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Friday, July 31, 2009

An argument for law school recruitment and hiring

This is a joint post with Nelson Tebbe:

As a matter of chance, we both have been guest-blogging this month, we have offices down the hall from each other, and we are both serving on our school’s entry-level appointments committee.
 So we thought we would join forces and dedicate our final post to a few reflections on the unusual market conditions this year.

Since so much has been said about the contracting legal market, we have been wondering how that market might impact academic hiring by law schools.   There is an argument for withdrawing from the hiring process altogether this year.  Since recruitment and hiring costs money, the argument goes, schools should instead wait to see what the broader legal market will do before they add or even replace faculty members.  You might think of this as the conservative business-model of law school hiring:  Wait and see what happens before you make relatively irreversible commitments in funding.   (Of course we recognize that for some law schools, this approach is a matter of financial exigency, not forecasting. )

On the other side, some will argue that law schools (particularly those with sound finances) should not waste this opportunity to recruit stellar candidates who would greatly enhance the schools’ academic and professional missions.  In other words, the reward of catching a particularly good candidate is well worth the costs entailed in recruiting. We think that this standard back-and-forth tends to ignore several additional benefits that arise from participating in the annual process of faculty recruiting. 

First, interviewing candidates introduces the school to potential (and, for laterals, current) academics on a much larger scale, and in a more intense way, than ordinary conferences and workshops do.  Both of us vividly recall our impressions of the schools with whom we interviewed during the recruitment process.  Moreover, during this process, we met people who became important correspondents and even collaborators. 

Second, recruiting strengthens bonds among the current faculty.  Whereas workshops and symposia may be attended only by specialists, job talks often draw a larger portion of the faculty.   If faculty members attend the workshop and ask questions, they not only get to know the candidate, but they also reacquaint themselves with their own colleagues.  The conversation often continues afterward in hallways and offices. Recruiting is particularly helpful for bonding among and between newer professors, who may find that hiring dinners provide a perfect context for getting to know their colleagues.

Finally, reading and discussing candidate papers exposes the faculty to a greater variety of new ideas, builds a common discussion about those ideas, and may stimulate overall scholarly productivity.

In short, participating in the hiring process produces benefits for the school even if the faculty does not end up extending a single offer.  That is not to say that recruiting does not entail significant costs - of course it does.  Our point is only that in evaluating those costs, schools should not lose sight of its ancillary benefits. 


We want to thank Dan and the entire Prawfs community for giving us the opportunity to join in the conversation this month. Enjoy the last few weeks of summer!

Posted by Miriam Baer on July 31, 2009 at 03:12 PM | Permalink | Comments (4) | TrackBack

baby boy markel

(Updated with pic below.) Wendi and I welcomed a little and delicious 7 lb 5 oz baby  boy into the world last night (Wed) at 1058 PM. Everyone is flourishing. The baby naming ceremony and bris will take place next week on Thursday in the Hassee. More details to follow but I'm using Facebook Mobile to pepper the world with inanities and new pics so, if you're interested, follow Bam-Bam's life journey there.

With gratitude and blessings,
Wendi Adelson and Danny Markel
Here's a pic of the little guy, dreaming of whitefish salad and other smoked delicacies to come.  Dreaming of Whitefish

Posted by Dan Markel on July 31, 2009 at 02:27 PM in Dan Markel | Permalink | Comments (17) | TrackBack

System Externalities

Traditional welfarist analysis considers whether a given change in law is optimal by considering the incentives and disincentives it will have on affected actors. Take cap and trade for example. If we give carbon emission credits to domestic industries and allow them to buy and sell them, we can limit emissions, efficiently distribute the production of those emissions, and generate revenue for low-pollution industries—apparently a Pareto-optimal move.

Similarly, if there are couples out there who want babies but can’t conceive, and women who want money and have a womb to spare, we can simply allow those women to rent out their uteruses (uteri?) to the couples, and bingo—Pareto-optimality again, right? Well, not so much it turns out. A large and very interesting literature questions whether markets in surrogacy (and organs, and living babies, and many other things) should be permitted.

There are many different angles to the critique of taboo markets, so I’ll focus instead on one classic objection to them that leads in a slightly different direction. Some work (e.g., Margaret Radin’s “Market-Inalienability”) suggests that even when the parties to a transaction are made better off by exchange, the fact of the law’s ratifying that transaction can itself have dynamic, and possibly deleterious, effects on society. A legal regime that permits women to rent out their wombs for profit might begin to regard uteruseses, or women, or bodies in general, as indistinguishable from other objects in trade, and these distributed social costs may overwhelm the localized welfare gains of permitting the transactions.

This is just one example of what I’ve come to think of as “system externalities”: situations where the law’s approbation of conduct or transactions may send messages or have other negative effects on our worldview that cut back against the immediate welfare gains created by the conduct or transaction. I give several other examples of system externalities, and raise some other questions about them, below the fold.

Some examples

System externalities are most familiar from the forbidden markets literature, but they arise in many other legal contexts. Last week I wrote a post about Doug Lichtman’s interesting IP Colloquium conversation about the Shepard Fairey case. During that conversation, Mark Lemley (Fairey’s counsel) raised a concern that requiring artists like Fairey to get permission in advance of creating appropriation art could lead to a “permission culture” that is “corrosive”. Bracketing for now the question whether Lemley’s assertion is accurate, this is a classic system externality argument. I understand Lemley to be suggesting that even if it would have been Pareto-optimal for Fairey to have obtained permission from the owner of the Obama photo in order to use it, the law would be entrenching a problematic norm by requiring artists to always seek permission before use. Such a norm could chill the increasingly robust remix culture emergent on the internet, for example.

System externalities appear in work of various ideological and methodological stripes. A classic work in this vein is one of my favorite classic law articles, Richard Epstein’s “Blackmail, Inc.” This article addresses the blackmail puzzle: why does law make blackmail illegal when it makes both parties better off? Epstein’s answer is that by countenancing blackmail, the law would incentivize the creation of industries that profited off blackmail, the effect of which would overwhelm any welfare gains produced by permitting that conduct.

Objections to certain kinds of stem cell research may also fall into the system-externality category. If the materials used for such research exact no costs on living humans, and using these materials for medical research may produce important health gains, it seems hard to understand why the government should stand in the way of this research, at least from a purely utilitarian point of view. Among the objections to stem cell research are that permitting it may cause us to think of human life as less precious and more cheap, and if this perception became widespread it could make all of us worse off.

General thoughts

Since blogs are the water coolers of legal academia (albeit “bugged” water coolers, as Kate Litvak pointed out), I wrote this post to see what others might make of this. Here are a few more specific inquiries.

First, does “system externalities” seem a promising or interesting way to slice across various subject matter and substantive areas of law, as I’ve suggested it is? Or do all these examples seem disparate in some way? On the other hand, maybe someone out there has already sliced things this way, rendering this all redundant. (I freely admit that I’ve done no preemption checking on this so far, though I worry that this is just a re-tread of the law-and-norms and/or expressivist literature that was in vogue during the early 2000s.)

Second, do judges ever invoke system externalities explicitly in cases, or do they implicitly rely on this idea when making decisions? Here’s a possible example from property law: spite fences. These are structures built on one owner’s property that are eyesores designed to antagonize a neighbor, and courts typically bend over backwards to enjoin them (even in the absence of a clear positive-law basis for doing so). Perhaps system externalities provide an explanation: even if the value the owner derives from building the spite fence is greater than the costs suffered by his neighbor, it might still be a good idea to enjoin the owner because we don’t want to live in a world littered with spite fences.

Third, how can we fit system externalities into a welfarist decision-making calculus? System externalities are often dismissed as purely expressive or aesthetic arguments, but I don’t think this tells the whole story. They are often (though not always) expressive arguments, but they have real-world impacts; the idea is even law’s most localized decisions construct the world in particular ways that can have long-term, distributed negative impacts. But even if you buy the theory, it’s hard to say just how these kinds of delayed, systemic effects should be folded into a decision-making process involving two transacting parties.

Posted by Dave_Fagundes on July 31, 2009 at 12:36 PM in Legal Theory | Permalink | Comments (8) | TrackBack

SEALS Panel: Enforcement of Foreign Defamation Judgments

For those of you at SEALS and looking for something at 4:30 to build an appetite for dinner, there will be a very good panel on the enforcement of foreign defamation judgments, the anchor panel for the two-day First Amendment Workshop. Speakers will critique the pending Free Speech Protection Act of 2009 (a subject I have written about previously) and general principles of how the First Amendment should affect domestic enforcement of foreign judgments against speech, where that speech is fully protected under U.S. law.

Enforcement of Foreign Defamation Judgments

The Free Speech Protection Act of 2009 would create a federal tort out of the filing of a defamation lawsuit in a foreign tribunal. In addition to the compelling speech interests involved in this libel tourism debate, there are a significant number of other relevant legal concerns (i.e., foreign relations, the viability of the Hague Conferences attempt to formulate a multilateral treaty on the recognition of civil judgments, etc.). In addition, the ALI has recently completed the final draft of its Foreign Judgment Recognition Act including a lengthy reporter’s note regarding foreign libel judgments.

Moderator: Professor Benjamin Means, University of South Carolina School of Law.

Speakers: Professor Doug Rendleman, Washington & Lee University School of Law; Professor Robert McFarland, Faulkner University, Thomas Goode Jones School of Law; Professor Howard Wasserman, Florida International University College of Law; Professor Michael Broyde, Emory University School of Law; Professor Louise Teitz, Rogers Williams University School of Law.

I will discuss some First Amendment and Article III problems with the proposed federal law.

Posted by Howard Wasserman on July 31, 2009 at 11:43 AM in Howard Wasserman | Permalink | Comments (0) | TrackBack

Some Parting Thoughts on Research Assistants for Junior Profs

Since beginning my law teaching career, I have had a number of research assistants, whom I have asked to perform a variety of types of projects for me. As I see it, an RA position should benefit both the prof and the student. Perhaps because these goals are at times in conflict, I have not yet hit upon an RA model that seems to work particularly well. As this is my last day here at PrawfsBlawg, I thought I'd share my thoughts on RAs and ask readers for their input.


From the prof perspective, we want our RAs to be able to perform tasks that will save us time. Leaving aside the tricky question of whether RAs should write any part of the article ---- something that I don't ask my RAs to do ---- the typical tasks seem to consist of research and proofreading. Proofreading, though it saves prof time, is probably not the substantive or interesting work that RAs are all that interested in doing. And it frankly doesn't save all that much prof time.

Research projects can be interesting for RAs, but they pose other problems. The more complicated the research project, the more likely it is that a student may perform the project poorly. If I have to go back and "check" my RA's research, then it isn't saving me time. And sometimes, in looking through the primary sources myself, I've seen information that was outside the research question posed to the RA, but that is still valuable to the project. Simpler research projects present less of a risk of RA error, but might not present much of a time saving to profs, who are likely to be able to perform simple projects more quickly than students. Simpler projects --- i.e., find me a law review article that says X for footnote 9 --- are also less likely to be interesting for students.

Finally, because students who have worked as my RA often ask me for clerkship recommendations, I think it is important to give them tasks that allow me to assess their research, writing, and critical thinking skills. But I also don't want to give the students busy work just in order to form an opinion about those skills.

Have any of you hit upon methods of employing RAs that seem valuable to both the student and the prof?

Posted by Carissa Hessick on July 31, 2009 at 11:16 AM in Life of Law Schools | Permalink | Comments (1)

Certifying Questions to the Supreme Court: Is Seale the Perfect Storm?

By now, you've surely learned from How Appealing or SCOTUSblog of the en banc Fifth Circuit's decision to certify to the Supreme Court the following question: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?"

The merits of this question aside, and the broader political significance of the prosecution of James Ford Seale (in which it arises) notwithstanding, it strikes me that this provides a rare opportunity to reflect upon the utility of this oddest of vehicles through which to obtain Supreme Court review.

The last time the Supreme Court accepted a certified question from a court of appeals was in 1981, in the immediate aftermath of Dames & Moore v. Regan (a case that came to the Court in one big hurry).  In a related (but distinct) case arising out of the Second Circuit (Iran National Airlines Corp. v. Marschalk Co.), the Court answered three questions, two with one word ("yes"), and with cursory citations to Dames & Moore, and a third with a short explanation and a cite. Three Justices (led by Powell) dissented, arguing that the wiser course would have been simply to vacate and remand the Second Circuit's decision for further consideration in light of Dames & Moore, rather than answering the questions abstractly (and without the benefiit of additional briefing and argument).

To me, at least, Powell had it exactly right. Indeed, the Court's far-more-common practice is (as it was in 1981) to send cases back down for full reconsideration (and new briefing in light of the intervening decision) on the assumption that the issues might differ, if ever so slightly (in my view, at least, this was true in Marschalk).  One might justify what the Court did in Marschalk as stemming from the same pressures that led to the quick and decisive resolution of the Iranian claims isssue that prompted Dames & Moore itself, but in the typical case, a "GVR" in light of the new decision seems right on.

Same, too, with the most recent well-known effort by a court of appeals to have the Supreme Court answer a certified question -- the en banc Second Circuit's 2005 certificate in United States v. Penaranda, asking the post-Blakely sentencing question that the Court would soon answer in Booker. There, it was only a matter of time before the question presented would arise on the merits of a properly presented cert. petition, and so the Court knew it could wait, however briefly, for the issue to ripen.

In marked contrast, here we have a pure, discrete, stand-alone legal question wholly unrelated to any other cases currently pending before the Court, and one that would, for obvious reasons, materially advance (and perhaps pretermit) the litigation in the lower courts (the original Fifth Circuit panel would have acquitted Seale). 

To be sure, it would be better if the Fifth Circuit was not evenly divided and was capable of resolving this question on the merits. But where the court of appeals can't act, where the defendant has already been convicted under the arguably time-barred claim, and where the issue may not properly come to the Court in a cert. petition before the defendant is potentially harmed by such a result, it strikes me that we might have the perfect facts for certification.

Put another way, if certification is ever going to be used again, isn't this the case for it?

Posted by Steve Vladeck on July 31, 2009 at 12:41 AM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (5) | TrackBack

Thursday, July 30, 2009

Planning and Promoting Your Scholarly Career

Next week is the annual conference of the Southeastern Association of Law Schools, or SEALS, which will be held in lovely Palm Beach, Florida. I will be appearing on two panels.  Sunday's panel is: 


ROUNDTABLE DISCUSSION: PLANNING YOUR SCHOLARLY CAREER 

This panel will examine “scholarly paths,” and includes a variety of perspectives on that topic. Should faculty pursue a consistent scholarly path over the course of their careers, or might their paths diverge over time. 

Moderator: Professor Michele Butts, John Marshall Law School (Atlanta). Speakers: Professor Barbara Cox, California Western School of Law; Professor Cynthia Ward, College of William & Mary, Marshall-Wythe School of Law; Professor Ellen Podgor, Stetson University College of Law; Professor Paul Horwitz, University of Alabama School of Law.


Tuesday's panel is:

Maximum Exposure: The Art of Making a Name for Oneself

This panel will explore ways in which junior scholars can make their presence known in the academic community.  Panelists will address questions such as: When and to whom should I send reprints?  How do I network at large conferences?  Should I focus on attending smaller conferences?  How do I get invited to present at other institutions?  How can I use technology to market my scholarship?  Do I need a mentor and, if so, how do I find one?  Should I cold contact or introduce myself to established scholars in my field?  How do I get involved with a topical scholarly thinking group?  How can my Associate Dean of Faculty Development or Scholarship help me?
 

Moderator: Professor Wesley Oliver, Widener University School of Law.

Speakers: Professor Jennifer Collins, Wake Forest University School of Law; Professor Erica Hashimoto, University of Georgia School of Law; Professor Paul Horwitz, University of Alabama School of Law; Professor Orin Kerr, George Washington University Law School.


I suppose I could keep my advice short: Plan to take advantage of conferences in Palm Beach.  And promote your appearances on Prawfsblawg.  I actually have a few more thoughts than that about both topics.  But I am eager to hear from our readers.  What advice would you give a junior scholar about planning a scholarly career?  Should you be a fox or a hedgehog?  How should your early pieces differ, if at all, from your later pieces?  How do you get started?  (Since most junior profs now come in with published pieces, this is probably no longer as big a problem, but my sense is some people's pre-teaching publications are derived from practice or law school, and that some new profs still have difficulty getting things off the ground.)  And how should you promote your scholarly career?  Do blogs help?  Reprints?  How do you network?  And -- something I'm especially interested in, because this part of my career has probably lagged a little behind the other aspects of my work -- how do you start getting invited to conferences and to workshop?  (Happily, this seems to be picking up, but yes, I'm always looking for invites, especially to workshop.)  

Comments are very welcome.  The more I hear from our readers, the more I'll know either what good answers are out there or what good questions are still unanswered for many junior profs.  See you at the lanai.  I'll be the dude with the skull T-shirt, the frozen and salted margarita, and the copy of Charles Taylor's A Secular Age.  

Posted by Paul Horwitz on July 30, 2009 at 11:08 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Results of laptop ban survey

After banning laptops from the classroom last semester, I surveyed my students about the ban. I got about 65 responses out of approximately 200 students (not a great yield, but still). The questions and results, as well as my thoughts, after the jump:

My apologies for the formatting; I could not get them to line up.

1) What effect has the laptop ban had on your concentration in class?

Strongly positive: 33 Slightly positive: 17 Neutral: 13 Slightly Negative: 1 Strongly Negative: 0

2. What effect has the laptop ban had on whether you have found the course material interesting?

Strongly positive: 17 Slightly positive: 11 Neutral: 29 Slightly Negative: 3 Strongly Negative: 0

3. What effect has the laptop ban had on your ability to learn the material?

Strongly positive: 24 Slightly positive: 11 Neutral: 18 Slightly Negative: 6 Strongly Negative: 2

4. What effect has the laptop ban had on the usefulness of your notes for studying?

Strongly positive: 14 Slightly positive: 8 Neutral: 9 Slightly Negative: 22 Strongly Negative: 7

5. What effect has the laptop ban had on your overall enjoyment of the course?

Strongly positive: 21 Slightly positive: 13 Neutral: 16 Slightly Negative: 8 Strongly Negative: 1

So what do I make of these results? A few thoughts:

1) There were more neutral answers than I expected or, frankly, would have liked.

2) Students overwhelmingly recognize that they concentrate better and pay more attention when they are not allowed to use laptops. In other words, students recognize that the ban achieves one of its primary goals of increasing student attention and involvement. The limitation is that this does not tell us whether the reason for the increased concentration and attention is because the distraction of the internet/IM/e-mail has been removed or because, distractions aside, they are more involved when forced to listen and process the discussion rather than trying to transcribe it.

3) Students seem mostly positive or non-committal as to whether absence of laptops affected their enjoyment of the material or their ability to learn it. Which, of course, seems inconsistent with the overwhelming belief that they concentrated better. Better concentration does not equal great enjoyment or absorption? That seems counter-intuitive--if you pay more attention, don't you learn more (even if you find out you don't particularly like the material or the course)?

4) Students are split almost evenly positive/negative on the effect of the ban on note taking and the usefulness of class notes. My inference is that the negative on this is that students are accustomed to converting their typed class notes into an outline by cutting-and-pasting and reorganizing their class notes, rather than retyping those notes (one student specifically objected to having to retype). But I continue to believe that it is in the act of retyping, while putting all the divergent materials together in one whole, that real learning occurs and everything comes together.

I also asked some open-ended questions, including what students believe would be the best laptop policy. As with student evaluations generally, answers were all over the place. Only a few comments expressed a strong view that I was flat wrong to impose the ban; those who thought they should be allowed at least expressed an ability to see where I (and other banners) was coming from. Interestingly, several students suggested that laptops should be banned simply because enforcing a no-surfing/class-use only rule (which they supported) is impossible and the over-inclusive ban becomes the only way to halt inappropriate use of the internet. At least a couple of students commented that they were initially bothered by the ban, but came to appreciate the benefits of notetaking by hand.

On that last point, though, consider the following: About midway through the semester, I asked students in both of my 65-person Civ Pro classes how many were using laptops in their other classes in which use was permitted; all but 3-5 students in each class indicated they opened the computers back up when they were allowed. Which tells me that if I was expecting this to be an educational revelation--students would realize that laptop-free was the way to go and they would carry the lesson to the rest of law school--that was not happening. On the other hand, that finding is inconsistent with the anecdotal experiences of some prawfs who have banned laptops for the first month of class and given students the option after that and found that a substantial majority, having become accustomed to hand-notes, kept the computers closed.

So where am I on this? I definitely saw and felt the benefits in my classes and so did many of the students. The ban was neither wildly popular nor wildly unpopular; which means I am neither doing them a great favor nor flying in the face of overwhelming opinion. For now, students see this as just another "thing" you deal with in different prawf's classes--like lecture style, evaluation style, etc.

I will continue to exclude laptops this year (while still recording classes for them--just like at trial or deposition). And whether they take classes with him and the evaluations I receive in those classes, for now, seem unaffected by the ban.

Posted by Howard Wasserman on July 30, 2009 at 07:19 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (17) | TrackBack

Wednesday, July 29, 2009

The Benefits (and Costs?) of Inactivity

I wrote a few weeks ago about whether lawprofs count as lawyers. There is, in my opinion, no right or wrong answer to this question, but one distinction between the two is clear: you have to be a bar member to do much of the work of a lawyer, but you don’t have to be a bar member to work as a law professor. Indeed, some law professors, such as HLS’s Duncan Kennedy and Scott Brewer, have never even taken a bar exam.

That said, I’d wager that most law professors are bar members, and I’m no exception, having been a member of the California Bar since 2003. When I was working at a firm, this was a requirement, but since I left for academia, it obviously isn’t any longer, and I’ve grown ambivalent about whether it makes sense to maintain active bar membership status (primarily because of the high cost of bar dues: $410 last time around and going up every year).

Fortunately, there is a middle ground. California, possibly like other states (I haven’t checked), permits members to opt for “inactive” status. This allows members to pay lower bar fees (only $125 as opposed to $410), but precludes them from actively practicing law (can’t appear in court, represent clients, sign court submissions, etc.). If you want to change back to active bar status, you simply apply and pay the full dues for that year.

Since I have no short-term plans to practice law, my sense is that changing my status to inactive makes sense. My question to the broad and esteemed Prawfs readership is if others have made the same move and/or have strong opinions about it. I explore a couple possible objections below the fold.

First, while I have no short-term plans to practice law (in the same formal sense that some law profs are affiliated with firms or take on pro bono cases), I wouldn’t necessarily be against a limited consulting gig if an interesting opportunity came along. Would this kind of informal advising amount to unauthorized practice by a bar non-member? Are there other activities that law profs do on a regular basis (other than traditional client representation) that could run up against unauthorized-practice restrictions?

Second, are there any expressive or communicative costs to inactive status? I had an interesting conversation with a recent Southwestern graduate about the challenges of the California bar, and she suggested that students (at least at our school) want and expect their professors to have passed the bar. Her reasons were that the bar should be a mandatory rite of passage for all members of the profession, including professors; and that bar membership represents a standard of minimum competency that lends credibility to those teaching the law. Even if one regards her observations as reasonable and typical of students, though, I’m not sure they make any difference with respect to the active/inactive distinction. I understood this student’s objection to be about professors not assaying the bar at all, not passing the bar and then choosing a more limited status.

As the above discussion makes clear, there don’t seem to me any reasons that opting for inactive status would be problematic. I wrote this post to see if I’m overlooking any reasons that it might be, and to see if other law profs have opted for inactivity themselves. 

Posted by Dave_Fagundes on July 29, 2009 at 06:08 PM | Permalink | Comments (8) | TrackBack

Two Cheers for COPS

Behind the scenes both the Obama Administration and Police Unions must have winced over last weekend as Gates-gate (as Thomas Frank among others dubs it) built, knowing that Tuesday would be "police day" in the national recovery program, with Vice President Biden and AG Holder headlining the roll-out (AP Coverage) of 1 Billion in "stimulus" funding for cities to hire or not-lay off police officers.  It got a fair amount of attention from Bay Area media yesterday afternoon highlighting 50 new police for Oakland and San Francisco each (along with smaller numbers for Richmond and a few other cities).  Why two cheers?  Bay Area cities, especially Oakland, are under staffed given their relatively low densities and spread out geographies.  Any hope of NYC like police led reductions in crime would require very substantial increases in the size of the force (as well as better utlization than has been the record).  Compared to prisons where all but the most ideologically commited to mass imprisonment would agree that we are maxed out on useful expansion, more effective policing looks to have lots of potential gain left at least in the Bay Area.  Compared to heavy fixed capital prison costs, police spending is potentially very flexible, and with imaginative leadership can been deployed to address a wide variety of community needs.  But it would have been even better if the money had gone to counties with the mandate that they spend it to improve public safety by hiring needed personnell or services, while lettting counties decide whether more police officers are as crucial as more juvenile probation officers, more drug treatment openings, or more mental health workers, etc.

Posted by Jonathan Simon on July 29, 2009 at 12:44 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Law Schools, Law Firms and Skills

The posts on legal education (both here and elsewhere) have been very interesting, particularly for a professor beginning her second year of tenure-track teaching. Like most people on the academic job market, my primary interests were theoretical, albeit with a practical bent.  I like to write about certain legal institutions with which I had practical experience, and think about how different theories (law and economics, behavioral economics, etc) inform our understanding of those institutions and the policies they generate.  I liked thinking about theory in college, and in law school, and even in practice.   One of the reasons I came to the world of teaching is that I found myself reading law review articles long after they were useful to me as a practitioner. 

But I also thought it important to learn some skills in law school, and I particularly enjoyed teaching an experiential simulation-based course in NYU's Lawyering program.  I won't go over all of the reasons for an experiential first-year Lawyering program, but at its best, it can allow students to see the shortcomings of both doctrine and theory.  Things don't work out the way we expect or predict them to, and then we have to come up with something else instead.  Such knowledge should improve both our scholarship and the legal training of students.

The problem is that beyond the skill of analyzing cases and constructing arguments, there are very few skills that can be generalized to all areas of the law.  So saying that we are preparing students for the practice of law is a very dicey measure because the practice of law encompasses so many things and changes rapidly. 

On top of that, it is not at all clear me that those AmLaw 100 law firms, the ones to which students still aspire, want well-trained entry-level lawyers.

Case in point: Twelve years ago, I became a litigation associate at Cravath, following a one-year appellate clerkship.  None of my law school classes were "skills-based" and none of the Cravath partners who interviewed me cared.  Now, this is only my perspective, but from what I could tell, the point (at least back then) was to take a smart attorney and inject them with a big dose of firm-culture.  In my opinion, the last thing Cravath would have wanted was to hear some 1st year associate saying, "Don't worry, I can do this deposition because I was trained really well in law school," because the reflexive answer would have been, "No, you can't do this deposition.  You need to learn how to do it from us." 

And just to be clear, this wasn't just Cravath's attitude.  Two years later, I jumped to the United States Attorney's Office in Manhattan.  Other than working on two pro bono criminal matters at Cravath, I had no experience with criminal law (and I certainly had no court-room experience).  I had not taken any criminal law classes in law school other than the required first-year class.  And I was hardly alone.  Very few of the starting attorneys at the USAO were former prosecutors and I can think of only one or two entering AUSA's who had been partners at law firms.  To the contrary, most came from either clerkships or were mid-level associates at law firms, many of them big firms like mine.   

Now maybe times have changed, and maybe the other big law firms (which aped the Cravath system for so many years) also have changed.  But my sense is that the last thing these firms wanted were well-developed attorneys with a solid skill base.  If they had, then they would have hired far more laterals than entry-levels and they would have compensated associates without regard to class year.  What they wanted were smart people who were willing to immerse themselves in the firm's culture and mannerisms.  They wanted people who would feed and support the firm's hierarchical structure.  People with the ability to develop skills, yes.  People with already-developed skills (as opposed to an already defined client base, which is an entirely different matter), not so much.

Which brings us to today.  Now, as their client base dwindles and their fees are attacked, what do those large law firms want?  Do they really want "skilled" first-year attorneys?  Or do they still want smart people who can quickly develop the firm's version of these skills?  I doubt they themselves know the answer.  Nevertheless, old habits die hard and "skills" are awfully difficult to judge among entry-level candidates.  For all these reasons, the large law firms - even if they say they value skills - may continue to cling to the old model, albeit in much smaller form.





Posted by Miriam Baer on July 29, 2009 at 10:40 AM | Permalink | Comments (13) | TrackBack

Conference for Aspiring Law Profs

The recent posts about the fall teaching market have reminded me about a conference for aspiring law professors that Arizona State will be hosting on October 17th. The conference is designed for people who are currently working as VAPs or Fellows, and who intend on going on the job market this fall. It will give attendees an insider's perspective on the job market, as well as an opportunity to give a mock job talk or participate in a mock AALS interview.

Faculty participants include Jack Chin, Brian Leiter, Prawfs' own Orly Lobel, Marc Miller, Doug Sylvester, and Brent White. More information about the conference and a link for registration can be found here.

Posted by Carissa Hessick on July 29, 2009 at 10:35 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0) | TrackBack

Living Outside the Paradigms

Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines.  (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it.)  I was explaining this yesterday to my father-in-law, who is visiting us here in Michigan.  He's a really bright guy (a lawyer), and loves ideas, but he's not a scholar by any means, and so I'm obliged to use plain English.  It went like this.  If you are constructing a thesis that borrows from many disciplines, how much of an expert in each discipline do you need to be?  Moreover, if it's really original work, who is going to be able to judge whether the work constructively pushes the inquiry along, or is simply bullshit?*  In other words, if you are going to write in law and phrenology, do you have to have the equivalent of a professional certification (whatever that is) in both disciplines?  And if you do, have you been sufficiently co-opted by both disciplines so as to kill off whatever inclination you may have had to do "out of the box" thinking?  That's the dilemma, and I don't think it's any more resolvable by way of a silver bullet than most other long-standing irresolvable debates (like "Tastes Great" or "Less Filling").

At the recommendation of frequent commenter, A.J. Sutter, I recently started a book by Hamline University philosopher of science, Stephen Kellert, entitled Borrowed Knowledge:  Chaos Theory and the Challenge of Learning Across Disciplines.  At the same time, Brian Leiter linked the other day to my friend Rob Kar's recent review (in the Notre Dame Philosophical Reviews) of Brian's Naturalizing 9780226429786 Jurisprudence.  The fun in reading something like Brian's work, or Rob's review of it, is the deep dive into a long-standing dialogue; in this case, the jurisprudential debates over the last century or so over the possibility of explaining, philosophically, scientifically, sociologically, or psychologically, how judges go about making law, and more fundamentally, what law is.  Nevertheless, if your intuition happens to be that looking at what judges do is like looking backwards through a telescope (i.e., not wrong, but focused on a very particular instance of how humans manage to order their affairs in the whole scheme of life, law, norms, and business), then you keep bouncing out of it with something of a "so what?"  The "so what?" is likely the reaction of most normal people to most of what philosophers, historians, literary critics, and other sojourners in the humanities do anyway, but I'm a lawyer-practitioner who somehow plopped into the academy, for God's sake, and like Guy Noir, trying to find answers to life's persistent questions.  I thus feel compelled to figure out what might bridge us from the relatively pure jurisprudence of a Leiter or Hart or Raz to what I spent more than a quarter century doing in the real world, which was legal work, but most of the time not involving judges.

More below the fold on the opposite of the deep dive - borrowing from one field to another.

A couple of years ago, I got hung up on Gödel's Theorem, which is one of the groundbreaking instances of pure thought in the last century.  For the uninitiated, Bertrand Russell and Alfred North Whitehead purported to reduce all of mathematics to a set of foundational axioms and rules of inference, focusing primarily on sets and numbers (cardinal, ordinal, real).  Kurt Gödel, a member of the Vienna Circle, constructed a lengthy proof, the purpose of which was to show that any complete complex system of formal logic, like arithmetic (particularly as encapsuled by Whitehead & North's Principia Mathematica), contained propositions that were formally undecidable within the system (i.e., that they could not be proved either true or false using the axioms and rules of inference).  In other words, the system could be either wholly consistent or complete, but not both.  The proof method involves a formal version of the Liar's Paradox, in which the following phrase translates into numbers:  "[Is not provable] is not provable."  In other words,  we get to the point where the system loops on itself, and tells us in formal terms, that the  proposition "is not provable" we've postulated within the system, and then working only from the system's basic axioms and rules of inference, and thus appearing to be provable, is not provable.  That's what makes it a theorem.

This is a mind-bending thing to contemplate, and Douglas Hofstadter's Gödel, Escher, Bach is perhaps the most famous attempt to derive metaphors from it.  But is it an effective metaphor for reducibility or limitations on knowledge, or other epistemological or metaphysical insights?  Gödel himself, like many mathematicians, was something of a Platonist. 

When I was fiddling around with this (and there's a lot of fiddling in this area - do a Lexis or Westlaw search in law reviews on "Gödel"), Larry Solum, ever wise, voiced the cautionary message:  the formal logicians are very skeptical of attempts to extend metaphors from formal logic into other areas.  But are the logicians entitled to define the extension of the metaphor?  That's what Kellert's book is about, but more generally as to all disciplines (including a discussion of the question "what's a good metaphor?").  In particular, he looks at metaphors to chaos theory, something HE knows about, in economics, law, and literature.

Well, I'm just diving into this, so more to come later.

* I may have a special interest in this.  I have a book proposal under review with a major university press.  The following comment from one of the anonymous reviewers is one that I kind of cherish:  "It is clear the author has a special range of interest and expertise, and this book weaves the author’s unique range of interests together with purpose.  The problem is that not many people share the author’s range of interests."

Posted by Jeff Lipshaw on July 29, 2009 at 10:04 AM in Deliberation and voices, Legal Theory, Lipshaw | Permalink | Comments (6) | TrackBack

Tuesday, July 28, 2009

Can a District Court Commit "Plain Error" By Choosing One Side of a Circuit Split?

This is the fascinating issue that divides a panel of the D.C. Circuit in a decision handed down today. The specific question is whether federal sentencing law bars a district court from choosing a longer jail sentence in order to further the defendant's opportunities for rehabilitation.  The majority (Judges Tatel and Garland) answers this question in the affirmative, reasoning that the plain language of 18 U.S.C. 3582(a) compels such a conclusion. 

But whatever the merits of their (persuasive) analysis, what makes this case interesting (at least to me) is that the court finds that the district court's error (in concluding to the contrary) was "plain," even though, as the majority points out, there is a circuit split on the question. As Judge Henderson objects in her dissent, "Whoever has the better reading [of the statute], courts have read it differently—and with conflicting results—which manifests, at least to me, that any court that has read it erroneously has not done so plainly."

Is Judge Henderson right that it is generally inappropriate, on plain error review, to find such "plain" error where the district court relied on precedent from several circuits? Or, to the contrary, is it refreshingly honest for one circuit court to admit, however implicitly, that its sister circuits are sometimes "plainly" wrong? I tend toward the latter view (after all, precedent should never be followed blindly), but think this is a fascinating issue that may well warrant further discussion.

Posted by Steve Vladeck on July 28, 2009 at 04:54 PM in Constitutional thoughts, Criminal Law, Steve Vladeck | Permalink | Comments (9) | TrackBack

The law-jobs market: What is to be done?

While I do not think there's any reason people should have noticed the absence, I regret being such a double-plus ungood Prawfsblawgger this summer and appreciate all the great stuff others have been writing.  (Blame it on Arizona, and Jackson Hole, and the North Cascades.)  That said:  I've been thinking and reading a lot about (what one hears is) the coming (and current) very, very challenging law-job-hiring market that our students are facing and wondering, what can we (i.e., the law professors) do to help?

Some thoughts after the jump . . .

One possible answer, of course, is "nothing."  The economy is in not-good shape, and the profession is not only responding to the downturn but also (perhaps) changing in fundamental, structural ways.  Another possible answer is the old reliable one, "law schools should give up on their scholarly aspirations / pretentions and focus carefully and entirely on professional training and practical skills.  If they do, then the students' job prospects will improve dramatically."  Still another might be, "law professors should join together and call for the closing of half of America's law schools.  This would reduce the number of young lawyers seeking increasingly hard-to-find jobs." 

These latter answers do not appeal to me, so I hope that they are not the right ones.

So, what else?  I cannot imagine that any law teachers are not concerned about their students' prospects, or saddened by the stress that so many are facing.  What can we do?  If law schools were to, for example, double the number of staff in their career-services offices, would that help?  Or, would it just mean that there would be more people helping the too-many students chase after the too-few jobs?  If law schools got more aggressive / creative with "how to get a job" programming, carefully reviewed and edited all students' CVs, counseled every student individually regarding their plans and prospects, etc., would it make a difference?  We can call our friends and former students, but such calls are not likely to create jobs that do not exist. 

I imagine that many of us are being asked for advice, help, support.  What are we saying and doing?

UPDATE:  Tax prof Michael Livingston responds convincingly here to, among other things, the "law schools need to become more practical" answer.

Posted by Rick Garnett on July 28, 2009 at 02:47 PM in Life of Law Schools | Permalink | Comments (11) | TrackBack

Elmendorf and Leib on Citizens' Budgets

We had a false alarm at the hospital last night, which explains why I'm only now getting to share my "other" excitement for the day: Ethan Leib and Chris Elmendorf (UC Davis Prawf) have a thoughtful op-ed on deliberative decisionmaking in the budgeting process; it is in today's NYTimes. Here's the link. I've reproduced it after the jump. Congrats to both Ethan and Chris!


Budgets by the People, for the People

NEARLY a month after the June 30 deadline, California’s Legislature and governor have finally agreed on a budget for the new fiscal year. The embarrassing debacle of paying the state’s bills with i.o.u.’s will come to an end — at least for a while. Though Gov. Arnold Schwarzenegger had pledged not to “kick the can down the road,” the budget he intends to sign today relies on $8 billion in accounting and revenue gimmickry, virtually guaranteeing another fiscal crisis next year.

For states as well as families, hard economic times require difficult choices. But some states find themselves in budget battles even when they don’t have the bad economy to use as an excuse. California is the prime recidivist, but since 2002, Connecticut, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Virginia and Wisconsin have also failed to close the deal on a budget on time. Government shutdowns resulted on five occasions.

Budget breakdowns most often occur under conditions of divided government — when Democratic and Republican lawmakers must compromise with one another to get a budget passed. Yet many voters like divided government, and for good reason. Distrusting of the extremes in both parties, these voters want their states to follow middle-of-the-road fiscal policies.

California’s Constitution has long required the Legislature to adopt a budget with a two-thirds vote; eight other states now necessitate supermajorities for some budget items. Such rules effectively force the majority party to negotiate with the minority on the budget since it is rare for one party to win two-thirds of the seats in a state legislature.

In California and elsewhere, politicians and analysts have called for constitutional conventions to revise the basic charter of state government. Believing that fed-up voters will reject any reforms on which political insiders have left their prints, some have suggested that delegates to the convention consist of ordinary citizens selected at random in a process akin to being called for jury duty.

But jurors are given a pretty limited task. They decide one case at a time and their basic choice is binary: guilty or not guilty, victory for the plaintiff or for the defendant. It is probably wishful thinking to expect random citizens to redesign state government from top to bottom.

We suggest a more modest role for an assembly of ordinary citizens: breaking budget stalemates. Here’s how it would work. If the Legislature and the governor fail to adopt a budget four weeks before the deadline for the new fiscal year, a group of randomly selected citizens — one from each legislative district — would be convened to resolve the stalemate. Three competing budgets would be drawn up: one by the governor, one by the Democratic caucuses in the legislative branch and one by the Republican caucuses. (These proposed budgets would have to be finalized before the citizens were selected.)

For two weeks, the citizens’ assembly would hear from and question government leaders, policy experts, interest groups and other supporters and critics of the proposed budgets. The citizens would then deliberate among themselves and vote by secret ballot on which of the budgets to adopt. The vote would take place on the budgets as originally submitted; neither the citizens nor lawmakers would be able to make amendments. The winning budget would become law.

This arrangement would have a number of virtues. First, it would ensure that states adopt budgets in a timely fashion, protecting bond ratings and freeing lawmakers to attend to other important business.

Second, it would give the three institutional actors in the budgetary process — the governor and the Democratic and Republican caucuses — strong incentives to devise budgets that appeal to middle-of-the-road voters, not political ideologues or special-interest favor seekers. Citizens who participate in the two-week assembly would also learn an awful lot about their state’s fiscal situation and competing legislative priorities. These citizen participants would not be as susceptible to sound-bite misinformation as in more traditional exercises of direct democracy.

Our scheme would also do wonders for accountability. When budgets are adopted under divided government (or supermajority requirements), it is hard for voters to figure out exactly who is responsible for the shape of the compromises. If the upside of divided government is centrist compromise, the downside is weakened retrospective accountability at the polls. Our approach to budgeting promotes accountability because the enacted budget would unequivocally belong to “the governor,” “the Republicans” or “the Democrats.” Dissatisfied voters would know exactly whom to reward or fault when they go to the polls at the next election.

Finally, our proposal honors Americans’ insistence on a strong popular voice in government, without demanding too much of citizen participants. It would require them to perform only a fairly simple task: rank your preferences among three proposed budgets, after hearing out the proponents and opponents of each.

Elsewhere, citizens have already proven themselves able to make measured, well-reasoned decisions about budgetary issues in small-group deliberative settings. The Brazilian city of Porto Alegre has been doing participatory budgeting since 1989, which has helped to equalize severe disparities in the standards of living among its residents. In Zeguo Township, China, citizens have been convened through statistically random sampling to establish spending priorities for road, building and construction projects.

Here at home, our participatory budgeting procedure would not be a panacea. But it should result in timely budgets, tailored to the concerns of average voters, for which elected officials can be held to account. That’s definitely better than the mess we have now.

Chris Elmendorf is a professor of law at the University of California, Davis. Ethan J. Leib is a professor at the University of California Hastings College of the Law.

Posted by Dan Markel on July 28, 2009 at 12:16 PM in Article Spotlight, Current Affairs, Ethan Leib | Permalink | Comments (0) | TrackBack

Monday, July 27, 2009

Baseball, punishment, and Pete Rose

Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, during the twentieth anniversary of Rose's permanent ban from Major League Baseball for gambling on games involving the team he was managing. Reinstatement virtually ensures Rose's induction into the Hall of Fame, perhaps as early as next year. The only thing that had been keeping Rose out was Hall of Fame Rule 3E, which bars from election and induction any person on MLB's Permanently Ineligible List.

Two sort-of law-related queries after the jump.

First, I would like to hear what crim-law and punishment scholars think about this as a matter of punishment theory and practice. Rose accepted permanent ineligibility from the game as part of a settlement, likely to avoid a formal finding that he had bet on games in which his own team was involved (the evidence against him is pretty strong). He later admitted to that conduct which, under Major League Rule 21(d) carries an automatic punishment of permanent ineligibility ("shall be declared permanently ineligible"). But now it appears he is going to get back into the game (and probably the Hall) within his lifetime, although the 20 years he lost as a manager, executive, ambassador, etc., certainly are nothing to sneeze at. Is this the equivalent of a commuted sentence--he served his time, he has reformed himself, let him get on with his life? Or is this more like a pardon--a subsequent statement that Rose did nothing wrong? Are the goals and theories of punishment and of MLB furthered by this move, which ultimately gives Rose everything he wanted, if a few years late? And what do we do with the arguments (which always have seemed counter-intuitive to me) that if Rose had admitted to gambling in 1989 or any time within the past two decades, he already would (and should) have been reinstated.

Second, what about the Black Sox, the eight members of the Chicago White Sox, who were permanently banned for their various roles in taking money from gamblers to throw the 1919 World Series. Reinstating Rose would establish precedent that a permanent ban for gambling-related activity is not, in fact, a permanent ban. If Rose can be reinstated after twenty years, is there any argument against reinstating the Black Sox players after eighty?

After all, some of them were suspended for arguably less-serious infractions than Rose. Shoeless Joe Jackson (the one Black Sox player whose reinstatement likely carries with it a debate about the Hall of Fame) took money but did nothing to lose games; Buck Weaver took no money and was punished only for knowing about the fix and not informing team and league officials. Reprehensible conduct to be sure; but Selig seems to be in a forgiving mood. Moreover, without excusing the Black Sox, context matters. Baseball during the first twenty years of the last century was a few steps above professional wrestling--gambling, fixed games, and general cheating were pervasive, constantly discussed, and mostly ignored. Talk of fixed World Series games went all the way back to the first Series in 1903 and there was talk of fixes in both the 1917 and 1918 Series, as well as late-season shenanigans from 1917-19. The hiring of Kenesaw Mountain Landis as commissioner reflected a conscious move by the Major Leagues to shed that image as entertainment and become a true, on-the-level competition. By the time Rose came along, on the other hand, the rules and the history were well-established and could not have been clearer--gambling, especially gambling on games involving your team, was the ultimate baseball sin; it even was posted on the wall of every Major League Clubhouse. That knowledge arguably makes Rose's conduct more unforgivable.

Can there be any rational distinction drawn between the Sox players and Rose that would justify reinstating the latter and not some or all of the former? And is Selig aware of the box he is opening?

Posted by Howard Wasserman on July 27, 2009 at 04:31 PM in Culture, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (6) | TrackBack

Late Summer Law Review Submissions

I was speaking with a few colleagues recently about the late summer law review submission window, and it seemed that we each had different understandings about when exactly the window is. One of us thought it ran from the second week in August to the first week of September, another thought the window began in late July, and the third thought that the window opened a week before classes began and closed in late September. And someone else I spoke with thought that most major journals now completely fill their books in the spring, and thus essentially don't look at late summer submissions.

On further reflection I realized that we might all be somewhat correct, as the window may vary from school to school. But in the belief that more information is generally better, I thought I'd ask the Prawfs readers --- especially those with recent personal knowledge as authors or editors --- to indicate in the comment thread when they think the late summer window is. If you have journal-specific information, including whether a specific law review has filled all of its issues for the upcoming year, please include it in your comment.

Posted by Carissa Hessick on July 27, 2009 at 02:50 PM in Life of Law Schools | Permalink | Comments (10)

Sunday, July 26, 2009

How Not to Be a Lawyer - Theatrical Version

I'm immeasurably proud of all my children, including James, who comes home next week from his summer as a teaching assistant in the EPGY program at Stanford, and Matthew who starts med school at Michigan next week IMG_0285 (where we'll be attending his White Coat Ceremony), but today we focus on my daughter, Arielle (Columbia, MFA, Dramaturgy, expected '10, pictured, in the middle between director Jeremiah Matthew Davis and playwright Daniella Shoshan), who combines an actor's creative instincts, leadership, and an amazing ability to organize things as the producer of Tell It to Me Slowly, one of the plays featured in the New York International Fringe Festival, "the largest multi-arts festival in North America, with more than 200 companies from all over the world performing for 16 days in more than 20 venues."

One of Arielle's claims to fame is the way in which she anticipated the Big Law meltdown of 2008-09, having worked for a year following her graduation from Sarah Lawrence College in 2006 as a litigation paralegal at Weil, Gotshal & Manges in New York, thinking perhaps about going to law school.  Somehow all the thrills and excitement of paralegal life just didn't do it for her.  I wonder why.

Tell It to Me Slowly runs for five performances between August 15 and 29 at the Robert Moss Theater in New York.  I'll see you there on the 29th.

Posted by Jeff Lipshaw on July 26, 2009 at 02:22 PM in Culture | Permalink | Comments (0) | TrackBack

Taxing Punitive Damages, etc.

Update 8/16: We've now got a first shitty draft available for private circulation; if there are tax or torts mavens who wish to read it, please email me asap. Thanks.

It's about four days until my wife is "due." During this pre-baby period, one of my projects has been an effort with my friend and co-author, Gregg Polsky, to finish our "shitty first draft" of Taxing Punitive Damages. I'm happy to say we're almost there. This paper is actually the fourth paper on punitive damages I've been involved with the last few years. The first two came out this past spring (here and here) and I was initially planning on turning to work further on and submit the third one, Punitive Damages and Complex Litigation, later this summer.  But for a cluster of reasons, that piece is now on the back burner and has swapped places with the fourth piece -- the one with Gregg on the intersection of taxation and punitive damages. 


Unlike the earlier co-authoring work I did (and am doing still) with Ethan and Jennifer, where we had overlapping areas of expertise as well as separate ones, this piece with Gregg presents a collaboration where there's really no overlap of expertise. He's the tax guy and I'm, well, the guy who does whatever it is that I do. While I'm definitely not the tax guy -- I never took tax in law school, to my regret, so I've been trying to learn a few things while writing this paper up -- I confess I've had fun learning about all this new legal mumbo jumbo. Tax is fun.  Yeah, I said it.*

Over the next week or so and in the course of a few posts, I'll try to share some parts of the paper's main ideas. There's a rough stab at an abstract after the jump. But keep in mind that all this is tentative, so if you think we're off-base, please let us know.  By the way, we expect to have a circulable draft in the next week or two. If you're a tax person and/or interested in federalism (Brian G? Rick H?), we hope you'll be among the first to read it.

Taxing Punitive Damages
In this article, we address the important but astonishingly under-examined issues associated with the taxation law and policy related to punitive damages. For the most part, the tax consequences of punitive damages are not on anyone’s minds, and as a result of this blind spot, plaintiffs and their lawyers are likely leaving enormous amounts of money on the table in every case involving punitive damages against defendants whose torts occurred in the context of business operations. Of course, even if we assumed that decision-makers regarding punitive damages were aware of the relevant tax effects, there are still a number of other important issues affecting whether a jurisdiction should make punitive damages a) deductible from defendants’ gross income or non-deductible, and b) taxable gains to the plaintiff.  This Article examines those issues, and by doing so, spotlights the policy difficulties associated with trying to use tax law to help achieve the goals of current punitive damages law.  Contrary to a number of scholars who have flatly endorsed the move to a non-deductibility rule to simply increase the putative “sting” of punitive damages, we explain what that change in taxation would augur for a broad array of policy concerns including federalism, settlement incentives, collusion against third parties, and administrative oversight. Because we think a lot of the difficulties associated with the taxation of punitive damages cannot be readily fixed simply by tweaking tax law, we sketch out a vision for what a more attractive punitive damages regime would look like, and how the tax rules would correspond appropriately. 

*Btw, I associated the "Yeah, I said it" line with Chris Rock and his famous joke about who can and cannot be First Lady, but it seems Wanda Sykes may have laid claim to it more prominently by her book title.

Posted by Dan Markel on July 26, 2009 at 02:00 PM in Article Spotlight, Dan Markel, Retributive Damages, Torts | Permalink | Comments (2) | TrackBack

Advice for Those Travelers with Bottles of Palinka or Other Souvenir Spirits, and Observations on the Endowment Effect

You have already checked your bags and gone through security in an airport in Europe such as Budapest's Ferihegy Airport.  You have Kat0_004 7,000 or so Hungarian forints ($35) just burning a hole in your pocket, so you decide to invest in a bottle of Zwack Sándor Nemes Pálinka (barack flavor - and that's not a tribute to our President - it's Hungarian for apricot, pronounced "bar-RATZK"), which you have sampled, and find to be a delightful way to anticipate your gulyas or your csirke paprikas

Being a thinking type, you say to yourself, "ah, but this is more than three ounces of liquid."  If I don't have a problem until I clear customs in Detroit, I can put it in my suitcase for the last leg to Traverse City."  The only issue will be if there is any problem in Amsterdam.  You say to the clerk in the duty-free store, "Will I have any problem with this in Amsterdam?"  To which the response is, of course, "no."

Learn from my experience.  There is a problem in Amsterdam.  If you are getting on an international flight from Schiphol Airport's international side, you will have to do a carry-on security check at the gate, and which point the security people will tell you that you cannot carry on your pálinka unless you bought it in the duty-free shop at Schiphol Airport, and that they confiscate dozens of bottles of booze and wine daily from travelers changing planes in Amsterdam, having bought the stuff in Prague, Budapest, Warsaw, or whereever (which they probably resell in the Schiphol duty free shop!). 

This, by the way, is what the behaviorial psychologists and economists call the "endowment effect."  Once something is ours, it takes on a value far beyond its cash value, merely because it is ours.  Experiments have shown that if you give a group of people equally worthless kewpie dolls, and then ask them to trade them, generally they won't, at least straight up, because each person's kewpie doll takes on a value to its new owner that is something more than worthless.  Suffice it to say that I did manage to repack my backpack and check it at the gate, and complete my plan in Detroit, but I was the last person to get seated on the plane as I negotiated to save the pálinka, and in good old-fashioned irrational actor fashion, for just a moment contemplated blowing hundreds of dollars missing my flight just to make a point about what a stupid rule it was.

Posted by Jeff Lipshaw on July 26, 2009 at 10:00 AM in Odd World | Permalink | Comments (1) | TrackBack

Saturday, July 25, 2009

President Obama and the Paradoxes of Police Power

The  end of the week controversy over Professor Henry Louis Gate's arrest in Cambridge, and President Obama's own comments on that arrest, may have presented the nation with a "teaching moment" about race and policing (Gate's words quoted in the NYTimes story by Peter Baker and Helen Cooper).  It has already been one about the national importance of police power since the "war on crime."

First, the idea tha President Obama erred by making a "neighborhood story" into a "national" one is wrong historically.  Policing the neighborhood has been a national issue since the mid-1960s.  Every president since LBJ has posed as frequently as possible with large phalanxes of uniformed local police.  The politicians who have most sought public police support, including Bill Clinton, George W. Bush, and Rudolph Guliani, have all reaped national benefits.  If President Obama did something different it was varying from the tone of reverential solemnity and adoration in describing the "boys in blue".  I will leave it to our linguists to parce whether the President's use of the phrase "stupid" was a mistake that opened the door to class conflicts,  I suspect that no matter how carefully he had crafted his message, anything recognizably critical would have been met by the kind of response it has.  The first paradox than is that police operate locally but since the "war on crime" became a national crusade, police have become what the military is in foreign wars, a sacralized  metaphor for the national public itself.  Sgt. Crowley, once surrounded by the national police community and the deeply ingrained media love affair with the police (anchors are almost as eager as politicians to pose with them), is actually the equal of President Obama in stature. (more paradoxes after the fold)

It wasn't always so.  At mid-20th century the police were viewed as an emblem of the corruptness and incompetence of local government in general as any Raymond Chandler novel (or film based thereon) will attest.   Pre-"war on crime" local police were arrayed against a set of locally based "illegalities" that had more or  less support in the community.  What changed was not improvements and reform in policing (although that has happened) but a national war on crime that made them front line soldiers against the uniformly perfidious enemies of "crime," "disorder," and now "terror."  Yet even as they have become the chief public face of the war on crime and a symbol of national citizenship itself, police have found themselves on the losing end of the resource explosion in crime control.   I would suspect it is mainly a level of governmet problem.  Prisons are controlled by state governments which have many more revenue and spending options, as well as a much stronger presence before national government in Washington D.C. than cities and counties do. This is the second paradox.  While prison systems have grown 3,4, or 5 times the size they were in the 70s, most police depatments have hardly grown (my colleague Justin McCrary is now exploring the extent and determinants of this disparity) and they therefore lack the resources to do the job they are constantly touted for dying bravely in the name of. 

That police became a national symbol of citizenship in the 1960s has only deepened the injury created by the undeniable gulf in the way black (and largely latino) communities experience policing (Charles Blow summarizes some of the elements in his NYT column today) .  The antagonism between police and minority communities (especially black communities) is as old as European settlement and slavery in the Americas.  As Berkeley English Professor Bryan Wagner shows in a fascinating article  about police politics in antebellum New Orleans [Disarmed and Dangerous: The Strange Career of Bras-Coupé, Representations No. 92, Fall 2005, the article may require access codes or fees to view], the black man outside the control of slavery is the constitutive image of the threat against which police power was defined and justified.  Black men (and to some degree women and other men of color) find themselves presumptively viewed  as disorderly and must perform docility in order to reassure police [Juan Williams gave a stunningly unself-conscious description of how he personally gives this kind of performance as he criticized President Obama for failing to perform it, in a discussion on Weekend Edition Saturday, this morning).  While police departments have gone a long way toward institutionalizing racial sensitivity, including Cambridge where Sgt. Crowley was a trainer on race issues, they cannot erase this ontological link, a problem that has only been exaccerbated by their ascendance to a national symbol of consensus. This is the third paradox. Just as black and latino citizens were getting their citizenship recognized in law in the 1960s, their most historically problematic adversary, the police, were becoming the standard bearer for that national citizenship.

But while the police officer symbolically represents the  nation, the police view themselves as a "band of brothers" (quoted in Michael Wilson and Solomon Moore's story on police citizen encounters in today's NYTimes) sworn to protect each other over any other citizen or the public in general when that comes into conflict.  Moreover, most citizens of any color who deal with the business end of policing in the streets comes to understand this perfectly well.  This is my final paradox.  The public and political adoration of the police coexists uneasily with the fact that this powerful armed society within a society exercises huge and mostly unreviewable power over all Americans as individuals.

For all these reasons it would take an Obama to make this a truly teachable moment for America.  But it would have to be a 45 minute "moment" and not a quip at the end of a press conference.  Is this the right time for that moment nationally?  Probably not.

Posted by Jonathan Simon on July 25, 2009 at 01:41 PM in Criminal Law | Permalink | Comments (8) | TrackBack

More on the Gates Arrest

Paul and Dave have both written very interesting posts on the Gates incident, and they have me wondering about policing and class. In particular, I'm interested in how police interact with middle and upper class citizens (and vice versa). My own interactions with police officers have sometimes been quite unpleasant --- not because the officers were wrong to stop me or because I had been subject to any sort of profiling --- but rather because the officers treated me with such a lack of respect that I felt angry and humiliated. As someone who ordinarily encounters, if not respect, than at least politeness, these experiences with police officers have been quite difficult to forget.

I know that police officers have difficult and dangerous jobs, and I'm sure that they have to deal with plenty of rude citizens whoay have engaged in some (not always minor) wrong-doing. But it is easy to conclude that the behavior of some officers is designed as an overt show of authority, thus a citizen's response of "do you know who I am" seems to me a response to the show of that authority -- especially once the officer's authority is no longer necessary for law enforcement reasons.

I don't pretend to know how to solve policing tensions --- sadly, I don't think even Gates and this officer having a beer with Obama will accomplish anything. But I do think it is important to remember that the law in this area -- the "consentual stop" doctrine, permitting officers to demand citizens to show ID, the low reasonable suspicion standard, and even defining "disoderly conduct" as a crime -- exacerbates these tensions and has probably led to countless other unfortunate incidents like the Gates arrest.

[Ed. note by DM: I have taken the liberty of deleting the anon comments here (not Carissa). I did so on Jeff's Cambridge Police post too.)

Posted by Carissa Hessick on July 25, 2009 at 01:03 PM in Current Affairs | Permalink | Comments (7)

Friday, July 24, 2009

What's in a (Jewish) name?

Ron Rosenbaum at Slate pens an open letter to Jon Stewart, urging him to use his given surname of Leibowitz professionally (Stewart's given name is Jonathan Stuart Leibowitz). Rosenbaum's argument is that Stewart's decision early in his career to change his name reflects the remnants of the now-antiquated, 20th-century belief that Jewish performers needed less-identifiably Jewish names to gain acceptance from the (subtly anti-Semitic) mainstream American society. See, e.g, Bob Dylan, ne Robert Zimmerman, or Kirk Douglas, ne Issur Danielovitch Demsky. Friends and family who are from my parents' generation (late '60s-mid'70s) have told me about being kids and playing the parlor game "Who's a Jew" for a sense of ethnic and religious pride--and the trick was figuring it out from very not-Jewish names.

But, Rosenbaum argues, 21st century America readily accepts "openly Jewish" (I don't know any other way to put that) celebrities--that Gentleman's Agreement anti-Semitism is mostly a thing of the past. And Stewart is pretty explicit about his Yiddishe identity and has parlayed that hamishness into replacing Walter Cronkite as the most trusted newsman in America.* So, Rosenbaum argues, if there is anyone who can get away with flaunting a Jewish name to the U.S. as a whole, it's Jon Leibowitz.

I am not sure what I think of this one. I am not sure the underlying issue that Rosenbaum is trying to engage--performers and celebrities overcoming their ethnic identities and whether that remains necessary in today's society--really is in play here. I never saw Stewart's name change as an attempt to hide his Jewishness. I always assumed he did it just because he had an unwieldy name for show business--the two syllables and seven letters of Stewart roll off the tongue (and take up less billboard and marquee space) than the nine letters and three syllables of Leibowitz. If he had a shorter but still-identifiably Jewish name (Rosenbaum points to Jerry Seinfeld), perhaps Stewart would not have changed it (although no one other than he knows). I can sympathize, actually. I am not sure I would have tried to make it as an actor/singer/comedian/broadcaster with a last name like Wasserman--not because I believed it was too Jewish, but because it is a mouthful. Plus, he settled on Stewart, which still strikes me as a very Jewish name; although we could wonder why, if he were not trying to pass, he did not go with say, Jon Leib.

Rosenbaum points to his own experience and the pride his father took when he became a writer and continued to use the family name. But writers, it seems to me, are different than entertainers and many Jewish writers, even of the last century, used their given, obviously Jewish names--Isaac Bashevis Singer, Philip Roth, Studs Terkel but see Saul Bellow (ne Solomon Bello), although that's still pretty close.

It is an interesting point. And Rosenbaum is working on a biography of Bob Dylan and wonders whether he could have become Dylan had he tried to make it as Zimmerman. Still, I doubt people would see the host as more Jewish or more prideful of his Jewish identity if it were The Daily Show with Jon Leibowitz.

  • I am a huge fan of Stewart's and have been since he first took over The Daily Show in 1999. But his being the most trusted newsman just tells us the low esteem in which the public holds the news media.

Posted by Howard Wasserman on July 24, 2009 at 04:42 PM in Culture, Howard Wasserman | Permalink | Comments (7) | TrackBack

Memo to the bond market

Ok, I know nothing about bonds (its basically a loan, right?), but I have watched California prisons grow steadily over the second half of my now 50 years.  While it  looks certain that the California legislature will pass, and the governor sign, the complex budget compromise (read the SFChron coverage), if I were loaning money to the state on the basis of there budgetary projections, I would start worrying now.  Specifically, 1.2 billion in savings in the fiscal year is promised from cuts to the Department of Corrections and Rehabilitation.  Republicans initially balked at voting for the overall package if it included the corrections cuts which assumed prisoner populations reductions (the dreaded early release).  They compromised at voting for the 1.2 billion cut without any specification as to how it would be obtained.  That will leave the Democratic majority free to enact specific prison policy shifts on a majority vote (rather than the 2/3 constitutionally required for budget resolutions) and the governor, theoretically willing to sign it.  But the Republicans have promised a major debate against "early release" backed by law enforcement and the correctional officer's union.  It is quiet possible that enough Democrats will defect or that Schwarzenegger will decide not to sign the bills that emerge.  More importantly, for any promise of long term sustained correctional cuts to be believable, you need to see the magic words "sentencing commission" in any package of correctional policy changes.  Short of that, do not loan us money withoug "juice loan" premiums.

Posted by Jonathan Simon on July 24, 2009 at 11:25 AM in Criminal Law | Permalink | Comments (1) | TrackBack

Concluding Thoughts on Teaching in a Summer LL.M. Program

For the first time in two weeks, I've actually relaxed a little before class, in part because I know what I'm going to do today - the last of ten consecutive weekdays in which I've taught a two-hour long class in federal Img_1 securities regulation to non-U.S. lawyers (except for the three U.S. lawyers that we admitted to the program this year).  It's not as abbreviated as you think at first.  My 3-credit hour securities regulation class in Boston has 35 class hours; this is 20, and it's stuffed into two weeks.  Add a little heat and humidity, plus the hard work of scaling a class back by 15 hours of material and having it still make sense, and it explains why you get back to your hotel, take a shower and pretty much collapse every night.

So here I am sitting outside with an eszpreszo dupla at the Cafe Alibi on the Egyetem Ter (University Square), reflecting on the experience.

1.  Don't complain.  While it is indeed hard work, like most things about being a law professor, it's a nice gig.

2.  It's very much an online exercise.  The problem with assigning American casebooks is not just the cost but the difficulty of schlepping the books around, particularly when the students have three classes (i.e. six hours of class) a day.  We use TWEN, with publishers' permission to copy some material out of the casebooks.  In my case, I set up links on TWEN to the University of Cincinnati Securities Law Deskbook, posted my syllabus and class outlines, provided PDF files with exercises taken from Choi and Pritchard (with permission), and posted copies of the key cases.  I also recommended the "Securities Law in a Nutshell" as a source for an overview.

3.  The pedagogical challenge in a course like securities regulation is finding a balance between overview and detail.  If you skate over the top, the students might as well just read the Nutshell.  When you dig into the regulations (for example, teaching Regulation D small and private offerings, Regulation S overseas offerings, or the Rule 144 resale safe harbor), just the logistics alone, not to mention the specificity and complexity in the face of the language barriers, can be a frustrating challenge. You need constantly to dig into the trees, and then return for the big forest picture.

4.  By and large, the "students" are delightful.  Most of them are already experienced lawyers.  They come from Malaysia, Lebanon, Iran, Hungary, Sweden, Germany, Austria, Czech Republic, Nigeria, Northern Ireland, Mexico, Honduras, Ukraine, and a few more I can't recall offhand.  The program involves three summers of the two-week program in Budapest, plus online courses, plus a research project and paper.  We had the closing ceremony last night, in which the third-year students had the "last word."  For all that we have the MacCrate and Carnegie issues in the U.S., the students here, I think, perceive of their American professors as pragmatic, energetic, and accessible, at least in comparison to traditional (continental) European legal academics.

5.  Don't underestimate the work it takes to organize this.  I come away with much respect and admiration for Bridgett Halay, the director of the program.  She is combined lawyer, meeting planner, counselor, confidante, mediator, diplomat, and curriculum planner.  (My colleague Steve Hicks is also here, and works hard, but he's a full professor, so his ego doesn't need any more boosting.) Imagine a two-week long conference with 70 or so participants and ten or so faculty members.

6.  To my chagrin, as a person who thinks Power Point should be used as seasoning - sparingly, and as an accompaniment to teaching, not an outline or crutch - the students here love Power Point as much aIMG_0532s in the U.S.  Moreover, the classroom (see right), in addition to being rectilinear, acoustically challenged, and not ampitheatrical, has the usual problem of having the screen for Power Point cover the chalkboard (which I'm sure, by the way was installed somewhere around 1872).  And I, of course, love the smell of  the chalk dust and the roar of the crowd (not to mention those nostalgic screeches of chalk against slate).  I also put on my stern face the first day when most of the class came sauntering in anywhere from five to twenty-five minutes late.  Now my philosophy of teaching runs something like this - I can lead you to water but I can't make you drink.  And while I care deeply about leading you to water, particularly if you want to drink, I really don't care if you make the decision not to drink - it's your life, not mine.  Hence, I don't care if you surf the Internet or do Twitter during class, but I really don't like it when people coming in late disrupt everybody else.  As a result, my gift from the class in the closing ceremony yesterday was a small chalkboard, signed on the frame by all the third-year students, on which was inscribed (in chalk) "Class begins PROMPTLY at 2:30 p.m.  POWER POINT SUCKS."

7.  Budapest is an interesting place.  Physically, it's beautiful.  The view down the Danube is breathtaking, particularly in the evening.  It's seedier than Vienna, and more exotic, I think, because of the strangeness of the Hungarian language, but it's a city that had kings and nobles in the tradition of Vienna, Munich, and Berlin.  There's more here that survived the war than in the former East Berlin, so the old world aspect lives on much more.  And there's a kind of post-Communist edginess, even now, despite the fine restaurants and nice hotels.  You don't want to hail a cab on the street, get scammed in by the hustlers on the Vaci Utca (the main tourist pedestrian zone), spend much time in the Keleti vasutallomas (railway station), or try to find an office supply store to buy a roller ball pen.

Posted by Jeff Lipshaw on July 24, 2009 at 06:37 AM in Teaching Law | Permalink | Comments (5) | TrackBack

Thursday, July 23, 2009

Art, Licensing Markets, and the Limits of Unauthorized Appropriation

Mannyfairey

Doug Lichtman’s IP Colloquium has already been mentioned on this site. It’s a great series of conversations about contemporary issues in intellectual property featuring guests from academia (including PrawfsBlawg’s own Dan “Dan” Markel), law practice, and the entertainment and technology industries.

The most recent edition of the IPC addresses an issue of particular interest to me. The copyright dispute involving Associated Press and graffiti artist Shepard Fairey is familiar news. Fairey’s based his iconic “Hope” poster of Obama on a photo taken for the A.P. by freelance photographer Mannie Garcia. (Garcia has now joined the lawsuit, contesting the A.P.’s original claim that they own the copyright in the photo pursuant to the work made for hire doctrine.)

It’s uncontested that Fairey did not seek or receive permission to use the photo in making his poster, so the substantive debate revolves around whether Fairey’s taking is defensible under the fair use doctrine, which permits unauthorized takings that meet a notoriously slippery four-part statutory balancing test. Doug’s latest IPC conversation features the lawyers for Fairey (Mark Lemley) and the A.P. (Dale Cendali) as well as the New York Times’ General Counsel, Ken Richieri.

The Fairey conversation ranges over a number of very engaging issues, but I’m going to limit this discussion to consideration of the fourth fair use factor. I say more about this issue, and why I’m not as convinced as Doug that it weighs in favor of the owners of the Obama photo, below the fold.

The Copyright Act requires judges to consider “the effect of the use upon the potential market for or value of the copyrighted work” in evaluating a fair use defense. Cendali argues that allowing Fairey’s fair use defense will lead to a world that will destroy licensing markets in all news photography, but this is an obviously overstated litigator’s point. No one is arguing that purely substitutive uses (such as reprinting the Obama photo verbatim) should be allowed in the absence of permission or a license. The right way to frame the question, I think, is whether an artist who creatively appropriates a news photograph needs to pay for a license to do so.

This strikes me as a hard question. Lichtman’s take is that there was a well-functioning market here, so that all Fairey would have had to do is ask for permission to use the photo (and perhaps pay a small fee) in order to avoid liability concerns. And Garcia has said that he would have given Fairey permission to use the photo if Fairey had simply asked him about it beforehand, which seems to suggest that there was such a licensing market, and that Fairey just failed to take advantage of it. If that were true, it would be a strong argument against fair use (though not necessarily a dispositive one—the Second Circuit has held that the mere existence of a well-functioning licensing market alone does not preclude a fair use defense).

I think this counterfactual characterization of a smoothly functioning licensing market suffers from hindsight bias in a couple of respects. For one thing, even if it were true that Garcia would have given Fairey permission to use the photo, his grant of permission may not have been sufficient. The A.P. claims that it is the copyright owner, so a good-faith effort by Fairey to clear the rights could still have landed him in trouble (copyright is a strict liability offense, so an innocent state of mind would not be a defense). And corporations have a track record of not extending as much generosity to potential licensees as individual owners might. (In any event, I’m not so convinced that Garcia would have been so generous. If he really was so indifferent to Fairey’s—or anyone’s—profiting off of his photo, why would he now be joining the lawsuit and seeking to claim ownership of the work?) Finally, markets in creative work don’t function as seamlessly as markets in stocks or commodities, where actors regard the goods in trade as largely fungible. Rather, copyright cases are full of instances where owners reject a lucrative licensing offer for personal or idiosyncratic reasons (e.g., Campbell v. Acuff-Rose; Fisher v. Dees).

For all these reasons, I’m not as confident that we can simply say that fair use is inapposite here because Fairey eschewed use of a well-functioning market (nor am I convinced that it would end matters even if this were the case). But I also think it’s worth pausing on Lemley’s policy argument that there’s something “corrosive” about making art such as Fairey’s subject to a permission culture. Both Lichtman and Lemley agree that in some cases, fair use is necessary because it enables the legitimacy of a form, such as movie reviews. If critics need a studio license to include film clips in their reviews, then studios can condition those licenses on favorable commentary, and critics will lose credibility.

In a similar vein, though, much art—especially appropriation and graffiti art, like Fairey’s—depends on its transgressive character. Because part of the appeal (and social message) of this art is its edgy lawlessness, if these kinds of artists had to politely ask lawyers for permission beforehand, much of the power of their work would be lost. Now one could certainly argue that the social value of transgressive art is not worth the costs imposed on owners by unauthorized takings, and this empirical point may be right (though I’m skeptical that something like this can be measured). But this is the same basic argument for fair use that is generally accepted in the film criticism instance: forcing a permission culture on the users would compromise the value of the work itself.

Finally, Lemley suggests that part of the factor-four calculus should include the enormous positive impact that Fairey’s taking has had on Garcia’s career (his photography is much more in demand now that he is associated with the iconic Obama poster). As Cendali tartly puts it, this is the claim that “I did you a favor by ripping off your work”, and few courts have put much store in this argument when evaluating the final fair use factor.

By contrast, I think it’s a convincing point, for a couple reasons. First, the fourth fair use factor is commonly referred to as the market-effect factor, but tells only part of the textual story. The statute actually requires consideration of “the effect of the use upon the potential market for or value of the copyrighted work” (emphasis added). The plain language seems to not only permit, but demand, consideration of how the defendant’s use impacted the value of the owner’s work, not just the effect the use had on potential markets. Second, as a policy matter, if it’s true that Garcia is much better off thanks to Fairey’s unauthorized use than he would have been in a world where that use never happened, I can’t understand the argument that Fairey owes Garcia money; if anything, it seems like just the opposite should be true. At the very least, it seems to me that this argument should be part of the factor-four discussion rather than dismissed as readily as it is by most courts and commentators.

For all of these reasons, I’m more skeptical of the claim that the fourth factor weighs strongly in favor of the owner of the Obama photo, and I think the fair use issue is a truly difficult one. Regardless of your take on the issue, though, the conversation at IPC is an enjoyable one and well worth checking out.

Posted by Dave_Fagundes on July 23, 2009 at 05:31 PM in Intellectual Property | Permalink | Comments (5) | TrackBack

Establishment and Fairness

I just received printed copies of pieces that arose out of a roundtable on Kent Greenawalt’s important book, Religion and the Constitution: Establishment and Fairness.  Constitutional Commentary hasn’t yet posted the table of contents, but the pieces themselves are available on Westlaw if you search for “Symposium: Establishment and Fairness” in the JLR database.  Contributors include Larry Alexander, Robert Audi, Anthony Bellia, John Finnis, Rick Garnett, Frederick Gedicks, Paul Horwitz, Andrew Koppelman, Robert Rodes, Steven D. Smith, Winnifred Fallers Sullivan, and me.  Special thanks go to Rick Garnett, who organized the original discussion at Notre Dame.

Posted by Nelson Tebbe on July 23, 2009 at 05:30 PM | Permalink | Comments (0) | TrackBack

Trying Terrorism Suspects in Article III Courts

In April, I participated in a workshop convened by the ABA Standing Committee on Law and National Security on "Trying Terrorists in Article III Courts" that brought together 33 judges, prosecutors, defense attorneys, other governmental counterterrorism officials, and academics to discuss both the pros and cons of using the Article III civilian courts to prosecute terrorism suspects currently detained without charges at Guantanamo and elsewhere.

One of the fruits of that workshop -- the workshop report -- was released today, and is available here. [The ABA release is here.] As the report notes,

While the workshop participants did not reach substantial agreement that the Article III system is capable of handling all terrorism trials, they did note generally that the courts have resolved past cases in a satisfactory manner. Some discussants remarked that many of the challenges facing the courts have been considered and managed in other contexts, implying that the courts need not create an entirely new procedural framework for most terrorism trials. Looking ahead, the discussants noted that legislation may not be appropriate to resolve all of the known issues and that the Article III courts may be better suited to resolve some of the issues without legislative intervention.

As Larry Solum would say, highly recommended!

Posted by Steve Vladeck on July 23, 2009 at 04:38 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck, Teaching Law | Permalink | Comments (0) | TrackBack

Cambridge Police

I have been thinking for a few days about the Gates incident, trying to decide if I wanted to comment.  I am somewhat astounded at the number of people who are willing to be triers of fact on pretty sketchy evidence; my take on the world is more things like this arise out of fear, miscommunication, confusion, pride, and escalation than racism or bad intent.  In short, we all get a chance in our lives to do something stupid - whether it's in public or at the wrong time is a matter of luck.  My charitable interpretation is that everybody would prefer to take something back.

What I really wanted to comment about, however, was my unrelated experiences with the Cambridge Police Department.  Cambridge is one of the densest cities in the U.S. - it's very diverse economically and racially, and there is far less correlation between neighborhoods on those indicia than any place we've ever lived.  We live on a street off Porter Square that has expensive private housing, public housing, low income housing, and a hybrid "co-housing" (which is a kind of cross between a really nice condo and a kibbutz).  It is a semi-urban environment.  You don't know who all your neighbors are.  There are problems from time to time that are typical of cities - property crime (our house was robbed last year and we were unimpressed with the reaction of the detectives), drugs, etc.  Near the end of last year, there were two incidents of muggings on our street (one alleged perp was white, one alleged perp was black - it was equal opportunity street crime), and several of us began organizing a street association.  We had wonderful support from the Public Affairs Department of the Cambridge Police, the neighborhood sergeants and officers, and Commissioner Robert Haas himself, who has showed up at every event, including our "health and safety walk," in which about 50 neighbors did an inspection of dark areas, broken lights, and other safety issues.

Neither I nor anybody else is going to be able to make credible generalizations about individuals on the force, but on far more solid evidence than has come to fore on this incident, I have the impression that Commissioner Haas espouses a progressive kind of leadership that emphasizes a solid relationship between the department and citizens who want to take some responsibility for their own well-being.  That's not to excuse an officer who made a poor judgment (I suspect) about not just walking away from somebody who sounds like he was very agitated but not dangerous, nor does it minimize the real concerns about the presumptions black men have to face every day, but I just wanted to put in an unsolicited plug for the Cambridge Police Department on my little shred of evidence.

[Ed. note by DM: I took the liberty of deleting the anon comments in the thread below. It became a bit of a train wreck, as one of my former students noted; I apologize in advance for the fact that the comment thread now might be a little disjointed. If there's a desire to leave signed comments, please feel free to do so in a way consistent with our comment policy.]

Posted by Jeff Lipshaw on July 23, 2009 at 08:10 AM in Deliberation and voices | Permalink | Comments (11) | TrackBack

Wednesday, July 22, 2009

Welcome to the World, Military Commission Reporter

Later this fall, I hope to post a series of reflections on the pending revisions to the military commissions process, especially the bills pending in both the House and Senate that would substantially revise (and in my view, improve) the Military Commissions Act of 2006 (to be fair, it could only go in one direction).

In the interim, though, I'm very pleased to note the publication of a new (unofficial) reporter of every military commission decision rendered under the MCA, put together by the folks at the National Institute for Military Justice.  For more on the reporter (including a PDF of Volume 1 in its entirety), see here. This is a fantastic resource for those who write about these decisions, none of which have been previously compiled in such a readily accessible form (indeed, many of the decisions in the Reporter were not previously available in any electronic forum).

I leave it to y'all, though, to figure out its proper Bluebook citation form. :-)

Posted by Steve Vladeck on July 22, 2009 at 09:59 PM in Constitutional thoughts, Current Affairs, Steve Vladeck, Teaching Law | Permalink | Comments (2) | TrackBack

BlackBerry Fines

Maureen Dowd has a column in the New York Times today criticizing the practice of using a cell phone while driving (regardless of whether it is hands-free).  In fact, she begins the column by telling a personal story of how, driving home from visiting her mother in the hospital late at night, she checked her cellphone messages, ran a red light and caused a very minor accident.  And although she swore never to use a cellphone while driving again, she still did.

The rest of the column brings up the recently released research (collected by Public Citizen here) by the National Highway Traffic Safety Administration (NHTSA) demonstrating that cellphone use drastically increases the chances of an accident, causing drivers to drive as erratically as a drunk person.  The information, collected in 2002 but held back from the public, was obtained pursuant to a FOIA request by Center for Auto Safety and Public Citizen.

There are all sorts of interesting questions revolving around why NHTSA held back its information.  Was it solely because agency heads were unwilling to anger Congress, as has been reported, or did someone else (say, someone in the Bush White House or some interest group) pressure them to quash it?   I leave those juicy questions for another day.

What interested me most was Dowd's final conclusion at the end of the column. 

She begins, "Left, literally to our own devices, we spiral out of control."  Well, that makes sense.  She's saying that people cannot be trusted to make rational decisions about their welfare when cellphones and similar devices, like Blackberrys and computer laptops, mix with decisions about driving.  And driving affects not just our own welfare, but the welfare of others.  So the state should step in to prevent us from hurting ourselves and others by making the use of such devices illegal.  Sounds like the classic argument for criminalizing drunk driving.

But that's not exactly what Dowd says next.  Instead, she argues, "States should outlaw drivers from talking on phones [and using digital devices, except in emergency situations] ...; or at least mandate a $10,000 fine for getting in an accident while phoning or Twittering."(emphasis added)

Now I recognize Dowd is often sarcastic, but today's column was written a very sincere tone, and I get the sense that she really meant this paragraph to read as it does.  That is, she equates a law outlawing driving with such devices with a law that fines drivers $10,000 for getting in an accident while using one of these devices. 

Of course, the two are nowhere near alike.  To begin with, a $10,000 fine is not really a $10,000 penalty because the probability of getting in an accident is likely to be perceived as small.  If the chances of an accident are 1% , then you're talking about a $100 fine.  Would an addict pay $100 to indulge his or her addiction?  I think so.  There's a reason people refer to the ever-popular communication device as a "CrackBerry."

And remember, the costs of getting in an accident aren't just the fines you pay, but also the harm you cause others and yourself.  The physical and emotional costs of a car accident can be tremendous.  If the fear of missing a red light and slamming your car into a pole isn't enough to deter your phone usage while driving, why should we assume that an additional $10,000 per accident will alter someone's conduct?

Now, you might say that the chances of detection even under a scheme that criminalizes driving-and-phoning are no better than under the fine scenario.  Phones can be shoved under seats or thrown in purses.  How often will people really get caught.  And after all, wouldn't most of the penalties under a criminal system be fines too, since we hardly have the resources to start jailing these folks, right?

But there is a huge difference between the designation "criminal" and the designation "subject to at $10,000 fine."  The former causes tremendous collateral consequences, even for misdemeanor convictions, and brings with it a type of condemnation that a $10,000 fine doesn't come close to achieving.  Moreover, and perhaps most important, outlawing driving-while-phoning (and texting-laptopping-blackberrying etc) would allow the state to intervene before an accident occurred.  Just as many DUI's occur in the absence of any accidents, so too might many many DWPs (driving while phoning).

So why then, does Dowd create such a large out?  My guess is that she herself is conflicted (perhaps subconsciously) about the very devices she criticizes.  She knows firsthand that they cause harm, but she isn't quite ready to give them up.  You might call her a hyperbolic discounter -- the costs of giving up the cell phone in the near term overwhelm the costs to her in later periods.  As a result, she promises to never drive while phoning again, but when the opportunity presents itself, as she herself admits: "[O]f course, I did." 

All the more reason, then, to implement an outright ban.

Posted by Miriam Baer on July 22, 2009 at 03:53 PM | Permalink | Comments (10) | TrackBack

Overturning Twombly and Iqbal

Sen. Arlen Specter this week will introduce the Notice Pleading Restoration Act to overturn Twombly and Iqbal and reinstate Conley v. Gibson and "no set of facts" as the controlling federal pleading standard.

This is a welcome move, even if I do not see it going anywhere. It raises a couple of interesting issues of congressional power, which I consider after the jump.

First, it is noteworthy that the proposal does not come through the Rules Enabling Act process. This might reflect a belief that the current Court would not approve of this change to the rules. Or it might reflect a belief, contra the original purpose and expectation of the REA, that the ordinary legislative process is quicker and less politicized than the REA process. In fact, I expect one objection to the bill will be that the matter should be referred to the Court and to the Rules Committee.

Second and relatedly, it is noteworthy that the proposal does not directly amend Rule 8 or Rule 12, but establishes a separate statutory rule that must be read in conjunction with the Rules. I am not sure the rationale for this choice. There are some marginal arguments that the REA is the only way that the FRCP can be enacted or amended and that Congress cannot pass ordinary legislation directly drafting a Rule. But the prevailing (and proper, IMO) view is that the Rules are a product of legislation. The Supreme Court ordinary enacts them because Congress delegated power to do so, but Congress always can take back some of the delegated power and make rules on its own.

Third, this proposal relates to something I argued in my work-in-progress on United States v. Klein. One principle for which Klein stands is that Congress cannot force courts to speak a constitutional untruth--cannot tell the courts to adopt a constitutional legal rule or standard different than what the courts, in their independent judgment, believe should be the legal rule. Larry Sager has argued that, under this principle, the Religious Freedom Restoration Act is unconstitutional; RFRA told the courts to apply strict scrutiny to claims that religious exercise was being substantially burdened and expressed specific disagreement with the Court's decision in Employment Div. v. Smith. The structure of this bill is similar to RFRA: Congress is telling courts to apply the old legal standard (identified by case name) that the Court "retired" in Twombly, rather than the new legal standard from more recent Supreme Court decisions which Congress is, effectively, overruling.

So, could there possibly be a Klein problem here? I would argue no and I am fairly certain that Sager would agree. The Supreme Court decision being overturned here is not a constitutional decision, but a statutory one (albeit indirectly statutory--the Court had interpreted a rule that it enacted pursuant to a congressional delegation). Congress is telling courts what FRCP 8 and 12 mean and the interpretive standard to be used, not what the Constitution means. As I put it, there is no such thing as a "statutory untruth"--the ultimate truth of statutory meaning is whatever Congress says.

Again, I do not see this bill going anywhere quickly. But clearly the wheels are turning.

Posted by Howard Wasserman on July 22, 2009 at 03:39 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

"You have no idea who you're messing with": Another view

I began to write a comment in response to Paul’s really interesting post about the Henry Louis Gates arrest, but it ended up growing a bit long, so I decided to develop it as a separate post. To begin, I share Paul’s general reaction to the phrase "You have no idea who you're messing with" (which Gates may or may not have said; the reports appear conflicting). Coming from a fat-cat businessman or a snarky socialite, it’s a pretty vulgar invocation of social privilege. But I'm pretty sympathetic to Gates’ (or anyone's) having used this language under these circumstances.

The reason is that being arrested—or having police force used against you generally—is a distinctively and powerfully upsetting experience. On about three occasions in my life (each when I was quite a bit younger), I have been on the receiving end of what I felt to be excessive policing for relatively innocuous behavior (not merely traffic stops for speeding, though I’ve had my share of those as well--all of them well justified). And while I attempted on each occasion to remain calm and reasonable, having the state’s power brought to bear on me for what I felt were trivial and unjustified reasons made me feel as frustrated and angry as anything I’ve experienced.  After the first such incident, I was quite surprised; I would not have imagined beforehand that it would have been as upsetting as it actually felt.

The foregoing is all true even though I’m not a member of a group that has historically suffered discrimination, so I can only imagine how much more upsetting the experience would be if you added race to the mix. I write all this because I’m not sure it’s possible to fully appreciate how distressing the experience of police harassment (or simply mistaken enforcement) can be unless you’ve had that experience first hand (which I think most lawprofs have not). I continue to think that scholarship about racial profiling consistently downplays the psychological impact of police maltreatment on both individuals who suffer it and communities that are over-policed, likely because most of the people writing in the field cannot personally relate to the experience.

So while I concur that in general the phrase “you don’t know who you’re dealing with” is objectionable, under the psychological stress of a wrongful (as in mistaken) use of state force, Gates’ use of the phrase in this instance seems to me an understandable and limited expression of justified anger.

That said, I'm not sure the early stages of this incident evince racism or racial profiling. The initial complaint was based on seeing a man trying to force the front door of a house open; I'm pretty sure it's reasonable to call the police under these circumstances, regardless of the man's race. And while the subsequent facts are murky, it seems that the policeman was initially satisfied by Gates' proof that he was the house's owner and a professor at Harvard.

What does seem problematic to me, though, is that the police responded by arresting Gates rather than simply trying to calm him down. I feel skeptical that the police would have gone to these lengths if, for example, the exact same thing had happened to one of Gates' senior white colleagues. Obviously when there is any low-level domestic disturbance, police have to use their discretion to calibrate the use of force to a level they find appropriate, and sometimes this may mean restraint and arrest. But while I wasn’t present, it’s hard for me to understand the necessity of handcuffing and arresting a sixty-year old college professor.

None of this is meant as a knock on the police generally. One of the great things about teaching at Southwestern is that I have students from all walks of life, and that includes current and ex-law enforcement officers. I find their stories and experiences invariably interesting, and each one of them has struck me as a decent and thoughtful person. Efforts to paint the police with a broad brush as “racist” seem to me short-sighted and wrongful for the same reason that attributing to a profession the qualities of its worst members invariably are.

That’s what’s so very difficult about this case. The police are trained to take and keep control of any situation, and in the clear majority of cases they are dealing with punks and criminals who need to be suppressed using that strategy. But sometimes the police get it wrong, and when they do it’s enormously upsetting for the wrongfully accused (imagine having agents of the state force you to convince them that your house is actually yours—do you have to produce a deed, or a certificate of title?). I’m not sure if police are trained to apologize or admit their mistake for these kinds of incidents (thought it bears reminding here that the police were asked to investigate a potential burglary, so the initial mistake wasn’t theirs), but if they were it might go a long way toward defusing these kinds of situations.

For those interested in checking out the primary evidence, here is the text of the police report, and here is Gates’ statement through Charles Ogletree. There’s also a really astute comment in a thread at Concurring Opinions about the differences between the two accounts and how they might be reconciled.

Posted by Dave_Fagundes on July 22, 2009 at 12:17 PM in Current Affairs | Permalink | Comments (5) | TrackBack

Read my lips, "no early releases from prison"

As day light breaks over the second day of California's epically ugly budget compromise there are signs the deal may yet fall apart on the way to a legislative vote later this week.  The problem is not that draconian cuts in social services to the poor and disabled, the open thievery of county revenues, or the very obvious gimmicks like moving the dates of pay days from one fiscal year to another, its the possibility that some California prisoner, somewhere, may leave a prison early.  According to Matthew Yi's reporting in the SF Chron:

The plan, according to Matt Cate, Schwarzenegger's top prison official, would reduce the prison population this year by 27,000 inmates, some of whom would be released early. The plan includes:

-- Sending thousands of old and sick inmates to non-prison hospitals.

-- Allowing some non-violent, non-sex offending inmates to serve the last year of their sentence in house arrest.

-- Allowing some non-violent inmates to earn time served by receiving GED or vocational training.

-- Creating a sentencing commission to overhaul the state's sentencing laws.

The governor would also begin considering thousands of illegal immigrant inmates who may be turned over to federal authorities for deportation.

Posted by Jonathan Simon on July 22, 2009 at 11:29 AM | Permalink | Comments (2) | TrackBack

Tuesday, July 21, 2009

My God! It's Full of Stars!

From the Times, here's the story of an amateur astronomer who discovered "a new hole the size of the Earth in Jupiter’s atmosphere, apparently showing that the planet was hit by something large in recent days."  Here's a picture:

371566main_Hompage_Jupiter_Impact_v2_226x170

The amateur astronomer is quoted as having said: “If anything like that had hit the Earth it would have been curtains for us, so we can feel very happy that Jupiter is doing its vacuum-cleaner job and hoovering up all these large pieces before they come for us.”  Agreed.  Thank you, Jupiter -- we didn't get you anything!  Although I am seriously hoping that, when more detailed pictures are available, they don't show that the spot is made up of a swarm of self-replicating monoliths.  I think we can all agree that the last thing anyone needs is some infantile busybody telling us to leave Europa alone.   

Posted by Paul Horwitz on July 21, 2009 at 02:42 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Monitoring External and Internal Corporate Security

The WSJ law blog has a new story up about a corporate security scandal at Deutsche Bank, wherein the Bank's private detectives engaged in a number of acts that, in retrospect, sound either loopy (sending a dead microphone hidden in flowers to the COO to see if he would notice it) or more serious (spying on a board member suspected of leaking information to a journalist).  Similar to the Hewlett Packard pretexting scandal, which I discuss here, Deutsche Bank relied on private detectives to do much of its "security work" (although the head of internal corporate security has reportedly left the company in light of the scandal).  As was the case with HP, the Deutsche Bank scandal demonstrates some of the problems with corporate -- private -- policing.  The company's internal security apparatus is asked to investigate a problem and then relies on external investigators to do its dirty work.  As a result, the company has to monitor both its internal security and external security to ensure that both ethical and legal norms are met.  This can be extremely difficult when some of the company executives are unfamiliar (as was the case in the HP scenario) with the techniques that the security professionals are using.  

In any event, this all occurred in the past, between 2001-2007, when corporations - and corporate security departments -- had more money to spend. Now, in a world of vastly reduced resources, corporate security (along with corporate compliance) may well get the short shrift.  In this case, reduced resources promises mixed consequences.  On one hand, companies may have fewer resources to identify internal theft and fraud.  On the other hand, it may spell an end to the corporate "surveillance" measures that are, at best, unethical and at worst, plainly illegal.        

Posted by Miriam Baer on July 21, 2009 at 12:19 PM in Corporate | Permalink | Comments (0) | TrackBack

Review of Hamburger's Law and Judicial Duty

Marc DeGirolami has already written on this page about Philip Hamburger's wonderful recent book Law and Judicial Duty.  I've written a short (and favorable) review of that book for Engage: The Journal of the Federalist Society's Practice Groups.  It can be found here.  The introductory sentences give some sense of what I think of the book:


Philip Hamburger’s Law and Judicial Duty is an incredible book. Of the books I have reviewed in these pages in the last two years, it is simply the richest and best of the lot. Every constitutionalist, everyone interested in the history of the Anglo-American judicial craft, and everyone who cares not only about history but about contemporary debates over the nature and legitimacy of judicial review must read this book.


A couple of additional notes.  First, I would be equally happy to write reviews for either the FedSoc or the ACS (I'm a member)!  But the FedSoc is the one that asked me first, and they've done a great job with my reviews (anyone who is interested in writing reviews for Engage should contact Peter Aigner, who is a great editor and, in my experience, a mensch).  ACS folks, you're welcome to follow suit.  After all, the review will be the same regardless of the audience.  Second, I note with dismay that SSRN does not collect book reviews on an author's index page or count downloads, and thus they are harder to search for.  I understand the decision but I think it's wrong, and I hope SSRN revisits it, especially in light of recent discussions here about the value of book reviews in the law and the importance of finding alternative places to put them, places that ideally should be easily accessible.  I would also note that the policy is all the more unfortunate given that it is inconsistently applied.

Finally, although I heap praise on Hamburger's book, I do add some caveats.  It's a shame in particular that Hamburger doesn't pursue his project past Marbury, especially in light of some of the broader normative statements he wants to make about law and judicial duty in the present day; perhaps he will consider a second book that does just that, but until then we should take his normative conclusions with a grain of salt.  Still, this is one of the must-reads of legal publishing in the last year, especially for constitutional scholars.  Enjoy the review.  As always, comments are welcome.

Posted by Paul Horwitz on July 21, 2009 at 10:49 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

On "You Have No Idea Who You're Messing With"

On the basis of the police report, news accounts, and Henry Louis Gates's own account, I think the police were clearly wrong to arrest him, particularly once they confirmed that he was who he said he was and was where he was supposed to be.  Whether it was a result of simple racism, or of taking unwarranted punitive action because the police found Gates difficult and arrogant, or abuse of authority, or some combination of all of these, I can't say.  But Gates's conduct in no way justifies the arrest.


I do want to focus for a second on the police report saying that Gates told the officer, presumably not in dulcet tones, that he had no idea who he was messing with.  I have ambivalent feelings about this.  One charitable interpretation of this is that Gates, who was well within his rights to be trying to open the door to his own property, was telling the officer in no uncertain terms that he could not get away with abusive treatment simply because he was dealing with an anonymous (and black) citizen; Gates could and would quite properly use the megaphone he enjoys to broadcast this abuse of police authority.  That is not only within his rights, but can be a salutary corrective to the many possible occasions in which police officers take liberties with people who don't have the same access to publicity.  (Another charitable interpretation, albeit of a different kind, is that whether or not Gates's statement had this meaning, he was justifiably angry and spoke in anger.  We may not admire that completely, but we can certainly understand it; and, again, police should be trained to deal with such situations with responses that fall well short of arrest.)

Another interpretation is that Gates was, in essence, turning the tables, saying, you are not powerful and I am; and I will use all the means at my disposal to make your life miserable.  (Indeed, one of the shifts in perspective that is necessary in viewing this incident is that in some cases police officers are far more powerful than well-connected Harvard profs; in other circumstances, however, they are far less powerful, and the whip hand shifts.)  Or even that he was saying, not that powerful people should enjoy impunity -- after all, he was, again, well within his rights to enter his own house -- but that, if you're going to mess with someone, you had certainly better not mess with someone who is powerful and well-connected.  This assumption of the privileges of power is not limited to Harvard professors with wide media connections (although I suspect it takes especially fertile root there).  We see -- and generally condemn -- similar statements by other powerful people in the hands of the law.  Of course, one thing that influences our condemnation is that in many of these situations, the powerful accused person is, in fact, guilty, and that was not the case with Gates.  But we also independently dislike such statements, I think, regardless of guilt or innocence, because we recognize the broader statement about the uses and prerogatives and assumptions of power that accompany the statement "do you know who I am?"  We don't like it when judges use such statements when stopped by traffic cops, when Senators use it when pulled aside at airports, or when Mel Gibson and other celebrities use it after being picked up for some wrongdoing or other; we may not like it either when Oprah uses it when denied admission to Hermes, and then uses her own megaphone to exact lengthy retribution against that store, even if we think the store was wrong to deny her admission.  We also don't like it in other circumstances, when there is no great wrong done by either side: say, when someone trades on his name to secure a key table at a restaurant at the last minute although the hoi polloi could not hope to get in without a longstanding reservation.  

So I confess to some ambivalence here, too.  I don't blame Gates for using his prominence to publicize an indignity that he should not have suffered, especially if and when less prominent people suffer similar indignities without recourse to publicity.  On the other hand, for all relevant purposes, the answer to the question "do you know who I am" should always be the same: a private citizen, possessed of greater or lesser prominence but otherwise equally situated with everyone else.  Without wanting to be too hard on him for statements made in the heat of a moment of what he reasonably viewed as police mistreatment, one can wish that Gates had used "who he was" to publicize the event afterward, without attempting to invoke "who he was" during the contretemps.

Posted by Paul Horwitz on July 21, 2009 at 10:17 AM in Paul Horwitz | Permalink | Comments (10) | TrackBack

Congress and Sports

Over at my non-domicile home at Sports Law Blog, I have a post seeking a metric for when Congress or individual members ought to get involved in matters relating to sports.

The trigger for my question is recent efforts by Rep. Steve Cohen to push the NBA to undo its 19-year age limit for entry into the league, which Cohen describes as "discriminatory." Perhaps because this has flown under the radar (Cohen is a second-term Democrat from Memphis, most known for surviving a nasty, racially charged primary and religiously charged general election challenge in 2008), Cohen has not been criticized on the "don't you have more important things to worry about than games" front, the way House members were after the various steroids hearings or that Orrin Hatch has been for his threats against the BCS.

So my question is where is the line between Congress stepping into a matter of legitimate federal concern and "worry about more important things"? Is it when members of the public are genuinely being injured, as by the age limit (although the number is incredibly small), while such harm (beyond psychic disappointment) is missing as to the BCS? Is it a difference between internal league matters and those touching on people outside the league? Is it the difference between acting towards the undefined "integrity of the game" (e.g., steroids) as opposed to dealing with the broader business of sports (where sports are not much different than other entities regulated by federal law)? Of course, federal law does speak to things such as gambling in sports, which is all about the integrity of the game.

So is there anything to guide legislators on when sports is a proper subject for involvement?

Posted by Howard Wasserman on July 21, 2009 at 10:09 AM in Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

The Shoes

I have not had much time (really much energy) to post from Budapest - last week it was in the low 90s, and Shoes teaching two hours a day in the heat of the afternoon just about did me in.  My wife, Alene, was traveling separately in Italy and we met in Vienna over the weekend. 

This has nothing to do with law professoring or teaching.  It's also more of a downer than I mean to convey generally about Budapest, which, other than the heat, has been just fine.  This is, however, the kind of thing one runs into in Europe from time to time.

Walking home from dinner we saw one of the most moving Holocaust memorials I can recall, which somebody described to Alene this morning (the grandmother of the young woman who described the event had survived it).  In 1944-45, Hungarian Jews were lined up on the wall of the Danube and pushed or jumped or shot to their death in the river below, but only after being ordered to remove their shoes, which had value to the Nazis.  The picture at left is of the memorial created in 2004.

Budapest has one of the largest Jewish communities in Europe to have survived the occupation.  While most of the Jews in Hungary outside of Budapest were deported to Auschwitz, the ghetto in Budapest was not exterminated (akin to Cracow or Warsaw) because the Germans simply did not have enough time.  This was because the actual time of occupation was relatively short (the year before the end of the war, Hungary having been an Axis country).  Hence it was one of the few ghettos to have been liberated by the advancing Red Army.

Along the same lines, when I worked for AlliedSignal, the headquarters of the Bendix business, which had been in France since the 1920s, was in the Paris suburb of Drancy, which is near Le Bourget Airport.  Drancy had two claims to fame.  First, it was the home of ardent French communists (our facility was on the Rue de Stalingrad).  Second, it was the site of the deportation center for French Jews rounded up by the Nazis.

Posted by Jeff Lipshaw on July 21, 2009 at 06:20 AM in Lipshaw | Permalink | Comments (1) | TrackBack

Monday, July 20, 2009

Helter Skelter: The Truth Ain't All That's Out There

The broad fear of "stranger danger" that has characterized American law and society since the late 1960s  and the populist punitiveness that goes with it have many origins.  Some of them are undoubtedly historical.  The gated community may trace its DNA to the experience of European settlement of the continent in the face of often fierce resistance by Native Americans.  Our love affair with discretion wielding, heavily armed police may begin in the slave patrols.  But there is also something distinctly contemporary about this fear.   Violence by strangers against innocent and arbitrary victims was on the rise in the 60s and perhaps more importantly, was reinforced by a series of media spectacles of violence including the assassinations, riots, and mass murders between 1963 and 1968.  Indeed, one might almost say that this contemporary image of the stranger lurking outside our safe suburban homes has a face, and a birthday.  The face is that of convicted mass murderer Charles Manson and August 9th will mark the 40th anniversary of the morning when five bodies, four of them horribly stabbed, were discovered at the Benedict Canyon house rented by film stars Sharon Tate and Roman Polanski.  The July 2009 issue of Los Angeles Magazine includes an "oral history" of the Manson murders by Steve Oney which includes many reminders of why that horrific episode may have so much staying power in our penal imaginary.

  • While many initially blamed the murder of Sharon Tate and her friends as some bizarre dark side of Hollywood life, the murders the following night of two more ordinary upper middle class Angelenos, Leno and Rosemary LaBianca in the Los Feliz section of Los Angeles, soon reframed the pattern as one of random risk to seemingly safe and secure people. 
  • The violence of the murders, and the fact that prosecution witnesses would later describe loud screaming and pleading by the victims underscored a fear that is distinctive to the large suburban house which has been deliberately distanced from pedestrians and neighbors. While Americans were fleeing the city to escape crime they associated with the disordered and dangerous residents of the urban core, the Tate-LaBianca murders would epitomize the opposite fear; in suburbia, like space, no one can hear you scream.
  • Whatever may be said of the racialization of crime fear, Manson was a white (racist) drifter with a considerable history in the penal system, and his cohorts were all white middle class youth   who Manson collected in settings like San Francisco's Haight Ashbury district.  According to the prosecution, his prime motivation for the murders was to launch a race war from out of the chaos of which he would apparently emerge as the prime leader (a future Manson believed was prophesied by the Beatle's song "Helter Skelter ").
  • The crimes unified opinion in the state's most influential city behind the successful capture and prosecution of the Manson "family."  An LA jury handed death sentences not only to Manson and "Tex" Watson, but to three young white female defendants as well.  Less than a year later, the California Supreme Court struck down the state's death penalty in People v. Anderson, 6 Cal. 3d 628 (Cal. 1972).  The decision, which preceded the US Supreme Court's Furman decision by some months, set off a negative backlash that helped reshape California state politics for a generation.  The leaders of the movement to restore the death penalty in the state and the coaltion of law enforcement agencies and politicians the movement created, became the backbone of California's commitment not only to the death penalty, but to mass incarceration on a broad scale (See the forthcoming dissertation of Michael Campbell, UC Irvine's Criminology, Law & Society program).

Posted by Jonathan Simon on July 20, 2009 at 12:34 PM | Permalink | Comments (5) | TrackBack

The Amazing Metrano, Family Guy, and Fair Use

Familygu_jesus The acerbic animated show Family Guy often ridicules popular figures harshly and very specifically, so it’s unsurprising that the show has drawn the ire of the targets of its ridicule, sometimes in the form of copyright infringement suits aimed at its studio and creators. Probably the best known of these was Carol Burnett’s suit claiming that Family Guy infringed her “Charwoman” character by depicting Burnett cleaning up in a porno shop. The suit was dismissed when a federal district court held that the depiction of Burnett’s character was defensible as fair use. Burnett v. Fox, 491 F. Supp. 2d 962 (C.D. Cal. 2007).

Along the same lines is the lawsuit pending by Arthur Metrano, much discussed in the IP blogosphere, alleging that the creators of Stewie Griffin: The Untold Story (a movie based on Family Guy) infringed his “Amazing Metrano” stage act by showing Jesus performing the act in substantially the same way that Metrano does. (It’s really hard to describe the act and the ensuing scene, but here’s a site with video clips of the two.)

The defendants in Metrano recently moved for a 12(b)(6) dismissal based on the fair use defense, and in light of Burnett, likely thought they’d prevail. Last week, though, a federal district court judge rejected their motion, holding that the first three fair use factors (purpose and character of the use; nature of the infringed work; and amount and substantiality of the taking) weighed in favor of Metrano, while the fourth (economic impact) had to await more fact-finding. I say a bit more about the decision, its merits, and the frustrating indeterminacy of the fair use defense, below the fold.

The most salient part of the decision strikes me as the court’s finding that the first factor—the purpose and character of the use—weighs in favor of Metrano. This factor is usually distilled to the question whether the use is “transformative”, citing the Supreme Court’s language in the enormously influential 1994 Campbell v. Acuff-Rose decision. Campbell also introduced the much-debated parody/satire distinction as a way to help determine whether a work is sufficiently transformative for the first fair use factor to weigh in favor of the defendant (an issue I’ve examined on this site in previous years). Parodies make fun of the plaintiff’s work itself and tend to be transformative; satires merely use the defendant’s work as a vehicle to mock some social issues, and tend not to be transformative.

In Burnett, the Central District of California applied this standard to find the Family Guy’s mockery of Carol Burnett’s “Charwoman” character a transformative parody, because Carol Burnett was clearly the object of the writers’ mockery (even though that mockery may have been mean and in poor taste). But the same court (through a different judge) found Burnett distinguishable from Metrano on this point, finding that the Jesus scene “does not criticize or comment upon Plaintiff’s routine or lampoon Plaintiff by depicting him in a new or different way, as did the episode of Family Guy in Burnett”, but rather "pokes fun at and questions Jesus’s purported ability to work miracles”.

These factual assertions possess some truth; the Family Guy clip in Burnett actually depicted Carol Burnett, while the clip in Metrano showed someone else (Jesus) performing Metrano’s act. This probably made the reference to Burnett more obvious, and one can certainly imagine that many viewers did not understand or know about Art Metrano’s act when they saw the Jesus scene in Stewie. Nevertheless, this strikes me as a distinction without a difference. The district court concludes that the only mockery at issue in the scene was the creators’ poking fun at Jesus’ ability to work miracles. But the scene could not have effectively communicated the message that Jesus was "overrated" unless what He was doing was lame and unimpressive (hence the vacant expressions of the audience members who watch Jesus perform the act), and that means that the scene also had to communicate that Metrano’s act was subpar.

The district court seems to assume (as most courts applying the Campbell parody/satire distinction have) that there must be a unique object of any given parody, but as these facts illustrate, it's entirely possible for a parody to have multiple objects. The Jesus scene, read in context with the bit of dialogue just preceding it, mocks both Jesus (by suggesting that He was not that miraculous) and Metrano (by suggesting that his “magic” act was lame and unimpressive). On this reading, the Jesus scene is clearly a parody of (inter alia) Metrano and his act.

It bears noting also that the parody/satire distinction does not subsume the question of transformativeness entirely, though most courts apply Campbell as though it does. A judge could find that the defendant’s use was not parody, but that it was still transformative. Metrano seems like an instance where this might hold true. Even if we assume that the judge is correct that the Jesus scene in Stewie was not a parody, it still seems transformative by any measure. It took Metrano’s act and changed the context, meaning, and message of it from a campy 60s comedy act to a surreal depiction of a popular deity. I suspect the district court would not have found this degree of transformativeness sufficient to cause the first factor to weigh in favor of the defendants, but the issue still should have been addressed.

Of course, this is just a (my) reading of the Jesus scene in Stewie, and while I think it’s right, it’s clearly contestable. This raises a related critique of the parody/satire distinction (and of the first fair use factor more generally): that it requires judges to act as literary critics (I forget who said this). Is it ever possible to identify the object of a defendant’s parody with any objective certainty? Is this really the kind of question we think judges trained in the law are capable of answering? On the other hand, we ask judges to make tough, and specialized, judgment calls in applying legal standards to novel facts all the time, and we don’t criticize securities law or criminal law for forcing judges to act as economists or psychologists. So however strange it may seem to have a case turn on a judge’s literary instincts, perhaps it’s just another instance in which we have to trust that the federal bench is full of wise enough generalists to make these (and many other similarly specialized) decisions well.

One final, procedural point: at first, I thought the posture of this case (motion to dismiss) would affect the fair use analysis. The district court merely held that there was not enough evidence to dismiss the case on a fair use theory now, and the decision certainly holds open the possibility that there might be such evidence after the record is developed a bit more (particularly with respect to the fourth fair use factor). But as the court correctly pointed out, fair use is a mixed question of fact and law, and the question whether a defendant's work amounts to parody as Campbell defined it is one of application of a legal standard to facts. And the facts relating to the content of Metrano's act and the Jesus scene in Stewie are undisputed, and will likely remain so throughout the case. So while the fair use issue could theoretically go the other way on summary judgment if the defendant can come up with a strong showing regarding market share, the parody/first factor issue seems to have been resolved with finality.

Posted by Dave_Fagundes on July 20, 2009 at 12:10 PM in Intellectual Property | Permalink | Comments (1) | TrackBack

Presidential Popular Constitutionalism

I just received a copy of the March issue of the Fordham Law Review.  Probably I was on the mailing list because it includes the proceedings of an interesting ethics symposium and a tribute to my former Dean Mary Daly.  What I ended up reading, though, was an article by Jed Purdy, Presidential Popular Constitutionalism.  It is well worth the time.  Of course the piece raises the following question: if Purdy is right that the constitutionalism of Presidents Clinton and George W. Bush were surprisingly similar in significant ways, how different will President Obama's constitutional vision turn out to be? 

Posted by Nelson Tebbe on July 20, 2009 at 10:59 AM | Permalink | Comments (0) | TrackBack

Sunday, July 19, 2009

To Erie or Not To Erie?

I'm teaching two courses this fall: a seminar on the Constitution and Military Jurisdiction, and my absolute favorite course to teach -- Federal Courts -- for the fifth time in my five years of teaching.

As much fun as I have with Federal Courts, I find myself confronting the same syllabus question each time I teach it: In my unit on federal common law, just how much Erie doctrine should I include?

The reasons for including Erie and its progeny are pretty obvious: Insofar as the relationship between state and federal courts, there are few more significant cases, and Justice Brandeis's opinion is as important for why it might be wrong on the constitutional issues as it is for the result it produces.  And on a deeper level (and what's Federal Courts but for a whole bunch of deeper levels), Erie raises a series of interrelated and fascinating questions about the lawmaking powers of both state and federal courts (and Congress's role vis-a-vis the latter). Lastly, Erie is a great segue into federal common law in general, and the units on implied statutory and constitutional causes of action in particular.  Without Erie, those units often seem a strange and sharp break from what we've been doing up to that point in the semester.

But for as interesting as Erie is, there are at least as many reasons to leave it out: First, virtually all of my students will have encountered it in their Civil Procedure coursework as a 1L (where it arguably belongs, since it also profoundly affects tactical choices parties make in civil litigation).  Second, to do Erie "right" means also doing its successor cases (especially Hanna v. Plumer), and may also require discussion of its forerunners, especially Swift v. Tyson and Black and White Taxicab... And third, my syllabus is already quite crowded, and so the more I add about Erie, the more I have to cut from elsewhere.

I know this is a Federal Courts-specific question, but I'd love to hear what y'all think... In general, does it make sense to go back over cases like Erie in upper-level courses? Specifically, should Erie be part of the Federal Courts canon at a school where it's covered in Civil Procedure?

Posted by Steve Vladeck on July 19, 2009 at 04:49 PM in Civil Procedure, Steve Vladeck, Teaching Law | Permalink | Comments (12) | TrackBack

Friday, July 17, 2009

Private Law Transactions and Public Law Obligations

When should we allow governments to deploy private law rules in order to circumvent public law obligations?  Two cases this year call that question to mind: Summum v. Pleasant Grove and Salazar v. Buono.  They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

Four of us are preparing short pieces on Summum for Northwestern Law Review’s Colloquy. The other contributors are Joseph Blocher (Duke) and Prawfs alums Christopher Lund (Wayne State) and Bernadette Meyler (Cornell).  We are still working through the editing process, but I thought I’d preview my thoughts here.  A draft of Chris Lund’s piece is already available on SSRN.  I’ll post links to the others when they appear.

The two cases present the question in different ways.  On the one hand, the Court recently handed down Summum, which involved a Ten Commandments monument that a private religious organization donated to a city.   The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took title to the monument itself.   It therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monumentThe Seven Aphorisms of Summumalongside the Ten Commandments.  Finding the existing monument constituted government speech allowed the Court to dismiss Summum’s claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment.  The Court reasoned that Pleasant Grove could exclude Summum’s monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives.   (Of course government adoption of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated: Summum wanted its monument included, and did not want to risk the exclusion of both.  Moreover, an antiestablishment challenge probably would not have been successful under Van Orden, as Chris Lund has pointed out.)  You can think of the city’s decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it “publicized” a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message.

On the other hand, consider Buono, which the Court will hear on October 7.  It concerns a white cross that has long stood in the Mojave National Preserve.   (Photos and a description appear on the NPS's website.)  After a lower court ruled that the cross was an unconstitutional establishment,  Congress intervened and conveyed the small parcel of land containing the cross to a private organization.   Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message.  Yet Congress retained ties to the land, including a property interest and certain regulatory power.   The transaction’s highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message.

Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument.  It is not totally inconceivable to imagine a minority sect arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms.  As things turned out, however, only one constitutional issue is before the Court in Buono—the antiestablishment request to undo the privatizing transaction—and the government’s evasion of that claim is likely to succeed, at least in the short term.

One of these cases, then, asks whether government can avoid a constitutional difficulty by publicizing private sectarian speech, while the other asks whether government can evade a different constitutional problem by privatizing such expression.  Both of them present their issues in the context of government stewardship over its property, specifically real property that it has opened up to the public as parkland.  Both involve government evasion of one constitutional question in a way that may raise a countervailing constitutional difficulty.  And both will probably be resolved in favor of the government on the ground that it has successfully insulated itself from a constitutional challenge through actions involving a property transfer.  (Summum already has been decided that way).  Generally, then, both cases concern the interrelationship between private law arrangements and public law obligations.

Differences separate the cases, of course.  Most obviously, Summum was litigated exclusively as a speech case, while Buono presents only an antiestablishment question.  Moreover, one concerns a locality, while the other challenges the federal government.  Nevertheless, they can profitably be thought through together.  Juxtaposing them may teach us something about government use of private law transactions to avoid public law obligations, especially constitutional duties.

One question is whether the outcome of each case is correct (assuming I have accurately predicted the result in Buono).  What people think about that will depend on their underlying theories of antiestablishment and freedom of speech.  Some may focus on citizens’ autonomy around matters of conscience and expression, while others may prioritize evenhandedness toward sects or viewpoints.  Yet apart from the outcome question, there is the matter of whether straightforward application of property rules to these cases adequately serves the constitutional values at play.  Does saying that a city’s acquisition of a sectarian monument effectively renders its message government speech, thereby putting it beyond the reach of the Speech Clause, capture everything the First Amendment either permits or requires? Does it satisfy public principles to say that Congress can manage its Establishment Clause obligations by means of a sophisticated land transaction that formally privatizes the religious symbol?  In short, are courts asking the right questions?

Posted by Nelson Tebbe on July 17, 2009 at 01:10 PM | Permalink | Comments (0) | TrackBack

Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers

Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump.

The Duty to Rescue and the Registry for Caregivers: A Guest Post

We have recently featured several guest posts (herehere, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the LawDan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

Hmmm. Only parents and spouses. Why not grandparents, cousins, siblings? We think the answer has something to do with the fact that parental and spousal relations are the two familial relationships that persons enter into with some degree of real voluntariness. I can’t choose to have a grandfather or a sister. But I can avoid marriage — notwithstanding the subtle pressures or inducements from Jewish mothers or the government’s social policies. Similarly, obligations to one’s child might be legitimate in part because it’s largely a choice to have a child — at least in an age and polity where contraception, abortion, and the chance to terminate one’s parental rights exist.

Thus, despite the general common law rule in favor of maximizing personal autonomy, the government’s imposition of an obligation to rescue spouses and children is not so illiberal; it reflects the fact that the underlying conduct of having a spouse or child is such that it can be avoided without much difficulty.

What are the rationales offered for penalizing a failure to rescue between spouses? Usually, they are 1) saving human lives in danger and 2) affirming the significance of marital obligations.

The problem with the first interest is that the means used here — spousal obligations to rescue each other, policed through the criminal law — is woefully underinclusive, so much so that it’s hard to take seriously the idea that this is what’s motivating the use of this family-ties burden.

The second objective, by contrast, makes relatively more sense. Although the obligation to undertake easy rescues is not specifically articulated in many wedding vows, it reasonably falls under the language that is often used in those vows.

Our Take

The problem with relying principally on wedding vows in these contexts is that the state ends up drawing weird and inexplicable lines. For example, why do the partners of a newly married heterosexual couple have duties to rescue each other but not those in the long-term homosexual couples living in states that won’t recognize their unions? If the key feature of the spousal relationship (for purposes of assigning omissions liability) is the voluntary assumption of caregiving responsibilities, then we don’t see why the breach of other voluntarily assumed caregiving obligations are not similarly subject to criminal law sanction.

As we argue in greater detail in our book, any potential prosecution of a person for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot or choose not to enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly give the family members of homosexual couples the comfort of knowing that omissions liability is parceled out in a non-discriminatory fashion.

One way to see this discrimination is through analogy: if omissions liability were distributed on the basis of race, such that whites had a duty to rescue their spouses but blacks did not unless they separately contracted for that duty, what message would that send? Our sense is that it exhibits a lack of respect of the value of the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm while a gay man in a similarly meaningful and voluntary partnership does not? In both instances, imposing liability serves the same valuable functions: increasing safety and promoting an ethos of caregiving relations triggered by voluntary choices. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly underinclusive; it leaves out those who cannot get married because of a plainly troubling moral choice made by the state.

For the most part, we do not have much problem with marriage being an overinclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we think several options should be explored.

Some Options For Designing Policy

One solution would be to decouple omissions liability from marriage altogether, and instead ask parties to any relationship to register with a state registry. This would treat all persons the same and without favor. But a no-duty-to-rescue rule in marriage could act like a penalty default rule. On the one hand, it would probably encourage more people outside of marriage to think about whom they wish to rescue. On the other hand, it might also add needless costs associated with persons who by virtue of marriage would already be willing to undertake a duty to rescue.

A better solution, based on reducing the social costs of the scheme, would be to require duties to rescue in marriages and to create a registry for all others who want to participate in a “compact of care” such that they have a duty to perform easy rescues. Marriages would simply have the implicit term of duty to rescue built into them and others outside marriage (including those in polyamourous relationships) could opt into it. This would also allow persons to insist on seeing evidence of opt-in by another person before they decide to jointly acquire property, cohabit, or perform caregiving tasks for one another.

Some might raise concerns that we are too focused on spouses and parents as paradigmatic relationships here. The concern here would be that we are insisting that the sexual family or marriage be the normative ideal for adult interactions with each other. We respectfully disagree. Indeed, the point of our registry system is to obviate this concern entirely. People who are not married but “act” as though they are do not have to register, but they may choose to do so; or just one may decide to do so for the other since the registry is a place of declaring one’s assumption of obligation — it is not predicated on norms of reciprocity, nor does it require contractual formalities. To be sure, our slight preference for assigning duties to rescue in the context of marriage and custodial parenting is responsive to what we think of as the specific features of caregiving written into the “scripts” of marriage, but no one should be forced into those roles.

What’s more, people should be free to and encouraged to assume these obligations outside the scripts of marriage. The registry we endorse permits siblings or cousins or roommates or friends to enter into compacts of care, but the idea is not to require it through the criminal law outside voluntary choices or the specific circumstances of the parent-child or spousal relationships. Indeed, we would resist any state’s attempt to impose a legally enforceable relationship of caregiving or a duty to rescue on those persons outside the parent-child or spousal context because we simply cannot say these relationships have been entered into voluntarily.

In the context of platonic roommates, imposing a duty of care through the criminal law would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of caregiving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them.

It is, of course, possible that very few individuals will choose to register; why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability. If, on the other hand, some individuals do choose to undertake an obligation to rescue, the benefits that decision conveys in terms of promoting safety and promoting an ethos of care and compassion certainly seem worth the effort.

We can also imagine the state incentivizing such registrations through small tax breaks; alternatively, perhaps norm entrepreneurs (private employers or faith groups) will start “opt-in days” to foster solidarity among members of their communities. Of course, because peoples’ relationships ebb and flow, the registry would have to permit people to withdraw from these compacts of caregiving if notice is given to the affected parties. Crazy? Feel free to let us know (gently) in the comments. Thanks again to our wonderful hosts for letting us share our freaky, if not quite freakonomical, ideas.

Posted by Dan Markel on July 17, 2009 at 11:59 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Privilege or Punish | Permalink | Comments (0) | TrackBack

Final thoughts on the Sotomayor hearings

In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes).

First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This seems like the next step in the evolution of nasty confirmation politics. The hearings no longer provide any check on the President’s appointment authority; after Bork (and to a lesser extent Thomas), no nominee ever says anything beyond the sorts of bland platitudes we heard from Roberts and now Sotomayor; no one will say anything controversial (or meaningful) enough to give a critical mass of Senators (including Senators from the nominating President’s party) grounds to vote against her. And getting "tough" (or nasty) in questioning has become popularly counter-productive--as Republicans saw this week and as Democrats saw in 2005.

So what congressional check remains on these runaway activist judges? Impeachment. And, of course, the House member will not argue for impeachment because of Justice Sotomayor’s decisions (the line no one dare cross, post-Samuel Chase). Rather, it is because her actions on the Court are contrary to what she swore under oath to the committee. She cited foreign law when she told the Committee there was no constitutional warrant for doing so (although I explained yesterday why her answer studiously avoids this charge); she upheld affirmative action, which shows her letting her personal feelings as a "wise Latina" interfere with her decisionmaking. Obviously, the effort will not go anywhere. But it is a bad rhetorical road to even start down.

Second, have we bottomed out? Have the hearings devolved to such a low-level of discourse that the public will demand more—from both the nominee and the committee members from both parties—the next time? After all, if there is a consistent theme to all the coverage, it has been how inane and meaningless it all has been.

I keep relating this to the issue of past drug use by public officials. In 1987, marijuana use derailed Judge Douglas Ginsburg’s nomination to the Supreme Court (granted, the problem was that he was doing it with students while a law faculty member) and I seem to recall some controversy around members of Congress for past use. And I remember arguing at the time in a college course on the news media that, with the Baby Boomers (most of whom used pot in college, if not into young-adulthood as the only way to survive Disco) coming to political power and beginning to constitute an electoral force, this would be the last time that marijuana use could derail political ambitions. I was wrong as to timing. In 1992, Bill Clinton had to resort to a ridiculous lie to avoid the (believed politically damaging) admission that, duh, he smoked pot while going to college in the late 1960s. But by 2000, George W. Bush’s adult drug use was off-limits for the media and by 2008, no one blinked about Barack Obama’s admission in print of his youthful drug use.

So could this hearing be the judicial-confirmation equivalent of “I never inhaled,” the moment that pushes the public over the edge into demanding an honest and coherent discussion of judging, the courts, and the law? Into defined, non-buzzword questions and substantive answers? I am not sure. It might have been if the Democrats this time had pushed back on the Republican narrative about courts and judging, so that Judge Sotomayor had cover and the controlling theme was not “judging is passive mechanistic application of precedent”. As Dahlia Lithwick put it:

Democrats also came into these hearings with nothing to lose. They were going to seat this nominee, tee up the next two, and school the American people on why the Supreme Court matters and how it's letting them down and explain why balls and strikes are half the equation. They opted not to. When you think of it that way, beyond just being a waste of time, these hearings were also a waste of a thousand opportunities.

If Dahlia is right, that means the hearings on Obama’s next two nominees will be just as hard to watch as this one. Unless the Democrats finally find a judicial vision that they can voice for the public (which Dahlia doubts).

Third, President Obama could get three appointments this term (putting aside whether he is re-elected in 2012). So who’s next? I am guessing Elena Kagan (now having had a couple years as SG) and Diane Wood (believed to have been runner-up this time). Both likely will be less controversial (no "Wise Latina" albatross, no potential for race-baiting, and having Richard Posner and Frank Easterbrook or Jack Goldsmith, respectively, for support). Although, ironically, both may be more judicially liberal than Sotomayor. Thoughts?

[Cross-Posted at ACSBlog]

Posted by Howard Wasserman on July 17, 2009 at 07:41 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Thursday, July 16, 2009

The First Day of an Upper-Level Elective

It's getting to be that time of the year again -- when we all turn to our syllabi for the upcoming fall semester and figure out what, exactly, we're going to do for 28 class sessions.  I thought I'd take this opportunity to ask a question about how we deal with shopping period, and how we ought to.

My approach to my upper-level electives has always been to make the first class meeting its own standalone class, and not part of the overall flow of the semester. So, I may assign an interesting recent case that raises a host of issues central to the overall topic for the semester, or a particularly thorny problem that might introduce a theme we'll encounter at various points -- but never the foundational beginnings of the doctrine; I save that for class meeting #2.

I do this for two reasons: First, as a way of giving the students a feel for the entire course before they commit to it, and second (and more importantly), to accommodate both those students who aren't sure if they want to stay in the course (who, as such, don't have to purchase the materials), and those who might come to the course after the first day, having made a similar decision about another class.

What do others do with that elusive first day? Do you dive right in? Do you assign more thematic material? Do you try your best to scare people away?

Posted by Steve Vladeck on July 16, 2009 at 06:47 PM in Life of Law Schools, Steve Vladeck, Teaching Law | Permalink | Comments (1) | TrackBack

More news from the Ponzi-sphere

Just when you thought you could forget about Bernard Madoff, the government announced yesterday that his accountant, David Friehling, has agreed to waive indictment and that the United States Attorney's Office in Manhattan will file a criminal information instead.  Why is this relevant?  Because the waiver of indictment might be an indication that Friehling  is about to become a cooperating witness.  Although it is certainly possible that Friehling is negotiating a straight guilty plea and nothing else, this strikes me as unlikely.  He just watched Madoff (who also entered a guilty plea) receive a sentence of 150 years' imprisonment.  Why would Friehling place himself at risk of what will surely be a substantial prison term, when he could instead enter a cooperation agreement and "earn" himself a minimal sentence of imprisonment?

Under a standard cooperation agreement, in exchange for potential leniency at sentencing, Friehling would provide detailed information about Madoff's scheme and, if necessary, testimony at trial identifying those persons who conspired with or aided Madoff in the execution of the scheme. 

Depending on Friehling's knowledge base, this could be very bad news for some of Madoff's employees (particularly those with knowledge of his asset management business), and for Madoff's feeder funds (whose interlocking relationships with Madoff are illustrated nicely here) if they in fact were aware of Madoff's Ponzi scheme and placed money with Madoff anyway.  Lack of due diligence won't make a criminal case against feeder funds (and it looks like it wouldn't be sufficient to make a civil case either), but if Friehling (or some other cooperator)  provides sufficient evidence that these investment advisors knew Madoff was running a Ponzi scheme, well then, you can expect some well-known criminal defense attorneys to start racking up a lot of billable hours. 


 

Posted by Miriam Baer on July 16, 2009 at 06:43 PM | Permalink | Comments (0) | TrackBack