative liberty (the absence of constraints on, or barriers to, action) with positive liberty (liberty that consists not simply in being let alone, but in some type of human capacity, often one requiring collective action and constraint on individual choice in order to enable the relevant capacity). But as powerful as Berlin’s essay is, I think that Stiff Little Finger’s restatement of the argument is in some respects more powerful – if only because they had much louder amps and, being a late 1970s punk band, screamed and growled their lyrics rather than simply singing them (over the otherwise irresistibly catchy melody).
“I try to find a way to be free
of everything that’s troubling me
But freedom’s such a fickle thing.”
(The Jean Paul Sarte Experience, Spaceman, on Bleeding Star (1993)).
Same as above. According to the always correct Wikipedia, the band had to change its name to the "JPS Experience" in response to threats of a lawsuit from the estate of Jean Paul Sartre. Goes to show that if you’re going to name your band or hit song after a philosopher, you might want to choose one whose heirs won’t take you to court over it (e.g., the Ohio band, “John Stuart Mill,” or The Dandy Warhols’ song “Nietzsche.”)
“There’ll be a calmer time when everything’s organized
No one persuading me to seek some prize
That isn’t found anywhere
There’s karmic injustice here
But who do you sue?
(The Chills, So Long on Soft Bomb (1992))
That’s a really good question from Chills lead singer Martin Phillips. A student once asked me that in Admin Law and I didn’t know the answer (Is there a Court of Karma? If so, is it an Article III Court or is it an agency tribunal within the Treasury Department?). Since The Chills are from New Zealand, Phillips’ answer is likely to be quite different from the one we would teach in US law school remedies classes, (as is Culture Club’s “Karma Chameleon,” which comes from England), so I’m hoping an American band will cover this song and change the lyrics to reflect domestic law.
ON CRIMINAL LAW AND PUNISHMENT
“The golden-eyed hypnotist
Who slides down our throats
Will turn us to supermen
We’re stuck in a loop again
And I’m waiting
For the recidivist
To change his ways
Or to reoffend”
(The Bevis Frond, Old School Rock, on Valedictory Songs (2000)).
An illuminating tune, from the always illuminating Bevis Frond, about drug regulation, or recidivism, or maybe the use of forced medication to transform hardened criminals into nicer people and/or trial-ready defendants. As you can probably tell, I have no idea what this song’s about, but “recidivist” and “reoffend” clearly make it appropriate for criminal law classes.
“Come on babe
Come on set me free
I’ve paid for my crime
Come on babe
Come on rescue me
Just this last time.”
(Dinosaur Jr., Kracked, on Living All Over Me (1987))
Clearly about the Supreme Court’s review of habeas petitions. Or maybe parole board proceedings.
“Every night it’s gotta be adventure
The way you live your life’s a crime
And if you’re guilty will you serve the sentence
You are already doing time.”
(Husker Du, Friend, You’ve Got to Fall, on Warehouse Songs and Stories (1986))
As far as I can tell, Husker Du is agreeing with Justice Scalia that government should be able to criminalize acts on the basis of public morality even if such acts don’t justify government restriction on the basis of John Stuart Mill’s harm principle.
“His lawyers said, ‘This boy is sick.
Blame the ratings for his crime.’
They said ‘Too much sex and too much violence on the idiot box
Spoiled his idiot mind’
He was a Television Addict!”
(The Victims, Television Addict, which was a single in 1978 and also on the LP “All Loud on the Western Front.”).
This just makes the obvious point that responsibility for violent acts should be that of the television shows that motivate them and not the people who commit them.
ON THE LIFE OF ASSOCIATES IN LARGE LAW FIRMS
“Call me on the line
Call me call me any anytime
Call me . . . you can call me any day or night”
(Blondie, Call Me – single (1980))
“You just call out my name, and you know where ever I am
I’ll come running to see you again.
Winter, spring, summer, or fall, all you have to do is call and I'll be there, yeah, yeah”
(James Taylor, You’ve Got a Friend, on Mud Slide Slim (1971))
I think these lyrics speak for themselves.
OK. That’s enough vacant chatter on this incredibly important subject. If anyone has lyrics that shed light on John McCain’s recent behavior regarding the proposed bailout, or on Sarah Palin’s CBS interview, please let everyone know.
"The Big Squeeze" Book Club: Update
Many thanks to all the participants in the book club for Steven Greenhouse's "The Big Squeeze." We have a great set of posts. And I'm happy to announce that we're going to keep the book club going at least through the beginning of next week. That means you can look forward to more posts from our commenters and our indefatigable author, Steven Greenhouse. A special thanks to Steve for his many thoughtful responses to our comments thus far.
We encourage you to offer comments on the posts themselves. And if you would like to start a new thread and are not a Prawfs poster, please send me an email with your post. I'll be happy to put it up for everyone to share.
In the meantime, if you have some catching up to do, here are the posts thus far:
- Introductory post
- Zatz: Public Responsibility for Stopping the Big Squeeze
- Bodie: Causes of the "Big Squeeze"
- Hart: "The high cost of low prices"
- Lobel: Everyone Squeezed; Everybody Squeezes?
- Greenhouse: Not Just One Big Squeeze, But Many Squeezes
- Zatz: Responsibility for the Big Squeeze: Employers, Consumers, Citizens?
- Greenhouse: Addressing Wage Theft and Other Illegalities
- Bodie: "The Big Squeeze" and the Uncorporation
- Greenhouse: Does Litigation Vindicate Workers' Rights?
- Greenhouse: The Time Squeeze for Lawyers and Others
Back of the Book
We are nearing the end of the fall law review submission season. We already have a post to share information about this, but I wanted to make three notes. Both of them relate to the "back of the book." Law reviews often fill up the "front of the book" with principal articles quite quickly -- and seemingly more quickly than ever. But many of them also find that they end up having a few remaining slots they are looking to fill. So:
1) If you are such a law review, you are welcome to post here and let everyone know that. It may be that there is a short article or essay or book review that would fit your missing pages exactly and fit neatly in the "back of the book" section of an issue. This would be a good time, if I can supply an icky metaphor, for you to get your law review chocolate mixed up in an author's peanut butter, and vice versa. Consider this one place where journal can meet author. (As always, self-interest rears its ugly head: If you are looking to fill the back of your book, I just happen to have a lovely, timely, and discrete essay on the relationship between religion and politics, seen through an examination of speeches by John Kennedy, Mitt Romney, and Barack Obama, looking for a home. Timely enough for you? Seriously -- anyone? Bueller?)
2) I've said here before that book reviews are often the best-written and most engaged pieces in a journal: they're trimmed of lots of fat and they directly confront an important set of ideas rather than try to cover the whole waterfront. If the back of your book still needs filling up, you might consider looking for book reviews, or even commissioning them. Again, if you think you might be interested in doing so, consider this one place to let readers know.
3) Finally, let me undertake a happy duty as faculty advisor of the Alabama Law Review and announce that it is still looking to fill up four or five spaces in the volume. If you have a space you think deserves consideration, by all means let the editors there know.
The VC has been an incredibly active blog on all things presidential campaign- and bailout-related in the past couple of weeks. I don't tend to agree with a lot of posts on these issues by a few of the bloggers on that site. That's fine; they don't need my permission!
Still, I can't help but notice that in the past 36 hours or so, a few pieces of news -- John McCain's decision to "suspend" (or "pretend-suspend") his campaign; his and his subordinates' active pursuit of the campaign in the same period; his discovery that the Republic's survival depends on his skipping out of his homework assignment, i.e. debating Obama; his meeting yesterday with dissident House Republicans and with other supporters of his campaign in the House like John Boehner; the apparent collapse of the bailout accord at the hands of these same actors; his apparent view that he knew the deal was dead before he even walked into the White House although he said nothing about it at the time; his general refusal to either approve or reject the deal; and the apparent host of inaccuracies salted through a conference call that McCain's flacks held earlier this week to dispute Obama's own facts -- haven't yet made it on the site.
We have, however, heard about farting at police officers, Al Gore, Obama's attack on NRA ads, law review editing, rabbis, and sex with sheep. (In fairness, we also got a poll asking readers whether McCain had acted correctly in "suspending" his campaign. It came from Orin, natch, whose posts are always admirable.)
"Institutional Pluralism" at the AALS
I'll confess that I have rarely attended the plenary (now "presidential") programs at past AALS annual meetings. This year's sessions, though -- exploring variations on the annual meeting's "institutional pluralism" theme -- look very interesting. As I've suggested here before, and here, I think this theme is an important one. (For full descriptions of the three programs, go here.)
The first program, "Institutional Pluralism", will involve "a conversation about how institutional differences affect faculty and students, how they contribute to our intellectual life, and what effects they have on the other values our schools cultivate." The second, "Religiously Affiliated Law Schools", will ask, among other things, "[h]ow, if at all, are these schools different from their secular counterparts? What effect might the religious commitments and beliefs of the sponsoring faiths have on subject matter, perspective, student life, academic freedom, admissions, hiring, and other issues? What do religiously affiliated law schools contribute to the legal academy and broader legal community?"
Finally, the third program, "Associational Pluralism", considers the recent "flourishing . . . of parallel organizations [such as] the Federalist Society, the Society of American Law Teachers, the National Association of Scholars, the Law Professors Christian Fellowship, and the American Constitution Society", and asks, "[d]oes this phenomenon signal that the AALS is not representing these points of view? Should the AALS try to assimilate these groups, or make more of an effort to
accommodate them (without digesting them) in its own framework, or live with the status quo?"
These questions all strike me as interesting and important, and the line-up of presenters is excellent. Perhaps we could start thinking about the meeting's themes, and these questions, early? Thoughts?
Thursday, September 25, 2008
Save the Rainforests and Give Us a Break: Send Less Law School Promotional Brochures
I don't know how you all feel about the avalanche of colorful law school brochures we get in our mailboxes every day. This is somewhat of a minor aspect of the US News ranking frenzy, and of the question how to disseminate scholarship, but I really wish it would stop, or at least diminish. Not only is this annoying in the environmental sense (apologies; I'm from the Bay Area), but a lot of the publications we get seem quite countereffective. I wish law school PR was more about substance and less about gloss.
The Time Squeeze for Lawyers and Others
Orly Lobel takes me to task for drawing parallels in my book, The Big Squeeze, between overworked lawyers who toil seventy hours a week and overworked low-income workers, like hotel housekeepers, who face huge pressures to work harder and faster.
I understand -- and sympathize with -- Professor Lobel's statement: "I am hesitant to accept too quickly the parallels drawn between the plights of these two kinds of workers. " (I am indebted to Professor Lobel for her extremely kind compliments about my book.)
An explanation: I draw parallels between overworked lawyers and overworked low-end workers in order to suggest that far too many Americans, whether those on top, like law firm partners and associates, or those on the bottom, like hotel housekeepers and meat-packing workers, work far too hard and often far too many hours. For those on top, this often results from a workaholic syndrome. And sometimes their overwork doesn't result from workaholic-ism, but from expectations from their corporation or law firm that they are to work at a minimum 60 or 70 hours a week. In my tenth chapter, Overstressed and Overstretched, I explore this overwork phenomenon and how it stresses out workers and strains family life, leaving many with far too little time with their spouses and children and often leaving workers too stressed when they are supposedly having relaxed time with their families. (Damn that perpetually active BlackBerry and cell phone.)
I share Professor Lobel's sentiment that workaholic business executives, law firm partners, investment bankers and doctors often take it upon themselves. Oftentimes no one is forcing them to work such insane hours. Moreover, these high-end workers generally get paid very handsomely for their hard work. So in that sense my parallel is far from perfect -- badly overworked high-end workers deserve less sympathy than badly overworked low-end workers.
It seems that some workaholic business executives -- who often see hard work as a fact of business life -- do not hesitate to pressure their subordinates into working incredibly hard. These executives think, "I'm working incredibly hard, so why shouldn't everybody who works for me?" But there are several problems here -- and this helps explain why my parallel is less than perfect. Workers lower down on the economic ladder usually not take it upon themselves to work insanely hard -- they are often forced to do so. And low-end employees who are forced to work extremely hard -- see the section of my book on meatpacking workers and hotel housekeepers -- are rarely paid handsomely. To be sure, many low-end employees work seventy-hour weeks (sometimes working two jobs), but it is not to become masters of the universe or law firm partners or to earn $600,000 a year. They usually do so to try to scrap enough money together to support their families.
Should we feel more sympathy for seventy-hour-a-week law firm associates than for seventy-hour-a-week law firm partners? Probably. Law firm associates often have those crazy hours forced upon them. But they are often halfway happy to endure those hours because of the big, hoped-for prize at the end of the marathon: a partnership. But I generally feel less sympathy for the law associate who is forced to work seventy hours a week than for the low-end worker, like a meatpacker, who is forced to work seventy hours a week.
Still, I believe that my basic point holds -- too many Americans work far too hard and long, whether they are high-end workers who do so voluntarily or low-end workers who have it forced on them, either by overdemanding bosses or by economic exigencies. Whatever the reason, these long, overstressed work lives are unhealthy for workers and their families -- for lawyers and for nonlawyers.
In counterpoint, I describe Ernst & Young, the accounting firm (p. 194), and how its former chairman grew alarmed that the firm had so female partners. )The main reason: many women quit the firm within a few years of being hired because they saw it as too demanding a place to balance job and family.) In a very laudable and far-sighted way, Ernst & Young's chairman transformed the firm's culture (and its employees' work schedules) so that E&Y became far more family friendly. The firm tried to make sure its workers weren't feeling pressured to work seventy hour weeks. It gave them huge freedom to determine their schedules, often allowing accountants to work just twenty or thirty hours a week -- or to take summers off. Nowadays women account for one third of the people made partner each year. I believe many of us have a lot to learn from the way Ernst & Young has transformed its culture into a family-friendly one.
Teaching Legal Reasoning in Substantive Law Courses
I recently taught a Legal Analysis class here at OCU that introduces entering 1Ls to legal reasoning. We used Steven J. Burton’s book on the subject as a text (An Introduction to Law and Legal Reasoning). It worked very well. But one of the things that Burton says in the preface struck me as worthy of some more attention and discussion by professors and students: “Law teachers challenge students to explain and criticize examples to shed light on the law [from cases on contracts, torts, or whatever the course’s subject is]. Students are left largely to their own devices to extract worthwhile lessons about legal reasoning from examples and discussions.”
That rings true for me, given my memory of most of the substantive courses I took in law school. But I wonder to what extent it is still true. For those of you who are law professors, do you pause to ask how a court is analogizing or distinguishing a new set of facts to a prior case, or a hypothetical case that everyone would agree should come out a certain way – and to generalize about what makes for a strong or weak analogical argument? And how do you diagnose what’s going wrong where students run into trouble trying to make a convincing analogical argument (either in class or in exams)? Also, are those of you who teach substantive courses (like constitutional law or torts) familiar with the texts that your school’s Legal Writing or Legal Analysis teachers use to teach legal reasoning, and do you ever remind students of these texts in trying to get them to apply previously-learned lessons on legal reasoning in their substantive courses? Would it make sense to ask students to keep these texts throughout law school, instead of selling them, so that they and their teachers could refer back to them in their subsequent courses (which, whatever specific area of law they are about, will also be at least in part about honing one’s skills in legal reasoning and argumentation)?
Just curious how this is done elsewhere.
Random Children’s Book Recommendations
One of the benefits of having young children is that it gives me a chance to learn about some terrific children’s literature. While I’m a big fan of many of the children’s books that Hollywood has also discovered (e.g., Harry Potter, Lemony Snicket’s A Series of Unfortunate Events, Holes, and Where the Wild Things Are) there are some great stories that don’t get that kind of exposure. I thought I’d post a few of my favorites in the hope that I could get recommendations from some of you in return:
1. Margaret Mahy’s The Horribly Haunted School and The Mixed-Up Pirate Voyage.
Margaret Mahy is a wonderfully imaginative children’s author from New Zealand who has written many great books for toddlers, 18-year olds, and every age group in between. She likes to weave some philosophy into her stories. In The Horribly Haunted School, a young boy who is allergic to ghosts must try to explain his predicament to teachers at a school premised on the empiricist notion that the only things real or relevant are those which you can see, hear, smell or taste (The Brinsley Codd School for Sensible Thought). Fortunately, he gets some help from a closeted romantic among the school’s administrators, and from the ghost of the school’s founder and former headmaster, Brinsley Codd. He also gets some unexpected aid along the way from a haunted car, a vendor of food and wisdom, as well as his jig saw puzzle solving champion mother, and his dad, who is a philosopher employed with the government’s Department of National Despair. In The Mixed-Up Pirate Voyage, a group of waiters and chefs at a floating pirate-themed restaurant decide to become a real pirate ship, and sail into a group of mysterious islands to pursue a life of adventure and romance, arguing all the while with a parrot committed to a dark and deterministic vision of the universe.
2. Edith Nesbit’s The Complete Book of Dragons
Edith Nesbit lived from 1858 to 1924 and she and her husband were founders of, and major figures in, the Fabian Society. She’s probably most famous for The Railway Children and a trilogy consisting of Five Children and It, The Phoenix and the Carpet, and The Story of the Amulet. My favorite works of hers are her short stories. “The Complete Book of Dragons” in particular has some intriguing tales, including one where an island’s counterclockwise geological formation has caused many things to happen counter to our normal experience of them: The guinea pigs are mammoth-sized while elephants can be held in one’s hand; people grow bread and pudding on trees or farms, but must combine and cook ingredients to create tomatoes or carrots. In another tale, a forward-looking princess, whose old-fashioned father, the king, insists she be rescued from a dragon by a valiant prince, neither wants to be rescued nor have the dragon slain, and fortunately finds an intellectual prince, who prefers studying mathematics to slaying things and shares her skepticism about gender stereotypes and about killing endangered species (like the last dragon in England).
3. David Wiesner’s Flotsam and Sector 7
Two stories told entirely with pictures. Flotsam celebrates discovery
by a group of young explorers who, like the scientific community,
engage in an intellectual adventure that spans generations and unites
them with fellow explorers in different times and countries. Sector 7
celebrates creativity and non-conformity.
In Flotsam, a boy examining shells and small sea creatures on a beach discovers an underwater camera filled with pictures of fantastic sea monsters, mermaid kingdoms and other underwater civilizations. He also discovers that, for generations, each young discoverer of the camera has left a record of his or her own encounter with the camera and its contents. In Sector 7, a boy befriends a cloud on the top of the Empire State Building during a school field trip. After riding that cloud to the factory where clouds are given their shape and launched into the sky, he uses his artistic skill to foment a rebellion of sorts against the standard boring shapes into which the factory moulds the poor clouds.
4. Colin Thompson, The Last Alchemist
I’d be remiss not to include this one – given what’s happening on Wall Street and Washington these days. It’s about an alchemist named Spinifex who – being a committed alchemist – tries to create gold where there is none, with disastrous results (which fortunately teaches others the folly of the alchemists’ designs). The illustrations are strange, colorful, and somehow remind me of The Codex Seraphinianus. Fallen Angels – about a girl who discovers that children are born with, but usually quickly lose, the capacity to fly – is another great book by Colin Thompson.
So far today, we have the following evidence concerning John McCain's alleged suspension of his campaign:
- His press office is doing its normal thing
- His talking heads have been on TV
- He gave a political speech (as if a major-party nominee could give any other type of speech this close to election day) at the Clinton Global Initiative
- He has claimed that bailout negotiations are going poorly, even though reports suggest the contrary
- He is supposedly headed to Washington to take part in a White House photo-op (I say "supposedly" because he told David Letterman the same thing YESterday, as Adam Sandler might put it)
In any case, putting it all together, I think the only appropriate term for what McCain is doing is Pretend Suspend. He and his campaign are an ever-growing farce.
*I didn't list the fact that McCain's campaign ads are still running in multiple states, because the consensus around the net seems to be that a sincere effort to take them down would take a while. So we'll see about that one.
Possible historical analogy?
I am having a vague recollection that during the 1980 campaign, held during the heart of the Iran Hostage Crisis, Jimmy Carter made noise about not campaigning outside the White House while Americans were being held hostage. The plan was immediately and roundly criticized and the plan eventually abandoned.
Does anyone else know what I am thinking of? Or am I completely misremembering?
Death Penalty for Child Rape: How to Measure Consensus?
A quick visit to the SCOTUS blog revealed that the State of Louisiana has filed its final brief asking for cert regarding Kennedy v. Louisiana, in which the Supreme Court of Louisiana decided that a death penalty for child rape was unconstitutional.
The post, and the brief, are interesting in many ways. My particular interest here is in how the State wants the court to measure public support for the death penalty.
Courts do not eagerly engage with empirical studies, and there is very little in the way of fact-based conclusions; we've seen this in many instances, such as racial discrimination arguments; something about the death penalty, however, generates the feeling that somehow it would be wrong to decide this without giving any input to public opinion.
But how do you figure out how people feel about the death penalty? Louisiana suggests, in the brief, to infer this from acts of congress. According to the brief, if Congress, and the President, "evince" their support for death penalty from child rape, that indicates public opinion about this. This strikes me as a deeply flawed way to infer public opinion, democracy and representation notwithstanding. What do you think?
Another word for politics is democracy
John McCain's decision to suspend (whatever that means, precisely) his presidential campaign and to call for cancellation of Friday's debate (or perhaps to not show up even if the debate is not canceled) in order to devote his attention to helping pass bailout legislation is unprecedented. Incumbent presidents managed to conduct electoral campaigns in the middle of the Civil War, the Great Depression, and World War II. And each of those incumbents had a greater responsibility for managing events than does a senator who (like Obama) largely has been mainly a professional candidate for the last two years, who does not serve on the relevant committee, and who, by his own admission, does not really understand many of these economic issues. Jonah hits on this point. Not even The West Wing writers could have dreamed up the Republican candidate suspending operations as a campaign plot line--it simply would not have been believable.
The mantra, of course, is "now is not a time for partisan politics" and "we must put partisan politics aside in times such as these." But, of course, partisan politics describes the process by which we select our representatives, those who will govern on our behalf. To declare that the five-week period prior to a national election is not a time for politics is to declare that a popular election, including discussion and debate on the issues before the voting public, is inappropriate at this time. It is to declare that democracy is inappropriate at this time. I reject the notion that a current crisis justifies suspension of our democratic decisionmaking and selection processes, at least absent a situation in which a campaign and election are logistically impossible (think New York after 9/11 or New Orleans after Katrina) or the crisis involves some human tragedy or mourning (ditto--and I would add that it was proper not to hold partisan events on the anniversary of 9/11).
Quite the opposite. Crisis increases the need for public debate and discussion. We must hear more (and more substance, about this and other issues) from the candidates, one of whom will be President come noon on January 20 (when George Bush constitutionally ceases to be President) and will have to deal with this crisis and its ongoing and expanding effects. This is true not only for Friday's debate, but for all other campaign activities--rallies, interviews, press conferences, press releases, fundraising
Moreover, suspend the campaign until when? Passage of legislation this week or next (which is going to happen with or without McCain) seems like a meaningless target. But legislation does not end the fiscal crisis, especially to the extent part of the crisis is tied to the stock market and investor confidence. It may be awhile before any new policy has any tangible effect or before we know whether any legislative solution works. In other words, if the point is that partisan politics (i.e., democracy) are inappropriate in this time of crisis, it is not clear at what point they again become appropriate.
Only the extremest of extreme situations ever justifies suspension of the procedural element that most fundamentally identifies our system as democratic. And the suggestion that we should suspend that element outside of the extremest of situations suggests a basic misunderstanding of democratic processes.
Wednesday, September 24, 2008
Does Litigation Vindicate Workers' Rights?
Matt Bodie asks a smart question about the many lawsuits I write about in my book, The Big Squeeze: Tough Times for the American Worker.
I write about various types of litigation that seek to vindicate the rights of mistreated workers, for example, class-action lawsuits against off-the-clock work, Fair Labor Standards Act lawsuits for failing to pay the minimum wage and overtime, N.L.R.B. charges against companies that fired workers who were campaigning for a union, various complaints filed with OSHA and the EEOC. Professor Bodie poses an excellent question: Did these legal actions successfully vindicate workers' rights or were they exercises in futility?
I devote a chapter to the horrifying (and ennobling) story of Kathy Saumier, a courageous worker at a plastics factory just outside Syracuse. She led the efforts to protect and vindicate workers' rights after four of the factory's 190 workers had fingers amputated over a 13-month period. Saumier led a drive to unionize the plant and filed complaints with OSHA and the EEOC complaint. She accused the company of discrimination because 19 of the top 20 jobs on the factory floor were held be men, while women held more than 90 percent of the worst, lowest-paying jobs. So what did Saumier get for speaking out? The company not only fired her, but sought to disgrace her by accusing her of sexually groping two male workers right on the factory floor.
The United Steelworkers, which was seeking to unionize the plant, filed an NLRB complaint to have Saumier reinstated, and thanks to intense news media attention, the NLRB sought to act hastily in the case. Nontheless, it took 14 months before Saumier was reinstated, and that was only after a federal district court judge (acting on a motion for an injuction) ruled that the company had concocted the sexual charges against her as a pretext to get rid of her.
In a sense, Kathy's rights were vindicated by the reinstatement. But the fact that the company fired her -- and the fact that she was gone for 14 months -- effectively killed the unionization drive. Most of the factory's workers became too scared to talk up the union when they saw their courageous, rank-and-file leader get fired (capital punishmenton the job). So in a sense, the NLRB reinstatement was too little, too late.
I also tell the story of a nursing home aide who led a unionization drive in Florida. He, too, was fired on concocted charges, with various levels of judges finding that management had fabricated the story that he was fired because he had sought to choke a nurse. It took six years of litigation before he was ordered reinstated, and his reinstatement came only after the U.S. Circuit Court of Appeals in D.C. ruled on the matter, upholding the NLRB. Incredibly, even though the nursing home aide had been fired six years earlier, the nursing home had to pay just $1,757 in back wages. The back wages were so small because the nursing home aide had found another job soon after he wsa fired (as a translator for Catholic Charities) and all the wages on that job were subtracted from the years of back pay the nursing home would have owed. During those six years, the unionization drive had fizzled out. (For the nursing home, the $1,757 was a smart investment to kill off a unionization effort.)
In Saumier's case at the plastic factory, OSHA hit the company with a $720,700 fine for not installing proper safety guards on its equipment and for not reporting more than 60 injuries on its safety log. The good news is that those penalties went far to get the company to clean up its act on safety. As for the EEOC complaint, the company announced a $782,000 settlement. As a result, dozens of women received money to compensate them for the discrimination. The bad news is that a worker still at the plant said that a vastly disproportionate share of the best jobs were still held by men.
In The Big Squeeze, I also write about the dozens of lawsuits filed against Wal-Mart, accusing its managers in various states of squeezing employees to work unpaid hours off the clock. In direct response to these many embarrassing lawsuits (and the embarrassing newspaper articles about these illegal practices), Wal-Mart jumped to attention and moved to stamp out such illegal practices (although some workers say some of these practices persist). Wal-Mart felt even more pressure to clean up its illegal act when several judges and juries ordered it to pay millions of dollars -- in one California case $172 million -- when it lost lawsuits over off-the-clock work and not giving workers their required breaks.
In my view, a key lesson here is that when the NLRB, OSHA, EEOC or a plantiffs' lawsuit hit companies over the head hard enough, companies will often clean up their act, effectively vindicating workers' rights. But if legal actions result only in a slap on the wrist, many companies will blithely continue their improper practices, leaving workers' rights weakened, rather than vindicated.
Thoughts on Disseminating Scholarship
I was extremely pleased to see that the great new paper by Sonja Starr that I blogged about earlier this month appears to have had an impact in a recent case out of the Northern District of Illinois. Professor Starr’s thoughtful paper advocates sentencing reductions as a remedy for prosecutorial misconduct. The sentencing judge in United States v. Dicus not only reduced the defendant’s sentence based on the prosecutor’s misconduct in the case, but he also explicitly references Starr’s paper (which is available on SSRN). (Hat tip: Doug Berman)
This case has me thinking about how we could better disseminate our scholarship. You may remember the widespread attention last year when the NY Times reported that many judges on the Second Circuit expressed the view that legal “scholarship no longer had any impact on the courts.” There is empirical evidence that judicial opinions cite law review articles less often now than in earlier decades. Undoubtedly, not all legal scholarship will be of equal interest to judges, but there are some articles that very well may be. Sometimes, in the course of my more theoretical research, we may come across a discrete doctrinal issue and consider writing on that topic. What should those of us who are writing such scholarship do in order to ensure that the lawyers and judges who are dealing with these issues are aware of the articles (or books, etc) on the issue?
For example, I recently co-authored an article on standards of appellate review for federal sentencing decisions. I think that the article could provide much-needed guidance to the courts of appeals, which are deciding dozens of these cases every month. Would it make sense to send a reprint to chambers? What are the chances that a judge would read an unsolicited 50 page article? How could I publicize the article to attorneys who are litigating these cases (besides guest blogging here on Prawfs, of course)? How can we help to ensure that our scholarship does, in fact, have an impact on the courts?
Rankings as Measures of Quality vs. Coordination Games
Given that U.S. News & World Report rankings are probably going to loom large in the minds of applicants, alumni, and some employers no matter what, I’m hopeful that Jason Solomon, Dave Fagundes & co. will succeed in their “Race to the Top” project – so that when law schools predictably work to climb as high as possible in the rankings, they’ll have added incentive to improve their educational quality (in those respects that the project can measure).
But in an ideal world, I think that a “Race to the Top” project would be more useful as an entirely independent ranking system – because when its educational quality rankings are folded into the US News & World Report rankings, they’ll be folded into rankings that have little to do with, and make it harder to assess, educational quality.
To the extent the current U.S. News & World Report rankings serve a function, I think their function is more akin to that of what Thomas Schelling described (in The Strategy of Conflict) as a “focal point” in situations where people who can’t easily communicate can coordinate their actions. Schelling explains this concept with the aid of following scenario: Imagine “[y]ou are to meet somebody in New York City. You have not been instructed where to meet; and you cannot communicate with each other. You are simply told you will have to guess where to meet and that he is being told the same things and that you will just have to make your guesses coincide.” People can coordinate their actions with such guesses, Schelling explains, if they have “some focal point for each person’s expectation.” It seems to me that the key role rankings play for law school applicants and employers is to structure their guesses in this way: Law school applicants might rationally take the rankings into account not because they believe these rankings reflect educational quality (or any other inherent quality of the institution), but rather because they understandably often try to make predictions about where desirable employers will do their most intensive recruiting. Likewise, to the extent they care about the kinds of conversations they’ll have with their law classmates from day to day, they’ll have to guess where the best conversation and debating partners among their fellow applicants will choose to go (and many of the comments to Jason Solomon’s posts a few weeks back emphasized that this aspect of legal education was often as important, if not more important, than in-class discussion).
If that’s right, law professors and law classes may be a whole lot less important to the current uses of school rankings than some of us might like to think we are: After all, a focal point – for example, a prominent structure, like the Empire State Building in New York City -- is important in Schelling’s example not because of what it is, but solely because of the people its prominence attracts. The people in Schelling’s scenario would be just as happy with another focal point that would bring them together, like the Central Park carousel or the Washington Square Arch, since what matters to them is not where they are, but only that the other person is likely to be there. Law students might similarly find it rational to go to Yale, Harvard, Chicago or the highest-ranking school they can get even if they for some reason decided that the educational quality at those schools is worse than lower-ranked schools (perhaps just worse for them, given the type of classes they find most engaging or the type of tests they perform best in).
For those top-scoring law applicants (and prominent law firms) looking to find each other, it’s possible that educational quality will provide a useful focal point. But that seems unlikely to me, given that the educational quality of an institution is a hard thing to measure or rank and that the basic curriculum doesn’t vary much from law school to law school. It makes more sense to use a measure like reputation as measured in peer surveys which, to a far greater extent than educational approach or some measure of the value students get from courses, is both easier to quantify and (as this recent post on Brian Leiter's Law School Reports makes plain) tends to remain stable from year to year. In fact, even an arbitrary ranking system – like one that ordered schools with a system analogous to Willie Wonka’s Golden Ticket contest – might help provide guidance so long as it lets everyone know what others will do.
It’s also conceivable, in this day and age, that instead of trying to simply guess where other applicants and desirable employers will be heading, existing applicants might try to communicate with others and coordinate their actions in a more detailed way ahead of their decision. Perhaps, instead of just focusing on the usual suspects, those applicants with a 180 LSAT might set up a space on Facebook, My Space, or their own Web site, engage in some collective priority-setting there, and then commit to go, as a group, to the law school that makes them the best offer (letting prospective employers know to seek them out there). That probably won’t be happening any time soon. But if it did, it might also provide us with some information on how much importance the “value added” component of a law school education really has for applicants and prospective employers. If, for example, the top applicants decided to choose the newly-established American Law School on the French Riviera over Harvard, Yale, and Stanford and prominent law firms then worked hard to hire them from there in spite of a shared sense that students learn less about law and lawyering in that new (still non-existent) school, that might be a hint that “value added” is a whole lot less important to major actors in the legal market than the talents that law school students bring with them to law school. (This might be the case, not because law school education is irrelevant or unimportant to being a lawyer, but rather because – if students are likely to get roughly the same “value added” from law school education regardless of where they go, it is other differences between them – and not the differences in the education they receive – that will likely be of most significance for them and their future employers).
I’m not saying that law school applicants are – or should be – entirely indifferent to educational quality or to differences in approach between one law school and another. Nor should they (or are they) likely to be entirely indifferent to the contributions that a particular institution’s faculty have made in the realm of scholarship or policy-making. But I’d be very surprised if these factors were anywhere near as important for law school applicants as they are for graduate school applicants in the Arts and Sciences (who will often choose to study in a particular department because they want particular faculty members on their dissertation committees).
That said, I think law schools and law professors should still care deeply about the quality of their curriculum design and teaching and to the extent the “Race to the Top” gives them more incentive to do so, I’m all for it. But it seems to me (a) that the project would do well to make its educational quality rankings available in a form where it isn’t combined with the many other measures in U.S. News & World Report that have nothing to with educational quality (including reputation scores from respondents who don’t take the time to analyze educational quality) and (b) that it would also do well, given the difficulty of measuring and ranking some aspects of educational quality, to create a forum that might help faculty, students, and those applicants who are interested obtain purely qualitative information about what separates one law school’s approach, or performance, from another where scoring and ranking are impossible.
"Bad Apples" and the Financial Meltdown - Does the SEC Have a Role Absent Fraud?
Financial meltdowns often seem to lead media and regulators to look for illegal activity, which is why I was not surprised to read that the FBI is investigating Fannie Mae, Freddie Mac, Lehman and AIG for potential fraud. (New York Times story here). This focus on illegal activity has happened elsewhere - in the wake of rising gas prices, for instance, the CFTC investigated price manipulation and fraud. And here an anonymous government official told the Times that it was "logical to assume" that these companies would be investigated, given the questions surrounding their collapse.
Two thoughts on this. First, the danger of focusing on "bad apples" is that it excuses us from rethinking the system and potential regulation. To date, the focus seems to have been on systemic problems and on greed, without linking that to illegal behavior. Let's not get distracted by the FBI.
Second, what are the roles of the various government actors? The FBI's actions seem like a reasonable expression of its responsibilities, although I'm willing to be told differently. But where is the SEC? In the context of the recent collapses and bailouts, the SEC's announcement of a "sweeping investigation ... into possible market manipulation in the securities of certain financial institutions" seems besides the point. As David Zaring points out in excellent posts here and here, the SEC is MIA. Does this mark a shift from looking to lawyers for expertise to looking to economists? Is the SEC like the FBI in that prosecution is its main tool? The SEC has been examining and reporting on credit rating agencies, which could be a hook for SEC action. Or maybe just the basis for another critique....
Let the *Foreign Policy* Debate Go On
As possibly the only person posting here who has a PhD in economics (apologies to anyone I've left out if I'm wrong!), I've wanted to post on the financial crisis. Some of the issues here are simple, but others are quite complicated, and that's why I haven't done posted on this to date. Hopefully I'll get some time to put something up fairly soon.
In the meantime, though, I want to note that I think that
(a) it would be a mistake for the campaigns to cancel Friday's debate, as McCain has just proposed, and
(b) it would be an even bigger mistake for them to change the debate topic to the financial crisis.
From what I can tell, it's critical that there be a sensible bailout. Both Democrats and Republicans on the Hill have signaled rather clearly that this will not happen unless McCain gets on board. And no one should be surprised by that, given these sorts of antics from supposedly new-thinking conservatives. So it makes a lot of sense to me that the two campaigns should agree to a joint statement of principles for a bailout, effectively taking this issue off the table as a nuclear weapon (no doubt each will still use it as a conventional one). According to the Obama campaign, such discussions are under way, and I haven't seen a denial from Team McCain. The key thing is for both candidates to either vote for whatever package ends up passing, or to declare that they would if they voted.
But neither of these guys is president yet, and neither is particularly a congressional force on banking policy. So it seems to me that the bailout legislation can be written without their direct participation. In fact, having them in the room probably just makes things worse by tempting each to demagogue the issue.
For the same reason, switching the debate topic to the crisis, as I've seen some Obama fans propose in the last hour or so, is a terrible idea. Given a statement of principles and a commitment to vote for a bill that satisfies them, the best thing would be for the candidates to avoid this topic til the vote is over; then they can say what they like, blame each other, whatever.
In the meantime, the voters deserve to see the candidates take real questions. Foreign policy is obviously a critical topic. Especially given some voters' concerns about Obama's experience, and others' concerns about McCain's repeated mistakes concerning the most basic foreign policy facts, this show ought to go on. And that view is only strengthened by the bizarre chokehold that McCain and Palin have placed on the vast majority of serious media questions.
"The Big Squeeze" and the Uncorporation
I wanted to build a little more on my thoughts about the role of "shareholder primacy" in "The Big Squeeze." The book argues that "[t]he hugely greater importance of the shareholder over the worker represents a sea change in capitalism." It describes how the "shareholders first" mentality that now pervades publicly-traded corporations is harmful to workers. Instead of maintaining the social contract of high wages and few layoffs, companies now lay off workers even in good times, and they continually seek to cut wages and benefits. The pressure from the moves comes from globalization, certainly, but also from shareholders who reward layoffs and punish generosity to workers. Indeed, Greenhouse notes: "Ironically, managers of workers' pension funds often served as a catalyst for laying off workers."
Conversely, the examples of "good companies" are often privately held. One example is Patagonia, the California outdoors apparel company that provides its workers with extensive scheduling flexibility and great benefits. Greenhouse provides the following thoughts from Patagonia's principal owners:
Yvon and Malinda Choutard acknowledge that the company they own could not be nearly so generous toward its workers or the environment if it had gone public. "I went through the process of what it means to go public," Choulinard says. "It would have been the death of my company. You lose all power. You can't take risks. The accountants would say, 'When you do this or that, there is no benefit to the company. What are you doing with the other people's [the shareholders'] money?'"
Larry Ribstein has written extensively about the possibilities of the "uncorporation" -- private partnerships or LLCs that are more specifically tailored to the parties' preferences. Ribstein focuses on how these firms have key partnership-type features such as distribution and liquidation rights and strong-form manager incentives. Because of these features, he argues that uncorporations will care less about corporate social responsibility or shareholders-rights initiatives. However, uncorporations might also be suited to run in a different direction -- to be more oriented towards social responsibility than the general market would allow. With a nimble, private structure, uncorporations could make decisions that the market might normally frown upon.
All of this is to say that union pension funds and other employee-oriented investors might want to think more carefully about how they invest their money. It feels good to be touting shareholders' rights when it comes to issues like executive compensation. But as "Big Squeeze" points out, shareholder primacy may not be the best way to support pro-worker changes in the economy. Uncorporations may provide new ways for funds to invest in companies with employee-oriented policies.
Tuesday, September 23, 2008
Addressing Wage Theft and Other Illegalities
In his post, Public Responsibility for Stopping the Big Squeeze, Noah Zatz had some smart and kind comments about my book, and I very much appreciate that.
While I wholeheartedly concur with Professor Zatz's call for more law enforcement to stop labor law violations, I nonetheless dissent in part from this statement of his: "Unfortunately, I worry that the overall thrust of Greenhouse's argument leaves us ill-prepared to make the case for government action. Almost every story has the same basic structure: big corporation stomps on noble worker, or in more complex cases, big corporation forces small corporation (or middle manager) to do the stomping. This way of telling the story lets almost all real people off the hook: either we are fellow sufferers, or we are innocent bystanders. That's great for focusing anger on the corporate miscreants, but I fear that it falls short, both morally and politically, when the solutions require all of us to put skin in the game."
If anything, I believe, my book should leave us better prepared to make the case for government action. One reason I wrote The Big Squeeze was to help make sure that the public sees -- and that the nation's lawmakers see -- how common it is for corporate managers to break workplace laws. These practices are disconcertingly widespread, whether it's failing to pay time-and-a-half for overtime or making employees work off the clock or shaving hours from employee time cards or brazenly flouting safety regulations or hiring undocumented workers to skimp on wages and benefits or illegally firing union supporters. I'm not suggesting that these illegal practices are universal, but I did hope to make the case that these practices are far more prevalent that many people realize.
In the many tales I tell of companies and managers breaking workplace laws, in no way did I intend to leave companies or their managers off the hook. I write of senior corporate executives who assign unrealistically low payrolls to store managers or restaurant managers, knowing full well that those managers will feel pressured to break the law-- by, for instance, demanding off the clock work -- if they hope not to exceed their assigned payroll. By writing about this, I'm not letting these senior executives off the hook. Rather I'm hoping that I might help persuade or even pressure senior executives to assign middle managers and line managers more realistic payrolls so those managers don't feel the need or temptation to break the law. I also hope that senior executives will alter some incentives for lower-level managers because those managers often feel tempted to cheat their employees when they know that their bonuses are tied to how low they keep payroll.
Nor do I let the line managers off the hook. I recognize that these managers are often assigned unrealistically low payrolls and often face huge pressures on the job, shouldn't these managers -- before breaking the law -- question their superiors about the unrealistically low payroll levels they've been assigned. Too often they too blithely flout the law.
And I like to think that my book puts shareholders on the hook. By serving notice that many large, well-known companies are engaging in wage theft and violating safety laws, I would hope that some enlightened shareholders would push to make sure that their companies have firm policies (and realistic payrolls) to help discourage and prevent such lawbreaking.
My hope is that my book will spur reader, be they workers, union members, concerned professors, concerned lawyers or concerned clergy, to urge workplace regulators to regulate more vigorously and to urge lawmakers to enact stronger penalities to create disincentives to wage theft. Here's one law that needs strengthening: the federal penalty for falsifying wage documents (i.e. shaving hours) is just $1,000.
In my chapter of recommendations, I say it would be smart for federal and state lawmakers to allocate more money for workplace investigators. Some lawmakers and taxpayers might hesitate to spend more money on hiring more investigators. But I can imagine a way to increase the size of investigative staffs without raising the cost to taxpayers. I would think that good investigators could unearth enough workplace wrongdoing and mete out enough fines that they would more than pay for themselves.
Responsibility for the Big Squeeze: Employers, Consumers, Citizens?
In my earlier post I suggested that The Big Squeeze's focus on employer wrongdoing left us under-prepared to argue for vigorous, and costly government intervention. Melissa Hart's responds by arguing that consumers implicitly are responsible for "the high cost of low prices" and that they will need to pay "one way or another" for change.
I tend to agree, but once we pivot to consumers from unethical or mean-spirited employers (or their managers, to whom Steven Greenhouse turns in his own followup), how far to do we get with tales of employer-employee abuse? After all, the consumer says, "*I* didn't do anything wrong. Why should I have to pay for someone else's wrongdoing? And besides, I'm hurting plenty myself."
Once we shift focus from nasty employers to the systemic consequences of relentless price competition, the problem (and its solutions) might start to look pretty different. Indeed, one possibility is that the problem isn't even that prices are "too low" but that some people are getting left behind through no fault of their own while others are getting ahead through pure good fortune. That would push us toward focusing on the mutual responsibility among citizens, not necessarily consumers' ill-gotten gains.
Let me give one example that relates back to Orly Lobel's reluctance to put "lawyers and accountants and investment bankers" in the same box as low-wage workers. I think there's a pretty good argument that many non-managerial professional employees are benefitting a lot from what Greenhouse describes, not only through lower prices but also through the advantages that their children get relative to the children of other workers in our massively unequal system of access to education and jobs. So they're (we're) employees but coming out on top. And on the other hand, I think there's a pretty good argument that plenty of small businesspeople (who never appear as protagonists in the book -- and rarely even appear as employers, despite the fact that about half of U.S. workers are employed by very small firms, not the behemoths we repeatedly see) work very hard and are getting squeezed, too. But when the oppression of employees by employers organizes the story, the professional employees are off the hook and a struggling employer is on it.
Tunes for Job Interviews
Since I quoted from the Death Cab for Cutie song, “I Will Possess Your Heart” below, I thought I’d highlight another lyric in that song that those of you on the AALS hiring market this year might want to sing in your interviews at the hiring conference in November: “How I wish you could see the potential, the potential of you and me.”
Then again, maybe that’s a bad idea: When I was on the market a few years back, I didn’t get a callback from the hiring committee to which I sang “Don’t You Want Me [Baby?]” (by The Human League).
Heller’s First Amendment – and the Extra Protection it Just Might Provide for Dada and Surrealism
“It is often suggested we may be floating in a sea of radio messages from other civilizations, messages which we do not yet know how to decipher.”
(from the book, Godel, Escher, Bach)
“It's like a book elegantly bound,
but in a language that you can't read just yet”
(from the song, “I Will Possess Your Heart”)
These quotes – respectively from computer scientist Douglas Hofstadter and the rock band Death Cab for Cutie – were not, but could have been, about The Codex Seraphinianus. The Codex is a beautiful book by the artist Luigi Serafini that purports to be an encyclopedia of an alien civilization written in that civilization’s language. It’s filled with paintings of bizarre creatures, swimming trees, unfamiliar weaponry, and a sexual encounter that morphs into a crocodile. Nobody – probably not even Serafini himself – has any idea what it’s telling us.
So unlike The O’Reilly Factor or Hardball with Chris Matthews, it’s unlikely to count as an example of the “political speech” that the Supreme Court has described as being “at the core of what the First Amendment is designed to protect.” Virginia v. Black, 538 US 343, 365 (2003). Indeed, under certain theories of the First Amendment that prioritize political speech, Serafini’s encyclopedia would receive no protection at all. Alexander Meiklejohn once argued for limiting the First Amendment’s scope to speech that contributes to self-government. Robert Bork offered a similar argument that the First Amendment protects only political speech. Meiklejohn and Bork each retreated from their respective arguments for limiting the First Amendment in this way, and modern First Amendment law certainly protects expression, including a lot of surrealistic and abstract art, that is not about politics at all.
Still, speech sometimes gets extra insulation from government restriction when it has political content. The Supreme Court plurality in Morse v. Frederick, for example, implied that the nonsensical slogan in that case (“Bong Hits 4 Jesus”) would have been protected from school censorship if it had contained a “political message” like the armbands worn by students in the 1968 Tinker case to protest the Vietnam War. 127 S. Ct. 2618, 2626-27. And the Court has said, in a similar vein, that government employee speech qualifies for First Amendment protection only when it touches on a “matter of public concern” – “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” San Diego v. Roe, 543 U.S. 77, 84-85 (2004).
But the Supreme Court’s recent Second Amendment decision in Heller suggests that help may be on the way. Why? Because the Court in Heller seems to suggest that where a right is not expressly limited to political purposes in the constitutional text, then it should not be so limited by judicial interpretation. Even if the Framers were concerned first and foremost with political applications of the right, that doesn’t mean these applications limit the scope of the right itself. Thus, Justice Scalia concedes that the Framers probably codified the right to keep and bear arms in the Constitution to address the “the threat that the new Federal Government would destroy the citizens' militia by taking away their arms.” 128 S.Ct. 2783, 2801 (2008). But even if our Constitution’s drafters valued the right for that purpose, their purposes for codifying it don’t have to be our purposes in invoking it: Americans, at the time of the founding and more recently, might have considered the right “more important for self-defense and hunting” and can invoke it for these reasons since, while self-defense may have been secondary for the founders, it was “the central component of the right” the founders codified. Thus, as my OCU colleague Mike O’Shea has observed on Concurring Opinions (in his edifying play-by-play analysis of the Heller case) the Court had little trouble concluding that the Second Amendment had “[p]rimarily private purposes.”
It occurs to me there’s a probably a case to be made that such an
analysis applies to the First Amendment as well as the Second. In
fact, in his book, The First Amendment, Democracy, and Romance, Steven
Shiffrin made an observation about the First Amendment that is similar
to Justice Scalia’s argument against confining the right to keep and
bear arms to political purposes: He notes there that “[i]t is one
thing to show that the Founders focused on political speech; it is
quite another to show that they intended that only political speech be
protected from subsequent restraints.” (p. 191). The fact that
political speech was foremost in their minds did not mean that this was
the only speech to which late 18th century Americans sought to give
constitutional protection. On the contrary, he points out, the 1774
Address to the People of Quebec also identified other important
purposes for freedom of speech, such as “the advancement of truth,
science, morality, and the arts in general.” Of course, as I’ve noted
above, modern First Amendment law does not exclude non-political speech
from its coverage. But why give it any less protection or treat it
outside the “core” of the First Amendment if it was just as much a part
of the original freedom?
One might argue that this case against limiting the right to political purposes (or prioritizing such purposes) is even stronger for the First Amendment: The Second Amendment has a prefatory clause that emphasizes a public purpose (collective self-defense). If that language doesn’t give the right to keep and bear arms a political character, why should the First Amendment speech clause’s silence on its own purposes?
There are two possible justifications I can think of for continuing to give political speech, or speech on matters of public concern, a privileged place in First Amendment law. One is that it all depends not on the language surrounding the Constitution’s mention of the right (e.g., the prefatory clause preceding the mention of the right to keep and bear arms) but rather on the public understanding of the right itself at the time it was given constitutional status. One might argue that unlike the right to bear arms, which – as Justice Scalia emphasizes – was a right understood by 18th century Americans to encompass personal as well as collective self-defense, “freedom of speech” may have been generally understood to protect only the speech necessary to public debate and self-government, or at least to give such speech far more protection from government restriction than speech that lacking political value. Michael Kent Curtis’s history of popular conceptions of free speech (Free Speech, ‘The People’s Darling Privilege’ Struggles for Free Expression in American History) emphasizes that while freedom of speech was understood as protecting more than speech about politics, “the popular tradition emphasized free speech in relation to democracy, as well as free speech as an inherent human right.” (pp. 18-19).
Still, it’s not clear to me why – if freedom of speech was understood to cover literature, art, and science as well as political speech – we should be locked into the Framers’ ranking of different kinds of speech any more than we are stuck with their ranking of different purposes for the possession and use of arms, if they codified only the right, and not their ranking, into the Constitution’s text. Perhaps, it could be argued, it is because the right to freedom of speech was not “’a right inherited from our English ancestors,” Heller, 128 S. Ct at 2802, like the right to keep and bear arms, but rather a break with English political tradition on the subject, giving the Framers more leeway to define it as they wished.
There’s also a second possible reason for believing that political speech should retain a place at the top of a First Amendment hierarchy – which is that even if the Constitution has not placed it there, the court’s precedent has. Justice Scalia emphasizes in Heller that “nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment.” Heller, 128 S. Ct at 2816. By contrast, the Court has issued a number of decisions in which it suggests that speech on politics or matters of public concern is at the core of the First Amendment’s free speech protection, and sometimes receives protection that other speech does not.
I’m far from certain what I think about all this – and would be interested in all of your illuminating thoughts (or historical research). I do think that there would be something odd about having a communitarian and civic republican First Amendment sitting above an individualistic Second Amendment in The Bill of Rights, but maybe the Constitution is a little unusual in this respect. In any event, I highly recommend taking a look at The Codex Seraphinianus, when you get a chance, if the rules of your school or workplace permit it.
Note: For some more thoughts on what Heller might tell us about First Amendment free speech, you might check out this post on The Legal Satyricon.
Are Students Legal Realists?
We are one month or so into classes and I'm worried that my 1Ls have concluded that judges' opinions are determined by what they had for breakfast. (Bell Atlantic's re-reading of Conley v. Gibson first pushed them this way.) Putting aside the concerns that this badly mischaracterizes legal realism, my sense is that this attitude towards judicial decisionmaking gives them an excuse to throw up their hands and refuse to wrestle with lines of cases. I do think it is a good lesson that judging involves the exercise of "judgment" and that reasonable minds may differ on many litigated issues. But I also think that it is at least plausible that judges' decisions are limited by institutional constraints, the constraints of having to construct a legal argument that is not laughable, and/or educational norms. I think it also ignores differences among the courts (e.g., district court vs. the Supreme Court) and among subjects (e.g., constitutional law vs. almost anything else). One of my colleagues responded by pointing to Bush v. Gore, which is difficult to argue with, but I still don't want my students to start there; this early notion of legal realism is too much like a free pass.
Executing Retributivism in real life?
Yesterday, I blogged about Executing Retributivism, a project I'm working on that discusses the communicative nature of retributive punishment. The article examines the untold implications of the Supreme Court's decision last year in Panetti v. Quarterman for Eighth Amendment review of capital and non-capital cases. In Panetti, the Court insisted that a defendant have rational understanding of why he is being punished before he can be executed. It's not enough, in other words, that the defendant be merely aware that he is being punished; he must rationally understand why he is being punished, and if he doesn't, he cannot be executed. As I argue in the piece, that rational understanding requirement seems to me to make sense only in light of a theory of punishment that seeks to preserve the opportunity for the defendant to internalize the values the state is effectuating through its imposition of punishment, and to evidence that internalization in response to the punishment. Thus there is a real tension, I argue, between a rational understanding requirement and the imposition of the death penalty; similarly, there are important implications for revisiting the current practice of warehousing the presently incompetent in prisons too.
Anyway, I mention this (again) because it seems relevant to the fascinating story in today's NYT about Willie Bosket, an offender who has been living in solitary confinement for over ten years in NY state prison. Bosket has killed and attacked people from a young age both in and outside of prison. Consequently, he's not scheduled to re-enter general population until 2046, unless the evaluations indicate that it's safe for others to be around him again. Given the tone of the story, it would seem that Willie's beaten his demons for the most part, but he still acknowledges that there's a risk he might pose to others. What I found especially interesting are his apparent remorse for what he's done while he's been in solitary confinement and his claim that he'd rather die at the hands of lethal injection than spend more time in the "hell" he's living. Putting aside the harshness of his current conditions, and whether they are appropriately visited upon Bosket, it seems to me that the internal struggle Bosket undergoes on a daily basis is precisely the reason why the death penalty is anti-communicative and why internalization and the opportunity to evidence that internalization day by day is the better retributive strategy to communicate the state's reprobation of the defendant's wrongdoing. The Bosket story also raises a cluster of other issues--definitely worth a read.
Monday, September 22, 2008
Marjorie Knoller's murder conviction reinstated
Marjorie Knoller, owner of the dog that mauled Diane Whipple to death several years ago, has been sentenced by the Superior Court to 15 years to life imprisonment for murder. Thus ends (for now, until the appeal) a painful legal saga that has generated a lot of interest in the Bay Area and beyond.
For those who are not familiar with the case, Knoller and her partner, Robert Noel, owned two Presa Canarios. The dogs were obtained through prisoners who were closely associated with Knoller and Noel, and were trained as combat dogs. There had been numerous instances in which the dogs threatened the neighbors, including Whipple, who lived across the hall from Knoller and Noel. Then, one day, Knoller took one of the dogs, Bane, out; as they returned home, and were about to enter the apartment, the dog bolted and attacked Whipple, mauling her to death.
Following the event, Bane, and later the other dog, Hera, were put to death. Their owners were prosecuted for their part in the occurrences. And this is where things became interesting, mens rea wise.
Knoller was indicted for both second-degree murder and involuntary manslaughter. The jury found her guilty of both, but the conviction for murder was overturned by the San Francisco Superior Court, rationalizing that it could not "say, as a matter of law, that her [Knoller's] conduct was such that she subjectively knew on Jan. 26 that a human being was likely to die."
While Knoller was serving her sentence for manslaughter, the battle for mens rea continued in a series of appeals. Eventually, today, the Superior Court reinstated the original jury verdict, following the CA Supreme Court ruling that, for a murder conviction, it is enough to act with "conscious disregard of the danger to human life".
Trying to disengage for a minute from the Knoller facts, I ask myself whether the analytical distinction we make between objective and subjective knowledge is always clear-cut. Being in the position of making decisions after the fact, it is hard to tell sometimes whether a person knew her actions could result in death, or whether a reasonable person would have known that. Lacking a reliable subjective measure of what the specific person thought, we often infer using objective methods. Granted, in the Knoller case the prosecution provided evidence, in the form of letters, as to the couple's awareness of the dangerous nature of the dogs; but aren't we making it easy for ourselves to infer such awareness when we know the end result?
I find myself generally agreeing with the verdict, probably because Israeli law, until the mid-1990s, tended to sometimes regard gross negligence as actual knowledge for purposes of mens rea distinctions, and having gone to law school before the change, the old rule still makes more intuitive sense than the new one. It make sense precisely because the distinction between the subjective and objective standards often turns out, in practice, to be a theoretical one. Nevertheless, doing some soul-searching this evening, I ask myself if the particularly horrifying event, or the particularly unsympathetic defendants, are impacting my judgment. I'm curious to hear your thoughts.
Breyer vs. Brennan
The legal blogosphere is buzzing over this weekend’s NY Times op-ed about the presidential candidates and their likely picks for the Supreme Court. The line in the editorial that seems to be getting the most attention is the following prediction: "As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall."
The op-ed has sparked debate as to whether a new Breyer would adequately balance the recent conservative appointees. And Orin Kerr has questioned whether Obama would, in fact, be more likely to select a more moderate Justice. Kerr cites to a February article from Slate, in which Obama legal advisors (and law prof rock stars) Martha Minow, Larry Tribe, and Cass Sunstein reject the idea of appointing a judicial moderate. But that same article described a previous interaction between Obama and these advisors in which he didn’t take their advice, and Minow conceded that Obama’s approach was “not just more politically resonant but better conceived.” That makes me doubt that we can rely on those same advisors’ views about the Court in predicting whether Obama would appoint a Breyer or a Brennan. He seems quite confident in his own opinions on such issues.
I don’t pretend to know who the two candidates will appoint to the Court, but I certainly enjoy the coverage! Feel free to post your own personal picks for the candiates in the comments --- an accurate prediction will give you fantastic bragging rights.
Not Just One Big Squeeze, But Many Squeezes
I 188am delighted -- and honored -- to be invited to be a guest blawger for PrawfsBlawg. And I am impressed -- and honored -- by the thoughtful postings about my book, and I plan to respond to them one by one.
For starters, I want to say that when I researched and wrote my book, The Big Squeeze, I saw that workers were suffering not just from one squeeze, but from several squeezes. There is of course an economic/financial squeeze with wages stagnating and health and pension benefits getting worse. Then there is a time squeeze with Americans working 1,804 hours a year on average -- 135 hours or nearly three-and-a-half fulltime weeks more than the typical British worker, 240 hours or six fulltime weeks more than the typical French worker and nine fulltime weeks more than the typical German worker. (Those of you who answer work emails at 11 p.m. know what I'm talking about.) The United States is the only industrial nation without laws guaranteeing workers paid vacation, paid sick day and paid maternity leave. (In the 27 countries of the European Union, workers are guaranteed at least four weeks vacation.)
For lack of a better phrase, workers also face a squeeze over dignity and respect. To a shocking degree, many "respectable" companies treat their workers with a surprising lack of decency or dignity. I think of the company that fired a computer engineer on the very day that his eight-and-a-half-year-old daughter was visiting on Take Your Daughter to Work Day. And I also think of the booklet that Northwest Airlines distributed to laid-off workers, giving them pointers on how to make ends meet. The booklet was called, "101 Ways to Save Money,' and among the tips it gave were "Borrow a dress for a big night out," "Shop at auctions or pawn shops for jewelry," and "Don't be shy about pulling something you like out of the trash."
Then there's another type of squeeze that I found quite surprising and appalling: the frequency with which many companies break the law in how they treat -- and cheat -- their workers. Perhaps I'm naive, but I was shocked at how prevalent such lawbreaking was. Or perhaps because I went to law school (N.Y.U. Class of '82), I drank the Kool-aid and thought that corporate managers would actually behave better and would try very hard to comply with the law.
Both in my job as labor and workplace reporter for The New York Times and in my work researching the book, I came across corporate lawbreaking time and again: Managers at Wal-Mart and many other companies strongarming subordinates into working off the clock. Many corporate managers do not let employees take their required lunch breaks and rest breaks. Many cleaning companies made immigrant janitors work 30 days a month and refused to pay them time-and-a-half for overtime. (And it was of course all off the books.) There were managers who treated undocumented female workers as sexual prey, there for the asking. Many construction companies turned a blind eye to some of the most basic safety precautions, the result being that workers died in easily preventable accidents. (See trench collapses.) Then, to derail unionization efforts, many companies break the law by firing outspoken workers who are trying to form a union.
And then there was the tale of Drew Pooters, who served in the Air Force for 17 years, serving in Somalia, Iceland and the first Persian Gulf War. When he returned home, he took a job at a Toys R Us in Albuquerque as the head of its electronics department. One day he was in the manager's office to check whether an item had been delivered, and he saw his supervisor sitting at a computer, erasing hours (recorded by computer) that he and other employees had worked. Pooters protested, and soon was out the door. Pooters next went to work at Family Dollar, and in running one of its discount stores, he ran afoul of his supervisor, who told him he was spending too much money on payroll and should thus go into the computer and erase some hours from his employees' time cards. Pooters refused, and was soon out the door. In his next job, at Rentway, a company that sells furniture, computers and electornics by installment, he often had to work through his lunch hour, but he said his boss erased those lunch hours as hours he had worked. Three jobs in a row Pooters, as patriotic American as you'll ever meet, suffered from this practice of "shaving hours." (I should note that Toys R Us, Family Dollar and Rentway all say they have firm policies directing their managers to always comply with the law.)
I write about all this because I'm surprised at how broken many of the nation's workplaces seem to be. (Wall Street is so broken that I guess I shouldn't be surprised at how frequently workplace managers flout the law. Hasn't the Wall Street cataclysm resulted from cascades of fraud and foolishness, of cupidity and stupidity--overreaching mortgage brokers, dishonest packagers of mortgages into securities, foolhardy or dishonest credit rating agencies. The list goes on.)
After I finished writing my book, I kept wondering, Why do so many corporate managers break the law? Why do they show so much contempt for the law and for their workers? Yes, they often face tremendous pressures to keep their payroll costs to a minimum. But I always thought, evidently naively, that that the desire to follow the law would serve as a powerful brake on managers breaking the law and cheating employees. What exactly, I often wonder, are the managers of today and tomorrow learning in the ethics classes and human resources classes that they take in business school?