Wednesday, November 30, 2011
Dean Levi responds to The Times
Via Neil Siegel at Balkinization, Duke Law Dean David Levi, who came to deaning after a career as a prosecutor, judge, and chair of the Federal Rules Committee, wrote a response to The New York Times's recent reporting and editorializing about legal education. The Times did not publish the letter, bu Levi gave it to Siegel. Go check it out.
Regulatory Changes, Part 3: Curbing Independent Agencies' Independence(?)
Before I finish my blogging stint this month I wanted to say a couple of more things about proposed changes to the federal regulatory system, changes that are currently percolating in Congress and some of which might become law depending on the results of the elections next year. (Earlier installments in this series can be found here and here).
S. 602, the "Clearing Unnecessary Regulatory Burdens Act" (the "CURB Act), introduced by Senator Collins, would introduce an interesting and potentially far-reaching change in the federal administrative state. Among other provisions, the CURB Act would require independent agencies, e.g., the FCC and the SEC, to submit cost-benefit analyses of major proposed rules to the Office of Information and Regulatory Affairs (OIRA), the White House office that currently performs the White House regulatory review that's been in place since the Reagan Administration. To my recollection, no regulatory review order has ever required independent agencies to submit proposed rules for such analysis, though some iterations of the original Reagan order have included independent agencies in their more lenient requirements.
The bill seems to have something of an escape clause: it specifies that the Administrator of OIRA shall specify the times when each agency shall submit those cost-benefit assessments. It's at least possible that the Administrator could require independent agencies to submit those assessments after the fact, thus preserving the agency's current freedom from having the White House look over its shoulder as it considers a rule. And the bill doesn't require the White House to do anything with any cost-benefit analysis it does receive.Still, this provision of the bill has a couple of interesting implications. Most importantly, it at least moves in the direction of reducing the independence of the "independent" agencies. We may tend to think reflexively that agencies such as the FCC are independent. But there's nothing God-given about their independence: any such independence they enjoy derives from congressional decisions to insulate them from more direct presidential control. What Congress gave (usually in the early decades of the 20th century, when most of the major independent agencies were created) it can take away.
So maybe what the CURB Act suggests is a fundamental rethinking of the entire idea of independent agencies. This isn't all that surprising: in the politically polarized world we live in today, the idea of a neutral, apolitical, expert agency reaching "correct" decisions thanks to its political insulation seems less plausible as a model of government. (I'm not saying that that skepticism is a good thing, but it does reflect how we tend to think about regulation today.) Or maybe this provision is more concretely political in the sense that its proponents hope that increased cost-benefit analysis simply portends less regulation. But even if deregulation is the ultimate goal, this provision gets us there (if in fact it does get us there) by making a first move in a fundamental rethinking of the administrative state away from a reliance on politically insulated expertise. Or, if one thinks that insulation of independent agencies from presidential control simply makes them more subject to congressional control (as Justice Scalia argued in FCC v. Fox Television), the decreased insulation implicit in this provision suggests a move away from congressional influence and toward unitary presidential control.
Another interesting facet of this provision is its mandate that agencies supply this cost-benefit information to the White House. It doesn't require that OIRA do anything with that information -- indeed, insisting that the president oversee agency work-product in a particular way might raise constitutional issues. If the provision doesn't require OIRA to do anything then what's the point? At first blush, I wonder if the point is to implicitly authorize the President to assert more control over independent agencies, by restricting some of their statutorily-granted independence. If so, the provision would operate mainly to open up those agencies to future presidential control claims. In other words, perhaps the provision enables presidential control, rather than directly imposing it.
If anyone has any reflections on this interesting little provision I'd love to hear them.
Pepperdine Hosting Solicitor General Roundtable at AALS
As always, it's been a pleasure spending a month here at Prawfs. Thanks so much to all the commenters who made this month particularly lively!
But before I sign off, I wanted to let you all know that Pepperdine School of Law will be hosting a Solicitor General roundtable discussion at the AALS Annual Meeting, featuring Sri Srinivasan, Neal Katyal, Ted Olson, Walter Dellinger, Ken Starr, and, our amazing new Dean, Deanell Tacha. The title of the roundtable discussion is “Reflections on Decision Making in the Office of the Solicitor General” and will take place on Thursday, January 5th from 7-9pm in Room Madison A on the Mezzanine level of the Washington Marriott Wardman Park Hotel.
The timing is perfect - you can come to the roundtable and then make your way over to the Prawfs Happy Hour. Hope to see you all there!
Life Goes On
My month is nearly finished, but I promised you results on the Tighter White Album. Those are soon to come - but tonight is the last night to vote. You can do that here. The survey will give you two songs on the Beatles' "White Album." Pick the one you would keep if you had to keep one. Legalish payoff to follow...
Contracts and Kidnapping Redux.
As I alternate between polishing my contracts exam for next week, and fielding the inevitable flurry of email questions from students, I find myself taking breaks to check facebook and blogs and I am fascinated by the multitude of emails from students telling me that the sacred trust between kidnapper and hostages has apparently been broken in Kansas.
Apparently, a man who held a Kansas couple hostage in their home while fleeing the police is now suing them for breach of contract of all things, claiming that the couple breached the oral contract made when he promised them money in exchange for hiding him from police. The couple has asked a judge to dismiss the suit. The police were interested in questioning the man, Jesse Dimmick in connection with the beating death of a Colorado man. To use the defense often raised in my house by our 8 year old, according to Mr. Dimmick, “they started it.” The couple sued him for $75,000 for busting into their house and causing them emotional distress. In his handwritten court papers, Mr. Dimmick says, “I, the defendant, asked the Rowleys to hide me because I feared for my life. I offered the Rowleys an unspecified amount of money which they agreed upon, therefore forging a legally binding oral contract.”
We just spent 14 weeks going through offer, acceptance, and consideration, plus the statute of frauds. In fairness, we haven’t explored duress, and the story goes on to say that the couple only let him in because they knew he had a knife and suspected he had a gun. Yet according to the neighbors, the couple fed Dimmick snacks and watched movies with him until he fell asleep and they were able to escape their home unharmed. [Isn’t there always a comment by the neighbors in these stories??]
Mr. Dimmick is looking for $235,000, in part to pay for the hospital bills that resulted from him being shot by police when they arrested him. Not going to happen. But perhaps he’ll be gratified to know that he’s getting a shout out on prawfsblawg and a much friendlier version of the story [minus knife and gun] just got turned into a multiple choice question on my exam…as they say in the Mastercard ad, priceless…
Rotations and Announcements
Greetings from sunny Herzliya, where I am diligently trying to diversify our blogger pool within the Israeli legal academy and experiment with no-laptops on undergraduate guinea pigs... The new month is almost upon us and so I just wanted to welcome to the conversation here at Prawfs a gaggle of familiar voices and one new one. Appearing here for the first time is Ryan Scoville, a newish prawf at Marquette. Returning to Prawfs we have Michael O'Hear (also from Marquette); Ian Bartrum (UNLV); Brendan Maher (OKCU); Carissa Hessick (ASU); Michael Risch (Villanova); Miriam Albert (Hofstra), and Brian Galle (BC).
Soon we will be saying goodbye to our November bloggers, and for their efforts, I thank them. Some of them might linger on a bit as they get some remaining thoughts off their chests.
Some announcements in no particular order. I want to remind you to save the date and time of Thursday January 5th at 9pm and after. At that point, if you're in DC, you're invited to join us and our friends from the Co-Op and The Faculty Lounge and Feminist Law Professors, among others, for drinks. We'll be celebrating especially mightily this coming happy hour to commemorate Drexel's accreditation, and Uncle Drexel will be footing the bill, or most of it at least. More details later.
Second, please send hugs and musical (not financial) cd's to our beloved permaprawf, Paul Horwitz, who is recuperating from some surgery earlier this week.
Third, please send hugs and applause to Dave Fagundes and Michael Waterstone who are overseeing and supporting Prawfsfest! 9 in LA this coming week on Dec 6-8. I can't believe we're already at #9. Amazing. Thanks to Michael and Loyola Law School for hosting it and to Dave Fagundes for managing the logistics in my absence. It should be a great grand time for scholarship and comraderie. If your school is interested in hosting Prawfsfest! sometime in the future, please let me know.
Last, I still have some spaces in the blog rotation, especially in January, May and June. Please be in touch if you would like to come (back) to try your hand. Feel free to enlist your funny and wise colleagues too.
"Our Boggling Constitution"
Greetings from my home office/sickbed, where I am recovering from total shoulder replacement surgery, a process that involves roughly equal measures of physical therapy, painkillers, and mediocre movies (let me write, for the first and last time in my life, the words "The Mirror Has Two Faces").
Dan noted in a post a few days ago that one of the Green Bag's offshoots had selected a Prawfs post by Rick Hills as a piece of exemplary legal writing on the Internet. I'd like to add that the Green Bag Almanac & Reader has also published its list of 2011 nominees for exemplary legal writing. Accidentally, it named as one of its nominees a piece called "Our Boggling Constitution," a humor piece written by "Anonymous" and published in Constitutional Commentary last year. I wrote that piece, and thought I'd take the occasion of the nomination to own up to it and to post it on SSRN. (It turns out to be quite difficult to post things anonymously on SSRN, and I've always wanted the piece to have more readers, so that's another reason why I've taken credit and/or blame for it now.)
Although it's true that the piece takes in vain the name of just about everyone in the constitutional law division of the legal academy, and seems to allot a disproportionate number of jokes to the Yale Law School, a lovely place which desperately needs my services, the primary reason I published the piece as "Anonymous" is that I wrote it as a bit of a break from my then-ongoing work on my law and religion book, The Agnostic Age (which continues to make a lovely Christmas/Hanukkah gift), and didn't want it to be too much of a distraction. But I must say I had tremendous fun writing it, and I hope a few of you out there enjoy it, especially if your last name happens to be Amar. For law students, it might make for a vaguely pleasant reading break during exam season. Bon appetit.
More jurisdictionality in SCOTUS
As I've written previously, the seven years of the Roberts Court have been a boon for civil procedure, particularly as to my obsession over jurisdictionality and the jurisdiction/merits line. This term alone could see the Court make significant strides in recognizing the many areas in which jurisdiction and merits are often allowed to overlap and trying to clear that out. Some of the cases are obvious, such as Kiobel v. Royal Dutch Petroleum, where the Court granted cert on the precise question of whether corporate civil tort liability under the Alien Tort Statute is a question of jurisdiction or merits (the Court should find it to be the latter). This is one of the cases I'll be using in my Fed Courts oral arguments next week.
But I also have been reading argument transcripts this week in which the justices' questions recognize overlap, recognize how things should be properly characterized, and are looking for a way to do it. Take two examples.
One is M.B.Z. v. Clinton, which involves a federal statute permitting U.S. citizens born in Jerusalem to list their place of birth as "Israel" on their passports, a practice the State Department opposes because of its effect on U.S.-Palestinian relatiosns. The D.C. Circuit rejected the claim on political question grounds, so that jurisdictional question is before the Court before it gets to the validity of the statute. At argument, several justices noted the overlap on the two issues: The merits argument against the statute is that it infringes on the President's exclusive power to recognize foreign sovereigns, while the political question argument turns, at least in part, on whether there has been a textual commitment of the issue to another branch. In other words, if the President has exclusive recognition authority, then there is a textual commitment, making this non-justiciable, and the statute is invalid. Jonathan Siegel several years ago described noted the frequency with which courts over-used political question language anytime they considered the validity of an exercise of power. So perhaps the justices are beginning to catch up to the merits nature of many justiciability doctrines (although it seems to me there is a difference between a textual commitment to a branch other than the courts for Baker v. Carr/political question purposes and exclusive executive authority as a limit on congressional power for merits purposes) and perhaps they may elaborate on where the distinctions should lie.
A second example is Mims v. Arrow Financial Servs. The case involves the Telephone Consumer Protection Act, which prohibits certain telemarketing calls, then provides that "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State" a civil action for various remedies. One focus of the argument, and the ultimate key to the decision, is the difference between the cause of action (which everyone understands as a merits issue) and the granting or withdrawing of jurisdiction (which obviously is a jurisdiction issue). Much depends on the "otherwise permitted" language. If the phrase limits the cause of action, then state law limits the scope of the right to sue, regardless of the court. If the phrase limits state court jurisdiction, the cause of action is available to be brought in another court that does not have such limits, namely federal district court, which under § 1331 should be able to hear any cause of action created by federal law. So everything depends on how the Court characterizes different parts of the statute and how it explains those characterizations.
I could have a lot to write about this spring.
Original Jurisdiction Standings
I realized this morning that Dan has not officially cut me off from Prawf access yet, so I thought I'd sneak in just for a moment to inform the readership here that I have just published some groundbreaking new "research" over at my blog, Odd Clauses Watch. If you're any sort of self-respecting SCOTUS watcher, then you probably have been wondering for many many moons (as I had been, not long ago) how your favorite state has fared in State versus State cases decided under the Supreme Court's original jurisdiction. Luckily, I've "filled the gap," as we say in the prawfing game, by producing (shoddily, admittedly) the first-ever (maybe) Original Jurisdiction Standings, which you can view here. Bye bye.
The Common Law Method and the Criminal Law
Does it make any sense to say that studying the common law and learning how to synthesize many discrete cases is an "outdated" way to understand how to "solv[e] problems" in criminal law? In my last post (thanks Dan and Prawfs), I want to argue that it makes no sense. Yes, much of criminal law has now been codified. So what? That only means that there will be ample opportunity for particularistic interpretation, revision, and even return to older, putatively outdated, ways of thinking about the law.
Take depraved indifference murder in my own home state, New York, NYPL 125.25(2). I've written here before about the rich doctrinal history of New York's experience with this common law offense (at common law, depraved heart murder was a killing in which malice aforethought was implied). I believe depraved indifference gives students a wonderful sense of how the common law can continue to influence and inform the development of doctrine. Nothing outdated about it.
In the 1970s, in People v. Register, New York adopted an approach which tried to make DI purely about the "objective" degree of risk. As I noted in one of those earlier posts, the idea was to try to distinguish between a "substantial risk" and a "grave" or "transcendent" risk. That approach was reaffirmed in one case from the 2000s, P. v. Sanchez, but overturned in another series of cases in (P. v. Suarez, P. v. Payne, P. v. Feingold), returning the law to a "subjective" "mens rea" inquiry. There has been a deliberate re-adoption of words like "heinousness," "barbarity," and "atrocity" -- words which prevailed in the pre-1970s New York understanding of depraved indifference murder. The difficulty, as always, is in pinning down the meaning of these words.
New York seems to have 2 categories of depraved indifference murder now: (1) where without the intent to kill, D "shoots into a crowd or otherwise endangers innocent bystanders." This is the more conventional category which will be familiar to most criminal law teachers; or (2) where without the intent to kill, D directs his acts to one specific victim in an uncommonly brutal or barbaric fashion.
The second category is, for me, the more interesting. But how to get across to students the quality of mens rea involved? To do this, I believe that the best approach is something very much like what Jonathan Dancy describes as seeing the "moral shape" of the crime. And the only way to do that is to get very particular. We go through the facts of some of the New York cases where the second leg of depraved indifference has been held to apply. Among these are P. v. Poplis (the beating of a three year old over a long span, without intent to kill); P. v. Bryce (the fracturing of the skull of a seven-week-old baby by dropping him from a height after having shaken him, without intent to kill); P. v. Best (repeated and sustained beatings of a nine year old child creating open wounds through which bacteria enter, giving the child blood poisoning, child vomits repeatedly, becomes so sick he cannot vomit, dies of asphyxiation, without intent to kill); P. v. Mills (check it out for yourselves, folks, and try to see and sense the moral shape of the offense).
I enjoy these cases because of the ineffable common law quality of the depraved heart. Its defining feature seems to be its elusively and highly particularized nature (I should say also that Ken Simons's article on culpable indifference tries to make theoretical sense of what I consider to be a lovely tangle -- it's a superb piece, as is all of Ken's writing). I want to see the horror in the eyes of students when they describe these cases, and then I want them to explain their intuitions.
Obviously not all criminal law doctrine is like the depraved heart. Some is much more straightforward and simple. Even for that comparatively easy material, it'd be useful to read a few cases, and I hope the point of this post is not the fatuous and uninteresting observation that students need to study cases to know what the law is.
It's that (1) sometimes the criminal law can take an unexpected turn toward an older, common law method of doing things. A settled rule that seemed to have updated an older doctrine is itself updated, and in such a way that we wander backward to antecedent legal time; and (2) when that happens (but not only then), a lawyer needs to be able to see the moral shape of the offense, already to have traveled a little on the wandering, mazy, rolling common law road, not for any silly nostalgic reason, but for the very practical reason that that's how the lawyer will be able to persuade fellow travelers to see the case as he or she does, to argue from particulars about what is or ought to be (again, channelling Dancy) legally "salient." And in order to do that -- to "solve problems" in an altogether contemporary way -- a lawyer, and certainly a criminal lawyer, benefits from extensive training in the common law method.
If you can't trust the people you kidnap . . .
As a contracts prof, I just couldn't resist posting this article: "Kidnapper Sues Former Hostages, Says They Broke Promise." As the title suggests, an inmate, currently serving an 11 year jail term for kidnapping, is suing the couple he kidnapped for breach of contract. According the the article, the suit for breach of contract is based on the kidnapper's claim that the couple "broke an oral contract made when he promised them money in exchange for hiding him from police." The intruder is seeking $235,000 in damages for hospital bills he incurred as a result of - wait for it - being shot by police when they arrested him.
When I read this (and thanks to all my students who emailed this to me), it had final exam hypo written all over it. How many contract defenses can you come up with?
Tuesday, November 29, 2011
The Virtual Reality of ‘One-Person, One-Vote’
In Louisiana v. Bryson, the state of Louisiana has asked the U.S. Supreme Court to exclude so-called “non-immigrant foreign nationals” from the federal census count for purposes of interstate apportionment of congressional representatives. If Louisiana has a shot, this would be an important case. With a narrower apportionment basis, several states would see an immediate change in their allotment of representatives. The change would lead to further ripple-effects like the need to re-district a large number of congressional districts, and the need to re-allocate Electoral College votes. Logically--though the state’s brief does some hand-waving to disclaim the logic--the change would also throw a wrench into the apportionment basis for other purposes (for example, triggering major cuts in federal aid to states that provide services to large undocumented immigrant populations).
The state’s argument is rickety, however. By which, I don’t mean to knock the skill of the brief-writers. I mean it’s hard to imagine a ruling for the state that would not create significant anomalies in light of text, history and past and present practice. This is not to say it’s impossible for the Court to rule for Louisiana (as if the Court has never before surprised anyone in Election Law). My interest in Louisiana’s challenge though, lies not in its prospect of success, but in the fact that it can prompt us to be more explicit about the political theory (or lack thereof) that undergirds our apportionment practices. In particular, I suggest it can help us to see that virtual representation is an important--not at all marginal or archaic--part of American electoral practice. Yes, virtual representation. American as apple pie.Intuitively, it seems that we (or those of us who identify as Americans) are supposed to be against virtual representation in elections. I know that, if I learned anything in my high school history class about early electoral traditions, it was that the War of Independence was fought in order to reject that dastardly British fiction (as embodied in Parliament’s imperial claim to represent American colonists even in the absence of specifically American members or electors). Virtual representation probably also sounds suspect on account of the Supreme Court’s ‘one-person/one-vote’ rules for state legislative apportionment and congressional districting (i.e., rules for composing intra-state constituencies rather than the inter-state allocation of representatives that is at issue in Louisiana v. Bryson). Some of the Court’s early rhetoric and philosophizing about ‘one-person/one-vote’ can misleadingly sound like we have a one-voter/one-vote rule (which, for the most part, we don’t have even for intra-state apportionment). Yet many sorts of non-voters, both voting-eligible and ineligible are variously counted now, and have been counted for many sorts of apportionment purposes throughout U.S. history. It seems that there is not much awareness about this virtual dimension of our practice, much less a normative justification for it that might be consistent with our intuitions about the values of actual representation and political equality.
Returning to Louisiana’s challenge to (one corner) of our virtual-representation practice, the case gets in trouble quickly if we press past its vague appeal and look at specifics (only some of which I can touch on). First, history. The state’s brief leans heavily on the argument that the category of “non-immigrant foreign nationals” that it seeks to exclude was not counted at the inception of the U.S. (This “non-immigrant foreign nationals” category encompasses several distinct groups, including, for example, holders of student visas. But the real numbers game is about illegal or undocumented long-term residents.)
Perhaps I am missing something, but this argument from ‘history’ seems to be ‘smoke and mirrors’--an ‘argument’ that an artificial group constructed by the immigration law of today did not get counted in the late-eighteenth-century (and perhaps as well at the time of the fourteenth amendment’s ratification) because such an artificial grouping did not previously exist (back when we did not have this immigration law!). I suppose, as the litigation develops, this could be turned into a real argument by, for example, unearthing evidence that originally there were some foreigners who were conceived to be an illegal presence in the locale and who were deliberately not counted on account of that illegality. But it is hard for me to imagine that there was any significant eighteenth-century practice that could provide a colorable analogy (at a time when immigration was far more welcomed and when concepts of “persons”, “inhabitants”, “the people”, “citizens” and “voters” did not neatly align). I think something similar could be said for the 14th Amendment enactment period.
Second, text. The state’s brief tries to lessen the facial generality of the word “persons” (used in the apportionment mandate in both Article 1 and the 14th Amendment, section two) by suggesting that the word “persons” was originally equivalent to “inhabitants”, and that some kind of stringent legal residency requirement should be imputed to the latter. However, judging from the areas I’ve studied (like New Jersey under its 1776 constitution), this substitution (itself questionable) is no help at all. Originally, in NJ, for example, “inhabitants” was interpreted to be a comprehensive and long-established census category (with the result that, for many years, the constitution’s “inhabitants” language in its voter eligibility clause was taken to mean that the state legislature had no choice but to allow resident “aliens”, free blacks and women to vote when they met the constitution’s property requirement.) The textual problem for Louisiana gets even tougher when one looks at the fuller text of Article 1 and the 14th amendment (starting with the phrasing of the “whole number of free persons...” and “the whole number of persons in each state”), but I will leave this exploration for another time.
Third, policy. Louisiana suggests it is bad public policy (and perhaps an equal protection vote-dilution violation) to reward states that allow illegal immigrants with a higher apportionment count. This political-process argument (about incentives and perhaps also unjust enrichment) requires that we forget that it is Congress that has ultimate control over immigration [a point on which I repeat myself from a May 2010 thread on the Election-Law list-serve]. States do of course make choices that affect immigration levels at least at the margin, but these choices are at the sufferance of Congress. In fact, some of the states benefiting from a higher apportionment due to undocumented persons are the very states where we now see draconian anti-immigrant policies. It is also questionable whether apportionment could ever drive a state’s pro-immigration policy given that so many other, more immediate, costs and benefits attach to immigration (e.g., burdens on the public schools, labor benefits to employers). This lack of a political-process problem is yet more apparent when one compares it to examples of virtual representation where there have been truly perverse incentives (most obviously, the original 3/5ths apportionment rule for slaves by which slave states were rewarded for owning human beings, and perhaps also, the intra-state prison-based gerrymanders of today that we see in some states).
Finally, (and to me, most interesting), the argument from political theory. The state pushes a Potential Voter Theory for apportionment (suggesting, for example, that children, legal noncitizen “permanent residents”, and the mentally disabled should count because they all could, in theory, become voters either on account of a change in their condition, passage of time, or a change in the law). Wisely, the state does not go for one of the more restrictive positions that only voters, currently-eligible voters, voting-age populations, or only citizens should count in the apportionment basis (arguments that have been pressed elsewhere in the past couple of years, but that would more dramatically contravene long practice).
Potential Voter Theory seems a more modest reform, yet it also seems to me to be more difficult, perhaps impossible, to come up with a rationale for why anyone would draw the line in this way at potential voters (thereby including, for example, the person in a coma, the person with an I.Q of 15, the felon serving a life sentence in a state with felony disenfranchisement--all persons who might be made voter-eligible with a state constitutional amendment but not the “non-immigrant foreign national” adult who was brought to this country illegally at age 2, who did not choose this country, who does not know any other way of life, and who could also be made a voter by a state constitutional amendment). If one is going to insist on a tight correspondence between voters and persons who count for apportionment (a larger choice about which I disagree), Potential Voter Theory seems to lack a coherent route to get there.
Here I cannot make a normative case for the advantages of Virtual Representation Theory over Potential Voter Theory (or Actual Voter Theory or Citizen Theory). I will just make some quick gestures. First, many of our instincts about the badness of virtual representation do not apply to the core instances of today (e.g., the past exclusion of competent women from the vote while counting them for apportionment) and to the extent that they do so apply, these may really be arguments about the extent of the suffrage and not apportionment (e.g., felony disenfranchisement). Second, while it may seem (and be) perverse for, say, an anti-immigrant member of Congress to represent a district built on the ‘apportionment backs’ of immigrants who pay significant taxes while disenfranchised and illegal, it is not entirely perverse even in the extreme case. This member pursues policies harmful to the interests of those who are virtually represented. But the member is probably also serving as a representative of these persons in a less controversial way (e.g., bringing infrastructure money to the state that benefits all who live there). Third (the point I think is most likely to be missed by others), a Louisiana victory in this case would mean that some persons would not be counted for apportionment who could, in theory, be given the right to vote through a state constitutional amendment! Such enfranchisement of “non-immigrant foreign nationals” is of course nowhere to be seen on the political horizon, but it is nonetheless a key structural point and, to me, one that is a valuable (quaint or romantic?) symbol of the fact that our federal system has been historically open to having some states be more welcoming to immigrants before the nation as a whole is ready (as we’ve seen before in at least two significant periods of alien suffrage).
See: SCOTUS Blog summary of Louisiana v. Bryson; Justin Levitt's prediction about the case outcome; Nate Persily's blog post on census issues; Greener and Kenney’s LA Times op-ed for citizen-restricted apportionment
Constitutional Pragmatism and Morality
Thanks to the PrawfsBlawg regulars for letting me guest blog this past month. In this last post, I briefly want to explain that a false dichotomy is often drawn between pragmatic and moral approaches to constitutional issues. Thus, some of the most principled legal scholars I know find the idea of pragmatic arguments troubling in certain circumstances. Yet constitutional pragmatism has important moral components. Justice Breyer's pragmatism values the idea of democracy. Judge Posner is more concerned about arriving at the best result, often using economic tools. In the philosopher's realm, William James and John Dewey shared many moral views, such as the value of democracy, tolerance, education, debate, civil society (including churches), pluralism, reason, community, etc. These are quite important aspects of a liberal democracy.
Of course, pragmatists are skeptical in many instances about there being one absolute moral truth. They are also more contextual in their assessments. In addition, some pragmatists support moral values for instrumental reasons. Yet moral considerations certainly play a role in pragmatic constitutional adjudication, as do the other elements I have mentioned in prior posts. Since I've run out of time for blogging this month, I should mention that a law review article discussing my typology of constitutional pragmatism in more detail will be forthcoming next Spring in a symposium type volume from the Denver Law Review. The piece is titled "Constitutional Pragmatism, the U.S. Supreme Court, and Democratic Revolutions." I will post it on SSRN after more editing. Thanks again for your time and happy holidays to all.
I wanted my last guest blog this month to actually be about blogging. My colleaugue, Howard Wasserman, has been blogging very successfully, here and elsewhere, for at least as long as I have known him. He has repeatedly exhorted me to "blog something" whenever I shared a particularly interesting insight or reaction to current events with him over the years, and while I have done so on occasion, I always hesitated to do more regular blogging, like the guest stint I am completing now.
Having spoken with others about this, I am told that it is not all that uncommon to be hesitant about entering the blogosphere; there is something initially offputting about a medium that is supposed to be so raw, somewhat unedited (at least compared with formal publications that go through a months-long editing process), and up-to-the-minute. It is odd to go from teaching class face to face and engaging in scholarly debates with people in media that attach names to thoughts and insist on formal citation, editing, etc., to putting your thoughts out there to be picked over by people who may refuse to attach a name to theirs.
But there is also something really exciting about engaging in virtually real-time discussion about issues that we all care about. And blogs like this continually attract attention and readership that even some distinguished law journals cannot. I have developed a whole new appreciation for those who do this on a regular basis--those who think of timely and provocative topics for discussion and put their thoughts out there regularly. It takes talent, time, and courage.
Monday, November 28, 2011
Shopping For Settlement - A Short Follow-up
A few weeks ago, I wrote about Judge Rakoff's scrutiny of SEC settlements (post here). Today he rejected the proposed Citigroup settlement (opinion here). A new part of the fight is over the standard of review, and specifically whether the public interest is appropriately considered by the court. The SEC argues not or, in the alternative, that the court should defer to the SEC's determination of public interest, at least for consent judgments settling SEC cases.
Again, information-forcing seems to be a key function of the judge's review, as does concern that the SEC allows settlement without admitting or denying the allegations:
"[W]hen a public agency asks a court to become its partner in enforcement by imposing wide-ranging injunctive remedies on a defendant, enforced by the formidable judicial power of contempt, the court, and the public need some knowledge of what the underlying facts are: for otherwise, the court becomes a mere handmaiden to a settlement privately negotiated on the basis of unknown fact, while the public is deprived of ever knowing the truth in a matter of obvious public importance."
Social Media: Usage and Impact
A new book of possible interest to legal scholars is entitled Social Media: Usage and Impact and is edited by communications scholars Hana S. Noor Al-Deen and John Allen Hendrick. It provides a "comprehensive and scholarly analysis of social media" and includes analysis of social media use "in educational settings, strategic communication [ ], politics, and legal and ethical issues." My chapter in the book, co-authored with Daniel C. Friedel, is titled "LegalPitfalls of Social Media Use."
Sunday, November 27, 2011
What Makes a Good Fellowship Program?
I co-direct the Petrie-Flom Center at Harvard Law School, which has an academic fellowship program for those who want to pursue academic careers at the intersection of law and health policy, bioethics, and biotechnology. We've had a pretty good run, placing two fellows at Harvard, and one each at Berkeley, UCLA, Cornell, BU, Illinois, and Arizona. I've also observed the Climenko fellow program at Harvard at fairly close range, and other fellowship programs elsewhere a little more distantly as I see students, mentees, or friends take them to go on the market. And I was a fellow myself.
I think there are an interesting set of questions relating to in what ways the increased prominence of fellowships is a good thing (including what effect they have on how many years of practice the average prof has before starting, the way in which taking 2 years at a very reduced pay may mean these are only open to candidates with certain kinds of income or family obligations, etc), but for this post I want to instead focus on the question: what makes a fellowship program successful? Another way of putting the question that may be particularly relevant at this time of year for those on the fellowship market, what should they be looking for?
Here are some thoughts I have on the matter (no doubt with biases shaped by my own experience and now running a fellowship) in no particular order, but I would definitely love to get others in on the conversation....1. Quarterbacks: Good fellowship programs take people who will have strong recommenders on the faculty and at least one "quarterback" for every fellow. The "quarterback" (a term I've heard others use), is someone who not only passively recommends a candidate but pushes for them hard, advises them on the market, prods their other recommenders, etc.
Fellowships that are subject-matter specific have an advantage in that those selecting fellows are also the presumptive recommenders and quarterbacks, such that there is a strong amount of buy-in. General fellowships like Climenko work hard to try and do this pairing after a fellow arrives -- I know they assign each Climenko a set of three faculty readers -- but in some programs there may be a gap between those doing the hiring and those who have the subject matter expertise in terms of what they think of a fellow's project. Thus, fellows (once extended an offer) should probe who on the faculty will be assigned to them, whether that person has consented to this arrangement, is an active mentors, and knows their work. They should also think about subject matter and methodological fit.
2. Time. In my opinion, any fellowship offering less than 2 full years of support will make it hard for a fellow to successfully be ready for the market. Fellowships like mine with no required teaching have their benefits -- more time to write -- and their drawbacks -- no teaching evaluations of you when you go on the market, but fellows should get a real sense just how onerous the teaching is.
Relatedly, I think the more teaching you can do in your own field, the better. You get lots of writing ideas and sophistication from teaching an area. Moreover, if you get an academic job you will be able to have the time you invested here not go to waste.
3. Moot job talk, Moot interview, Other feedback opportunities.
All the fellowships at Harvard Law guarantee those who want them a moot job talk before the faculty, a set of moot interviews, and lots of other feedback opportunities. These are hugely helpful. This is particularly true of the moot job talks which are "public" among the fellows and faculty such that first year fellows can watch the second year fellows on the market do these moot job talks and get a sense of what works and doesn't at the writing stage. These workshops also improve acculturation into talking like a law prof, with all the familiar workshop tropes most of us are now familiar with.
More generally, I think the more structured the fellowship program (outline your first paper by this date to present to your mentors, first full draft here, etc) the better in that it prevents candidates from imploding towards the end or being crushed by perfectionist tendencies.
4. General Institutional Buy-In: This is hard to see from the outside (though I think the Bigelow program, for example, has a good history in this regard). How seriously does the law school take the program? Are the fellows underpaid labor, or are they full members of the intellectual community? These can be subtle things like are fellows allowed to ask questions at workshops or is the norm that they sit quietly? Are they given access to students as RAs as the regular faculty are? Are fellows invited to talks by visiting guests and other social activities where the faculty congregate?
5. Considering Their Own: On this and other blogs there has been significant discussion of the various policies in this regard. But, all things being equal, it is much better to be in a fellowship that might lead to a job at that institution. I know that Harvard, Columbia, and Chicago have all hired their own fellows more than once, but there may be other schools with good track records in this regard too that I don't know about. It is perfectly appropriate for someone with a fellowship offer to ask about the institution's rule in this regard when evaluating that offer.
ISO Model Introductions to Edited Volumes
I am editing a book under contract for Oxford University Press (hopefully out late next year or early 2013) on legal and ethical issues surrounding the globalization of health care. It stems from a conference I organized for the Petrie-Flom Center. Besides for contributing a chapter, editing the other chapters, and coordinating the whole project, I will write an introduction to the edited volume.
This is my first book. I have to confess I rarely read the introductions of edited volumes. Instead I usually grab them for a paper or two or a section of essays. I am thus curious whether any blog readers have suggestions of really good edited volume introductions that I can read to get ideas of the genre as successfully executed. My sense is that a good introduction to a volume will (1) Briefly outline the individual chapters, (2) indicate why they fit together in such a way that the whole is greater than the sum of its parts, and (3) also gesture towards bigger questions raised by or themes from the volume.
That's easy to state in the abstract, but I'd love to read a few choice examples to get a better feel. So, dear readers, do you have any favorite introductions to legal edited volumes?
Threading the Needle
Imagine that Ron Wyden fails: either PROTECT IP or SoPA / E-PARASITE passes and is signed into law by President Obama. Advocacy groups such as the EFF would launch an immediate constitutional challenge to the bill’s censorship mandates. I believe the outcome of such litigation is far less certain than either side believes. American censorship legislation would keep lots of lawyers employed (always a good thing in a down economy), and might generate some useful First Amendment jurisprudence. Let me sketch three areas of uncertainty that the courts would have to resolve, and that improve the odds that such a bill would survive.
First, how high is the constitutional barrier to the legislation? Both bills look like systems of prior restraint, which loads the government with a “heavy presumption” against their constitutionality . The Supreme Court’s jurisprudence in the two most relevant prior cases, Reno v. ACLU and Ashcroft v. ACLU, applied strict scrutiny: laws must serve a compelling government interest, and be narrowly tailored to that interest. This looks bad for the state, but wait: we’re dealing with laws regulating intellectual property, and such laws draw intermediate scrutiny at most. This is what I call the IP loophole in the First Amendment. Copyright law, for example, enjoys more lenient treatment under free speech examination because the law has built-in safeguards such as fair use, the idea-expression dichotomy, and the (ever-lengthening) limited term of rights.
Moreover, it’s not certain that the bills even regulate speech. Here, I mean “speech” in its First Amendment sense, not the colloquial one. Burning one’s draft card at a protest seems like speech to most of us – the anti-war message is embodied within the act – but the Supreme Court views it as conduct. And conduct can be regulated so long as the government meets the minimal strictures of rational review. The two bills focus on domain name filtering – they impede users from reaching certain on-line material, but formally limit only the conversion of domain name to IP address by an Internet service provider. (I’m skipping over the requirement that search engines de-list such sites, which is a much clearer case of regulating speech.) DNS lookups seem akin to conduct, although the Court’s precedent in this area is hardly a model of lucidity. (Burning the American flag = speech; burning a draft card = conduct. QED.) Other courts have struggled, most notably in the context of the anti-circumvention provisions of the Digital Millennium Copyright Act, to categorize domain names as speech or not-speech, and thus far have found a kind of Hegelian duality to them. That suggests an intermediate level of scrutiny, which would resonate with the IP loophole analysis above.
Second, who has standing? It seems that our plaintiffs would need to find a site that conceded it met the definition of a site “dedicated to the theft of U.S. property.” That seems hard to do until filtering begins – at which point whatever ills the legislation creates will have materialized. (It might also expose the site to suits from affected IP owners.) Perhaps Internet service providers could bring a challenge based on either third-party standing (on behalf of their users, if we think users’ rights are implicated, or the foreign sites) or their own speech interests. However, I think it’s unlikely that users would have standing, particularly given the somewhat dilute harm of being unable to reach material on allegedly infringing sites. And, as described above, it’s not clear that ISPs have a speech interest at all: domain name services simply may be conduct.
Finally, how can we distinguish E-PARASITE or PROTECT IP from similar legislation that passes constitutional muster? Section 1201 of the DMCA, for example, permits liability to be imposed not only on those who make tools for circumventing access controls available, but even on those who knowingly link to such tools on-line. The government can limit distribution of encryption technology – at least as object code – overseas, by treating it as a munition. And thus far, the federal government has been able to seize domain names under civil forfeiture provisions, with nary a quibble from the federal courts.
To be plain: I think both bills are terrible legislation. They’re certain to damage America’s technology innovation industries, which are the crown jewels of our economy and our future competitiveness. They turn over censorship decisions to private actors with no interest whatsoever in countervailing values such as free expression or, indeed, anything other than their own profit margins. And their procedural protections are utterly inadequate – in my view. But I think it is possible that these bills may thread the constitutional needle, particularly given the one-way ratchet of copyright protection before the federal courts. The decision in Ashcroft, for instance, found that end user filtering was a narrower alternative than the Children’s Online Protection Act. But end user filtering doesn’t work when the person installing the software is not a parent concerned about on-line filth, but one eager to download infringing movies. And that means that legislation may escape narrowness analysis as well. As I wrote in Orwell’s Armchair:
focusing only on content that is clearly unlawful – such as child pornography, obscenity, or intellectual property infringement – has constitutional benefits that can help a statute survive. These categories of material do not count as “speech” for First Amendment analysis, and hence the government need not satisfy strict scrutiny in attacking them. Recent bills seem to show that legislators have learned this lesson – the PROTECT IP Act, for example, targets only those Web sites with “no significant use other than engaging in, enabling, or facilitating” IP infringement. Banning only unprotected material could move censorial legislation past overbreadth objections.
So: the outcome of any litigation is not only highly uncertain, but more uncertain than free speech advocates believe. Please paint a more hopeful story for me, and tell me why I’m wrong.
Cross-posted at Info/Law.
Posted by Derek Bambauer on November 27, 2011 at 08:37 PM in Civil Procedure, Constitutional thoughts, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Web/Tech | Permalink | Comments (0) | TrackBack
Saturday, November 26, 2011
This is a curious editorial for several reasons, one of which is the last few lines, where an opinion is offered about the nature of law. The jurisprudential choices on offer seem to be: (1) Langdellian legal science; or (2) law as "a means, rather than an end, a tool for solving problems." I'm not a philosopher of law, but I am having trouble with these options as conceptions of law. I also don't understand their relationship to the call for "legal education reform."
First, one does not need to believe in the legal science model (of Langdell or Savigny et al.) to think that the case method of legal education is still viable. In many respects (not as many as in the time of Langdell, to be sure), ours is still a common law system, and one can be a legal realist, a crit, a law-and-economics maven, etc., and believe in the importance of studying cases as a means to understanding what law is all about. So the options cannot be "study cases" or "use the law as a means to an end": these possibilities are not in the same conceptual category.
Second, what can it mean to say that law is "a means rather than an end, a tool for solving problems"?
At one level, no one -- and certainly very few law professors that I know -- would disagree with the statement. Langdellians (raise your hands and be counted!) would agree with it. Natural lawyers would agree with it. Legal positivists would agree with it. Of course law is in some measure an instrument to accomplish certain social ends.
But there seems to be something more in the Times's account of law, something along the lines of: 'there's nothing more to law than the mechanical application of skills to achieve a client's desired outcome, and law ought to be taught that way.' If that is more the meaning of the statement, I'm afraid I don't agree. There is more to law than mechanically applying rules to serve a client's wishes. There is more to learn about law than the acquisition of skills to reach some predetermined end. Indeed, it is exactly because law is in part an instrument to achieve social ends that it is about much more than the mechanical application of skills. Speaking in part as a professional responsibility teacher, stripping away that quality of law is more than just a mistake; it's a dangerous way to conceive the profession of law. And it has an, at best, uncertain and an, at worst, directly harmful effect on some of the other reforms that the editorial thinks would be worthwhile improvements, such as an increase in the representation of low-paying clients.
No one doubts or denies that the law may be used to achieve particular outcomes. But many people doubt or deny that conceiving of the law in exclusively these terms is either sound in itself or useful as a way to reform legal education.
Friday, November 25, 2011
What Does the Criminal Practitioner Know?
Below, Howard notes the correction that was made to the Times piece, as well as Jason Mazzone's apt comments. Since the criticism now seems to be leveled at criminal law proper, I thought to point interested readers to a short paper of mine that reacts to an excellent and provocative piece by Anders Walker. A number of the differences between Anders and me are peripheral to the discussion here, but some of what my reply does is to think a little bit about what sorts of abilities the criminal practitioner possesses, based on my own experience as an ADA for a few years before I began to teach. I certainly do not claim that my experience is typical (I did not practice long or broadly enough to be able to make anything like that claim); it reflects merely one person's thoughts about the quality of what a criminal practitioner knows, and so what it might be useful for him or her to begin to learn in the criminal law course. I should say also that in part because of Anders's paper (as well as some interesting work by Chad Flanders), I have been including a good deal more New York Penal Law in my course than I at first did.
Skills without substance
I have stayed out of the fray over David Segal's attack on legal education, leaving it to the many others who have done a masterful job of taking the piece apart.
I do want to flag two recent posts. First, Neil Buchanan discusses Segal's criticism of schools for teaching Hadley v. Baxendale (which Segal makes fun of for being old and aboutrather than teaching students how to draft a contract, reminding us that Hadley stands for a signficant principle of contract damages, adopted throughout much of the United States and that a lawyer who does not know this rule will not be able to draft a good contract. Second, Jason Mazzone looks at Segal's criticism that schools teach criminal procedure, with its focus on case studies of common law crimes rather than training students in how to plea bargain. Jason successfully got The Times to run a correction that Segal meant Criminal Law rather than Crim Pro. But even with the correction, Jason rightly calls Segal's criticism "just weird," because "no lawer could conduct plea negotiations without understanding the basis of the charged crime, which, of course, requires knowledge of the substantive law."
Both critiques hit Segal for the same defect in the article: His assumption that future lawyers only need to learn practical skills and technical details and that they do not need to learn substantive law or how to identify, analyze, and work with substantive law. They need to know how to draft a contract, but they don't have to know anything about contract law; they need to know what papers to file to commence a merger, but it is not that important to understand the law that governs the details of the deal. They need to know how to conduct discovery, but it is not that important to understand the rules that control how discovery operates (not to mention that governs the case itself, which dictates how discovery goes). This is a common refrain in the critique of legal education from non-lawyers, from some practicing lawyers, and even from some in the clinical-education community (where some argue that students need not have any background in the applicable substantive law to work in a clinic). But this is more than weird; it is incoherent.
Law school often is criticized for not being more like med school, although the analogy is not entirely apt and med school does not have the pedagogical market cornered. But no one criticizes med schools for teaching the biology and physiology of the heart rather than how to perform heart surgery or for teaching the biology and physiology of female reproduction and childbirth rather than how to deliver a baby. The expectation is that those skills will be taught during residency. It is true that med schools balance clinical and non-clinical education better than do law schools and med students get more formalized clinical training (although med schools can be tagged for shifting the balance too far to the former). No one suggests that med schools should entirely dispense with non clinical teaching, as Segal seems to suggest law schools should with substantive contracts. You can't diagnose and treat a patient with heart disease if you don't understand what the heart and heart disease is and how it operates. So how could anyone seriously suggest that you can (or should) be taught to put together a plea bargain if you don't understand (or know how to identify, analyze, understand, and apply) substantive criminal law?
There are good arguments for increasing clinical/externship experiences in law school. I don't think anyone questions that, although the precise balance is contested. But it is equally mistaken to go to the opposite extreme and insist that law school be entirely clinical or to deny that there is any value in case-based classroom learning.
Clinical and Externship Experiences
For all its faults, ably documented both here on Prawfs and across the web, David Segal's NYT piece about law schools is another reminder (as if we needed one) of the importance of continually thinking about how we train lawyers. Unfortunately, my sense is that a lot of us only know a small part of the full picture: tenure/tenure track faculty, for example, often know relatively little about the details of how our schools' clinics, externships and legal writing programs work.
I'm curious about how students and alums perceive(d) their schools' clinical and externship programs. For someone (like me) who only has a passing familiarity with them, those programs seem to be an ideal way to address the problem of law schools' supposed failure to train students how actually to lawyer. The programs involve practicing lawyers with real-life clients. Ideally, they should be able to bridge the gap between the more theoretical training they get in the classroom and the world the students will confront when they graduate. Indeed, one would think they'd deepen that theoretical training by giving the students a real-world context in which to place what they've learned.
Or maybe they don't. Or maybe they do but there aren't enough of them. Or maybe students aren't allowed to take enough of them. I'm curious about this. I'd love to hear thoughts from those who know: the clinical instructors themselves, and the students/alums who passed through those programs. Those of us who don't know enough about these programs but who are in a position to influence where legal education goes from here would benefit from those impressions. Thoughts? Are clinicals and externships the silver bullet to fix any problem that exists out there? Part of the solution? Not at all?
Thursday, November 24, 2011
Holiday Gift List for Your Favorite Criminal Law Theorist
Not long ago, the philosophy of criminal law and punishment was thought to be a bit of a dead end. Happily, that has not been true for at least the last 25 years, and indeed, now the problem might be that there is too much to read in this area.
Oxford University Press continues to exacerbate that problem. Indeed, in just the last few months, I have received the following three volumes, all just recently published:
Retributivism Has a Past: Has It a Future? (Ed. by Michael Tonry)
The Oxford Handbook of Philosophy of Criminal Law (edited by Deigh and Dolinko)
Philosophical Foundations of Criminal Law (edited by Duff and Green)
I hope to dip into or even immerse myself in these waters over the coming months. I suspect all these volumes will provoke thought and move the discussions forward. But if I'm wrong about that, you'll read about those reactions here :-) In the meantime, I invite OUP to lower the price tags. All of these volumes are priced well above what normal people would be willing to spend on books, making these the preserve of law and philosophy libraries. Alas.
Wednesday, November 23, 2011
Nostalgia and the Search for Nuance in Critiques of Legal Education.
On the topic of scholarship and lawyering inspired by Segal's NYT bile pile, I've mostly refrained from weighing in. But one of the recent comments however has spurred me to temporarily intervene. The legal academy has been emphasizing scholarship among its members for at least 20 years and at the top schools it has been even longer. Some of the Segal/Campos scamfans talk about law profs under this regime of intellectualism as being poorly situated to instruct the next generation of attorneys.
So here are some quick reactions. Do we think the lawyers who were trained over the last 20 years at law schools under this new 'scholarship' regime are worse than the lawyers who were trained beforehand when scholarship was less significant in the lives of law professors? If so, what are the metrics for making that claim? Or do people not actually think that pinheaded prawfs are bad for lawyering but rather their recherche interests simply raise the cost of legal education more than it's worth?
I don't know the answer. On the one hand, maybe the "law school as trade school" era in which most of the fancy schools did not have productive and more intellectual faculties was better for society and law students. I'm not a whig about history but I'm usually skeptical of such nostaligic golden-era claims. On the other hand, I certainly think the ABA and AALS and other bodies are impeding some creative disruptions in the delivery of legal education. I also think taxpayers are right to ask whether publicly supported legal education is a compelling use of their tax dollars compared to other important social tasks.
Still, I largely think Segal's attacks on legal education don't have sufficient nuance to be persuasive and I'm quite doubtful that the emphasis on legal scholarship by some professors is getting in the way of a better law for society or a more attractive legal education. There are after all some for-profit law schools and they don't emphasize or produce too much scholarship on their faculty as far as I can tell. Maybe it's still too soon to tell if their graduates will be better situated than the graduates of more intellectual/scholarship-oriented schools, but if they're not, the scam-critics will need a good story of market failure to explain why not--or they might have to soften their views and voices and pull in their elbows a bit.
[I'll keep comments open to signed *and* substantive comments with verifiable email addresses.]
Another Governor Acts Against the Death Penalty. Did He Do So Justly?
I realize it's Erev Thanksgiving and so people are busy getting their yams all candied and such, but before the night closes, I just wanted to flag an article in today's NYT about the decision recently by Oregon's governor to halt all further executions, at least temporarily. Governor Kitzhaber explained his decision in the NYT but the text of the speech actually provides a fuller and more tension-replete picture.
There are lots of interesting and problematic claims about personal morality, public policy and professional identity advanced by Governor Kitzhaber. For what it's worth, when Illinois' Governor Ryan commuted the sentences of all those on death row back in 2003, I wrote a long article arguing that retributive justice concerns are advanced by decisions like Ryan's to commute death row and abolish the death penalty. I am accordingly, and unsurprisingly, heartened by Kitzhaber's decision. That said, I think his reasoning could have benefited from greater care and mindfulness about what he's prioritizing when making his decision. Does he have good reason for thinking he's acting consistently with his institutional role? Yes. Without reprising many of those arguments I've laid out elsewhere, let me just reiterate that I think he does have good reasons available to him but I think those reasons largely should have spurred him to have gone further than merely issue a temporary reprieve and a call to the legislature to revisit the issues again.
Moreover, as I've explained in my more recent work, which is at turns blandly conservative and at turns quite radical with respect to our obligations to conform to or to enforce criminal laws, I'm all in favor of officials who try to be conscientious about the workings of conscience. Consequently, I'm not at all troubled by Kitzhaber stating that he consulted "mostly [him]self" when making this decision. After all, even if you're an official within a liberal democracy, on my view, you are required to forbear from acting illiberally or in a spectacularly dumb fashion. Moreover, on this account, punishments must not flout what I take to be the animating values of retributive justice. Since, in this particular situation, the death penalty and its uneven administration are (I've argued) starkly at odds with these principles, Kitzhaber has nudged his polity in the right direction even if he hasn't quite gone far enough.
The Kennedy assasination and the First Amendment
On this 48th anniversary of the Kennedy assasination, Errol Morris has produced a short (about six minutes, naturally) film (sorry, it can't be embedded) about "The Umbrella Man," the man standing in Dealey Plaza under an open umbrella as the motorcade approached and the shots rang out. Morris interviews Josiah "Link" Thompson, the author of Six Seconds in Dallas, regarded (among non conspiracy theorists) as the definitive book on the Zapruder film. The Umbrella Man has become the key to many a conspiracy theory over the years, since it was a beautiful day and no one in Dallas was wearing a raincoat or holding an umbrella. One theory posited that The Umbrella Man was the real assassin and the umbrella contained a rocket launcher designed to shoot something into JFK's throat.
It turns out that Umbrella Man was Louie Steven Witt, who came forward to testify before Congress in 1978. Witt's story: He was holding the umbrella to protest Joseph Kennedy's conduct as U.S. Ambassador to the Court of St. James in appeasing Hitlerfrom 1938-39 and the umbrella is a reference to Neville Chamberlain (famously associated with carrying an umbrella).
Thompson says in the film that conspiracy theories thrive on the idea that, if some fact seems strange, it only can have a sinister explanation. The problem, he argues, is that we simply cannot conceive of the unlimited possible explanations for some fact, all of which are non-sinister. Throw in the unlimited possible expressive meanings of an act and this gets pretty complicated.
Of course, in our current environment, the Secret Service would decide the lone umbrella is suspicious and an immediate threat and would haul him and the umbrella away from the scene, expressive purpose be damned.
Tuesday, November 22, 2011
Huang on Huang and Legal Education, and an Award for Prawfs' Rick Hills and You.
One of the academy's most quirky and wide-ranging minds, Peter Huang, has a score-settling and also otherwise interesting and occasionally funny essay up on SSRN. It's called Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy about Parenting and Legal Education. The actual theses of the essay, summarized in the abstract, are relatively innocuous and no doubt salutary. But don't go reading it to find out too much about Amy Chua. It's really about bringing mindfulness to the legal academy. Maybe I'm just being cranky -- but is anyone against legal education that emphasizes "character, ethics, professionalism, values, and virtues"? The real question is how to do that and at what costs to other worthwhile pursuits. Anyway, this paper fits into the cluster of those that gain fame less because of their arguments and more because of their vignettes. Or put more charitably, the arguments will gain force by virtue of the paper's vignettes.
The basic problem with this piece, even once situated within the memoirish genre, is that it has way too many useless footnotes with links to the websites of NYC's fancy private schools. I'm not kidding. As someone who normally loves the below-the-line apparatus as a site for second-rate arguments and cite-mongering, I have to say that my general impression was that the piece would be much better off if almost all the references (and not just those providing background about Horace Mann) were junked and instead the piece was oriented toward publication in Green Bag. Green Bag has a long-known Chicago/GMU connection, however, and so who knows whether Ross Davies and his minions will take the piece given that University of Chicago's Law School doesn't come off too well here. For those keeping track at home, Penn Law takes a drubbing too; as Huang reports, he was denied tenure there and was purportedly threatened about the costs of publicly griping about that. So, you'll have to read this piece quickly with both cheer and caution.
Speaking of Green Bag, and on a slightly different note, I shouldn't risk seeming ungrateful during our season of thanks. After all, Green Bag's infinitely wise board of editors at its subsidiary, the Post, recently selected a thread here on Prawfs as exemplary of good scholarship on the internet. Unsurprisingly, they selected Rick Hills' shrewd post on healthcare and federalism. And typical of the high-minded discussion on Prawfs, they also included the comments as being worthy of inclusion, the only thread so selected. So, a hearty congrazel tov is overdue to Rick and our readers.
Judicial Transparency and Pragmatism
One of the most well known constitutional pragmatists is Dan Farber. He authored an important article advocating such an approach back in 1988, and has followed it up with two books on similar themes. In the article (72 Minn. L. Rev. 1331) he argued that courts should use all of the tools at their disposal and try to arrive at the best result possible. He said these tools include precedent, original intent, social science, and any other considerations that may be helpful. I call this comprehensive pragmatism. It treats constitutional interpretation as requiring judges to use all of the tools in the toolbox. The obvious problem is how to rank the value of the tools if they point in opposing directions.
Richard Fallon has written about this effort (100 Harv. L. Rev. 1389), akin to seeking an algorithm, and has generally rejected pragmatic considerations as normatively undesirable in favor of placing the text and other considerations first. Mike Dorf authored an article (87 Cal. L. Rev. 593) responding to some later Fallon criticisms of pragmatism. While I have no algorithm to offer, it would certainly be helpful if the Court wrote more transparent opinions admitting that the tools sometimes point in different directions. Imagine if Chief Justice Warren had openly acknowledged in Brown that the 14th Amendment’s original intent supported segregation, but that this was outweighed by moral considerations, as well as by the practical reality that separate but equal was not equal. Far too often, the Justices write opinions like legal advocates, and try to demonstrate that all of the differing criteria favor their result. In the long run, this lack of transparency harms the Court in my view. Indeed, I just taught the First Amendment secondary effects doctrine in constitutional law class today, and my students immediately figured out that this doctrine helped the Court avoid saying that the municipalities were engaging in content discrimination.
Religion Meets Commerce
I'm in the midst of preparations (along with Bob Cochran) for the upcoming Third Annual Religious Legal Theory Conference, "The Competing Claims of Law & Religion: Who Should Influence Whom," which will be hosted by Pepperdine Law School on February 23-25. We're anticipating over 70 speakers, including Prawfs Rick Garnett and Paul Horwitz.
Putting together the panels for the conference has been an extraordinary treat - although at times it feels like one of those LSAT logic games - with so many amazing speakers joining us for the conference. As should be expected, many of the submitted proposals bring new perspectives to some of the classic constitutional law & religion topics: religious accommodation, neutrality towards religion, questions of conscience etc.
But one of the interesting trends I noticed was an increasing number of papers addressing what I would term "religion meets commerce." For example, presentations at the conference are slated to include Barak Richman's paper on the impact of the Sherman Anti-Trust Act on hiring within religious organizations, Lyman Johnson's paper the role of religious norms in constructing fiduciary obligations, and Todd Williams' paper addressing sharia compliant finance. Of course, such topics frequently incorporate questions of constitutional law. But importantly, such topics also push law & religion beyond the confines of constitutional law and into the sphere of private law.
I've previously expressed (or maybe implied) here on Prawfs my enthusiasm for law & religion breaking out of its constitutional law mold and engaging more questions of private law. In my recent article Religious Arbitration and the New Multiculturalism, I try to highlight how thinking critically about contract doctrines like public policy and unconscionability will play a major role in shaping the extent of authority and autonomy experienced by religious groups. And, to the extent questions revolving around the Free Exercise and Establishment Clauses get caught in a doctrinal logjam, there seems to be any number of fruitful lines of inquiry open where law & religion intersects with private law.
For those of you able to make it, please join is this February for the conference. It should be quite an event!
Monday, November 21, 2011
How Not To Secure the Net
In the wake of credible allegations of hacking of a water utility, including physical damage, attention has turned to software security weaknesses. One might think that we'd want independent experts - call them whistleblowers, busticati, or hackers - out there testing, and reporting, important software bugs. But it turns out that overblown cease-and-desist letters still rule the day for software companies. Fortunately, when software vendor Carrier IQ attempted to misstate IP law to silence security researcher Trevor Eckhart, the EFF took up his cause. But this brings to mind three problems.
First, unfortunately, EFF doesn't scale. We need a larger-scale effort to represent threatened researchers. I've been thinking about how we might accomplish this, and would invite comments on the topic.
Second, IP law's strict liability, significant penalties, and increasing criminalization can create significant chilling effects for valuable security research. This is why Oliver Day and I propose a shield against IP claims for researchers who follow the responsible disclosure model.
Finally, vendors really need to have their general counsel run these efforts past outside counsel who know IP. Carrier IQ's C&D reads like a high school student did some basic Wikipedia research on copyright law and then ran the resulting letter through Google Translate (English to Lawyer). If this is the aptitude that Carrier IQ brings to IP, they'd better not be counting on their IP portfolio for their market cap.
When IP law suppresses valuable research, it demonstrates, in Oliver's words, that lawyers have hacked East Coast Code in a way it was not designed for. Props to EFF for hacking back.
Cross-posted at Info/Law.
Posted by Derek Bambauer on November 21, 2011 at 09:33 PM in Corporate, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Science, Web/Tech | Permalink | Comments (2) | TrackBack
The Military Jurisdiction Case of the Century Gets One Step Closer...
About six weeks ago, I blogged about the Army Court of Criminal Appeals' July decision in United States v. Ali, upholding (for the first time) the constitutionality of the 2006 amendment to Article 2(a)(10) of the Uniform Code of Military Justice, which authorizes the trial by court-martial of civilian contractors accompanying armed forces in the field during "contingency operations." As I wrote then (and have described in print elsewhere), there's a fairly powerful line of Supreme Court cases suggesting a bright constitutional line (at least other than during times of declared war) between military jurisdiction over servicemembers and military jurisdiction over civilians, no matter what their affiliation with the military happens to be. The current Court certainly may not be inclined to hew to that line (indeed, the relevant precedents are all at least a half-century old), but given the extent to which the role of contractors in contingency operations only continues to grow, it's a close (and important) enough question that it seems likely to grab the Justices' attention...
Indeed, the biggest obstacle to the Supreme Court eventually resolving this issue was the Court of Appeals for the Armed Forces (CAAF), which had the discretion not to review the ACCA's decision. And under 28 U.S.C. 1259(4), the Supreme Court lacks certiorari jurisdiction over a decision by CAAF not to review a particular case. So if CAAF denied review, the only remaining option would have been for Ali collaterally to attack his conviction in a habeas petition in federal district court.
That obstacle is now out of the way. With a big hat tip to CAAFlog, it appears that CAAF last Friday granted review in Ali, and the first of three issues presented is the constitutional elephant in the room, i.e., "[W]hether the military judge erred in ruling that the court had jurisdiction to try [Ali] and thereby violated the Due Process Clause of the Fifth and Sixth Amendments by refusing to dismiss the charges and specifications." It's hard to predict how CAAF will rule on this question, but either way it will be worth watching--both in its own right and as a preview of the distinctly possible Supreme Court review to follow.
A Blast From the (Dormant Commerce) Past
Seen today on the streets of Manhattan. Good to see they're still around. I couldn't find a picture of Charles H. Baldwin, although this physical site may well have one.
Even if you're not a huge sports fan, it's hard to ignore the stories about college football teams' reckonings with mistakes and sometimes atrocities alleged to have been committed by their leadership and membership. Of course, the most notable, horrendous and unspeakable has been the Penn State scandal and the number of school officials and administrators who no longer have jobs because of their role in or knowledge of what is alleged to have gone on there. Even as fans have protested the firings of some of their most beloved figures, others have called for even harsher measures--the abolition of the entire program, for example, which would make each player suffer for crimes alleged to have been committed against children when they, themselves, were just children.
And on the other end of the spectrum, in he midst of allegations that couldn't be much further factually or in gravity from what was alleged at Penn State (the improper activities of a "booster"), in my own city of Miami, the University of Miami has self-imposed a ban from bowl-game contention on its team. It does this to the obvious disappointment of its players and coaches, most of whom had nothing to do with the alleged scandal. It's another example of group and institutional accountability for the actions (and inactions) of a few. The institution of the football program, and by extension, the university community, is held, or holds itself out as accountable, anxious to remove the taint of the scandal and to absolve itself of any imputed guilt and place itself back on the right track. Whether this accountability is self-imposed or coerced by outside pressures (consequences, legal and otherwise, public shaming/opinion, etc.), it is still becoming part of the culture of college sports, and I wouldn't be surprised if we saw more of the same in the future.
While these two scenarios cannot be compared in terms of the gravity of what is alleged to have gone on in each, they are both emblematic of the end of an era in which college athletes, football programs, and even football cultures are set forth as godlike, untouchable forces that must be protected at all costs. As an employment discrimination scholar, I can't help but contrast this attitude with that of employers whose high level employees are accused of sexual harassment, or worse, assault. Beyond paying a settlement offer or (rarely) a court-ordered judgment, there is not typically any public or large-scale action or stance taken by an enterprise that has appointed a high level employee who proves to be a recidivist harasser. In fact, with the affirmative defense to sexual harassment, the law's insistence on analyzing each incident in a veritable vacuum with no real heed paid to workplace culture or permissiveness/opportunity extended to serial offenders, and the lack of a negligent hiring/negligent retention claim that has any real traction as applied in most of these scenarios, it is quite easy, legally, for an employer to either evade liability for what it knows that a harasser has done, or at least to retain him (if he's with it), transfer him away from his victim, and provide him with the opportunity to strike again.
But beyond the frequent lack of legal liability, there also has not developed around the law of sexual harassment--even when that harassment has crossed over into criminal activity--a culture of responsibility or accountability around the offending organization that hires, promotes, and defiantly retains the offender. Think about how many cases that make the news--national or local-- that involve multiple claims over years against the same offender (often escalating). Think about stories that you might have heard through your own employment experience about harassment allegations and how often the accused offender was merely transferred to another division of the company, slapped on the wrist, or ordered to attend "sensitivity training" with no sense of collective culpability forming around or within the organization that houses the incidents. Why is there public outcry against the University of Miami for its alleged role in the booster scandal, public outcry against Herman Cain for all that he has allegedly done, but no one seeking to hold the Restaurant Association accountable (even morally) for retaining an alleged harasser for as long as it did?
If we really are ushering in an era of accountability in which organizations take responsibility for what goes on within their walls, wouldn't it be nice if employers paid heed and engaged in a little bit more recognition and decrying of what they might be permitting, facilitating, or even willfully ignoring?
Pedagogical Experiments: A Daily Handout
In the past 3 years I have tried a pedagogical experiment in first year civil procedue that I thought I'd share, and on which I'd love feedback. The first year I taught the course I used powerpoints. I found they mmade class more static than I would like, that students fetishized them, that they prevented effective use of the blackboard, that I wanted to put more on them than was optimal, etc.
Thereafter I created a daily handout I post as a word document the morning of the class (I usually teach at 3:20 PM) and print for those who want it in hard copy. The "handout" that contains what I would have put on the powerpoints (along with some extras). I do this for each and every class day. I use them in a few different ways:
(1) Because we are now doing a one semester 4 credit Civ Pro, it is devilishly hard to get everything in that I think the students should know. Therefore, I often skip "fact revelation" socratism whereby I'd try to get them to state the facts by instead summarizing the facts for them, which I tell them to "refresh themselves on" by looking at the handout. This allows me to jump pretty quickly into the core issues of the case. I can do this, in part, because I trust my fellow section profs to do more fact digging in their courses and teach students that skill.
(2) Sometimes there are passages from the opinion to which I want the students to pay particular attention. Rather than read them out loud and have them try to type them or follow in the book, I just put them on the handout and tell them to read it to themselves quickly when we get there.
(3) I use lots of my own hypos, and often give them to the students to try ahead of time. I put these in the right place on the handout.
(4) The handouts create a mini-outline for the students. The idea is that they can intersperse into the handouts their own notes from class. I often make it almost a "fill in the blank" where I will indicate an objection, that there is a reply, but not put the reply itself in the handout. The handouts thus create a structure to the course for students who might otherwise be bereft.
Here is what one of these handouts looks like after the jump as well as some tentative evaluative thoughts:This is my handout for the day we spent on mutuality in issue preclusion (aka collateral estoppel). It begins with a main points of last time summary before getting into the meat. Typepad will butcher the formatting a bit...it looks prettier when I do it (but still fairly utilitarian).
Handout: Class 31
Main Points From Last Time…
- We finished the last requirement of claim preclusion, that Case 1 and Case 2 Were Asserted by the Same Claimant (or their privy) Against the Same Defendant (or their privy, and juxtaposed the workings of claim preclusion with the compulsory counterclaim rule FRCP 13(a).
- We then saw some of the differences between claim and issue preclusion, and under what circumstances you might be able to use one but not the other.
- We discussed most of the requirements for issue preclusion. Understand and be ready to apply them. Namely:
- (1) Case 1 must have ended in a valid final judgment on the merits.
- (2) The issue for which you are seeking issue preclusion in Case 2 must have been actually litigated and actually decided in Case 1. We played with variations when an issue was never raised, was raised but never determined, and complications relating to general versus specific jury verdicts.
- (3) The issue for which you are seeking issue preclusion in Case 2 must have been necessarily decided in Case 1. Perhaps easier to remember as being “essential” to the judgment in Case 1. To test if something is necessarily decided, ask if changing the decision on the issue would change the judgment in the case. If no, it was not necessarily decided. Understand the two functional reasons for the requirement, the issue of whether the jury took it seriously and the problem that if you won judgment but lost on an issue in Case 1 you cannot appeal.
- We briefly discussed the last requirement for issue preclusion: the issue for which you are seeking claim preclusion in case in Case 2 must be the same issue as the one in Case 1 (aka the “characterization” question). In most cases this is straightforward, but as we saw in close cases the Restatement Second of Judgments counsels a pragmatic multi-part test.
- We then introduced two complications to issue preclusion regarding changes in parties, which you should master: First, because of the Due Process clause, issue preclusion can only be sought against someone who was a party (or in privity with a party) in Case 1.
- Really two separate questions, be very careful not to confuse them. One is simple, about whether you can use issue preclusion against a stranger in Case 1, or otherwise put against whom preclusion may be used. Due Process clause is main constraint. The second more complicated question is whether a stranger to Case 1 may use issue preclusion against someone involved in Case 1, so who may use issue preclusion.
(I) Due Process and who is bound by issue prelusion:
- Goldberg v. Kelly and other cases regarding opportunity to be heard (meaningful time & meaningful manner). Transposed in this context means issue preclusion can only be used in Case 2 against someone who had a full and fair opportunity to litigate the issue in Case 1. To simplify a party can only be bound by issue preclusion, if they (or their privy) were a party to Case 1.
Hypo XIV-17: Jack sues Oceanic airlines for injuries sustained in a mysterious plane crash claiming that Oceanic’s negligence caused the crash. The case goes to trial and the jury gives a verdict for Oceanic, finding by way of a special verdict that the airline was not negligent. Kate, a fellow passenger of Jack’s who was not a party to Jack’s suit, brings a similar suit claiming that Oceanic was negligent. Can Oceanic claim issue preclusion against Kate on the matter of the airline’s negligence?
(II) Mutuality and who may seek to use Issue Preclusion
- By whom (not against whom) can issue preclusion be asserted? Not rooted in DP, so jurisdictions can differ on this issue.
Hypo XIV-18: Jack sues Oceanic airlines for injuries sustained in a mysterious plane crash claiming that Oceanic’s negligence caused the crash. The case goes to trial and the jury gives a verdict for Jack, finding by way of a special verdict that the airline was negligent. Kate, a fellow passenger of Jack’s in the crash, brings a suit thereafter, in which she seeks to get issue preclusion on the fact that Oceanic was negligent. Can she?
- For a long time the answer was no. The general rule was that estoppel must be mutual. That is “a judgment was binding only on parties and persons in privity with them, and a judgment could be invoked only by parties and their privies”
- Theoretical underpinnings, stability/predictability and desirable level of litigation.
- Mutuality begins to decline due to indemnification and vicarious liability:
Hypo XIV-19: Mad Max delivers Pizzas for Dominos. He hits Nightrider while trying to make a delivery in less than 30 minutes. Nightrider sues Max, and Max wins a verdict after trial with a special verdict from the jury finding Max was not negligent. Nightrider then sues Dominos on a vicarious liability theory (called “respondeat superior” when you commit a tort as part of the course of your duty). Can dominos get preclusion on the issue of Max’s negligence?
- If we adhered to strict rule of mutuality, no issue preclusion. But notice what that means. Two variations on what might happen next. (1) In one world imagine that Dominos has to litigate Case 2, it convinces the jury that Max was not negligent, it does, and dominos wins. Well then at least we get consistent results in Case 1 and Case 2, so we’ve wasted resources by litigating the same issue twice but at least we are consistent. (2) In the other possible world it goes the other way, the jury believes Max is negligent and Dominos loses. Well, now we have inconsistent verdicts between Case 1 and Case 2. What happens next. Dominos will pay out to Montazano, and then sue Max for indemnification (call this Case 3). If Dominos wins Case 3, Max ends up paying for an accident that according to Case 1 he did not cause. If Dominos loses, it ends up paying for a judgment the law says is not its primary responsibility. So either Max’s victory in Case 1 is rendered meaningless or Domino’s right to indemnification is rendered meaningless. That is not a happy result for the system either way.
- So, states began recognizing a narrow exception for mutuality. When the primary actor is found not negligent in Case 1, they will let the vicariously liable party get issue preclusion on that issue. Even in states that stick to mutuality, this exception is more or less universally followed.
- But once there was the first chink in the armor, courts started asking themselves whether they should do more than just carve out a narrow exception. The key decision is the 1942 decision of Justice Roger Traynor, of the Cal S. Ct. in…Bernhard
Bernhard v. Bank of America Nat. Trust & Sav. Ass’n, Cal. S. Ct. 1942 [CB 1306]
Facts: Elderly Clara Sather lives with the Cooks. She gave Mr. Cook (when joined by Dr. Zeiler, apparently her physician) authority to write checks on her behalf from her bank. Mr. Cook writes a large check to himself and his wife from Sather’s account and deposits the money in his own account. Sather dies.
Mr. Cook becomes the executor of Sather’s estate. After a few years he files an accounting of Sather’s estate with the probate court (and resigns as executor). His accounting makes no mention of the money he got transferred to he and his wife’s bank account.
Helen Bernhard and other beneficiaries object to the account for this discrepancy. The probate court, after a hearing, settles the account, finds it kosher, and holds that the money transferred by Cook was a gift that Sather made to Cook during her lifetime. This is Case 1:
Helen Bernhard (and others) vs. Cook, holding against Helen, it was a gift.
After Cook’s resignation, Helen becomes the administratrix of the will. She sues the bank saying it owed the estate the amount Cook had deposited, because it was not authorized by Sather. This is Case 2.
Helen Bernhard vs. Bank
The bank makes a general denial and raises an affirmative defense that the money was a gift from Sather to Cook, and that it deserved issue preclusion on this issue Bernhard responds, you can’t get issue preclusion because no mutuality.
Holding: “No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. Many courts have abandoned the requirement of mutuality and confined the requirement of privity to the party against whom the plea of res judicata is asserted. The commentators are almost unanimously in accord.” [CB 1308]
With mutuality out of the way the court then goes on to see if the other requirements of issue preclusion are met.
- Non-mutual defensive issue preclusion looks like this:
Case 1: Pl v. Def 1 (Pl loses on issue X)
Case 2: Pl v. Def 2 (Def 2, not a party to Case 1, tries to use issue preclusion to prevent relitigation of issue X)
Blonder Tongue Laboratories, Inc v. University of Illinois Foundation, S. Ct. 1971 [CB 1310]
Facts (not given in CB):
Case 1: University of Illinois v. Def 1 (Winegard Co.) claiming patent infringement of a patent owned by the University. University loses on ground its patent was invalid.
Case 2: University of Illinois v. Def 2 (Blonder-Tongue) claiming patent infringement of a patent owned by the university, but now against a different alleged infringer.
The second defendant wants to use issue preclusion on the question of the patent’s validity. This is non-mutual (Def 2 not a party or in privity with a party in Case 1). It is also defensive, in that Def 2 is using issue preclusion to defend against the University’s suit.
S. Ct.: Allows non-mutual defensive issue preclusion here. Frames the question as whether it is “any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue.” [CB 1310].
Costs to judicial system to relitigate over and over, but also costs to the parties themselves. “[D]efendant's time and money are diverted from alternative uses-productive or otherwise-to relitigation of a decided issue.” It also expresses some concern about “the plaintiff's allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or ‘a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.’” [CB 1310]
Admission that “neither judges, the parties, nor the adversary system performs perfectly in all cases” but suggests that the requirement that the party against whom issue preclusion is sought had a full and fair opportunity to litigate is enough of a safeguard. [CB 1311]
More on what a full and fair opportunity to litigate means in Parklane…
- In offensive non-mutual collateral estoppel, a stranger to Case 1 seeks to use issue preclusion as a sword against a party who was in Case 1. Usually it is a new Pl against a Def who was in Case 2. It typically looks like this:
Case 1: P1 vs. D (Def loses on issue X)
Case 2: P2 vs. D (P2 seeks to use issue preclusion to establish issue X in action against D)
Hypo XIV-20: Case 1: Jack sues Oceanic for the plane crash. Oceanic wins a verdict, with the jury finding by special verdict that Oceanic was not negligent. Case 2: The next day Kate, Jack’s fellow passenger, sues Oceanic. Can Oceanic get issue preclusion against Kate on the issue of its negligence?
By contrast, Hypo XIV-21: Case 1: Jack sues Oceanic for the plane Crash. Jack wins a verdict, with the jury finding by special verdict that Oceanic was negligent. Case 2: The next day Kate, Jack’s fellow passenger, sues Oceanic. Can Kate get issue preclusion against Oceanic on the finding of its negligence?
Whether to allow non-mutual offensive issue preclusion presents very hard choices for the system designer. Efficiency and consistency in favor of allowing it versus fairness to Def?
The U.S. S. Ct. made its choice (well, sort of) for federal law in….
Parklane Hoisery Co. v. Shore, S. Ct. 1979 [CB 1313]
Case 1: SEC v. Parklane, alleging that a proxy statement Parklane had issued was materially false and misleading. Sought injunctive relief. Four day trial leads to conclusion that the statement was false and misleading and entry of a declaratory judgment.
Case 2: Shore et al. v. Parklane, Class action alleging that Parklane had issued a materially false and misleading proxy statement in connection with a merger. Sought damages, rescission of merger, recovery of costs. Pls move for partial summary judgment against Parklane claiming issue preclusion on the issue of whether statement was materially false and misleading. Parklane objects saying issue preclusion here would deprive them of their 7th Amendment jury trial right.
District court: Agrees, denies the partial SJ on the ground of issue preclusion
2d Cir reverses.
S. Ct.: The issue set up is non-mutual offensive issue preclusion. In Blonder-Tongue we approved defensive use. Is there any valid basis for a distinction?
Not the same efficiency (judicial economy) gains in defensive and offensive?
More unfair to Def?
Test: We will not ban the use of non-mutual offensive issue preclusion altogether, but leave it to district court to make the determination whether appropriate. “The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.” [CB 1315]
Multiple factors as demonstrated in application to this case…(1) Could he have joined case 1? (2) Unfairness to defendant?
Part II of opinion: Does non-mutual offensive issue preclusion violate the 7th Amendment?
Obj: The argument is that if 7th Amendment preserved the right as it stood in 1791, and if in 1791, the law allowed issue preclusion only given mutuality of parties, non-mutual issue preclusion should be barred. Reply:
Dissent (Rehnquist, J):
- On unfairness?
- Thinks this violates the 7th Amendment. Much worse than SJ or JMOL.
- Even if we assumed arguendo no 7th Amendment violation, in this case non-mutual offensive issue preclusion would still be bad because: (1) runs counter to the strong federal policy favoring jury trials even if not against the 7th Amendment itself. (2) Jury trial really might make a difference as to the issue being precluded, i.e., they lost to a judge but might win to a jury, so unfair to give them that shot.
- Savings in judicial economy are minimal if they exist a lot. Real effect is on settlement behavior.
- Effect of non-mutual issues preclusion on propensity to settle?
- “Plaintiff shopping”
State of the law today:
- Some States do not allow non-mutual issue preclusion at all (call them mutuality states). But to my knowledge all states still make the vicarious liability/indemnity exception.
- Among states that do allow non-mutual issue preclusion, many bar the offensive variety while allowing the defensive variety.
- Other states follow the federal approach: allow both non-mutual offensive and defensive issue preclusion under specified circumstances…
- For offensive, consider whether (1) the party using issue preclusion could “easily have joined in the earlier action” (2) whether it would be unfair to defendant, in that (a) Def lacked an incentive to vigorously litigate (b) there were procedural opportunities available to the defendants in Case 2 that were unavailable to the Def in Case 1 (c) there were inconsistent judgments already on the books at the time Case 2 was litigated.
For defensive, which is less disfavored, you consider the fairness inquiry but not whether the party using issue preclusion could easily have joined.
- The burden of showing that the Parklane factors come out his way is on the party seeking to use issue preclusion.
- Offensive non-mutual issue preclusion will not lie against the government. The S. Ct. says so in United States v. Mendoza. S. Ct. 1984.
Hypo XIV-22: Countess Andrenyi sues the conductor of the Orient Express in federal court for negligence causing the train to crash leading to her loss of her right arm. The jury finds for the Countess and awards her damages. By special verdict it finds the conductor negligent. Poirot, another passenger, then sues and brings a second action in federal court against the conductor for the same accident. Poirot seeks issue preclusion on the conductor’s negligence. Can he get it?
Variation a: What if before that Colonel Arbuthnot, Princess Dragomiroff, Fraulein Schmidt, and 6 other Pls sued the conductor in individual suits and lost, with a finding of no negligence?
EVALUATION: Students have given me extermely positive feedback on these. Some students find them a bit long, and I am sympathetic, but I would rather err on the side of more rather than less. I have worried a little bit about them these handouts being shared between generations of students and stealing some of my "oomph," but so far it hasn't had that effect from what I can tell. It is the case that these handouts reduce the incentives to brief cases, but I have never been convinced that this such a great use of students' time to begin with (I often tell them to take whatever time they have set aside for my course in the week and take at least 1/3 and up to 1/2 to going over the material after class rather than prepping it before). The modal comment I get is this just wish these were available even earlier than 5 hrs before the class.
I am curious if others have tried this sort of thing, and also to discuss the pedagogical benefits and drawbacks with anyone through the comments.
Complaints about law schools as efforts to shift costs to law schools
Just a quick thought on the David Segal piece, following up on Matt's and Michael's posts: First, I think we are all sensitive to the fact that a great many of our students and recent graduates are anxious about the job market for lawyers and about the heavy weight of student-loan debts, and articles like Segal's reflect (even if they also exploit) that justifiable anxiety. And, one does not have to be the scam-blogger to think that those of us who are blessed with the opportunity to teach and write about law have a moral obligation to prioritize the task of reducing (even though we cannot eliminate) that anxiety, in every way that we can.
That said, I thought the Segal piece was, at the end of the day, off-base. It has its true, and truthy, moments, but it seems to take as its starting point a claim about legal eduation that is clearly false, namely, that there is something new about the fact that law schools do not produce graduates who are, at graduation, practicing lawyers, but instead produce graduates who have been comprehensively trained and pushed (we hope) to "think like lawyers." There never was a time, though -- or, there hasn't been a time since Langdell, etc. -- when recent graduates were "practice ready" and, if anything, today's graduates are the beneficiaries of more practical and experiential opportunities than were available before law professors got side-tracked by "chin stroking" scholarship.
I think that what's going on here is not that courageous voices-of-reform are urging a return to a better time of more "practical" legal education -- a time before those gosh-darn crits and economists forgot about the need of the bench and bar for more useful treatises -- but is instead that law-firm partners, confronted with the fact that clients are no longer willing, as they long were, to pay for the work of young associates (and thereby both subsidize the apprenticeship of those young lawyers and enable partners to take home more money than their own billables would warrant), are finding it convenient to take advantage of the anxieties caused by the economy (and perhaps also by the publicly-subsidized over-production of lawyers) and to dress up as "calls for reform" their efforts to shift the work (and costs) of training and apprenticeship -- work that was always more theirs than the law school's -- to law schools.
In other words, in the spirit of "not letting a crisis go to waste," I think this piece is (yet) another example of dressing up familiar (and often self-interested) complaints about legal education as insightful and brave calls for urgently needed reform. We are in a recession, and our law schools are producing more lawyers than, it appears, the legal sector is able (or willing) to absorb. This is a problem, but it has nothing to do with what's in law-review articles.
Sunday, November 20, 2011
Should the U.S. Prohibit Anonymous Sperm Donation?
In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in the Georgetown Law Journal, The New Kinship (not yet up on SSRN), and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”
In my new Article, Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, forthcoming in the same issue of the Georgetown Law Review (out in print in Jan or Feb 2012 and up on SSRN now), I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.
I demonstrate four problems with the arguments Cahn offers for eliminating anonymous sperm donation:(1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves.
(2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011) and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon).
(3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation.
(4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.
For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.
Scholarship and Lawyering
I'm sure by now many (if not all) of you have read David Segal's article in the New York Times "What They Don’t Teach Law Students: Lawyering." Matt's already put up a post critiquing the piece and some great comments have followed.
One thing that struck me when reading the piece was the following line: "Professors are rewarded for chin-stroking scholarship . . . ." Of course, what professors are typically rewarded for is article placement - I don't know of any school that has adopted a policy for rewarding only articles addressing the arcane. And while many law profs bemoan the submission process, it seems worth noting that students are the ones who select the articles. So it seems fair to say that, at least to some degree (professors may very well shape what their students consider good scholarship), students play a major role in the type of scholarship that law schools reward.
All this might be a good reason to support the current article submission and selection process (no, I'm not expressing a definitive view here). It provides students with the opportunity to shape scholarship in the legal academy and promote whatever type of research they deem important. If it is in fact true that students are selecting articles that lean more towards theory than practice, then profs will presumably follow suit. On that count, the climb of theoretical pieces might be seen as profs simply giving their clients - i.e. paying students - what they want.
Regulatory Changes, Part 2: Congressional Approval of Regulations
I'll be blogging a little bit about some basic changes to our regulatory system that are percolating in Congress. A lot of these ideas (and others just as fundamental) have been proposed before, but given the current political climate passage of some or all of these ideas may be more likely now than in a long time, at least if the 2012 elections go the GOP's way. The first installment of this series, about the re-institution of formal rulemaking, can be found here.
The second idea I want to talk about is the proposal to require congressional approval before regulations take effect. Under current law, major regulations are subject to a disapproval vote by Congress (not a legislative veto, but a full-blown statute wiping out the reg -- the statutory provision allows some fast-tracking of such disapproval votes, which is what it adds to Congress's inherent power to wipe out a regulation by statute). S. 299 and H.R. 10, the latter of which is known as the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2011, would change this. Under these proposals "major rules" (that term being defined more broadly than under the current Executive Orders setting forth OMB review of rules) would be presented to Congress, which would have 70 days to approve them by joint resolution. If it didn't approve the rule then the rule could not take effect. The President could force a rule to go into effect for 90 days under certain limited circumstances.
Leave aside constitutional questions, such as whether a joint resolution would still fall short of the bicameralism needed to enact legislation, despite the fact that the agency, presumably though not necessarily speaking for the President, proposed the regulation. As a simple matter of policy this seems to be a terrible idea. Agencies often have to make difficult balancing decisions when they seek to put into effect broad congressional mandates. The idea that Congress would have to vote on the actual ox-goring decisions made by agencies makes me wonder if any significant regulation would emerge from this process, or whether instead we'd end up with an endless cycling process by which agencies propose regs and different factions of Congress succeed in thwarting the construction of a coalition in favor. Or maybe at some point an agency would simply give up. Or start enforcing statutes on an under-the-table, enforcement action-by-enforcement action approach, with, at most, non-binding guidance documents giving the public any clue about the agency's general thinking. (I suggested that might also be a possible outcome of another current proposal's plan to force agencies to engage in formal, trial-type procedures when rulemaking.)Defenders of the provision argue that it would make Congress accountable, by forcing it to vote up or down on the actual impacts of the grandly-worded but vague statutes it sometimes like to enact. I appreciate the argument in theory, but I do wonder if there is merit to Jerry Mashaw's argument from the 1980's that agencies should be the ones responsible for making hard regulatory decisions, at least when they come down to putting them into concrete mandates. At the very least, this seems to be true to the extent we want those decisions to be more technocratic and somewhat less infused with unadulterated politics.
There are lots of other things one could say about this provision, but I will leave the matter with one question someone raised during a discussion of this provision at the ABA conference last week. Say this provision is enacted, and Congress votes up a particular regulation. Does the regulation get any judicial review at all, beyond classic rational basis review, since now it's the product of Congress and not an agency? In other words, would this provision do away with "arbitrary and capricious" review of the major rules subject to that provision's congressional vote requirement? It's hard to see an answer other than "yes" -- i.e., no A&C review. That might be OK in light of the fact that it would be Congress essentially doing the hard look review (though it's surely doubtful whether Congress's criteria on review would be similar to those of a court's on judicial review). But if so, then this provision would work a massive change in the role of the courts in our administrative law system -- an "avulsive change," to use Justice Scalia's disparaging language from United States v. Mead Corp.. It's this type of realization that illustrates just how far-reaching (yes, radical) some of these provisions are.
A Recipe for Trashing Legal Scholarship
- A premise based on a hazy cliche, such as: "Of course, much of academia produces cryptic, narrowly cast and unread scholarship.";
- A few particularly esoteric article titles -- law & philosophy if possible;
- A complete misunderstanding of Ed Rubin's program for reform of the legal academy, which in fact seeks to increase the role of legal research in law school pedagogy;
- A couple of hostile throw-away quotes from Supreme Court justices;
- A truly bizarre calculation of the "cost" of legal scholarship, based on back-of-the-envelope calculations and unsupported assumptions;
- An unwitting job candidate, whose scholarly work can provide a few more esoteric-sounding titles and food for ridicule; and
- An overall theme for the story (the nature of legal education) that is, in fact, something worth debating -- and in fact is being debated quite vigorously within the academy.
Directions: Mix together in the preeminent newspaper of our country. Half-bake and serve.
Seriously, I hope other folks jump on this -- it's really demoralizing and infuriating to read this in the New York Times. It's a head-scratcher. I was just writing over at the Glom about the respect and appreciation the Delaware Chancery has for legal scholarship. And then we get this.
Segal says at one point, in attempting to show the impracticality of legal scholarship:
Some articles are intra-academy tiffs that could interest only the combatants (like “What Is Wrong With Kamm’s and Scanlon’s Arguments Against Taurek” from The Journal of Ethics & Social Philosophy).
The article is (a) a philosophy article written in (b) a philosophy journal (a self-described "online peer-reviewed journal of moral, political, and legal philosophy") (c) by a philosophy professor. I mean, really. Is that the best you can do?
Saturday, November 19, 2011
Personal impact of the Penn State story
I had the privilege of working with Mark during my visit at SLU a few years ago. This piece is devastating, eye-opening, and encouraging all at the same time.
Friday, November 18, 2011
Impact of Hosanna-Tabor?
A friend sent me this link about a Fair Labor Standards Act case recently filed against the National Council of Synagogue Youth (NCSY). I haven't seen the complaint, but the news blurb says the plaintiff was a youth group advisor and her responsibilities included "teaching classes, meeting with students and co-workers, cooking for holiday meals and running programs, . . . and she worked around the clock while chaperoning [weekend religious retreats] and trips."
When I saw the story, it struck me that the claims would pretty clearly run up against the "ministerial exception." On its webpage, NCSY describes itself as "the premier organization dedicated to connect, inspire and empower Jewish teens and encourage passionate Judaism through Torah and Tradition." The plaintiff appears to have been a youth advisor for events aimed at the religious "inspiration" of teens (religious teaching, coordinating religious events and holidays etc.). So it seemed to me that pre-Hosanna-Tabor precedent (see, e.g., Schleicher v. Salvation Army, 518 F.3d 472 (7th Cir. 2008); Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299 (4th Cir. 2004)) would likely counsel dismissal of the case.
And so the following question struck me. Has there been a visible uptick in complaints with claims implicating the ministerial exception with an eye towards that Supreme Court's decision in Hossana-Tabor? I might have thought parties would wait to see the Supreme Court's decision, but maybe the uncertainty itself is enough to trigger a wave of new litigation.
Standing to appeal and Prop 8
The Supreme Court of California yesterday held unanimously that the proponents of Prop 8 have standing as a matter of state law to defend the constitutional validity of the provision and to appeal the adverse judgment, at least where state executive and legislative officials decline to defend the law. The court adopted a theory under which the proponents of the initiative represent the interests of the people and the state, declining to consider whether the proponents enjoy a unique personal interest in the validity of the law. It grounded this theory of standing in the initiative process itself, seeing proponent standing as necessary to the process of direct democracy itself.
The case now returns to the Ninth Circuit, which at least formally must consider whether that theory of state-law standing satisfies Article III, particularly the dicta in Arizonans for Official English. But the answer to this seems clear, since the Ninth Circuit in its opinion certifying the issue to the SCoC and the Perry plaintiffs in their briefing all seem to concede that Article III standing will follow from state-law standing. And this conclusion probably makes sense, if we think of the initiative sponsors as akin to legislators (or legislative sponsors) introducing an ordinary law (and who would have standing were the executive to decline to defend). So it appears the Ninth Circuit will have to reach the merits (which already have been briefed and extensively argued), although not likely in time for the case to get to SCOTUS this term.
On a related point, if official initiative proponents are going to have this power to intervene and defend (and the Perry opinion discussed other states recognizing a similar right for initiative sponsors), perhaps we also should think about what obligations come with this power, in particular what sponsors' positions tell us about the initiative's meaning and interpretation. Glenn raised this in an earlier post on the Mississippi personhood amendment (which failed overwhelmingly in the end). In comments to that post, I mentioned Glen Staszewski's The Bait-and-Switch in Direct Democracy, which considers the question of how sponsor arguments in the electoral process affect interpretation in postelection challenges. Perhaps another way of thinking of this is in terms of something like judicial estoppel--the arguments and positions proferred in the electoral process estop certain arguments in postelection litigation.
Sing it, brother
Earlier this month I attended a panel of non-legal academics, including a talk by a natural scientist (he was an ecologist or something along those lines), who was talking about the effects of climate change on animals who affect glacial lands (e.g., animals that burrow, animals that trample land, etc.). He had some great slides of photographs, maps, charts, etc., all of which were helpful and necessary to understanding his talk. But he also included the text of his talk on each slide and read it (then occasionally elaborating extemporaneously). It just seemed unnecessary.
The First Draft of the OWS Constitution?
UPDATE: A commenter points out that the list I discuss below is just a single person's contribution and has no official status. Mea culpa! (One reason I've gotten so many posts written lately is that I've been writing them at 6 am. One reason there have been errors is that I've been writing them at 6 am.) I'll leave it up as an embarrassing lesson to myself.
Per my recent post and Mark's post as well, here is what purports to be a "proposed list of OWS demands." I reprint them after the jump. Perhaps others can contribute some background, but I can't vouch for the accuracy, basis, or provenance of these proposed demands. The Internet's a funny place. Plus, leaving aside questions of whether the OWS movement would be better off with specific demands or not, it's still a "movement," and one could imagine an OWS Constitution that is both larger and smaller than the specifics spelled out in the list. But certainly, if this list is an accurate statement of (some of) the basic demands of (some of) the OWS movement, it involves a different Constitution than the one we have now, or at least a different understanding of the Constitution.
From my point of thinking, some of these demands may or may not have something to do with a more just society, but have very little to do with "Wall Street" per se, or what the "Wall Street" idea is supposed to stand for. And some of it bears a very odd relationship to the trope of the one percent versus the 99 percent. I understand that this trope is not just about populism, although that is surely an element of it. But who is more likely to support a demand to end not only the death penalty but also to eliminate sentences of life imprisonment--the one percent, or the 99 percent? Who is most likely to favor animal rights laws--the one percent, or the 99 percent?
And as a law and religion scholar, I am particularly interested in this one: "Make homeschooling illegal. Religious fanatics use it to feed their children propaganda." I assume a word is missing before "propaganda," because I would have thought that the OWS movement, just like everyone else, also believes in feeding its children propaganda; maybe the word "religious," or "harmful," is missing before the word "propaganda," or maybe it should read "propaganda we don't like." And, again, I think the relationship between the one percent and the 99 percent is oddly related to this demand. Based on the (contested) data I have seen, plenty of homeschooling families earn less than $50,000 a year, and although the average income of homeschooling families has increased, they are still not among the wealthiest of the wealthy. Most Wall Streeters are not hoping to homeschool their children and feed them religious or non-religious propaganda; they are more likely on waiting lists for expensive private daycares and elementary schools. Even if there are many economic issues on which there is a genuine gap in interests or beliefs between the one percent and the 99 percent (nothing turns on that question for me), what this list--and especially items like the homeschooling demand--suggests to me is that there are also lots of social issues on which the one percent and those members of the 99 percent who are represented in OWS are far closer together than the rest of the country.
Here's the list:
Repeal the Taft-Hartley Act. Unionize ALL workers immediately.
Raise the minimum wage immediately to $18/hr. Create a maximum wage of $90/hr to eliminate inequality.
Institute a 6 hour workday, and 6 weeks of paid vacation.
Institute a moratorium on all foreclosures and layoffs immediately.
Repeal racist and xenophobic English-only laws.
Open the borders to all immigrants, legal or illegal. Offer immediate, unconditional amnesty, to all undocumented residents of the US.
Create a single-payer, universal health care system.
Pass stricter campaign finance reform laws. Ban all private donations. All campaigns will receive equal funding, provided by the taxpayers.
Institute a negative income tax, and tax the very rich at rates up to 90%.
Pass far stricter environmental protection and animal rights laws.
Allow workers to elect their supervisors.
Lower the retirement age to 55. Increase Social Security benefits.
Create a 5% annual wealth tax for the very rich.
Ban the private ownership of land.
Make homeschooling illegal. Religious fanatics use it to feed their children propaganda.
Reduce the age of majority to 16.
Abolish the death penalty and life in prison. We call for the immediate release of all death row inmates from death row and transferred to regular prisons.
Release all political prisoners immediately.
Immediate withdrawal from Iraq and Afghanistan.
Abolish the debt limit.
Ban private gun ownership.
Strengthen the separation of church and state.
Immediate debt forgiveness for all.
End the 'War on Drugs'.
A Soap Impression of His Wife
As I previewed earlier this week, I want to talk about the copyright implications for 3D printers. A 3D printer is a device that can reproduce a 3-dimensional object by spraying layers of plastic, metal, or ceramic into a given shape. (I imagine the process smelling like those Mold-a-Rama plastic souvenir vending machines prevalent in many museums, a thought simultaneously nostalgic and sickening). Apparently, early adopters are already purchasing the first generation of 3D printers, and there are websites like Thingiverse where you can find plans for items you can print in your home, like these Tardis salt shakers.*
Perhaps unsurprisingly, there can be copyright implications. A recent NY Times blog post correctly notes that the 3D printer is primarily suited to reproduce what § 101 of the Copyright Act calls "useful articles," physical objects that have "an intrinsic utilitarian function," and which, by definition, receive no copyright protection...except when they do.A useful article can include elements that are protectable as a "pictorial, graphic, [or] sculptural work." The elements are protectable to the extent "the pictorial, graphic, or sculptural features...can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." There are half a dozen tests courts have employed to determine whether protectable features can be separated from utilitarian aspects. Courts have rejected copyright protection for mannequin torsos and the ubiquitous ribbon bike rack, but granted it for belt buckles with ornamental elements that were not a necessary part of a functioning belt.
Print out a "functional" mannequin torso (or post your plans for it on the internet) and you should have no trouble. Post a schematic for the Vaquero belt buckle, and you may well be violating the copyright protection in the sculptural elements. But even that can be convoluted. The case law is mixed on how to think about 2D works derived from 3Dworks, and vice versa. A substantially similar 3D work can infringe a 2D graphic or pictorial work (Ideal Toy Corp. v. Kenner Prods. Div., 443 F. Supp. 291 (S.D.N.Y. 1977)), but constructing a building without permission from protectable architectural plans was not infringement, prior to a recent revision to the Copyright Act. Likewise, adrawing of a utilitarian item might be protectable as a drawing, but does not grant the copyright holder the right to control the manufacture of the item.
And if consumers are infringing, there is a significant risk that the manufacturer of the 3D printer could be vicariously or contributorily liable for that infringement. The famous Sony decision, which insulated the distribution of devices capable of commercially significant noninfringing uses, even if they could also be used for copyright infringement, has been narrowed both by recent Grokster filesharing decision and by the DMCA anticircumvention provisions. The easy, but unsatisfying takeaway is that 3D printers will keep copyright lawyers employed for years to come.
Back to the Tardis shakers, for a moment: the individual who posted them to the Thingiverse noted that the shaker "is derivative of thingiverse.com/thing:1528 and thingiverse.com/thing:12278", a Tardis sculpture and the lid of bottle, respectively. I found this striking for two reasons. First, it suggests a custom of attribution on thingiverse, but I don't yet have a sense for whether it's widespread. Second, if either of those first things are protectable as copyrighted works, (which seems more likely for the Tardis sculpture, and less so for the lid) then the Tardis salt shaker may be an unauthorized, and infringing, derivative work, and the decision to offer attribution perhaps unwise in retrospect.
* The TARDIS is the preferred means of locomotion of Doctor Who, the titular character of the long-running BBC science fiction program. It's a time machine / space ship disguised as a 1960s-era London police call box. The shape of the TARDIS, in its distinctive blue color, is protected by three registered trademarks in the UK.
The Constitutions of the Priesthood and the Laity
Mark's post about an OWS Constitution again inspires me to share some thoughts. (I emphasize "inspires"; my thoughts are not necessarily related to Mark's, and I've had them for some time.) Obviously a good deal has been written about the Tea Party Constitution, as Mark notes; check out some of Jared Goldstein's writing on this in the last year. And we could imagine the same exercise for the OWS folks, hopefully without the use of human loudspeakers.
One way to think about these matters, I think, is to think about two different communities of constitutional interpreters.One is the community most of us on this blog belong to: call us the priestly caste. Ours is a vision of the Constitution that relies on conventional texts and history, on conventional precedents, on conventional thoughts about institutional allocation, in which we participate in conventional debates over matters like the legitimacy of judicial review, and so on. I emphasize "conventional" rather than "best" or "proper," because while I tend to think we have relied on the right sources, to some degree that conclusion depends on a process of certifying particular sources, debates, and understandings as "legitimate." Just as the old saying goes that in order to be let into the polite society of constitutional interpreters, you have to disdain Lochner and praise Brown (neither of which is as true as it used to be), so a whole set of assumptions, sources, and vocabulary ultimately marks one as a member of the priestly caste of constitutional interpreters and allows one to participate in those discussions as a member in good standing.
But there is also another Constitution and another constitutional debate. Call it the Constitution of the laity. I don't know whether it's the same as the usual discussions about "popular constitutionalism," but it obviously is closely related. Whether it's the OWS or the Tea Party version, it will rely on a radically different set of understandings, and, especially, a different set of canonical texts and debates. Sometimes it is a more free-flowing discussion, and sometimes it is actually and perversely more legalistic; as anyone who has dealt with a pro se plaintiff knows, people outside the club can often be more fascinated with technicalities than people inside it, who can rely on all kinds of shared "common-sense" understandings. Because it relies on such different texts and understandings and debates, the lay Constitution can often have, for those inside the priestly caste, a kind of occult aspect to it. Different cases and figures will be at the center of the debate: Woodrow Wilson, Citizens United, etc. Is this any less of a "real" Constitution? Any less "legitimate?" From within the priestly caste, I don't think I can answer that. But it exists, and it will continue to exist as long as American society's conversations take place at more than one level and in more than one social circle. It is easy for members of the priestly caste to ignore or disdain the lay Constitution, and generally that's just what they do. But I think that is a mistake. It is probably true, however, that the lay Constitutions will have little force unless they become translated into the understandings of the priestly caste, as long as we have a good deal of gatekeeping control on matters like what is a "legitimate" understanding of the Constitution, or of methods of constitutional interpretation.
On a related point, the last thing worth focusing on--a fascinating aspect of these two Constitutions that has gotten some attention but not enough--is that a few figures have a foot in both camps, serving as moral entrepreneurs who can explain one group to the other, or who can legitimate lay understandings of the Constitution and bring them within the realm of the priestly caste's discussions. In the Tea Party Constitution realm, that figure is clearly Randy Barnett. Many people have written about his success in making some interpretations and arguments that once seemed "off-the-wall" into "on-the-wall" arguments that have become points of genuine contestation within the priestly caste of lawyers, judges, and law professors. We might get further insights into his role, and his successes, by focusing on the ways in which he has served as a bridge between the lay and priestly Constitutions. We could think, too, about the dangers and/or obligations involved in serving as such a figure.
I don't know that anyone has served that role with respect to the OWS Constitution, if there is such a thing. I can't say why that is, and indeed I'm not sure that there is yet an OWS Constitution. But if there is to be an OWS Constitution and if it is to have any chance of success it will probably need a moral entrepreneur too: someone to serve as a bridge between its own "occult" understandings and arguments, and the conventional realm of the priestly Constitution.
Thursday, November 17, 2011
Regulatory Changes, Part 1
It's interesting when everything you thought was settled in a field you teach is suddenly up for grabs. Administrative law professors have been thinking a lot about recent proposed changes to the administrative process, some of which unsettle forty year-old understandings, and others of which reach back and significantly amend the Administrative Procedure Act itself. I'll be blogging about some of these proposals over the next week or so. To my mind they merit the attention given the possibility that Republicans could take control over the White House and Senate next year, and thus possibly be in a position to force these changes through. (These changes are generally being pushed by Republicans, though some of them have Democratic sponsors as well.)
I'll start with one example. One of the primary reform bills under consideration, the Regulatory Flexibility Act (S. 1606/H.R. 3010), mandates a formal hearing concerning the agency's use of data supporting the proposed rule when a party makes out a prima facie case that the agency has misused that data or used bad data. It then seems to require a second formal hearing on the merits of the rule itself.
Even this one set of provisions is enough to make an administrative law professor gasp. Formal, trial-type, procedures in rulemaking have been strongly disfavored ever since the early 1970's, for the simple, but powerful, reasons that (1) such procedures simply don't match up to the process of promulgating a generally-applicable, technocratically-based, rule, and (2) they slow down the regulatory process considerably. Indeed, the charge has been leveled, quite plausibly, that much more modest judicial innovations to the APA's informal rulemaking process have greatly ossified that process. Nor is the argument against such proceduralization simply a plea for more regulation. Rather, there's a real argument that such procedural mandates will only lead agencies to hide any regulation they manage to accomplish behind a veil of case-by-case adjudications or ostensibly non-binding guidance documents and other administrative vehicles exempt from rulemaking requirements. (It should be noted, though, that these reform efforts aim at making it harder for agencies to issue guidance documents, too.)Like I said, for an administrative law professor it's disorienting to hear proposals discussed that would revisit what were thought to be disputes that were resolved a long time ago. But beyond that point, they were resolved as they were for a good reason. To my knowledge there's no administrative law scholar who favors increased emphasis on formal rulemaking, at least not as a general matter. It will be interesting to see if, after all this time and all this consensus, this and other such changes get serious hearings, either before or after the election.
Strategizing on partner hiring
At the Faculty Lounge, Sharona Hoffman, who is chairing appointments at Case-Western, reports that she is experiencing what I wrote about last month: the rise of candidates with partners looking for academic jobs. Working on the assumption that couple hiring is worth considering (a view I share), Sharona raises several issues: 1) whether committees can ask this question at the AALS meeting; 2) at what point candidates do or should reveal this issue to the committee and the dean; and 3) the extent to which schools in the same city or geographic area might work together to find jobs for both parts of the couple.
Number 3 is an interesting idea that works well for schools like us (and Case), being in a city with four other law schools nearby or relatively nearby. I believe my dean has in the past had discussions with the deans at other law schools about the spouses of people we have been recruiting. Nothing ever has come of it, but it is not inconceivable.
As for # 1, that is tricky. As I understand federal and Florida law, it is unlawful to consider marital status in hiring decisions (and thus improper to ask a question about marital status), but not unlawful to consider the identity of a spouse in hiring (thus the reason anti-nepotism policies remain lawful). But the line between those two is so thin, I imagine most GCs would strongly advise faculty against asking that question.
This is a situation in which the candidate has the informational advantage. Many candidates are very open about the issue early in the process, revealing it as early as the invitation to meet in DC or in DC itself. But note the tricky balance for the candidate in being so forthcoming. The committee might appreciate the candor. Or the committee might find it off-putting, that the candidate is fishing to get her spouse a job or is only interested in the school if it will also hire her spouse. Or the committee may decide not to continue with that candidate, knowing that some on the faculty categorically object to couple hiring. The safest move for the candidate is to wait until she has the offer. But by then the school may be unable to accommodate the spouse (no lines, no money, no need), or at least able to accommodate than it would have been had it had this information earlier. Or it just will have wasted time and money on a candidate it will be unable to get.
Yesterday, the House of Representatives held hearings on the Stop Online Piracy Act (it's being called SOPA, but I like E-PARASITE tons better). There's been a lot of good coverage in the media and on the blogs. Jason Mazzone had a great piece in TorrentFreak about SOPA, and see also stories about how the bill would re-write the DMCA, about Google's perspective, and about the Global Network Initiative's perspective.
My interest is in the public choice aspect of the hearings, and indeed the legislation. The tech sector dwarfs the movie and music industries economically - heck, the video game industry is bigger. Why, then, do we propose to censor the Internet to protect Hollywood's business model? I think there are two answers. First, these particular content industries are politically astute. They've effectively lobbied Congress for decades; Larry Lessig and Bill Patry among others have documented Jack Valenti's persuasive powers. They have more lobbyists and donate more money than companies like Google, Yahoo, and Facebook, which are neophytes at this game.
Second, they have a simpler story: property rights good, theft bad. The AFL-CIO representative who testified said that "the First Amendment does not protect stealing goods off trucks." That is perfectly true, and of course perfectly irrelevant. (More accurately: it is idiotic, but the AFL-CIO is a useful idiot for pro-SOPA forces.) The anti-SOPA forces can wheel to a simple argument themselves - censorship is bad - but that's somewhat misleading, too. The more complicated, and accurate, arguments are that SOPA lacks sufficient procedural safeguards; that it will break DNSSEC, one of the most important cybersecurity moves in a decade; that it fatally undermines our ability to advocate credibly for Internet freedom in countries like China and Burma; and that IP infringement is not always harmful and not always undesirable. But those arguments don't fit on a bumper sticker or the lede in a news story.
I am interested in how we decide on censorship because I'm not an absolutist: I believe that censorship - prior restraint - can have a legitimate role in a democracy. But everything depends on the processes by which we arrive at decisions about what to censor, and how. Jessica Litman powerfully documents the tilted table of IP legislation in Digital Copyright. Her story is being replayed now with the debates over SOPA and PROTECT IP: we're rushing into decisions about censoring the most important and innovative medium in history to protect a few small, politically powerful interest groups. That's unwise. And the irony is that a completely undemocratic move - Ron Wyden's hold, and threatened filibuster, in the Senate - is the only thing that may force us into more fulsome consideration of this measure. I am having to think hard about my confidence in process as legitimating censorship.
Cross-posted at Info/Law.
Posted by Derek Bambauer on November 17, 2011 at 09:15 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Deliberation and voices, First Amendment, Information and Technology, Intellectual Property, Music, Property, Web/Tech | Permalink | Comments (9) | TrackBack