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Friday, April 30, 2010

Theme warning: First thing we do . . .

Not that blogs need to have themes, but it occurs to me that the common link between Jonathan's post on the call for a non-lawyer Supreme Court justice and Dave's post on the movie about the Bonds baseball (which I must see) is the public's lack of respect for lawyers, legal knowledge, and the legal system. There is a belief that they could do better--in making constitutional law or figuring out the best way to resolve a dispute over a baseball) simply by applying good-old common sense. Special legal training or knowledge not only is unnecessary, it is an actual impediment to the best outcomes. Lawyers, or those who resort to lawyers, are taking the wrong tack.

Posted by Howard Wasserman on April 30, 2010 at 11:40 PM in Howard Wasserman | Permalink | Comments (0) | TrackBack

Funny You Should Ask

Before grading comes (come?) office hours.  It's generally a low key time; you set aside time for the generally appropriate, sometimes excellent and, sadly, sometimes depressing questions from your students (including those of the "can you please summarize civil procedure to me" variety.)  One particularly interesting type of question is what I call the "jackpot" question.  Often in my exams I try (like I'm sure a lot of profs) to insert some tweak or twist to an issue that distinguishes the very best students from the merely very good.  It's not a trick; it's just a complexity that, if a student really understands the material, she will pick up on even though it's not obvious from the face of the question.

Once in a great while a student will ask a question in office hours that basically gets to the heart of that hidden issue.  Not in the factual sense; rather, the student will ask about the relationship of two doctrines in a way that mirrors what the twist is going to be.  I used to agonize about my answers to that kind of question, in particular, on the issue of how deep my explanation should be.  Explaining it as deeply as I usually try when I answer questions gives the twist away to the student (if she's paying close enough attention to take it in and remember it on the exam).  But holding back seemed unfair; she asked the question and deserves as deep an answer as I would normally give rather than a deposition-style minimalist answer.

I'm comfortable with it now.  If someone stumbles onto the jackpot I'll give them the golden key.  Of course I don't tell them that's what it is.  And as they close up their laptop and walk out I look at them and smile and wonder if they just realized what I told them.

Posted by Bill Araiza on April 30, 2010 at 06:50 PM | Permalink | Comments (6) | TrackBack

It's the Most Wonderful Time of the Year - Reprise

Thanks to Dan for inviting me back for the fourth year in a row.  I'm soon going to turn my attention to REALLY SERIOUS STUFF and the kind of shameless self-promotion that comes from posting on a mega-elite Top Twelve Blog as opposed to my merely Tier 1 home blog (Legal Profession Blog:  A Member of the Law Professor Blogs Network) where I've been pontificating over the last few weeks about God's gift to securities law professors:  synthetic CDOsSEC v. Goldman Sachs, and the metaphor war in the Senate.  I am pretty sure I was the first person either in the blogosphere or the MSM to use the "bookie" metaphor and I am really happy to see others coming around.

But first, I want to reprise an old post. I wrote this song about this time last year when I saw a colleague (who will remain nameless) bouncing his way down the hallway with a disgustingly cheerful air, and what we used to refer to as a "[Senator Levin's favorite unfortunately used adjective to describe a synthetic CDO]-eating grin."  I asked him why he was so happy, and he said "it's my favorite time of the year."  Immediately, a little Andy Williams in a devil costume popped up on my shoulder, and gave me these lyrics without stopping to take a breath.  So this goes out to all the students in the 4:00 p.m. edition of Agency, Partnership, and LLC this semester who were wide awake enough to laugh at my jokes:

It's the most wonderful time of the year 
The 3Ls are cramming
And take-home examming, with 1Ls in fear.
It's the most wonderful time of the year 
It's the hap-happiest season of all
With the summer approaching and no class encroaching
At least until fall,
It's the hap- happiest season of all 

There'll be stipends for writing 
With no deans to be fighting,
And grading will all have been done. 
There'll be times of clairvoyance;
We're free from annoyance when
Faculty meetings are none.

It's the most wonderful time to stay here 
There'll be much profound thinking 
On essays we're inking 
When students steer clear 
It's the most wonderful time of the year 

There'll be federal granting 
And no colleagues ranting
In committees to which we belong
We'll be teaching in Florence
And free from abhorrence
Of everything we know is wrong.

It's the most wonderful job you can get. 
While the law firms are bleeding
And markets receding
The one thing we never forget
It's the most wonderful job
It's the most wonderful job
It's the most wonderful job you can get. 

Posted by Jeff Lipshaw on April 30, 2010 at 05:42 PM in Lipshaw | Permalink | Comments (0) | TrackBack

"Up for Grabs"

I conclude the acquisition by capture section of my property class with a discussion of the controversy that erupted over the ownership of Barry Bonds’ 73d home run ball back in 2001.  For those who don’t know the story, when Bonds hit the record-establishing homer into the right-field stands at PacBell Park, it ended up in the hands of a fan named Patrick Hayashi.  Soon, however, another bleacher denizen, Alex Popov, claimed that he had initially caught the ball and that Hayashi had wrested it away from him in the ensuing scrum (a contemporaneous video gave some credence to Popov’s claim).  The case was litigated in state court amid much fanfare, and the court solomonically divided ownership of the ball equally among Popov and Hayashi.  By the time the court issued its decision, though, Bonds’ star had faded enough that the ball fetched a subpar sum at auction—not even enough to cover the litigants’ attorney’s fees.

 

When we were discussing the case in class this year, a student astutely pointed out that there is a documentary about the case, called Up for Grabs.  I discovered that the film is available on Netflix, and found it both amusing and riveting.  The film has many themes (notably greed and the thoroughgoing American obsession with fame) but it’s a great law film as well (the courtroom testimony of the various witnesses to the Popov/Hayashi scuffle seem like they could have been lifted from a Christopher Guest parody). 

 

One law theme that emerges from the film that’s of particular interest to me is that the public unanimously expressed scorn for Popov and Hayashi’s decision to litigate the ball’s ownership rather than informally settling the issue.  Below, I say a bit more about what this means about public (mis)perceptions of how the law works, and the apparently strong preference that the public has for informal rather than formal resolution of property disputes.

Throughout Up for Grabs, interviewees agree that Popov and Hayashi should simply privately agree to split the value of the ball equally between them, rather than seeking to have a court award it to one of them.  Even Barry Bonds makes this point when he is asked about the dispute at a press conference.  Each litigant expresses a different reason for pursuing the suit; Hayashi seems to think his physical ownership of the ball is dispositive, while Popov has video evidence and lots of witnesses that he thinks will show he is the ball’s rightful owner.

 

But the public’s insistence that the parties should split the value of the ball puzzles me, because it seems to assume that neither party has a superior claim.  Popov is, more or less, saying that Hayashi stole the ball from him.  If that’s right, then Hayashi is no more entitled to half of the ball’s value than a pickpocket is entitled to half the cash in a wallet he thieves. 

 

Put differently, I was surprised that not a single member of the public interviewed in the film said what appears to be the most intellectually honest thing about the case:  “I don’t know all the facts, so I have no idea who should get what.”  (In fairness, perhaps there were such interviews that did not make it into the final version of the film.  I can imagine such interviews wouldn’t make very interesting cinema.)

 

This isn’t to say that public opinion about legal issues is not meaningful; it’s just that  public (or any) opinion about legal issues can’t be meaningful in the absence of a reasonable understanding of the relevant facts.  Hence I’m always baffled at polls that ask the public “Do you agree with the Supreme Court’s decision in [some case]?” when the overwhelming likelihood is that the person being asked hasn’t read the case at all.

 

The public’s distaste for Popov and Hayashi’s choice to litigate the ball’s ownership may also express a distaste for litigation generally.  It reminds me a bit of a theme emergent in one of my favorite law books, Order Without Law, when Ellickson shows that Shasta County ranchers regard resorting to lawyers and formal law as something distasteful on its own terms.  The idea, I think, is that many people think resorting to litigation is a sign of weakness because it means you have to hire someone else to do your dirty work.  The folks interviewed in Up for Grabs think Popov and Hayashi should meet and work their problems out in person, just like ranchers way up in “superior” California. 

 

And aside from the great legal themes, Up for Grabs features a full-frontal view of a distinctive feature of the modern American psyche:  the lust for fame by any means necessary.  Both of the principals seek to translate the sheer luck of being near the Bonds HR ball into not only fortune but also into Warholian fame.  Popov especially seems to be especially high on his newfound celebrity, at one point trying to impress girls in a bar by introducing himself as “the guy who caught the Bonds home run ball” (to their credit, the girls feign enthusiasm in order to mock Popov).

 

Highly recommended, for property profs, baseball fans, and just about anyone.

Posted by Dave_Fagundes on April 30, 2010 at 04:23 PM in Film | Permalink | Comments (3) | TrackBack

Rotations

We've had a great month here at Prawfs to celebrate our 5th Anniversary and so it is with great thanks that we bid farewell to our April guests, some of whom may linger as they get some remaining thoughts off their collective chest. We hope to see you here again soon!

As May Day approaches, I'll be tuxedo-clad and reaching (in good Lowell fashion) for champagne, strawberries, and now bagels and lox,  as others twirl around their maypoles.   Actually, I'll be changing diapers. But I'll be thinking fondly of those bagels and whirling pole-dancers (and not the ones you're thinking about Jack!). In any event, we're excited to welcome two new voices to Prawfs this month: Vlad Perju from Boston College Law and Giovanna Shay from WNEC. You can learn more about them via the links to the right.  I'm also thrilled to welcome back a band of veteran guests: Chad Oldfather (Marquette); Katy Kuh (Hofstra); Jeff Lipshaw (Suffolk); Amy Landers (McGeorge); Marc DeGirolami (St. Johns).  No less exciting: Lyrissa Lidsky and Bill Araiza are staying on too.   

Happy Tax Day, Canadians.

Posted by Dan Markel on April 30, 2010 at 12:04 PM in Blogging | Permalink | Comments (0) | TrackBack

It Went By So Fast

Today's post was my last for this guest appearance.  As always, it's been a pleasure guesting on Prawfs for the month.  Thanks to Dan Markel and everyone at Prawfsblawg for the invitation.

Readers who have enjoyed my posts -- or who will miss being annoyed by them -- can continue to follow me on my usual blog, Law Prof on the Loose.

Posted by Jonathan Siegel on April 30, 2010 at 11:18 AM | Permalink | Comments (0) | TrackBack

Nonlawyer Justice?

As is usual when a vacancy comes up on the Supreme Court, some people suggest that the President nominate someone other than a sitting judge, to give the Court some more diverse experiential background. That's not such a bad idea -- the Court could benefit from having some people who know what it's like to run for office, manage a large law firm, or run a government agency.

But what about the perennial suggestion for a nonlawyer Justice? Now that, I would say, goes too far.

The suggestion that we put a nonlawyer on the Supreme Court seems to be based on the notion that the Supreme Court just makes up constitutional law anyway, so why couldn't a lay person make it up just as well as a lawyer?

Quite apart from the fact that I'd like to think that there's more to constitutional law than that, I think people who suggest putting a nonlawyer on the Court are forgetting that the big-deal con law cases that they have in mind make up just a small percentage of the Supreme Court's docket.

Even if you think that the Supreme Court just makes up the answers to questions about abortion, affirmative action, right to die, and other big-deal constitutional issues, what is your nonlawyer Justice going to do with questions like, "can the plaintiff in a diversity case add a claim against a non-diverse third-party defendant impleaded by the original defendant?"

That kind of question actually takes up a pretty substantial percentage of the Supreme Court's time. Even if you regard big-deal con law cases as being in a separate category, I don't think nonlawyers would do such a great job with the rest of the Court's docket.

Posted by Jonathan Siegel on April 30, 2010 at 10:28 AM | Permalink | Comments (3) | TrackBack

Thursday, April 29, 2010

One More Note on Health Care

The argument against the constitutionality of the health care reform legislation continues to evolve.  In yesterday's Wall Street Journal, Randy repeats many claims I've already challenged.  He has a new one, though.  After appearing to concede that any federal statute that is called a tax and that raises revenue is within the taxing power, he asserts that the individual responsibility requirement fails this test because Congress didn't call it a tax.  

Let's see.  The IRR is part of the Tax Code (new section 5000A).  The legislation calls people who pay it "taxpayers."  (E.g., in sec. 1501 of the health care legislation).  It defines the amount that they pay according to the "taxpayer's household income," which is based on their "modified adjusted gross income," during the "tax year" as defined by the tax code.  HCERA sec. 1002(a), 1004.   

So, the new legislation uses the letters "t-a-x" in reference to the IRR only when those letters are followed by "Code" or "payer" or "year."  I guess there could be some kind of super-ultra-clear statement rule out there that would say Congress hasn't clearly called this thing a tax.  But seems to me that designating a provision as part of the Tax Code is pretty darned clear. 

Posted by BDG on April 29, 2010 at 10:02 PM | Permalink | Comments (3) | TrackBack

Details re: upcoming Prawfsfest!

I'm very excited that, with the end of the semester, I can now turn to start writing (or revising) some projects that have been on the back burner. And with that in mind, I also am thinking about the next Prawfsfest!, which is being graciously hosted by our friends at Brooklyn Law School this coming July 6 and 7th (and dinner on Monday the 5th). While we have enough people to present over the course of the two days, we may be able to squeeze in a couple more folks who are interested in being there to give comments on the early works in progress related to legal theory and/or public law. (You can find out more about what the format is like over here.) 

Our current list of attendees and/or presenters include: Mike Cahill, Miriam Baer, Nelson Tebbe, Verity Winship, Bill Araiza, Katy Kuh, Hillel Levin, Howard Wasserman, Giovanna Shay, Chris Lund, and Marc Blitz (and me). If you are interested in joining in as a discussant, please let me know of your interest before next Friday. Here are four advantages of participating as a discussant: some free grub for a few days c/o BLS; priority in the queue for presenting at the next Prawfsfest! at ASU--Phoenix in the winter; and if you are coming in from out of town, a great hotel rate at a boutique hotel in Brooklyn Heights; and the freedom to lacerate other people's papers without exposing your own work for similar scrutiny. The principal downside: spending time indoors in the summer with energetic prawfs :-)

Preference will go to those who have already guested on Prawfs or have committed to doing so in the future, and/or who present some hint of intellectual/methodological diversity.

Posted by Dan Markel on April 29, 2010 at 09:14 PM in Blogging | Permalink | Comments (3) | TrackBack

In Praise of Potentially Unconstitutional Laws

It's still early in the process, but I'm wondering if the recent Arizona immigration law will generate some interesting constitutional debate out in public.  Obviously we have constitutional controversies all the time.  But I wonder if this one will be different in that it won't cut closely along the Democratic-Republican divide.  Presumably Democrats will be more or less united in their opposition, but we've seen some major cleavages on the Republican side

But the politics itself is not what interests me.  The question is whether the relative absence of strong party cues (at least on the GOP side) is going to provoke some real constitutional debate, instead of simple shouting.  The motives may still be political: Karl Rove is still presumably motivated by his dream of creating a semi-permanent Republican majority, and Marco Rubio is running in Florida (and then there is the issue of his name).  But we've already seen a number of leaders on that side use the law's uncertain constitutional status as an argument.  It makes sense: if you want to oppose something that some people in your party like, there are worse ways to do it than hiding behind the Constitution.

This isn't the first time a constitutional issue has divided parties.  Medical marijuana laws split conservatives along the libertarian/war-on-drugs faction (here and here).  Also, principled proponents of states' rights presumably would like to see other regulatory decisions shifted down to the states, even if the federal government regulates it in ways conservatives generally like.  But those issues don't have the salience of immigration law, especially now, with the Obama Administration thinking about immigration reform. 

I hope this debate happens.  It would be nice, for example, to have CNN feature a conservative constitutional scholar debating another conservative about the law's constitutionality, rather than the standard one-from-the-left vs. one-from-the-right format we've had at least since the old days of the "Point-Counterpoint" segment on "Sixty Minutes."   In my crazier imaginings, that sort of debate might actually start to break down the partisan walls too many of us have helped build up over time and start us focusing on some constitutional common ground.

Aw, on second thought, forget about it.

Posted by Bill Araiza on April 29, 2010 at 06:23 PM | Permalink | Comments (3) | TrackBack

More South Park

I wrote last week about the controversy involving South Park and a Fundamentalist Islamic organization over the show's depictions or near-depictions of Muhammad and Comedy Central/Viacom's editing of the show by bleeping all mention of Muhammad's name, as well as a lengthy end-of-show speech about the problems of using fear and intimidation to chill others' speech.

Jonah Weiner, pop culture writer at Slate, has a different take. He argues that the extra editing of the episode actually gave it more power. He writes, "The episodes vibrantly illustrate the idea—fascinating both in its political and philosophical implications—that a U-Haul van, a bear suit, and a "CENSORED" bar can themselves come to represent precisely the thing they were meant to obscure." Similarly, by Comedy Central trying so hard not to "depict" Muhammad and thus not to offend, they arguably become more offensive--in an earlier (pre-9/11) episode that did draw Muhammad, "Mohammed was a hero. In '200' he is stuffed into a piece of moving equipment. Which representation is more sensitive?"

Finally, the bleeping of the anti-censorship "moral" gained power from being censored and thus not preachy. Again, Weiner: The "sequence winds up speaking as eloquently, startlingly, and hilariously to the issue at hand as a monologue ever could. That 38-second bleep is one of the best pieces of writing South Park has ever aired."

Posted by Howard Wasserman on April 29, 2010 at 03:25 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Punitive Damages and Private Ordering Fetishism

In two recent response essays by distinguished torts scholars, Professors David Owen and Michael Krauss, I was charged with "aggravating punitive damages" and instigating the "death of private ordering." 

Who, me?

In seriousness, I have a somewhat more considered and elaborated answer, and I've got a draft of that reply in a new essay up on SSRN by the title of Punitive Damages and Private Ordering Fetishism.  I'd be grateful if you could share with me any thoughts or reactions; it weighs in at just under 10,000 words. Here's the abstract, with links to the full conversation after the jump.

This essay is a reply to two recent responses that appeared in the U. Penn Law Review's online companion, PENNumbra by Professors Michael Krauss and David Owen. The essay's principal goal is to clarify some areas where I think Professors Krauss and Owen misunderstood some aspects of my proposed framework for restructuring punitive damages, a framework I developed in two recent articles. Those clarifications address issues including but not limited to how punitive damages law ought to address the wealth or financial condition of the defendant, the defendant’s status as a corporation, settlement dynamics and insurance. Before I answer Professor Krauss’s and Professor Owen’s challenges in those particular domains, however, I begin the essay with some more general observations about what role tort law could and should serve. My hope is that these initial remarks will provide some context for the nature and significance of the particular policy disputes we have with respect to punitive damages law.

You can find the articles Professor Krauss and Owen respond to here:

Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239-340 (2009) (available at http://ssrn.com/abstract=991865 )

Markel, How Should Punitive Damages Work?, 157 University of Pennsylvania Law Review 1383 (2009) (available at http://ssrn.com/abstract=1260019

You can find Professor Krauss's Response here:
Michael I. Krauss, Response, “Retributive Damages” and the Death of Private Ordering, 158 U. Pa. L. Rev. PENNumbra 167 (2010), http://www.pennumbra.com/responses/02-2010/Krauss.pdf

You can find Professor Owen's Response here:
David G. Owen, Response, Aggravating Punitive Damages, 158 U. Pa. L. Rev. PENNumbra 181 (2010), http://www.pennumbra.com/responses/02-2010/Owen.pdf

Posted by Dan Markel on April 29, 2010 at 10:31 AM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory, Retributive Damages, Torts | Permalink | Comments (2) | TrackBack

Still no Bilski

Another sitting of the Supreme Court has come and gone, and the Court still hasn't decided In re Bilski, which promises to be a big deal in patent law. I was teaching Intellectual Property this term, and I kept putting off teaching patentable subject matter in the hopes that the Court would decide the case, but no such luck.

The case will give us some insight into the longstanding problem of the degree to which patents are available for processes that lie outside the area of traditional industrial, manufacturing processes. A "process" is specifically listed as patentable under section 101 of the patent act, and everyone agrees that a process for vulcanizing rubber, for example, is patentable, but the courts have tied themselves up in knot over more abstract processes, particularly those that involve something like a mathematical algorithm. The Supreme Court started things off by denying patentability for a process for converting numbers from one number system to another and ever since then things have been rather confused.

The Federal Circuit, created to fix up patent law, took great liberties in this area and seems to have regarded itself as authorized to ignore Supreme Court precedent. The Supreme Court gave the Federal Circuit a great deal of leeway for a while -- perhaps to let the experiment work -- but lately has been reining it in almost every Term. Now this case could be another big deal in patents.

Personally, I think mathematicians get unfairly shafted in the subject matter area. Math was my undergraduate major, so perhaps I am biased, but why should achievements in mathematics be less rewarded than those in physics or chemistry? If I invented a fast algorithm for factoring large numbers, for example, it would be extremely important -- all of encryption, as I understand it, is based on the fact that it's easy to multiply two numbers together but hard to break a large number into its factors. A factoring algorithm would be a useful and important achievement, and it's not clear to me why it shouldn't be patentable.

I think I would allow more leeway in subject matter but tighten up in obviousness. A lot of the controversial subject matter patents should clearly have gone down on the obviousness criterion. Mr. Bilski, for example, is basically saying, "I've invented hedging!," which is ridiculous. See also In re Comiskey ("I've invented arbitration!"). Let's give mathematicians their due, but only if they come up with something really new.

Posted by Jonathan Siegel on April 29, 2010 at 07:06 AM | Permalink | Comments (1) | TrackBack

Wednesday, April 28, 2010

Something to Teach Harvard Law Students: Emails Can be Forwarded

A (female) Harvard 3L sent another student an email stating, among other things:

I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. I could also obviously be convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances. The fact is, some things are genetic. African Americans tend to have darker skin. Irish people are more likely to have red hair.

This email was then forwarded to Black Law Student Associations around the country with the author's name attached.  Now there is a movement afoot to try to get the author's federal clerkship offer revoked.  The whole story is now on Huffington Post and Above the Law, which has the full email with surrounding context.  Arguably, the context makes the paragraph from the email quoted above sound worse rather than better. 

It is hard to even know where to begin to comment on this development.  I am by no means shocked that there are highly educated people in this country with ignorant racial attitudes.  I wish I were.  I am a little shocked by the complete lack of judgment of the Harvard 3L.  Interestingly, the email was signed with the request "Please don't pull a Larry Summers on me."  I am certain that the person who received the email was personally offended by the antediluvian racial sentiments of the author, but it still seems like a breach of trust to have forwarded the email all over the country.  Was the forwarder justified under the circumstances? You tell me.


Posted by Lyrissa Lidsky on April 28, 2010 at 01:28 PM | Permalink | Comments (51) | TrackBack

"Formation is a very basic existential analysis": Thoughts on the Rent-a-Center Oral Argument

Those who are interested in contract law, arbitration, labor & employment law, and federal courts should check out the oral argument for Rent-A-Center, West v. Jackson.  The quote above is from Robert Friedman, counsel for Rent-A-Center, and as a Contracts professor I enjoyed the sentiment.  But ultimately Rent-A-Center's argument hinges on a effort to separate unconscionability into two different categories -- a separation that has no basis in common law or statute.

The question before the Court is "Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (FAA) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this 'gateway' issue to the arbitrator for decision?"  The case involves a Sec. 1981 racial discrimination claim brought by employee Antonio Jackson against Rent-A-Center.  Jackson signed an arbitration agreement which stated:

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.

In the opinion below, the Ninth Circuit held that courts must decide whether the agreement to arbitrate is unconscionable as a threshold matter, regardless of what the agreement itself says.


In his argument, Friedman conceded -- indeed, he had to concede -- that if an arbitration clause was fraudulently induced, it cannot force the defrauded party into arbitrating whether there was fraud.  He also conceded that some cases of duress -- namely, "a gun to somebody's head" -- would not go to the arbitrator.  What Friedman was trying to distinguish was cases in which no contract was formed (due to fraud or duress) and cases in which there is a contract but it needs reformation in some way.  Some on the court seemed sympathetic to this, looking to draw a line perhaps between "total" and "partial" unconscionability.  As Chief Justice Roberts put it, "[O]nce you get past that [g]ateway question of whether the formation of the contract was not unconscionable, then claims that particular provisions were unconscionable are by definition for the arbitrator to decide."


The First Circuit suggested something along these lines in Awuah v. Coverall N. Am., Inc., 554 F.3d 7 (1st Cir. 2009).  In that case, the First Circuit said that a court could refuse to enforce an arbitration agreement if it were "impossibly burdensome" or provided only "illusory" relief.  But the common law of unconscionability makes no such distinctions between "illusory" contracts and "non-illusory but unconscionable" contracts.  All unconscionable agreements are subject to judicial reform.  And it would make no sense to say that an agreement to arbitrate is possibly unconscionable, but the arbitrator -- whose power derives solely from that possibly unconscionable agreement -- gets to decide whether it is unconscionable and, if so, what the remedy shall be.  As Ian Silverberg, counsel for Jackson, pointed out, Rent-A-Center wants "a rule where certain unconscionability challenges went to the court and other unconscionability challenges didn't go to the court."  There's no basis for this in the FAA.


The Supreme Court has a legitimate concern that some state courts have been pushing the bounds of unconscionability with respect to arbitration agreements. Justice Ginsburg, in particular, seemed to think that the agreement at issue was not all that unconscionable.  But that's the bed the Court made for itself in Gilmer.  Once it said: (a) litigants can agree to arbitrate statutory rights prior to the dispute, but (b) they cannot waive those rights and (c) normal contractual remedies apply, a result like the one in Rent-A-Center was in play.  The Court itself has said: “Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’ ” Mitsubishi, 473 U.S. at 627 (quoting FAA Sec. 2).  The Ninth Circuit has to be upheld, I believe, unless the Court is going to start mucking around in state common law.  It could make the argument that the Ninth Circuit is disingenuously applying unconscionability law here.  But that's not the question presented.  I don't see any way to give the arbitrator the ability to decide the legitimacy of the agreement to arbitrate itself.


Justice Breyer, author of First Options, summed it up this way:

[First Options says that] unless it's clear and unmistakable that they wanted this matter [--] the matter of whether the arbitration clause itself is unconscionable [--] referred to the arbitrator, whether or not they wanted that referred to the arbitrator has to be clear and unmistakable. And they are claiming no, because . . . the provision that says that is itself a product of unconscionability. . . . [W]hy isn't that the simplest, most direct and four-sentence ground for deciding this case?

If you haven't done so already, check out this great preview post by Aaron Bruhl.  I hope Aaron will weigh in with his thoughts on the argument.

Posted by Matt Bodie on April 28, 2010 at 11:11 AM in Civil Procedure, Employment and Labor Law, Judicial Process, Workplace Law | Permalink | Comments (6) | TrackBack

New Dean at Notre Dame Law School

The news is here.  Can an interim appointment to the Supreme Court be far behind?

Posted by Paul Horwitz on April 28, 2010 at 09:45 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Tuesday, April 27, 2010

Law & Society Panel Preview

If you are attending the Law & Society conference in Chicago, I'd like to put in an early plug for a panel that will be held at 10:15 on the last day of the conference (Sunday, May 30th).  The panel is called Government Actions Affecting Information, Expression & Belief Systems: Emerging Issues.  The Chair of the panel is Christina Wells, who will be speaking on Emotions and the First Amendment.  Heidi Kitrosser will speak on Secrecy, Power & the U.S. Presidency.  Caroline Corbin will speak on Ceremonial Deism and the Reasonable Religious Outsider.  Finally, I will speak on Calibrating the Public Forum Doctrine for the Twenty-First Century: The Case of Government Sponsored Social Media

Posted by Lyrissa Lidsky on April 27, 2010 at 08:21 PM | Permalink | Comments (0) | TrackBack

Adventures in Federalism, Judicial Supremacy, and Originalism ... and Other Stuff Too

If you're a Con Law professor scratching around for an exam hypo, you could do a lot worse than the Montana Firearms Freedom Act, a Montana law purporting to restrict federal regulation of firearms manufactured with borders of the state.  The operative part of the law (Section 4) declares, in relevant part, as follows:

"A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce.  It is declared by the legislature that those items have not traveled in interstate commerce.  . . . Generic and insignificant parts . . . are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into [one of those items] does not subject the [item] to federal regulation."

Interesting enough -- questions about the reach of the commerce power, and about states' ability to dictate or declare that reach.  But there's more

1. Preemption: Section 2 ("Legislative declarations of authority") includes the following:

"The regulation of intrastate commerce is vested in the states under the 9th and 10 amendments to the United States constitution [sic], particularly if not expressly preempted by state law.  Congress has not expressly preempted state regulation of intrastate commerce pertaining the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition."

So, in addition to more declarations from the state -- this time about whether Congress has in fact preempted this intrastate commerce -- we also have a statement that the power to impliedly preempt is not part of the Interstate Commerce power.  At least some people seem to be listening to Justice Thomas's recent arguments against implied preemption.

2.    Originalism of an interesting sort: Other declarations in Section 2 refer to the Second, Ninth and Tenth Amendments as reserving to the people or the states certain rights "as that right was understood at the time that Montana was admitted to statehood in 1889."  Interesting argument: does this mean that, at least theoretically, the rights these amendments bestow vary based on the year of the state's admission?  If the Second Amendment is incorporated against the states does that mean that Alaskans have fewer Second Amendment rights because the "right [that] was understood at the time" that Alaska was admitted was presumably the understanding in United States v. Miller (even if, as Heller concluded, the "hundreds of judges" Justice Stevens cites as reading Miller broadly were in fact overreading the case)?  (It's true enough that Justice Scalia doesn't concede that there were in fact "hundreds of judges" who read Miller as adopting the militia-use understanding, so maybe the Court would have an out to not resurrect Miller if they ever adopted this theory.)

Maybe more interestingly, why should the admission date matter?  If these were territories then they would be under the control of the federal government; thus, the Second Amendment would have applied from the very first moment the land became part of the United States.  Of course, admission date would be relevant for the Ninth and Tenth Amendments to the extent they protected states' rights of self-government.  Are Alaska and Hawaii again out of luck, at least with regard to any Tenth Amendment claim, given the "mere truism" status of the Tenth Amendment as of 1959?

3. Contract? Section 2's references to these rights talk about their status as "a matter of contract between the state and people of Montana and the United States as of the time that the compact with the United States was agreed upon and adopted by Montana and the United States in 1889."  I don't know much about the process by which states were/are admitted to the Union; is the process really in the nature of a contract?  Or was Montana a special case?

These questions may not be just grist for an exam; a number of states are considering similar laws and there's currently litigation over the Montana law.  But as grist goes, it's pretty good.  

Posted by Bill Araiza on April 27, 2010 at 05:27 PM | Permalink | Comments (4) | TrackBack

Could you please summarize civil procedure for me?

Unlike some of my fellow Prawfs, I am not yet in the grading phase of the semester- rather, I am still in the answering-of-frantic-questions-about-civil-procedure phase. I am often amazed, in this phase, at how often I receive massively long emails from students, containing a large number of questions that either 1) ask me to repeat for them things that I am absolutely certain I covered in class, or 2) ask me to do the work for them of "summarizing" a relatively complex concept or area of law ("Could you summarize the Erie doctrine for me? What do we need to know about personal jurisdiction?").

I find that I spend a lot less time agonizing over these emails than I used to, though I confess I am still uncertain whether my way of handling them is the best way. I usually tell the student that it would be far too time-consuming for me to answer such questions via email, and therefore that they have the choice of either drafting proposed answers for me to review and correct, or coming to see me in person (for an appointment of a designated length). How do others handle this? Do some prawfs decline to answer student emails at all during exam period? Set ground rules in advance? Pretend to be away doing research in a remote island village with no internet access?

Posted by Jessie Hill on April 27, 2010 at 02:54 PM | Permalink | Comments (10) | TrackBack

Just in time for exam season

This little video should help students and profs remember some essential concepts from criminal law. (H/t: one of my crim law students!).

Posted by Dan Markel on April 27, 2010 at 09:57 AM | Permalink | Comments (0) | TrackBack

Here Comes Grading

My exams arrived yesterday, so I will spend the next two weeks in the semiannual ritual of grading them. Blogging may be reduced.

As bad as grading is -- and it's pretty bad -- it at least has the advantage that the task is very clear. Most of a professor's life is unscripted. The first task is to figure out what the task is. Professors have to figure out what topics to choose, what papers to write, what subjects to research. And the job is never done, either. Whatever you do as a professor, you could always be doing more -- you could always write another paper, give another lecture, make another appearance, write another book. And that means choosing yet another topic.

The freedom and autonomy of a professor's life is the best part of the job. But let's face it, it can also be a little daunting. Sometimes it's a pleasure to have a clear task before you. So professors, as you moan and groan your way through that pile of exams that never seems to get any smaller, take comfort that at least you know what you have to do.

Posted by Jonathan Siegel on April 27, 2010 at 08:13 AM | Permalink | Comments (3) | TrackBack

Monday, April 26, 2010

Search of Gizmodo Journalist's "Newsroom"/Bedroom: Federal Law

There are interesting new developments in the case of the "lost" iPhone 4G prototype.  On Friday, police searched the home of the Gizmodo editor Jason Chen pursuant to a search warrant, purportedly to find evidence of a felony with regard to Chen's purchase of the iPhone prototype from someone who ostensibly found it in a bar.  According to the New York Times, the police seized four computers and two servers from Chen's home but did not arrest him.  There are many fascinating issues here for those of you who are specialists in criminal law or intellectual property.  For media lawyers, there is the attraction of this novel issue:  Should an online "journalist" receive protection under the federal Privacy Protect Act of 1980, 42 U.S.C §2000 et. seq., which is designed to prevent seizures of "work product" and "documentary materials" from newsrooms?  The answer is probably yes, though this may be of little assistance to Gizmodo editor Chen under the peculiar circumstances of this case.

The Privacy Protection Act makes it "unlawful" for law enforcement officials "to search for or seize" media "work product materials" or "documentary materials."  The Act applies to local, state, and federal law enforcement searches and seizures; indeed, it applies to searches by any "government officer or employee."  Although the act is designed to protect newsrooms, Chen's "work product" ordinarily should be protected from search or seizure because it is "possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  Likewise, his "documentary materials" are protected because they are "possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  As a writer for the blog Gizmodo (owned by parent company Gawker Media), Chen certainly seems to qualify as a person intending to disseminate a form of public communication "similar to" a newspaper that "affects" interstate commerce.  However, . . .

. . .and this is a big however, there are exceptions to the PPA's prohibition on searches and seizures of media work product and documentary materials, and these exceptions might come into play in Chen's case.  For example, law enforcement may seize documentary materials or work product when they have probable cause to believe that the person possessing the materials (i.e., Chen) has committed a criminal offense, unless that offense consists in receipt, possession, communication, or withholding of the documentary materials or work product.  The purpose of this exception is to prevent a reporter from shielding his own criminal acts from discovery by using the PPA.  Depending on whether payment for and receipt of the lost/possibly stolen iPhone was a crime, this exception might prevent Chen from claiming that his materials were protected from seizure by the PPA.  I am not an expert on the substantive criminal law, but one thing I know for sure is that receiving stolen information is one thing [See Bartnicki v. Vopper] but receiving stolen property is another. 

[It is also worth noting here that California also has a state analog to the PPA, and reporter's privilege issues might come into play in this case as well.  But those are blog posts for another day or for someone else.] 

Posted by Lyrissa Lidsky on April 26, 2010 at 09:53 PM in First Amendment, Web/Tech, Weblogs | Permalink | Comments (8) | TrackBack

The Lost History of Usefulness

In my last post, I introduced my forthcoming article, Reinventing Usefulness, by describing three conceptions of usefulness - operable, practical, and commercial.  I discuss all three in depth in the article, but I want to focus on commercial usefulness here.

As I noted in the last post, courts do not - and never have - required commercial usefulness. This is a foregone conclusion - one announced by Justice Story riding circuit in two cases back in 1817. One would think that such a long history would mean that courts have properly ignored commercial use all these years, but it's not entirely clear that Justice Story's view should have been followed for as long as it has.

After the jump, I discuss some important history that has long been forgotten. The history shows that commercial usefulness is not necessarily as far-fetched as patent followers might think. Had Congressional intent been implemented by the courts following the 1836 Patent Act, the current statute might well have a form of commercial utility requirement.

In short, it is an accident of history that patentability does not directly hinge on commercial usefulness.  Usefulness appeared in the first patent statute, the 1790 Patent Act.  The requirement appeared three times: 1) a patent may be granted for “useful” inventions or discoveries; 2) one must include a description sufficient to enable one to use the invention;  and 3) designated cabinet members must “deem the invention or discovery sufficiently useful and important.”  Thus, patents were to be issued only after an examination of utility and importance. 

Implementation of the “sufficiently useful and important” requirement was administratively difficult and thus did not last long.  It was eliminated in the 1793 Patent Act,  though the requirements of usefulness and use enablement requirements remained. Further, examination requirements were eliminated altogether, and patents were granted to all who applied.

It was during this unexamined registration period that Justice Story issued his famous 1817 opinions that inventions need not show any commercial benefit, and that they need merely be non-frivolous. Story had no “sufficiently useful and important” language to guide his interpretation of the statute; indeed, that phrase’s absence in the 1793 Act supports Story’s interpretation that – as of 1817 – an invention did not need to be important, but merely operable and practically useful in some way.

The lack of examination did not sit well with Congress, and the Patent Act of 1836 introduced an examination system.  As part of this system, in addition to the usefulness and enablement requirements, the Commissioner of Patents was to issue a patent covering an invention “if [he] shall deem it to be sufficiently useful and important.”   It appears that Congress inserted this text in specific response to Justice Story’s more lenient test, which had been generally adopted by courts by 1836. The committee report, often called the “Ruggles Report,” states: 

The necessary consequence is, that patents have, under the act of 1793, been daily granted without regard to the question of novelty, or even utility in the ordinary sense; for it has been settled that the term useful, as used in this statute, is only in contradistinction to hurtful, injurious or pernicious….

The most obvious, if not the only means of effecting [a change to the evils of the registration system], appears to be to establish a check upon the granting of patents, allowing them to issue only for such invention as are in fact new and entitled, by the merit of originality and utility, to be protected by law. (emphasis mine)


Thus, the 1836 Patent Act might have been interpreted to require an elevated level of utility – perhaps even commercial utility in the discretion of the Commissioner. In all events, utility was to require more than the “non-pernicious” rule set forth by Justice Story. 

A more stringent utility requirement was rarely enforced, however; the courts quickly gutted the “sufficiently useful and important” requirement.  Instead, judicial opinions held that Story’s conception of utility survived despite the additional “sufficiently useful and important” language  and determined that the commissioner’s determinations of patentability were essentially reviewable de novo.  

Part of the justification for limiting the commissioner’s discretion was that juries would not review commissioner decisions,  and courts were wary of allowing the executive to impose discretionary decisions without an appeal to a jury. However, if the Administrative Procedure Act -- which today allows for extensive discretionary rulings without an appeal to a jury -- had existed in 1850, then the discretion of the commissioner may have been given much more weight.


The 1952 Patent Act eliminated the “sufficiently useful and important” requirement,  instead only requiring inventions to be “new and useful” as well as requiring applicants to describe how to use the invention.   Legislative history shows that the phrase was omitted because it was “unnecessary” and because “[t]he meaning of this old phrase was obscure and it had seldom been resorted to either in the Patent Office or in the courts.” 

Despite this claim in the legislative history, it is not clear that elevated utility was unanimously disregarded prior to the 1952 Act. For example, the Patent Office had used the test to reject applications. Indeed, the issue caused confusion among examiners right after the passage of the 1952 Patent Act. Further, some courts were also willing – in dicta at least – to require a higher utility threshold.  

Thus, while the sufficiency test was never widely implemented and was nominally repealed, this result was a historical accident.   If the few judges considering the issue early on had instead interpreted the statute to give the Commissioner some discretion then a heightened utility requirement – perhaps even a commercial utility standard - might have emerged.

This historical review does not imply that the rules should have included a commercial utility requirement, but rather that they could have included one. Recognition that the 1952 Act did not intend to eliminate the “sufficiently useful and important” requirement for any reason other than disuse over time allows courts (and certainly Congress) to interpret usefulness as it was originally intended in 1836 by introducing a commercial utility requirement.

My next post will propose just such a requirement.

Posted by Michael Risch on April 26, 2010 at 10:25 AM in Intellectual Property | Permalink | Comments (0) | TrackBack

Better Politics

When health care reform was teetering on the brink of extinction (following Senator Scott Brown's victory in Massachusetts), I noted that President George W. Bush managed to get pretty much everything he wanted even though Republicans never had more than 55 Senate seats during his Presidency. Heck, he got us to go to war against Iraq, on the ground that terrorists from other countries had attacked us, when the Republicans were a minority in the Senate.

How did he do it? Well, for one thing, when Bush wanted something, you sure knew what it was, and he mentioned it every day. He talked things up until there was so much political pressure on Democrats that they had to vote for it.

President Obama is now making better use of political pressure on Republicans. Just ten days ago, all 41 Senate Republicans signed a letter opposing financial reform. Then President Obama went on the attack, pointing out that Wall Street's failure of responsbility led to the financial crisis. Democrats started painting Republicans as being on the side of big bankers and against ordinary Americans.

What do you know, suddenly the reports were that a deal was close on financial reform. There is still some doubt as to whether there are enough votes to start debate today, but even Republicans are "hopeful" that a deal can be reached.

That's the way to get stuff done. Neither party can get its entire membership to stand in the way of something really popular. The Democrats just need to create enough popular pressure to break off one Republican vote, and they can defeat a filibuster.

Posted by Jonathan Siegel on April 26, 2010 at 09:39 AM | Permalink | Comments (5) | TrackBack

Sunday, April 25, 2010

ALEA 2010 at Princeton

The annual meeting of the American Law and Economics Association is less than two weeks away. Its at Princeton NJ and I am presenting my forthcoming article, The Incentives Matrix, Texas Law Review (2010) with Yuval Feldman. I haven't seen any bloggers' happy hour in the works like the ones Dan and our friends over at Co-Op, Opinio Juris, Glom and others organize  at LSA and AALS. I am wondering if it makes sense to organize something for this one. I have blogged about ways of making the best of large interdisciplinary conference here. ALEA is not as big and decentralized as LSA, but still its nice to plan ahead for two overloaded days.

Posted by Orly Lobel on April 25, 2010 at 12:38 AM | Permalink | Comments (3) | TrackBack

Saturday, April 24, 2010

A Solomonic Post

I have long been struck by the casual prevalence of the King Solomon metaphor in legal writing. A quick search of Westlaw's law review (JLR) database for the word "Solomonic" returns 1,194 articles; 388 cases turn up in the ALLCASES database. But what fascinates me more than the reference's prevalence is the fact that the reference is almost invariably misused.

We all know the story of King Solomon - the wise judge who was presented with the dilemma of two women, each claiming that a baby boy belonged to them. Solomon declared that the only fair thing to do was to cut the baby in half. As he called for a sword and acted as though he was about to follow through on this judgment, one of the women cried out that he should not kill the baby but rather give it to the other woman. Thus, Solomon knew that the woman who would rather relinquish the baby than have it killed must have been the true mother.

Of course, what this story demonstrates is Solomon's cleverness in tricking the women to discover the right and just answer to the question before him. Yet (though I don't pretend to have combed through all 1,582 references in Westlaw), it seems to me that lawyers almost always use the term "Solomonic" to refer to a compromise solution, to the act of "splitting the baby"... which is of course exactly what did not happen in the story of Solomon.

The misuse of the reference has surely been noted by others (not least of all by the author of this wikipedia entry). But I suppose what I find most interesting about it is that the actual story of King Solomon captures an entirely different function of the law.....

It seems to me that the story of Solomon is a story about the way in which the law sometimes (ideally) strives not just to achieve a settlement of disputes but to get at the truth of a matter by preventing people from benefiting from strategic behavior, or by giving special attention to the things people do when they are not acting strategically. For this reason, many cases present a health dose of skepticism regarding legislative history, for example, or agencies' decisions to take change their positions while in litigation. Similarly, federal evidence law allows excited utterances and dying declarations into evidence as exceptions to the hearsay rule. Surely there are other examples of ways in which legal doctrines are designed to short-circuit strategic behavior. What are they?

Posted by Jessie Hill on April 24, 2010 at 11:35 AM in Legal Theory | Permalink | Comments (5) | TrackBack

Friday, April 23, 2010

Sex, Intersex and Sports

The news that Eri Yashoda, an 18-year old Japanese woman, will be playing professional (though not major league) baseball in the United States, brought to mind a discussion my students and I had in our Law and Sexuality class about gender identity.  Thanks to a student who is writing a paper on the topic, the conversation during that class turned to gender and sports.  Earlier in the semester we had discussed the case of Caster Semenya, the South African sprinter whose allegedly-ambiguous gender led some months ago to the controversy about her eligibility to compete as a woman.  With that background, several students suggested simply doing away with gender tests for athletes alleged to be "masquerading" (the term often used in this context) as a woman.

Some of this sentiment, I think, was generated by the difficulty courts and officials have experienced in determining who is "really" a woman for purposes of athletic competition.  For class we read the case in which Renee Richards was allowed to compete at the US Open, after transitioning from male to female, despite the objections of tournament officials and some (though not all) female players.  (Billie Jean King supported Dr. Richards' application.)  

I'm sympathetic to the argument.  From reading my student's paper it seems clear that every test used to determine gender for sports purposes has major flaws; the history in this area is of tests being abandoned in favor of new tests, which themselves were later abandoned as inaccurate.  I'm also sympathetic to the situation faced by intersex people, who probably account for a lot of these tests' inaccuracies.  But -- and here is where the story of Eri Yashoda comes back in -- it's got to be the case that in most cases integrating sports will redound to the serious detriment to women's opportunities.  Not always -- for example, in endurance sports maybe women would be competitive or even rise to the top.  But unless sports themselves are reimagined with equal gender opportunity in mind, it's hard to see how integration does women much good, and easy to see how it does them harm.  One might conceivably argue for forced integration, with even an affirmative-action style bump of the bluntest sort to hasten the effort -- for example, as one commentator suggests, extra points when a woman on the team scores the goal.  But that seems far-fetched, and, again, I'm not sure how the extent to which that would do women in larger favors.

The interesting question, then, is the one my students had to grapple with.  If we think sports should be gender-segregated, that means we have to figure out who's a man and who's a woman.  But that apparently is a lot harder than we might have originally though.  Indeed, the example of the intersex -- apparently, not a trivial number of people (see page 3 of this report) -- suggests that it may be impossible to do this in a completely reliable and fair way.  Exactly because cases like Eri Yashoda are so rare -- that is, because in most cases it matters a lot in sports whether one competes as a man or a woman -- the problem won't be going away anytime soon.

Posted by Bill Araiza on April 23, 2010 at 08:40 PM | Permalink | Comments (7) | TrackBack

United States v. Stevens: Why it Matters

As readers of this blog probably know by now, United States v. Stevens, 559 U.S. __ (2010) dealt with the constitutionality of a federal statute, 18 U.S.C. § 48, that criminalized depictions of living animals being intentionally harmed.  Although the statute was aimed primarily at eliminating so-called "crush videos," the respondent in the case was convicted for producing videos depicting dog fighting and a pit bull savagely attacking a pig.

At the most basic level, the case is significant because  the Supreme Court declined to recognize "depictions of animal cruelty" as a category of speech "unprotected by the First Amendment" and struck down the federal statute as substantially overbroad.  More generally, the decision is significant for what it signals about the future of the categorical approach in First Amendment jurisprudence. 

The Court acknowledged that content-based restrictions on speech are permissible in certain "historic and traditional categories long familiar to the bar."  (emphasis added) The categories of "unprotected" speech cited by the court include the following: obscenity, defamation, fraud, incitement, speech integral to criminal conduct.  Interestingly, the Court did not cite Virginia v. Black, 538 U.S. 343 (2003) for the proposition that "true threats" are an unprotected category, though whether this was an oversight or intentional, it is impossible to say. The Court refused to place "depictions of animal cruelty" in an unprotected category simply because the speech had little value compared to its societal costs. Indeed, Chief Justice Roberts rejected the notion that the First Amendment even allows such balancing, stating:  "The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it." 

The Court granted that its prior precedent seemed to place categories like fighting words and obscenity in an unprotected or low-value category of speech on the basis of a "simple cost-benefit analysis." But Chief Justice Roberts contended that prior cases recognizing unprotected categories of speech involved not merely cost-benefit analysis but other factors as well, chief of which seems to be the imprimatur of history and tradition.  Perhaps recognizing that this characterization of prior cases was unconvincing, Roberts only gave one example--child pornography--which he placed in the historically unprotected (and presumably highly malleable) category of "speech integral to criminal conduct." 

The clear signal here is that the Court is unlikely to recognize any new categories of unprotected speech in the near future, and  if and when it does recognize an unprotected category,  it will only be because history authorizes it.  As Roberts wrote,  "Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such on our case law. But if so, there is no evidence that "depictions of animal cruelty" is among them."  For all practical purposes, Roberts seems to suggest,  the categories of unprotected speech are closed. 

Once the Court decided that "depictions of animal cruelty" receive full First Amendment protection, the outcome of the case was never really in doubt.  The federal statute, as written, criminalized not just depictions of animal torture but also depictions of the wounding or killing of animals.  The Court noted that the statute could be used to prosecute purveyors of hunting videos. The Court therefore concluded that the statute was overbroad, despite its exemption for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." (emphasis added).  The Court observed, and rightly so, that "serious value" cannot be the test of First Amendment protection, for "[m]ost of what we say to one another lacks . . . serious value."

The Court also rejected the Government's promise that it would only prosecute cases involving extreme cruelty, in the process emphasizing how deeply it has bought into the libertarian conception of the First Amendment.  "[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige."  [Full disclosure:  I've also bought into this conception.  See my article, Nobody's Fools.]  However, the Court explicitly left open the possibility that a narrower statute limited to depictions of extreme animal cruelty might survive constitutional scrutiny.

Alito dissented. 

Posted by Lyrissa Lidsky on April 23, 2010 at 12:05 PM in Constitutional thoughts, First Amendment | Permalink | Comments (1) | TrackBack

South Park, Comedy Central, and "warnings" of violence

South Park is in trouble with some Islamic groups, in a way that has turned a bit ominous. And creators Matt Stone and Trey Parker appear to be in a creative spat with Comedy Central.

Last week, the show marked its 200th episode with a very meta show in which many or most of the characters from throughout the show's history appear, among them Tom Cruise and every other public figure who ever has been ridiculed or satirized on the show. Cruise and company threaten a class-action against the town, unless the boys can bring Muhammad to South Park, which residents fear would result in the town being bombed for showing the Prophet. The celebrities really are looking to steal the "secret" that makes Muhammad immune from public ridicule, an obvious reference to the threats resulting from the Danish cartoons several years ago (a subject that the show has tackled before). Muhammad is shown with a black rectangular box marked "Censored" over him, then is shown in town inside a trailer and standing in a bear costume--all very obvious attempts to aoid "depicting" the prophet.

No good. The day after the episode aired, a group called Revolution Muslim posted a statement on its web site saying that the show had insulted Muhammad (I guess by talking about depicting him); that what Stone and Parker had done was stupid; and that they probably would wind up like Danish director Theo Van Gogh, who was killed by an Islamist militant in 2004. The statement also said "This is not a threat, but a warning of the reality of what will likely happen to them." Neither the FBI nor New York police are treating the statement as a criminal threat-- and it probably is not punishable as a true threat.

So this week, in the conclusion to the cliffhanger (almost certainly completed this week, after the group's warning), they went one step further, keeping Muhammad under the black box, bleeping all mention of Muhammad's name, and revealing the person in the bear costume to actually be Santa Claus. But now the controversy shifts to Comedy Central. According to a statement from Parker and Stone, the network bleeped out additional material, including a final speech about fear and intimidation that did not mention Muhammad at all. In addition, Comedy Central has refused to give them permission to stream the episode (uncensored, presumably) on their own web site.

I long have said that, within the scatological humor (which I sometimes find too much, personally), South Park is among the most brilliant and consistently funny and accurate socio-political satire around. Partly this is because they hit just about everyone (thus avoiding the charges of political bias often aimed at Stewart or Colbert) and partly because they have been relatively fearless. And I obviously am no fan of the efforts of some Muslim groups to threaten (or warn about) violence against speech they do not like by people who do not share their beliefs as a way to make speakers (and especially corporate forum owners) back down.

But on this controversy, I am particularly angry with Viacom (which owns Comedy Central) for caving in, although there is a question of why they made further changes to the episode. Were they worried about violence because of the threats/warnings? Or was it an effort not to offend or further anger anyone? I am troubled either way, although more so by the latter.

It is obviously wrong to give in to the lowest common denominator of the most-easily offended listener and adopt that as the level of "appropriate speech." In any event, what did they expect? This is what Parker and Stone have been doing for fourteen years. If Viacom is going to support Stone and Parker when they fun of everyone else--appearing in this episode including Jesus (shown watching internet porn), Joseph Smith, Buddha (shown snorting cocaine), and Pope Benedict--it is hypocritical to stop here or declare this one issue off limits. Assuming the Stone/Parker version is true, I am especially troubled by the bleeping of the final "moral" of the story, which (I am guessing) contained a political message directed at an obvious target but nothing that should be deemed "offensive". Hopefully Viacom recognizes the irony of allowing fear and intimidation to cause it to censor a speech criticizing . . . the use of fear and intimidation.

The Stone/Parker statement ends with "We'll be back next week with a whole new show about something completely different and we'll see what happens to it." Indeed.

Update:

It appears (H/T: Huffington Post) that Comedy Central's decision to further censor the episode was done out of concern for Stone and Parker and not to avoid causing further offense. But this also is not the first time Comedy Central has stepped in when Stone and Parker have taken shots at the Islam/depiction of Muhammad issue.

Anyway, let's let Jon Stewart have the last word:

The Daily Show With Jon StewartMon - Thurs 11p / 10c
South Park Death Threats
www.thedailyshow.com
Daily Show Full EpisodesPolitical HumorTea Party

Posted by Howard Wasserman on April 23, 2010 at 10:00 AM | Permalink | Comments (1) | TrackBack

Tax Protestors Follow-up

I mentioned last week that Peter Hendrickson, one of this year's most noted tax protestors, was due for sentencing. He got a bit less than three years.
The government had asked for more, seeing as how Hendrickson is a major promoter of a fraudulent tax scheme, who boasts on his own website that his followers have procured more than $10 million in refunds using his method (he posts copies of the refund checks, making them easy for the IRS to find), and who, according to the government, may have induced over 10,000 people to file false refund claims. But, somewhat pathetically, even by the government's calculation, the total amount of taxes (including income, Medicare, and Social Security taxes) that Hendrickson himself tried to avoid over a seven year period (even considering his wife's income too) amounted to only a little over $100,000. That's about $14,300 a year. Working back from that figure, one can see that all of Hendrickson's efforts (his books, his website, etc., not to mention his day job) weren't pulling in that much dough. The result was that the sentencing guidelines recommended a fairly low sentence for him, and the judge chose not to depart upwards.
 
All that work, and not much to show for it. If you're going to pursue a career in fraud, one would think think the idea would be to make it pay. But in Hendrickson's case, the same amount of effort, if directed at something productive, could surely have earned a much better living. Ironically, Hendrickson was lucky he hadn't been more successful, or he'd probably find himself up the river for more time.
 
And Hendrickson's followers? Now that their guru has been convicted and sentenced, have the scales fallen from their eyes? Do they see him revealed as the fraud that he is?
 
Not at all. A specific court ruling against Hendrickson's theory means nothing to them. It only confirms their belief that Hendrickson "relies on and invokes NOTHING but very WELL-SETTLED LAW." The law, they continue to insist, is all on Hendrickson's side, and he lost because the "fedgoons and the shills" were conspiring against him. It's amazing how impervious to facts some people can be.

Posted by Jonathan Siegel on April 23, 2010 at 08:11 AM | Permalink | Comments (2) | TrackBack

Thursday, April 22, 2010

Disappointing Foray into Agency Notice & Comment

Even though I don’t teach administrative law, I’m constantly telling my students how important agency regulation is, and I always encourage them to take an administrative law course.  So when the U.S. Sentencing Commission published a request for public comments on the topic of a paper I published two years ago, I decided to submit a comment encouraging the agency to change its regulation.

 

The regulation on which the Commission sought comment involves whether military service and other personal characteristics of a criminal defendant ought to be considered at sentencing.  The existing regulation states that such characteristics are “not ordinarily relevant” in setting a defendant’s sentence.  My comments stated that such characteristics are relevant to sentencing and ought to be treated accordingly.  The Commission recently posted an official press release (hat tip: Doug Berman) stating that it was amending its previous regulations because it:

recognize[ed] that these factors may be relevant to the sentencing process courts undertake. Previously, these factors were deemed as ‘not ordinarily relevant’ in determining whether a sentence outside the guidelines was warranted. The amended policy statement provides that these factors may be relevant if they are relevant to an unusual degree and distinguish the case from the typical case. This amendment reflects the Commission’s extensive review of offender characteristics that included reviewing case law and relevant literature, receiving public comment and hearing testimony, and conducting extensive data analyses.”

 So, at this point you might be wondering why I feel disappointed in the process.

 

The reason is that the Commission appears not to have  actually amended the regulation.  The U.S. Supreme Court in Koon v. United States, 518 U.S. 81 (1996), interpreted the Commission’s regulation labeling these personal characteristics as “not ordinarily relevant” to mean that a sentencing court may rely on a such a factor “only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.”  This interpretation of the previous regulation seems no different from the Commission's new language that “these factors may be relevant if they are relevant to an unusual degree and distinguish the case from the typical case.”  There simply isn’t much daylight between something being present to an“exceptional” degree and something being present to an “unusual” degree. So it seems to me that the Commission did nothing more than adopt the interpretive language from Koon.

I’m disappointed that the Commission not only failed to change the substantive standard for when such characteristics matter at sentencing, but also published a misleading statement indicating that it made such a change.

Posted by Carissa Hessick on April 22, 2010 at 05:30 PM in Criminal Law, Life of Law Schools | Permalink | Comments (1) | TrackBack

Birther Bill Back

The Birther Bill is back. After making no progress at the federal level (H.R. 1503 was referred to a committee more than a year ago and hasn't been heard from since), the Birther Bill concept has devolved to the states. Arizona's House of Representatives just passed a version that would require presidential candidates to file proof of eligibility -- i.e., age, residency, and natural born citizenship -- to get on the ballot in that state.

Some editorialists are quick to dismiss Birther Bills as "fringe lunacy." And yes, in some sense, they are. It is pretty crazy, in the face of all the evidence, to continue to believe that President Obama is ineligible to serve because he is not a natural born citizen. And there is little doubt that the motivation behind the Birther Bills is to embarrass the President and to suggest that he is ineligible (or at least to appease those who adhere to this kooky belief).

But on the other hand, as I've observed before, if we could somehow detach the Birther Bills from the absurd controversy about President Obama particularly, and think of them in the abstract -- imagine, say, that they came up 50 years ago, or 50 years from now -- we would see that they are actually good public policy. The Constitution does require that the President be a natural born citizen at least 35 years of age. The Constitution should be enforced. There is a strong argument that the courts could not enforce the presidential eligibility requirements. Therefore, some other enforcement mechanism is necessary.

The mechanism we have now -- do nothing, and just hope that the requirements are complied with -- actually works pretty well. The tremendous publicity associated with any preisdential campaign tends to ensure that no one would even try to get around these requirements, because they would almost certainly be caught. But while it's not likely that a problem would arise that couldn't be ferreted out by the current system, the problem, if it did arise, would be very significant. So why not take some extra steps to prevent it? Especially when the necessary steps would not be particularly burdensome -- candidates would just have to file proof of eligibility with appropriate state or federal authorities.

So while the current situation is not exactly a crisis calling out for a remedy, it does pose a small risk of a big problem, and requiring presidential candidates to file proof of their eligibility seems like a good way of avoiding problems. (Actually, repealing the eligibility requirements would be even better, but so long as they are in the Constitution they should be enforced.)

Could this be done at the state level? Some people have suggested that states the lack constitutional authority to enforce the presidential eligibility requirements. But the Constitution gives the states great control over selecting their presidential electors -- it just says that each state shall appoint its electors " in such Manner as the Legislature thereof may direct." States don't even have to hold presidential elections if they don't want to. So I would think they would have great control over the manner of holding the election, if they choose to have one, and it's hard for me to see how a state could be faulted for refusing to put on their election ballots someone who isn't eligible for the office sought.

Posted by Jonathan Siegel on April 22, 2010 at 01:10 PM | Permalink | Comments (3) | TrackBack

Are bartenders fiduciaries?

Two stories over the past weeks have featured bar patrons leaving behind items of some significance after paying their tabs and heading for the taxi stand.  As James Grimmelman wrote in this space on Tuesday, an Apple employee may have walked off without a prototype future iPhone.  Earlier this month, a member of the production crew for the final installments of the Harry Potter films left a copy of the shooting script at a bar.

When such items are found (and sold?) by fellow patrons, we get into issues of lost and abandoned property, theft, and the like.  We also wonder about the actions available for employers against employees who handle such sensitive property without the requisite level of care. 

But what about the legal obligations of the bartenders? If friends are fiduciaries, why not friendly barkeeps?  Do patrons put trust and confidence in those behind the bar?  If a bartender finds a lost item of value, what obligations does s/he have to safeguard and protect the item?  To maintain confidences regarding what was found?

Sadly, the case law does not seem to support this proposition.  Largely, such cases revolve around whether barkeeps owe a duty to intoxicated patrons to stop them from driving.  Courts have generally found that no "special relationship" exists between a barkeep and patrons arising simply from the service of alcohol. See, e.g., Welton v. Ferrara, 2009 WL 1312569 (Conn. Super. 2009).

Certainly, one hopes that if any bartenders find a stack of first-year contracts exams left behind at closing time, they'll exercise an utmost degree of care.

Posted by Geoffrey Rapp on April 22, 2010 at 11:36 AM | Permalink | Comments (2) | TrackBack

Of Banks, Buy-Outs, and Brontosaurs

Although major financial reform now looks like it will happen, there doesn't seem to be any plan to reduce the size of the largest financial players.  What brings this within my purview is that one proposal for curbing bank size is the so-called "bank tax," such as the one sketched out recently by International Monetary Fund staff.  Actually, the IMF calls it an "FAT," which is supposedly short for "financial activities tax," but let's just agree now to call it the "fat-cat" tax.

The idea is that the fat-cat tax is basically a pigouvian tax on excess risk.  To the extent that financial institutions earn excess profits by disregarding the risk they generate for other parties, the fat-cat tax recoups those "rents."  So a bank that is profitable because it knows it is "too big to fail" and so takes dangerous risks will pay back a large share of those profits, perhaps also giving it incentives to become smaller and safer.

I'm down with that, but this story totally fails to mention the dinosaurs.  Why were plant-eating dinosaurs so honking big?  Imagine the mega-tons of plants they had to eat every day just to move around.  One possible answer is that being ginormous also made them hard to kill: there weren't that many predators big enough to bring them down.  The same is true of firms.  An important source of "discipline" for managers is the possibility that, if they do a bad job, the firm will be bought out and they'll be sacked.  But really big firms are very tough to buy -- they require massive amounts of leverage (and therefore massive amounts of risk) to acquire.  So bank managers have lots of incentives to get too big, even aside from the systemic risk / "too big to fail" problem.  The fat-cat tax would help slim down the banks, and maybe make them better governed, too.

Disclaimer  about the subject line for dinosaur geeks: yes, I know we're supposed to call it the "apatosaurus' now.  But come on, that name stinks.  "Apatosaurus" sounds like a cute little critter you'd pat on the head while it nuzzled you.  A brontosaurus makes you tremble in awe.  Which is how I prefer my thunder lizards, thank you.   

Posted by BDG on April 22, 2010 at 11:27 AM | Permalink | Comments (0) | TrackBack

Justices struggle with civil procedure

The Court heard arguments yesterday in Krupski v. Costa Crociere dealing with relation back of amendments under FRCP 15(c). I am not particularly good at counting noses or predicting based on oral argument, but a couple things jumped out at me.

1) The Justices are not great at the minutiae of civil procedure. Not surprising, I guess, since only one of them has any trial-court experience and that was fifteen years ago. Still, there were a lot of questions that seemed to treat the limitations period as the relevant time frame, rather than the 120-day period that begins from the filing of the complaint--a mistake my 1Ls know not to make.

2) The Court was more focused on the particular, peculiar facts of this case than I might have expected. Neither party was asked what I thought would have been the $64 question--what does "mistake concerning the proper party's identity" mean? There was a lot of talk about mistakes and whether one can make a mistake even having full knowledge (including a Breyer-esque hypo about not listening to your wife when she gives you directions), but nothing tied to the actual language of the rule.

I thought they might get there when the Chief proposed a hypo in which the plaintiff did not know which one of two identifiable, unrelated actors was responsible and sued the wrong one, suggesting (correctly, I believe) that would not be a situation in which relation back would be allowed. Justice Kennedy followed up with the proposition (not an unreasonable one) that Rule 15 is only about clerical errors (calling the right person/entity by the wrong name), not the situation here of picking the wrong person/entity. Otherwise, there would be a mistake in this case (where, after a reasonable inquiry, the plaintiff should have known which corporate name should have been sued) that would be excused, but not in the Chief's hypo (where a reasonable inquiry would not have enabled the plaintiff to know).

3) Defense counsel got the hardest time over why on earth the plaintiff would have knowingly sued the wrong party, other than because she made a "mistake." No one would do something like that deliberately, so there must have been a mistake. This is consistent with some lower courts, which have said that a mistake comes any time a plaintiff fails to sue a potentially liable defendant. The answer is that while this is a mistake, it may not be a mistake "concerning the proper party's identity." But nobody (counsel or bench) made that point, unfortunately--because it is the key to a proper interpretation of the Rule.

4) Defense counsel also got a hard time from Justice Scalia about the relevant time period and whether a defendant could lose knowledge as the 120-day period goes along. The defense argument was that, even if it believed there was a mistake at the outset, the plaintiff's delays in amending (several months passed, beyond the 120-day period) suggested to them that there had been a conscious choice to sue the wrong party and not a mistake. Scalia insisted that defendant's knowledge "within" the period was all that was required, not knowledge "throughout" the period.

Again, I am not good at predicting. But I could see the Court handing down a fairly broad interpretation of "mistake." Either way, this is another area of civ pro that will not be the same as the year before.

Posted by Howard Wasserman on April 22, 2010 at 10:32 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (10) | TrackBack

Wednesday, April 21, 2010

Accountability and the Prawf...

I just spent some time (though I'm embarrassed to say just how much or little) writing up my "annual letter" to the dean at FSU, which we're all required to do, regardless of seniority. The letter (along with relevant supporting material, i.e., drafts/teaching evals, etc) is supposed to capture the past year's efforts at teaching, scholarship, and service to students/school/the profession.  Though writing the letter and assembling the materials can be a bit of a pain, I really do think it's a good practice and I'm glad to do it.  I wonder, though, if it's a unique practice. Does your school have it? Just for juniors? What other kind of accountability mechanisms are out there? Aside from tenure, I mean.

Posted by Dan Markel on April 21, 2010 at 09:55 PM in Teaching Law | Permalink | Comments (11) | TrackBack

A New Birth(er) of Federalism?

Here is a link to an article discussing bills moving through several states that prohibit placing the name of a candidate for President on the ballot unless the local secretary of state has been given sufficient evidence that the candidate is a natural born citizen.  I know many of you are looking for practice exam questions, so, constitutional law students: discuss. 

Posted by Paul Horwitz on April 21, 2010 at 01:59 PM in Paul Horwitz | Permalink | Comments (5) | TrackBack

What Animal Cruelty Videos May Tell Us About Teen Sexting

While researching a recent article on the increasing penalties associated with possession of child pornography, I kept coming across references to teen sexting.  (The term “sexting” refers tothe act of sending sexually explicit messages or photographs electronically, primarily between mobile phones.”)  As commentors on PrawfsBlawg and elsewhere have noted, there have been a number of reports that local prosecutors are using child pornography laws — which carry very hefty penalties — to go after teens who are creating, receiving, or forwarding sext-messages.

In response, several legislatures have proposed (and in some cases enacted) legislation that removes sexting from the category of child pornography and provides for lesser criminal penalties.  I’ve been mulling over both the charging decisions of local prosecutors, as well as these legislative decisions, and I think that I might write about this topic over the summer.  My thoughts are still in a relatively early stage, and so I’d love to get input from fellow Prawfs readers on what I’ve come up with.  In particular, I’m interested in your thoughts about how some language from yesterday’s opinion in the Stevens animal cruelty video case may affect the constitutional status of sexting.

First, Stevens seems to suggest that teen sexting, unlike child pornography, may be protected by the First Amendment.  The opinion contains the following description of Ferber — the case that initially held that child pornography is not protected by the First Amendment:

When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. In Ferber, for example, we classified child pornography as such a category, 458 U. S. at 763. We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimisId. at 756–757, 762. But our decision did not rest on this “balance of competing interests” alone. Id. at 764. We made clear that Ferber presented a special case: The market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.” Id. at 759, 761.  As we noted, “‘[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’” Id. at 761–762. Ferber thus grounded its analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.

As I read this language, the Court is explaining that child pornography falls outside of First Amendment protection, not because the government interests outweighed the individual interests at stake, but rather because images of child pornography are the product of child exploitation or sexual abuse — an argument that the Court made (at least implicitly) in Ashcroft when striking down the federal ban on virtual child pornography.  Because children cannot consent to sexual activity, all sexually explicit pictures of children are considered non-consensual, and thus any sexually explicit image of a child is necessarily a product of child sex exploitation/abuse.

In contrast to the prototypical image of child pornography — i.e., an image taken by an adult of a child — teen sexting is not the product of child sex exploitation or abuse.  That is because it is an image that the teen takes of him or herself, and his or her ability to consent to engage in sexually explicit conduct with an adult (even if it is just the taking of pictures) is irrelevant.  [I am, of course, leaving to one side a teen who takes such a picture of him- or herself because of pressure from peers — the analysis in that case might be different.]  We might argue that the teen ought not have taken the picture, and if the teen is under the age of consent in his or her jurisdiction perhaps they have no affirmative right to sexual autonomy that would include taking such a picture; however, assuming no involvement by adults in the production of the image, then I simply don’t see how the image can be considered a product of child sex exploitation or abuse.  In short, I don’t see how prosecutors can charge teen sexting under child pornography laws.

Second, the Stevens opinion seems to cast some doubt on whether legislatures can outlaw sexting at all if the person who is taking the images of him- or herself is above the age of consent. Section III.B of the opinion contains the Court’s explanation about how the statute’s prohibition on depictions of animal cruelty includes many images of lawful activity.  In particular, the opinion focuses on the fact that the statute outlaws possession of an image if the activity portrayed is illegal in the state where the image is possessed, even if the activity portrayed was legal in the jurisdiction when the image was created.  Ultimately, the opinion doesn’t hold that an image is protected by the First Amendment so long as the activity portrayed was legal at the time the image was produced; however it does describe such images as “presumptively protected by the First Amendment” and characterizes prosecutions for the possession of those images as “presumptively impermissible applications” of the statute.

It seems to me that if a state’s age of consent law authorizes a sixteen year old to consent to sexual activity, then the ability to take sexually suggestive pictures of herself is a lesser included version of that right to sexual autonomy.  And, arguing by analog to the Stevens opinion, sexting images are presumptively protected by the First Amendment,” and thus ought not be subject to any criminal penalties, even if those penalties are not as severe as those associated with child pornography charges.  If I am correct about this argument by analogy to Stevens, then perhaps the federal statute defining child pornography as including images of any person under the age of 18 needs to be re-thought, since the most U.S. states set their age of consent at 16 or 17.

Now, I’m sure that there are a number of issues that I am missing with this analysis.  For example, teenagers may not have the same rights of expression or sexual autonomy as adults, age of consent laws notwithstanding, and thus their First Amendment rights to create and possess these pictures may not receive the same protection.  Or perhaps because these images are being sent via the internet or wireless networks, there may be some other hook that allows government regulation.  In any event, I find the topic really interesting and if anyone is will to share their thoughts or impressions either in the comments thread or via email, I’d really appreciate it.

Posted by Carissa Hessick on April 21, 2010 at 01:53 PM in Constitutional thoughts, Criminal Law, First Amendment, Information and Technology, Web/Tech | Permalink | Comments (3) | TrackBack

More on Prestige vs. Principle

Micah Schwartzman offered some thoughtful arguments against my earlier, somewhat impassioned post arguing that if progressive (or conservative) law students are dispirited by the lack of proper "heroes" on the Supreme Court, perhaps that's a good thing, inasmuch as they ought to be focusing their efforts on other paths to genuine change, especially local elective office.  We've had some of this debate before, and I'm always grateful for his commentary and disagreement; some of his views can be found here.

As in many such arguments, there are deep underlying disagreements but also much common ground, and we shouldn't lose sight of either.  Here's some of the common ground.  I agree with Micah that hoping for role models on the Suoreme Court or the lower federal courts, and working for change at a more local and political level, are not mutually exclusive.  Presumably, Micah agrees with me that that latter is a good thing as well.  And I agree with him that "legal victories have the power to inspire people, to create role models, and to build hope," and that it is possible to "be a democrat (in the small "d" sense) and a popular constitutionalist, and still think that it'd be good to have some friends in high places."  And I believe he agrees with me that if we are more chastened today about the importance of judges as opposed to other vehicles for social change, that is not a bad thing.

But I think Micah is too optimistic about how, and how well, these two impulses -- to do good and to do well, to hope for friends in high places and to work for change in "low" places -- coexist, especially in elite circles like those that we are, to be frank, both talking about.  Micah writes: "I don't see why progressive law students can't (1) hope that their heroes are put on the bench at whatever level, especially since the other side has done a pretty good job of it over the last 25 years, and (2) plan careers that aren't aimed at landing them such positions. My sense is that the vast majority of progressive students are in exactly this position."  Of course, in practice, most progressive (or conservative) law students don't end up on the Supreme Court, and some of them -- but not enough! -- end up in the hinterlands or in local elective office.  

But it makes a difference what goals they set for themselves and who they view as role models.  I think Micah overstates things to say that a sufficient number of them "plan careers that aren't aimed at landing them such positions."  The path to career advancement, for both progressive and conservative law students, often is not aimed at working for grass-roots change at the local political level and in non-elite institutions and geographical locales.  Some of them may end up there, of course; but the typical path to shoot for is a long (or, if one can manage it, a short) march through the usual-suspect elite institutions.  I don't think that's unrelated to the role models they choose -- and to the career paths that their role models, whether at the Federalist Society or the ACS, explicitly and implicitly encourage them to take.  Maybe some of them end up taking the road less traveled, either by design or by default (especially by default).  But I think we would be better off, and see a higher yield in terms of law students doing genuinely useful things, if we encouraged a very different mind-set, one that treats those "low places" as the highest model of aspiration, and the "high places" as of decidedly secondary importance.  The fact that we talk, naturally enough, in terms of "high" and "low" places, the fact that Micah has to write, "No one is saying [that groups focused on something other than the elite circles of the Supreme Court and a few other institutions] are unimportant or don't have a role to play," suggests something of the impact on our ambitions that our focus on elite careers and institutions may have.

Micah has more to say, and I encourage readers to take a look at his comments.  As I said, there's common ground, but also deep disagreement.  Without trying to enlist him without his consent, I think I take a more Rick Hillsian view of things.  I am reminded of my brief stint in journalism, when I went to DC to do a bunch of informational interviews with various luminaries in the field.  The famous Johnny Apple, of the New York Times, told me that if I wanted to be a good and useful journalist, I should stay the hell away from Washington: too many people want to start their careers there, rather than picking up skills and doing useful things elsewhere and maybe, maybe, ending up in the capital.  Of course, I disregarded his advice.  And of course, despite Micah's optimism, many elite law students also disregard the possibility of taking the path to change through the "low" places; they would, understandably, rather be a small cog in a fancy big wheel, like the federal appellate courts or some big firm that mixes 95 percent remand oppositions with 5 percent important pro bono work.  Of course, it was easy for Apple to say what he did -- his own path involved boarding school, Princeton, Columbia, and the Wall Street Journal -- and it's easy for me to say what I have, although my own path has involved big law firms and so on.  But Apple was right.  Countless numbers of talented people have been wasted, relatively speaking, in elite institutions, compared to the good work they could have done in places that truly needed them.  To that end, even if we understand that we won't all end up in the same place as our heroes, it makes a difference to our life-plans who our heroes are in the first place.  It strikes me that the most important figures working for progressive or conservative social change can be found elsewhere than in the same few elite institutions, and that a focus on this might affect how we think about the "dispirited" status of elite ideologically oriented law students.      

Posted by Paul Horwitz on April 21, 2010 at 11:26 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Watching cases no one else cares about

While everyone (including me) is talking about yesterday's decision in the dog-fighting case or Monday's oral argument in Christian Legal Society, I am all about this morning's argument in Krupski v. Costa Crociere, a case from the Eleventh Circuit that deals with relation back of amended pleadings under Rule 15(c) and what constitutes a "mistake concerning the proper party's identity." In part this is because I helped moot the respondent's attorney here in Miami.

A plaintiff who was injured while on a cruise ship initially sued the cruise line rather than the owner/operator of the ship, then sought to amend her pleading after the limitations period has expired (and apparently after a lengthy delay in which she (or her attorney) new the cruise line was the appropriate defendant). The Court granted cert, I assume, to help define with some precision what constitutes a "mistake concerning the proper party's identity." This continues to flummox courts; some courts read it so narrowly as to make amendment impossible, while some basically read the mistake requirement completely out of the rule. I have had a long-standing interest in this tied to the issue of pleading against John Doe police officers in § 1983 actions.

Anyway, I may be one of the few people anxiously downloading the transcript when this one is over.

Posted by Howard Wasserman on April 21, 2010 at 08:30 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (3) | TrackBack

Dogfighting, child porn, and unprotected categories

Lyrissa mentioned yesterday's SCOTUS decision in United States v. Stevens, striking down a federal statute prohibiting the making, sale, or possession of videos depicting animal cruelty.

I was most intrigued by the majority's refusal to recognize a new category of unprotected expression. The Court insisted that unprotected categories are largely defined historically--those categories historically and traditionally excluded from the realm of protection. Beyond these, the Court disclaimed a "freewheeling authority" to define new categories on a simple categorical balancing of the evil to be restricted against the expressive interests. This is a good thing, in my view; we certainly do not need new categories of unprotected expression. And it indicates a broadly libertarian attitude about free speech--somewhat surprising from Justice Scalia.

The problem (and a key point of departure between the majority and Justice Alito's dissent) is what to do about child pornography, a new, non-traditional category of unprotected speech. And here is where, while I agree with the result, I do not believe the majority did a good job.

The Court recognized child pornography (defined, generally, as sexually explicit material made using actual minors) as an unprotected category in New York v. Ferber in 1982. The rationale for the category was a dry-up-the-market theory: Because it was impossible to find and punish the perpetrators of the underlying misconduct (child sexual abuse), the only solution was to close the distribution network for the material and eliminate the demand for the material, thereby eliminating its production and thus the underlying harmful conduct. As Justice Alito emphasized in his dissent, the identical rationale applies as to the "crush videos" and dog-fighting videos that Congress targeted with this statute.

The majority's answer is that the commercial market for child pornography was "intrinsically related" to the underlying child abuse, an "integral part of conduct in violation of a valid criminal statute," and a "proximate link" to the underlying crime. Thus, Ferber and child porn could be linked to a previously recognized, long-established category of unprotected speech--"speech integral to criminal conduct." Three problems here. First, the Court still did not explain why the same thing is not going on here. If there is a proximate link between child porn and the underlying abuse such that the speech is integral to the conduct, why is there no proximate link between crush videos and the underlying animal cruelty? Second, as Mike Dorf argues, the "speech integral to criminal conduct" category (and there is some debate whether it truly is an appropriate independent category) applies where the illegal conduct is carried out through speech (e.g., a crime boss ordering a murder or a true threat), not where post hoc expression somehow makes the illegal conduct economically feasible. Third, Dorf suggests that the Court was simply upholding Ferber on stare decisis grounds, although without taking the necessary rhetorical step of acknowledging that decision was wrong in the first instance.

Of course, I appreciate the Court's reluctance to extend Ferber or the dry-up-the-market rationale. It has been a cornerstone to many anti-pornography arguments, particularly those targeting mythical "snuff films." And the underlying rationale, taken seriously, could be applied to a whole host of expression and to create a range of new unprotected categories. So, again, I am cheered by the Court's unwillingness to wield (or acknowledge) a broad power to create new categories or to defer to the legislature's creation of such new categories.

Posted by Howard Wasserman on April 21, 2010 at 08:00 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4) | TrackBack

Padilla v. Kentucky and Farewell

Thanks to Dan and the rest of the Prawfs crew for  allowing me this extended visit.  I leave with a link to a short piece, Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction.  My esteemed collaborator, Margy Love, did most of the work on this.  We have been working on the treatment of collateral consequences by the criminal justice system for 10 years, at the ABA and Uniform Law Commission, and based on Padilla v. Kentucky, it appears that the issue is not going away any time soon.

Posted by Marc Miller on April 21, 2010 at 04:41 AM | Permalink | Comments (0) | TrackBack

Tuesday, April 20, 2010

USSC strikes down law re depictions of animal cruelty

The Supreme Court has handed down U.S. v. Stevens, the dog fighting case.   The Court struck down as overbroad the federal law barring depictions of animal cruelty.  Chief Justice John Roberts wrote the majority opinion, in which he rejected the argument for making animal cruelty an unprotected category of speech akin to child pornography. Justice Alito dissented.  I'll throw in my two cents on the case after reading the opinions. In the meantime, check out this analysis on SCOTUSblog.

Posted by Lyrissa Lidsky on April 20, 2010 at 04:27 PM | Permalink | Comments (3) | TrackBack

Haunted Houses (part, whatever)

How do you know you are middle class in America? Do you open your wallet and look at how much cash is there (my Uncle Lou Jacobs used to carry around huge wads of twenties, fifties, and hundreds,way back in 60s, but he was a Purple Gang associate and may have been unusual even for his era)? Do you look at your family pictures and think with pride how many generations of your lot went to college? Do you check your employee ID, health insurance membership or social security card?

I think most Americans (at least until the music stopped in 2008) looked out at their home, probably through the car window, on the way to work at 4:30 am, or on the way back at 9:15 pm. Does my home stand physically apart from my neighbors? Does it have a bit of green between us? Does it abut a cul de sac, preferably or at least a curving suburban lane, entered through a drive way, with perhaps a basketball hoop? And most of all, do I "own" it (even if that means I own 5 or now perhaps -50 percent of it)?
For too many Americans, being able to answer yes to most of those questions is what assured them they were middle class, no matter how lousy (or how many) jobs they had to work, no matter how far they had to commute, no matter how distant any amenities like parks, libraries, museums, or shops might be from their door.

Here in the Bay Area, where prices to own a home on one side of the Bay or the other long ago went beyond starter range for most middle class families, pursuing that middle class status meant locating in places like Pittsburgh and Antioch, where subdivisions rapidly filled in the canyons in the dry hills behind San Francisco and San Pablo bays. Its a place now haunted by the ruinous financing schemes behind the housing bubble. But it is also haunted by the unsustainable life styles that government promoted in this country right up to the crisis, an in the name of producing more secure "crime free" communities. The perverse relationship that Americans have developed to their houses (that has gone along with a loss of serious political movements directed at jobs) has a terribly dark side to it. Its a dark side of methamphetamine, of domestic violence and child abuse, of heart attacks and bankruptcies. And occasionally a twilight zone of unspeakable sadness. Case in point, penned by veteran crime reporter Henry Lee in today's SFChronicle, "Antioch baby girl dies after being left in car."

Sofia Wisher, 7 months old, was sitting in her car seat in her parents' Toyota station wagon when the family pulled up to its Antioch home late Saturday after doing laundry at a relative's home. Each parent thought the other would be taking Sofia inside.

Tragically, neither did....

The parents, both of whom work two jobs, went to bed about 3 a.m. Each saw the door to their infant's room closed and assumed the other had put her in her crib, Orman said.

The parents told police that Sofia was a "light sleeper, so it wasn't their practice to be going in there all night checking on her, because she'd wake up," Orman said.

After Sofia was found dead, Contra Costa's Child Protective Services agency placed the couple's 2-year-old daughter into protective custody, authorities said.

Cross posted at Governing through Crime

Posted by Jonathan Simon on April 20, 2010 at 01:24 PM in Culture, Jonathan Simon | Permalink | Comments (1) | TrackBack

Please Donate to Team Horwitz and the March of Dimes March for Babies

My family is the local "ambassador" family for the annual March for Babies, conducted by the March of Dimes.  The proceeds go to research and resources for babies, and families of babies, who are born prematurely or have birth defects.  It's a cause near and dear to my family's heart, because both of our children were born extremely prematurely and spent a combined six months in the NICU before coming home.  My wife and I were lucky: we had lots of resource and support, accommodating employers and helpful friends, and our children enjoyed very good medical outcomes.  Not everyone is so lucky, and babies and families who go through this experience need all the help they can get.  Please consider donating to this worthy cause.  The donation page is here, and here are some thoughts from my wife, Kelly:

When I was admitted to the hospital after my water broke with Isaac (my second go-around with premature birth), my doctor gave me an overview of the situation and asked if I had any questions. I asked, "Why me?" He sadly admitted he had no answer. I quickly got over my self-pity and turned it around: why not me? If we live in a society where premature births still happen, why not have these children born into our family, where we have insurance, education, resources and the ability to care for them. Since then, I've come to see yet another purpose to it. This experience has allowed me to speak on behalf of families and children who cannot. I say without reservation that it was the hardest thing I've ever endured, but if some good can now come from it for other babies and families, that makes it all worthwhile.

I know times are hard and we all get lots of appeals for help. I promise this is the last appeal you'll have from me (at least until the next march!). Whatever you can do is greatly appreciated - spread the word, sign up to walk, make a donation, reach out to a family you know who is going through this situation, pray or send positive thoughts. It is through our collective efforts that this problem someday will be solved and lots of families can have their little Samantha or Isaac without waiting 26 weeks in the hospital for them to come home!

Posted by Paul Horwitz on April 20, 2010 at 10:50 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Am I Hot or Not?

Last week, Larry Solum posted a first draft of his annual entry level law professor hiring survey. As in the past, Yale and Harvard were the big winners among feeder schools.  The number of new hires out of VAP and fellowship programs also remains high.  I find this survey extremely useful, in part because it provides insight into which fields of law are "hot" in hiring, and which ones are "not."

This year, the big winners in terms of subject matter appeared to be business law and criminal law / procedure.   Of the just over 100 entries reported in the first draft of the survey, most candidates have at least one identified subject.  Fourteen listed business associations, corporate law, or securities.  Twelve listed criminal law or criminal procedure.  International law (in some form) had nine and con law and civil rights had eight.  Other "hot" subjects include IP/tech/cyberlaw (seven), commercial law (six), tax law (six seven), and health law (six).

Business, commercial, and tax law aren't surprising to find on the list -- they are generally viewed as "technical" fields that require at a minimum some real demonstrated interest as a preparation for effective teaching.  Crim law and procedure may also be a field in which real world experience is viewed as particularly valuable.  I'm a bit surprised to see such high numbers for IP, and for health law.  My sense is that many schools hired IP folks about a decade ago during the dot-com years, and that the subject has been less "hot" of late.  But perhaps IP folks are now at the point where they are transitioning to a second teaching job, opening the door for entry level hires.  Health Law is also an interesting subject, in part because of its somewhat amorphous boundaries.  For example, is someone who teaches and writes in medical malpractice a "health law" scholar?  Someone who knows about the medicare anti-fraud laws or the antitrust aspects of hospital mergers?  Or are we looking for bioethicists, HIPAA privacy gurus, and the like?  Certainly, it seems odd that only one person listed "torts" as a primary subject area, given that every law school teaches that class, whereas six times as many are identified as "Health" law experts.  In her fabulous piece, "The Bulls and Bears of Law Teaching," Sara Stadler identified health law as a "strong buy": "The fundamentals make health law look even stronger in the long run."  This year's preliminary data seems to bear that out.

  

Posted by Geoffrey Rapp on April 20, 2010 at 10:41 AM | Permalink | Comments (21) | TrackBack

Next-Generation IP Exam Question Found Sitting on Barstool

I've been following this story for a few days; it recently took the jump from interesting to full-on fascinating. An Apple engineer was drinking in a Silicon Valley bar, where he left a prototype unit for a future iPhone sitting on a barstool. Among other details, it has a much higher-resolution screen and a second camera facing the front (useful for videoconferencing?). Another patron found the phone, started fiddling with it, and realized it wasn't a standard iPhone. The finder claims to have contacted Apple offering to return it but gotten lost in customer-support bureaucracy.

Here's where it gets fun. Engadget, a "gadget blog" that reviews and reports on forthcoming consumer electronics, ran some blurry photos of the unit, prompting blogospheric speculation on whether they were real. Eventually, however, it became an "open secret" that Gizmodo, a competing gadget blog with a history of paying for scoops, had acquired the unit for $5,000. Apple had remotely disabled the phone's software at that point, but Gizmodo did a careful teardown of the phone's hardware, confirming various changes from the current version of the iPhone via reverse engineering.

Yesterday, Apple's general counsel sent a letter to Gizmodo as a "formal request that you return the device to Apple." Gizmodo's emailed response:

Happy to have you pick this thing up. Was burning a hole in our pockets. Just so you know, we didn't know this was stolen [as they might have claimed. meaning, real and truly from Apple. It was found, and to be of unproven origin] when we bought it. Now that we definitely know it's not some knockoff, and it really is Apple's, I'm happy to see it returned to its rightful owner.

Now the Apple blogosphere is abuzz with debate over whether Gizmodo is a criminal receiver of stolen goods, Gizmodo's careful silence on how precisely the phone reached them, and the ethics of publishing the name of the unlucky Apple employee who lost it. On the legal side, I can see trade secret misappropriation, lost property, First Amendment, employment law, and privacy issues, and that's just off the top of my head. What say you?

Posted by James Grimmelmann on April 20, 2010 at 07:31 AM | Permalink | Comments (3) | TrackBack

The Justification/Excuse Debate in Criminal Law Scholarship (Part II)

As I mentioned in a recent post, I believe the scholarly debate about whether particular defenses should be categorized as justifications or excuses has little practical utility to offer the criminal justice system.  Although I am in a distinct minority (at least three out of the five most cited criminal law and procedure professors are enthusiastic participants in the conversation, as are many other distinguished criminal law scholars), I was comforted by the company: Kent Greenawalt wrote an important paper in 1984, contending that "Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way."  And Mitchell Berman wrote a lovely paper in the Duke Law Journal in 2003 entitled Justification and Excuse, Law and Morality, forcefully questioning the focus on justification and excuse, concluding: "To be sure, so long as scholars are going to employ it, it's important that they should get the distinction right.  But whether they should employ it at all is a separate question, one about which I am frankly skeptical."  That these distinguished experts took a contrarian position gave me confidence that the issue was at least debatable.  

So you can imagine my shock when I saw that Professor Berman had gone over to the dark side.  He posted a co-authored paper, Provocation as Partial Justification and Partial Excuse, treating the distinction he was once skeptical about as meaningful and important; I could find only a few passing and, I would say, unrepresentative references to his prior work in the new paper.  To be sure, the paper is elegant and interesting; the only problem is that it is an example of a genre I thought he had debunked.  I feel like I turned on C-SPAN  to see Ralph Nader testifying before the Senate Finance Committee as a paid lobbyist of the U.S. Chamber of Commerce, or dropped in to KFC to find Peter Singer with his mouth full of the new Doubledown sandwich.

Posted by Marc Miller on April 20, 2010 at 06:54 AM | Permalink | Comments (6) | TrackBack

Monday, April 19, 2010

More on Barnett on Health Care Reform

Over at the VC, Randy has a post sorta-responding (in an apparent emulation of a senate tradition, he refuses to name any of his interlocutors except Orin) to my earlier posts criticizing his view that portions of the health care reform legislation are unconstitutional.  His new line of argument, as I read it, abandons the position that the "IRR" or "mandate" is unprecedented in the sense that the U.S. government has never done anything like it, and instead maintains that the thousands of similar statutes on the books are framed as subsidies rather than penalties, and therefore would be seen as distinguishable by many people.  He labels my argument that there is no difference between a $10 bribe to act and a $10 penalty on omitting to act "counter-intuitive," and suggests that judges would not see them as identical.  

Randy may well be correct about the inability of federal judges to add and subtract.  But surely that is not supposed to be a normative argument.  Yes, indeed, convincing my law & economics students that opportunity costs are real costs is difficult.  But I'm not expecting economists to renounce everything they've said about utility since John Stuart Mill -- all of which is founded on the basic proposition that turning down a $10 opportunity is no different than paying $10.  And I doubt that important issues of constitutional law should or (I hope) would turn on propositions that are appealing to the ignorant but untrue.

Some more clarifications below the jump.

First, I should clarify my own arguments.  If the IRR were written as a criminal statute, making it a felony or misdemeanor to omit to purchase health insurance, I might be more inclined to agree that it is meaningfully different than subsidies for the purchase of insurance.  The stigma of criminal sanction, the lasting societal taint it carries, and the threat of imprisonment or bodily harm all seem quantitatively different to me than a simple monetary incentive.  Randy exploits that intuition, I think, in repeatedly calling the IRR a "penalty," while eliding the fact that the only "penalty" is the same one faced by anyone who turns down a subsidy.         

Next, Randy argues that the fact that some unnamed commentators have turned to the taxing power implies we think that the Commerce Clause arguments are weak.  Maybe he's talking about other people, but in my case, I wrote about the taxing power for self-serving reasons: I thought I had something to add that other people hadn't yet said.  In my essay, I'm pretty clear that I also think the Commerce power is a perfectly adequate basis for enacting the IRR, and that I'm arguing in the alternative. 

But, since he brings up the subject of what each of us is saying or not saying, I will ask again his views about the necessary and proper clause.  As I argued when I started on this subject, and as the legislation itself states, the IRR is needed in order to make possible the ban on discrimination against people with preexisting conditions.  Does Randy also think that provision is beyond the Commerce power?  (That seems a difficult argument if his claim is a descriptive or predictive one, since the Court upheld federal regulation of insurance in the 1940's -- not to mention that any such claim would also threaten the Americans with Disabilities Act, which I very much doubt any court is planning to do).  I'm no expert on the necessary & proper clause, but my understanding is that the Court is incredibly deferential to Congress' views about what steps are "really calculated to effect any of the objects entrusted to the government," as McCulloch puts it.  Does he think the IRR somehow fails that test?

For me, this silence on the necessary and proper clause is revealing.   

Finally, Randy repeats his claim that the IRR controls not how one engages in economic activity, but whether one does so.  Again, so what -- every subsidy ever enacted does pretty much the same.  But the more basic fallacy here is the suggestion that a person who elects not to buy health insurance from a private provider hasn't chosen her insurance.  Of course she has: she's chosen to rely on Medicaid, bankruptcy, the tax deduction for uncompensated medical expenses, free care, and other charity.  If she gets sick, one or more of those will help her obtain care: that's insurance.  So the IRR simply dictates which form of insurance each person obtains, and thereby reducing free riding on the existence of these other strands of the social safety net. 

Posted by BDG on April 19, 2010 at 09:16 PM in Current Affairs | Permalink | Comments (5) | TrackBack

The Justification/Excuse Debate in Criminal Law Scholarship (Part I)

I contributed to an interesting criminal law symposium published by the University of Michigan Journal of Law Reform, entitled The Nature, Structure, and Function of Heat of Passion/Provocation as a Criminal Defense.  The symposium was built around a paper by Reid Fontaine, a J.D./Ph.D. in psychology who will be my colleague at Arizona for a few more weeks, but, to our disappointment and to Florida State's delight, will join Dan Markel, Wayne Logan and rest of the criminal justice team at FSU in the fall. 

The symposium engages the distinction between justification and excuse defenses--as an indication of the popularity of the area, at least three of the five most cited Criminal Law and Procedure scholars on Brian Leiter's list have written on the topic.  Justifications relieve criminal liability for good or tolerable conduct (such as self-defense) and excuses relieve criminal liability because some characteristic as infancy or insanity renders the defendant insufficiently blameworthy to merit criminal punishment.  Reid's paper, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, presents new perspectives on understanding heat of passion/provocation as a pure (partial) excuse and examines some of the problems with treating the defense as based entirely or partially on justification.  Responses included The Values of Interdisciplinarity in Homicide Law Reform by Robert Weisberg; The Provocation Defense and the Nature of Justification by Marcia Baron; Misunderstanding Provocation by Sam Pillsbury; How Not to Argue that Reasonable Provocation Is an Excuse by Peter Westen; The Irreducibly Normative Nature of Provocation/Passion by Stephen Morse; and an insightful introduction by Kyron Huigens.   

My paper, Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction, proposed that the debate, however interesting it is to scholars, has not proved useful in framing codes or adjudicating cases. 

A general point is that if the distinction is helpful to legislatures, courts and jurors, it is eyebrow-raising that scholars have debated the contours of the concepts at least since the early 1970s with no end in sight.  Concepts that are hotly and, evidently, permanently, contested among specialists are unlikely to be the basis for usable laws to applied by ordinary lawyers, judges, legislators and jurors who do not have unlimited time to consider their meaning and application.  If step one of a plan for developing public policy is to "determine whether Professor Robinson or Professor Fletcher is right about whether justifications are objective or subjective", the difficulty in so doing suggests that the approach is impractical.

In addition, in most jurisdictions, justification defenses can be satisfied by "excuse" facts, and vice versa, for example, self-defense can be invoked based on a reasonable mistake, even if the unfortunate decedent has done nothing wrong.  That means that replacing agnostic not guilty verdicts, which make no claims as to their basis (that you have been convicted of speeding only a few times in no way implies those are the only times that you sped), with particularized explanations, may actually generate misinformation.  Because of such things as burdens of proof, that a jury acquits a defendant on a justification defense does not mean they found the defendant in fact engaged in good conduct.  (Most states now require self-defense to be disproved beyond a reasonable doubt, so if a jury believes that it is much more probable than not that the defendant committed murder, it must acquit if self-defense though unlikely was reasonably possible.)  

In addition, for the legal system to go beyond general "not guilty" verdicts in favor of more specific factfinding assumes a power to uncover historical facts and mental states of defendants and decedents that may not exist.  In a case like this one, where a schoolteacher with no criminal record is shot when found uninvited in a stranger's house, under current law, non-liability based on self-defense or crime prevention is simple and clear.  But a jury could be asked to explore and explain the underlying facts--was the intruder experiencing a medical emergency and about to ask for help, say, or was someone who never committed a criminal act in his life planning a rape or murder?  If the former, the shooting, according to some theorists, is merely excused, if the latter, the act was justified, and some scholars classify putting such cases in the right pigeonholes.  Exploration of these questions is unwise for a variety of reasons: 1) Usually, juries will have no reliable means of answering these sorts of historical hypotheticals; and 2) in any event, the utility of the information will be low, and the costs of getting it high.  There is value in allowing for incompletely theorized agreements, where six jurors can acquit based on reasonable doubt, say, and six others based on a conclusion that, whether there is prima facie liability or not, a defense applies. 

In a legal system where the harmless error doctrine makes it difficult for a defendant claiming innocence and with a demonstrated legal error to get a new trial, it is difficult to conclude that the criminal justice system should spend precious resources exploring the precise grounds of exoneration of those who are unquestionably not liable.  And if the legal system were to get into the business of declaring innocence, surely it should start with people who are so clearly not liable that they were never charged in the first place--the system can determine these cases at a lower cost and with greater accuracy.  

Posted by Marc Miller on April 19, 2010 at 08:06 PM | Permalink | Comments (1) | TrackBack