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Tuesday, June 30, 2009

The ART of Michael Jackson

I've just been talking to a tax colleague, Sarah L., about fascinating and topical legal issues -- no, not the Supreme Court's opinions in the firefighter or banking cases, or Justice Souter's retirement or the new consumer finance agency-- instead, we've been trying to get the full story on Michael Jackson's paternity and the custody of his three children.  Sarah has pointed out, "it sounds like he took *full* advantage of ART (assisted reproductive technology).  Here's what I've gleaned from various gossip sources:  Michael Jackson is not the biological father of any of the children, and his ex-wife, who carried two of the children, is not their biological mother.  All three kids were conceived using egg donors, sperm donors, and IVF.  Also, Michael Jackson never adopted any of the children.  Depending on how this plays out, there could be a lot of legal issues here."  

As we write this, a will has just surfaced, according to a Wall Street Journal story, although it is still not clear whom (if anyone) was named as testamentary guardian or as conservator of the estate for the children. Besides, the "parents" are typically the preferred guardians; Debbie Rowe's status is complicated, but she apparently gave birth to 2 of the 3 children while she was married to Jackson.

In our world, where eggs and sperm can -- appropriately -- be sold, where surrogacy has been so much in the news (Matthew Broderick and Sarah Jessica Parker, just to drop a few names), where Jon and Kate are splitting up and they're splitting the care for the 8,where we've heard  little in the past month from Nadya Suleman and her octuplets (see here for the article that Jennifer Collins and I wrote about that ART situation), custody of the Jackson children may simply be a footnote -- but a useful one for my trusts and estates and family law casebooks.

Posted by Naomi Cahn on June 30, 2009 at 04:55 PM | Permalink | Comments (2) | TrackBack

Going from 'Us' to 'Them'

A few years ago, Nancy Rappaport published a short essay in the University of Toledo Law Review, called "Going from 'Us' to 'Them' in 60 Seconds," in which she described her appointment, relatively early in her career, to an associate-dean post:

Scarcely a half-hour after the official announcement had been made concerning my appointment, I was at the faculty copy machine, and one of my colleagues walked in. He (mostly in jest, I think) told two other colleagues, who were standing nearby, “Hey, don't talk about that in front of Nancy. She's a ‘them’ now.” And thus it began: the transition from being an “us” to being a “them” in the blink of an eye.

I had a similar experience, a few days ago, after it was announced that I am going to take on some associate-dean work at Notre Dame:  a colleague said (jokingly, I hope!) something like, "so, you decided to give up on being part of the solution and decided to become part of the problem, eh?"  (Ouch!).  I hope not!  Dean Rappaport writes, "Going from an 'us' to a 'them' also means that, unless your friends on the faculty are very special people, your relationships with them will change."  Again, I hope not.

Posted by Rick Garnett on June 30, 2009 at 11:48 AM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Reinterpreting Section 230

My last post identified several puzzling results of current Section 230 jurisprudence, such as immunity for articles written by freelancers, but not by employees.  A common suggestion to remedy this and other conflicts is to withdraw immunity for any and all publication decisions by provider.  Thus, providers are liable if they reprint an email - they decided to publish.  They are also liable for the freelance article - they hired a contractor to provide content.

This is arguably within the ambit of the statute.  The immunity only extends to "information provided by another information content provider."  An information content provider, in turn, is "any person or entity that is responsible, in whole or in part, for the creation or development of information."

Under this proposal, the decision to publish something (or hiring someone else to provide it) constitutes "responsibility...in part, for the creation or development."  This makes the provider a partial information content provider, and thus the published information is not solely from "another."  This is the theory used in the Roommates.com case to deny immunity where the information users provide is in response to a provider written survey that suggests particular answers.

There's only one problem with this proposal - it's directly contrary to the statute's goals and language. See why after the jump.

As I noted in my first post in this series, Section 230 was enacted to remedy the costs associated with potential liability for editing and publishing decisions. This is reflected in the statute a couple of ways.  First, 230(c)(2)(A) immunizes "any action voluntarily taken in good faith to restrict access to or availability of material..." so that the chooosing whether to publish or not to publish something is immunized.  Further, "access software providers" that have tools to "pick" and "choose" content are immunized.  230(f)(4)(B).  Finally, the core immunization states that no provider shall be treated as a "publisher," and choosing content is exactly what a publisher does.

As a policy matter, I like to use blog comments as an example.  Some blogs allow the provider to deleted comments after they have been posted.  Others hide comments until the provider approves the comment for posting.  The statutory interpretation discussed above would immunize providers that delete after the fact, but not providers that approve comments for publication.  Something seems intuitively wrong with that distinction.  Further, holding those that approve comments liable would impose tremendous investigation costs, the very costs that the statute was written to eliminate.

There is, however, a better way, and the answer lies in a mostly ignored portion of the statute: interactivity.  Only providers (and users) of an interactive computer service are immune.  An interactive computer service "provides or enables computer access by multiple users to a computer server..."  This is, of course, quite broad - the statute specifically includes internet service providers, for example.

However, it stands to reason that the information at issue must be provided pursuant to the interactivity of the service.  The statute does not make this explicit, but to find otherwise would lead to an absurd result.  Newspapers would be immune for things they print because they also have a website, for example. 

There is support in the statute for only immunizing information directly provided through the interactive service. 230(d), for example, requires interactive service providers to notify their users about content filtering tools (I wonder how many sites seeking immunity actually do so). This implies that the information being provided is through the interactive service.  230(a) and (b) describe the findings and policy of Congress, which describe interactive services as new ways for users to control information and for free exchange of ideas.

Focusing on interactivity of the service clears up the conflicts discussed in my last post while still allowing free discourse on the internet. Blog comments are immunized regardless of filtering.  Freelance articles are not immunized, but user provided articles are.  AOL could have been liable for Drudge's statements, but information aggregators that gather news from a variety of sources automatically would be immune. Email listservs would be protected, but selecting a single email (not sent to an automated system) to republish would not be.  ISP's would still be protected for everything, as the "interactivity" of their service is simply providing the access.

I believe that this is how the statute was intended to work, and this is how I think it should work. The cost minimization policy makes great sense when you focus on the purposes of the statute. Providers who choose to republish content outside the auspices of the functioning of their service can do so cheaply - at least as cheaply as offline publishers.  Those who republish content as part of their service, however, are not required to shoulder the additional costs of policing all of the potential contributors to content.

In my next, and last, post in this series, I'll tackle a couple more policy issues that a slightly different interpretation of Section 230 would clear up.

Posted by Michael Risch on June 30, 2009 at 10:28 AM in Legal Theory | Permalink | Comments (0) | TrackBack

Osborne and due process

Two weeks late to the party, but a few thoughts on District Attorney's Office v. Osborne, in which the Court declined to recognize a right under due process (procedural or substantive) to have DNA testing performed on evidence held by the state.

First, in answer to Dan's question: Going into the argument, I thought that any right should be asserted through § 1983, not habeas. The right to test DNA did not necessarily go to the validity of the conviction or sentence or suggest that the claimant was being held in violation of the Constitution and laws. It was a stand-alone right to gather information from the state, information that might (depending on the result of testing) form the basis for a state post-conviction challenge or trial-court motion to vacate conviction; it was not Heck-barred (and forced into the habeas framework) because simply obtaining access to DNA did not necessarily imply the invalidity of the conviction. That depended on the next step of testing the DNA and what the tests revealed.

The majority assumed § 1983 was a proper vehicle and jumped ahead to reject the underlying constitutional right. Justice Alito addressed the § 1983 issue in a concurring opinion for himself and Justice Kennedy (Justice Thomas did not join this portion). Alito (apparently quoting from the plaintiff's allegations in this case) framed this as a Brady claim--an argument that the state had failed to turn over exculpatory evidence. By definition, the failure to turn over exculpatory evidence necessarily implies the invalidity of the conviction and Brady is a classic and common habeas issue. And it did not matter whether that failure occurred prior to trial (the paradigm) or after conviction.

It was a strong opinion. But ultimately I think Alito was wrong to treat this as a basic Brady case. Osborne did not know if the evidence he wanted access to was exculpatory; he believed it might be, but much depended on the outcome of testing he then wanted to perform. This is not typical Brady material, which usually is evidence that on its face tends to exculpate--the names and statements of witnesses who corroborate the defendant's alibi, information showing bias of key witnesses, misidentification in a line-up, or (to keep it in the DNA realm) the results of DNA testing suggesting the defendant did not commit the crime. In fact, there is no constitutional duty on a prosecutor to turn over information unless it appeared to have a tendency to exculpate.

Whether DNA is potentially exculpatory cannot be known until after testing and the whole basis for the claim was to get the opportunity to perform the test. This was more like typical discovery, the hunt for information to analyze and then decide the next step. And, it seems to me, that extra step before the DNA evidence could be used to challenge the underlying conviction makes a difference as to the appropriate litigation vehicle. Unlike Alito, I believe the Court's 2007 decision in Wilkinson v. Dotson (holding that a challenge to the procedures used in parole-eligibility determinations were cognizable under § 1983 because the finding of a violation only meant a new parole hearing, not earlier release from custody) controlled. Where the asserted right was merely a first step towards a possible future argument against the validity of conviction or sentence, § 1983 was the appropriate choice.

Second, the Court's refusal to recognize a due process right shows how far we have come (for better or for worse, I would suggest for worse) from the Warren Court. Several year ago, Corinna Lain argued that the Warren Court was not as counter-majoritarian in the criminal procedure realm as the myth suggests; instead, by the time the Court got around to recognizing certain constitutional rights, most states already had done so. Walter Dellinger makes a similar point yesterday on Slate's annual Supreme Court Breakfast Table (read the whole multi-part exchange) in talking about when the Court will expand substantive due process: the Court was willing to invalidate sodomy laws on due process grounds because by 2003 3/4 of the states had eliminated such prohibitions, while the Court was unwilling to invalidate prohibitions on physician-assisted suicide in 1997 because zero states allowed the practice. A similar story can be told about Loving v. Virginia, where by 1967 Virginia was one of only a few retrograde states that still had such laws on the books. All reflect the same basic point: The Court constitutionalizes due process protections only after similar, sub-constitutional protections have been widely (but not unanimously) popularly established, the basic function to pull stragglers along and imposing some national floor of rights.

Forty-six states, the District of Columbia, and the United States all provide some form of DNA testing. This is precisely the situation in which the Court might use due process to bring the four recalcitrant states in line and set the floor. Instead, Chief Justice Roberts emphasized that most states had taken steps and the stragglers, including Alaska, were taking the issue under consideration. There was no need, in other words, for the Court or the Constitution to step into the matter. Justice Stevens somewhat picked up on this point in his dissent, emphasizing that the state of Alaska had not explained its refusal to turn over evidence for testing here (Osborne had agreed to pay for it himself, so cost was not the issue) and suggesting that substantive due process would, at a minimum, force the state to explain its refusal.

Posted by Howard Wasserman on June 30, 2009 at 06:54 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4) | TrackBack

Monday, June 29, 2009

Sentence Explanations . . . and South Park

I have a new paper on SSRN entitled "Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences."  As I observed in an earlier post, I've become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences.  My forthcoming article in the Florida State Law Review focuses on "explanation review" in the federal system.  The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems.  As I see it, the fundamental vice of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range.  The fundamental vice of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines; it is enough if judges expressly invoke the purposes of punishment in explaining their sentences.  My proposal seeks to promote engagement with both guidelines and purposes.

As a bonus, this is my first paper with a South Park reference.  I actually cribbed from my own teaching notes from Sentencing, where I have used an analogy to the Underpants Gnomes to good effect in teaching the leading Wisconsin case on explanation review, State v. Gallion.  (The basic idea is this: much as the Gnomes do not explain how they will convert underpants into profits, the Wisconson Supreme Court does not explain how to convert the generic purposes of punishment into a meaningful sentence explanation -- even though the Supreme Court requires all Wisconsin sentences to be explained by reference to the generic purposes.)  Based on my experience in teaching Gallion, I would heartily recommend the use of South Park references in law teaching.  Perhaps others would like to suggest additional episodes that lend themselves well to the law school classroom.

In any event, the abstract of the new paper appears after the jump. 

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves. The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such "explanation review" is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts' failure to appreciate what may be achieved through rigorous explanation review.

Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference.  It will appear in a symposium issue of the Marquette Law Review this winter.

Posted by Michael O'Hear on June 29, 2009 at 10:52 PM in Criminal Law | Permalink | Comments (2) | TrackBack

Ricci, politics, and the appellate process

Dan asked for initial thoughts on Ricci. I have not had a chance read it, but here are a few initial comments on the procedure and politics of the decision, piling on earlier comments from Media Matters and from Jonathan Adler.

First: Appellate courts get reversed; that's why we have a three-tiered judiciary (two in Nebraska) and appellate review. Reversal does not mean Judge Sotomayor was "wrong" in any normative sense; it means only that a majority of the higher court disagreed and (as Justice Jackson reminded us) is "right" only in the descriptive sense of having the last word. (I would recommend former guest Chad Oldfather's comments on lower-court error). Reversal does not reflect on Sotomayor's ability as a judge or her style of judging, anymore than her being affirmed would allow for the argument of "see, she was right". And I would hope that, at least, intelligent legislators and law-trained commentators will avoid making a mountain of a quite common event. [Update: Or not so much].

Second: Jonathan suggests that the short shrift the panel gave the case (originally wanting to affirm by non-precedential memorandum, then affirming with a one-paragraph precedential adoption of the district court's analysis) might reflect poorly on her judgment, but that it will not derail the nomination in the end. I am not sure I agree that it reflects poorly on her judgment any more than reaching a different conclusion reflects poorly on her judgment. The procedures through which appellate judges handle cases (argument or no, summary disposition or opinion, precedential or non-precedential) are one aspect of the resolution of those cases. And they may be just as disputed and just as subject to differences of opinion as the merits. There can be differences of opinion as to the importance or ease) of the case, just as to the merits. And just as disagreement with the outcome does not mean the appellate panel was wrong in any absolute sense, neither does disagreement with the process employed (or views about simplicity) mean the panel was wrong in any absolute sense in using (or attempting to use) that procedure. Especially since there are indications that the practice is quite common on the Second Circuit, suggesting other court interests and concerns (maintaining unanimity, something the Chief Justice purports to like) legitimately play a role in the choice of process. That the panel thought the case an easy one (and thus chose a particular procedure) and the Supreme Court disagreed does not tell me anything. And although I have not looked into this, I am fairly certain the Court occasionally takes cases that were subject to more-summary disposition below.

Third: The Media Matters piece points to several cases in which Alito was reversed while on the Third Circuit (including Planned Parenthood v. Casey), as well as Hamdan v. Rumsfeld, in which the Supreme Court reversed the D.C. Circuit panel (of which Roberts had been a member) after Roberts became Chief. No one suggested that those reversals made either unfit for the Court. Alito was probed about those reversals (especially Casey) to try to get a sense of his judicial philosophy; he also was asked about several cases in which the Supreme Court affirmed.

Fourth: To the extent Republican Senators and/or conservative commentators are able to make hay (whether real or just noise in the media) out of this reversal to cast doubt on Sotomayor's "judgment," I think it will be another illustration of why the conservatives and the GOP are better at the confirmation/judicial-politics game. Alito was reversed in Casey? Well that just shows how out of control the Supreme Court (especially Justice O'Connor, who Alito had been nominated to replace) is and why it was important to put good, smart "strict-constructionist," non-activist judges (such as Alito) on the Court. Sotomayor was reversed in Ricci? That just shows why she is an out-of-control activist who decided the case based on her own politics and not the law and who should not be on the Court.

Posted by Howard Wasserman on June 29, 2009 at 04:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (7) | TrackBack

The Daily Show -- Stewart and Huckabee on Abortion

This is a joint post with June Carbone         

 

   In mid-June, Jon Stewart conducted another of The Daily Show’s multiple part interviews with former Governor Mike Huckabee.  While the previous show had focused on gay marriage, Stewart asked Huckabee to choose a topic he’d like to discuss.  Huckabee’s choice:  “the pro-life issues,” paraphrased by Stewart as “abortion.”  The two reprised the continuing debate over abortion – and as has become increasingly the case, conducted the discussion almost entirely on Huckabee’s terms.  The articulate former preacher set forth the importance of a “culture of life” and how abortion denigrates it by permitting abortions triggered by comparatively trivial concerns about the “inconvenience” of the pregnancy.  Huckabee emphasized that every human life has value.

            Stewart responded with a classic defense of a woman’s right to reproductive autonomy.  His embrace of the pro-choice position focused almost exclusively on a woman’s right to control what happens to her body. 

            Missing entirely from this conversation was any articulation of why a woman might choose an abortion and why many women (and supportive fathers, husbands and boyfriends) might view it as a profoundly moral act.  Huckabee’s  references to “tak[ing] a human life” because the baby represents an “interference” or an “interruption”  to the mother’s life, socially or economically, fails to acknowledge that the woman’s decision is likely to be heavily influenced by concerns about the fate of the child rather than selfish concerns.   Stewart’s defense of a woman’s right to bodily integrity, though more sympathetic, reinforced Huckabee’s notion that pregnancy is the issue..

            We know of no women (other than those facing serious health issues) who would choose an abortion because of the effect of the pregnancy.  Instead, women choose abortion because they care profoundly about the future of their children.  Women who elect abortions know that true commitment to a child is an enormous – and lifelong – undertaking.  The pregnancy is the easy part.  They know also that to raise a child properly requires resources, support, and maturity.  They understand as well that the number of children for whom they can provide a decent chance in life is limited.  Having a child at seventeen, if it derails the mother’s life chances, shortchanges that child and the children she might have later.  Having a third child when a mother is struggling to provide for the two she already has diminishes the prospects for all of them.  Women who choose to terminate a pregnancy because of the supposed “economic inconvenience of the pregnancy” are making a decision that they cannot provide adequately for that child at that point in their lives.  It is because of a profound appreciation of the value of children’s lives, not a casual disregard for them, that women choose abortions. 

 

While adoption provides an acceptable alternative for some women, many women do not want their children to be raised by someone else.  Women in a small exploratory study of why they obtained abortions explained that they rejected adoption because “the thought of one’s child being out in the world without knowing if it was being taken care of or who was taking care of it was more guilt inducing than having an abortion.”    

            As governor of

Arkansas

, Huckabee riled conservatives by supporting some governmental assistance for poor children.  His allies who supposedly support the “culture of life” he advocates, however, rarely support systematic support for children’s wellbeing – for collective provision of the food, medical care, child care services, and educational assistance that would make childrearing less daunting.  Indeed, in the interview, Huckabee dodges Stewart’s efforts to define the true middle ground as support for accurate sex education and comprehensive access to contraception that would reduce the number of inopportune pregnancies. 

            It is time to redefine the abortion debate. Those who passionately defend a woman’s right to choose also care passionately about a culture of life that is committed to bringing children into a world in which every child has a decent opportunity to flourish.  As we discuss in our forthcoming book, Red Families v. Blue Families (OUP 2010), pro-choice advocates need to highlight the fact that the women most likely to seek abortions are those who are most likely to lack access to effective contraception, viz., the poor, the naïve, and the isolated.  They are the same women who choose abortion because they are the mothers least able to provide for the children who might result – and those most vilified by the supposed pro-life group who routinely oppose support for children.

            Pregnancy is not the issue; care and commitment to your children is.  Which is the true “pro-life” position?

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

Posted by Naomi Cahn on June 29, 2009 at 02:13 PM in Gender | Permalink | Comments (15) | TrackBack

Ricci Overturned by Scotus 5-4

H/t to Scotusblog (via Adler), which is live-blogging. The opinion is here. Reactions?

Posted by Administrators on June 29, 2009 at 10:12 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Sunday, June 28, 2009

In praise of "The Wire"

Sorry for the long blogging silence. I had promised myself that I would complete (fully sourced) the penultimate draft of my current article, so I have spent just about every working minute of the past couple weeks filling in footnotes. That fun now complete, I can return to some blogging. Later this week, I will have some thoughts on some recent, including the end-of-term flood. For now, let me wade back in with some pop culture.

My wife and I watched the full five-season run of "The Wire" in the past two+ months. And I have to say it is one of my two or three favorite shows ever and probably the best in terms of quality of any show I have watched regularly. I continue to wonder how our experience (and enjoyment) of the show was affected by the manner in which we watched it. In two+ months, we experienced a program that was designed to be experienced over five 3-4-month periods, spaced a year apart. It is the difference between reading a book and reading a magazine serial. What would cognitive and psychological theory say about the different experience and how that affects our enjoyment of the show?

The Wire had three of the greatest, most unique and memorable characters in television history: Omar Little, a gay stick-up man that some have likened to Robin Hood; Stringer Bell, the consigliere of the drug lord in the first couple seasons, who read Adam Smith, took economics classes at the community college, and tried to apply regular business and economic principles to the drug trade; and Bubbles, a homeless heroin addict who may be the one decent character whose life is arguably better when the show ends than when it began.

It even did a pretty good job of portraying the courtroom in two lengthy scenes, both of which I believe are accurate enough to present in Evidence class. The show last five seasons and each worked into the narrative a focus on a unique Baltimore institution: 1) street gangs and city police; 2) the port; 3) city government; 4) city public schools; and 5) the Baltimore Sun. I am somewhat sorry they could not have figured out a sixth season, focusing on the courts (which were shown throughout, but in a tangential way); my guess is this group could have developed a true-to-life presentation of lawyers and the system.

Finally, the show featured unquestionably the best theme song in television history.

Posted by Howard Wasserman on June 28, 2009 at 01:42 PM in Culture, Howard Wasserman | Permalink | Comments (4) | TrackBack

Saturday, June 27, 2009

A Real Thriller

NB. Back to the front...


I can’t think of any law school who could pull this off singlehandedly, but a group at the College of William and Mary managed quite a feat on April 19 – a world-record number of people completed the infamous dance sequence en masse from Michael Jackson’s Thriller. I still think that’s one of the coolest videos ever created. Hearing Vincent Price say, “Ya’ll,” is, well, priceless, and John Landis, director of the video, also directed some of the best films of the eighties. What are some of the other best music videos of all time?

 

 

 

Posted by Kelly Anders on June 27, 2009 at 01:01 PM in Current Affairs | Permalink | Comments (3) | TrackBack

Friday, June 26, 2009

New Symposium on Originalism in NW U. L. Rev.

Via Tarlton, I just saw word of a great looking symposium on originalism in the Nw U L. Review.

I've posted the Contents after the jump. Congrats to EIC Dave Baltmanis and his team on putting this together.

NORTHWESTERN UNIVERSITY LAW REVIEW

Volume 103       Number 2       Spring 2009

 

SYMPOSIUM

ORIGINAL IDEAS ON ORIGINALISM

FOREWARD: ORIGINAL IDEAS ON ORIGINALISM

Brian A. Lichter & David P. Baltmanis

491

 

CONSTITUTIONAL AMBIGUITIES AND ORIGINALISM: LESSONS FROM THE SPENDING POWER

Lynn A. Baker

495

 

FRAMEWORK ORIGINALISM AND THE LIVING CONSTITUTION

Jack M. Balkin

549

 

THE MISCONCEIVED ASSUMPTION ABOUT CONSTITUTIONAL ASSUMPTIONS

Randy E. Barnett

615

 

TWO CHEERS FOR PROFESSOR BALKIN'S ORIGINALISM

Steven G. Calabresi & Livia Fine

663

 

ORIGINAL INTENTION AND PUBLIC MEANING IN CONSTITUTIONAL INTERPRETATION

Richard S. Kay

703

 

PHONY ORIGINALISM AND THE ESTABLISHMENT CLAUSE

Andrew Koppelman

727

 

ORIGINAL METHODS ORIGINALISM: A NEW THEORY OF INTERPRETATION AND THE CASE AGAINST CONSTRUCTION

John O. McGinnis & Michael B. Rappaport

751

 

RECONCILING ORIGINALISM AND PRECEDENT

John O. McGinnis & Michael B. Rappaport

803

 

DOES THE CONSTITUTION PRESCRIBE RULES FOR ITS OWN INTERPRETATION?

Michael Stokes Paulsen

857

 

DISTRICT THE CONSTITUTION PRESCRIBE RULES FOR ITS OWN INTERPRETATION?

Lawrence B. Solum

923

 

AGAINST TEXTUALISM

William Michael Treanor

983

Posted by Administrators on June 26, 2009 at 05:56 PM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Progress on LGBT Issues?

Like many, I was relieved when President Obama signed a memorandum last week that gives access to some benefits to the same-sex domestic partners of federal employees, and I’m pleased that the White House is drafting guidelines that would ban workplace discrimination for transgender employees of the federal government. 

Which group was excluded from the Presidential memorandum on benefits? The uniformed service.  Military employees are still subject to the policy of Don’t Ask, Don’t Tell.  According to 10 USC Sec. 654(b), “A member of the armed forces shall be separated from the armed forces  .. . if one or more of the following findings is made . . .
   (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings . ..  "(on LEXIS here:). 

Since the Obama administration took office, there have been more than 265 members of the armed services who have been discharged, according to a report that was just released by the Center for American Progress.  I must confess that until I read the report, I had not realized the full extent to which Don’t Ask, Don’t Tell affects the military:  over the past 16 years, more than 13,000 people have been discharged from the military, and thousands more leave each year -- voluntarily.  I could keep on parroting the report, including its 5 recommendations on what to do next to reverse the policy, but I instead urge you to read it for yourselves.

Posted by Naomi Cahn on June 26, 2009 at 11:36 AM | Permalink | Comments (0) | TrackBack

The Legal Blogosphere Falls Behind

One of the supposed signal virtues of the legal blogosphere is that it can respond immediately to current events.  And yet I am surprised to see that it has had virtually nothing to say about the recent and tragic death of Ed McMahon.  Keep up, folks!

UPDATE: I am now informed that, not only has Ed McMahon died, but apparently actress Farrah Fawcett has passed away too!  Where are the media on this?  I expect to hear about it when famous people die!  Some people really don't keep up with the news.

Posted by Paul Horwitz on June 26, 2009 at 10:58 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack

Thursday, June 25, 2009

A Good Idea Gone Awry

In my last post, I introduced Section 230 of the CDA, which immunizes online providers against suits based on the content of materials posted by another content provider.  While I argued that the underlying policy behind the section is sound, I believe that there are some fundamental flaws with the way it has been applied in certain cases.

This post will discuss those flaws, but only from an intuitive point of view.  My next post will tie my intuitions to the statute and argue for a different way to interpret the law.

The problem starts with an early case against America Online.  AOL had paid Matt Drudge for the right to post the Drudge Report on AOL.  Drudge published an allegedly defamatory statement, and the target of that statement sued Drudge (who would be on the hook as the "speaker" of the information) and AOL as a re-publisher.

In a relatively straightforward reading of the statute, the court ruled that a) AOL is an online provider, and b) Drudge was another content provider who provided the content over the internet. Thus, AOL was immune.

This ruling forms the basis for some strange conflicts.  The first is the employee/contractor conflict.  If the NY Times publishes a story written by an employee, it is liable.  If it publishes a story by a freelancer (e.g. contractor), then it is not liable.

The second conflict is the online/paper conflict.  If the Times prints the freelance article on paper, it is liable, but if it prints it online, it is not.

The third conflict is the republishing conflict.  If a user sends an email to an online provider, and the provider chooses to publish the email (even an edited version of it), the provider is immune. This immunity may hold, even if the provider goes out and finds the content on the internet (for example, quoting a portion of someone else's blog posting). With respect email, the Ninth Circuit has held that it is the provider's reasonable belief that the email was intended for publication, rather than the sender's subjective intent.

The fourth conflict is the paper/online receipt conflict.  If, instead of sending an email, the provider publishes something received in paper form, liability may attach, whereas the same content received over the internet is immune.

The fifth conflict is the editing/development conflict.  If a provider edits the content, it is still immune, but if the provider provides a "form" that guides the user to particular content, it can be liable as a co-developer of the information.

Some scholars, such as Eric Goldman, are just fine with these conflicts, and chalk it up to the important policy of encouraging internet based discourse.

I, however, think that Congress could not have intended some of these conflicts.  Most troubling to me is immunity for paid non-employee content.  Intuitively, it seems like liability for solicited content should not turn on the employment status of the person paid to provide that content.

I realize that this list of conflicts does not include "cyber-harassment" and other privacy/intimidation content immunized by 230.  I stand by my view that it would simply be too costly to require providers to review, fact-check, and determine the "privacy/harassment/intimidation" status of every piece of user content on its site.  That's not to say that providers shouldn't try - they should.  That's also not to say that a notice and takedown rule for content that is easily categorizable shouldn't be implemented. However, I fear that such policies would not be good for the internet.

As noted above, my next post will propose a way to read the statute that eliminates the conflicts identified above, even if it doesn't rid the world of sites like JuicyCampus.

Posted by Michael Risch on June 25, 2009 at 07:18 AM in Legal Theory | Permalink | Comments (1) | TrackBack

Wednesday, June 24, 2009

Nazis, Highway Signs, and the Government

If you spend much time in your car, you’re probably familiar with adopt-a-highway programs, in which states erect signs bearing the names of organizations that have agreed to pick up litter along particular stretches of road.  As the New York Times this week reported here and here, certain groups’ efforts to participate in those programs continue to generate controversy:  a half-mile of Missouri highway, for example, is marked by a sign recognizing the clean-up efforts of a neo-Nazi group.  State legislators sought to send a counter-message of inclusiveness by naming that road after civil rights advocate Rabbi Abraham Joshua Heschel -- but Heschel's daughter has opposed the move out of concern that "attaching her father's name to a road cleaned by neo-Nazis would be 'vulgar' and would 'dishonor' him."

 

As another possible approach for those chagrined by a state's roadside recognition of a Nazi group, I suggested in an earlier article that, under certain circumstances, adopt-a-highway programs could be designed expressly to convey the government's thanks -- and thus could be considered the government's own speech that it remains free to deliver or withhold.  Recall that the Supreme Court has made clear that the government’s speech on its own behalf is "exempt from First Amendment scrutiny.”  Those unhappy with their government’s expressive choices can seek redress through political accountability measures -- like lobbying for a change in the government's position or voting for new government officials -- rather than through First Amendment litigation.  Indeed, the decision of whether to thank – and, if so, how effusively – can be an extremely expressive choice.  For example, public universities often accept gifts of money or services from private parties without any promise of recognition, retaining the expressive choice as to whether and how to acknowledge the gift.  

 

Of course, government may instead seek to encourage private contributions by selling advertising space on its property in exchange for labor or financial support.  For example, government might promise recognition on a commemorative brick or sell naming rights to a building in exchange for a donation of a certain amount.  In those cases, government’s release of its claim to the speech as its own means that its regulation of what is then private expression remains subject to traditional First Amendment scrutiny.  Under this analysis, government's viewpoint-based efforts to exclude certain groups from such programs will almost always violate the First Amendment.  

 

Whether the government can avoid acknowledging the Nazis (or any other group) on government speech grounds thus may turn on whether we understand the clean-up services to be a donation to which the government may (or may not) respond with thanks or instead as a purchase of public recognition.  In other words, do the Nazis seek to secure the state's perceived endorsement, or do they simply seek to buy prominent advertising space?  Designing adopt-a-highway programs transparently to reflect the government's own expressive choices  -- e.g., “Missouri thanks x for keeping our roads clean” –  may make a difference. To be sure, a state that retains the choice of whether and how to express thanks may undermine its attractiveness to potential volunteers.  But the state may be willing to pay that price in exchange for greater expressive control.   

Posted by Helen Norton on June 24, 2009 at 06:28 PM | Permalink | Comments (0) | TrackBack

It's Never to Early to Start Thinking About Exam Questions . . . .

Over at the Marquette Law School Faculty Blog, I've been tracking new criminal cases in the Seventh Circuit since October.  This is the first time that I've ever systematically read a court's advance sheets.  (As an aside, though, I was charmed by the story I heard in law school - perhaps apocryphal - that Arthur Corbin passed away at age 93 in the Yale Law Library while reading the latest contracts advance sheets; ever since, I've thought of that as the ideal way for a law professor to go.  As an aside to the aside, how can it be that Wikipedia lacks an entry on Corbin?  Homer Simpson gets a 5,000-word treatment with 130 footnotes, but there is nothing on one of the true giants of contract law.)

Anyway, my Seventh Circuit blogging project has been an enlightening one.  I've come to appreciate that there are interesting things happening in criminal law outside of sentencing (the normal focus of my scholarly attention).  I've also come to appreciate how firmly established is the norm of judicial minimalism, at least in the sorts of cases I've been reading.  Most of the opinions frame and analyze the issues in thoroughly case-specific ways.  The questions are usually presented in terms of abuse of discretion or sufficiency of the evidence, and the answer is almost always "yes, the court could do this without abusing its discretion" or "yes, the evidence would permit a fact-finder to decide this way."  Only rarely are issues framed as purely legal questions, in which the court ends up saying something of real interest to anyone besides the litigants in the case at hand.  (Harmless error and forfeiture doctrines are also frequently invoked to avoid straightforward legal conclusions.)

Most weeks, though, I am able to find at least one case that tickles my fancy for one reason or another.  Sometimes, this is because the case presents what seems a good fact pattern for my Crim Law class.  So, for those diligent Crim Law profs out there who are already thinking ahead to next year, here are a couple of recent cases that might make good grist for classroom discussion or examination.

First, there is the Case of the Man Who Thought He Was Breaking the Wrong Law

22 U.S.C. § 2778 regulates the export of "defense articles."  Subsection (b) imposes a licensing requirement on exporters of defense articles.  Subsection (c) establishes criminal penalties for "any person who willfully violates any provision of this section."  In 2007, Doli Pulungan concocted a scheme to export certain riflescopes to buyers in Indonesia.  He believed the scheme to be unlawful, but apparently for the wrong reason: he thought he was violating an embargo on arms shipments to Indonesia that actually expired in 2005.  Pulungan lied to business associates about the nature of his scheme and arranged for transshipment through Saudi Arabia in order to disguise the fact that Indonesia was the ultimate destination.  He was later convicted under 2778(c) for exporting the riflescopes without a license. 

So, what exactly is the state-of-mind requirement of 2778(c)?  In other words, how should a court interpret "willfully"?  (In Pulungan, on appeal, the government conceded that 2778(c) defined a specific intent crime that requires knowledge of both the licensing law and the legal status of the items exported as regulated defense articles.) 

Can the government establish the requisite state of mind?  Is the transferred intent doctrine helpful here - in other words, can Pulungan's intent to violate the expired embargo be transferred to 2778?  (The Seventh Circuit strongly suggested the answer was no, but did not offer a square holding to that effect.)

What if 2778(c) were structured as a strict-liability crime - would there be a constitutional problem with Pulungan's conviction?  In this regard, note that 2778 authorizes the President to promulgate a list of the defense articles for which an export license is required.  The list includes "riflescopes manufactured to military specifications," but does not identify any particular types of riflescopes that fall within this category.  Nor has the government published the criteria it uses to determine whether a riflescope has been manufactured to military specifications.

And, apart from 2778, could Pulungan be prosecuted for attempted violation of the Indonesia embargo that expired in 2005?

Second, there is the Case of the Stuffed Drawing Box.  A Wisconsin casino sponsored a drawing for a $10,000 prize.  The rules of the drawing specified various ways that entry forms could be obtained - basically, the more one played blackjack or the slot machines, the more entry forms would be received.  Darwin Moore and Bruce Knutson used an alternative approach: they made literally thousands of photocopies of the official entry form.  By the time of the drawing, Moore and Knutson had their names on more than 60 percent of the entry forms.  With the odds stacked in their favor, they walked off with the $10,000 prize - but not before Moore's ex-girlfriend tipped off the authorities.  Moore and Knutson were convicted of theft.  (This apparently was a federal crime because it was theft from an "Indian gaming establishment.")

But was this really a trespassory taking?  Nothing in official rules expressly forbade photocopied entries.  On the other hand, it's clear that the casino intended the drawing as a way to drum up more business for its blackjack tables and slot machines, and that Moore and Knutson's scheme was contrary to that intent.  Does an implicit intent count for establishing criminal liability?  There may be an interesting analogy to Topolewski v. State, 109 N.W. 1037 (Wis. 1906), a wonderful case of attempted entrapment of a thief that I teach in Criminal Law.

The Seventh Circuit nonetheless affirmed the conviction, relying on the "expressio unius" canon: by listing certain ways that patrons could obtain entry forms, the rules should be interpreted to exclude any other ways (including photocopying).  But, as long as we are invoking canons of statutory construction to interpret the drawing rules, why not also look to the rule of lenity?  (I might note that Crim is the only statutory law class in our first-year curriculum, so I like to use the class as a vehicle for teaching basic statutory interpretation.)

There are also interesting policy questions here about where to draw the line between lawful and unlawful sharp practices, which I usually approach through the false pretenses cases.

Posted by Michael O'Hear on June 24, 2009 at 04:15 PM | Permalink | Comments (0) | TrackBack

U.S. News tomfoolery

What can one say but "d'oh!"  It appears the Gainesville Sun got hold of University of Florida's President J. Bernard Machen's U.S. News rankings form. According to the University of Florida's president, the country's "distinguished" undergraduate programs are Stanford, Cal-Berkeley, Yale, Harvard, MIT, Michigan, Princeton, Columbia . . . and the University of Florida. Six of the country's 10 "marginal" schools, according to President Machen, happen also to be in Florida.

Posted by Rick Garnett on June 24, 2009 at 02:40 PM in Rick Garnett | Permalink | Comments (2) | TrackBack

God, Philosophy, Universities

A few times here at Prawfsblawg, the question of law schools' institutional character -- their "mission" -- has come up.  I've had a few posts, for example, on what John Garvey has been calling "institutional pluralism", and on the contributions that (I think) meaningfully religious law schools can make, precisely by being distinctive, to the academy and to the profession.  

The connection between study of and engagement with "big questions," on the one hand, and the social and institutional forms in which these activities take place, on the other, is (one of) the subject(s) of Alasdair MacIntyre's new book, "God, Philosophy, Universities:  A Selective History of the Catholic Philosophical Tradition," which I am reading with a group of colleagues.  Check it out.  It's conversational and accessible, but also (I think) provocative and profound.

Posted by Rick Garnett on June 24, 2009 at 01:56 PM | Permalink | Comments (1) | TrackBack

Tuesday, June 23, 2009

So Long, and Thanks....

This is going to be my last post on Prawfsblawg for now. I just wanted to thank Dan and everyone else here at Prawfsblawg for this opportunity, and I'm looking forward to doing this again in the future.


I also wanted to thank everyone who posted comments or sent me emails about my posts. I have a whole new reading list for the summer, and your suggestions will make the papers that the posts were drawn from all the better. And please feel free to email me with any more comments or thoughts you have--I'll be working through the issues I raised here for a while, and I am always eager to talk more about them.

Thanks again!

John

Posted by John Pfaff on June 23, 2009 at 02:22 PM | Permalink | Comments (0) | TrackBack

Apple News


    There’s been lots of Apple news over the past few days:  Steve Jobs [probably] had a liver transplant a few months ago, at least according to the Wall Street Journal.  Apple has sold more than a million of its newest Iphone within the first three days of making it available.  And Apple stock is selling in the middle of its 52-week range.
   Closer to home, I’m about to use my PC to click and order a MacBook.  Although the Mac v. PC topic has been explored before on Prawfsblawg, I want to return to The Laptop Dilemma (with apologies to Michael Pollan’s The Omnivore’s Dilemma).  I’m caught in the Mac v. PC wars   Perhaps I’ve been captured (I’m certainly enraptured) by almost all of the ads in the almost 8 minute youtube video:    Hello, I’m a Mac.  And I’m a PC.   I love the ones where the PC is sick, but the Mac remains healthy; where the PC  and Mac each talk about the cool things they can do (the PC has a calculator!); and where the two of them see a therapist to discuss their differences.  So I’m probably going to use my educators’ discount, get a free Ipod Touch (not an Itouch, the indignant Apple salesperson informed me), and join the MacWorld.  But I’ll get Microsoft’s Office installed on my new laptop.  That way, I can keep my fingers and keyboard in both worlds, and continue to interface with my work  environment, in which I still need to open WordPerfect documents (apparently, Apple’s Pages can’t open WordPerfect documents yet).  

    Please let me know what you think.  It’s not too late to stop me, or to encourage me to pass go! 

Posted by Naomi Cahn on June 23, 2009 at 12:06 PM in Information and Technology | Permalink | Comments (8) | TrackBack

Sprawl and Climate Change

Here's a fix for fellow land-use junkies.  Kaid Benfield (of NRDC) has an interesting post up on the links between land use policy and carbon emissions. A taste:

  • Smart growth and smart transportation choices can reduce the amount Americans need to drive - as measured in vehicle miles traveled (VMT) - by 10 percent per capita from 2005 levels. 
  • A 10 percent reduction in per capita VMT would reduce annual transportation emissions by 145 million metric tons of carbon dioxide (MMTCO2) in the year 2030, equivalent to the annual emissions of about 30 million cars or 35 large coal plants.
  • These reductions would equal approximately 6 percent of the 2030 greenhouse gas (GHG) reduction goal proposed in the American Clean Energy and Security Act.

There's no question that part of the solution to climate change will be a shift in our land use laws to encourage more mixed use and walkable development.  This is not about forcing people to abandon the suburbs, but about giving people and developers the option to produce the sorts of built environments in which it's possible not to have to get in the car several times a day to get anything done.  In other words, it's about creating choices, not eliminating them. (HT Kevin Drum)

Posted by Eduardo Penalver on June 23, 2009 at 11:52 AM | Permalink | Comments (0) | TrackBack

Monday, June 22, 2009

I Do What I Want!

One of my favorite refrains from South Park is Eric Cartman's declaration that "I do what I want!" on the Maury Povich show. The phrase reminds me a bit of Section 230 of the Communications Decency Act, which immunizes web sites and "interactive computer service" from liability stemming from content provided by "another information content provider." At its best, 230 encourages wide collaboration of ideas (like this blog!) and encourages the airing of unpopular viewpoints - free expression in pure form.  At its worst, 230 allows a downward spiral of garbage, harassment, and anonymous defamation (think Juicy Campus).

Section 230 is one of my favorite topics that's not on my research agenda, so I plan to explore some of the issues in a couple of blog posts instead. Something seems wrong with how it has been applied, but I think it is difficult to put a finger on what and why, because the underlying policy makes sense.

In this first post, I plan to discuss the policy basis for Section 230 as well as the soundness of that policy.

Section 230 was enacted to cure a curious whipsaw in the common law.  The general rule of defamation liability is that publishers are liable for false statements and distributors are not unless they have notice.  This makes sense intuitively - Random House is liable for statements of its authors in books, but Barnes & Noble isn't liable for selling the book unless it learns of the false statement.

A couple of cases in the 1990's applied these rules to the internet - if you run a networked service (these were pre-internet - Compuserve and Prodigy) with user provided content, then you were not liable if you leave all user content untouched, because you are a distributor.  If, however, you edited a single posting, then you became a publisher, and were liable.

The costs of such a rule are tremendous - providers could either leave the site untouched, leading to no control over unabated user content (and we've seen how bad that can be) or providers would have to closely scrutinize every single posting made by a user, an extraordinarily expensive proposition.  The result in either case is a disincentive to provide online services for user content.

In steps the Communications Decency Act, which immunizes providers for all content provided by others, whether or not some of the provider polices that content.  The statute turns the common law rule on its head - it doesn't matter that there is direct notice of the falsity, a fact that most practicing attorneys I talk to have a hard time getting their arms around.  The statute has been extended to cover defamation, stock fraud, and all sorts of other wrongs, when such wrongs are perpetrated by users.
It can be a rough rule, as some have learned when they try to sue providers for the terrible things their users do. 

Why the CDA, though?  You would think an act dedicated to limiting online indecency would not allow for this kind of free-for-all.  The argument is simple enough.  Under the common law rule, people had a disincentive to do any kind of filtering of indecent or offensive content, lest they be held liable for the borderline stuff.  So, the CDA immunizes providers even if they do filtering (and even has a section that expressly immunizes it), so that providers have an incentive to weed out the worst, even if some slips through.

When approached from this angle, the policy behind immunity is sound.  After all, those who want garbage on their site would choose not to filter anyway, and would have always been immune under the common law.  This way, those sites that want to do some clean-up now have an incentive to do so because they, too, are immune.

Of course, the policy could have gone the other way, holding people liable even if they did not filtering, but attaching liability for passiveness would force all providers to closely scrutinize (and fact check!) every single piece of content provided by a user. The costs of such a system would be astronomical, and would dissuade all sorts of web sites that we know and love today - blogs, facebook, linked-in, youtube, and any other site that allows user content.

The middle ground is a notice and takedown system, but this too is problematic, as people would ask sites to take down all sorts of content is properly posted.  Those who follow the DMCA can attest to the overuse of takedown notices for content that is legally posted. Here, at least, the question is closer based on costs and benefits, but I still lean toward free discourse.  I'm willing to be persuaded to the contrary, and a lot of scholars are looking at ways to align incentives properly.

So, that's a basic introduction to the immunization provided by 230. While I think the policy behind the rule is fundamentally sound, the courts have mucked up the statute a bit, and in ways that blur the reason why we have the statute in the first place.  I'll address these points in my next post on this subject.

Posted by Michael Risch on June 22, 2009 at 01:09 PM in Legal Theory | Permalink | Comments (1) | TrackBack

Saturday, June 20, 2009

Thoughts on Yeager: Role of Appellate Judges, Special Verdicts, and the Meaning of a Hung Jury

Last week, in Yeager v. United States, the Supreme Court resolved a longstanding tension between two aspects of Double Jeopardy law: the collateral estoppel rule, which precludes relitigation of issues previously found in the defendant's favor, and the hung jury rule, which permits relitigation of charges as to which a jury does not reach agreement.  Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading.  The counts were factually linked: Yeager's alleged fraud was that he knowingly participated in making false, overly optimistic statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well.  At trial, the jury acquitted Yeager of fraud, but hung on insider trading.  A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson.  In Yeager's view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors.  If he did not know about the gap between what investors were told and the actual state of affairs, then the government's insider trading theory would also collapse.  In the government's view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe.  The district court agreed with the government's view, but the Fifth Circuit reversed.  The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury's treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note. 

First, the Court limited its analysis to the purely legal question of whether a logical inconsistency between acquitting on some counts and hanging on others necessarily denies the acquittal of preclusive effect.  The Court thus declined the government's invitation to reexamine the Fifth Circuit's holding on what exactly the jury decided in its acquittal; the Court simply accepted as its starting premise that the jury acquitted Yeager because the government did not prove he knew the statements at issue were false.  "We decline," as the majority opinion put it, "to engage in a fact-intensive analysis of the voluminous record, an undertaking unnecessary to resolution of the narrow legal question we granted certiorari to resolve." 

The majority's cavalier treatment of the factual question provoked a concurrence from Justice Kennedy.  It also brought to my mind some of the discussion at the Criminal Appeals Conference here earlier this week about the disengagement of appellate judges from basic error-correction functions.  Paul Carrington, in particular, criticized the apparent preoccupation of appellate courts with law-making, to the detriment of other endeavors that may seem less exalted to judges, but are still vitally important to litigants.  As I understand it, Carrington was really speaking of the intermediate federal appellate courts, but I wonder if similar arguments might fairly be extended to the Supreme Court.  Althought the Justices do occupy a different position in the federal court system, the lower-court judges may still take their cues from the Justices in deciding how to value different judicial activites. 

Second, the factual issue the Court declined to grapple with would have been easy to decide if the jury had been given a special verdict form and required to state what it found with respect to the different elements of the charged offenses.  I've never understood why special verdict forms are not used more frequently.  Yes, they make the jury's job more complicated.  But, in addition to helping sort out Double Jeopardy issues after the fact, they would also force the jury to pay closer attention to each element, thus reducing the likelihood of logical inconsistencies in the outcome.  When I served on a civil jury a few years ago - yes, a law professor was inexplicably permitted to serve on a jury! - we used a special verdict form that required an express decision on each element.  During the deliberations, it became clear that several jurors were prepared at the outset to render a quick plaintiff's verdict, but working through the elements one at a time caused these jurors to focus on weaknesses in the plaintiff's case they had not appreciated at first.  Without the discipline imposed by a special verdict form, I doubt these jurors would have been brought around to see these problems.

Third, I was struck by Yeager's complete discounting of the significance of hung counts: "Hung counts have never been accorded respect as a matter of law or history, and are not similar to jury verdicts in any relevant sense. . . . [T]he fact that a jury hangs is evidence of nothing -- other than, of course, that it has failed to decide anything" (14).  As Justice Scalia observes in his dissent, this seems a considerable overstatement.  A hung jury is surely "evidence" of something: it means that at least one juror concluded the government satisfied its burden of proof and that at least one juror concluded the contrary, and it supports an inference that the case is sufficiently close that reasonable minds may differ on whether the defendant ought to be convicted. 

Moreover, Yeager's reasoning on this score may prove too much.  The majority put it this way:

A host of reasons -- sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few -- could work alone or in tandem to cause a jury to hang.  To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room.  But that is not reasoned analysis; it is guesswork.

Yet, much the same could be said about acquittals.  We don't really know, for instance, whether Yeager's acquittal was a result of confusion, compromise, exhaustion, or nullification.  Ashe v. Swenson assumes a careful rationality behind jury decisions -- an assumption that is not well supported, as I understand it, by the research on jury decisionmaking. I would think the assumption especially dubious in a complicated financial fraud case like Yeager, in which the trial lasted 13 weeks, and the jury had to wade through no fewer than 165 counts.

The majority was trying to show that acquitting intrinsically carries more meaning than hanging in order to reconcile the collateral estoppel rule with the hung jury rule.  The dissenters downplayed the distinction in order to limit the reach of the collateral estoppel rule; indeed, they made clear they thought Ashe to have been wrongly decided.  But seeing the meaning of an acquittal as no less mysterious than that of a hung jury might instead lead to the opposite conclusion: instead of Ashe, we could toss the hung jury rule overboard, precluding retrial of hung counts across the board.  After all, it is only a matter of convention that we see an acquittal as a loss for the government and the hung jury as something else; in either scenario, the government has failed to carry its burden of convincing twelve jurors (or a somewhat smaller number in a few jurisdictions) of the defendant's guilt beyond a reasonable doubt.  Perhaps the government's failure in both scenarios should carry the same Double Jeopardy consequences.

Posted by Michael O'Hear on June 20, 2009 at 03:22 PM in Criminal Law | Permalink | Comments (4) | TrackBack

Friday, June 19, 2009

Beer Law

My love of good beer (and my part-time gig as a home-brewer) means that every now and then I think about designing a course in Beer Law that would explore various beer-related cases and what they tell us about the law.  Leading my draft syllabus so far are the following:

In Craig v. Boren, the Court ruled that governmental gender-based classifications violate the equal protection clause unless the government can prove that its action is substantially related to an important interest.  Applying this rule to the facts at hand, the Court ensured equal access to bad beer regardless of sex by striking down an Oklahoma law that permitted young women between the ages of 18-21 -- but not their young male counterparts -- to buy 3.2% beer.

On the other hand, in Moose Lodge No. 107 v. Irvis, the Court rejected an equal protection challenge to a Moose Lodge's refusal to serve beer (or any other alcohol) to African-Americans.  Pennsylvania's grant of a liquor license to the lodge, the Court held, did not constitute sufficient government entanglement for the Constitution to apply to the denial of service.

Turning to free speech issues, the Court struck down state laws that banned ads featuring the price of beer and other alcoholic beverages in 44 Liquormart, Inc. v. Rhode Island.  It ruled that such bans impermissibly regulated truthful, nonmisleading commercial speech in violation of the First Amendment.

There's a lot we could do with commercial speech, but for now I'll stick with just one more case in this area:  Bad Frog Brewery v. New York State Liquor Authority, in which the Second Circuit considered New York's ban on a beer label's "picture of a frog with the second of its four unwebbed 'fingers' extended in a manner evocative of a well known human gesture of insult."  This ban also fell to a First Amendment challenge, as the panel found that it did not directly or materially advance -- nor was it narrowly tailored to achieve -- the state's substantial interests in promoting temperance and protecting children from profane advertising.  

In one of the few modern-day cases interpreting the 21st Amendment, the Court in Granholm v. Heald struck down state laws that permitted in-state -- but not out-of-state -- wineries to sell wine directly to in-state consumers as state discrimination against interstate commerce in violation of the dormant commerce clause.  (I know, I know, it's about wine, not beer -- but the analysis would apply as well to state laws regulating local microbreweries).

Switching from con law to torts:  Donoghue v. Stevenson marked the introduction of modern products liability approaches to England in 1932.  There the plaintiff poured her ginger beer (I'm stretching the beer concept here) from an opaque bottle, only to watch what appeared to be a decomposed snail fall from the bottle and into her glass.  The House of Lords permitted the plaintiff to sue the beer manufacturer for negligence despite the absence of a contractual relationship between the parties.

That's as far as I've got so far.  I welcome additional suggestions.

Posted by Helen Norton on June 19, 2009 at 05:47 PM | Permalink | Comments (14) | TrackBack

Justice at Guantanamo?

I've just started reading Justice at Guantanamo: One Woman's Oddysey and Her Crusade  for Human Rights, and it provides a wonderfully  human—as well as legal – approach to various detainee issues.  It is written by Kristine Huskey, a friend and a clinical professor at UT-Austin,  who has been to Guantanamo more than 15 times, and was one of the first attorneys to represent Guantanamo detainees.  Among other clients, she has represented Omar Khadr, a young Canadian citizen who was detained at Guantanamo and charged with war crimes.  Kristine also represented the Guantanamo detainees in Rasul v. Bush.

On the Amazon website and in the publicity materials, there is a brief blurb from Cong. Jim Moran which includes the following statement: “Kristine Huskey may have captured our attention with her beauty and her personality, but she captured our commitment to the cause of her clients with her intellect and her courage.”  Frankly, I’m not sure why her beauty and personality have anything to do with the significance of her work in defending civil liberties – and I’m a little surprised that we still need to talk about “beauty” in the context of human rights activism by a woman.  Nonetheless, I don’t hold that against the book, which I absolutely encourage you to read.

Posted by Naomi Cahn on June 19, 2009 at 05:27 PM | Permalink | Comments (1) | TrackBack

DA's Office v. Osborne: Bad Facts Make Tough Cases

I've only had a chance to read the SCt's opinion in DA's Office v. Osborne rather quickly, but I thought I'd share a tentative reaction or two and invite some conversation on the topic. (You can get the opinion here, and Liptak's got a summary of the issues here.)  In this case, the Court's conservative majority declined the invitation to constitutionalize under the Due Process Clause a right to gain access to DNA evidence via a Section 1983 claim. 


I'm not a fed cts scholar so I'll leave aside the issue of whether Osborne ought to have pursued his claim through habeas instead of 1983. (My sense is that Alito's concurring opinion has the better argument as to why it should be done through habeas.)  But getting to the merits, my view is that the unsavory facts of Osborne's case will be used to cabin the scope of the holding. On better facts, and perhaps in a more appealing procedural posture, at least Kennedy will be likely to come around and recognize the rights of the actually innocent in post-conviction scenarios.

Osborne's plausible legal request was hampered, in other words, by the facts that a) he had already been convicted for a subsequent home invasion; b) he had admitted to his participation in the crime during his efforts to seek parole (which put defendants in a tough situation by asking them to accept responsibility); and c) most importantly, his lawyer declined to get more accurate forms of DNA testing during the trial b/c she wanted to take advantage of the imprecision of the DNA testing that was ordered to create reasonable doubt. In other words, she strategically declined more advanced testing (despite her client Osborne's apparent importunations that more sophisticated) because she thought enhanced testing would establish her client's guilt rather than preserve the possibility of a mistaken identity theory that she argued to the jury.

These bad facts and the potential biases created by them made the case a bad one in terms of establishing doctrine, but my sense is that lower courts with more favorable factual situations will at least be able to cabin the thrust of the Osborne case by pointing to the dicta in the majority opinion by Roberts that emphasizes that actual innocence claims are still possible.  This is a relief, for reasons I explain below the fold.
   In my forthcoming piece on Panetti and the future of the Eighth Amendment, I argue that the Court's reasoning in Panetti v. Quarterman commits itself implicitly to both communicative retributivism and negative retributivism.  The negative retributivism commitment in punishment theory basically says the state may not punish a defendant if she is not guilty, and if she is guilty then she may only be punished to the extent her guilt permits the punishment. In the context of doctrine, obviously concerns of finality are allowed to play a role in crafting decision rules for judges and other state actors.  But those concerns cannot preclude reasonable attempts by convicted persons to have newly discovered evidence that is highly probative and was earlier unavailable be considered by the state--or at least, that's what I argue. The problem with Osborne's case is that his facts look uncomfortably close to one where a defendant is trying to, as Justice Alito noted, game the system. (In Panetti, Kennedy was joined by the four moderate/liberals; in Osborne, Kennedy voted with the traditionally more conservative side of the court.) 

My hope then is that litigants better situated than Osborne will be able to access DNA evidence by bringing a Panetti-inspired Eighth Amendment claim--but I don't really have a dog in the hunt regarding whether it's procedurally managed through habeas or 1983. It seems as if the habeas strategy will be more likely to garner votes. As to the substance, whether it's done through the Eighth Amendment or due process, my sense is that the Osborne case will definitely not be the Court's final word on access to DNA testing and that lower courts will be able to work around Osborne based on the bad facts here.  

All that said, I'm curious to hear what Steve and Howard have to say on the procedural stuff, and what your reactions to the case were also.

Posted by Administrators on June 19, 2009 at 03:25 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (3) | TrackBack

Voices from Iran

My fellow Dorot alum, Bari Weiss, from the WSJ oped page was able to elicit some very interesting and powerful reflections from a panoply of voices inside Iran this week. These are on the WSJ oped page today. I should note parenthetically that while my sympathy lies with the challengers to Khamenei and Ahmadinejad, it's not entirely clear to me that Mousavi is a much better option. Thank goodness for the "pesky Zionists"...

'The Fear Is Gone'

  Voices from Iran.


Editor's note: The following are firsthand accounts that were solicited by Journal assistant editorial features editor Bari Weiss. Some were translated from Farsi. Surnames have been omitted to protect the writers.

Don't Accept This Coup

By Kaveh from Tabriz

Ahmadinejad has taken revenge on the students of Iran during these violent days. The regime's aim is to damage universities, since they are the first base of change, movement and protest.  I live in the dorms at Tehran University. I was asleep when Basij militiamen entered my room early Monday morning, demolished everything and started beating us. A man with a long beard broke my notebook and said: "It is destroyed, this book that you were using against Islam and Ahmadinejad."

They beat students more when they saw posters of Mousavi in their rooms. And they carried big knives and guns. They also attacked the women's dormitory next door. The Supreme Leader calls us rioters, but I want to ask him: How can sleeping women in their beds be rioters? Is this the Islamic justice he believes in? President Obama's speech was good; he says that he will support us. He also said that nations must decide the fate of their countries by themselves. I agree with him, but now we don't have any power to change the situation, so we need help and attention. We ask the president not to accept this coup d'etat.

Marching to Freedom Square

By Alireza in Tehran

There is something in the air in Tehran these days. We remain afraid, but we also dare to speak.

I left my home in Tajrish along with my family at 3 p.m. to head to the protest on Monday. We knew that people were supposed to gather in Enghelab [Revolution] Square at 4 p.m. and march toward Azadi [Freedom] Square. From Gisha Bridge onwards, we saw people walking. Cars were blowing their horns and people were flashing the victory sign. I also saw a group of about 20 militiamen with long beards and batons on motorbikes.

My hand was hanging out of the taxi window with a little green ribbon -- the color of the reformists -- tied around my finger. One of the militiamen told me to "throw that ribbon away!" When I refused, 15 people attacked me inside the car. They beat me with their batons and tried to pull me out.

My wife and my daughter who were sitting in the back seat cried and held me tight. I also held myself tight to the chair. As they tried to shatter the car windows the driver went out and explained that he is just a taxi driver, we are just his passengers, and he hadn't done anything wrong. After about five minutes they left us alone.

Soon we joined the crowd at Enghelab Street. What I saw there was the most magnificent scene I have ever witnessed in my life. The huge numbers of people were marching hand-in-hand peacefully. There were no slogans being shouted. Hands were held up in victory signs with green ribbons. People carried placards which read: silence. Young and old, men and women, rich and poor were marching cheerfully. It was an amazing show of solidarity. I was so proud.

Enghelab Street, the widest avenue in Tehran, was full of people. Some estimated that there were one to two million people there. As we marched, we passed a police department and a Basij base. In both places, we could see fully-armed riot police and militiamen watching us from behind fences. Near Sharif University of Technology, where the students had chased away Mahmoud Ahmadinejad a few days before, Mir Hossein Mousavi (the reformist president-elect) and Mehdi Karrubi, the other reformist candidate, spoke to the people and were received with cries of praise and applause.

My family and I had put stickers on our mouths to represent the suppression of the regime. Other people carried signs. One quoted the national poet Ahmad Shamlu: "To slaughter us/why did you need to invite us/to such an elegant party." Another made fun of the government's claim that Ahmadinejad won 24 million votes: "The Miracle of the Third Millennium: 2 x 2 = 24 million." Others just read: "Where is my vote?"

When we finally arrived at Azadi Square, which can accommodate around 500,000 people, it was full. We saw smoke coming from Jenah Freeway and heard the gunshots. People were scared but continued walking forward.

Later, my sister told me that she saw four militiamen come out from a house and shoot a girl. Then they shot a young boy in his eye and the bullet came out of his ear. She said that four people were shot.

On my way home at around 2 a.m. I saw about 10 buses full of armed riot police parked on the side of the road. There were scattered militiamen in civilian clothes carrying clubs patrolling the empty streets. And in Tajrish Square I saw a boy around 16 holding a club, looking for something to attack.

At Ahmadinejad's "victory" ceremony, government buses transported all his supporters from nearby cities. There was full TV coverage of that ceremony, where fruit juice and cake were plentiful. At most, 100,000 gathered to hear his speech, including all the militiamen and soldiers.

We reformists have no radio, no newspaper, and no television. All our Internet sites are filtered, as well as social networks such as Facebook. Text messaging and mobile communication were also cut off during the demonstrations. And yet we had hundreds of thousands, if not millions.

The state-run TV station has announced that riot police will severely punish anybody that demonstrates. Ahmadinejad called the opposition a bunch of insignificant dirt who try to make the taste of victory bitter to the nation. But his remark was answered by the largest demonstrations ever.

Older people compared Monday's gathering to the demonstrations of 1979 which marked the downfall of the Shah's regime. They even said that this event was larger.

Democracy is a long way ahead. I may not be alive to see that day. With eyes full of tears in these early hours of June 16, I glorify the courage of those who have already been killed. I hope that the blood of these martyrs will make every one of us more committed to freedom, to democracy and to human rights.

Women on the Front Lines

By Negin in Tehran

Friends from all over the world call my cellphone nonstop to make sure we're safe. The connection is either cut or so bad that we have to guess what the other person is saying. But the other day one call was very clear: My mother was wondering if I could help her with her computer. She recently joined Facebook and can't stand the fact that her favorite site is filtered.

She's stopped complaining that my father follows the news day and night. If they're not outside in the middle of the city, my parents are both glued to the television.

Until a few days ago most people believed that this protest was just the voice of suppressed students and youngsters. But now we know this isn't true. "No fear, no fear: We are together." This is what we heard today from millions of people from different generations in Tehran.

The number of people that participated in the demonstration surprised everyone, but what has fascinated me is their variety. At the beginning I thought this was going to be a fight between the lower class and the middle class. What I saw on Monday changed my mind completely. I saw many women, young and old, covered head-to-toe in black chadors shouting and chanting among the demonstrators and joining the young girls who were sitting on the ground in the middle of the street to stop the Basij militia from walking inside the crowd.

That image will never be wiped away from my mind. The women on the front line with their loose colorful scarves had opened their arms, ready to be killed, while others were beaten by the Basij on the side of the road.

People want to be heard and supported by the rest of the world. They were sending messages to the West with their cameras. They were calling on Obama and Sarkozy to demand that the Free World not recognize this government. I saw a few women shouting: "Now it's your turn to support democracy and human rights."

"The fear is gone. Nothing seems to be an obstacle anymore. They can filter all the Web sites and shut down the Internet, SMS service, and mobile phones, but they cannot shut our mouths." This is what I hear all the time.

Late at night everyone wants to share their experience with others. Telephones don't stop ringing. Sara, my girlfriend, called me half an hour ago. She had heard gunfire near her house and had seen bloodied people. Although she was panicked and needed to talk to someone, she hung up the phone to go onto her roof and shout. Within a few minutes I heard my neighbors shouting "Allahu Akbar" (God is great) from their balconies as well.

I remember how sometimes I used to be irritated by the loud prayer call which starts with the same phrase, Allahu Akbar. Now this phrase has turned out to be the most beautiful one.

After a while I called back my mother to help her with her computer problem. She didn't answer. Perhaps she is on the roof too.

This Government Is a Lie

By Soudeh in Tehran

I have never seen such a huge number of diverse people protesting in Iran. People are really angry and refuse to be patient. Ahmadinejad's government challenged our honor. How can we trust anything when the government perpetrates such a big lie?

They don't have pity on anyone. Some of the police cannot speak Farsi. I saw one of them beating a man as he cursed in Arabic. People say they are from Hezbollah.

These men barge into homes and threaten people by calling their families. And they are savage against peaceful demonstrators.

Hospitals are full of people injured by the Military Guard, yet the Supreme Leader of Iran called us seditious. We just want the right to a real vote.

This is the first time an American president did not interfere with Iran's situation -- and it's a good thing. In the past, U.S. support for the protestors led the Iranian government to punish the people more, accusing them of being spies for or taking money from the U.S.

But I think Obama must hear the message of the protests: Ahmadinejad's government is a lie.


A Grenade Exploded At Our Door

By Shahin in Tehran

It was about 1:30 a.m. when I heard windows and doors on our street being smashed one after another. My parents had gone to sleep an hour earlier and I was surfing the Internet to see the latest reactions to Monday's demonstration of Mousavi supporters.

The people from our neighborhood who protested in the streets had already gone back home, so I was scared for them.

The smashing sound came closer and I could hear that my family's apartment door was being attacked. I was really frightened because I had heard that the people who were breaking into houses at night were the plainclothes police who support Ahmadinejad.

I was pacing around my apartment when I heard a massive explosion that woke up everybody in our apartment complex.

I rushed downstairs in the dark with my neighbors as our complex was being attacked. One of them said "Man! They exploded a grenade just few feet from me. Can you see the blood dropping from my fingers? I can barely hear anything." An old woman on the first floor said the plainclothes forces broke the front porch, knocked on some doors and left.

We learned that the sounds of windows being broken were coming from three neighboring apartment complexes and garages. My injured neighbor had gone to check the source of the sound just when the grenade exploded.

In the morning, I checked out the damage myself and took pictures of smashed cars, windows and doors. I also found some bullet casings left in front of our house. I quickly posted them on Facebook where I received lots of comments from others who had the same experience. One of them commented "Yours was just 23 cars. How about our four-story parking garage that now looks like a junkyard?!"

Mousavi's supporters wanted the crowd to stay calm and stage a peaceful demonstration, so as not to give Ahmadinejad's supporters a reason to resort to violence.

State-run TV asked everybody to gather in Vali-asr Square to protest against Mousavi's supporters who the government accused of rioting late into the night. Mousavi's supporters planned on having their second peaceful demonstration in Vali-asr square on Tuesday but cancelled it right after this TV announcement. But despite the announcement, I saw a huge crowd protesting either on foot or in their cars all the way up Vali-asr Street, Tehran's longest street. People are enraged by the lies.

As an optimistic young Iranian who voted in all the presidential elections since 1997, I feel strongly that all those who voted for anyone but Ahmadinejad were insulted badly. I believe some in the ruling elite have come to realize that supporting Ahmadinejad was not worth an uprising in every city.

I hope that the Guardian Council can fix this through a recount or void the whole rigged election.


It's Like an Invasion

By Setareh in Tehran

In the past few days, I've participated in several rallies. During all of the protests, plainclothes militiamen would enter the crowds and manipulate people into dispersing by telling them that if they stayed the security forces would shoot them.

All satellite signals have been jammed, SMS texting has been cut off since election day, and land lines have been disrupted. Though it takes about 20 minutes to download Yahoo's Web site in Tehran, in other cities the Internet has been completely shut down.

The regime is also using psychological warfare to keep people in their homes, calling protestors "hooligans" and constantly warning parents to keep their sons and daughters inside so they don't get killed.

But we are nonviolent. It is the Basij who attack protestors and set cars on fire. They do this so that the security forces have a pretext for using harsher tactics on the demonstrators. The security forces have knives, body armor, tasers and mace. It's as though Iran is under invasion by a foreign government. They have killed many university students in the past few days.

Posted by Administrators on June 19, 2009 at 12:25 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Thursday, June 18, 2009

The Soccer-Liking Lawprof

I’m a fairly big sports fan, and my enthusiasm includes (though is by no means limited to) serious appreciation for soccer on both the club and international levels. Liking soccer is a bit of a rogue taste in the U.S., where all manner of critics from reasonably smart essayists like Chuck Klosterman to brain-dead blowhards like Jim Rome are eager to go on at tiresome length about why the sport is evil and awful. (The latter has always puzzled me. There are sports I find insufferable, like golf, but I can’t imagine wasting any time obsessing or pontificating about why others don't share my distaste for it. Anyway.)

Because a preference for soccer is a tad iconoclastic, when the U.S. soccer fan runs into a kindred spirit, there’s always a distinctive bond produced by discovering a rare commonality (not unlike, one imagines, what two Kansas City Royals fans would experience if they ran into each other in Seattle). And since I’ve entered the law-teaching world, I’ve been interested to see what the overlap is between the two populations. I’ve been fortunate to have good soccer conversations with lawprofs David Schleicher, William Birdthistle, Graeme Dinwoodie, and Mike Madison (who has done some really good soccer writing over at Madisonian), but I’m sure there are others out there. So in the great Prawfs info-aggregation tradition, identify yourselves, soccer-liking lawprofs! This is mostly to satisfy my own curiosity, but may have functional value as well. If there’s ever a Champions League or World Cup game going on during a conference, having a list will help organize a group outing for game-watching purposes.

Posted by Dave_Fagundes on June 18, 2009 at 05:25 PM in Sports | Permalink | Comments (9) | TrackBack

Wednesday, June 17, 2009

How We React to Racism

In discussing last week's shooting at the Holocaust Museum, Charles Blow's latest NYT column cites a recent study that deserves our attention if we, as a society, are truly committed to addressing racism.

In this study, authors Kerry Kawakami, Elizabeth Dunn, Francine Karmali, and John Dovidio sought to examine the extent to which folks' attitudes about racism aligned with their actions.  To this end, the study first assigned participants to one of two groups:  "experiencers" (some of whom were exposed to others' racist behavior firsthand) or "forecasters" (who did not witness any racist conduct first-hand, but some of whom were presented with a detailed description of such behavior and then asked to predict their reactions).  Each group also included a set of control subjects who were not exposed to any racist conduct.

More specifically, some of the experiencers were exposed to racist actions while they thought they were still waiting for the study to begin:  a black researcher bumps into a white researcher while leaving the room, after which the white researcher makes a racist comment (ranging from "I hate it when black people do that " to "clumsy [n-word]").  When the black researcher returns, the subject is asked to choose one of the two researchers as a partner in an upcoming exercise. 

Only 17% of the "forecasters" predicted that they would choose the white researcher if confronted with such behavior, compared to 68% of forecasters who were presented with a scenario that included no racist conduct. 

In contrast, sixty-three percent of the experiencers who actually witnessed the racist comment first-hand nonetheless chose the white researcher as their partner, compared to 53% of experiencers who were exposed to no such comment.

The authors conclude that "although people anticipate feeling upset and taking action upon witnessing a racist act against an out-group, they actually respond with indifference. . . .  [D]espite current egalitarian cultural norms and apparent good intentions, one reason why racism and discrimination remain so prevalent in society may be that people do not respond to overt acts of racism in the way that they anticipate:  they fail to censure others who transgress these egalitarian norms.  These findings provide important information on actual responses to racism that can help create personal awareness and inform interventions, thereby helping people to be as egalitarian as they think they will be."

Blow put it even more starkly: "[G]ood, decent people are by far the majority, and we dare not be silent. There can be no family too close and no friend too dear for hatred to go unchecked. Allowing it to do so diminishes the better, more noble parts of ourselves."

Posted by Helen Norton on June 17, 2009 at 05:34 PM | Permalink | Comments (1) | TrackBack

Cognitive Bias and Innocence Commissions

I received word last week of the official demise of the Wisconsin Criminal Justice Study Commission, a law-reform organization of which I had been a member for two years. The Commission emerged from heightened state-wide concerns over wrongful convictions following the DNA-based exoneration of convicted rapist Steven Avery in 2003. The Commission, which was jointly sponsored by the state Department of Justice, the state bar, and the law schools at Marquette and the University of Wisconsin, included prosecutors, police officers, criminal defense lawyers, law professors (I was one of four), and community and crime victim representatives. We had a staff, a budget, and quarterly day-long meetings at which we had fascinating discussions of important issues ranging from the quality of the state crime lab to the underfunding of court-appointed counsel to police interrogation tactics to the use of jailhouse snitches. The vision behind the Commission was that consensus reform proposals emerging from a diverse body of experts and leading practitioners might actually get the state legislature’s attention.

In the end, though, none of the hoped-for consensus reform proposals ever emerged.  The group was disbanded when it became clear that the prosecutors were unwilling either to agree to any of the reforms pushed by the defense lawyers or to put forward their own proposals for improving the criminal justice system (besides increasing prosecutor pay).

It was disappointing to see the effort fall apart, and I have been giving some thought as to why it failed. 

For one thing, Avery himself – the man who had been the poster child for the innocence movement in Wisconsin – committed a brutal murder a couple years after his release from prison.  Needless to say, this took much of the wind out of the reform movement’s sails.  (I wonder if there are broader lessons here, in fact, about the risks of criminal justice reformers relying too much on the seemingly compelling stories of exonerees – many of whom ended up as suspects in the first place because of checkered backgrounds.  I know Avery is not the only exoneree who has gotten into trouble after being released.)

Another difficulty is that Wisconsin (like just about every other state right now) is experiencing great fiscal pressure, and all of our agencies are fighting tooth and nail to hold onto their budgets.  In truth, our prosecutors are underpaid, and I can understand their resistance to any reform (e.g., increasing Wisconsin’s worst-in-the-nation compensation rate for court-appointed counsel) that would require a commitment of the state’s dwindling tax resources.

The size of the Commission was another problem.  I appreciate the benefits of a broadly representative group of two or three dozen members, but size and diversity can be a real disadvantage when what is really needed is deal-making between two interest groups, the prosecution and defense bars, that are accustomed to adversarial interactions.  With a smaller commission, it might have been easier to overcome the mutual distrust between the groups.  Certainly, the transaction costs of cutting a deal would have been much less.

But what strikes me most of all about the prosecution-defense breakdown was the extent to which it turned on competing accounts of cognitive bias. 

I am convinced that both sides participated in good faith in the Commission’s deliberations.  Those on the prosecution side genuinely wished to avoid wrongful convictions and listened patiently to the information and arguments presented in support of proposed reforms.  I heard no accusations that either side was intentionally seeking to subvert justice or otherwise advancing a hidden agenda.  Rather, each side was convinced that the other suffered from a fatal cognitive blind spot.

On the defense side, the view was that police and prosecutors did not appreciate their own subconscious tendencies to ignore or downplay the significance of exculpatory evidence (or to exaggerate the significance of dubious inculpatory evidence) once they had settled on the identity of a perpetrator.  This raised particular concerns, for instance, with respect to the sharing of case information with crime lab technicians, whose evaluation of physical evidence might be affected by the knowledge of police or prosecutor suspicions.  The defense lawyers (and, I think it is fair to say, the academics) on the Commission were convinced that confirmation biases systematically skewed the operation of the criminal justice system, such that wrongful convictions, while not routine, were still of such frequency that significant reforms were warranted.  (I should note Commissioner Keith Findley’s Wisconsin Law Review article on cognitive bias in criminal cases as an insightful, and far more nuanced, statement of this basic position.)

On the prosecution side, the view was that the defense lawyers and professors were making too much of a few high-profile DNA-based exonerations that were not truly representative of the operation of the criminal justice system.  Police and prosecutors felt that defense-side concerns were speculative.  In the absence of hard evidence of systemic failure, they saw no reason not to continue to rely on largely unconstrained police and prosecutor discretion to screen out innocent suspects. 

DNA exonerations represent only the tiniest fraction of the total number of criminal convictions obtained over the past few decades, and confirmatory testing is not possible as to the vast majority of these convictions.  The exonerations are like a chunk of ice visible on the surface of the ocean.  We cannot know for certain whether it is just what it appears to be, or whether it is the tip of a much larger number of wrongful convictions.  But whether the exonerations are an ice cube or the tip of an iceberg makes all the difference in deciding whether to implement costly accuracy-enhancing reforms in a time of unprecedented budgetary pressure.

In this state of uncertainty, prosecutors and defense lawyers -- again, I think, acting in good faith all around -- filled in the crucial knowledge gap in predictably self-serving ways.  Beginning with these self-serving premises, each side perceived the other to be suffering from an unrecognized cognitive bias.  Further deliberations were futile when each side was convinced the other just did not get it.

That, anyway, is my take on the Wisconsin experience.  I know that many other law professors have served on similar innocence commissions in other states, and I would be interested in hearing about their experiences.

Posted by Michael O'Hear on June 17, 2009 at 05:22 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Head Above Water

Dear Friends,

I am reappearing in the bloggosphere after a while of silence. Dan, Ethan and all our prawfs friends have been patient and kind enough to allow me a sort of leave (are there formal sabbaticals for bloggers?) in a year of baby, tenure, book, travels and a million other things that don't seem as significant right now.

Natalie Amir-Lobel was born about nine weeks ago and all is going wonderfully well. Seems like third child is a bit easier, to those of you considering it. I saw some of you at AALS last week and others at LSA two weeks ago. Both conferences were short travels for me, without baby but with pump. Life is interesting with three little ones, that's for sure. Next week we are all traveling to Israel and Europe for a large part of the summer. I am excited about spending time again with my fabulous colleagues at Tel-Aviv University, and if you happen to be in the area, I will be giving a talk there June 24 on Innovation and Employment Intellectual Property. Here is a post about my love of Tel-Aviv. I will post soon about my research plans for the summer and about the Europe travels.



Posted by Orly Lobel on June 17, 2009 at 01:11 PM | Permalink | Comments (1) | TrackBack

French Fries

Shorter MoDo:  Obama should eat more steamed fish and organic vegetables so I can mock him for his effete eating habits.

Posted by Eduardo Penalver on June 17, 2009 at 09:23 AM | Permalink | Comments (1) | TrackBack

Tuesday, June 16, 2009

NY Times on Sotomayor Property Rights Case

Adam Liptak had a story in yesterday's Times on the Didden v. Port Chester case, in which the Second Circuit, by summary order (and with Judge Sotomayor on the panel), affirmed the district court's dismissal of a complaint brought by an aggrieved developer/landowner whose land was condemned as part of a redevelopment project in the Village of Port Chester.  The project involved the redevelopment of what the court described as the "blighted waterfront and downtown area" in that town.  The town designated a particular developer to carry out the redevelopment plan, using the power of eminent domain to acquire parcels where voluntary agreements with landowners could not be reached.

The plaintiffs in the case alleged (among other things) that the condemnation of their parcel violated the Fifth Amendment's "public use" requirement.  The trial court dismissed that challenge on statute of limitations grounds.  The Second Circuit affirmed on both the statute of limitations and under Kelo v. New London, the case holding that economic development constitutes an adequate "public use" to justify the taking of property through eminent domain. 

At first glance, the facts of the case sound like Kelo redux, except with a developer on the receiving end of the condemnation instead of elderly homeowners.  But there is a wrinkle.  Language in Kelo left the door open for challenges to condemnations where the stated reason for the condemnation (in this case, economic redevelopment) is not the actual reason for the exercise of eminent domain -- a sort of pretext challenge to condemnations.  The plaintiffs in this case alleged that, after Port Chester had authorized the condemnation of land within the redevelopment district but prior to the actual condemnation of their parcel, the designated developer demanded an $800,000 payment from the developer/landowner to walk away from his power to condemn the parcel.  The plaintiffs (and a number of conservative commentators) argue that this offer put the condemnation squarely within the Kelo pretext exception.  I disagree, for reasons I'll explain below the jump.

Liptak's story is pretty one-sided, and he has come under criticism for it (some of it deserved, I think) by Media Matters.  Media Matters takes particular issue with the fact that the only experts Liptak quotes in the story are Ilya Somin and Richard Epstein, both of whom signed onto an amicus brief asking the Supreme Court to review the case (it denied cert).  I have no beef with Liptak's choice to go to Somin and Epstein.  They are both very smart, well-regarded scholars with obvious expertise in this area.  But their ideological commitments are also well known.  I think Liptak was right to use them as sources, particularly because of their extensive familiarity with the case. But, on a charged topic like this one, which has become a major talking point for conservative opponents of Sotomayor's confirmation (see this op-ed in the Washington Times, for example, which also relied extensively on quotes from Epstein and Somin), it would have been nice to see him to offer something to balance the Epstein/Somin take on this case, either his own independent analysis (which was sorely lacking in the piece) or quotes from other legal experts not so clearly identified with a particularly libertarian-conservative approach to private property rights.

While I think there are some significant problems with the trial court's opinion, and while I disagree with the Second Circuit's use of a summary order, the case does not seem to me to be such a clear slam dunk for the plaintiffs that it should cause Sotomayor any serious trouble.  The Liptak story made a great deal of the demand for the $800,000 payment, and rightly so. But the fact may be less obviously damning than initially appears to be the case.

The demand for the payment was made, as I understand the facts, by the developer granted by Port Chester the exclusive power to carry out redevelopment within the designated redevelopment area.  That area included the plaintiffs' parcel.  Now, I take it that the redeveloper agreed to take on his role because he stood to make a tidy profit from redeveloping the land within the redevelpoment area pursuant to the comprehensive plan and empowered with the ability to assemble parcels through the use of eminent domain.  But the redeveloper certainly looked at the economics of the entire plan, and the profit to be earned from the plan as a whole.  That profit would not come from every parcel or every individual element of the overall plan, but on the accomplishment of the redevelopment plan as a whole

In the redeveloper's negotiations with the plaintiffs, the plaintiffs indicated that they wanted to redevelop their parcel within the redevelopment area (as part of a project that would have included some land they owned outside the redevelopment area) themselves by putting in a CVS store, keeping the profits from that project for themselves as well.  It appears to have been in the context of these negotiations that the redeveloper, who wanted to put a Walgreen's on the site, asked for the $800,000 payment in order to forgo condemnation and as his condition for allowing plaintiffs to, in effect, remove their parcel from the larger redevelopment area. 

The plaintiff quoted in the story called this extortion. But it's not obvious to me that this is the best way to characterize the dynamics of the situation.  If the redevelopment of the plaintiffs' parcel was one of the elements on which the redeveloper stood to make a substantial profit, foregoing his own monopoly right to redevelop that parcel (a right given to him by the city when it designated him the developer for the redevelopment project) would have altered (from his perspective) the economics of the larger project as a whole.  In other words, if I'm reading the facts correctly (and I'm sure Ilya will correct me if I'm wrong), allowing another developer (the plaintiffs) to earn the profits from that parcel would have represented a significant opportunity cost to the redeveloper, and, as such, his demand for some compensation for walking away strikes me as less sinister.

In effect, then, what the plaintiffs seem to have been challenging in the case was not the redeveloper's demand for $800,000, but the inclusion of their parcel within the redevelopment area subject to the redeveloper's monopoly on redevelopment in the first place.  That was the decision that gave the redeveloper a financial stake in what happened on their parcel.  But that determination had been made several years earlier, and the plaintiffs had not challenged it.  On the merits, I think it would have been a pretty weak claim.  Under Berman, the inclusion of a particular parcel within a redevelopment area is subject to rational basis review only.  And for various reasons it can be perfectly rational to include within a redevelopment plan parcels that might have been developed on their own, even in the absence of the state's intervention. Maybe there are facts I'm not aware of that made the inclusion of plaintiffs' parcel improper in some way, but I didn't see any in my reading of the district court's two opinions or the New York Times story. 

But that's sort of beside the point in this case.  The trial court held that, because the plaintiffs did not challenge their inclusion within the redevelopment area within the applicable statute of limitations, their claim was time barred, and the Second Circuit affirmed on that ground.  I'm inclined to agree.  In the NY Times article, the plaintiffs argue that they could not possibly have brought their suit until the demand for payment was made, but that's not quite right.  If the demand for payment is seen as a legitimate request for compensation for the redeveloper's opportunity costs resulting from what amounts to a demand by the plaintiffs for a post hoc redrawing of the redevelopment area's boundaries (depriving the redeveloper of his monopoly right to develop plaintiffs' parcel), then the plaintiffs' complaint is really, at the end of the day, about those boundaries, and not about the redeveloper's request for compensation for changing the economics of his involvement in the project after the fact.

Now, many people will find it unseemly that in Port Chester's project the power to condemn has, in effect, been delegated to a private developer who stands to profit from its exercise.  But Kelo permits that.   There's no hint in the facts that the redevelopment project in Port Chester was actually some sort corrupt private giveaway to the designated redeveloper.  Plaintiffs contend that, even though the developer's actions were consistent with the redevelopment plan and even though they didn't overtly challenge that plan itself, the redeveloper's demand for payment means that his use of eminent domain with respect to their particular parcel was pretextual.  But I think my analysis above shows why that is not necessarily so. 

If Kelo permits the private benefit from the exercise of eminent domain, I'm not sure I see the problem with the private beneficiary demanding compensation to forgo the condemnation action that confers it when, as here, condemnation is justified under the plan and forgoing condemnation would not undermine the comprehensive plan (e.g., because the person paying off the redeveloper agrees to implement the plan).  In other words, and somewhat ironically, the fact that the plaintiffs wanted to put in a CVS and the redeveloper wanted to put in a Walgreens undermines, not strengthens, the plaintiffs case, in my view, since it legitimates the redeveloper's willingness to bargain.  From the standpoint of the plan's execution (and the public interest in the project), either proposal would have been (more or less) fine.  In fact, forbidding such deals strikes me as unwise on policy grounds, since it reduces the flexibility available to both redevelopers and condemnees. If someone other than the redevloper thinks she can implement the plan more efficiently and still turn a profit, then she should be allowed to bargain with the redeveloper to buy his right to undertake the project. Similarly, if private implementation of the redevelopment plan passes constitutional muster, as it can under Kelo, then the private redeveloper should be permitted to "subcontract" out the actual implementation of the plan in exchange for a fee.  The District Court was therefore right that the brute fact of the demand for payment should not give rise to a constitutional violation or even (without more) a presumption of impropriety.

This is not to say that there might not be situations in which the redeveloper, even one acting consistently with the redevelopment plan, acts in such a lawless way that his behavior gives rise to some cause of action, either under a Kelo pretext analysis or, more likely, under a due process analysis.    And this is where I think the District Court's cursory analysis falls short.  That's not to say that it reached the wrong result, but, as I think the Institute for Justice's amicus brief on appeal nicely explains, the District Court's logic on this point was potentially far-reaching and troubling.  A thorough Second Circuit opinion would have been a nice corrective, but, at the end of the day, the bottom-line result the panel reached was probably the correct one. (And if overuse of the summary order were disqualifying for a Supreme Court nominee, no Court of Appeals judge could make it through confirmation.)  At a minimum, however, the facts in this case, and their interaction with the applicable law, appear to be far more complex than the NY Times article suggests.

Posted by Eduardo Penalver on June 16, 2009 at 01:12 PM | Permalink | Comments (2) | TrackBack

Monday, June 15, 2009

Who's afraid of offensive speech?

The pre-argument gag rule that the Court imposed in FCC v. Fox Television earlier this term, as described in Jay's post is appalling. If the words "fuck" and "shit" (see, no euphemisms here) are too unseemly for the Court's "hallowed," doesn't that effectively prejudge the question of their constitutional and legal status? How can the Court genuinely evaluate the words as a legal matter if the Court cannot even utter them or hear them uttered? It would be as if the Court were deciding whether a movie is constitutionally protected without watching the movie or discussing what is going on in the movie.* Or evaluating whether some photographs should be admissible without viewing or discussing what is depicted in those photos. Or evaluating whether racist or sexist words should be protected without discussing these words and their meaning and their context.

It is precisely within the "hallowed" walls of the courtroom (and the classroom, I would add) that we can and should truly deliberate and reason about how we should understand these matters, openly mentioning and discussing things that we might not (or should not) mention in society itself. The courtroom is the last place in which anything that is the subject of a legal dispute should be deemed too unseemly for full discussion and consideration, which necessarily presumes that the unmentionable must be mentioned.

  • Justice Douglas famously refused to watch the movies in the Court's obscenity cases, on his belief that it really did not matter what was in the movie because it was constitutionally protected. And I suppose we could criticize him for prejudging matters, just as we would if Justice Scalia refused to watch the movies because regardless of what was depicted, it was obscene. The difference, it seems to me, is that Douglas was not saying that the movies are OK (or potentially OK) for society at large but inappropriate within the courtroom because the courtroom is somehow "cleaner" than the hurly-burly of daily conversation.

Posted by Howard Wasserman on June 15, 2009 at 07:06 PM in First Amendment, Howard Wasserman | Permalink | Comments (2) | TrackBack

Supreme Prudes

Remember back in the fall when the Supreme Court heard oral arguments in the so-called (by me, anyway) "fuck and shit case"?  The case involved a challenge by various television broadcasters to the FCC's relatively new practice of fining "fleeting expletives," like when Bono said "fuck" at the Golden Globes or Nicole Richie said "Have you ever tried to get cow shit out of a Prada purse?  It's not so fucking simple" at the Billboard Music Awards.  The most interesting thing about the oral argument  was that nobody--not the Justices, not the lawyers, nobody--said "fuck" or "shit."  Instead the lawyers used euphemisms like "the f-word" or "the f-bomb."  Awesomely, Justice Scalia made up a euphemism for "fuck" right in the middle of the oral argument, saying to counsel at one point, "Don't use golly-waddles instead of the F-word."  This "golly waddles" reference attracted a lot of attention in the blogosphere, and I expect that my own investigative contributions to the discourse--interviewing language expert Steve Pinker about the phrase's lingustic origins and ex-porn-screenwriter Eric Spitznagel about the phrase's erotic potential--will soon be earning me my first Pulitzer.

Anyway, the case is in the news again.  Not because of how the Court actually decided the case (it held that that the FCC had not violated the Administrative Procedure Act by changing its position on fleeting expletives without sufficient justification and explanation; the Court was not asked to consider the first amendment arguments in the case, which will be addressed by the second circuit on remand) but because it turns out, according to Justice Ginsburg, who made the revelation at a speech she delivered last Friday, that the reason the lawyers did not say "fuck" or "shit" during the oral argument was because "
the lawyers were alerted that some of the justices might find that unseemly, so only the letters 'f' and 's' were used in our court."  Got that?  Some of the justices thought it would be "unseemly" for the words "fuck" and "shit" to be used within the hallowed chambers of the marble palace, and so the Court (probably through the Chief Justice) told the lawyers to use euphemisms instead.  Yeeks.

Ginsburg did not reveal which Justices thought it would be unseemly to have to hear these awful, horrible words.  Nor was there any indication that the justices had instructed the lawyers to use the phrase "golly waddles" instead of "fuck." (Wouldn't that have been glorious?)  So, one question that naturally comes to mind is which justices are most likely and least likely to have been the ones to have issued the order not to say "fuck" and "shit"?  Moreover, one wonders whether this issue will make it into the Sotomayor confirmation hearings in July.  Should the Senate Judiciary Committee ask her point blank if she would mind it if a lawyer said "fuck" in the courtroom?  Or what she thinks of "golly waddles" as a possible euphemism?  I hope these issues come up so much I can hardly stand it. 

(Cross-posted, more or less, on Holy Hullabaloos)

Posted by Jay Wexler on June 15, 2009 at 08:49 AM in Jay Wexler | Permalink | Comments (4) | TrackBack

Commenting on Commenting

I was a commentator at a really great conference last week at GW law school.  The conference explored a variety of issues relating to software and business methods patents, with wide variety of views.  I commented on three interesting papers relating to whether business methods should be patentable subject matter - the papers approached the question from very different angles.  I recently published an article on this topic in the Tennessee Law Review, so this was a good panel for me to comment on. I really enjoyed the experience and learned a lot.

But that's not the point of this post.  I wanted to write a little bit about the commenting process.  This is the second time I've been a commentator.  I've been to other conferences that had commentators, but I get the sense that few conferences use them - likely for time reasons.

So why have commentators?  What do conference participants get? How about commentators? More after the jump...

There is probably some long history about commenting from other fields that has been extended to the law discipline.  I can imagine that commentators would be important in any empirical field, because presentations of data are necessarily opaque; a commentator can comment on the quality of data, the choice of analytical methods, and concerns about conclusions one might draw from the results. If there is such a history, I don't know about it, but maybe a reader can comment. 

So, I look at commentating in law conferences ahistorically, and I think that many of my speculated rationales apply to legal scholarship.  Comments on empirical legal scholarship would have the same benefits as any other empirical field (and perhaps more, if you're skeptical about empirical legal scholarship).  But what about theoretical work?  I think one might want commentators here, too, to frame arguments within a broader literature, point out potential theoretical flaws, and present alternative viewpoints.  If the commentator is in the relevant industry rather than academia, the commentator can also bring "real world" perspective to the various projects.

So, why have commentators rather than rely on the Q&A period after the presentations?  I can think of a few reasons.  First - and I know this is a shock - presenters tend to use more than their alotted time, squeezing out Q&A time.  Commenting time is built into the schedule, and you get feedback no matter how far behind you get.  Second, on panels with multiple speakers you might not get Q&A about all topics, so the commentator can make sure each paper gets attention.  Third, and related, the commentator has read the paper while the audience often has not.  This allows the commentator to address important points that might not have been presented and to head off obvious questions answered in the paper.  This leads to Fourth - another shocker - questions and comments are often much longer than their probative value.  Commenting gets to the point, with short comments that might take several minutes to ask in question form.

From these points, the value to the participants of the conference becomes relatively clear.  The presenters get someone who commits to reading the work in providing thoughtful commentary.  That could be done privately, I suppose, but it's a lot harder to get people to do a thorough job if they aren't presenting. This conference is a case in point.  I had already downloaded one of the articles from SSRN and skimmed it (and even sent a brief note to the author), but my commentating duties caused me to read the article carefully and keep detailed notes that I shared with the author.

The audience gets to hear some (hopefully cogent) thoughts about the works presented, which hopefully also focuses the Q&A.  I frankly wonder whether commentating is as useful for the audience as for the presenters.  I was split 50/50 on the comments I heard from others. All were good, but only some comments really illuminated the topics at hand (more on that below with commentating style).  I guess you can't always bat 1.000.

So what does the commentator get from all this?  I can tell you that it is a lot of work.  You often get the papers last minute, if at all.  The first paper I commented on was essentially a book, and the three articles I read for last week were substantial. Like most academics, I spent a lot of time thinking about the issues not only for the pursuit of knowledge, but also so that I wouldn't look like an idiot.  Perhaps the two goals are one and the same.

There are upsides, though.  The first is public visibility - I had been an academic for about 2 months before I got invited to the first one - based on a paper I published nearly a year earlier.  There was no way that I would get invited to present the paper, but commenting allowed my to get some visibility for that paper.  Indeed, an expanded version of the comments were just published as a very short essay.  Though few have downloaded it (nod, wink - show me some SSRN love), I think it makes some really good points that will add to the literature.

In short, you can't get invited to present at every conference, so commenting is a good way to go, present, meet people, see friends and colleagues, and learn without doing so.  If the conference can pay your way, so much the better.

Another benefit to the commentator is genuine learning.  I learned a lot about alternative theories about the way I see the world in reading all of the papers (some of which I might not have otherwise read), and one of them formed the basis for a portion of a book chapter I recently wrote.  I would not have had such a detailed knowledge of the theory if I hadn't been a commentator.

One last point about commenting style - I think how people comment varies greatly.  The industry folks I've seen tend to focus on whether or not the theories presented in the papers are reflected "on the ground," though some give a much academic style feedback.  I think both are really valuable.  Some give pointed feedback to each presenter, which I think works as well, especially in the part about preempting questions. 

For my part, I've tried to coalesce the papers into some broader theme or to make some broader points about the work, such as fitting it in with a broader literature (which just so happens to coincide with my view of the world - go figure). Whether I've succeeded is a matter of taste, I suspect, though you can read my comments and tell me what you think (nod, wink).

Posted by Michael Risch on June 15, 2009 at 08:10 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Sunday, June 14, 2009

Introducing Tablet

One of my favorite gateways to Jewish cultural and literary trends over the last few years has been via Nextbook, which I've linked to repeatedly here at Prawfs (and also on Facebook). Happily, Nextbook has been re-branded and re-launched as Tablet, edited by Alana Newhouse and assisted by a cast of wonderful, quirky, and thoughtful writers (including former Prawfs guest Jay Michaelson).  You can still find the amazing collection of books published by Nextbook over here, but for a daily fix, I highly recommend adding Tablet's blog, The Scroll, to your RSS feed. If this past week's content is a good predictor of future trajectories, we're in excellent shape. Here's a taste of some of what's been on the menu recently:

  • Allison Hoffman's feature on casting Hasidic (looking) actors for Broadway and Hollywood 
  •         Mark Oppenheimer's incisive analysis of where James von Brunn fits into the landscape of                 America antisemitism 
  •         An essay by Adam Kirsch, one of our generation's most distinguished critics, on George Eliot 

Posted by Administrators on June 14, 2009 at 07:08 PM in Deliberation and voices | Permalink | Comments (0) | TrackBack

Last Month's News?

    A friend of mine appears in the May issue of  Playboy magazine (no, not in the way you might think!).  I am not a regular consumer of Playboy; in fact, my comments from 30 years ago, when Playboy planned a special article (if that’s the right word) on “Girls/Women of the Ivy League” were quite strong.  Nonetheless, in my weekly feed of articles from Lexis, there was my friend, Wendy Kramer, mentioned in an article for the Playboy Forum written by Lori Andrews  (a Distinguished Professor f Law at Chicago-Kent)  about sperm donation. 

    Wendy and her son Ryan started the web-based Donor Sibling Registry  in 2000.  The Registry facilitates mutual contact between members of the donor-conceived world, allowing donors, offspring created as a result of egg or sperm donation, and parents who have created donor-conceived families to find each other.  Since its founding, the Registry has helped more than 6000 people who are connected by gamete donation find each other, and annual visitors to the website number over 100,000.

     In Test Tube Families:  Why the Fertility Market Needs Legal Regulation (NYU Press, 2009), I argue for improved regulation of the artificial reproductive technology market,

exhorting legal and policy-making communities to cease applying piecemeal laws and instead create legislation that sustains the fertility industry while simultaneously protecting the interests of donors, recipients, and the children that result from successful transfers.  This means that we need a mandatory national donor gamete databank, similar to that in place in numerous other countries, to keep track of children both through donor egg, embryo, and sperm, as well as the identities of the gamete providers. Participation in the registry would be mandatory for anyone involved in supplying donor gametes. Once donor-conceived offspring reach the age of 18, they should be able to receive identifying information about their donor, although the donor could file a statement indicating his/her lack of interest in being contacted. While mandatory limits on donor  anonymity constitute a radical change in existing practices, there are multiple reasons supporting this change.  I elaborate on the need for such a databank here.

    I should note that I’ve recently joined the board of the Donor Sibling Registry, so I’m delighted when our existence is publicized.   Wendy has appeared on Oprah, on the Today Show, on NPR – but Playboy?

Posted by Naomi Cahn on June 14, 2009 at 05:09 PM | Permalink | Comments (0) | TrackBack

Remembering Officer Johns

In case you were wondering how to help the family of Officer Stephen Johns, who was murdered in the line of duty at the US Holocaust Museum earlier this week, the Museum has established a special fund for the benefit of Officer Johns’ family. Make a contribution to the USHMM Officer Johns Family Fund.

Checks payable to USHMM Officer Johns Family Fund may be mailed to USHMM, 100 Raoul Wallenberg Place, SW, Washington DC 20024. You may also contribute by calling toll free 877-91USHMM
(877-918-7466) from 8:00am to 8:00pm Eastern time.

Posted by Administrators on June 14, 2009 at 12:00 PM | Permalink | Comments (0) | TrackBack

Organizing Academic Conferences

Sorry for a slow blogging week this week – I’ve been totally preoccupied with the last-minute preparations for the Criminal Appeals Conference next week, which I’ve organized with my colleague Chad Oldfather.  With a lull in the preparations today, though, I thought I would share some thoughts – questions, really – about when and how to organize academic conferences.

First, should untenured professors organize conferences?  When I started teaching, a more senior colleague advised me that he had made a big mistake when he decided to put on a multiday academic conference very early in his career; he found the administrative burdens to be a major distraction from his writing.  Heeding my colleague’s admonition, I waited until after tenure before I organized my first conference, which was on plea bargaining.  Now nearing the end of preparations for my second, I do appreciate my colleague’s warnings about how much work goes into making an event like this happen.  On the other hand, I’ve had a couple of advantages he did not: I have had a co-organizer for both of my conferences, and my law school’s administrative support staff has become much more experienced and capable in dealing with conference logistics.  For untenured professors with these advantages, I would not necessarily advise against conference-organizing.

Of course, one should not just do a conference for the sake of doing a conference.

Especially for an academic in his or her early years, there should be a clear sense of how the conference connects to and supports the scholarly agenda.  Although much of the work in preparing for a conference is purely administrative, there is a substantive dimension to defining the topic and identifying the right speakers to invite.  A conference can also help one to develop relationships with others who write in the same field, and to draw attention to one’s scholarship.  On the other hand, I wonder if blogging, email, and SSRN now provide much more efficient means to these same ends.  More ambitiously, a conference can serve to mark the emergence or maturation of a new school of thought, lending clearer definition to its content and its strengths and weaknesses.  As an exemplar, I think of Erik Luna’s terrific restorative justice conference at Utah in 2002 (when Erik was still a junior faculty member).

This leads to a second question: how focused should a conference topic be?  In my two conferences, my basic approach has been to define a topic broadly (plea bargaining or criminal appeals), invite a diverse group of interesting thinkers who have written on the topic in the past, and give them complete freedom to present on any aspect of the broad topic.  When I have been invited to conferences myself, I have always appreciated such broadly defined topics, especially to the extent they allow me to speak on something I was planning to write about soon anyway.  If I were to define the topic of a conference more narrowly to track my own idiosyncratic interests, I would be concerned about my ability to draw an audience and a full roster of speakers.  On the other hand, a conference that is too broadly conceived may lose its sense of coherence.  Also, if one’s goal is to create a “moment” for a new issue or school of thought, that goal will probably not be reached without a deliberately focused definition of the topic.

Finally, who should the audience be?  I have attended some conferences that have plainly been conceptualized as academics talking to academics, but others that have just as plainly been designed for a larger, more diverse audience, including students and practitioners.  I have taken the latter approach with my two conferences.  If my law school is footing the bill to fly in a bunch of smart people from around the country to have an interesting conversation, it seems only natural to try serve as many institutional interests as possible through that conversation, including teaching and community outreach interests.  Moreover, I’ve found that law students and practitioners, while perhaps not as steeped in the scholarly literature as academics, often have valuable comments and questions that inject important practical considerations into scholarly discussions.  On the other hand, there are perhaps some drawbacks to the “big audience” approach.  If nothing else, it adds considerably to the administrative burdens.  It also creates a more formal atmosphere, which may be less conducive to free-flowing, creative conversation among the academics. 

These are some of the questions on my mind right now about academic conferences.  I’d be interested in hearing others’ views about what the important questions are.

Posted by Michael O'Hear on June 14, 2009 at 10:22 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Friday, June 12, 2009

Some Thoughts on the Book-Writing Sentence

As promised earlier in the week, I thought I'd share some reflections on the unusual sentence Judge Urbina imposed on an offender convicted of lying to the feds: namely, that he must, among other things, write a book about what he's done.  I did an interview with Ashby Jones over at the Wall Street Journal Law Blog, the substance of which is posted here, and which I'll reproduce after the jump.

If you’ll indulge us, we’d like to circle back to a story that broke earlier in the week that we touched on briefly here. In short, on Monday, a federal judge in Washington, D.C., Ricardo Urbina, sentenced a former senior pharmaceutical executive to write a book.

According to the NYT story on the sentence:

Earlier this year the executive, Dr. Andrew G. Bodnar (pictured), a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine.

The NYT story notes that it’s not the first time Judge Urbina has issued an unconventional sentence. In 1998, he sentenced a Washington lobbyist who had pleaded guilty to illegal campaign contributions to write a monograph and distribute it to 2,000 other lobbyists.

But we got to wondering about Urbina’s sentence — whether it has broader historical precedent, whether the punishment is likely to serve its purpose, and whether it’d be a good thing to see more of these creative sanctions. With that in mind, we checked in with Dan Markel, a law professor at Florida State University and one of the people behind Prawfsblawg, which has long been part of our daily reading. Markel has written extensively on the topic of punishment and is the author of a new book, along with Jennifer M. Collins and Ethan J. Leib: Privilege or Punish: Criminal Justice and the Challenge of Family Ties.

Hi Dan, thanks for taking the time. Judge Urbina’s sentence on Monday struck us as strange and provocative. Are there historical precedents for sentences like this?

Certainly there have long been alternatives to incarceration, some of which have been creative and designed to induce guilt or moral education; others that are simply meant to publicly shame and humiliate.

However, even with shaming punishments, when they were used in the colonial or post-colonial era, there were often points at which a community would hold a sort of reintegration ceremony, in which the person held in public scorn would be welcomed back into the community and told, in so many words ‘Go, and sin no more.’ I think that aspect of reintegration has been lost, though, in most modern shaming punishments.

And are these types of punishments coming into favor — or has their day passed?

I think they have had a bit of a resurgence since the early 1990s, but the evidence is largely anecdotal. Back then, some academics like Yale’s Dan Kahan became proponents of shaming punishments because they — rightly, in my opinion — thought judges should find alternatives to incarceration for many nonviolent offenders. Shaming got a quite a lot of exposure more recently in 2004, when the Ninth Circuit, in a case called Gementera, upheld, despite a strong dissent by Judge Hawkins, a trial judge’s imposition of a supervised release condition in which a mail theft offender was ordered to stand outside a post office with a sandwich board sign that read ‘I Stole Mail; this is my punishment.’ That case is now in a lot of criminal law casebooks.

Since then, at least in the academy, there seems to be a bit less support for shaming sanctions.

Okay. So what exactly is “shaming” about Judge Urbina’s sentence?

Actually I see this sentence less as a “shaming” sentence and more as what I’ve referred to as a “guilting” punishment. A guilting punishment is morally educative and is focused on having the defendant realize what he or she did wrong and why it was wrong, rather than exposing him to public ridicule or humiliation, which is a signal feature of shaming punishments. Writing a book can basically happen in private and there’s no risk that a lynch mob will form to threaten the state’s monopoly on punishment here.

Judge Urbina doesn’t seem to be requiring that the book be circulated widely — it seems to just be a long essay written to the judge, the point of which seems to be to make the defendant think about what he did and why it was wrong and why this type of act — lying to the government about something that could affect public health — shouldn’t be tolerated.

It seems like there’s a continuum between “shaming” and “guilting” punishments, right?

Sort of; I think there’s a continuum of how severe shaming can be, but I think guilting is different. Certainly the wide exposure associated with the imposition of a guilt punishment can incidentally shame someone, but that’s not really the point of the sanction imposed here.

Judge Urbina’s sanction here strikes me as more “guilting” than “shaming.” After all, there’s no state authorized attempt to hold the defendant out for humiliation and no invitation of the public to participate in that scorn the way there was in the Gementera case. In my scholarship, I’ve taken a strong stance against shaming punishments, largely because often they strike me as having to do more with vengeance than with impartial retribution. Judge Urbina’s punishment doesn’t strike me as particularly vengeful.

So you’d be okay with seeing more of these types of “creative” punishments?

I would, but with some caveats. First, I’d have some systematic concerns. I wouldn’t want to see the benefits of these types of sentences conferred only on people of a certain race or class who seem especially able to the court to be able to engage in book writing while poor folks are presumed not to have anything interesting to write or say. In other words, I wouldn’t want to see the “book-writing” sentence given only to those defendants who own a certain level of literacy or certain gifts of language.

Second, remember that there’s an important rationale behind the initial passage of the federal sentencing guidelines: namely, to try to reduce unwarranted disparity such that people who commit similar crimes are treated roughly similarly. I think if you see a proliferation of these types of creatives sentences, you run the risk of imposing sentences that vary too much across cases. That concerns me a little too.

But here, it doesn’t strike me as that much of a problem, partly because [Dr. Bodnar] was charged with a misdemeanor. I think it makes more sense to allow more discretion to judges when it’s a non-severe offense and the punishment imposed is relatively modest too.

And what about the punishment itself — having to write a book? Does it strike you as an effective punishment?

Standing alone, no, I don’t think it’s particularly persuasive. My concern with it, standing alone, is that the punishment might not be sufficiently condemnatory. Punishments for wrongdoing need to condemn, and to condemn, sentences need to register as setbacks to both the defendant and the public.

However, I think the sanction, once it’s coupled with the other measures Judge Urbina imposed [two years' probation and a $5,000 fine], that could be sufficiently condemning. And that could be useful. My concern is that you could undermine the very point of a punishment by just allowing someone to write a book, from both deterrence and retributive standpoints.

So you’d generally be okay with these types of punishments, so long as they’re applied fairly and consistently and achieve the goals associated with sentences?

Right. I’m supportive of guilting punishments when used smartly and fairly. We definitely use incarceration too much and for periods of time that are too long, especially for people who don’t pose physical harm to the community.

That said, if these are going to pick up, they need to be calibrated. The sentencing commission needs to weigh in on this, at least to ensure there’s a check on what judges are doing. Congress, too. Both need to be working in concert with the federal judiciary.

Very interesting stuff, Dan. Thanks for taking the time.

My pleasure.



Posted by Administrators on June 12, 2009 at 05:55 PM in Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (2) | TrackBack

Thursday, June 11, 2009

High School Graduation

Not sure if he's the original Jay-Z, but Jonathan Zittrain posted his characteristically witty remarks at his alma mater's graduation ceremony over here.  A taste:


It’s fantastic to be back on campus. I confess that when I was a student here I had good days, bad days, and, well, surreal days. I began at David Mancosh’s Middle School, where a scrappy production of Lord of the Flies enjoyed a daily run for over two decades. My first mistake was to be a skinny nerd with the name ZITTRAIN. I compounded the error by wearing my school backpack over both shoulders. I was alerted to my lack of fashion sense when someone drop kicked it from behind while I was wearing it. It sailed about six inches off the ground, taking me with it like a parachute in an updraft, and I landed with it upside down across my stomach. 


And directly on the topic, a very interesting and funny conversation between David Brooks and Gail Collins over here. DB's lamentations: there's insufficient training for the 3 things most centrally related to one's happiness over life: picking a mate, finding and keeping friends, and wait, wait, wait for it: ... impulse control. 
H/t: Jenny 8.

Posted by Administrators on June 11, 2009 at 11:15 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Research tools revisited

Last October, I blogged about various ways I organize research: 1) emailing myself articles, 2) a spreadsheet, 3) a research database.

Having used the latter two methods more in the last eight months, I thought I would update that post with new observations.

For starters, mailing myself articles to read is out.  I don't do it much anymore, and if I do, I add it to the database.

Also, I found that the spreadsheet method isn't that great. I found myself looking at the list of cases at the end of the project, and I found that I had already addressed most of the key cases.  Where I did look at it first, it was missing a lot of information I later found.  I think the reasons for this are twofold.  First, it's not a very elegant way to view information - it's hard to sort, it's not big enough to hold all of the information I might want (and if does have enough, it becomes unreadable), and you can't attach the case or article being referenced.  Second, a single summary is not terribly helpful when you need to cite particular passages.

I've worked more with Zotero and other available products, but they just don't seem to work the way I would like.

That leaves the database, which has been great - I used to draft two articles and finish a third (that I had started using other methods).  The key was the linked quotes and notes database - I found that I could quickly get detailed information about the article or case without having to look back at the original article - that is, I only needed to read it once.  I get information into the database in two ways - I either directly add my notes and/or copy and paste quotes as I'm reading, but that requires constant computer and network access while I read - not so great.  Alternatively, I mark passages and notes on a written copy, and hand it off to my research assistant to add to the database.

I've also found a relatively useful way to deal with books.  For those that I can't get through open access (google books or creative commons, etc.), I link to directly.  For archaic media like bound paper books, I flag interesting passages with post it notes, and then enter those passages or notes about them into the database.  This is a little bit more work than I ordinarily would want to do, but the goal is to do it once and do it right for important books.

One drawback that I'm working on - if I add a new article topic to the database, I have to re-identify which articles might be relevant.  As the database grows (425 cases and articles and growing), I'm going to have to rely on my memory a lot more than I would like.  One solution to this is keyword searching in the notes, or a periodic browse through all articles about a certain subject area (like patent law) rather than article topic (like subject matter) to add additional article topics to a reference.

One final point - as the database grows and as research assistants graduate, it will take more cycles to add references to the database.  Whoever enters the data will have to make sure the item is not already there from prior projects.

So, there you have it.  This may seem like old news to those who have been doing this for a while, but I thought it might be helpful to anyone trying to figure out how to organize their research. I'd love to hear more tips from anyone who has a good working system.

Posted by Michael Risch on June 11, 2009 at 06:38 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Minow to be new dean at HLS

Though there were many great finalists, it's really exciting to announce that Martha Minow, a beloved former teacher of mine, will now be the new dean at HLS. Here's President Drew Faust's announcement, after the jump.

Dear Colleagues, Alumni and Friends,

            I am delighted to let you know that Martha Minow has agreed to serve as the next Dean of Harvard Law School.  She will take up her duties on July 1. 

            Martha has been a member of the HLS faculty since 1981, and she has served the school with extraordinary dedication and energy.  She is an eminent scholar of uncommon range and imagination, a greatly admired teacher who guided the school's recent curricular review, and an outstanding citizen not only of the Law School but of the University, with impressive experience in academic leadership roles.  She has a clear-eyed view of the challenges and opportunities facing the Law School, and a talent for bringing people together to work through important academic and institutional issues.  Most of all, she has a passion for the law and for all that legal scholarship, education, and practice can do to advance the public good.  I look forward to welcoming Martha to the University's Council of Deans and to working closely with her in the years to come.

            Howell Jackson has done an exemplary job as the Law School's acting dean these past few months, and all of us owe him our deep gratitude for his willingness to serve in this interim role.  And, of course, Martha will benefit not only from Howell's excellent work during the transition, but also from Elena Kagan's five-plus years of strong and energizing leadership before taking leave in March to serve as Solicitor General of the United States.

            I'm grateful to the many members of the Harvard community -- faculty, students, staff, and alumni -- who offered thoughtful advice during the course of the search.  I've learned a great deal from your counsel, and it has helped guide us to an excellent outcome.

           A copy of today's announcement can be read at:  http://www.news.harvard.edu/gazette/2009/06.11/hls.html

Sincerely,

Drew Faust 

Posted by Administrators on June 11, 2009 at 02:47 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Britney

At the risk of playing into Spears' obvious marketing ploy, I thought I'd post a little question about her most recent single, which repeats over and over again the phrase "If you seek Amy" in various contexts where it makes no sense except as spelling out "F-U-C-K me."  For example, in one verse, she says:  "If you seek Amy tonight.  We can do anything you like."  In the chorus, she says:  "All the boys and all the girls are begging to if you seek Amy."  You get the idea.

It seems pretty obvious to me that if you simply spelled out a profanity on the radio, you'd run afoul of FCC regulations prohibiting profanity in broadcast media.  But here, the argument would be that she is not spelling out the word in question.  She's saying completely different words that only convey the appearance of spelling it out.  It seems like an obvious violation, but it does introduce some serious line-drawing problems.  After all, a lot of the effect depends on exactly the way she says the words.  Of course, there's no ambiguity as to her intent.  The lyrics make no sense without the pun, but a more talented lyricist could run circles around this loophole, no?  (Note, I'm not taking the normative position that this matters; my interest is purely in the positive legal issue.)

I haven't run into much informed legal discussion of this, though it may be out there.  Part of the problem is that any attempt to Google this runs into pages and pages of Britney fan sites clogging the results.  MTV News did a little item on it a while back. 

Back in March, Slate had a nice piece on (just in case you were wondering) the etymology of the pun.  The bottom line was that Britney, as usual, is doing nothing too original here.  Apparently, a very similar pun ("If you see Kay.") was used in a 1963 blues song by Memphis Slim.  A number of other lesser known artists have used it as well.  Britney is not totally unoriginal, though.  She is apparently the first to use "If you seek Amy" -- getting the "me" in there at the end.  Joyce managed to outdo everyone and pun a couple of profanities in these lyrics in Ulysses:

If you see kay
Tell him he may
See you in tea
Tell him from me.

Another article found an example of this genre from Shakespeare:

Shakespeare was also a dirty bird, penning the following in Twelfth Night, “By my life this is my lady’s hand. These be her very C’s, her U’s and her T’s and thus makes she her great P’s.” If that “and” in between the CU and the T is pronounced as an N...well, you get the point. I always knew my favorite word was shared by literary geniuses like Bill Shakespeare!

As far as radio play, the issue does not seem to be hampering the song in any way.  Although I've heard it less frequently over the past couple of weeks, there was a period where it was playing pretty regularly on one of our local stations.  Interestingly, a different station in town had a version of the song in which "seek" was replaced with "see," which is very effective at destroying the pun and also makes the song make even less sense than it did in the original version. 

Posted by Eduardo Penalver on June 11, 2009 at 11:32 AM | Permalink | Comments (4) | TrackBack

Evidence Based Policy, Law, and Uncertainty

In some cases, incorporating systematic reviews into legal proceedings will be relatively easy. When the review conclusively (according to some decision rule) establishes that causation either exists or does not exist (or, more precisely, conclusively establishes such a finding for now), then the judge's next step is straightforward. The judge can include one side's testimony and exclude the other's, and the risk of jury confusion is low. But what happens when the systematic review returns an uncertain result--causation may exist, but the research base is currently too weak to say much either way?


This is no small problem. Mark Petticrew suggests that this may happen more often than not in many circumstances. There is a lot of bad empirical work out there, so the more demanding the standards the fewer original studies survive quality evaluation; too few studies and it becomes hard to draw causal conclusions either way. What should a judge do in this case?

Under our current rules, it seems that both sides should be allowed to make their causal case. Daubert, for example, is not intended to allow the judge to (wholly) invade the jury's realm. This looks like the classic contestable fact that juries were established to resolve. But even putting aside the epistemic problems I have been talking about for a while now, viewing this uncertainty as a factual debate for the jury is not the right way to think about things.

Why? Because there is nothing to debate. A systematic review returning a result of uncertainty has provided us with the answer: we know we do not know. What we have, in other words, is a "known unknown." It is unfortunate that Donald Rumsfeld was often mocked for his known-unknowns speech, since the point is epistemically spot on and far too often underappreciated (that you can hear journalists laughing in the background is more a comment on the journalists than Rumsfeld). The law in particular is uncomfortable with the idea.

In a land of dueling authoritative pronouncements, perhaps it can be hard to separate the known unknowns from cases of false uncertainty. Perhaps one expert really is telling the better story or relying on the better studies. But the comprehensiveness, transparency, and greater objectivity of systematic reviews--especially as quality criteria are themselves subjected to empirical validation--helps make it all the clearer where true known unknowns exist.

As an aside, note that the need to acknowledge known unknowns may point to an upside of the problem of dueling guidelines. If both sets of guidelines rely on empirically validated standards, and if there is no other clear objective reason for favoring one set of guidelines over another, then disagreement between the two sets of guidelines is informative. It provides (meta-?) evidence of uncertainty.

But back to the main point. How should the law handle the known unknowns? There is an easy--but problematic--answer: when a review returns a known unknown, the party bearing the burden of proof loses on that point (and the case, if that point is dispositive). Christopher Guzelian makes just this point in the context of torts: torts requires proof of causation, uncertain results do not equal proof, so the plaintiff loses when the results are uncertain.

This is clearly a strongly pro-defendant (or perhaps, more generally, pro-status quo) position, and it is not one we should necessarily comfortable with. Though individual cases deal with individual plaintiffs and defendants, our tort system in practice acts as an important source of broader, social regulation. And it is not just torts: consider forensics. Unless the Innocence Project's efforts to create a federal agency to regulate forensic science succeed, it will fall to the courts to respond to the inevitable challenges that will follow the National Academy of Science's blistering critique of the discipline. Again, it will be an individual defendant challenging, say, the reliability of eye-witness testimony, but the court's opinion will have wider regulatory impact. 

In other words, there is a strong overlap between courts and agencies. It isn't surprising that regulatory agencies are allowed to regulate--to effectively "rule for the plaintiff," to extend the analogy--in the presence of uncertainty. As Wendy Wagner and others have shown, the permanent presence of "transscience" alone would make it impossible for them to act otherwise. It may be scientifically established that chemical x causes cancer in rats or in doses a thousand times the normal level of exposure, for example, but making the jump to the effect of regular exposure to humans may require untestable assumptions about interspecies physiology or dose-response curves.

Such assumptions are ultimately policy decisions. Whether an agency adopts an aggressive dose-response curve assumption or not is a political choice about whether it wants to regulative aggressively. We are comfortable about agencies making such political choices, since they are located in a political branch of government.

But we are fooling ourselves if we think the judicial branch can avoid this issue. By implicitly demanding that our courts engage in regulation, we have forced the choice on them. But our legal doctrines and decision rules do not always reflect this. Debates about dose-response curves are not issues of fact for a jury to decide, because they are not issues of fact. Dose-response curves, at least in some cases, are known unknowns. We either have to embrace Guzelian's point that tort law is not intended to handle these issues and toss all cases that rely on such extrapolation, or we have to rethink how policy decisions in the presence of known uncertainty are handled by courts.

In other words, we need to think more carefully about our decision rules. There have been some efforts along these lines. Margaret Berger, for example, suggests that when scientific evidence is uncertain in toxic tort cases, the focus should shift to emotional harm. And Wagner confronts Petticrew's concern about a too-small evidence base more directly. She argues that when the defendant industry--which is in by far the best position to test the effects of its products--fails to conduct the necessary tests and thus leaves the evidence based too small to draw conclusions, the burden of proof should shift from the plaintiff to the defendant: the industry now has to prove that the product is not harmful.

I don't know what the right answer is yet. But there is a clear tension between what tort requires of courts and what we demand of them. And I do not think we are ready--or even want--to strip courts of their vital regulatory and social insurance functions. At the same time, allowing juries to make "findings" about known unknowns is profoundly troubling. As our understanding of what we know and what we do not know grows stronger, we will have to think about and debate more thoroughly how we want courts to fulfill their implicit regulatory functions in the presence of uncertainty.

The technological and philosophical revolutions of the past few decades are exciting, but also humbling. Somewhat ironically, the epistemic superiority of EBP may force us to be more epistemically modest. An effective and legitimate legal system must adjust its procedures to reflect our changing understandings of what knowledge is and of what we know.

Posted by John Pfaff on June 11, 2009 at 11:26 AM | Permalink | Comments (2) | TrackBack

Grouchy Justice(s): NRF's defense of judicial bad behavior...

For those of you who missed it, Noah Feldman's got an unusually interesting take in this morning's NYT on the Sotomayor nomination and why judicial temperament is not a pre-req for being a great Justice. He examines why the "no asshole workplace" is not necessarily a desideratum if we're looking for great constitutional developments, whatever those are. Specifically, we get a flavor of how the friction among Frankfurter, Black, Douglas and Jackson "worked."  


Reactions?  Should Sotomayor be prepared to have her views called "irrational" and not "to be taken seriously" -- as O'Connor was when subjected to Scalia's sharp barbs and male bullying...? Or is it too much to ask everyone on the SCOTUS to also be on good behavior? 

Posted by Administrators on June 11, 2009 at 11:13 AM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Wednesday, June 10, 2009

Principle, Politics, and Pharmacist Protection Laws

In the past year or so, there’s been an increasing amount of chat on the law blogosphere and elsewhere about religious accommodation laws. President Obama called for a law that would protect doctors who declined to provide abortion services for religious reasons. There was an interesting discussion in this space a few months back about the possible interaction of conscience, gay marriage, and retirement planning. In this post, I address a particular variant of these laws (called “conscience clauses” by proponents, and “refusal laws” by opponents, and which I'll call "pharmacist protection laws") that would allow pharmacists not to have to dispense reproductive pharmaceuticals to which they had a moral objection, such as birth control pills or RU-486.

The logic of these laws is that they avoid forcing pharmacists into a choice between their religious convictions and their professional obligations, and at first blush that seems appealing. Yet something seems peculiarly narrow about these laws, because they don’t mandate a general exception for conscientious objection to workplace duties, but only a narrow one for a particular kind of health care professional. The suspicion this raises is that these proposals don’t express solicitude for conscientious objection in employment generally, but are instruments deployed to protect particular ideologies or promote particular political agendas. As such, I’m interested in examining whether there’s a neutral principle behind these proposed religious exemption laws.

I examine whether such a neutral principle exists, and add several critiques of these laws, below the fold.

There are three limits implicit in the proposed laws that puzzle me. One is the limit to the health care setting. Why should we be concerned only about religious objections to dispensing pharmaceuticals related to reproduction? Consider a Jain who works at a sporting goods store and refuses to sell hunting or fishing equipment because her religion holds that killing animals—even for food—is wrong. Is there a meaningful difference between such a person and the Christian conservative pharmacist?

This example gestures at a second problematic limit: why should only professionals benefit from this protection? Imagine that a woman gets her birth control at a pharmacy, and then goes to the front desk to ring up the purchase, where she encounters a checkout person who believes that using birth control is wrong, and refuses to register the sale. Is there a meaningful difference between a professional (pharmacist) who declines to engage in dispensing the prescription and the worker (checkout person) who declines to register the sale?

These two examples indicate still another concerning limit: why should we be concerned only with religious objections, as opposed to other conscience-based ones? Suppose that an butcher works at a grocery store that sells 95% humanely raised meat, and that the butcher strongly believes that the cruelty of factory farming is an egregious moral wrong. The butcher happily prepares orders for customers who want humanely raised meat, but will not prepare orders for customers requesting the 5% of the inventory that is not humanely raised. Is there a meaningful difference between this butcher’s non-religious but heartfelt moral objection and the religious objections of the individuals in the above two examples?

I don’t have easy answers to any of these questions, and I suspect that easy answers don’t exist. There are clearly practical objections to indulging every employee’s moral objections. This kind of indulgence raises the specter that employees will fabricate objections to get out of work they don’t want to do, and it also creates problems for employers who have to worry that they’ll lose customers because their employees’ moral objections will undermine their business’s ability to provide wanted services.

Another possible distinction is that there are legitimate priority choices at play here. Perhaps we can say that professionals have to stand behind their decisions in a more meaningful way than other employees; or that health care decisions are more important because they relate to human life; or that religious objections should be respected more than non-religious ones because religion has a special place in American political and cultural life. These distinctions would make sense of some of the limits in workplace conscientious objector laws, but none of them seem tenable to me.

After writing all this, I am inclined to think that there’s no neutral principle that can justify the pharmacist laws (though there’s certainly no requirement that laws be so justified). Nor am I convinced that they are necessary protections for conscience, for two reasons.

The first is that they ignore the difference between professional and personal identity. Professionals—and workers generally—often facilitate conduct that they might not personally approve of, and we understand that this is because they are acting in their role as a professional, which may well diverge from their role as a private individual. Doctors have an obligation to save lives, even if they think that the patient is a bad actor (you can’t refuse to operate on a criminal’s gunshot wound, for example). Lawyers often argue positions they don’t believe in because they have a duty to be zealous advocates on behalf of their clients (you can’t say “I’m going to tank this oral argument because I think my client is guilty as sin"). It’s hard for me to see why pharmacists should be treated differently.

The second reason is that there seems to me a meaningful moral difference between first-order and second-order conduct. I can understand a pharmacist saying “I think birth control is wrong, so I won’t use it” (first-order conduct), but I’m not convinced that the same concerns are raised with providing another with the instrumentality to engage in behavior of which you disapprove morally (second-order conduct). The slippery slope opened up by the latter seems particularly steep. Can an employer fire someone who uses birth control (“I object morally to birth control, and I should not have to be forced to provide anyone with the financial wherewithal to engage in such conduct”)? That seems concerning, but the difference between that instance and filling a prescription is one of degree rather than kind.

So: is there a principled way to justify the pharmacist protection laws?  Interested to hear any thoughts on this, and on religious accommodation in employment more generally.

Posted by Dave_Fagundes on June 10, 2009 at 07:14 PM in Current Affairs | Permalink | Comments (8) | TrackBack

Don't Stare at the Marshmallow

Among the interesting things I've read this summer is last month's New Yorker article by Jonah Lehrer, which tells the story of Stanford psychologists' study of four-year-olds and their self-control.  In the study, each young subject was presented with a marshmallow and the choice between eating it right away or instead waiting while the researcher stepped out of the room for a few minutes -- in which case he or she would receive TWO marshmallows upon the researcher's return.  Thirty percent of kids studied -- pegged as "high delayers" by the reseachers -- were able to delay their gratification until the researcher's return fifteen minutes later.  The others -- "low delayers" -- lasted just a few minutes (and sometimes just a few seconds) before eating the marshmallow. 

The researchers identified the "strategic allocation of attention" as the crucial skill that distinguished high- and low-delayers.  High-delayers, for example, found ways to distract themselves by turning their backs on the coveted marshmallow, covering their eyes, playing games, or singing songs.  Low-delayers, in contrast, generally couldn't stop themselves from staring at -- and thus thinking about -- the wonderful treat before them.

Tracking their subjects as they grew older, the psychologists found that high-delayers were less likely to experience behavioral problems and more likely to enjoy academic success than their low-delaying counterparts.  (Indeed, another researcher found that the ability to delay gratification -- measured, for example, by the choice between taking a dollar right away or two dollars the following week -- was a far better predictor of eighth-graders' academic performance than IQ scores.)  They concluded, not surprisingly, that kids with a more accurate understanding of their own inclinations for immediate gratification come up with strategies to distract themselves from temptation -- and that such strategies pay off in terms of increased study time and other investments in beneficial activities that require self-discipline. 

Perhaps most important for those of us in the education field, the researchers found that they could teach low-delayers certain strategies for managing their thoughts in ways that dramatically increased their capacity for self-control.  Parents, as well as teachers, have a huge role to play in demonstrating not only that waiting can be worthwhile but also that one can develop habits of delay that lead to greater patience.  In the words of lead researcher Walter Mischel (as quoted by Lehrer):  "We should give marshmallows to every kindergartner . . . .We should say, 'You see this marshmallow?  You don't have to eat it.  You can wait.  Here's how.'"

Posted by Helen Norton on June 10, 2009 at 05:39 PM | Permalink | Comments (5) | TrackBack

Jurisdiction in the Court

While everyone has been talking about Monday's decision in Caperton, two other cases caught my eye, going as they do to my ongoing search for lines between subject matter jurisdiction and substantive merits.

The first was United States v. Denedo (Majority by Kennedy, Concurrence/Dissent by Roberts), in which the Court held that the authority of the Navy Marine Corps Court of Military Appeals to issue a writ of coram nobis was distinct from the question of whether the case was one in which the writ should issue. In other words, whether relief should be granted is distinct from whether the court has the authority to hear the case. At several points, in explaining why the NMCMA had jurisdiction, Justice Kennedy dismissed government arguments by insisting they went not to jurisdiction, but to the substantive question of whether the petitioner was entitled to a remedy. The Court did not discuss the distinctions or announce principles for separating them, but it was good to see it acknowledging they are different concerns and treating them as such.

The second was Republic of Iraq v. Beaty, which dealt with questions of the waiver of Iraq's sovereign immunity from suit under U.S. law in federal court. The Court treated immunity as a jurisdictional question and held that the withdrawal (after the fall of Saddam) of the waiver (for being a state-sponsor of terrorism) of Iraq's immunity deprived the district court of jurisdiction over claims by victims of torture under Saddam's regime. This is unfortunate, because I continue to believe that sovereign immunity is better understood as a substantive limitation than a jurisdictional one. The point of sovereign immunity is that a foreign nation is not subject to any duties under U.S. law (at least not through a private lawsuit) and injured individuals have no rights under U.S. law as against foreign sovereigns; Iraq cannot be liable under U.S. law for its conduct, regardless of where the claims are brought. Those are purely questions of substantive merits. I will continue to push this as a normative point in several upcoming articles (particularly as to religious organizations), but the argument just became harder to make descriptively.

Posted by Howard Wasserman on June 10, 2009 at 03:47 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack