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Tuesday, June 09, 2009

If they asked me, I could write a book...

Check out the NYT article on Judge Urbina's unusual alternative sanction: the offender must write a book about his experience:

Call him the homework judge, not the hanging judge. On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book. Earlier this year the executive, Dr. Andrew G. Bodnar, 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. Elkan Abramowitz, Dr. Bodnar’s lawyer, said he had never before heard of a case in which a judge sentenced a defendant to write a book. But this is not the first time Judge Urbina has demanded written penance. In 1998, he sentenced a prominent Washington lobbyist to write and distribute a monograph to 2,000 lobbyists at the defendant’s own expense.

I'll have some more reactions to this in the next couple days.  Thanks to my pal Andrew Epstein via Ashby Jones for the tip. 

Posted by Administrators on June 9, 2009 at 12:05 PM | Permalink | Comments (2) | TrackBack

Our Inquisitorial History

My previous post provided a (cursory) glance at broad changes in legal procedure that came about in response to fundamental changes in epistemology. In this post I want to narrow my focus to transformations that have taken place within the United States. My comments here draw heavily from Amalia Kessler's paperOur Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial, 90 Cornell L Rev 1181 (2005).

Kessler's primary point is this: our legal system--and by "our" I mean that in the United States since the Revolution--has not always been as adversarial as it is today. In particular, equity courts were far more inquisitorial. Special masters had powers close to those I would want them to have today. They gathered the necessary evidence on their own, they presented their results only when they had completed their investigation (thus setting forth the whole picture at once, rather than using the fractured method adversarialism requires), and the judge was to take the master's report as presumptively correct (though some review was expected). In other words, we had in the 18th and early 19th century a system roughly close to what I would desire today.

So how did we lose it? Kessler's argument suggests that it was more by accident than by design. A leading equity judge, Chancellor Kent of New York State, allowed oral testimony into equity courts in 1817. He did not think it would undermine the role of the master, but his assumption proved to be incorrect. Oral testimony along with cross-examination shifted the master's role towards something less inquisitorial and more adversarial. As a result, the special master's role declined. Kessler in fact argues that the claim in the Federal Rules of Civil Procedure that masters are used sparingly is perhaps less a normative statement than an acknowledgement of empirical reality.

The loss of the inquisitorial special master is quite disappointing. Equity and common law were designed to handle different issues. More specifically, equity--and its agents such as special masters--existed in part to handle questions too complex for common law juries. As Kessler puts it (at page 1215):

[O]ne of the primary purposes of procedure in [the common law] tradition was to ensure simplicity and, thus, facilitate adjudication by a lay jury. …. [S]trict pleading devices served to frame a single, relatively easy factual question, thereby obviating much need for fact-finding. … Litigants at law thus had great freedom to control the evidence presented and the sequence and nature of the proceedings, but could only exercise this freedom within a very circumscribed sphere. This, in turn, meant that litigants had relatively limited opportunities and incentives to use the adversarial framework to undermine truth-seeking.

In other words, common law juries were not intended to handle cases involving complex evidence. The merger of equity and common law, however, awkwardly threw all the issues before them. We should thus not be surprised that there have been efforts of late to reintroduce inquisitorial procedures--such as specialized courts (not just "science courts," which more or less failed to take hold, but probate courts, bankruptcy courts, etc. etc.)--into the legal system. Some effort to fix how the courts use scientific evidence is inevitable.

Kessler rightly laments that "the supremacy of the adversarial model ... [has] greatly constrained our imaginative capacity." When I suggest to people that scientific evidence should not be handled adversarially, I often hear in reply: "But that is not how our legal system operates." But it has operated that way in the past, and there is no reason to assume that it won't again. We have forgotten our own history, and to our detriment. Using inquisitorial devices to handle complex evidence beyond the ken of a lay jury is part of our legal history, and I believe it will be--and has to be--part of our legal future.

Posted by John Pfaff on June 9, 2009 at 09:52 AM | Permalink | Comments (2) | TrackBack

Facebook and More Network Economics

After years of protests, I finally joined Facebook last week.  Much to my surprise, I'm really digging it.  I realize that I'm the last person on the planet to figure out how great Facebook is (except my wife, who is still a holdout), but that's kind of the point of this post.

As I noted in my last post, network benefits accrue when the value of something goes up as more people use it.  Facebook is the poster child for network benefits.  The really shocking thing (to me) is that just about everyone I ever met, from brief professional acquaintances to high school friends I haven't seen or talked to in years are already members. I'm on LinkedIn and Plaxo, but neither of these two come close.

The twist here is the competing economic and privacy interests to get the most out of the site.

I'm sure a bunch of people have written about this, but that's why I'm blogging about it rather than writing a law review article.

It seems that the primary membership draw is that as more people join, the cheaper it gets to connect with them.  I am a heavy (and I mean heavy) user of email. For example, my voicemail comes to my email box, and then I email the caller a response.  Email cannot come close to competing with Facebook for easy distribution of information, whether mostly useless status updates to "Hey this is interesting" posts.  It also allows for cheap sifting through those posts without having to read through a bunch of email. The upside is huge - I'm keeping up with happenings of people I care about, and letting them know what I'm up to.  This is stuff that wouldn't merit a phone call, but that we all might want to know about anyway.  Great stuff.

But there's a countervailing privacy cost.  As it gets cheaper to give and get information, it gets harder to control who gets it.  I might not want everyone to see family photos or career thoughts.  The default sharing on Facebook is pretty broad (a fact that has received much criticism), and as such it has cost me time and effort to figure out how to narrow who gets information. 

For example, because the default "share" status updates and "links" apps don't have a filter to limit who gets information (through the very nifty friends lists, which are also costly to keep updated), I have posted some updates using the "notes" app, which allows more limited distribution.  It works fine, but it's a few extra steps for me and for the reader, who has to click on the note to read the whole thing.

The upshot is that there is a tradeoff (for me at least) between too little and too much connection. Perhaps a couple tweaks to the Facebook interface (like allowing limited sharing and links) might help, but not completely - the privacy settings are so numerous and complex (a good thing from a privacy point of view) that I'll always have to check them and update them periodically. I guess you have to take the bad with the good.

Posted by Michael Risch on June 9, 2009 at 07:56 AM in Legal Theory, Web/Tech | Permalink | Comments (2) | TrackBack

The Chrysler Bailout: Who Wins with Failure?

David Zaring offers up his as-always savvy analysis on the Supreme Court's grant of a stay in the Chrysler bailout.  Here are some quick thoughts:

  • Fiat can pull out if the deal is not wrapped up by June 15.  Would Fiat pull out?  It's unclear what has changed.  Perhaps the continuing toll of bankruptcy uncertainty would weaken Chrysler too much.  Or perhaps Fiat's having buyer's remorse.
  • It is assumed that the failure of this deal would be a blow to the Obama Administration.  But who wins and who loses, at this point, if the deal blows up now?  Ford and GM are better off without Chrysler around.  The Chrysler creditors would lose their deal and fall back into the morass of a liquidation.  This might chasten the GM creditors.  Moreover, the Obama administration would be able to say it had tried its hardest to save Chrysler without incurring the expense and risk of actually bailing out the company.  So perhaps the best thing for the administration would be a stay that gives Fiat an out.  Fiat walks away, the deal blows up, and the Supreme Court then dismisses the case as moot, at least until the GM bankrupcty is resolved.  And maybe those creditors get a bit more of a buyout -- just enough to persuade them not to appeal. This theory was influenced by Mickey Kaus, who wrote on Saturday: "You have to wonder if the Obama team knows the FIAT deal it promoted won't work, and arranged it simply as a way to delay the inevitable--while it actively avoided a merger that would foist Chrysler on GM, because GM does have at least a chance to survive after bankruptcy and doesn't need Chrysler's baggage. (Why make Chevy responsible for the Sebring?)" 
  • The big losers if the deal blows up would be Chrysler workers and management.  The shutdown of the Studebaker factory is widely regarded as a catalyst for the creation of ERISA.  Might the collapse of Chrysler, and its devastating impact on its employee and retiree health care coverage, serve as a catalyst for national health care reform?

Posted by Matt Bodie on June 9, 2009 at 04:06 AM in Corporate | Permalink | Comments (0) | TrackBack

Monday, June 08, 2009

Chaim Saiman (guest post) on Caperton

In, Caperton v. A.T. Massey Coal, (released Monday, June 8) the Supreme Court ruled 5-4 that a West Virginia judge violated the Due Process Clause by not recusing himself from a case in which one of the parties spent $3 million towards the judge’s election campaign. 

Justice Scalia dissented, and concluded his remarks with the following: 

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed.1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed-which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious 

Given the context of the case, I recommend to Justice Scalia the following Talmudic passage (Sanhedrin 7b-8a), in which the Rabbis express their attitude towards substantive issue at hand: 

Someone who had hosted Rav once appeared before Rav as a litigant. The litigant said to Rav: Where you not a guest in my house? Rav answered: Yes. The litigant said: I have a case that requires adjudication Rav answered: I am disqualified from serving as your judge (since I benefited from your hospitality) Rav then turned to Rav Kahana and said “Go and adjudicate this claim” Rav Kahana saw that the litigant was acting confidently Such that Rav Kahana said to the litigant “If you will obey my judgment, then obey it,” But if not I will prevent Rav from aiding you Or to take another example from the Ketubot 105 (which records many such stories), where the Talmud relates that bribes can come in the form of cash as well “in words.” In inquiring what constitutes a “bribe in words”, the Talmud reports Like the case of when [the Talmudic sage] Samuel was crossing a bridge A certain man approached him and gave Samuel his hand for support while crossing Samuel asked him: “What is your business?” He replied: “I have a suit in your court.” Samuel said: “I am disqualified from serving as the judge in your case” 

Now I suppose that one might argue that this is precisely Scalia’s point. He means to draw a contrast between the divinely-inspired Jewish law (which presumably provides solutions to all legal problems), and the merely-mortal Due Process Clause, which does not. This claim gets into several lines of argument too detailed for right now-(but lets recall that the Talmud also distinguishes between rules that are ceilings vs. floors). In any event, if Scalia is going to cite Talmudic law in a case concerning judicial impartiality, he should at the very least inform us that the result he favors lies in sharp contrast to Talmudic conceptions of judicial ethics.

Posted by Administrators on June 8, 2009 at 10:13 PM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Pure Social Norms and the Seinfeldian In-town Courtesy Call

The funny thing about the cliché “it’s funny because it’s true” is that it’s true. Take, for example, the TV show Seinfeld. I was never a huge fan, but what seemed to give the show such broad appeal was that it identified so many quirks of human behavior that persist as strong social norms despite their apparent irrationality (thus setting up the next generation of humor in Curb Your Enthusiasm, where Larry David created oodles of awkward-tainment by openly violating those norms).

Even the silliest of the Seinfeldian social norms, though, have some kind of plausible explanation or intuitive appeal behind them, even if they don’t make perfect sense. Consider the mania about holding elevators in an office building. In the famous scene where George lets an elevator door close in the face of an oncoming person, Seinfeld gets the courtesy exactly right: there’s a strong expectation that people in the elevator hold the door, and it is perceived as particularly rude about letting the door close as you watch them desperately run toward you. But there’s something sensible about this: your minimal effort of holding the door for a few seconds might save that onrushing person a lot more time that they’d otherwise spend waiting for the elevator to return, so the courtesy seems to work as a simple welfarist matter (i.e., it's Kaldor-Hicks if not Pareto optimal).

But there’s one rule of social behavior lampooned in Seinfeld that I could never make any sense of, because it seems untethered to--and possibly inconsistent with--any practical explanations or instincts about courtesy.  I say more about what this norm is and whether it may signal a category of "pure" social norms below the fold.

The norm that has me nonplussed is the rule that out-of-town visitors should contact their friends and relatives who live in the town they’re visiting to say hello—even if they don’t have the time or interest to actually meet them in person (you may recall that Jerry violated this rule with respect to (I think) his Uncle Leo, to Leo’s great offense—he was all like “if you’re in town, you gotta call me”, yada yada yada). This may seem like a fictional invention, but it persists at least amid some subset of the population. I know this because I've been on the receiving end of it a few times, including just the other day. A friend sent an email saying “Hey, I’m in LA. How are things?” I wrote back suggesting that we meet up (which I sort of assumed was the point of the original email), and the response came: “No time to meet up. Just saying hello.” I was baffled and kind of offended in equal part.

The reason this baffles me is that, unlike the elevator-door norm, I can’t come up with a plausible, practical explanation for the obligatory in-town courtesy call. You’re no more or less capable of calling or emailing out-of-town friends when you’re in their neck of the woods (although maybe it's a holdover from the pre-cellphone days when local calls were significantly cheaper?). And as my story above suggests, the in-town courtesy call norm may actually come off as discourteous; it seems to emphasize to someone that their friend or relative is not interested in seeing them during their time in the same city ("Hi, I'm in town, and I just wanted to call and let you know that I won't be making time for you."  Ouch!).

So I write this for a pair of reasons. The first is to canvas the blogosphere to see if there is some intuition or practical explanation behind the Seinfeldian in-town courtesy call that has thus far escaped me. And if not, the second is to query whether this conduct falls into a category I’ve come to think of as the “pure” social norm. The pure social norm is an expectation about social behavior that persists despite its neither having any instinctive moral force, nor having a plausible practical explanation. It's a norm for norm's sake.   Does such a category exist? Is this kind of norm distinguishable from other ones? Should we act in a way that intentionally frustrates pure social norms in order to extirpate their wasteful presence from our lives? These are the things Seinfeld makes me think about. What the hell is wrong with me?

Posted by Dave_Fagundes on June 8, 2009 at 09:17 PM in Culture | Permalink | Comments (6) | TrackBack

Federalism and Abortion


Today’s Washington Post includes a depressing article   for those of us who are pro-choice.  The article documents how the abortion fight has moved to the state level, and details some of the means by which anti-abortion groups are chipping away at a woman’s right to choose.

My first job after I graduated from college was working at the National Abortion Rights Action League.  True, I was a mail clerk, but, as I checked packages to make sure that we were not receiving any bombs, and as I mailed out material supporting the right to choose, I felt like I was doing good and meaningful work.  Almost 30 years later, I can’t believe how little has changed in the culture wars over abortion, and I’m struck by how much positions have hardened.

When the Supreme Court guaranteed the right to choose in the seventies, the focus was on the changing lives of women, and the often tragic circumstances of those resorting to risky, illegal abortions.  Today, the women seeking abortion have almost disappeared from sight, replaced, when they are thought about at all, by inaccurate caricatures that overlook the fact  that poor women who lack systematic access to effective contraception are those who have the greatest need for access to abortion.   The overlooked issue in the abortion debate is its effect on poor women, who are more likely to get an abortion than are wealthier women.  As the Post article notes, poor women are disproportionately affected by the practicalities of obtaining an abortion and by legal restrictions. The Guttmacher Institute reports that the abortion rate for women whose income is lower than the federal poverty level “is four times that of women above 300% of the poverty level (44 vs. 10 abortions per 1,000 women).”    The higher rate is, at least partially, due to the much higher rate of unintended pregnancies among poor women. 

Even when they are able to obtain abortions, two-thirds of poor women report that they would have liked to have undergone the procedure at an earlier time.   Clearly, access to abortion is critical to the reproductive choice for poorer women.  The decrease in the number of abortions through the nineties was, perhaps surprisingly, not primarily due to legal restrictions on abortion.  Instead, the decline was based, at least in part, on states making a commitment to sex education that was not abstinence-only and on states making contraception widely available.  


            As June Carbone and I have argued, reproductive autonomy is most readily available for the affluent,  and it is increasingly beyond the reach of the most vulnerable. Family planning efforts of all kinds have been the biggest casualty of ideological politics. 

Posted by Naomi Cahn on June 8, 2009 at 09:13 PM in Gender | Permalink | Comments (5) | TrackBack

Just in Case You're Collecting Fact Patterns for Next Year's Exams . . .

Here in Colorado, the Boulder Daily Camera reports a new wrinkle on the meaning of nuisance that provides potential fodder for next year's tort and property exams.  A local affordable housing program has warned two tenants that they need to reconsider their penchant for outdoor gardening while clad only in thongs (and, in the woman's case, pasties).  While the tenants' behavior does not violate local public indecency law (which prohibits the public display of one's genitalia), the landlord argues that such conduct constitutes a nuisance prohibited by the lease and is thus grounds for eviction.  If the couple is evicted, and chooses to fight, "the municipal court would be left to decide whether their behavior constitutes a nuisance."

Posted by Helen Norton on June 8, 2009 at 07:13 PM | Permalink | Comments (0) | TrackBack

Cord Blood Banking: Worth It?

As I indicated in Eduardo's post the other day about paternity leave, I'm thrilled and a bit nervous about the prospect of becoming a dad later this summer--blogging has thus fallen a bit as I try to take care of a number of loose ends both in and outside my professional life, e.g., buying a four door car (Accord or Odyssey? Camry or Siena? Hybrid or worry about the EMF radiation?)

One thing I figure the Prawfs crowd of readers has probably considered is the issue of preserving the baby's cord blood. What say y'all on whether it makes sense to do? I posted this quandary earlier on Facebook today and most of the six people or so who have responded (including the wife of my cousin/doctor) have said it's an enterprise basically aimed at preying upon anxious parents (who me?) at vulnerable times with very little prospect of benefit.  Apparently the academy of pediatricians agrees. What do you think? Disagree? Please feel free to post links in the comments to help nervous nellie parents to be. Thanks.  And feel free to weigh in on the respective car choices too...

Posted by Administrators on June 8, 2009 at 04:24 PM in Deliberation and voices | Permalink | Comments (7) | TrackBack

Sentencing Judges, Explain Yourselves

It's always interesting to see a topic one is writing about show up in the advance sheets.  (I suppose "interesting" isn't quite the right word for it when a new case requires a massive rewrite -- as happened to me when the Supreme Court decided Blakely v. Washington -- but fortunately that's not where this post is headed.)  I've been on a procedural justice kick in my scholarship for the past couple years.  First, I took on procedural justice in plea bargaining (e.g., here and here).  Then, I got interested in how the social psychology model of procedural justice might play out in the sentencing context, particularly with respect to the explanation for the sentence provided by the sentencing judge.  The Seventh Circuit had a good decision in this regard a few years ago in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), which indicated that judges must provide an express reason for rejecting nonfrivolous arguments made by defendants for a sentence below the recommended sentencing guidelines range.  As I discuss in a forthcoming Florida State Law Review article, however, post-Cunnigham cases, including the Supreme Court's decision in Rita v. United States, 551 U.S. 338 (2007), have largely undermined the robust explanation requirement that was seemingly contemplated by Cunningham.

But a new Seventh Circuit decision from just last week, United States v. Harris, tells us that the Cunningham explanation requirement still has some life left.  


Here's what happened.  David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.  This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.  At sentencing, counsel identifed Morrow's health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.  Yet, the sentencing judge said nothing about Morrow's health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

On appeal, the Seventh Circuit vacated Morrow's sentence.  Citing Cunningham, the court held that the sentencing judge did not adequately explain the sentence because the judge failed to address the health argument:

[W]e cannot assure ourselves that the district court weighed Morrow's health complications against other factors when it imposed the 504-month sentence, as we see no indication that the district court considered it.  We therefore remand Morrow's case for resentencing.

Harris is notable for being one of the few post-Rita cases to reverse a sentence for inadequate explanation (the Sixth Circuit also has a couple).  As I discuss in the Florida State article, these decisions generally seem to ignore or misinterpret RitaHarris, though, suggests an interesting basis for distinguishing Rita.  In Rita, the Supreme Court held that the sentencing judge was not required to address the defendant's arguments for a below-guidelines sentence (which, coincidentally, also included arguments based on health concerns).  But, as the Seventh Circuit noted in Harris, Rita's guidelines range (33-41 months) was both much narrower and much lower than Morrow's (360 months to life). 

And, intuitively, these considerations do seem to matter.  That is, Rita does not seem entitled to as thorough an explanation for his 33-month sentence (at the bottom of his relatively low guidelines range) as is Morrow for his 504-month sentence (twelve years above the bottom of his relatively high guidelines range).  This is consistent with the logic of Mathews v. Eldridge, 424 U.S. 319 (1976),  which indicated that the strength of required procedural protections varies according to the magnitude of the individual interests implicated by a government decision -- recalling that the liberty deprivation Rita faced was much less severe than the liberty deprivation Morrow faced.  Additionally, the fact that Rita was sentenced at the bottom of his range at least implicitly reflects consideration of mitigating circumstances, while Morrow's mid-range sentence provides no such reassurance.  In short, I think Harris may be onto something in focusing on the severity of the guidelines range and placement within the range.

By the way, responsiveness to defendant arguments is, I think, only one aspect of what should be included in a good sentence explanation.  I am working on a new paper now that attempts to go beyond Cunningham in identifying additional principles that ought to be employed by appellate courts in reviewing the adequacy of an explanation.  I will present the paper at the Marquette Criminal Appeals Conference on June 16, and I hope to have a draft on SSRN by the end of the month.

Posted by Michael O'Hear on June 8, 2009 at 03:33 PM in Criminal Law | Permalink | Comments (1) | TrackBack

How Do You Write and Publish an Op-Ed?

One thing it seems that a good number of law prawfs do from time to time is to write op-ed pieces for newspapers.  I've tried to do this a number of times.  My attempts have always failed.  Generally, some issue comes up that I think I could say something about, so I write 700 words about it and email it to the editors of some newspapers and then nothing at all happens.  Maybe the pieces are still under consideration, but given that I sent most of them at least three years ago, I doubt it.

So, I'm wondering if those of you who have successfully written and placed op-eds could provide some advice for those of us who would like to publish one but have no idea how to best go about it.  I guess one question is whether people really do just write up op-eds and send them cold to editors and get them published, or whether they are instead generally solicited.  Assuming that they are not all solicited, what are your tips for getting an op-ed published?  To what papers and what people do you send them?  Do you send them to one place at a time or are multiple submissions OK in some circumstances?  What papers are most receptive to unsolicited submissions?  What issues are most likely to grab an editor's attention?  What else?

Posted by Jay Wexler on June 8, 2009 at 08:29 AM in Jay Wexler | Permalink | Comments (5) | TrackBack

Saturday, June 06, 2009

AALS Happy Hour with the Conglomerate & Workplace Prof Blog

Fresh off the Law & Society festivities comes another happy hour opportunity for those of you in Long Beach next week for the AALS Mid-Year Meeting or otherwise:

Mai Tai Bar Long Beach, Wednesday, June 10, at 8:15

Here are walking directions from the Westin.  The Conglomerate folks are responsible for the initiative, and we and the folks at Workplace Prof Blog are happy to glom on.  (Get it?  Glom?  I'm here all week, people!)  Sadly, there are no Scorpion Bowls, but other fruity Polynesian drinks appear to be in ample supply.

Posted by Matt Bodie on June 6, 2009 at 05:27 PM | Permalink | Comments (1) | TrackBack

Friday, June 05, 2009

June Wedding Announcements


Gay marriage is, once again, in the news.  As of Wednesday, New Hampshire became
the 6th state to allow same-sex marriage, and gay marriages can be officiated there
as of January 1; Dick Cheney, whose daughter, of course, is gay, thinks that gay 
marriage is something the states should work out; and some 18,000 same-sex 
California marriages are legal, even though same-sex marriage is otherwise illegal
 in the state. And then there’s Surrogate (and former CUNY Law School Dean)
Kristin Booth Glen’s opinion in In re Sebastian (N.Y. Surr. Ct.

Apr. 9, 2009).  She granted one lesbian spouse's petition to adopt a son born to the other spouse.  Judge Glen acknowledged that while "an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of [both his mothers] as his legal parents throughout the entire United States.”


Not surprisingly, all of the states in which same-sex marriages are recognized or in which they are legal are blue.   June Carbone and I have written in Red Families v. Blue Families (Oxford University Press, forthcoming) that the new information economy is transforming the family, resulting in the development of two different family paradigms: red and blue.  The blue family paradigm emphasizes the

importance of women’s as well as men’s workforce participation, egalitarian gender roles, and delay of marriage and childbearing until both parents reach emotional maturity and financial self-sufficiency.   In this world, teen childbirth is a tragedy, gay and lesbian neighbors commonplace, and the consensual sexual lives of adults a matter of privacy.  Red families, or more accurately, those who have pushed a “moral values” agenda, reject the new culture.  They continue to emphasize religious teachings that celebrate the unity of sex, marriage and reproduction.  Red regions of the country, however, have higher teen pregnancy rates, more shot gun marriages, and lower average ages of marriage and first births.     


Same-sex marriage is, in many ways, critical to the terms on which the two paradigms will be defined going forward.  Recognition of same-sex marriage has the potential to revitalize discussion about what marriage is for – and for whom it is compelled.   The fear within the red family world is that recognition of same-sex marriage underscores the point that marriage is a socially constructed institution, governed by the law, rather than part of an eternal divine order.   If marriage is humanly created and defined, then it is also changeable – and ultimately optional as a way to order intimate relationships.  

On the other hand, the ultimate challenge to the red paradigm does not, of course, come from gays and lesbians. Instead, the real issue is sex – and the question of continued societal support for a principle – limiting all sex to heterosexual marriage – that no longer commands support from a majority of the population even in red states (though not necessarily the core red constituencies).  



Posted by Naomi Cahn on June 5, 2009 at 02:58 PM in Gender | Permalink | Comments (2) | TrackBack

Questionnaire Answers from Judge Sotomayor

Judge Sotomayor's answers to the Senate Judiciary Committee's questionnaire are available here.

Posted by Matt Bodie on June 5, 2009 at 02:40 PM | Permalink | Comments (0) | TrackBack

Signing Off

Many thanks to Dan and the Prawfsblawg crew for hosting me in the past month.  As always, it’s been a very enjoyable stay.  I’d hoped to write primarily on law teaching and technology but things don’t always go as planned, and I found I had more to say about music and baseball.  The law and teaching technology posts will have to wait for next time (and, in any event, many of Kelly Anders’ posts in the past month raised some great questions about that issue).

Before signing off, I’d thought I’d briefly celebrate Justice Souter’s work on the Court by quoting from, what is these days, my favorite statement of his about First Amendment law – namely, that which recognizes that even unintelligible and nonsensical expression can count as protected speech.  An “articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.”  Hurley v. Irish-American Gay Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569 (1994).  More on the implications of that in an article (or two) coming soon to a journal and SSRN posting near you.

Posted by Marc Blitz on June 5, 2009 at 01:49 PM | Permalink | Comments (0) | TrackBack

Baseball Stories in Search of a Good Legal Analogy

There’s a Supreme Court confirmation hearing on the way and that probably means we’ll be hearing some more baseball analogies.  At Chief Justice Roberts’ hearing four years ago, we heard him compare judges to umpires calling balls and strikes as they see them.  Then we heard Vice President (then Senator) Joe Biden point out that different umpires had different strike zones.  (For a recently posted analysis, see Michael Patrick Allen, A Limited Defense of (at Least Some of) the Umpire Analogy).

I’m guessing baseball metaphors are just as likely when Senators question the judge who put an end to the 1994-95 Major League Baseball strike.   So I thought I’d start a list of some of my favorite baseball trivia, stories, and bizarre coincidences in the hope that at least a few of them will provide Judge Sotomayor or the Senate Judiciary Committee with an effective and entertaining way to teach the world about the virtues required of a good judge.

I’ve suggested a few possible parallels in the legal world, but hopefully the Senate Judiciary Committee (perhaps with your help?) will be able to find some better ones.  In any case, feel free to add your own examples and reflections in the comments (and be aware that those looking for baseball metaphors that have already been tested in the crucible of judicial argument can learn a lot more from fellow Prawfsblawger Chad Oldfather’s article, The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions, than they can from this blog post, fun though it was to write).

1.     In 1890, Mike “King” Kelly, was the manager of the Boston Reds.  When a foul ball was hit toward the bench he was managing from, Kelly quickly shouted “Kelly now catching for Boston,” thus making himself the team’s catcher (under baseball’s rules at the time) and made the catch and the out.  

Possible Law Analogy:   Anybody who has seen enough oral arguments has seen at least one occasion where a judge can no longer bear watching an attorney miss opportunity after opportunity to make a powerful argument for a position that the judge is sure deserves a better one, and so, steps in himself or herself to do the job correctly, much as a part owner and President of Operations of basketball’s Washington Wizards (by the name of Michael Jordan) decided the only way to improve the Wizards’ play was to put himself in the game.  New Argentine national soccer team coach, Maradona, will probably make the same move sometime in the next World Cup.  It’s just a matter of time.

2.      One of my favorite nicknames from 19th century baseball was the one that belonged to “Death to Flying Things” Ferguson (and before that, to his Brooklyn Atlantics teammate “Death to Flying Things” Chapman). Ferguson got the name because he often used his first-rate fielding ability to dash the hopes of hitters.  Apart from having a colorful nickname, Ferguson was also a colorful character.  He gained fame as a member of the Brooklyn Atlantics team that in 1870 finally ended the 89-game winning streak of baseball’s first openly professional team, the Cincinnati Red Stockings (and respectively batted in and scored the tying and winning runs in that game).  As an umpire in an 1872 game, he also used a baseball bat to break the arm of a player that had the temerity to argue with him.  I doubt if this is the kind of umpire behavior Chief Justice Roberts had in mind when comparing judges to umpires calling strikes as they see them.

You don’t find too many nicknames like “Death to Flying Things” in modern baseball, and I’m kind of surprised no one revived it for the baseball player that probably did the most to earn it – newly-minted 300-game winner Randy Johnson – whose 95 mph pitching actually did cause the death of a flying thing a few years ago.

Possible Law Analogy:   If arguments in legal briefs could flap their wings and fly around, there’d certainly be some judges whose blunt opinions would earn them the nickname “Death to Flying Things.” 

3.     The 1914 and 1915 baseball World Series provided some of the most unusual and unlikely trading of places in baseball history.   After the National League’s Boston Braves won the World Series in 1914, their American League Boston counterpart, the Red Sox won the World Series in 1915.  The Boston Braves had beaten the AL’s Philadelphia Athletics in 1914, and the Boston Red Sox then beat Philadelphia’s NL team, the Phillies, in 1915.  To top it off, the Boston Braves used the Red Sox stadium, Fenway Park, as their home field in their 1914 Series appearance (their new one was under construction) and the Red Sox then used the Braves’ new field as their home field in the Series a year later (it could accommodate more fans).

Possible Law Analogy:    In FDA v. Brown & Williamson Tobacco Corp.(2000), Justice Scalia, although well-known for his textualism and opposition to reliance on legislative history, signed on to a Supreme Court majority opinion the featured extensive analysis of legislative history.   Justice Breyer, who often takes the opposite side of the statutory interpretation debate, chastised the majority fin that case for adopting an interpretation contrary to the text’s meaning.  There is also a rumor (can anyone confirm it?) that immediately after the decision was issued, Justice Breyer fooled everyone by wearing a Justice Scalia disguise to give a Federalist Society Keynote Speech while Justice Scalia wore a Justice Breyer disguise and delivered a Harvard Law School talk entitled “Getting International Law, Legislative History, and Lots of Other Stuff into Supreme Court Decisions Via Subliminal Messages.”

4.     Closer to our own time, and to my own pain:  In 1999, Chicago Cubs’ pitcher Jon Lieber pitched a perfect game through 7 innings and 2 outs, retiring 20 consecutive batters and striking out 9 of them.

But he never got the third out of the 7th inning.  Rather, he then gave up six straight hits in six pitches, including three home runs.   And ended up with six earned runs in the inning and the game before being pulled out of it (very quickly).   The Cubs lost the game 7-2 and, to make it worse, the Cubs’ loss was to the St. Louis Cardinals. 

Possible Law Analogy:   For almost every inning of the 20th century, the Commerce Clause gave no ground in the Supreme Court to those who would limit it.  The 1995 case of United States v. Lopez then broke up that perfect record.   The problem with the analogy is that Jon Lieber’s perfect game was broken up by a hit from Mark McGwire that eventually landed outside the field for a home run.   By contrast, in the wake of the Supreme Court’s decision in Gonzales v. Raich, the Lopez ruling is more like a very a long and high fly ball that hasn’t yet landed.

Jon Lieber has had late inning perfect games and no-hitters-in-progress stopped on other occasions.  An Andres Galleraga home-run dashed a 2000 no-hitter of his in the 7th inning (and the Braves, with Greg Maddux as their pitcher) ultimately beat the Cubs 1-0).  On other occasions, he’s lost the perfect game or no-hitter in 7th, but still won the game (9/19/04, pitching for the Yankees and on 5/13/06, pitching for The Phillies).

5.     In 2003, Chicago Cubs were playing the Florida Marlins in the NL Championship series and only five outs away from reaching the World Series for the first time since 1945.  As every baseball fan knows, everything changed when a foul ball chased by Cubs outfielder Moises Alou was knocked away by an excited fan. (Although Alou now says he would have likely missed it anyway). This was followed by 8 Marlins runs, which resulted in a Cubs loss that day, soon to be followed by another Cubs loss, and another year spent watching the World Series instead of playing in it.

The Cubs have done a lot to get back to the World Series since 1945, even trying to make up for one likely source of “the Curse”: The hex that Billy Goat Tavern Owner Billy Sianis placed on them after the team refused to let him remain in Wrigley Field with his goat during the 1945 series.  They’ve let Sianis’s nephew bring a goat into Wrigley Field (albeit a different one) in 1984 and 1994, and they’ve held curse-ending press conferences at the Billy Goat Tavern.  Magically-minded Cubs’ fans have tried curse-transferring rituals (perhaps unintentionally removing the Red Sox curse from Boston and bringing it over to add to that which already weighs down The Cubs.  As Harry Potter author J.K. Rowling would probably point out, this kind of thing just isn’t a job for muggles).

Possible Law Analogy:   I think that Congress’s efforts to regulate porn on the Internet, which failed in Reno v. ACLU, and again in Ashcroft v. ACLU, are also cursed – except, as in United States v. American Library Association, when Congress uses its power to attach spending conditions to funding for state governments  (since attempts to limit that power are just as if not more cursed).

6.     The Baltimore Orioles of the 1890s were one of the late 19th Century’s – and baseball’s – best teams.  They reached the Temple Cup Series (a 19th c. precursor to the World Series) all four times it was played and won it twice.  They were also known as inventors of “scientific baseball” and featured some of the best players of the day, including John McGraw, Hughie Jennings, Wilbert Robinson, and “Hit ‘Em Where They Ain’t” Wee Willie Keeler.  Three of these, McGraw, Robinson, and Jennings went on to use their baseball analysis skills to become storied baseball managers for many years in the early 20th century (Jennings managed Ty Cobb’s Detroit Tigers and was, as I noted in a previous blog post, one of only seven managers in baseball history who had a law degree).

Possible Law Analogy:   The Orioles of old invented scientific baseball.  A contemporary of theirs, attorney Louis Brandeis, invented the science-and fact-intensive “Brandeis brief”  And just as many of their Orioles took their habits of analysis as players to managerial jobs later in their careers, attorney Brandeis later became Judge and then Justice Brandeis.  

7.     After a history of baseball in which no team had gone from last place one year to a league championship in the next, in 1991, **both** the AL and NL Champions, the Minnesota Twins and Atlanta Braves, were teams that had finished last in their division the previous year.  The result was one of the closest World Series ever played, with three games decided in extra innings, four decided in the final at bat, and the Twins coming back from being down 3 games to 2 to win the 6th game in the 11th inning (on a Kirby Puckett home run) and the 7th game in the 10th inning.  This was also the first seven-game world series since Minnesota previously beat St. Louis in 1987 to win their first World Series since they had won it, in a “past life” (and with a past identity) as Walter Johnson’s Washington Senators in 1924.  Despite these dramatic contributions to baseball history, the power-that-be in the Major Leagues in 2001-2002 contemplated simply eliminating the Twins in a proposed MLB contraction.  You can read more about that, and the law related to it, in Minnesota’s ‘Homer Hanky’ Jurisprudence: Contraction, Ethics, and the Twins by Paul Horan and (Prawfsblawger) Jason Solomon.

Possible Law Analogy:   Of course, there are also instances in constitutional law of “the last shall be first, and the first shall be last.”  It happens when a dissenting opinion comes to be the Court’s ruling, and while this usually doesn’t happen quite as quickly as it did between the 1990 and 1991 baseball seasons, it can happen pretty fast.  It took only 9 years for the Court to overrule National League of Cities v. Usery, 7 years for the Court to discard Pennsylavania v. Union Gas, 3 years to reverse Minersville School District v. Gobitis.  Some overrulings have come even more quickly.  One the other hand, some Sup. Ct. decisions last longer, like Flood v. Kuhn, written by Justice Harry Blackmun, a Minnesotan, and including numerous references to baseball history (including one to Clark Griffith, whose nephew Calvin, moved Griffith’s Washington Senators to Minnesota and renamed them the Twins).

8.     Speaking of come-from-behind World Series victories, another impressive one occurred when the 1979 Pittsburgh Pirates – with one of the year’s hit songs, “We are Family” as their theme song – came behind from a 3-1 Series deficit to beat the Baltimore Orioles led by Willie “Pops” Stargell.

Possible Law Analogy:    I read (or perhaps dreamed about) a good history of The Supreme Court recounting that Chief Justice Burger – who was Chief Justice during the 1979 World Series – used to similarly have all the Justices sing “We are Family” just before Supreme Court deliberations to try to promote camaraderie, and to emphasize the same communitarian themes that he liked to include in his opinions.

9.     It’s not uncommon for injuries to send baseball players to the disabled list, but some get there for more memorable reasons than others.   Among those the most memorable are those where a player was taken out by an insect or arachnid. Milwaukee Brewers Dave Nilsson had to go on the DL after a mosquito bite got him sick in Australia.  Cubs player Jose Cardenal had to miss a game after being kept up all night by singing crickets (The unlucky Cardenal had to miss another game when his eyelid got stuck shut, perhaps thanks to some microscopic bug?).  And Toronto Blue Jays’ DH Glen Allen Hill learned the hard way that imaginary bugs can be even more dangerous than real ones when a nightmare about being attacked by spiders sent him crashing through a glass table.   All this makes me wonder whether “scientific baseball” has now quietly been taken to a new level, with entomologists – and perhaps voodoo practitioners –hired by unscrupulous team owners to send trained insects and spiders, or evil dreams, after their opponents’ players.

Possible Law Analogy:   A pesky insect not only has the power stop a baseball player in his tracks.  It can also stop a massive construction project (with a little help from federal legislators, administrators, and judges).  When San Bernardino County wanted to build a new hospital, it found its plans thwarted by the Delhi Sands Flower-Loving fly (when fly was classified by The Fish and Wildlife Service as an endangered species).  The DC Circuit then ruled, in Nat’l Assoc. of Homebuilders v. Babbitt, that this protection of the Delhi Sands Flower-Loving Fly was within the federal government’s power under The Commerce Clause.

10.     English-born journalist Henry Chadwick was the most prominent baseball journalist of the late 19th century and deserves a lot of credit for today’s Moneyball/SABRmetrics methods of thinking about the game.  He’s considered the inventor of the box score and one of the major forces in making player statistics such an important part of baseball culture.

But just as important as his contribution to this supremely rational side of baseball culture was his contribution to the more mystical, faith-based element of its nature.  More specifically, when he made the highly plausible suggestion that baseball evolved from the English game of rounders, an indignant Al Spalding set out to prove him wrong by showing it was 100% American in origin.   He worked in 1905 to set up the Mills Commission to solve baseball’s origin once and for all (and make sure that solution placed its beginnings squarely on American soil).  Spalding and the Commission found what they were looking for when they received a letter from 71-year old Abner Graves, who remembered being present in Cooperstown, New York at the time that Abner Doubleday (later a Union General in the Civil War) invented the game in 1839.  Graves was 5-years old in 1839.  And Doubleday was probably too busy with his studies at The West Point Military Academy that year to travel back to Cooperstown and invent baseball.  But the story became legend and Cooperstown, NY became hallowed baseball ground, and the site of the Hall of Fame.

As Chad Oldfather’s article points out, Spalding thus helped to enshrine the notion that baseball was the quintessential American game and helped to do so by following up his Doubleday “discovery” with the following passage in the book, America’s National Game:

“It would be as impossible for a Briton, who had not breathed the air of this free land as a naturalized American citizen; for one who had no part or heritage in the hopes and achievements of our country, to play baseball, as it would be for an American, free from the trammels of English traditions, customs, or conventionalities, to play the national game of Great Britain.” (Perhaps he’s right: there were, I think, no American entrants in “Britain’s Got Talent.”).

Possible Law Analogy:  Much as Chadwick had done years earlier, historian Leonard Levy caused a stir in the world of First Amendment scholarship with the 1960 publication of his book, The Legacy of Suppression.  He proposed that the Framers’ understanding of First Amendment free speech was not a radical new safeguard for speech unique to America, but rather the old notion of English writer William Blackstone that “the liberty of the press consists in laying no previous restraint on publications and not in freedom from censure from criminal matter published.”  In other words, suggested Levy at the time, the Framers’ vision of First Amendment free speech was not our own modern broad notion of it – which protects people from being thrown in jail for unpopular statements – it was rather a much narrower conception, which barred the government only from censoring a speaker ahead of time (not from punishing him afterwards).  Many scholars disagreed with Levy’s thesis, arguing that the American conception of free speech at the founding was different from, and broader than, the earlier English one proposed by Blackstone. 

11.     There are lots of colorful fan chants, cheers, and paraphernalia.  Twins fans have homer hankies and Orioles fans yell out “Oh!” during the “O Say Can You See” line in the National Anthem.   One of the most legally-relevant has been the little stuffed rally monkey that Angels’ fans wave around, not only because it was at the center of a trademark fight, but also because it is a fan ritual that is supposed to be reserved only for the dire circumstances where it is necessary:  Rally monkeys are to be used only when “the Angels [are] either losing or tied in the 7th inning or later.”

Possible Law Analogy:   Thus, the use of the rally monkey is essentially an emergency power.   Like habeas suspension, it is not supposed to be trotted out every time someone can imagine a possible role for it in ordinary politics.  It also like the Article IV Amendment process, not be used before one tries other more ordinary chants, cheers, or magic rituals.  It’s rather supposed to be there for those rare situations when you need extraordinary measures.  Of course, the analogy isn’t perfect: as good a team as the Angels were in 2002, when the rally monkey became a national celebrity, they were probably behind in a home game (with rally monkeys twirling everywhere) far more often than we’d like to find ourselves invoking emergency or using the Article V amendment process. 

12.     In 1901, teams in an upstart new professional baseball league – the American League – started stealing star players from the more established National League, which had been around since 1876.   One of most famous players to switch leagues was star second baseman, Napoleon Lajoie, who jumped from National League’s Philadelphia Phillies to the American League’s Philadelphia Athletics.  The Phillies got a court-granted injunction preventing Lajoie from playing for anybody else, which led to the Athletics to trade Lajoie to another AL team to keep him outside the court’s jurisdiction.

Possible Law/Politics Analogy:   Lajoie’s cross-town league switch bears an uncanny similarity to the jump that Senate Judiciary star Arlen Spector would make 108 years later from the Pennsylvania Republican Party to being a Pennsylvania Democrat.   There’s also Planned Parenthood of Southeastern Pennsylvania v. Casey, where Gov. Casey took a position on Roe v. Wade at odds with those of many other Democrats and where Justices O’Connor, Kennedy, and Souter took positions surprising to many who expected a different one from nominees of Republican Presidents.  I suppose the analogy’s not the greatest fit in the world: Lajoie didn’t move to the American League because he decided he found their rules or philosophy more to his liking (he had no particular fondness for the Designated Hitter rule, which wasn’t introduced until 1973 anyway).  Like many other star players at the time, he just got a better offer.

13.     Speaking of switching leagues, there are only a handful managers good enough to have won World Series in both leagues (Sparky Anderson and Tony LaRussa), and Cy Young Awards on both an AL and NL team (Roger Clemens, Randy Johnson, Pedro Martinez) or a batting championship in both (Ed Delahanty).

Possible Law Analogy.   Some judges have won admiration from both sides of the political aisle.  The most topical example, of course: Judge Sonia Sotomayor was originally nominated to be a federal judge by George H.W. Bush before being elevated to the Second Circuit Court of Appeals by Bill Clinton and then nominated to the Supreme Court by Barack Obama.

Posted by Marc Blitz on June 5, 2009 at 02:31 AM in Sports | Permalink | Comments (0) | TrackBack

Thursday, June 04, 2009

Scholarship, Relevance, and Division of Labor

I recently read these pungent remarks by Brooklyn's Aaron Twerski in connection with his receipt of the Robert C. McCay Law Professor Award from the Torts and Insurance Section of the ABA.  Twerski observes and endorses criticisms of contemporary legal scholarship as "out of touch" and "lack[ing] relevance to the work" of  judges and lawyers.  He writes,

If interdisciplinary work is to have an impact on the changing face of the law, it must be made accessible to the lawyers and judges who are not schooled in other disciplines.  And the scholars must demonstrate that the theories they set forth have real-world relevance -- that they make a difference.

Relatedly, he criticizes prestigious law reviews for not publishing, and tenure committees for not adequately recognizing, traditional doctrinal scholarship.  In his view, the academy's inattention to doctrinal scholarship has led to plummeting citations to law reviews in judicial opinions.  He contrasts this with high citation counts for the Restatements of Law, and holds out Restatement drafting as an example of relevant work for law professors to do.

I am sympathetic to Twerski's position.  (Indeed, Twerski's remarks are similar enough to some comments I recently delivered in a similar setting that they were linked together in this blog post by Joseph Kearney.)  I do think that law faculties ought to be generating work that is seen as accessible and useful by judges and lawyers.  I also think it unfortunate that direct engagement in important law-reform efforts is so devalued in the academy relative to placing articles in top-twenty law reviews.  Twerski's comments brought to mind a conversation I had a few years ago with a senior colleague at another law school who has managed in his career to be both a prolific scholar and a significant player in several national law-reform initiatives.  After making similar observations to Twerski's about the irrelevance of much legal scholarship, my friend argued that tenure candidates should be evaluated based not only on their track record in generating good ideas, but also on their efforts to get policy-makers to pay attention to their work.  I think there is something to his proposal (although, I should hasten to add, I myself have fallen far short of living up to the example set by my friend in this regard).

Still, I think it is possible to overstate the extent of the academy-practice disconnect.  In particular, care should be exercised in generalizing from what is happening in the top-twenty law reviews and what untenured law professors are doing with their time. 

There is, I think, a rough division of labor in the academy, albeit one that is far from transparent to outsiders.  Let's assume that an important task of the legal academy is to produce insights and information that are useful to judges and lawyers, drawing on both interdisciplinary and traditional doctrinal methodologies.  It would seem a rather elementary proposition that this task is more efficiently performed if the diverse sub-tasks are disaggregated and different individuals and institutions specialize in handling different ones.  And such a division of labor is indeed apparent to me along at least three dimensions.

First, there are the law reviews themselves.  Twerski posits that William Prosser's influential 1960 article "The Assualt upon the Citadel" would not grace the pages of the Yale Law Journal if submitted for publication today.  That may be true, but there are far more venues for publication now than there were in 1960, and there can be no doubt that a good exercise in "case-crunching" like Prosser's would find a respectable home somewhere.  Not surprisingly, the explosion in the number of law reviews has been accompanied by specialization.  This is most vividly apparent in the proliferation of subject-matter-specific journals.  More subtly, though, it's my impression that the "general" journals at some law schools (particularly those outside the top tier) tend to specialize in traditional doctrinal pieces.  Now, perhaps someone has done an empirical study that will prove me wrong.  But, when I do Westlaw searches of the JLR database, I am consistently struck by the different methodologies employed by articles that appear in the journals of top-twenty law schools and the journals of schools ranked, say, 75-125.  I also recall a conversation about acceptance criteria with an articles editor at one of the latter journals: I was told point-blank the journal was only interested in doctrinal pieces and that "theory" articles were rejected out-of-hand.  True, this is only one journal, but it seems consistent with the pattern of articles placement I have observed over the years with friends and colleagues.

Second, there is specialization among law professors.  We all know of law professors whose work is so firmly grounded in some other academic discipline (economics, philosophy, etc.) as to be useless to a reader lacking some expertise in that other discipline.  We also all know of law professors who write only for other law professors -- their work only really engages with the work of other academics, who are themselves only writing for other academics.  But there are others who specialize in spinning out the implications of work in other disciplines and of high theory for practice and doctrine.  (I fancy myself among their number.)  And, yes, I look around myself in the academy, and I still see a great many law professors who specialize in case-crunching.  To be sure, such academics tend not to be at the top of the prestige ladder -- which may or may not be a problem -- but the fact is that one can still make a pretty decent career in this profession (even as a younger scholar) through traditional doctrinal scholarship. 

Third, there is differential specialization even within a single academic's career.  Tenure standards, for better or worse, do push younger scholars to specialize in law-review publication.  But, post-tenure, people tend to head off in a variety of different directions.  The dark side of this, of course, is the occasional tenure-abuser who doesn't do much of anything besides show up to teach his or her classes.  I think everyone should still be writing post-tenure, but people can and do specialize in diverse ways with respect to the type of writing.  Some continue along the law-review track or move into other forms of academy-oriented writing.  But others specialize in writing that is particularly intended to reach lawyer/judge audiences: treatises, some blogs, Restatements, amicus briefs, and so forth.  Moreover -- and I think this is a wonderful feature of tenure -- one can change one's focus periodically across one's career.  Again, there are prestige differences here that may be a matter of concern, but the point is that the orientiation of most untenured scholars to publication in the top-twenty law reviews is not necessarily representative of the type of writing that most tenured professors do.

Are there legitimate concerns about how well legal scholarship is serving the needs of the bench and bar?  I tend to think yes -- but also that perceptions of the academy-practice disconnect are sometimes greater than the reality.

Posted by Michael O'Hear on June 4, 2009 at 05:55 PM | Permalink | Comments (1) | TrackBack

Still more on Iqbal and Twombly

The prolific folks at Drug and Device Law responded to my post, arguing why Iqbal/Twombly is the right approach to pleading. I would respond by pointing to two points on which actually, somewhat, agree.

First, they criticize Conley for allowing plaintiffs to get away with complaints that say "Defendants violated my rights" or "Defendants injured me" or claims "an FDA violation." I agree that such complaints are insufficient. For one thing, I do not believe that a proper reading of Conley allows such complaints. And while I have no doubt that such complaints are filed all the time and some may even get passed some judges, I question whether they are the norm or whether going to the opposite extreme is the solution to such abuses. For another, there was far more to the complaints in both Twombly and (especially) Iqbal and it is not clear in that sort of case what the plaintiff possibly can do to get into discovery.

Second, they close their post with the following:

Carl Sagan once said that extraordinary claims require extraordinary proof. He should have been a lawyer. In today's legal environment, given the huge expense of discovery as a means of generating the necessary proof, at the outset extraordinary claims properly demand more rigorous pleading.

Again, I probably agree. But if we set too high a pleading hurdle, there never will be an opportunity to actually prove extraordinary (or even ordinary) claims when the proof is available only through some formal discovery process from which plaintiffs are barred when they are unable to allege facts that they cannot know or prove without discovery.

Ultimately, I think we may just have to agree to disagree as to whether the system should be skewed in favor of Type II errors (meritorious claims dismissed at the outset) over Type I error (non-meritorious claims getting into discovery). That is the bottom-line policy dispute at work here.

Posted by Howard Wasserman on June 4, 2009 at 05:01 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (6) | TrackBack

Is "Fine-Grained" Always Better?

A couple of days ago -- it feels like light-years in blog time -- Professor Richard Epstein posted a column at Forbes.com on the Sotomayor nomination.  Epstein had already made clear his disagreement with some of Sotomayor's rulings; this time, he turned his attention to "the serious intellectual weakness in the conservative [as opposed to libertarian] case against her confirmation."  In particular, he argued that judicial intervention is not always a bad thing, and thus that "judicial activism" and "strict construction" are not especially valuable critical terms.  He concluded:

However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.

Her opponents have to engage in a more fine-grained inquiry that shows why the judges, like Sotomayor, who work in the progressive tradition embrace a judicial philosophy that leads them to make both kinds of constitutional errors. Intervening in cases where they should stay out--Roe v. Wade comes to mind--and not intervening where they ought to intervene, as in Kelo and Didden. To this libertarian, Karl Rove's broadside won't get this campaign off to an auspicious start.

I know academics are supposed to like careful analysis; I know I do.  And I know there are folks who love the phrase "fine-grained" -- or, in the case of one of my good friends and co-bloggers, "granular."  
But, depending on precisely what Epstein means, it is not clear to me that being "fine-grained" is always a good thing.  As I wrote in my first lengthy post on the Sotomayor "game," sometimes highly technical discussions serve as substitutes or stalking horses for other discussions that are both more incapable of resolution and, in some cases and some senses, less respectable in public discussion: that is, discussions concerning fundamental disagreements over values.  

As I wrote then, both parties have more or less acquired the knack of selecting "qualified" judges for Supreme Court nominations.  With that taken care of, really what many disagreements over nominations come down to is a divergence (or an apparent divergence, driven by the relative extremes in both parties despite vast convergences in the middle) over worldviews or particular substantive issues such as abortion.  But although those broader disagreements often drive the discussion, they have relatively little political traction; they can shore up the base but they can't shift votes.  Moreover, they seem to violate certain norms of political rhetoric concerning judicial nominations.  Polite Senators are expected not to simply say, "I'll only vote for liberal judges," or "I'll only vote for conservative judges."  Instead, they must engage in finer technical analysis, or at least the appearance of finer technical analysis, as a means of arguing that some particular nominee really should be disqualified -- that he or she will be a "bad" Justice because of one speech, or opinion, or memo (viz., Alito).  Lawyers, politicians, and debating society types (who all meet in the middle in some cosmic Venn diagram) may think they are engaging in more substantive and meaningful debate when they conduct their arguments on these terms.  I'm not so sure.  To treat a judge who has issued tons of opinions that more or less meet standard professional specifications (a fairly easy standard to meet, as Posner has written, but it appears to be the one Senators take as their public standard) as "unqualified" because of a stray line in a speech or a single Takings Clause opinion, as in Sotomayor's case, or a single memo, as in Alito's case, strikes me as deliberately missing the forest for the trees.  

To be sure, Epstein could simply be read as wanting to debate Sotomayor on fundamental issues -- just not issues of "judicial activism" or "strict construction."  But his discussion of "fine-grained" analysis, which seems to suppose that if we can just do enough intellectual work, we'll really know whether a nominee ought to be confirmed or not, strikes me as mistaken.  I have, I think (and depending on various factors that will have to await another post), less problem with a Senator who explicitly makes a "no liberal judges" or "no conservative judges" argument than with one who imagines that picking apart speeches and opinions will lead to some deeper truth, some "gotcha" moment.  In such cases, and given the relatively qualified nature of all current Supreme Court nominees, really the only deeper truths we can debate are precisely the ones that will, admittedly, lead to a fairly swift conversational stand-off: liberalism vs. conservatism, pro-choice vs. pro-life, and so on.  It may be dissatisfying to conclude that our most meaningful debates on a nominee like Sotomayor are the unproductive discussions, not the "fine-grained" ones.  But I think it is true.    

Posted by Paul Horwitz on June 4, 2009 at 02:21 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Paternity Leave

If it's June, it must be PrawfsBlawg.  Thanks to all the Prawfs regulars for sharing their space with me for another guest stint.

I thought I'd kick off my visit by talking about my experience this past semester of life on paternity leave.

When we had our first son, two years ago, I was in my first year at Cornell, without tenure, eager to get to know people and make a good first impression.  The result was that, when my son, Sidhartha, was born in the middle of the semester, I missed just one day of class and never really took an extended period of time off to spend with him until the summer.

When we found out my wife was pregnant with our second son, J. Julio, who was due to arrive around the beginning of the fall semester, she pushed me to ask Cornell for a paternity leave in the spring.  That way, she would be able to take her leave in the fall, I would take a leave in the spring, and our son would have at least one of his parents around for most of the first year of his life.  I agreed to ask, and Stewart Schwab (our dean), approved.  I became, I believe (though I'm not 100% sure about this), the first father on our faculty to take advantage of Cornell's generous parental leave policy by taking off an entire semester from teaching.

I found the experience extremely rewarding. It was a lot of fun to spend so much time with our younger son.  I'm close to both my sons, but I think the time I spent during this past semester allowed me to bond with Julio.  On the other hand, I found the lack of the daily routine of teaching to be a little bit disorienting.  I did come in to the office several times a week, both for appointments commitee duties and for workshops, etc.  But Cornell is a place where there is an ethic of coming into the office, and I felt a little bit distanced from the school by my absence.  That was totally self-imposed -- no one did anything to make me feel that way.  But I did feel it.

I have to admit, I also felt a little bit insecure about the whole idea of paternity leave.  I think there's a lot to the notion that, in our culture, men derive a great deal of psychological satisfaction from going to work every day.  Being out and about, running errands, with or without my son, in the middle of day made me feel a little bit strange and somewhat marginal.  If I was with my son at the coffee shop in Trumansburg, for example, I was very likely to be the only man there.  Again, no one stared or made me feel uncomfortable, but, again, I have to admit that I did feel it.  I'm not particularly proud of that, but there it is.

Which leads me to my final observation.  Michael Lewis (of Moneyball fame) has a new book out, called Home Game, in which he talks about his experiences as a first time dad.  I haven't yet read the book, but I heard an interview with him about it on NPR.  In that interview, he said something that I found very interesting.  He talked about the differences between his experience of fatherhood and his dad's.  He said, jokingly, that he thinks our generation of fathers has gotten a raw deal compared to our dads' generation.  His point was that we have more of a role in the domestic sphere, along with the same (or greater) demands outside that sphere. 

He seemed to recognize that, in large part, that raw deal is really just a rebalancing of things to rectify the even rawer deal that our mom's generation of women received.  But, even so, I think he does have a point.  Men today are expected to take a greater role in child-rearing and house-keeping.  And this is all for the better.  I enjoy spending time with my kids; and I even like cooking and (less so) cleaning up.  Plus, it's great to be married to a high-achieving spouse who contributes to the family income and in whose professional accomplishments I can and do take a lot of pride. 

The problem is that this reconfiguration of the American family has not been matched, in my view, by a reconfiguration of expectations in the American workplace.  I obviously don't have a great deal of standing to raise this point, because I work in a sector of the legal industry where this is the least true (see above, where the dean gladly granted me paternity leave).  Michael Lewis may also not be in a really good position to complain.  But if I were working at a law firm, or for the government, or really in any other corner of the legal profession, my wife would have the same expectations about my participation.  I would have the same desire to be involved in my children's lives, but I would have much less of an opportunity to do it.  In fact, I'd probably have less of an opportunity than men of my father's generation, because the hours have gotten worse.  One thing to note, though, is that Lewis is probably assigning blame to the wrong phenomenon.  Men's lives are harder today because we have more demands on our time, but that is due as much to things like stagntating middle-class wages that have forced a lot of families to rely on two incomes, as it is to the changing allocation of responsibilties within the family.

This has been a rambling post, and I apologize for that, but I'd love to hear in the comments from men (and women) who have thoughts on or experiences of paternity leave, both in the legal academy and in other areas of the legal profession. Is it available in your workplace.  Do people actually take it? How was it?  And how, apart from paternity leave, have you responded to the challenge of balancing work and family in your legal career?

Posted by Eduardo Penalver on June 4, 2009 at 10:59 AM | Permalink | Comments (6) | TrackBack

Wednesday, June 03, 2009

WiPping Your Articles Into Shape

I've just returned from Marquette's first Works in Progress Workshop of the summer.  I know many other law schools have similar programs, but the format has worked so well for us that I thought I would give it a plug here for faculties that are not yet doing it.  Former Prawfs guest-blogger Chad Oldfather organized our first WiP program a year ago, and we have had three more since then.  In advance of the workshop, participants (usually eight or nine in number) circulate two- to ten-page summaries or fragments of articles that are in an early stage of development.  At the workshop, we discuss each piece for 45 minutes.  The first five minutes are introductory comments by the author, with the balance of the time given to questions and comments from other participants.  It's a lot like the terrific PrawfsFest I attended at Hofstra last summer, but (as is more feasible with a smaller group) a bit less structured.  The law school springs for lunch, but otherwise there are no institutional costs.  In addition to the obvious benefits of good feedback on projects at an early stage, we've found that the WiP programs also facilitate mentoring and have broader community-building benefits -- spending a day batting around interesting ideas with colleagues helps to remind many of us why we became academics in the first place.  In retrospect, the WiP programs seem like a real no-brainer, and it is hard to believe we did not start doing them sooner.

Posted by Michael O'Hear on June 3, 2009 at 07:55 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Sytematic Reviews and the Scientization of Law

So far I have looked at how to incorporate systematic reviews into our current legal framework, whether through court-apppointed Rule 706 experts or through special masters or technical advisors assisting judges in their Daubert or Frye decisions. In both cases, however, partisan experts remain. Rule 706 experts, for example, testify along side--not in place of--partisan experts; and special masters or technical advisors never testify at all, instead only helping to determine which partisan experts are allowed to testify. Can we go further, however? Is it even reasonable to ask whether we can abolish the partisan expert altogether and rely solely on the systematic review?

My focus in my next few posts is positive, not normative. My previous posts have laid out my argument for why I think it would be a good idea to get rid of the party expert. Here I want to ask whether it is even possible to adjust our adversarial procedures in such a way. Perhaps not surprisingly, I think the answer is yes.

There are two sources of my optimism. The first is inspired by a statement made by Mirjan Damaska, that the scientization of the law is the greatest challenge the law has faced since the Middle Ages. And the second comes from a recent history of the special master by Amalia Kessler. In this post I'll look at the point raised by Damaska, and in my next that raised by Kessler.

Damaska puts its bluntly (on page 151 of Evidence Law Adrift):

Let there be no mistake. As science continues to change the social world, great transformations of factual inquiry lie ahead for all justice systems. These transformations could turn out to be as momentous as those that occurred in the twilight of the Middle Ages, when magical forms of proof retreated before the prototypes of our present evidentiary technology.

Exactly so. Legal practices, and our definition of what constitutes proof, respond to fundamental changes in epistemology. Consider the Medieval forms of proof (here I draw on the work of Ellen Sward and Stephan Landsman): the ordeal, the oath, or the battle, to name a few. In the ordeal, the party bearing the burden of proof had to undertake some sort of physical challenge, such as dipping his hand in boiling water. If he emerged unscathed, he met his burden. Similarly, in the oath the party with the burden had to recite precisely a complicated oath to meet his burden. And in battle, the two sides or their proxies met in armed combat, with the victor in battle the victor in law.

All three approaches were united by a common epistemology: God would reveal the party who deserved to prevail. The Renaissance and the Enlightenment, however, replaced such faith in God with a faith in reason, in people's ability to think through a problem and reach the correct answer. Legal procedures changed--profoundly changed--accordingly.

The past few decades have witnessed a revolution of similar proportions. As I mentioned before, modern statistics is barely a century old. The idea that science is primarily about measurement and experimentation, as opposed to more logical (like mathematics) or classificationist (like zoology) endeavors, is a 19th century development. And our ability to meaningfully undertake such measurement did not arise until the mid- to late-20th century. Moreover, it is only within the past thirty years, with the rise of the actuarial turn, that we have begun to fully appreciate the limits on our ability to reason and the steps we must take to address these limitations. These three changes--a focus on measurement, a growing ability to measure, and a newfound appreciation of the limits of reason--add up to a Scientific Revolution of their own.

When confronted with significant epistemic shifts, the law adapts. Perhaps slowly, perhaps imperfectly, but it adapts. The changes over the past several decades are not small adjustments but a profound change in our understanding of what constitutes scientific knowledge, in our ability to produce the necessary information, and in our sense of how to compile that information into usable knowledge. It is hard to believe that the law will not adapt once more. 

Posted by John Pfaff on June 3, 2009 at 02:46 PM | Permalink | Comments (4) | TrackBack

Dave Matthews Band, Bootlegs, and Network Economics

In honor of the release of the latest Dave Matthews Band album, and my upcoming concert visit, I thought I would blog a bit about an area of interest that I don't often get to write about.  As the title implies, this topic combines three areas of interest: DMB, Bootleg Trading (which prefer to call concert trading, as I don't really view permissive recording of concerts to be a bootleg), and network economics.  The punchline is a critique of the popular argument that record companies should want free distribution of music because it will increase sales.  But first, some background.

Dave Matthews Band, as most people know, makes music.  Despite releasing new albums more slowly than most groups (about every 3 years, and 4 since the last one), the group is extremely "sticky" among its fans.  It is routinely one of the top grossing concert acts in the world, and its fans continue to go to shows.  I've been to at least 25 shows in 5 states (I've lost count), and the only reason the number isn't 50 is that I got married and had kids.  I've been a member of the fan club for 9 years, yet when seats in Pittsburgh were doled out by seniority, I'm still at the back of my section, meaning that there are many fan club members sitting in front of me with 10+ years in the club. 

But here's the thing, they don't have a "lot" of record sales, at least not as compared to many other pop acts.  Few songs hit the charts, and the albums rarely crack the top 5, let alone the top 10, and if they do it's not for very long.

The band's popularily among its fans is largely attributed to its loose concert taping policy. 

 From the beginning, anyone with a tape recorder (and now more sophisticated devices) could record any show, and share it (for free) among friends.  Most are high quality these days - every show will have someone in the first 10 rows setting up three microphones (left, right, center) 15 or 20 feet in the air.  Trading is fun, and because the band changes the setlist nightly and improvises significantly, no two concerts are ever the same.  For example, I have some 200 concerts on CD or hard disk, even though I'll never get to listen to them all. Trading used to be a quid pro quo - I'll send you one show if you send me another. 

Over time, trading has lost some of its steam, as cheap storage and high bandwidth allows new recordings to be released within a couple days via BitTorrent. Thus, there's no need for actual trading - it's all about downloading now.

If what I'm describing sounds familiar, perhaps you heard about it the first time when it was called the Grateful Dead, or maybe the second, when it was called Phish.  GD, Phish, and DMB are all examples of bands with devoted fans, high-activity trading, but relatively weak record sales.

This leads me to the core academic point in this story - the network benefits associated with trading.  The typical economic argument used to argue that record companies should favor music sharing is that the more people that have a song or two, the more likely people are to buy the album. The effect is two-fold:

1.  Sampling: the more people that listen to a song, the more people that will buy the album

2. Status: everyone is listening, I'd better get the CD and listen, too

I don't want to get into whether this is true or not in general, though empirical studies seem to imply that it is not. Instead, I want to comment on a more peculiar aspect of sharing - what happens when there are two markets?

As far as I know, DMB keeps almost all of the money it gets from concerts, but a much smaller portion of the money it makes from record albums (maybe more now than in the past, but the label is still in there). Based on this fact, it stands to reason that if full-sharing is encouraged by the band, then it will make more money, even if that sharing substitutes for record sales. Thus, where you have a band known for great concerts, the dual markets benefit the band, but not the record label. This appears to be the network effect working, but only in one market.

Thus, the band has an incentive to encourage sharing, and record sales may suffer despite popularity.  This implies that the network benefit model fails, but only partially. At least my 3 band sample says so. It may also be the reason why many bands favor sharing even though their labels do not.

This may be why artists that are not known for good concerts, or that do not get to keep most of the concert revenue do not want any kind of bootlegging or other music sharing - where there is a single market, the substitutive effect outweighs the network benefits in general (unless you believe the studies that say otherwise).

These are off-the-cuff thoughts - I haven't studied this much, and probably never will. So, if anyone has some thoughts on the topic that can guide my meanderings, please post!

Posted by Michael Risch on June 3, 2009 at 02:16 PM in Intellectual Property, Music | Permalink | Comments (3) | TrackBack

Rethinking music videos

Marc has made music the order of the day, so I decided to follow up on that. My post has nothing to do with law, unless there is some question about transformative use, or philosophy (I don't think).

Anyway, there is a series of "Literal Videos" making the rounds on YouTube. Over the video, someone sings (to the tune of the original song) precisely what is happening in the video (which, of course, rarely has anything to do with the actual song lyrics). Some of them are pretty funny, especially when taking on a video that is particularly over-the-top or bizarre.

For both over-the-top and bizarre, nothing beats my two favorites:


Posted by Howard Wasserman on June 3, 2009 at 01:35 PM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Tuesday, June 02, 2009

Tuesday Night Music (and Philosophy) Blog

Law review authors occasionally use rock song lyrics to make a point. Alex Long has written insightfully about their tendency to do so.  (And I am guilty of it in this recent article on First Amendment law and virtual reality).

This led me to wonder what happens when things work in reverse: Which law review articles are cited the most in rock music?  Are the same law reviews that are highest in court and scholarship citation counts – according to the Washington and Lee rankings – also the most frequently cited in angst-ridden rock lyrics? 

Unfortunately, it seems that rock lyricists have so far found little worth quoting in our scholarship.  Or perhaps they are simply too embarrassed to admit to their fan base just how much they love and read law review articles (and thus go to lengths to hide all of their musical footnotes about legal scholarship with hard to decrypt back-masking or subliminal message techniques).

In any event, I was determined not to come up empty in this project and so have hastily broadened my focus beyond the narrow disciplinary boundaries of modern academia – to all references I can think of in rock music to philosophical thinkers, texts, and occasionally to words or phrases I’ve decided to erroneously assume are about philosophical thinkers, texts, or themes.  Below is my list so far.  Please feel free to add to it in the comments section.


Elliott Smith’s album – Either/Or (title borrowed from the book by Soren Kierkegaard).

Elliott Smith – Miss Misery (also a reference of sorts to the book, Either/Or).

Elliott Smith – Strung Out Again (I wouldn’t be shocked if the imagery of owls flying over a floating body was inspired at least in part by Hegel’s famous Owl of Minerva line.  That seems even more plausible for the alternate lyrics played at some live performances).

R.E.M. – Moral Kiosk.

Dump Truck – Ethics.

Spoon – Utilitarian.

Timeblind  -- Ontological Ground of Being.

The Celibate Rifles’ album – The Turgid Miasma of Existence (Happening Sounds for the Modern Degeneration).

Sheryl Crow – Every Day is a Winding Road (“I’ve been wondering if all the things I’ve seen.  Were ever real.  Were ever really happening”).

Beck – Volcano (“I don’t know what I’ve seen.  Was it all an illusion? All a mirage gone bad?”).

Juluka – Simple Things (“The stars are dead and all you see are shining lies”).

Edie Brickell & The New Bohemians, What I Am (“Philosophy is a walk on the slippery rocks.”).

The Angry Samoans – Unhinged (“Pure consciousness comes to the tuned out mind.  An empty, lucid, self-illuminating ride . . . This world’s illusion.  Get unhinged.”).

We are Scientists – The Nature of Empirical Truth.

The Last Shadow Puppets – Only the Truth.

David Gilmore – Let’s Get Metaphysical.

Phanton Limbs – Dead Language (“You don’t have to get metaphysical baby”).

The Super Furry Animals – Some Things Come From Nothing.

The Able Tasmans – The Big Bang Theory (“The universe’s final hours.”).

The Flaming Lips – Do You Realize?? (“Do You Realize - we're floating in space”) (Despite legislative opposition, this is – by the Governor’s executive order – now Oklahoma’s official state rock song.).

The Buzzcocks – I Believe (“I believe in perpetual motion . . . my relative motion is just an illusion from stopping too fast.”).

Unbunny – Nothing Comes to Rest (“Hey Charlie, nothing comes to rest.  On the chests of those always running.  I’m tired of living from the wrist.  And leaving all decision to coincidence.”).

Pink Floyd – Time (“You run and you run to catch up with the sun.  But it’s sinking.  Racing around to come up behind you again.  The sun is the same in a relative way.  But you’re older.”).

The Buzzcocks – I Believe (“I can’t feel the future and I’m not certain there’s a past.”).

Super Furry Animals – Frisbee (“The past was eagle-eyed.  The future’s pixelized.”).

Elvis Costello & The Attractions – Tokyo Storm Warning (“We’re only living this instant.”).

The Police – Spirits in the Material World.

The Police album – Ghost in the Machine.

The Buzzcocks – Autonomy.

Rush – Freewill (“If you choose not to decide, you still have made a choice”).

Wire – 40 Versions (“I never know which version I’m going to be.  I seem to have so many choices open to me . . . I’ve got 40 versions all dying to get the part.  And so with a change of mind comes a change of heart.”).

The band, Masters of Reality.

The Solipsistics – Any Requests? (“I clasp the crooked handle of my one idea.”).

Robyn Hitchcock – The Man Who Invented Himself (“Well that loneliness is nothing.  Just imagine how he feels.  He’s the only person in the world.  Who still believes he’s real”).

The Beatles – Nowhere Man (“He’s a real nowhere man.  Sitting in his nowhere land.  Making all his nowhere plans for nobody.”).

M. Ward – Epistemology.

The Replacements – I Don’t Know.

Elvis Costello & The Attractions – Beyond Belief.

Rod Stewart – Reason to Believe (originally by Tim Hardin).

Ubiquitous Synergy Seeker (USS) – Laces Out (“Direct your eyes to the obvious proof.   And puppy dog lies won’t sweeten the truth.  I whisper and scream but I can’t refute.  It’s absolute.”).

Coldplay – Proof.

Coldplay – Twisted Logic.

Supertramp – The Logical Song.

Super Furry Animals’ album – Fuzzy Logic.

Patricio Rey y Sus Redonditos de Ricota – Superlogico

Hayley Westenra – Quanta Qualia.

The Forms –  Knowledge in Hand.

George Michael – Faith.

The Tall Dwarfs’ album – Dogma.

Marnie Stern – Plato’s F****d Up Cave.

The Grateful Dead – Terrapin Station (“While the firelight’s aglow.  Strange shadows in the flames will grow.   Till things we’ve never seen.  Will seem familiar.”)  (Possibly about the experience of those in Plato’s cave watching shadows of things they can’t see, but that’s not the interpretation in The Annotated Terrapin Station.).

Leonard Cohen – Heart with No Companion (“For the soul without a king”) (Could conceivably be referring to Plato’s tripartite model of the soul, in this case, minus a competent Charioteer.  But the main reason it’s here is I wanted some Leonard Cohen lyrics on my list and this was the first one that came to mind.).

Kareem Salama – Aristotle and Averroes.

Andrew Bird – The Naming of Things.

The Thirteenth Floor Elevators – She Lives in a Time of Her Own (“She lives.  No Fear.  Doubtless in everything she knows. . . You have always heard her speaking.  She’s been always in your ear . . . She lives in a time of her own.”) (This could easily be about Lady Philosophy as Boethius encountered her in his prison cell).

Band of Horses – St. Augustine.

Roger Miller (The Mission of Burma member, not the country singer) –  The Age of Reason.

The band, Descartes a Kant.

The Tall Dwarfs – Cant.

Propagandhi – Nailing Descartes to the Wall.

The Looking – Spinoza.

The Faintest Ideas – Dear Leibniz.

The Laughing Clowns  -- Law of Nature.

Bikini Kill – In Accordance to Natural Law.

The Vandals – Anarchy Burger (Hold the Government).

John Stuart Mill (= John Schmersal from the band, Brainiac).

Stiff Little Fingers – Suspect Device (“They take away our freedom.  In the name of liberty.”) (As I’ve already said in earlier post, I interpret this line as being about a government doing what Isaiah Berlin warned against and invoking positive freedom to eliminate negative freedom.  There are no footnotes to Berlin in the song.  But that’s my interpretation and I’m sticking with it!).

Belle & Sebastian – Marx & Engels.

Don McLean – American Pie (“And while Lenin read a book on Marx.  The quartet practiced in the park”).

Gang of Four – Capital (It Fails Us Now).

Gang of Four –Contract.

Ivy Green – Slide Machine (“Alienation”).

Philip Boa & The VooDoo Club – For What Bastards (Do They Work) (“Atomize the dreams of economy and output, economy and output”).

Scritti Politti – Hegemony.

The Housemartins – The People Who Grinned Themselves to Death (“The people who grinned themselves to death.  Smiled so much they failed to take a breath.  And even when their kids were starving.  They all thought the queen was charming”).

Gang of Four – Why Theory?

The Dandy Warhols – Nietzsche.

George Elliott – Nietzsche & Me.

Robyn Hitchcock – Nietzsche’s Way.

Paula Cole – Nietzsche’s Eyes.

Richard Strauss – Also Sprach Zarathustra.

Ed Kuepper – Also Sprach, The King of Euro-Disco.

The Jean Paul Sartre Experience – Spaceman (“I try to find a way to be free.  Of anything that’s troubling me.  But freedom’s such a fickle thing.”).

Lloyd Cole and the Commotions – Rattlesnakes (“She reads Simone De Beauvoir.  In her American circumstance.”).

Sufjan Stevens – A Conjunction of Drones Simulating the Way in Which Sufjan Stevens has an Existential Crisis.

The band, Angst.

Scritti Politi – Jacques Derrida. (“I’m in love with Jacques Derrida.  Read a page and know what I need to.  Take apart by baby’s heart.”)

Tracy Chapman – Why? (“Amidst all these questions.  And contradictions. There are some who still seek the truth.”).

The Moody Blues – Question (“Why do we never get an answer. When we’re knocking at the door.”).

Manu Chao – La Vida Tombola (“La vida es una tombola.”= Life is a raffle) (He’s possibly singing about the assumption that John Rawls makes in A Theory of Justice that “the parties are situated behind a veil of ignorance . . . no one knows his class position in society or social status; nor does he know his fortune in the distribution of natural assets or abilities, his intelligence, strength, and the like.”  He’s also singing about, and to, Maradona.)

Pearl Jam – W.M.A. (“He won the lottery. When he was born.”) (same as above, without the Maradona part.)

Richie Havens – 23 Days in September (“On the floor, pages torn from books she reads.  Ancient ones and new magic and philosophy. Hopeful, she tries every one. Soon leaving them undone.  They seem to hold nothing at all she can believe”) (originally by Davie Blue).

Monty Python – The Meaning of Life.

Hair (The Musical) – Where Do I Go?  (“Where is the something?  Where is the someone?  That tells me why I live and die?”).

Andrew Bird –  A Nervous Tic Motion of the Head to the Left (“We had survived to.  Turn on the History Channel.  And ask our esteemed panel.  Why are we alive?  And here’s how they replied.  You’re what happens when two substances collide.”)

Frank Sinatra – The Good Life.

Stanhop –  Seek the Welfare of the City.

Ministry –  I Prefer.

PreFab Sprout – Appetite (“I’m a simple slave of appetite.  I’m a poor slave of appetite.”).

The Rolling Stones – You Can’t Always Get What You Want.

The Rolling Stones – (I Can’t Get No) Satisfaction.

Elvis Costello & The Attractions – I Hope You’re Happy Now.

R.E.M. – Shiny Happy People.

The Celibate Rifles – Compared to What? (“And she’s doing just fine.  (Compared to What?)  Just above the bread line.).

The Celibate Rifles –  Wonderful Life (“I’m upwardly mobile.   My life is truly blessed.  I’m a moderately depressive Gold American Express.   I’m so appropriate, response and reply.  Cholesterol is low.  Expectations are high . . . Got solar heating in my sauna and spa.  I’m into tennis, Zen, and shiatsu. Here I am.  And there you are.”).

The Celibate Rifles – Wild Desire.

The Churchills – Too Much in Love to Hear (Must be a reference to Ulysses and the Sirens.  At least the lyrics are more interesting that way.).

Cream – Tales of Brave Ulysses.

Franz Ferdinand– Ulysses.

No Man is Roger Miller – The Promised Land (“tie me to a boat that’s going to nowhere”)

Styx – Come Sail Away.

Papercuts – Future Primitive (“Well we crossed the river once.  And we’ll do it once again. The valley will open.  And the mountains fall to their knees.”).

Cerberus Shoal – A Head No Bigger Than a Man’s Cloud

Deerhunter – Adorno.

The Shins – Young Pilgrims (“This modern thought can get the best of you.”).

Joy Division – Failures (“He no longer denies.  All the failures of modern man.”).

Morphine  -- You Speak My Language (“Everywhere I go no one understands me.  They look at me when I talk to them.  And they scratch their heads.  And go what’s he trying to say?. . . Kabrula kaysay Brula Amal amala senda Kumahn Brenda. Kabrula kaysay Brula Amal amala senda Kumahn Brenda. Kabrula kaysay Brula Amal amala senda. Kabrula kaysay Brula Amal amala senda. Kumahn Brenda. Kumahn Brenda.  But you.  You speak my language!”).

Laurie Anderson – Language is a Virus (title borrowed from William S. Burroughs).

Ben Folds Five – Philosophy.

And since it's not that far afield from the above list, here are some allusions to heavy Russian novels (or their themes):

The Verlaines, -- New Kind of Hero (“Alexander the Great?  Maybe Fyodor Dostoevsky?  I’m going back to my cell.  I’m sorry I’m neither of those. (And the tension begins to grow).  A new kind of hero.”).

White Skull – Grand Inquisitor

This Kind of Punishment – Ivan Fyodorovitch

Magazine – Song from Under the Floor Boards (“I know the meaning of life.  It doesn’t help me a bit . . . This is a song from under the floor boards.  This is a song from where the wall is cracked.”).

Super Furry Animals – City Scape Sky Baby (“She came in around dawn. Took her coat off.  Burdened down by the Russian winter . . .  Wash away imminent disaster.  Thinking through her today.  And the murder of the bailiff and land owner.”).

Joy Division – Dead Souls

The Police –  Don’t Stand So Close to Me (“Just like the old man.  In that book by Nabakov.”).

Game Theory’s album – Lolita Nation

Posted by Marc Blitz on June 2, 2009 at 11:33 PM in Music | Permalink | Comments (12) | TrackBack

Sotomayor, Cardozo, and the "Hispanic" Question

Hey all. Great to be back at Prawfs again. I was going to post something less legal, and probably more interesting, for introductory purposes, but yesterday this item in the NY Times caught my eye. I’m certainly not the first person in the blogosphere to mention this, but the issue is: if Sonia Sotomayor were confirmed, would she really be the first Hispanic justice? The possible problem is that there was already a jurist of Portuguese descent on the Court that you may have heard of: Justice Benjamin Cardozo.

The question this turns on, then, is whether Portuguese people are Hispanic. I normally don’t get embroiled in issues like this, and I don’t think there are right or wrong answers to questions that depend on whether individuals relate to or belong in awkwardly constructed ethno-racial categories, but this one is a wee bit different for me.  As it happens, I'm Portuguese (specifically, half: my father is from the Azores, a Portuguese archipelago in the Atlantic Ocean), so I’ve thought about the meaning of "Hispanic" and whether Portuguese people fit into it way more than I would have otherwise.

The short (and easy) answer from my perspective as a (mildly) interested party is this: one could plausibly shoehorn Cardozo into a broad, formal definition of “Hispanic”, but that’s not really the issue. What people find significant about Sotomayor’s ethnic status—what they’re really excited about or resistant to when they invoke the phrase “first Hispanic Justice”—is not a technical question about ancestry and temporal primacy, but is rather about the social meaning of her elevation to the Court. I say a few more words about the Portuguese/Hispanic terminological kerfuffle, and the reason why it’s ultimately beside the point below the fold.

First, as the NYT article pointed out, the issue is a bit contested. There are some formal sources that make it plausible to squeeze Portuguese people within the outer bounds of the term “Hispanic”. There’s a CFR section that includes people of Portuguese descent as Hispanic for the purposes of Department of Transportation regulations, and the OED apparently defines the term as encompassing those of Spanish or Portuguese descent. Portuguese Congressmen are members of the Congressional Hispanic Caucus, and Nelly Furtado (of Azorean descent, like DF) regularly performs at the Latin Grammys.

So. If someone who is Portuguese claimed to be Hispanic, I wouldn’t think the assertion false or dishonest. It’s a borderline case, but the meaning of Hispanic is contested and unclear enough that it’s hard to know where its outer bounds begin and end. Of course, there are many ethnic-category conundrums one can imagine along these lines. Should we consider a blue-eyed, blond-haired third-generation Argentinian who is a descendant of German immigrants Hispanic?  Consider a white U.S. citizen who recently immigrated from Zimbabwe, and whose family had lived in that country for a century? Would such a person legitimately be “African-American"?  These are, in my view, questions of self-identification that have to be left to individuals.

For my own purposes, though, I’ve never self-identified as Hispanic when asked to check an ethnic-category box, for a couple of reasons. The first reason is formal and simple: the root of the word “Hispanic” is “Spain”, and if there’s one thing Portuguese people are adamant about not being (sometimes to the point of neurosis), it’s Spanish. So I think the definition doesn't apply, on a plain-meaning theory.  The second reason is that somehow it feels wrong for me to check that box. This is a tricky instinct to explain, but I think it’s that my family assimilated really quickly and thoroughly (I know less than twenty Portuguese words), and I feel and am treated more or less as a plain old, mainstream white American. This is a hard issue, and others might make a different decision for perfectly legit reasons, but that’s how I approach it.

And this leads me to the ultimate point: thatthe whole ethnic categorization issue regarding Cardozo and Sotomayor, and “Portuguese” and “Hispanic”, is really beside the point. However exasperating the public's obsession with her ethnicity may be, there's clearly something resonant about Sotomayor's possible status as the first Hispanic Justice.  I think there are a couple reasons that this issue seems significant to many people. The first is that her elevation to the Court would mean that a large (and, obviously, ill-defined) ethnic group would have representation in the federal judiciary in a distinctly visible way that they have never had before (because even if Cardozo counts as Hispanic, he certainly didn’t self-identify as such and wasn’t perceived that way, not least because the term “Hispanic” wasn’t in common usage during his judicial tenure). The second is that her elevation to the Court would be taken by many as an indication that the highest echelons of American government are trending in a direction of more inclusivity (cf. Obama’s election).

Whether having Sotomayor on the Court would actually be a bellwether for inclusivity or have any other kind of broad social significance is, of course, an empirical question that will take time to answer. And even if I’m right about the social meaning of her nomination, those points are unrelated to the question whether she merits confirmation. The point of this post is simply that references to Sotomayor potentially being the first Hispanic Justice aren’t really about formal questions of ethnicity and primacy (Jackie Robinson wasn’t actually the first Black major leaguer, but that doesn’t detract from the social significance of his accomplishments), so the whole Cardozo/Portuguese issue is, I think, beside the point.

Posted by Dave_Fagundes on June 2, 2009 at 09:37 PM in Current Affairs | Permalink | Comments (5) | TrackBack

Judge Sotomayor and the First Amendment

If you're looking for some more insight into Judge Sotomayor’s approach to solving constitutional problems, consider her dissent in the First Amendment case of Pappas v. Giuliani, which involved a police officer fired after he had been discovered to have mailed anonymous racist materials to various nonprofit organizations that had sent him fundraising solicitations. 

As I discuss in an article to be published by the Duke Law Journal this fall, the police department’s defense in Pappas illustrates government’s increasing willingness to claim even the off-duty speech of its employees as its own.   In these cases, the government characterizes the worker’s speech away from work as subject to the government's control not because of what it reflects about the employee's own ability to perform her job, but rather because of what it may communicate about the government that employs her.  Other examples include police officers discharged for appearing in or maintaining sexually explicit websites, firefighters fired for participating in a holiday parade that featured mocking racist stereotypes, and a university vice-president disciplined for writing a newspaper column questioning gay rights.  These often make for very challenging cases.  To be sure, the government's concerns can be substantial:  consider, for example, police departments’ interest in making clear their commitment to evenhanded law enforcement regardless of race.  But absent any limiting principle, this trend suggests that certain individuals may become unemployable for many government jobs purely because of their unpopular or controversial off-duty expression with which the government does not want to be associated – e.g., marching in a gay pride parade or blogging for or against abortion rights or immigration reform.  

 In Pappas, the Second Circuit majority upheld the officer’s termination.  

It expressed concern not that his speech indicated that he would enforce the law in a discriminatory manner (indeed, the officer was assigned to a computer position that did not require public interaction), but instead that it would impair public perceptions of the views of the rest of the department:

For a New York City police officer to disseminate leaflets that trumpet bigoted messages expressing hostility to Jews, ridiculing African Americans and attributing to them a criminal disposition to rape, robbery, and murder, tends to promote the view among New York's citizenry that those are the opinions of New York's police officers. The capacity of such statements to damage the effectiveness of the police department in the community is immense.

Implicit in this reasoning is the premise that certain categories of government workers -- e.g., law enforcement officers -- are so identified with their public employer that they cannot escape their governmental role to be perceived as speaking purely as private citizens even when away from work.  

In contrast, rather than assuming that police officers’ off-duty speech necessarily poses a substantial threat to government’s own expression, dissenting Judge Sotomayor preferred a more fact-specific standard that would instead require the government to prove such a threat on a case-by-case basis.  She thus focused on the specific context of the officer’s speech, noting that his job involved neither policymaking nor public contact (he was assigned to a computer station), that his speech made no reference to his employment in law enforcement, and indeed that it was intended to be private and anonymous. Under those particular circumstances, Judge Sotomayor found no significant threat to the department’s legitimate interest in credibly communicating its commitment to racial equality. 

Each of these approaches has its strengths and weaknesses, as I discuss in the article. But by carefully attending not only to the police department’s substantial expressive interests but also to whether those interests were actually undermined by the employee’s speech, Judge Sotomayor offered a nuanced opinion in what I personally find a very difficult case.  It reminded me of Justice Souter’s view of the characteristics of good judging, recently recalled here by Chad Oldfather:  suspicion of easy cases, skepticism about clear-edged categories, modesty in the face of precedent, candor in pitting one worthy principle against another, and the nerve to do it in concrete circumstances on an open page.”  

Posted by Helen Norton on June 2, 2009 at 09:06 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Come Back, Little Jeffrey

As reported here and elsewhere, one upshot of the kerfuffle over Jeffrey Rosen's initial article on Sonia Sotomayor -- about which, if I recall correctly, our guest-blogger Rob Kar had something to say -- is that Rosen has sworn off blogging.  In the story I linked to, Rosen stands by his initial story, although he dislikes the headline his editors chose and wishes the story had shown more nuance; but he adds that he was dismayed by how his article was treated by people "of both ideological stripes," and says the fuss has made him reconsider blogging at all.  

I think Rosen has taken the wrong lesson from all this. 
 I'm not a great fan of the initial article (although I don't hold the headline against him).  But whether the article was good or bad is a largely separate question, in my view, from how the article was used by people on the left and right.  A piece of journalism, like a piece of scholarship, can be well done or poorly done.  I think Rosen's piece lacked some of the "nuance" that it should have had.  Moreover, as I've already written, I don't think whether a judge is nice to either lawyers in oral argument or her own clerks is especially relevant to her fitness for the Supreme Court.  Rosen makes the broader point in the NPR piece that he thought the piece was justified because temperament is an excellent predictor of judicial success, and thus, even if Sotomayor would be a fine Justice, sorting out questions of temperament would help decide whether she would be the best possible Justice.  That's fine, and it is a valid subject for reporting, although it would have helped immensely if Rosen had framed his initial article in precisely those terms rather than questioning her brightness and niceness tout court.  But it demands two more pieces of "nuance" (sort of like pieces of flair in Office Space, I guess).  FIrst, temperament is a tricky idea that may manifest itself in varied ways; a judge's treatment of clerks or advocates does not necessarily say much about how well she gets along with judicial colleagues, and thus what role she might play in coalition forming and persuasion.  Second, Supreme Court picks are not -- are never -- about who would be the best possible Justice, a question that is a mug's game and overstates the importance of any given nomination.  Presidents have other things to worry about, like the little matter of governing the nation, and a person may be the best possible nominee even if she is not the best possible Justice.

Still, all of this is about the value of the story itself.  Whether or not the story was perfect, Rosen shouldn't give a damn how the story was used by either the left or the right, any more than a scholar should care how a piece of scholarship is used by ideological friends or enemies.  Our job is not to change the world for the better.  It is, at most, to change the world for the better as journalists or scholars.  That means doing the best job we can in our given roles, not refraining from acting because we're afraid how our words will be taken.  As I've said before, if I thought some piece of scholarship I was writing would make this a worse world to live in, I would not ask whether or not to publish it; the only relevant question would be whether or not it was sound scholarship.  I hope every other scholar or journalist would say the same.  To those on the right who misused Rosen's piece to argue that Sotomayor was an idiot or shrew, Rosen's response should have been to refute them or ignore them.  To those on the left who argued that Rosen shouldn't have published the piece because it would give ammunition to the right, the response should have been the same.  Perhaps Rosen has decided that blogging is too conducive to impulsive writing.  If so, the same question should present itself whenever we are about to publish something -- is the piece good or bad.  That's the only relevant question.  I think Rosen should do a good job, of course.  But I also think he should get back on his horse.

In any event, what strikes me even more is that the real "villain" of this story, if there is one, is not just, or even primarily Rosen, who is after all a journalist.  Rosen's follow-up piece states:

Readers have asked for more information about my sources. A few weeks ago, I received phone calls from eminent liberal scholars I know and trust. These scholars closely follow Sotomayor's work and expressed questions about her temperament. They did not have axes to grind or personal agendas; they are Democrats who want President Obama to appoint the most effective liberal Supreme Court justices possible and were concerned Sotomayor might not meet that high standard. They put me in touch with others in the same situation--mostly former Second Circuit clerks and prosecutors who have argued before her--and nearly all of them expressed the same view, with exceptions I noted in the piece. None of these people would have talked to me without the promise of anonymity: some still argue before the judge, and others continue to interact with her. 

I've seen startlingly little focus on these individuals in the discussion of Rosen's writing on Sotomayor.  As usual, the focus is on the journalist and not on the sources who pushed the story on the journalist -- and, who by virtue of wanting "the most effective liberal Supreme Court justices possible," most certainly did have axes and agendas.  They are, in Rosen's account (which I have no reason to disbelieve), "eminent liberal scholars."  The word "eminent" suggests, incidentally, that they are tenured and should have had little reason to seek anonymity, and perhaps a scholarly duty to refuse it.  So let me say that any of the "eminent liberal scholars" who urged the story on Rosen are welcome to write in and tell us why they did so, why they did so anonymously, and whether acting anonymously was in tension with their obligations as scholars -- an act of politics and not of scholarship (and I insist on the difference).  If anyone has first-hand or close to irrefutable evidence about who these individuals are, they are also welcome to contact me privately (although not anonymously!), and if I think the evidence is strong enough, I'd be happy to disclose it.  I don't owe these people a duty of anonymity, after all -- and, as a former journalist, I think more reporters ought to seek to uncover other journalists' sources where those sources' identities are newsworthy.      

Posted by Paul Horwitz on June 2, 2009 at 01:34 PM in Paul Horwitz | Permalink | Comments (7) | TrackBack

Canons to the Left of Them, Canons to the Right of Them...

Most readers probably do not follow the bumper crop of recent SCOTUS opinions that deploys canons of statutory construction, but they are personal favorites of mine. Indeed, I taught a couple of them from the '07 term of the Court this Spring. Although most people would not regard United States v. Hayes' treatment of the "last antecedent" rule as one of the most scintillating SCOTUS performances of the '07 term, I would suggest that Hayes, Begay v. United States, and Ali v. Bureau of Prisons are among the most interesting cases of the term, suggesting that textualism as a serious interpretative practice is alive but not well at the SCOTUS. (Shameless self-promotion: I wrote up a short piece for Tulsa Law Review amplifying this point that the Court's majority writes purposivist opinions tricked out in textualist clothing (Download Hills - Final5 _with Hills revisions inserted. Note that the .pdf has edits inserted, responding to Mitch Berman's and Eugene Kontorovich's excellent comments)).

On a more Realist note, observe that the concept of statutory "ambiguity" remains as ambiguous as ever, allowing the Court to turn textualism on and off like a spigot as it suits them. For instance, Ali is a 5-4 decision, but Justice Thomas' majority refuses to consult legislative history. How is it possible that the immunity waiver in Ali was not ambiguous enough to justify recourse to extrinsic sources, if SCOTUS splits down the middle on its meaning? Are four justices simply obtuse? Likewise, as Roberts argues in his dissent (joined by "Lenity Scalia"), Hayes' tortured analysis of the "last antecedent" rule surely indicates ambiguity sufficient to trigger the lenity canon, yet the majority (7-2) finds that the statute is clear enough to be enforced according to its "manifest purpose" as inferred from legislative history. Apparently, the level of ambiguity was sufficient to get to legislative history but not to get to the promised land of lenity.

Could it be that the combination of getting tough on domestic violence and gun possession (Ginsburg, Stevens, Souter, and Breyer) and/or just getting tough on criminal defendants (Kennedy, Alito) outweighed textual niceties of the "last antecedent rule" in Hayes? Might it be that the prospect of awarding tort damages to some prisoner for the loss of a trivial amount of personal property influenced the majority in Ali more than the finer points of ejusdem generis? In short, textualism might produce consensus -- but only when ideological merits of the case are, as in Hayes, even murkier than the statute's text.

Posted by Rick Hills on June 2, 2009 at 12:49 PM | Permalink | Comments (2) | TrackBack

Discovery, burdens, risks, and Iqbal

The defense-attorney-bloggers at Drug and Device Law have a detailed post in favor of the Court's new approach to pleading in Twombly and Iqbal (H/T: Civil Procedure Prof Blog) (see my discussion of Iqbal here, here, and here) (see other criticisms here and here).

The point of departure between D&DL and critics of the new pleading regime (including me) ultimately comes down to placement of litigation burdens and risks.

Looser pleading recognizes that plaintiffs often lack critical information at the outset of litigation and need discovery to learn key information that shows the merit (or lack thereof) of their claim. But it burdens the defendant with costly and wide-ranging discovery. D&DL argue that Conley ceased to be workable with the broad changes to the discovery rules that began in 1966 and 1970 (the procedural flipside to my argument about the expansion of substantive federal law post-1938). Looser pleading produces so-called Type I errors--morecases get past pleading into discovery, at cost to the defendant, only to be found to lack merit.

Stricter pleading relieves defendants of the burden and expense of discovery in cases in which there likely is no there there, as indicated by the complaint. But this burdens (unfairly, in my view) the plaintiff with 1) the often-impossible task of framing a detailed complaint when she only can get the necessary evidence through discovery and 2) the risk of dismissal when she is unable to provide the necessary detail in the pleading (this is what was going on in Twombly and, potentially, Iqbal). Stricter pleading produces so-called Type II errors--potentially meritorious cases are deterred or dismissed with the plaintiff never having had a chance to fully explore the evidence in support of the claim.

So the point of departure is at the policy level. Do we prefer Type II errors imposing burdens on plaintiffs or Type I errors imposing burdens on defendants? And the answer will not be value-neutral. But the presence of a non-neutral policy question highlights two final points.

The first goes to a different aspect of the evolution of law, and thus procedure, since 1938. Seventy years ago, parties were largely interchangeable. A person or business entity was as likely to be a defendant as a plaintiff. So big business saw less of a need to push a defense-favorable view of the procedural rules, because a business might find itself as a plaintiff enjoying the benefits of notice pleading. There is far less interchangeability today--corporations and government are almost always defendants (and repeat defendants at that) who know they will almost exclusively enjoy benefits from a defense-favorable pleading regime.

The second goes to a procedural criticism of Iqbal and Twombly. To the extent the choice between the old Conley system and the new Iqbal/Twombly system is a policy determination, it should not come about through a decision in a case, but should be established through the notice-and-comment, increasingly democratized and political, Rules Enabling Act process.

Posted by Howard Wasserman on June 2, 2009 at 06:38 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

Monday, June 01, 2009

Signing Off

Thanks once again to Dan for allowing me to blog during this very eventful month.  And thanks to everyone who joined in the conversation.  Have a productive summer, and don't forget to have some fun.

Posted by Bill Araiza on June 1, 2009 at 05:24 PM | Permalink | Comments (0) | TrackBack

SCOTUS on Collateral Estoppel in Criminal Cases

I'm grateful to Dan for inviting me back for a third stint on Prawfs.  I'm not sure whether I should be pleased or chagrined, but I've found in recent years that when I meet new people at AALS, they are more likely to recognize my name from Prawfs than from my law review scholarship.  I'm trying very hard to believe this is more of a positive comment on Dan and the rest of the Prawfs team than a negative comment on my scholarship!

On to more substantive matters, like the Supreme Court's unanimous decision today in a death penalty case, Bobby v. Bies. Back in 1996, while reviewing Bies' sentence, the Ohio Supreme Court noted that the defendant's "mild to borderline mental retardation merit[s] some weight in mitigation," but affirmed his sentence anyway.  Six years later, of course, the United States Supreme Court ruled in Atkins v. Virginia that the Eighth Amendment bars execution of the mentally retarded.  The Ohio courts sensibly responded to Atkins by ordering a hearing to determine whether Bies was indeed retarded for Eighth Amendment purposes.  But Bies preempted the hearing by persuading a federal court that the issue had already been decided in his favor by the Ohio Supreme Court and that relitigation was precluded by the Double Jeopardy Clause.  After this decision was affirmed by the Sixth Circuit, the Supreme Court today reversed, holding there was no Double Jeopardy bar to the proposed Atkins hearing.

A couple of reactions.  First, as a unanimous decision in such a politically charged area as the death penalty, Bies is a nice reminder -- amidst the high emotions and free-flowing hyperbole surrounding the Sotomayor nomination -- that justices from across the ideological spectrum can and (at least at times) do set aside policy preferences to reach consensus right answers.

Second, although I'm pretty well convinced the Court got the right answer with respect to Bies, the opinion swept more broadly than it had to, perhaps unnecessarily limiting the Double Jeopardy issue preclusion doctrine. Is this one of those instances of "easy cases make bad law"?

The Ohio Supreme Court's statement about Bies' mental limitations was a short comment made in passing, and obviously not directed to the legal standard in Atkins (which was still six years away from being decided).  Bies was playing a "gotcha" game with the Ohio courts.  His claim could have, and should have, been rejected based on the simple fact that the Ohio Supreme Court did not purport to speak to any specific question of fact at issue in the Atkins hearing.  Instead, the Court rejected Bies' claim based, at least in part, on the fact that "the courts' statements regarding Bies' mental capacity were not necessary to the judgments affirming his death sentence" (slip op. at 8-9).  The statement on mental capacity did not trigger issue preclusion because it was merely a "subsidiary finding that, standing alone, is not outcome determinative.  Issue preclusion cannot transform Bies' loss at the sentencing phase into a partial victory" (9).

The import of Bies seems to be that defendants cannot invoke Double Jeopardy issue preclusion unless they won on some ultimate question in an earlier proceeding.  This rule, of course, has the formalist virtue of easy administration.  But the seminal case on Double Jeopardy issue preclusion, Ashe v. Swenson, famously disavowed formalism in favor of "realism and rationality."

So, here is a hypothetical variation on Bies in which "realism and rationality" would at least arguably favor the defendant.  Imagine that the Ohio courts had not merely made a vague, conclusory reference to Bies' mental limitations, but instead made the specific finding that "an IQ test administered after the offense establishes that Bies' IQ is 65."  In a later, post-Atkins hearing in state court, the state introduces a different IQ test showing an IQ of 71 and tries to take advantage of the rebuttable presumption recognized in Ohio law "that a defendant is not mentally retarded if his or her IQ is above 70" (5).  Now it doesn't feel quite so much like a game of "gotcha" when the defendant invokes issue preclusion.  Or, make the scenario even more favorable to the defendant and imagine that the state actively litigated the IQ question pre-Atkins and lost. Or, better still, the Ohio courts specifically found the test showing the IQ of 71 to be unreliable for some reason.  Do we really want to give the state a second opportunity to litigate IQ after it lost so decisively once?

Now, perhaps even in the hypo, the right answer is just to decide the IQ issue again anyway.  I can readily admit the disadvantages of case-by-case litigation of the reliability of "subsidiary findings" in earlier proceedings, and a balancing of the various competing values might well point in the direction of the bright-line rule endorsed in Bies. But a little more "judicial modesty" by the Court could have easily saved the question for another day.

Posted by Michael O'Hear on June 1, 2009 at 03:47 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Signing off with Souter

Somehow or other this guest-blogging stint didn’t quite come together the way I anticipated back when I signed up.  You know how it goes – May seemed far off.  Plus, what is there to do in May anyway?  Just writing and grading some exams.  There’ll be plenty of time to blog, I thought to myself.  So it goes.

I had hoped to devote a few posts to Justice Souter (remember him?).  Justice Souter is someone who I’ve always felt a certain admiration for on a personal level, and he strikes me as the Supreme Court Justice I’d most enjoy getting to know.  A lot of it has to do with the fact that he appears to have the strong sense of place that often follows from having been raised in a small town.  (In the place where I grew up, though, a town the size of Weare, NH would be the big town – the place we’d go to on weekend nights to see if anything exciting would happen.  It never did.)  But I also like the fact that he seems almost completely unimpressed by pomp and circumstance and being the center of attention.  That, to me, is the mark of Good People.*

Perhaps not coincidentally, it also strikes me as the appropriate worldview for a judge.  And in one of his rare public appearances, Justice Souter provided a vision of judging that rings true to my ears.  In “The Nine” Jeffrey Toobin quotes a portion of a speech that Justice Souter gave at Gerald Gunther’s funeral.  He referenced “every judge’s common obligations: suspicion of easy cases, skepticism about clear-edged categories, modesty in the face of precedent, candor in pitting one worthy principle against another, and the nerve to do it in concrete circumstances on an open page.”  

While I was at it, I was going to attempt to link Justice Souter’s connection to a place to the sorts of ideas that one finds in recent books like Michael Pollan’s The Omnivore’s Dilemma, Barbara Kingsolver’s Animal, Vegetable, Miracle, Alisa Smith and J.B. Mackinnon’s Plenty and in the work of folks like Wendell Berry, Bill McKibben, James Howard Kunstler, and these folks.  (Not all of which I endorse, but all of which is worth checking out.  One of the most interesting aspects of these ideas is that they do not fit neatly into currently predominant political boxes.)  Maybe next time. 

I’ll leave you with a summer reading recommendation.  If you’re the sort of person who’s read and enjoyed Pollan, Kingsolver and/or Smith & Mackinnon, you might also enjoy Michael Perry’s Coop.  Like Animal, Vegetable, Miracle and Plenty, Coop is the story of a year devoted to growing more of one’s own food, and a realistic depiction of the difficulties of doing so while trying to balance the rest of one’s life.  But it’s a lot more than that.  Mike Perry captures modern life in small Midwestern towns better than any writer I’ve encountered.  (More than that, Mike captures being inside my own head better than any writer I've encountered, possibly including myself.)  It’s tremendous reading not only for those of us who are from such places, but also for those who wonder what might be going on down there as they fly over flyover country.

Posted by Chad Oldfather on June 1, 2009 at 02:57 PM | Permalink | Comments (0) | TrackBack

Parenting Advice

I’m delighted to start my posts on PrawfsBlawg in June because June is THE most popular month for weddings.  Almost 11% of the 2.4 million weddings each year occur in June, while just under 5% occur in January (my reliable source for these statistics is the National Mail Order Association, which has lots to gain by being right on this).  These statistics will lead me into lots of different directions in my posts this month, including a discussion of my upcoming co-authored book, Red Families v. Blue Families. 


Now, though, I’m going to start with some advice to anyone considering becoming a parent, including brides and grooms: live near the mother of the woman -- if you want to give your children their highest possibilities of survival -- and don’t live near the mother of the man (if there is a man in the picture).  If you’re two women, then you have a wonderful choice of where to live. 

This advice is based on Sarah Blaffer Hrdy’s just-published, Mothers and Others:  The Evolutionary Origins of Mutual Understanding.  For anyone skeptical of the insights of evolutionary biology, as well as for anyone enamored of those insights (that covers, I hope, almost everyone), the book will be challenging.  She carefully and thoughtfully explores the origins of altruism and cooperation in humans, beginning with the all-important question of how humans differ from other animals.  In response to that question, she summarizes the evidence showing that we don’t differ based on our ability to use tools, or our“basic cognitive machinery.”   Instead, she argues that we’re different because of our ability to cooperate, the size of our brains, and our ability to use language.   Contrary to the prevailing theories of many evolutionary biologists who explain that humans evolved their extreme sociality and cooperative behavior in order to compete more effectively, she believes that it is our attributes as cooperative breeders that lead to our ability to trust and empathize with others.

The study of cooperative breeding is about half a century old in evolutionary biology, and recent research has shown the critical role that grandmothers play in helping their grandchildren survive.  My specific advice to people considering parenthood is based on a series of studies that Hrdy explores, which suggest that humans have depended on grandmothers (older women) to help nurture children.  She explains: “the presence of a maternal grandmother is more likely to be correlated with the enhanced well-being of grandchildren, whereas the presence of the father’s mother is more likely to be correlated with increased maternal fecundity, earlier reproduction, and shorter intervals between birth, ” at least “in traditional societies” (p. 261).  This research also helps explain the most surprising finding from a study of domestic violence in Afghanistan that I participated in last year: we found that the husband’s mother was frequently a perpetrator.


So, go live on your own or, if you’re going to have kids, near the mother's mother.  By the way, I have two children and live nowhere near my mother.  Go figure. 


Finally, a moment of silence for Dr. George Tiller, the Kansas physician who performed late-term abortions.  He was shot Sunday as he served as an usher at his church.  I will discuss the abortion issue in a later post.

Posted by Naomi Cahn on June 1, 2009 at 01:43 PM | Permalink | Comments (1) | TrackBack

Hello Again and Bilski Redux

Thanks for the welcome, Dan, and thanks to Prawfsblawg for having me back.  I have a variety of areas I want to post about this month.

But first, it is good timing that I am guesting this month, as the Supreme Court just granted cert. in In re Bilski (now Bilski v. Doll) (H/T several people).  If you haven't heard of it, Bilski is about patentable subject matter - more specifically about intangible processes.  The Federal Circuit's en banc opinion in Bilski issued while I was guesting last October - hence the good timing.

I posted at length about patentable subject matter last time, and the article I discussed has since been published by the Tennessee Law Review.  I don't plan to repeat myself this time, but I wanted to comment on what the granting of cert. might mean.

I was extremely critical of the Federal Circuit opinion when it came out, and not just because of sour grapes that the amicus brief I wrote with three other professors was largely ignored (and worse yet, uncited!).  I predicited in my prior posts that the new test would be a disaster, and - to my mind - it has been.  Bilski's machine or transformation test (see here for a description) has led to rejections of a variety of patents that were otherwise seemingly inventive, and that were completely unrelated to the much maligned business methods of Bilski.  Worse (and a focus of my article), the opinion leaves the test so vague that no one can really know if they have patentable subject matter until after a long process.

So I should be thrilled that cert. has been granted, right?  Time will tell.  I didn't participate in any amicii supporting the petition because I'm not really sure I want the Court to rule on this case..  The problem is that the Bilski application is very, very weak in my view (it is for hedging certain types of commodities).  It is weak for a variety of reasons, and probably should never issue.  Thus, I worry that the Court will mix the subject matter issues with the other problems with the application.

Then again, this is the perfect case to test the Court's fortitude for deciding the question presented.  There has been no ruling below on the other merits of Bilski because the PTO wanted it that way - the examiner (as far as I know), BPAI, and Federal Circuit ruled on subject matter and only subject matter.  If the Court reverses here, the application will likely be remanded all the way back to the examiner to consider novely, obviousness, enablement, and other patentability issues.

Thus, I am hopeful the Court will let the system work by rejecting a terrible test, coming up with a better one (the one I propose wouldn't be so bad, methinks), and letting the PTO deal with Bilski on the merits. I said the same thing in an Op-Ed to no avail before the Federal Circuit ruled.  We'll see if things change this time around.

Posted by Michael Risch on June 1, 2009 at 11:42 AM in Intellectual Property | Permalink | Comments (2) | TrackBack

Signing off

It has certainly been a pleasure to post, however sporadically, at Prawfsblawg for the month of May. I wish everyone a productive summer.

-- Jessie

Posted by Jessie Hill on June 1, 2009 at 10:41 AM | Permalink | Comments (0) | TrackBack

The Chrysler bankruptcy case & Indiana's "takings" lawsuit

Last night, Bankruptcy Judge Arthur Gonzales approved the section 363 sale of Chrysler to Fiat. This morning, Judge Gonzales refused to transfer Indiana's constitutional claim against the deal to federal district court. Here's a question for the prawfs interested in takings: Is there any merit to the Indiana pension funds' claim that, by ignoring the absolute priority of secured creditors, the bankruptcy court has "taken" those creditors' security interest without just compensation in violation of the Fifth Amendment?

The claim has inspired the usual outrage or applause from the usual suspects: George Will praises Indiana's lawsuit as plucky opposition to Obama's confiscatory Leviathan, and the Daily Kos praises the Chrysler deal as a bold move to save rust belt industry. But suppose that, just for the heck of it, one gave the ideological hand-waving a rest and instead analyzed the legal merits of Indiana's claim: is there anything to it?

For what it is worth (not much, as I am no bankruptcy scholar), my first instinct is to agree with David Zaring's analysis: Since 1937, takings-based objections to bankruptcy dispositions are generally doomed. And rightly so: After all, the essential assumption of bankruptcy is that creditors, secured or otherwise, are going to lose property. The question of how much, in what order of priority, is a matter of policy for the discretion of policy-makers, not judges.

But here is one reason to pause: In the usual post-1937 bankruptcy case in which creditors raise takings claims, the federal government itself is not one of the creditors, no? The bankruptcy disposition, therefore, is the result of an impartial referees' arbitrating between rival claimants. After TARP's investment in Chrysler, this is no longer the case (right?) Should the analysis, therefore, be different and more rigorous, when the feds themselves or their proxies budge ahead of other creditors?

The classic analysis of this distinction is Joseph Sax's old article, Takings and the Police Power, 74 Yale L. J. 36 (1964), in which Sax distinguishes between exercises of the police power that enhance the government's own entrepreneurial enterprises and exercise of the police power that impartially arbitrate between rival private parties. The former should be regarded with more skepticism than the latter, according to Sax.

I do not automatically endorse the analogy between regulatory takings of real property and claims that security interests have been taken: I have not given the question enough thought. Nor do I suggest that TARP automatically puts the feds in the position of an interested party or that the actual 363 disposition constitutes self-interested action by the feds (whatever that means). But I have an uneasy feeling that Zaring's analysis might be missing Sax's distinction. When the rest of the creditors are arguably bought off with TARP funds and when the feds themselves retain an equity interest in the firm that results from a section 363 sale, then there is a sense in which the takings claim becomes a bit more powerful to my mind. Given that the statutory merits of this section 363 seem a bit shaky, I'd be interested in hearing a more informed person explain to me whether and to what extent Indiana's taking claim is bunk.

Posted by Rick Hills on June 1, 2009 at 10:22 AM in Corporate | Permalink | Comments (1) | TrackBack

Late-Night Lawyers

It was an honor and a delight to join PrawfsBlawg as a guest in May. Where did the time go? In other (much more famous) news of transitions, we all know that Jay Leno signed off on the Tonight Show on Friday, and Conan O’Brien takes the helm today, which led me to think about the relatively small number of lawyers who have joined either show as guests over the years. The most famous lawyer and law professor to sit on either couch is President Obama; after that, the list is hard to remember, and a quick check around the web for such a compilation did not result in fruitful hits. As Jay and Conan transition to their new shows, which bits from their old shows would you like for them to keep? Which lawyers would make interesting guests?


Again, thanks so much to Dan and everyone at PrawfsBlawg for this great opportunity. I plan to return in the fall, space permitting. Have a wonderful summer!


Posted by Kelly Anders on June 1, 2009 at 10:19 AM in Culture | Permalink | Comments (0) | TrackBack


With the onset of the new month, I want to take a moment first to thank all the wonderful contributions over May and April from Mark Kende, John Pfaff, Marc Blitz, Marc DeGirolami, Rose Cuizon Villazar, Brooks Holland, Chad Oldfather, Jessie Hill, Bill Araiza, Hillel Levin, and Brian Galle. As per usual, some of these guests may linger for a little while.

Also, I'd like to welcome Jeanne Fromer (Fordham, IP); Naomi Cahn (GW; family law); and Helen Norton (UColorado; con law/torts/1A), all of whom are visiting Prawfs for the first time. And of course I'd like to welcome back Dave Fagundes (SW; property and IP; former MVP Pfest); Michael O'Hear (Marquette; crim law/pro); Michael Risch (WVU; IP), and Eduardo Penalver (Cornell; property).  We're so glad you could join us for this month.

Since it's early June, it's also the time that I'll be soon creating the guest list for the second half of the year. If you're a prawf and interested in visiting for a month or know someone who is, please let me know and we'll try to slot you in during a month of your choice between July and December. We ask our guests to have 2-4 posts a week during the month they visit. We're always interested in having a diversity of voices and I'm especially hopeful that some of the rising prawfs and rookies finishing up their first year will take up this invitation to introduce themselves and their work to the larger community of legal academics.

Posted by Administrators on June 1, 2009 at 07:21 AM in Blogging | Permalink | Comments (0) | TrackBack