« November 2011 | Main | January 2012 »

Tuesday, December 13, 2011

AALS and Fed Soc Conferences

As mentioned before, we'll be hosting, along with our friends at Co-Op and the Faculty Lounge, among others, our annual AALS happy hour. In the next day or so, we'll have nailed down the details of where it will be, but for now please mark your calendars for Thursday January 5th from 9pm-midnite.  Thanks to our friends at Drexel University Earle Mack School of Law, and in recognition of its recent accreditation, the bar tab will be covered to some substantial extent! More details on that to follow too.

Speaking of the happy hour, those of you keen to buy a hard copy of my wife's new novel, This Is Our Story, can do so there. Wendi Adelson will be there at least for the first hour to sign copies. You can of course download the book on your Kindle already.

Finally, I want to mention that in addition to the AALS monster conference at the Mariott, the Federalist Society will be hosting its annual shadow conference over at the Omni Shoreham next door. In what must have been some sort of a mixup, a forthcoming paper of mine was selected as one of the winners of the Young Legal Scholars Paper Competition so I'll be talking about crime, punishment, democracy blah blah blah for a few minutes. Poor Eugene Volokh is tasked with commenting on this albatross on Friday morning, as well as William Baude's paper on Beyond DOMA. Also on that day, some other notorious conservatives from the Prawf-o-sphere, Steve Vladeck and Joe Slater, will be speaking. You can find out more about the conference, and register for free over here. Hope to see you there (or in DC more generally).

Posted by Administrators on December 13, 2011 at 12:15 PM in Blogging, Food and Drink | Permalink | Comments (1) | TrackBack

Interesting Questions About Shaming and Accountability

I recently returned from a wonderful visit at the IDC in Herzliya, where I taught a mini-course on punishment theory; it was a good opportunity for me to test out some materials from Criminal Law Conversations (which I now highly recommend, by the way). All that is background to a question I just received from a student of mine there who asked, on behalf of her friend, of a possible campaign to hold deadbeats responsible for their delinquency. 


"Here is the rundown: My organization wants to come up with an innovative project that furthers women's rights in some way.  My boss came up with the idea for a website that would allow women who have gone to court and won a judgment against their ex-husbands for child support or whatnot (which the ex-husband is not paying or complying with) and post their picture and a summary of the judgment on the internet. The point being to hold these men publicly accountable and maybe shame them into paying up. This sounds like it has a potential of being illegal and crossing some confidentiality boundaries. In the U.S. are family court decisions open record?"
My student raised another question regarding shaming for child support issues. She said she thought that in Seattle one can be held in contempt of court and incarcerated for failing to pay child support. If contempt of court is a crime, then would it become part of the public record or would that be a private family court decision? 
Although I've written on public shaming sanctions, I don't know the specific governing law as to this issue in Washington or Israel for that matter. But the issue here is private shaming, not public shaming. It makes me think of the story about the South African radio station trying to stigmatize men who, on account of their philandering, were introducing HIV to their spouses; the radio djs called out the men for bad behavior on the radio station. My intuition would be that free speech principles coupled with private actors and public records would be sufficient to prevent legal recourse by these "shamed" men both in the US and in Israel, but I'd be curious to hear if others disagree as a practical matter, putting aside the normative issues of whether such men should be shamed. For what it's worth, I have reasonably strong views against public (state-sponsored) shaming, but privately initiated exposure of wrongdoing, especially when it is intermediated by the internet and it reflects wrongdoing that has already been adjudicated, is quite different and doesn't raise a lot of the same concerns I have elaborated elsewhere.
(Only signed, verifiably addressed, and substantive comments are invited.)


Posted by Administrators on December 13, 2011 at 11:09 AM in Blogging, Criminal Law, Culture | Permalink | Comments (2) | TrackBack

Stanley Fish on Teaching Law

Here (H/T: Kerri Stone). Stanley takes on The Times' "law is now regarded as a means rather than an end" and sees it as an assault on law akin to the assault on traditional liberal arts.

Posted by Howard Wasserman on December 13, 2011 at 09:29 AM in Howard Wasserman, Teaching Law | Permalink | Comments (9) | TrackBack

Monday, December 12, 2011

The Politics of Immigration versus McCulloch's Tradition of Dual Federalism

One of the deeper traditions of American federalism is that, absent mutual consent, each level of government enforces only its own laws. This tradition has both centralizing and decentralizing implications. On the side of centralization, there is a presumption that states cannot horn in on the business of implementing federal legislation without the permission of the federal government. On the decentralizing side, there is a constitutional norm that Congress cannot impose an obligation on the states to enforce federal laws against private persons without the states' consent. Both of these traditions emerge from the same notion outlined in McCulloch -- the idea that the federal government's "means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends." (McCulloch 17 U.S. 316, 424 (1819)).

But this McCulloch-based tradition is thoroughly upended in the context of immigration. On one hand, self-styled conservatives who profess a fondness for state power angrily denounce state and local governments that refuse to lend their law enforcement personnel to the task of carrying out federal immigration policy. Next Gingrich was so incensed by this non-federal defiance of federal immigration policy that he called for stiff spending clause sanctions on states that adopt or permit such "sanctuary" policies.

On the other hand, the Court's cert grant in Arizona v. United States highlights conservatives' willingness to allow the states to commandeer federal policy, again contrary to McCulloch's traditional prescription. Although the issues of statutory construction are complex, the basic claim of Arizona is that the Immigration & Naturalization Act ("INA")'s authorization for non-federal governments to "cooperate with the Attorney General" in immigration enforcement allows Arizona to "help" the feds carry out the INA even when the Attorney General affirmatively rejects that "help." As I have argued elsewhere, the plain meaning of "cooperat[ion]" implies mutual agreement by both sides of the cooperative bargain. But the problem with Arizona's position is not merely that it seems like an odd reading of the text: It is also an odd reading of U.S. constitutional presumptions. The normal presumption is, as McCulloch indicates, that the federal executive decides how to carry out federal statutes. Jay Bybee's 2002 OLC memo defending an "inherent" right of the states to enforce federal immigration laws is the apotheosis of this extraordinary reversal of McCulloch's presumption that "on [federal] means alone was [the federal government] expected to rely for the accomplishment of its ends."

What is going on? Why are conservatives loading states with powers to meddle in federal business while denying them the right to abstain from enforcing federal law? Does anti-immigrant fervor simply induce them opportunistically toss federalism norms (not to mention the theory of the unitary executive) out the window? Or is there a new and different but nevertheless sensible theory of federalism brewing in these anti-immigrant stances?

Posted by Rick Hills on December 12, 2011 at 10:24 PM | Permalink | Comments (0) | TrackBack

ISO Model Recent Job Talks

A big part of my job running a fellowship program to prepare entry-level candidates for teaching in health law, bioethics, and biotechnology, is helping my fellows prepare top-notch job talk papers. What makes a good job talk paper is not at all self-evident to someone beginning the process (or even a few years in), and one of the first things I suggest they do is read the job talk papers by our fellows in the last several years and we discuss them.

This is got me thinking it might be a good service to the blogosphere in general (and prospective entry-levels in particular) if we could generate a list of good recent job talk papers that capture the genre (or perhaps genres) of the entry-level job talk paper well, and also highlight what we think is good about these papers.

Below I will list two, but what is more important is that I hope others will use the comments section to suggest others to read.

I should emphasize that a "model" job talk paper is not equivalent to the person who did the best on the market, or gave the best job talk. Some job talk papers have a bit of a high risk/high reward feel to them, where the force of the personality delivering them or their skill at Q & A makes them work rather than the actual paper itself. So what I have in mind as a "model" paper is something that is "solid" even more so than "brilliant."

With those caveats, here are two I'd recommend, but I really hope others will add other entry-level papers from the last 5 years or so...

Abigail Moncrieff, Federalism Snowballs: The Need for National Action in Medical Malpractice Reform

Christopher Robertson, Blind Expertise

This list is obviously somewhat parochial -- both were former fellows at my center. Why did I think these were really good?

A few reasons: Both have a simple yet powerful, graspable, easily summarized idea at their core that will appeal to people in many different legal fields/theoretical orientations. Around this juicy center, they layer a significant amount of methodological/field specification (more political economic for Moncrieff, more game theoretical for Robertson). The insight is raised in a specific context but has ready application beyond it. Finally, each nicely sets up a larger more generative project/research agenda for the author (on expertise and bias for Robertson, on health care federalism for Moncrieff).

Posted by Glenn Cohen on December 12, 2011 at 08:59 PM in Article Spotlight, Getting a Job on the Law Teaching Market | Permalink | Comments (1) | TrackBack

Two Easy Ways to Make Junior Faculty Happy

Talking to entry level candidates this hiring season, I spend a lot of time explaining why I think Arizona State is such a great school for junior faculty.  Our former associate dean (and now interim dean), Doug Sylvester, instituted a number of policies that help promote junior faculty and to foster a great culture of intellectual collaboration.  It recently occurred to me that there are at least two things we do here at ASU that an associate dean (or even just an enterprising junior faculty member) could institute at any law school.

First, before every big submission window, the junior faculty pick one day each weekend to meet and complete our articles.  We call this arrangement "misery loves company," and the concept is simple:  Juniors arrive at the law school at 9:00am and sit in their offices to work on their drafts (no socializing or other administrative/email tasks—and no internet surfing permitted).  The law school orders a simple lunch for everyone (usually pizza and drinks), and we convene in the faculty center at noon to eat, socialize, and often vent frustrations/air questions about the current status of our drafts.  At 1:00pm, we go back to our offices and continue to work on our drafts.  After 5 we are free to do as we please; some stay and keep working, though many of us often decide to get dinner or drinks.

Second, we have a semi-annual internal "retreat" for junior people to workshop their papers or half-baked ideas.  Our workshop is similar in model to Prawfsfest --- presenters need to circulate their drafts in advance, and the sessions are driven by comments and suggestions (presenters, in other words, don't really present their drafts).  We call these workshop retreats, because we always hold them off campus --- sometimes at a local resort or restaurant, and sometimes even out of town.  Like misery loves company, these retreats don't cost the school much money (basically the cost of lunch).  And both have the benefit of reinforcing the importance of scholarship, keeping the junior faculty informed about what all of us are working on, and providing moral support during what can be a difficult process.

I'm a big fan of both misery loves company and internal retreats, and if your school doesn't already do something similar, I suggest you try to get one or both started.  Does anyone want to share similar ideas from their schools --- that is simple and inexpensive ways to make junior faculty happy, while at the same time promote scholarship, teaching, or service?

Posted by Carissa Hessick on December 12, 2011 at 06:02 PM in Life of Law Schools | Permalink | Comments (12) | TrackBack

Act III of the Ministerial Exception

My short piece, "Act III of the Ministerial Exception," is now up on the Northwestern University Law Review Colloquy site.  You can find the PDF version here.  It joins Colloquy pieces by Caroline Mala Corbin and Samuel Levine, with others set for publication in the near future.  All of them deal with the ministerial exception and focus particularly on the Hosanna-Tabor case, which the Supreme Court heard this fall.  Enjoy.

Posted by Paul Horwitz on December 12, 2011 at 10:12 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Saturday, December 10, 2011

Copyright and Your Face

The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook's much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.

Let's start with the idea's constitutional flaws. There are relatively few constitutional limits on Congressional power to regulate copyright: you cannot, for example, have perpetual copyright. And yet, this proposal runs afoul of two of them. First, imagine that I take a photo of you, and upload it to Facebook. Congress is free to establish a copyright system that protects that photo, with one key limitation: I am the only person who can obtain copyright initially. That's because the IP Clause of the Constitution says that Congress may "secur[e] for limited Times to Authors... the exclusive Right to their respective Writings." I'm the author: I took the photograph (copyright nerds would say that I "fixed" it in my camera's memory). The drafters of the Constitution had good reason to limit grants of copyright to authors: England spent almost 150 years operating under a copyright-like monopoly system that awarded entitlements to a distributor, the Stationer's Company. The British crown had an excellent reason for giving the Company a monopoly - the Stationer's Company implemented censorship. Having a single distributor with exclusive rights gives a government but one choke point to control. This is all to say that Congress can only give copyright to the author of a work, and the author is the person who creates / fixes it (here, the photographer). It's unconstitutional to award it to anyone else.

Second, Congress cannot permit facts to be copyrighted. That's partly for policy reasons - we don't want one person locking up facts for life plus seventy years (the duration of copyright) - and partly for definitional ones. Copyright applies only to works of creative expression, and facts don't qualify. They aren't created - they're already extant. Your face is a fact: it's naturally occurring, and you haven't created it. (A fun question, though, is whether a good plastic surgeon might be able to copyright the appearance of your surgically altered nose. Scholars disagree on this one.) So, attempting to work around the author problem by giving you copyright protection over the configuration of your face is also out. So, the proposal is unconstitutional.

It's also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer - subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine - it invites courts to inject their normative views into the analysis. It also creates extraordinarily high administrative costs. It's already expensive for filmmakers, for example, to clear all trademarked and copyrighted items from the zones they film (which is why they have errors and omissions insurance). Now, multiply that permissions problem by every single person captured in a film or photograph. It becomes costly even to do the right thing - and leads to strategic behavior by people who see a potential defendant with deep pockets.

Finally, we already have an IP doctrine that covers this area: the right of publicity (which is based in state tort law). The right of publicity at least has some built-in doctrinal elements that deal with the problems outlined above, such as exceptions when one's likeness is used in a newsworthy fashion. It's not as absolute as copyright, and it lacks the hammer of statutory damages, which is probably why advocates aren't turning to it. But those are features, not bugs.

Privacy problems on social networks are real. But we need to address them with thoughtful, tailored solutions, not by slapping copyright on the problem and calling it done.

Cross-posted at Info/Law.

Posted by Derek Bambauer on December 10, 2011 at 06:03 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Property, Torts | Permalink | Comments (4) | TrackBack

Friday, December 09, 2011

"Coercion" & the Challenge to the ACA's Medicaid Expansion

Greetings again to Prawfs readers.  I'm here in my individual capacity; Law Review Review postings will continue to be, er, slow until the spring submission season approaches.   First up, I wanted to thank Glenn for linking to his short essay with Jim Blumstein, which I take to be more a statement of their points of disagreement than a shared argument.  Blumstein, like the state plaintiffs in the ACA litigation, claim that the Medicaid expansion provisions of the health care reform legislation are unconstitutional because Medicaid "coerces" states into accepting the conditions attached.   

Taken literally, these kinds of coercion arguments are hard to take seriously.  There are other reasons, perhaps, to look more closely at conditional spending--e.g., maybe there are externalities that states don't take into account when they accept grants.  But let's focus on coercion.  And, heck, just to make things really simple, let's pretend that each state were controlled by just one person, for whom it would be conceptually coherent to identify a state of mind such as "freely chosen" or "coerced."   (Let's call that dude "MedVo.") 

As I understand it, the coercion arguments says that the more money the feds offer states, the more coerced the states are.  That's kind of intuitive: who wants to turn down billions of dollars?  But it's an intution that relies on a single person's subjective feeling of temptation -- in other words, it neglects the power dynamics of cooperative ventures.

Suppose I need our friend MedVo and his 49 pals (plus one other sorta-friend who they tax but don't let vote) to agree unanimously to do something -- let's call it buying dinner.  MedVo knows I can't get dinner without his vote.  Maybe he'll ask that I pay him some of the costs of buying dinner.  Heck, if the other friends are hungry enough, they'll pay him some of the costs of their dinners, too.  So, if MedVo gets paid a giant amount of money through this dinner program, that might be evidence not that he was "coerced," but instead that he had tremendous hold-up power. 

Now, let's stop being coy and call "dinner" what it usually is in reality, which is "redistributive spending."  States have to get together collectively to create redistributive programs, because if they don't there will be a race to the bottom.   

Put another way, the coercion argument, if accepted, would inherently bias federal power against redistributive spending, or indeed against any activity that requires coordinated and collective state action.  And the very costliness of bribing states inherently limits the extent to which the federal government can rely on them -- especially if the federal government has no direct regulatory alternative, and the states know that. 

The hold-up point also answers the "change in mid-stream" argument Glenn & Jim raise.  In any long-term cooperative venture, as a contracts scholar could tell you, there are opportunities for holdups on both sides.  "MedVo" has sunk investments into the Medicaid system, but so have the other states that want the system to go on working.  To claim he's been coerced because he's accepted more costs (in this case, only 10% of them!) ignores the power of his own implicit threats.  Maybe sometimes one side has more power than the other.  But the size of the grant doesn't really tell us anything about that. 

(And let me now give credit to Bob Cooter, Rick Hills, and Neil Siegel for laying out most of the intellectual groundwork for this post.  For more from me, see here and here.)               

Posted by BDG on December 9, 2011 at 02:59 PM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

Thursday, December 08, 2011

Let 'em Roll: New Paper on Good Time

My new working paper on good time credits for prison inmates is now on SSRN.  The subtitle conveys the basic direction of my argument: "Why Following the Rules Should Get You Out of Prison Early."  I see this as a companion piece to my just-published article "Beyond Rehabilitation: A New Theory of Indeterminate Sentencing," 47 Am. Crim. L. Rev. 1247 (2011).  In both papers, I'm trying to explore my intuition that some of the old structures of indeterminate sentencing, like parole and good time--which are still common in practice, despite heavy academic criticism since the 1970's--embody or respond to certain nonutilitarian moral sensibilities.  Although parole and good time are closely linked as an historical matter with the rehabilitative paradigm of criminal law, the justification of parole and good time may not necessarily require that they demonstrably contribute to inmate rehabilitation.

The abstract for the new paper appears after the jump.  The paper includes at the end a rather lengthy chart surveying good-time laws from across the United States.  I haven't yet confirmed all of the information, and I would be especially grateful for readers to let me know if I have gotten anything wrong in the chart.  In doing the research for this paper, I've been surprised both by the great technical complexity of good-time law and by how dynamic it is--several states made significant changes to their laws between the time that I began the research and the time that I prepared the current draft of the chart.

Here's the abstract:

Good-time programs have long been an important part of the American penal landscape. At least twenty-nine states and the federal government currently offer prison inmates early release, sometimes by many years, in return for good behavior. 

Written a generation ago, the leading scholarly article on the subject presented a strong case against good time, which has yet to be effectively addressed. Although good time is traditionally justified by reference to its usefulness in deterring inmate misconduct — credits can be denied or withdrawn as a penalty for violations of prison rules — the article questioned how it could possibly be just to impose additional incarceration based on mere violations of administrative regulations.

In response to this important challenge, the present Essay proposes a new way to conceptualize good-time credits, specifically, as a way to recognize atonement. Drawing on increasingly influential communicative theories of punishment, the Essay argues that good time can be seen as congruent with (and not, as is commonly supposed, in opposition to) the basic purposes of sentencing. The Essay then proposes reforms that would help good-time programs more fully to embody the atonement ideal.

Posted by Michael O'Hear on December 8, 2011 at 06:08 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Glenn Beck: A Biography, by George Washington

Wandering through the local bookstore the other day, I came across a new book by Glenn Beck, titled Being George Washington.  I haven't read the book and don't plan to, and this isn't a general knock on Beck (or Washington, for that matter).  But it's worth clicking through to look at the cover.  I admit I wish more historians (or law professors!) could get away with covers like this, but regardless it's a hell of a cover.  I can't but help wonder, on seeing it, just who the subject of the bok is.  Enjoy.

Posted by Paul Horwitz on December 8, 2011 at 07:56 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

New Article in the New England Journal of Medicine (with Jim Blumstein) on the Constitutionality of Health Care Reform

Today, the New England Journal of Medicine is a publishing a short piece I wrote with  Blumstein (of Vanderbilt Law) on the consttutionality of the Affordable Care Act. The article deals not with the more familiar question of the individual mandate, but the separate question of whether Congress' Expanded Medicaid requirements, imposed on the states, runs afoul of the spending clause. This "sleeper issue" has gotten a lot less press, though the Supreme Court explicitly included the question in the cert grant and has allocated a full hour of argument time to the issue, which is some indication it is taking the matter seriously.

Posted by Glenn Cohen on December 8, 2011 at 04:56 AM in Constitutional thoughts, Current Affairs | Permalink | Comments (4) | TrackBack

Harvard Law's Curricular Reform: 3 Years In

Several years ago, under the stewardship of then-dean Kagan and then-professor-now-dean Minow, Harvard Law School made a significant change to its first year curriculum. Different portions were phased in at different times, but this will be the third full year of it all being in place, so I thought it would be a good opportunity to discuss the reforms. Unlike the Langdellian Socratic method that was also started at Harvard, I have seen less copying of our reforms. That may be that others do not think it a good idea, but I suspect it is more to do with the fact that this was a resource intensive change (adding an additional 21 professors needed to teach 1Ls) that was implemented at a moment where most schools are facing economic woes.

Here is the reform in a nutshell:

The typical Harvard 1st year courses (Civ Pro, Contracts, Torts, Property, Criminal Law) were all dropped from 5 credit hours a week to 4 credit hours.  An additional 4-credit class entitled “Legislation and Regulation,” which largely combines a course in legislation/statutory interpretation with parts of administrative law was added.  In addition, a 4-credit international/comparative law elective was required and added to the first year curriculum. Students choose from a menu of seven classes for 1Ls with foci such as private international, public international law, international humanitarian law, an comparative law (China, for example).  Last, and most recently, we moved our finals into the fall and now give the 1Ls a winter (or J-) term class called “Problem Solving Workshop,” which is taught intensively over 13 week days. Each day the students are given a problem, and in small groups have a day or two to solve it and submit work product as a group. While some of the problems are focused on litigation, others are things like dealing with public relations and media, negotiating, and other skills. The next day the students re-assemble, debrief and consider how different groups dealt with the problem, and start a new problem. The course is pass/fail. Once in the middle of the class and once at the end the students meet with practicing lawyers to test their proposed solutions against the practical realities as the lawyers see it.

Students also take a regular elective in the spring.

Here is my internal sense of how these have been received, but one reason why I want to post about it is to get feedback from those of you in the world out there who have seen our students under the new curriculum and their performance.

The "leg-reg" class (as it is nicknamed) has been an unabashed success. The students like it a lot, it has generated a new textbook geared to it, and it remedies an embarrassing intellectual lacuna in the first year where we asked students to imagine the administrative state did notexist. I have also seen it pay dividends in Civ Pro, where the students are much more sophisticated about statutory interpretation. I think this reform would make sense for any law school.

The international law classes have caused many more of our students to consider ways in which their career might relate to the global legal order, in jobs both inside and outside the U.S. The split between international and comparative law has meant that the students get very different experiences depending what they opt for, but it has also had the positive impact of introducing our students to other students outside of their section. I think the reform made a lot of sense for Harvard because many of our students will need to know something about international law in the jobs they go into, but perhaps not as much sense for schools whose graduates will face different career interests and opportunities.

Problem solving workshop is the newest to be implemented and I am not sure I have sufficient data yet to comment. The class is nicely responsive to concerns raised by the Carnegie report, and the view that our students were excellent on their own but could use more opportunities to hone their teamwork skills since that is much more the reality of legal practice today. Some of the problems also get our students out there into the real world. The nature of the course means its success will turn a lot on who teaches it. Joe Singer and Todd Rakoff designed the course and are deeply invested in it, as are the other teachers who basically give up their lives for the winter term and meet themselves as a team to debrief each day. In less skilled or invested hands, though, I could see this being much less successful.

Well that is all good news. What is the downside?

First, the reform has been very resource intensive. We now need 42 (7 classes of 7 sections) faculty members just to teach the first years, which is almost half of our faculty. At a period in time where we have reduced the number of visitors, this has also created logistical difficulties in making sure the right people can teach at the right times. It also requires a lot more space to teach in, which will hopefully be remedied when our new building opens soon.

Losing a credit in each of the original classes has been a drag, in that most folks have really dropped only half a credit worth of coverage and thus are cramming in more to a shorter time frame.  Add an additional exam each semester, and it means our students are working harder than ever. Now some of that tension has been relieved by pairing this reform with our grade reform, but I have to say I see more and more of our students looking tired than I did before. Still, while I am not sure the students view it this way, given that the price of matriculating a 1L has not dramatically increased and we have added substantially to what the students learn, we seem to be offering much more bang for the buck than we did just a few years back.

So that is the insider’s perspective. But I am curious what the outside world thinks….

Posted by Glenn Cohen on December 8, 2011 at 04:50 AM in Teaching Law | Permalink | Comments (10) | TrackBack

Wednesday, December 07, 2011

The Interpretation/Construction Distinction Revisited

You probably recognize the “interpretation/construction distinction” as a crucial part of the “New Originalism,” at least as presented by the likes of Keith Whittington, Randy Barnett, and Larry Solum.  The concept, as I understand it (and my understanding, or lack thereof, may be the real problem here) is something likes this.  When interpreting legal texts, we go through a two-step process: (1) We interpret the language’s bare “semantic meaning”; (2) We then use this semantic meaning as a cornerstone in constructing the language’s “legal meaning.”  In the first step, we are concerned with fairly straightforward problems like textual ambiguity and anachronism.  In the second step, we must resolve any residual semantic vagueness by constructing a determinate legal meaning. 

A year or so ago I contributed to a discussion on this topic in an issue of Constitutional Commentary, and I tried (rather ham-handedly, in retrospect) to explain that, while I think that the distinction exists and fairly describes a limited class of interpretive processes, ultimately it can do very little theoretical work in the controversial cases that are of most consequence.   In that piece I mentioned Willard Quine’s attack on the dogmas of empiricism in passing, but I failed to make it a central part of my critique.  In doing some new work on Quine, however, I have come to wonder whether my real issue with the interpretation/construction distinction is that it falls prey—at least in roughly analogous ways—to the Quineian critique of the analytic-synthetic distinction.  I’ll try to explain below, hopefully with less hammy hands.

First, let me give an abbreviated take on Quine and the analytic-synthetic distinction.  Analytic statements (going back at least to Kant) are thought to be those that we can assess as either true or false based simply on the meaning of their terms.  The classic example is “All bachelors are unmarried men.”  Synthetic statements are those that require us to do some empirical and/or theoretical work to verify or falsify.  In some sense, analytic statements are the a priori truths we can use to synthetize more elaborate views—they are the “foundation” in some sense of our later buildings.  Quine pointed out, however, that analyticity (at least in informative contexts) depends on the concept of synonymy, which itself requires at least some theoretical constructs and some empirical work.   We have to disambiguate different kinds of bachelors for one (degrees vs. men-about-town), and we have to have some at least basic theory of linguistic reference already in place.  Quine concedes that analytic statements exist—and that they are conceptually distinct from synthetic statements—but contends that the distinction gets very porous when we move beyond the most basic kinds of statement.  We can all agree, for example, that “All bachelors are bachelors” is analytic—but this doesn’t get us very far.  In other words, to say that anything beyond “A=A” is analytic is to embed and understand a statement within some preexisting theoretical context—and this ultimately makes the distinction quite fuzzy.

 Now, let me move on to the interpretation/construction distinction.  I think (though I could be wrong) that most New Originalists concede that “semantic meaning” (which we interpret) is not something analytic in the sense I’ve described above.   They happily acknowledge that we should do things like disambiguate terms and avoid anachronism (“domestic violence” doesn’t mean what it once did) in the interpretation phase, which means that we must have some theoretical pieces already in place as we “interpret”.    As a very simple example, there would be no need to clear up anachronism if we didn’t already think that “semantic meaning” should be fixed at the time of utterance, or something like that.  Further, for purposes of the distinction, its proponents are generally agnostic about the theoretical choices that should guide either the interpretation or construction phases.   But…

In the context of a larger originalist approach—as a piece of the apparatus, so to speak—I think the “interpretation” phase is meant to reveal something (“semantic meaning”) which functions in roughly the same way that analytic statements do in logical positivism.  After some basic moves, made in light of broadly accepted theoretical commitments, we arrive at a semantic meaning based on something like “linguistic facts.”   This meaning is, in theory, something that for practical purposes is objective or verifiable on the face of the language itself (given some set of “linguistic facts” that, again, we can theoretically verify).    With this bit of semantic foundation in place, we can go about the more difficult business of “constructing” (or synthesizing) determinate legal meanings when the semantic meaning is problematically vague.  As Randy Barnett is fond of saying, “There’s a there there”—and what’s “there” is the language’s semantic meaning.  So far, so good.  The interpretation/construction distinction seems to be doing much of the same work the analytic/synthetic distinction was once thought to do.

 The problem, however, is that for interpretation to work in this way—as revealing something basically a priori—one of the theoretical constructs that must be in place is an account of linguistic reference and meaning.  And the account that the New Originalists rely on (roughly Gricean?) simply is not accepted broadly enough.  In fact, I think it’s wrong.  This might not be too much of a problem, except that the account of meaning that Iaccept is something much closer to that which the later Wittgenstein gave.   Roughly, according to that account words often don’t actually refer to anything, either in the world or in our minds.  They derive their meaning from their proper use in a given context—in other words they point us towards linguistic rules, not facts.  Solum, for one, seems to argue that we can discover these rules as if they were facts, and then simply apply them in the interpretation phase.  I think that this fundamentally misunderstands what we mean by linguistic rules

 Linguistic rules are in fact imprecise and changing.  There is no necessary or sufficient set of conditions that define when a word is used correctly (ie, its meaning).  Rather the rules map out what Wittgenstein famously called the “family resemblance” a word bears to itself across various contexts (he asked us to consider all the acceptable uses of “game” as an example).   Thus, the rules themselves require quite a bit of interpretation and construction, all done in light of fairly specific contextual conditions. Thus they cannot, I don’t think, serve as “facts” in the ways that Solum hopes.

 More to the point, if we understand meaning in these terms, it starts to look like an awful lot of theory has to be in place and agreed upon before we can arrive at “semantic meaning” in all but very basic kinds of cases—those where the linguistic rules are so clear that they might serve actually as something like facts.  With all of this theorizing and empiricism going on in the interpretation phase, it starts to look at lot like the construction phase, where we are working to iron out textual vagueness.   The borderline between the two phases has become every bit as porous as that Quine posited between analytic and synthetic statements.  

 To put it perhaps more simply, words are always vague, some just more than others.  And before we can construct determinate “legal” meanings in the face of vague “semantic” meanings, we must first construct determinate “semantic” meanings in the face of vague linguistic rules.

 Phew.  That turned out to be a tome, and perhaps more hammy than ever.  I apologize…but if you got this far, I’d love to read your thoughts.




Posted by Ian Bartrum on December 7, 2011 at 10:18 PM | Permalink | Comments (6) | TrackBack

For All You 4th Amendment Nerds

Like other law profs across the country, I’m sometimes asked to comment on legal issues for the local media.  Pursuant to one such media request, I recently learned about an order for supplemental briefing in a local case that raises some interesting 4th Amendment questions.  Those 4th Amendment questions arise out of the ongoing SB 1070 immigration litigation.

The case at issue is a federal lawsuit claiming 4th and 14th Amendment violations based on allegations that the local sheriff’s office is engaging in racial profiling and pretextual traffic stops in order to ascertain the immigration status of Latinos.  (More information about the case can be found here and here.)  Both parties in the case have filed motions for summary judgment --- the sheriff’s office has moved for summary judgment on both the 4th and 14th Amendment claims; the plaintiffs have moved for summary judgment on the 14th Amendment claim.

Reading through the motion papers, I assume the plaintiffs didn’t move for SJ on the 4th Amendment claim because each of the traffic stops could be justified on non-racial grounds.  Whren v. United States, 517 U.S. 806 (1996), tells us that pretextual traffic stops can’t be challenged successfully under the 4th Amendment --- that is, a stop that can be justified under the Fourth Amendment based on a pretextual reason is constitutional even if the officer’s subjective motive for stopping the car cannot be justified under the Fourth Amendment.  For example, an officer can stop a car when the driver runs a stop sign even though the officer only wanted to stop the car because she believed the driver was transporting drugs, and that belief was not supported by probable cause or reasonable suspicion.

This case seems to fit squarely within Whren.  The lead plaintiff was a passenger in a truck that exceeded the speed limit.  There is ample evidence that officers wanted to stop the truck because of immigration violations, but did not have probable cause (or reasonable suspicion) to support their belief of immigration violations.  So instead officers followed the truck for a while, waited for the driver to commit a traffic violation, and then pulled the truck over as soon as the driver exceeded the speed limit.  During the stop, the officer asked the passengers about their immigration status, requested immigration documentation from the passengers, and arrested the lead plaintiff for what the officer perceived as a violation of federal immigration law.

So why is this an interesting case?  The district court just issued an order for supplemental briefing that suggests the ordinary Whren pretextual stop analysis might not apply.  In particular, the court stated:

In United States v. Arizona, 641 F.3d 339, 362 (9th Cir. 2011) the Court held that (1) there is no “federal criminal statute making unlawful presence in the United States, alone, a federal crime.”  Such violations, as well as other immigration “status” offenses according to the case, constitute civil violations of federal immigration law. The Arizona case also makes clear two additional points: (1) “states do not have the inherent authority to enforce the civil provisions of federal immigration law,” and, (2) that “an alien’s admission of illegal presence . . . does not, without more, provide probable cause of the criminal violation of illegal entry.”

This analysis from United States v. Arizona --- the Ninth Circuit opinion that upheld a preliminary injunction of several sections of Arizona’s controversial SB 1070 --- leads the district court to ask the parties to brief a number of issues, including:

1. What good faith legal basis is there, if any, for [the sheriff’s office] to assert that it has the authority going forward to enforce civil violations of the federal immigration law?

2. What good faith basis is there, if any, for [the sheriff’s office] to assert that it presently has the authority pursuant to any enforceable state or federal law to detain any person based upon a reasonable belief, without more, that the person is not legally present in the United States? [Note: In 2009, after this lawsuit was filed, DOJ revoked the sheriff office’s 287(g) status.]

3. What good faith legal basis is there, if any, for the proposition that Whren v. U.S., 517 U.S. 806 (1996), justifies pretextual stops for the ancillary purpose of investigating civil immigration violations when the officer conducting the stop does not have the authority to enforce civil immigration violations?

While all three of these questions are worth discussing, I think question #3 is particularly intriguing.  In an ordinary Whren case, officers are using a pretextual reason for a stop (e.g. a traffic violation) because their subjective reason does not give them sufficient authority --- e.g., because they do not have probable cause to believe the suspect is engaged in a narcotics crime.  But in that ordinary case, the officer generally has authority to investigate narcotic crimes, she just doesn’t have authority to stop this particular driver for that particular reason.  The district court’s order raises the question whether the ordinary Whren analysis applies when officers don’t have authority to investigate the issue that forms their subjective basis for the stop.  Questions #1 & #2 suggest that even if the traffic stop in this case was permissible (because the driver exceeded the speed limit), the officer was not permitted to detain the passengers in the truck to question them about their immigration status.

I know that some courts would assess these issues based solely on whether the officer’s immigration questions unreasonably lengthened the traffic stop.  Would those courts take into account the fact that the driver of the truck was never given a citation?  Or that other plaintiffs were not subjected to consequences for the pretextual basis of the stop (the traffic violation), so long as they were able to provide proof of citizenship?  More generally, what do you 4th Amendment types think about the questions the district court is raising?

Posted by Carissa Hessick on December 7, 2011 at 04:52 PM in Constitutional thoughts, Immigration | Permalink | Comments (2) | TrackBack

Writing and Experimentation

I appreciate Glenn's "how I write" post below.  Glenn asks for others to offer their own experiences and practices.  I won't this time around, because I'm fairly certain I've written on this before.  But I wanted to say two things about why it can be difficult to answer this question.  The first is that at times, imagining writing can be like imagining being sick; it's a visceral, all-encompassing experience when you're going through it, but difficult to recall in anything other than a vague dreamlike fashion when you're not.  I tend to have two temperatures as far as writing is concerned: red-hot, and icy cold.  I can go for a year or two in a very productive state, with lots of emerging ideas and the time, energy, and discipline to carry them out.  But there are other periods where very little comes -- sometimes because I'm reading up on the next project, sometimes because I'm waiting for inspiration, sometimes because I'm having a part of my body replaced (or, for others, both men and women, because they're caring for a young child or a sick parent, and so on), and sometimes because the Muse is taking a vacation somewhere else.  I would like to be an complete perennial, and certainly my productive stretches can last a long time, but right now the writing is coming less naturally.  You'll usually be able to tell because I'm blogging a whole lot.  (And yet I have two papers and one set of book revisions due in the next three months!  I guess that one way or another I'm going to have to emerge from the icy-cold stage pretty damn soon.)  Maybe when I'm back in my productive mode I'll try to figure out how I write, but until then it's like trying to figure out the question how I would walk on the moon.

The other reason, and it's the one I wanted to focus on more, is that I think there's a great deal of room for experimentation in legal writing, just as in any other form of writing.  That goes both to what you're writing and how you're writing.  It can be fun and productive to change things up.  Of course there are certain modes that are productive for each person: some of us have our favorite times, or places, or approaches.  But now and then it can be refreshing, personally and in terms of the work product, to leave those comfort zones and try something new.  Every now and again, if I've written in a style in which the first draft is already fairly polished and full of footnotes, I'll switch over to a rawer first draft approach.  If I've written several long pieces, I'll experiment with a short essay.  As I wrote here recently, when I was in the middle of my law and religion book, I took a break with a short humor piece.  That book was pretty broad and synthetic, and it was a pleasure to put it down for a couple of weeks and work on a piece (for Rick's First Amendment Stories collection) that focused substantially on just one piece.  I would enjoy writing a paper at some point that has virtually no footnotes, or that has the free-form, suggestive, koan-or-parable-oriented style of Joseph Vining.  In short, I appreciate the "how I write" recommendations.  But I encourage those -- including untenured professors -- who have a particular method or style in which they can be sure to be comfortably productive to change things up occasionally.  God knows that legal academic writing can use more variety and experimentation, and -- at least if you want to do this for several decades without burning yourself out or reducing yourself to utter cynicism, and its eventual and sad denouement, the roman a clef novel about one's colleagues -- so could we.

Posted by Paul Horwitz on December 7, 2011 at 04:46 PM in Paul Horwitz | Permalink | Comments (4) | TrackBack

Learned Hand on the Politics of Judicial Appointments

In debates over potential reforms to the judicial appointments process, there seems to be a pervasive sense that the problem of politicization is a relatively new one. In terms of the frequency with which the Senate rejects even highly qualified nominees and the extent to which overt partisanship has crept into the evaluation of lower-court nominees, that sense seems pretty accurate. More than either of his two most recent predecessors, President Obama has had a difficult time securing Senate approval of his picks for the judiciary.

I think it's helpful to appreciate, however, that the basic problem of partisanship trumping merit as a determinant of judicial appointments is anything but new. Recently, I was reading Gerald Gunther's biography of Learned Hand and came across a reminder of how the appointments process has long been an overwhelmingly political affair, even for lower-court judgeships. Gunther explains that when Jerome Frank's death in the late 1950s left vacant a seat on the Second Circuit, advocates from opposing political orientations lobbied heavily for their favored candidates to receive the next appointment. Many Republicans pushed for the selection of Leonard Moore, the U.S. Attorney for E.D.N.Y., while Democrats favored Irving Kaufman, the federal judge who had presided over the espionage trial of Julius and Ethel Rosenberg. Moreover, many on both sides appear to have viewed the choice between Moore and Kaufman as essentially political rather than merit-based. One of the significant arguments made in favor of Kaufman, for example, was that elevating him to the Second Circuit could function as a way for the President and Senate to signal their approval of his handling of the Rosenberg trial, of which leftist organizations had been fiercely critical. 

The debate left Judge Hand extremely dissatisfied with the way in which it downplayed or left out considerations of merit. To Felix Frankfurter, a longtime friend, Hand wrote:

Did you see today's Times and the reasons said to be put forward in Washington for moving up Kaufmann [sic]? "To show the President approved his decision to execute the Rosenbergs." 

Oh, oh, oh! How low people can get! I don't mean [Kaufman]; he didn't start that, I believe; but the Swine, the Swine, the Swine!!

Hand later repeated to Frankfurter that he was "'thoroughly sick of [his] government, especially [with respect to] the appointment of judges,'" even adding, "'What a mistake it was to let the Senate in on any appointments anyway! Democracy! How many crimes are committed in thy name!!!'"

Hand's statements were obviously hyperbolic, but now seem to reflect a sentiment held by many observers of the appointment process today. That Judge Hand critiqued the same problem fifty years ago shows that it is not a new one, and suggests that its source must lie deeper than the contemporary divisiveness of American politics. 

Posted by Ryan Scoville on December 7, 2011 at 03:13 PM in Law and Politics | Permalink | Comments (2) | TrackBack

The flawed political economy of eminent domain: Lessons from today's ruling against NYC in the Willets Point litigation.

Judge Madden ruled today against New York City in the Willets Point litigation, holding that the City's changing its position regarding the need for a highway ramp undermined the factual basis for her earlier decision upholding the City's final generic environmental impact statement ("FGEIS"). In effect, she accused the City of playing a game of "bait-and-switch" -- obtaining judicial approval of an FGEIS on the basis of one set of facts and then changing those facts after securing a favorable ruling.

For those of you not mesmerized by NYC land-use issues, Willets Point is the 62-acre triangle of land in Queens next to Citi Field that is currently occupied by a tangle of junk yards and auto repair shops owned mostly by individuals operating small-scale businesses. Take a look at the place on Google Maps to get a sense of its raw "Wild West" feel: It lacks sidewalks, sewers, and reeks of oil and other chemical fumes. The City has proposed condemning the land and converting it into a mixed use retail, residential, and office complex.

No one doubts that the place ought to be cleaned up. But the City's approach has inspired fierce resistance from the few businesses that the City has not bought out through voluntary side deals. After the jump, I suggest three ways in which the Willets Point saga suggests that, contrary to the claims of Tom Merrill and others, the "eminent domain political process" works poorly as a mechanism for sorting out how to distribute the gains from land assembly. As a bit of shameless self-promotion, I also tout a solution that Michael Heller and I have been peddling for a few years now -- "land assembly districts."

First, how has the process of eminent domain misfired in Willets Point?
1. The Inadequacy of Compensation Leads to Unnecessarily Fierce Resistance from Condemnees: New York Law does not require condemnees to pay lost business good will. But the small businesses in Willets Point really need some such payment to be made whole: Willets Point is effectively a "mall" for auto parts, and scattering these businesses throughout NYC -- even assuming that they can find substitute parcels zoned for such industrial uses -- will eliminate the agglomeration effect that reduces search costs for customers and constitutes a big part of these businesses' value. Naturally, these businesses will fight savagely to save themselves from being shut down.
2. The City's Selective Buy-Outs Leads to Unnecessarily Fierce Resistance from the Businesses Left Behind: The City had been assiduously buying out the larger landowners with voluntary deals in an effort to decapitate resistance to the assembly. In theory, this approach should leave few who can afford a lawyer to fight the condemnation; In practice, this strategy has caused the remainder to dig in deeper, fearful that they are being carved out of the gains from the assembly.
3. The EIS System for Informing the Public about Land-Use Impacts is a Hoax: The City abandoned its proposal to install highway ramps after the condemnee's expert, Brian Ketcham, revealed that the City's ramp study submitted to the Federal Highway Administration, contained assumptions directly contradicting the assumptions of the EIS submitted to the City Council for the redevelopment. The contradiction in the two studies was doubly odd because the two reports were authored by the same consulting firm, AKRF, which is responsible for the lion's share of EISs in NYC. AKRF has been judicially rebuked by the appellate division for its "blight study" justifying the condemnation of "Manhattanville," an area between 125th and 135th streets in West Harlem assembled by the Empire State Development Corporation on behalf of Columbia University. After having plowed through much of these documents (the appendices amount to hundreds of thousands of pages so I skimmed those), I get the sense that these documents are simply paper barricades to genuine inquiry about the merits of the proposals, mountains of bureaucratese designed to intimidate courts but not to be read by anyone.

In short, NYC's penchant for bureaucratic secrecy, low-ball compensation measures, and informal dealings with insiders actually impedes the city's ability to clean up an area that obviously needs some serious attention. The question remains how the city can enlist neighborhoods into welcoming cleanup rather than fighting it.

Here's the shameless self-promotion. As Michael Heller and I have argued, the solution to neighborhood resistance is neighborhood government: Give the neighbors a collective right to sell their neighborhood through a "land assembly district" -- essentially, a special district by which the neighbors can, by majority vote accept an offer from the city if that offer is genuinely sufficient to compensate the neighbors. This way, the neighbors can become co-venturers with the city in the decision for land assembly, while the city can be freed from the headache of holdouts. True, the city would have to pay the neighbors' reservation price. But that price will not be inflated by holdout problems if the neighbors have to set their asking amount collectively. True, the city will probably have to give the neighbors a "piece of the action" -- some share of "after value" of the assembled land. But far better that the neighbors take a share than that the same amount be frittered away in attorneys' and experts' fees from protracted litigation.

In short, the Age of Robert Moses is dead: Using Moses' techniques does not get Moses' results. Willets Point suggests that it is in the city's own self-interest to abandon traditional eminent domain and instead develop a mechanism for bargaining in good faith with the neighbors that they'd sooner steam roll.

Posted by Rick Hills on December 7, 2011 at 10:18 AM | Permalink | Comments (1) | TrackBack

Every 1L Gets a Puppy!

No, that's not a new ploy by a law school desperate to increase its applicant yield.  It's a program at George Mason Law to decrease stress around finals by bringing in shelter puppies for play and cuddling sessions with students.  Pet therapy is not a new idea; my understanding is that it's been used in a variety of contexts to raise people's spirits.  As the linked article notes, the idea has been picked up by a number of law schools. As a dog lover I give this idea my hearty approval.  It's no magic solution to all the stresses law students face, but it can't hurt, notwithstanding some commentators' snarky responses to the GMU program.

So, for those of you who aren't at GMU or another school with a similar program, let me do the next best thing and introduce you to a couple of lab-pit litter-mate beauties who
raise my spirits every evening.  They're a little older than in this picture.  But heck, everyone posts a younger picture of themselves online.


With this post I'm outta here.  Thanks, as always, to Dan and the entire Prawfs community (including the commentors).  Good luck on exams -- writing, taking and grading!


Posted by Bill Araiza on December 7, 2011 at 07:00 AM | Permalink | Comments (5) | TrackBack

Tuesday, December 06, 2011

Imprisonment in Three States: Comparing the Data from Wisconsin, Minnesota, and Indiana

I've been doing a series of posts comparing criminal-justice data from three medium-sized, midwestern states, Wisconsin (my own), Minnesota, and Indiana. In the first post in the series, I explored the large gap between the incarceration rates of Minnesota and Wisconsin.  In the second, I discussed racial disparities in the incarcerated populations of the two states.  The disparities in both states are wide, although Wisconsin’s are somewhat larger.  In this entry, I add a third state, Indiana, to the statistical comparisons.  As a demographically and geographically similar state, one might expect that Indiana would have criminal-justice numbers that are similar to Minnesota’s and Wisconsin’s.  Indiana’s numbers, however, point to a criminal-justice sustem that is much larger and harsher than those of its northern neighbors.

As detailed in the table that appears after the jump, Indiana’s imprisonment rate (about 460 per 100,000) easily outstrips Wisconsin’s (387) and dwarfs Minnesota’s (178).  Perhaps even more surprisingly, Indiana’s probation population also exceeds Minnesota’s.  My Minnesota-Wisconsin comparison suggested that Wisconsin imprisons many defendants who would get probation in Minnesota, leading to a much smaller probation population in the former than in the latter.  But Indiana seems to incarcerate the same way that Wisconsin does, without any accompanying reduction in the probation numbers.

For that reason, Indiana’s total supervised population of 167,872 is the largest of the three states (although Minnesota, with the smallest overall population of three, still has a somewhat larger per capita supervised population, thanks to its enormous per capita probation rate).

Indiana also leads the way in crime.

Among the three states, Indiana has highest rate of violent crime, property crime, and homicide.  Higher crime rates may in some sense help to account for Indiana’s higher incarceration and supervision numbers.  For instance, to use a rough measure of the crime-incarceration link, Indiana had 1.5 prisoners in 2010 for each violent crime committed that year.  This is about the same as Wisconsin’s 1.6.  It is thus plausible to suppose that Wisconsin’s prison population would match Indiana’s if Wisconsin had the same number of violent crimes as the Hoosier state.

On the other hand, Minnesota only had about 0.8 prisoners per violent crime, suggesting that the differences between Indiana and Minnesota are not merely the result of different crime rates.

In any event, it is probably too simplistic to assume a one-way relationship between crime and imprisonment.  Imprisonment itself may be crimogenic.  The sorts of life experiences and collateral consequences that flow from incarceration may increase the recidivsm risks of many offenders.  Additionally, some criminologists argue that mass incarceration can have negative cultural effects in some communities; for instance, incarceration may become a source of pride, rather than social stigma, for young men.

For these reasons, it may be as accurate to say that Wisconsin’s lower imprisonment rate leads to its lower crime rate, as it is to say that Wisconsin’s lower crime rate leads to its lower imprisonment rate.  There is probably a certain amount of truth to both propositions.

Thus, Indiana and Wisconsin should both consider whether there are lessons that can be learned from Minnesota.  With a violent crime rate only a little lower than Wisconsin’s, Minnesota has half the rate of imprisonment.  Could Wisconsin's imprisonment rate be cut in half without any appreciable increase in its crime rate?

One potential benefit would be a decrease in corrections costs.  Wisconsin's per capita corrections costs are twice Minnesota’s.  Adding Indiana to the mix, however, creates a puzzle: Indiana’s per capita corrections costs are closer to Minnesota’s than Wisconsin’s.  Indeed, in absolute terms, even though Indiana’s prison and probation populations are both larger than Wisconsin’s, Indiana’s corrections budget is $500 million less.  This large and unexpected disparity might perhaps be due to different ways of counting the money.  Or, on the other hand, it may reflect real policy differences in the amount of money spent per offender.  If the latter, is Indiana too stingy, Wisconsin too generous, or both?

Let’s now take a look at how Indiana does with racial disparities.  Interestingly, Indiana fares much better in this regard than either of its northern neighbors.  Although it has the highest white incarceration rate of the three states, its black incarceration rate is actually much lower than Wisconsin’s.  As a result, the ratio of its black to white incarceration rates is easily the lowest at 5.5, as compared to Minnesota’s 9.1 and Wisconsin’s 10.6.  If Wisconsin could bring its black incarceration rate down to Indiana’s, the result would be a reduction in the incarcerated population of more than 6,000.

In the next post in the series, I'll consider the "racial threat" hypothesis as a potential explanation for the differences in incarceration rates. 

All of the data discussed in this post, and then some, are set forth in the table below.  Note that I used an estimate for Indiana’s 2005 prison population.  Because this number seems not to be available, I averaged Indiana’s 2004 and 2006 prison populations in order to estimate the 2005 population.





Population (2010)




Prison Population (2010)




Imprisonment Rate (2010, per 100,000)




Jail Population (2005)




Incarcerated Population (2005)




Total Incarceration Rate (2005, per 100,000)




Probation Population (2009)




Parole/Extended Supervision Population (2009)




Total Supervised Population (2005)




Supervision Rate (2005, per 100,000)




Incarcerated, as Percentage of Supervised Population (2005)




Corrections Budget (2009, $mm)




Per Capita Corrections (2009)




Violent Crime (2010)




Violent Crime Rate (2010, per 100,000)




Property Crime (2010)




Property Crime Rate (2010, per 100,000)




Homicide (2010)




Homicide Rate (2010, per 100,000)




White Incarceration Rate (2005 data, per 100,000)




Black Incarceration Rate




Black Incarceration Rate as Multiple of White




Juveniles in Detention (2006)




Admissions to Treatment Facilities for Drug and Alcohol Abuse (2010)




Posted by Michael O'Hear on December 6, 2011 at 10:40 PM in Criminal Law | Permalink | Comments (2) | TrackBack

Cry Baby Cry

The project to crowdsource a Tighter White Album (hereinafter TWA) is done, and we’ve come up with a list of 15 songs that might have made a better end product than the original. Today I want to discuss whether I've done something wrong, legally or morally. 

I am no expert on European law, or its protection of the moral rights of the author, but I was reminded by Howard Knopf that my hypothetical exercise could generate litigation, as the author has rights against the distortion or mutilation of the work, separate from copyright protection.  The current copyright act in the UK bars derogatory "treatments" of the work. A treatment can include "deletion from" the original, and the TWA is just that -- 15 songs were trimmed from the trimmed White Album, ostensibly to make something "better than" the original. To the extent the remaining Beatles and their heirs can agree on anything, it might be the sanctity of the existing discography in its extant form, at least as it encapsulates the end product stemming from the individual proclivities of the Beatles at the time. But see Free as a Bird. Fans and critics reacted strongly to Danger Mouse's recent splice of Jay-Z's Black Album and the Beatles' White Album, with one critic describing it as "an insult to the legacy of the Beatles (though ironically, probably intended as a tribute)". Could the TWA implicate the moral rights of the Beatles?


On one level, I and my (perhaps unwitting) co-conspirators are doing nothing more than music fans have done for generations: debating which songs of an artist's body of work merit approval and which merit approbrium. Coffee houses and bars are often filled with these discussions. Rolling Stones has made a cottage industry of ranking and reranking the top songs and albums of the recent past and in recent memory. This project is no different.

On the other hand, I am suggesting, by having the audacity to conduct this survey and publish the results, that the lads from Liverpool did it wrong, were too indulgent, etc., in releasing the White Album in its official form. That's different from saying "Revolution #9" is "not as good" as "Back in the U.S.S.R." (or vice versa). But to my eyes, it falls short of distortion.

Moral rights in sound recordings and musical compositions are not explicitly protected under the Copyright Act. In one case predating the effective date of the current Act, the Monty Python troupe was granted an injunction against the broadcast of its skits in heavily edited form on U.S. television, but that case was grounded more in contract law (ABC having exceded the scope of its license) and a right not to have the hack job attributed to the Pythons under the Lanham Act.*  The TWA doesn't edit individual songs, and whilte the Monty Python case protected 30 minute Python episodes as a cohesive whole, it is difficult to argue that the copyright owners of the White Album are necessarily committed to the same cohesive view of the White Album, to the extent they sell individual songs online. One can buy individual Beatles songs, even from the White Album. Once you can buy individual tracks, can there really be moral rights implications in posting my preferred version of the album in a format that allows you to go and buy it?

On to the standard rights protected under U.S. copyright law. Yesterday, I talked about the possibility that the list itself might be a compilation, with protectable creativity in the selection. Might the TWA also be an unauthorized derivative work, exposing me to copyright liability? A derivative work is one "based on" a preexisting work, in which the original is "recast, transformed or adapted." That's similar to the language used to describe a treatment under UK law. Owners of sound recordings often release new versions, with songs added, outtakes included, and bonus art, ostensibly to sell copies to consumers who already purchased them. I certainly didn't ask the Beatles (or more precisely, the copyright owner of the White Album) for permission to propose a shortened album, but what I have done looks like an abridgement of the sort that might fall into traditional notions of fair use.

Once upon a time, I might have made a mixtape and distributed it to my dearest friends (although when I was young, the 45 minute tape was optimal, so I might have been forced to cut another song or two). Committing my findings to vinyl, compact disc, or mp3, using the original recordings, technically violate 17 USC 106(1)'s prohibition on unauthorized reproduction. If I give an unauthorized copy to someone else, I violate the exclusive right to distribute under section 106(3). Unlike the public performance and display rights, there is no express carve out for "private" copying and/or distribution, although it was historically hard to detect. The mixtape in its analog form seems like the type of private use that should be permitted under any reasonable interpretation of fair use, if not insulated by statute.

If I send my digital mixtape to all of my Facebook friends, that seems a bridge too far. However, Megan Carpenter has suggested that by failing to make room for the mix tape in the digital environment, copyright law "breeds contempt." 11 Nev. L.J. 44, 79-80 (2010).  Jessica Litman, Joseph Liu, Glynn Lunney and Rebecca Tushnet, among others, have argued that space for personal consumption is as important in the digital realm as it was in the good old days when everything was analog.

If I instead use social networking tools like Spotify Social** to share my playlist, I probably don't infringe the 106(4, 6) public performance right. Because I use authorized channels, any streaming you do to preview my playlist is likely authorized. And if I post the playlist on iTunes, you can go and buy it as constituted. That seems somewhat closer to an unauthorized copy, but it's not actually unauthorized. The Beatles sell individual singles through iTunes, so it seems problematic to conclude that consumers are not authorized to buy only those songs they prefer.

So all in all, given that I'm not running a CD burner in my office, I think I'm in the clear. What do you think?

*A recent Supreme Court decision puts in doubt the Lanham Act portion of the Monty Python holding

**The Spotify Social example is complicated by the fact that the Beatles aren't included, although I have found reasonable covers of all the songs included on the TWA. The copyright act explicitly provides for a compulsory license to make cover tunes, so long as the cover doesn't deviate too drastically from the original. 17 USC § 115(a). If the license was paid, and the copyright owner notified, those songs are authorized. My repackaging of them in a virtual mixtape, however, is not. 17 U.S.C. § 114(b).


Posted by Jake Linford on December 6, 2011 at 07:31 PM in Information and Technology, Intellectual Property, Music | Permalink | Comments (1) | TrackBack

Revisiting the Scary CFAA

Last April, I blogged about the Nosal case, which led to the scary result that just about any breach of contract on the internet can potentially be a criminal access to a protected computer. I discuss the case in extensive detail in that post, so I won't repeat it here. The gist is that employees who had access to a server in their ordinary course of work were held to have exceeded their authorization when they accessed that same server with the intent of funneling information out to a competitive ex-employee. The scary extension is that anyone breaching a contract with a web provider might then be considered to be accessing the web server in excess of authorization, and therefore committing a crime.

I'm happy to report that Nosal is now being reheard in the Ninth Circuit. I'm hopeful that the court will do something to rein in the case.

I think most of my colleagues agree with me that the broad interpretation of the statute is a scary one. Where some depart, though, is on the interpretive question. As you'll see in the comments to my last post, there is some disagreement about how to interpret the statute and whether it is void for vagueness. I want to address some of the continuing disagreement after the jump.

I think there are three ways to look at Nosal:

    1. The ruling was right, and the extension to all web users is fine (ouch);

    2. The ruling was right as to the Nosal parties, but should not be extended to all web users; and

    3. The ruling was not right as to the Nosal parties, and also wrong as to all web users.

I believe where I diverge from many of my cyberlaw colleagues is that I fall into group two. I hope to explain why, and perhaps suggest a way forward. Note that I'm not a con law guy, and I'm not a crim law guy, but I am a internet statute guy, so I call the statutory interpretation like I see it.

I want to focus on the notion of authorization. The statute at issue, the Computer Fraud and Abuse Act (or CFAA)  outlaws obtaining information from networked computers if one "intentionally accesses a computer without authorization or exceeds authorized access."

Orin Kerr, a leader in this area, wrote a great post yesterday that did two things. First, it rejected tort based tresspass rules like implied consent as too vague for a criminal statute. On this, I agree. Second, it defined "authorization" with respect to other criminal law treatment of consent. In short, the idea is if you consent to access in the first place, then doing bad things in violation of the promises made is does not mean lack of consent to access. On this, I agree as well.

But here's the rub: the statute says "without authorization or exceeds authorized access." And this second phrase has to mean something. The goal, for me at least, is that it covers the Nosal case but not the broad range of activity on the internet. Professor Kerr, I suspect, would say that the only way to do that is for it to be vague, and if so, then the statute must be vague.

I'm OK with the court going that way, but here's my problem with the argument. The statute isn't necessarily vague. Let's say that the scary broad interpretation fron Nosal means that every breach of contract is now a criminal act on the web. That's not vague. Breach a contract, then you're liable; there's no wondering whether you have committed a crime or not. 

Of course, the contract might be vague, but that's a factual issue that can be litigated. It is not unheard of to have a crime based on failure to live up to an agreement to do something. A dispute about what the agreement was is not the same as being vague. Does that mean I like it? No. Does that mean it's crazy overbroad? Yes. Does that mean everyone's at risk and someone should do something about this nutty statute? Absolutely.

Now, here is where some vagueness comes in - only some breaches lead to exceeded access, and some don't. How are we to decide which is which? The argument Professor Kerr takes on is tying it to trespass, and I agree that doesn't work.

So, I return to my suggestion from several months ago - we should look to the terms of authorization of access to see whether they have been exceeded. This means that if you are an employee who accesses information for a purpose you know is not authorized, then you are exceeding authorization. It also means that if the terms of service on a website say explicitly that you must be truthful about your age or you are not authorized to access the site, then you are unauthorized. And that's not always an unreasonable access limitation.  If there were a kids only website that excluded adults, I might well want to criminalize access obtained by people lying about their age. That doesn't mean all access terms are reasonable, but I'm not troubled by that from a statutory interpretation standpoint.

I'm sure one can attack this as vague - it won't always be clear when a term is tied to authorization. But then again, if it is not a clear term of authorization, the state shouldn't be able to prove that authorization was exceeded. This does mean that snoops all over and people who don't read web site terms (me included) are at risk for violating terms of access we never saw or agreed to. I don't like that part of the law, and it should be changed. I'm fine with making it more limiting in ways that Professor Kerr and others have suggested.

But I don't know that it is invalid as vague - there are lots of things that may be illegal that people don't even know are on the books. Terms of service, at least, people have at least some chance of knowing and choose not to. That doesn't mean it isn't scary, because I don't see behavior (including my own) changing anytime soon.

Posted by Michael Risch on December 6, 2011 at 05:18 PM in Information and Technology, Web/Tech | Permalink | Comments (8) | TrackBack

Hearing on cameras in the courts

SCOTUSBlog is live-blogging the Senate hearings. Witnesses include former Senator Arlen Specter, Tom Goldstein (of SCOTUSBlog and a little bit of Supreme Court litigating), Chief Judge Anthony Sirica of the Third Circuit, Chief Justice Mark Cady of the Iowa Supreme Court, and Maureen Mahoney of Latham & Watkins.

The hearing follows yesterday's introduction of the Cameras in the Courtroom Act, co-sponsored by Republican Charles Grassley and Democrat Richard Durbin (still looking for a copy of the bill. It would require television coverage of all open sessions of the Supreme Court, unless a majority of the justices decide doing so would violate the Due Process rights of one of the parties.

More later, I hope.

Posted by Howard Wasserman on December 6, 2011 at 11:27 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Regulatory Changes: Concluding Thoughts

The proposed changes to federal administrative law that I've been blogging about represent some pretty significant changes to how we think about the regulatory process, at least at the federal level.  (Anyone interested in those changes can read my earlier posts herehere, and here, or consult this Congressional Research Service Report).  As readers of those earlier posts probably know, I'm critical of at least some of those changes, for example, the proposals to increase the role of formal procedures in rulemaking, as pretty seriously inconsistent with generally accepted good administrative practice.  Others, such as the provisions to increase White House power to oversee the regulatory actions of independent administrative agencies, raise difficult questions of first prinicples about which reasonable persons could disagree.  I'd like to conclude this series with a couple of general observations about these proposals, and the process by which they're being considered.

First, it seems fairly clear that at least some of these proposals are driven by a desire to reduce the amount of regulation in American life, rather than concerns for fairer or improved regulatory processes per se.  As an abstract matter, I have no problem with arguments that there's too much regulation today.  I'm not sympathetic to those arguments, but claims like those have every right to be heard and decided by the American people, acting through their representatives.  But I am concerned with the under-the-table character of some of these reform provisions.  For example, the requirement that agencies increase their use of formal rulemaking seems to serve no purpose other than to slow down the regulatory process and reduce the number of regulations produced.  If Congress wants to reduce the scope of a particular regulatory program, or even reduce the amount of regulation more generally, that's their decision.  But using a procedural gimmick to get there strikes me as seriously dishonest.  If people think we're regulating air pollution too stringently, let's have an open debate about it.

Second, some of these proposals greatly expand the number and specificity of requirements imposed on agencies when they regulate.  As such they change the character of the APA from a skeletal constitution for the administrative state into a detailed legal code prescribing exactly how agencies should conduct themselves.   Reasonable minds can differ about the value of such a code.  A few years ago I waded into this debate with an argument for keeping the APA skeletal, on the theory that that approach allowed a healthy evolution based on a dialogue between courts and agencies.  As an example of the contrast, "The Jobs, Growth and Regulatory Accountability Act of 2011" imposes, by my count, eight criteria that an agency has to discuss in a notice of proposed rulemaking.

I'm not troubled by agencies having to provide detailed discussions of their data and analysis in their rulemaking notices; that sort of requirement has been around for decades as a matter of judicial interpretation of the APA.  However, I am concerned that specifying the criteria at this level of detail will turn rulemaking notices into a game of "gotcha," rather than exercises in sound administrative practice.  Of course, under the current regime judicial review makes agencies careful to check the relevant boxes as identified by the courts.  But those judicially-imposed requirements are based on solid reasoning: if an agency comes up with a good faith (and good) explanation for not fully complying, or complying in a different way, then one might expect a reasonable reviewing court to affirm the agency's action.  Explicit requirements, such as those in this bill, cannot be so easily finessed.  Indeed, requirements like the one in this bill might even backfire, if agencies figure out ways to formally comply with them while ignoring other steps that might be more relevant to that particular rulemaking.  Judicially-led evolution has done a decent job of applying the APA's basic principles to the modern world; I'd hesitate before substituting a set of detailed criteria that, at best, reflect the regulatory concerns of the moment and, at worst, are stand-ins for a substantive bias against regulation.

I'm not against amending the APA if there's good reason.  But junking major parts of it -- which is what some of these proposals amount to -- strikes me as a really bad idea in today's toxic and polarized political environment.

Posted by Bill Araiza on December 6, 2011 at 08:58 AM | Permalink | Comments (0) | TrackBack

How I Write

I've noticed that many aspiring law professors (including fellows) find writing law review or other articles, an essential part of our job, difficult at first. Here is a set of suggestions based on what works for me. I make no claim that these are best practices, exhaustive, or even something that will work for you. Still, I thought it worthwhile to share some reflections, and I invite others to do so in the comments.

NB: I have no children and am unmarried, so I've often wondered whether that is part of what makes writing work for me. I am sure it plays some role, but as I discuss below given that I stick to a pretty strict 9 to 5 schedule Monday to Friday (except once every week and twice every other week where I teach till 7 PM), and rarely work on the weekend, I suspect that this cannot explain most of what works for me.

Here are the tips based on how I write:

  1. Get a big monitor: I love having a monitor big enough to show two full documents and a sizable magnification at the same time. I can have westlaw up in one and the draft article in another, or have a journal’s edits and my original article up simultaneously. Some people prefer two monitors, but either way I think this will increase your efficiency.
  2. Alter your email schedule: If you can change your automatic email receive schedule to 20 or 30 minute intervals rather than every 5 or 10 minutes you will find you are less likely to get distracted. Of course, turning email off altogether is better still but for many of us that is not a great option.
  3. Aim for crappy but complete first drafts, avoid perfection: I have always admired people who write perfect first drafts; I’ve never been one of them. I usually go through 100 drafts of any piece of writing, and actually save a new version on any day I make an alteration that is even mildly significant. I think for many perfection equals paralysis. I can generate a crappy and almost complete first draft much quicker, and I feel liberated knowing the final draft will be SO much better. It also enables me to share the draft earlier in its gestation and even workshop it with friends early…which leads to the next point….
  4. Work on Deadlines: As an appellate lawyer at the Justice Department I basically had hard deadlines almost constantly on briefs. Indeed, the harder the deadline, the faster I would work. In a few emergency stay cases with basically a 24 hour turn around, I found that I could work two to three times as fast and produce a document that was 80% as good in terms of the quality. I think deadlines are very helpful, and you should seek them out as much as possible. Agree to give a workshop in-house or at another school at a date that feels a bit on the early side. I also use the law review cycles as internal deadlines when I should have a “very good” draft, and then work backwards to create deadlines for myself as to when I will give the draft to various people and incorporate changes.
  5. Teach your draft papers: If you are teaching a seminar or even a general class in your area, consider teaching a draft paper. I have found that the students love it, and you get good feedback – especially as to whether the article is pitched at the right level for law review editors.
  6. Work in 45 minute tranches, and 3 hr blocks: I have found I can work intensely for 45 minutes at a time, and I can do a 3 hour block before my brain is exhausted.  So I usually do a morning and/or afternoon session, and if I do both on a given day I schedule a full one-hour lunch in between (on every work day we either have a faculty workshop or a dining room where I can relax with my colleagues). I use the last 15 minutes of each hour for answering emails, or administrative matters or blog reading. I know this amount of time-management seems neurotic or the exact billing practices many people happily left behind when working for a firm, but it works for me.
  7. Pick good times and places to write: My concentration is at my peak first thing in the morning, so I try to do my writing then and schedule my classes for the late afternoons. This also benefits my students because I am an incorrigibly fast talker, and my being “tired” actually makes me a better teacher.  I really like writing in my office at the law school, but for others a coffee shop or home works better. Find your ideal writing space and stick with it.
  8. Have multiple projects of various types/lengths at once: At any given time I have 2 to 5 papers on one of the burners of my intellectual stove. I will be dealing with a journal’s edits on one paper, getting a second ready for sending out to law reviews, writing the first draft of a third, and researching a fourth.  I find this works well for me because when I am sick of or exhausted by one paper, I can switch to one of the others and feel renewed rather than having to switch off writing altogether. One of the reasons why this works for me is that I try at any time to have multiple types of papers going.  Some of this is no doubt field specific, but for me it is great to have one short paper for a medical journal audience, one or two longer law review articles, and maybe an partially empirical project where we are just working on cleaning data.
  9. Split to your heart’s content: Most subjects I find interesting prove to be much more complex then when I start writing about them. I routinely cut down 48,000 word draft papers to 32,000 words – indeed I spend at least 40% of my time on any paper on this phase . . . but sometimes it becomes clear to me early on that what I really want to write will end up being more like 80,000 and have three different big ideas aimed for different audiences.  Almost always when this has happened I have been able to split the original projects into multiple parts. I have done this with my medical tourism work, and one of the nice side benefits is that even after you split you can always potentially re-join the work and still further elaborate on it as a book, as I am trying to do now.
  10. Have RAs work on the piece throughout, during your “off times”:  I have a “stable” (about 9 or 10) of research assistants. Having this many is great because it means there is always at least someone available to work on something. Even when a paper is only mid-way through the drafting process, I will give it to my RAs to edit while I am busy working on another paper with the hope that they can make it better even when my eyes are not on it.
  11.  Treat writing like a job: This is more a philosophy. Many flock to legal academia away from a more rigid job in the legal world, but there is something to be said for rigidity and not waiting for the muse to whisper in your ear. I try to treat legal writing as a job, come in at 9, leave at 5 on most days and work consistently throughout. This helps me be both productive and sane, but perhaps I am an aardvark in this respect.

Posted by Glenn Cohen on December 6, 2011 at 04:18 AM in Life of Law Schools, Teaching Law | Permalink | Comments (18) | TrackBack

Prawfsfest! 9 comes to LA!

For those of you thinking about good shared-cost models to incubate early scholarship, you might want to consider the Prawfsfest! model. Tonight, Dave Fagundes (SW) and Michael Waterstone (LLS) begin hosting the 9th P-fest! workshop at Loyola Law School. Big thanks to LLS for opening their hearts and homes. After the jump, you can see the schedule. As usual, the pre-reqs for a P-fest are an early work in progress, pre-submission, pre-SSRN. Folks exchange drafts with about 10,000 words as expected reading, and any more is optional. An hour per paper where the "presenter" says nothing until everyone's had their chance to give constructive critical comments. And of course, special disquisitions are usually offered on the subject of best titles. I'm sad to miss the fun but I hope to hear a report later...

Schedule for PrawfsFest LA

Tuesday, December 6

7pm Gather in lobby of Biltmore Hotel to walk to dinner
7.30pm   Dinner at Bar | Kitchen, 819 S. Flower St., Los Angeles, CA

Wednesday, December 7

8.30am Gather in lobby of Biltmore Hotel for transport to LLS
9am Breakfast
9.20am Justin Levitt
10.20am Addie Rolnick
11.20am Coffee and snack break
11.30am Brendan Maher

12.30pm Lunch on-site at LLS

2pm DF
3pm: Coffee and snack break
3.15pm Franita Tolson
4.15pm Return to hotel for a pre-dinner break

7pm Meet in hotel lobby to drive to dinner (DF et al. will drive)
7.30pm Dinner at Pete’s Café & Bar, 400 S. Main St., Los Angeles, CA

Thursday, December 8

8.30am Gather in lobby of Biltmore Hotel
9am Breakfast
9.15am Jake Linford
10.15am Coffee
10.30am Sarah Lawsky
11.30am Michael Helfand

12.30pm Lunch on-site at LLS

1.45pm: TJ Chiang
2.45pm: Coffee and snack break
3pm: David Horton
4pm: Tearful goodbyes

Weds eve: Optional dinner—let DF know if interested.


Posted by Administrators on December 6, 2011 at 03:09 AM in Blogging | Permalink | Comments (0) | TrackBack

Tributes to Steve Gey

As many of you know, my colleague Steve Gey, the distinguished and dedicated con law professor, passed away earlier this year after a heroic battle against ALS. A few months ago, the FSU College of Law hosted a memorial service in Steve's honor. You can access the tributes by colleagues and close ones here, in the new issue of the FSU Law Review.

Posted by Administrators on December 6, 2011 at 02:37 AM in Article Spotlight, Constitutional thoughts | Permalink | Comments (0) | TrackBack

Monday, December 05, 2011

Constitutional Values and Interpretive Theory Choice

I am in the middle of a paper that explores, in part, what I call “constitutional values”.  By this I mean something like “what we value about the Constitution and its role in our democracy”.  For example, we may value the Constitution because it acts as a constraint on state actors and institutions.  We might also value the Constitution’s “writteness” (to use a term in vogue) because it provides an important kind of transparency.  Or we might value the Constitution as a source of transcendent, aspirational principles that serve social justice of a particular kind.  Or we might value the Constitution’s flexibility—broad strokes meant to stand the test of time, etc.  These are just a few examples.  I’m looking for some help identifying others, and, more importantly, figuring out how or where to look for evidence that a particular value is widely held.

My working hypothesis, for a number of reasons, is that the constitutional canon—the texts that have hardened into more or less fundamental parts of our constitutional imaginations—is a good place to look to start identifying constitutional values.  The thought being that these texts have become canonical because they speak directly to our most deeply held ideas about what the Constitution means to, or how it should function in, our system.  Think of The Federalist and written transparency, or the Declaration of Independence and aspirations of social justice, or McCulloch and flexibility.

The (Kuhnian) thesis of my paper is that we tend to make constitutional interpretive theory choices (i.e., originalism vs. pragmatism; textualism vs. structuralism) based on how well a theory choice serves the constitutional values we hold most dear.  In this way, I intend to argue that theory choices in constitutional argument (like theory choices in Kuhn’s science) do not usually depend on “objective” criteria—i.e. there actually is a “true and correct” way to interpret the text—but instead reflect basic kinds of constitutional value preferences. 

To do this, though, I need to flesh out my list of “constitutional values,” and I also need find a credible place to attribute finding them.  In other words, I need to be able to say how I know “X” is a widely held “constitutional value.”  I would be really grateful for any helpful thoughts or ideas….


Posted by Ian Bartrum on December 5, 2011 at 03:55 PM | Permalink | Comments (1) | TrackBack

While My (Favorite Beatles Song) Gently Weeps

The voting is done and the world has (or 264 entities voting in unique user sessions have) selected the songs for "The Tighter" White Album (hereinafter TWA). The survey invited voters to make pairwise comparisons between two Beatles songs, under the premise that one could be kept, and one would be cut.

There are several copyright-related implications of my experiment, and I wanted to unpack a few of them. Today, my thoughts on the potential authorship and ownership of the list itself. Tomorrow, a few thoughts on moral rights, whether I’ve done something wrong, and whether what I've done is actionable. [Edited to add hyperlink to Part II]

But first, the results -- An album's worth of music (two sides no longer than 24:25 each, the length of Side Four of the original), ranked from strongest to weakest:


While My Guitar Gently Weeps


Back in the USSR

Happiness is a Warm Gun

Dear Prudence

Revolution 1

Ob-la-di, Ob-la-Da


Helter Skelter

I'm So Tired

I Will


Rocky Raccoon

Mother Nature's Son

Cry Baby Cry

Sexy Sadie

How did the voters do? Very well, by my estimation. I was pleasantly surprised by the balance. McCartney and Lennon each sang (which by this point in their career was a strong signal of primary authorship) 12 of the 30 tracks, and each had 7 selections on the TWA. (John also wrote "Good Night," which was sung by Ringo and overproduced at Paul's behest, so I think it can be safely cabined.) Only one of George Harrison's four compositions, "While My Guitar Gently Weeps," made the cut, but was the strongest finalist. Ringo's "Don't Pass Me By," no critical darling, did poorly in the final assessment.*

It's possible, although highly unlikely in this instance, that the list of songs is copyrightable expression. As a matter of black letter law, one who compiles other copyrighted works may secure copyright protection in the

collection and assembiling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.

Protection only extends to the material contributed by the author. The Second Circuit has found copyrightable expression in the exercise of judgment as expressed in a prediction about the price of used cars over the next six months, even where the prediction was striving to map as close as possible to the actual value of cars in those markets. Other Second Circuit cases recognize copyright protection in the selection of terms of venery -- labels for groups of animals (e.g., a pride of lions) and in the selection of nine pitching statistics from among scores of potential stats. In each of these cases, there was some judgment exercised about what to include or what not to include.

In this case, I proposed the question, put together the survey, monitored the queue, and recruited respondents through various channels. The voting, however, was actually done by multiple individuals selecting between pairs of songs. It's difficult to paint that as a "work of authorship" in any traditional sense of the phrase. I set up the experiment and then cut it loose. I could have made my own list (and have, but I won't bore you with that), and that list would have been my own work of authorship. This seems like something different, because I'm not making any independent judgment (other than the decision to limit the length of the TWA to twice the length of the longest side of the White Album).

Let's assume for a moment that there is protectable expression, even though I crowdsourced the selection process. Could it be that all 246 voters are joint authors with me in this work? It seems unlikely. The black letter test asks (1) whether we all intended our independent, copyrightable contributions to merge into an inseparable whole, and (2) whether we intended everyone to be a co-author. It's hard to call an individual vote between two songs a separately copyrightable contribution, even with the prompt: "The Beatles' White Album might have been stronger with fewer songs. Which song would you keep?" By atomizing the decision, I might be insulated from claims that individual voters are co-authors of the final list, although I suggested that there was something cooperative about this event in my description of the vote:

We’re crowdsourcing a “Tighter White Album.” Some say the White Album would have been better if it was shorter, which requires cutting some songs. Together, we can work it out. For each pair, vote for the song you would keep. Vote early and often, and share this with your friends. The voting will go through the end of November.

Still, to the extent they took seriously my admonitions, the readers were endeavoring to decide which of the two songs presented belonged on the TWA, whatever the factors that played into the decision. Might that choice also be protected in individual opinions sorted in a certain fashion? This really only matters if I make money from the proposed TWA. I would then need to make an accounting to my joint authors. And even if the vote itself was copyrightable expression, the voter likely granted me an implied license to include it in my final tally.

Should I have copyright protection in this list? Copyright protection is arguably granted to give authors (term of art) the incentive to create expressive works. I didn't need copyright protection as an incentive: I ran the survey so that I could talk about the results (and to satify my own curiosity). And my purposes are served if others take the results and run with them (although I would prefer to be attributed). Maybe no one else needs copyright protection, either, as lists ranking Beatles songs abound on the internet. Rolling Stone magazine has built a cottage industry on ranking and reranking the popular music output of the last 60 years, but uses its archives of rankings as an incentive to pay for a subscription. If the rankings didn't sell, magazines would likely do something else.

As an alternative, Rolling Stone might also arguably benefit from common law protection against the misappropriation of hot news, granted by the Supreme Court in INS v. AP, which would provide narrow injunctive relief to allow it to sell its news before others can copy without permission. The magazine might have trouble with recent precedent from the 2d Circuit which held that making the news does not qualify for hot news protection, although reporting the news might. So if I reproduce Rolling Stone's list (breaking news: Rolling Stone prefers Sonic Youth to Brittany Spears), that might fall outside of hot news misappropriation, although perhaps not outside of copyright protection itself.


*Two personal reflections: (1) I am astounded that Honey Pie didn't make the cut. Perhaps voters confused it with Wild Honey Pie, which probably deserved its lowest ranking. (2) I sing Good Night to my five-year old each night as a lullaby, and my world would be different without it. That is the inherent danger in a project like mine, and those who criticize the very idea that the White Album would have been the better had it been shorter can marshall my own anecdotal evidence in support of their skepticism.






Posted by Jake Linford on December 5, 2011 at 03:35 PM in Information and Technology, Intellectual Property, Music | Permalink | Comments (1) | TrackBack

The End of Hockey (Fighting)?

Unlike Wasserman, Vladeck, and Bodie, I'm just a nerd with little interest in and patience for following the sports pages these days. (Unfortunately, I still have tons of useless trivia stuck in my head from my days of fandom as a kid.)

Nonetheless, I've been drawn into John Branch's series of pieces on Derek Boogaard in the NYT this week. Boogaard died at the age of 28 not long ago, due to an overdose from painkillers. He was a brutal "enforcer" for his hockey teams, and the series by Branch effectively underscores the complicity of officials, owners, coaches and fans in the gladiatorial aspects of Boogaard's life and death. Notwithstanding too many links to videos of important fights in Boogaard's career, I highly recommend the series so far. (The links are too tempting and I feel like Leontius looking back at the executioner's carnage.) I'd be surprised if it's not a finalist for a Pulitzer. More importantly, I think it shows to a wide audience of NYT readers just how pervasive the senseless violence on the ice is; it might also spur some important changes to the game of hockey itself. 

Importantly, if Boogaard's family sought the chance to do something (and maybe without them too), the series could lay the foundation for the kind of tort litigation/media onslaught against the hockey industry that we've seen work (and not work so well) in other areas. Boogaard was a bruiser, and, from my criminal law perspective, I could see all sorts of reasons why local and enterprising DA's might try to make a case against him and the "enforcer" crew of which he was a critical part (consent as a defense be damned!). But he was, as the articles show, vulnerable to all sorts of social influences and financial incentives that others bear responsibility for as well. Not every social problem requires legal redress in the courts. But even (or especially) if the NHL won't fix itself -- and it seems to have resisted efforts to change the penalty structure for more than 90 years -- I hope it will be spurred to change by moral entrepreneurs in the courts and elsewhere inspired by Branch's series on Boogaard. There's no reason for thinking that brutal disabling fights are a necessary feature of hockey. And if they are, then I'm all in favor of a new sport of senseless violence-free shmockey.

Update: I've been alerted to Jeff Yates' paper on reducing violence in sports through criminal prosecutions. And you might want to check out the NYT's latest report: namely, that Boogaard's head was massively diseased from all the concussions he suffered.

{Signed, verifiably addressed, and substantive comments are invited.}

Posted by Administrators on December 5, 2011 at 03:25 PM in Article Spotlight, Culture, Current Affairs, Dan Markel, Sports, Torts | Permalink | Comments (14) | TrackBack

Severability as an Erie Question

I appreciate the opportunity to post this month. To begin, I'll share some thoughts about the doctrine of severability, which seems to be receiving greater attention lately in light of its potential role in the Supreme Court's upcoming decision on the Affordable Care Act.

I see the doctrine as a particularly attractive point of discussion for a couple of reasons. On one hand, it is important--severability figures centrally in a broad array of state and federal constitutional litigation, and is powerful because the viability of large statutory schemes can hinge entirely on whether an unconstitutional provision is severable. If the Court invalidates the individual mandate in the health care litigation, for example, severability will decide whether the mandate's invalidity brings down the entire Affordable Care Act. High stakes, indeed.

On the other hand, severability is a deeply vexing doctrine. Most agree that the Court's historical approach to it is unsatisfying. In some cases the Court decided severance questions without explanation. In others the Court articulated one doctrine but seemed to apply another. Moreover, many have disagreed with the substantive content of the announced doctrine; a handful of articles suggest varying reforms, including abolishing severability altogether

I think there is another aspect to the jurisprudence that is equally intriguing but less recognized, and it is one that frames severability as a question of vertical choice of law. In other words, when a federal court invalidates part of a state statute, whose law determines whether the unconstitutional portion is severable? Should it be the federal law of the reviewing court, or the law of the state whose statute is under review? 

Unlike other questions about severability, the choice-of-law question has a clear answer in the cases. It is not, however, the answer that one might expect. Historically, the Court held the severability of state statutes in federal court to be a matter of state law, in accordance with Erie's principle of judicial federalism. But in some relatively recent decisions, principally Ayotte v. Planned Parenthood of Northern New England, the Court seems to have reversed course by establishing that severability is a matter of general federal common law. Thus, it appears that federal courts must today apply the Court's federal doctrine regardless of whether a federal or state statute is at issue.

This aspect of the doctrine seems problematic for a couple of reasons. First, it seems problematic as a matter of stare decisis, for it rather inexplicably rejects a practice that had been settled ever since Erie. Second, it seems problematic as a matter of judicial federalism, for it ensures that general federal common law displaces a large body of diverse state law without any discernable constitutional authorization or supporting federal interest. 

I've been writing a piece--available here--that identifies and explains these problems in more detail, and also proposes a solution. Briefly stated, I think that the federalization of severability for state statutes is appropriate only in limited circumstances. Federal courts should generally have to apply state law to decide the severability of state statutes, and should be able to override the applicable state-law doctrine only when applying it would require severance in a manner that exceeds the limits of Article III judicial power. I think this approach would better honor both Erie and Article III, and also harmonize with the vast majority of the Court's modern precedent.

Posted by Ryan Scoville on December 5, 2011 at 01:04 PM in Article Spotlight, Constitutional thoughts | Permalink | Comments (0) | TrackBack

Home Schooling Esq?

An article in today’s National Law Journal, "Law School: Who Needs It?  Reading the Law Remains an Option But Carries its Own Challenges,"  talks about “reading the law” – the idea of teaching yourself law or apprenticing with experienced lawyers before starting to practice law school.  Some states still allow prospective lawyers to skip law school entirely, or supplement fewer than three years of law school with an apprenticeship. 

The Carnegie Report tells us we need more practice-ready lawyers.  The ABA requires us to include skills training in the curriculum.  So should this be the way of the future?  With ever increasing law school tution, and more discussions on where the tuition dollars go and the utility of academic scholarship, is the academy under threat?

According to Ms. Sloan, California, Vermont, Virginia and Washington allow an apprenticeship instead of law school; Maine, New York and Wyoming allow a hybrid approach of some formal law school plus a legal apprenticeship.  Isn't this really just a multi year live client clinic? It's the ultimate in skills training.

The programs don't seem to be too popular presently.  One reason may be the issue of the portability of a law license obtained through these avenues- in most cases, the only state that recognizes these licenses are the states that issue them.  I'd also like to believe that law school actually adds value, but we'll save that post for another day.

The apprenticeship is an interesting idea.  Many of our students do externships, and explore this idea in a more diluted form, along with traditional doctrinal classes and skills and clinical offerings.

Should we broaden it?  Some law schools allow full semesters of appreticeships.  Should we go further? We permit home schooling for K-12; why not for law school?  But home schooling for K-12 is subject to regulation and oversight- the home schooled K-12 students are tested along with the traditionally schooled kids, and their curricula are monitored. These law apprenticehip programs sounds like they are pretty loose, with the end game simply whether the candidate passes the bar exam. 

Not to be too cynical, but reasonable minds can differ on whether that's a valid exclusive measure here.  Again, we should probably save that for another post!!


Posted by Miriam Albert on December 5, 2011 at 11:27 AM | Permalink | Comments (2) | TrackBack

Procedure and the rhetoric of the judicial process

A new HIV discrimination case is drawing obvious attention for its substantive issues. But I want to consider some underlying civ pro/fed courts issues (it would be the basis for a great exam), as well as what the case tells us about the rhetoric of the judicial process.

The Milton Hershey School in Hershey, PA, was established by the chocolate magnate to provide educational opportunities for socially and financially disadvantaged kids. Abraham Smith is a 13-year-old boy living in southeast Pennsylvania who is HIV positive. Smith was denied admission to the school, explicitly on the ground that the school "could not accommodate the needs of students with chronic communicable diseases that pose a direct threat to the health and safety of others." The School entered into negotiations with the AIDS Law Project of Pennsylvania, which represents Smith and his mother; when that failed, simultaneous lawsuits were filed. The School filed a declaratory judgment action in the Middle District of Pennsylvania (which includes Hershey), seeking a declaration that its decision did not violate the Americans With Disabilities Act or the Fair Housing Act (the school owns and runs dormitories) because its concerns for student health and safety meant it was not required to provide this accommodation. The same day, Smith through his mother, filed an action in the Eastern District of Pennsylvania (where the Smiths live), alleging that the school violated the ADA and seeking an injunction and compensatory and punitive damages.

Some thoughts and questions after the jump.

First, a rhetorical issue. Hershey blamed the fact that the case had come to litigation on the plaintiffs:

Recognizing the complex legal issues, the School was preparing to ask the court to weigh in on this matter. Unfortunately, attorneys for the young man took the adversarial action of filing a lawsuit against the School.

But "asking the court to weigh in on this matter" meant the filing of a lawsuit--the court was not going to simply  walk into the debate and provide an answer. Thus the school's argument is that a potential's defendant's anticipatory action for a declaration of non-violation is somehow less adversarial than the coerceive enforcement action by the injured party alleging a violation.  This seems a clever bit of rhetoric that is telling of popular misunderstandings of the court system that the school could try to exploit: "Filing a lawsuit" is an "adversarial action" that is bad; "ask[ing] the court to weigh in" is non-adversaril and is good.

But this argument is theoretically incoherent, which at least the school's lawyer should realize. Either lawsuit results in an adversarial process and the spending of resources on litigation. That is the only way a court can "weigh in" on any matter. What the school really lost when the plaintiffs filed their coercive action (and what I imagine is irking the school) was the opportunity to control the judicial forum; the school could have kept the case in the Middle District, close to its home, had the plaintiffs simply waited for the school to ask the court to weigh in. The school is basically criticizing the Smiths for not waiting for the school to sue first.

Second, education and disability law people, help me out: Can the school possibily win this? under the ADA? The logic of this would justify the Hershey School in excluding or removing anyone with any sort of communicable or blood-borne illness. It also would justify any school excluding anyone with HIV, since students will ("unfortunately", the complaint says) have sex.

And now for the fun procedure issues. Obviously, this case is unique for having concurrent, identical lawsuits--one defenssive, the other offensive--filed the same day in differnet districts. There is a nice question of which action should proceed. Federal courts facing concurrent/parallel litigation in different districts will typically defer to the federal court in which the action was first filed. Here, the lawsuits both were filed on November 30, so we don't have an obvious first filing. Should the coercive action take priority because coercive litigation is more common and more keeping with the norms of our adversary system?

There also is a question of whether venue is proper for the coercive action in the Eastern District. Venue there must be under § 1391(b)(2) that a "substantial part of the events or omissions giving rise to the claim occurred" in the Eastern District. There no doubt was frequent communication from the school to the family in the Eastern District and perhaps even some physical trips (recruiting, etc.); the Smith's complaint alleges that the school solicits and enrolls students from the Eastern District. But the real events--the decision to deny admission--occurred in Hershey in the Middle District. Even if venue is proper in the Eastern District, there still is the question of whether the Middle District is the better forum for purposes of a transfer of venue. Although there is no hardship or inconvenience to the school to litigate in Philadelphia rather than Harrisburg, most witnesses, documents, and information probably is at the school. And perhaps the Eastern District court will take account of the pending Middle District declaratory judgment action as a basis for tranfser, allowing for consolidation of the two actions. (Of course, § 1404 can work in both directions in the different cases--the Smiths could move in the Middle District to transfer the school's declaratory judgment action to the Eastern District, citing its pending coercive action there. So those convenience arguments may cancel one another out, unless the Middle District just seems a more appropriate place for the case to be tried).

Posted by Howard Wasserman on December 5, 2011 at 09:31 AM in Civil Procedure, Current Affairs, Howard Wasserman | Permalink | Comments (3) | TrackBack

Circumvention Tourism: Traveling for Abortion, Assisted Suicide, Reproductive Technology, Female Genital Cutting, Stem Cell Treatments, and More...

This past week I was in lovely Hermance, Switzerland, as a guest of the Brocher Foundation and the International Society for Stem Cell Research's Ethics and Policy Commitee to talk to them about stem cell tourism -- travel abroad to receive treatment or be part of a clinical trial using stem cells not authorized in the patient's home country.  This is often a sub-type of what I call "circumvention medical tourism" -- medical tourism for services that are illegal in the patient's home country but legal in the destination country to which they travel.

I have just posted on SSRN a draft of my new article, Circumvention Tourism, 97 Cornell L. Rev. _ (forthcoming, 2012), which uses the real world examples of  medical tourism for abortion, assisted suicide, reproductive technology (especially surrogacy), and female genital cutting to build a bigger legal and ethical theory of circumvention tourism.

I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition?

Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage.

I then use this analysis as scaffolding to build towards a larger theory of circumvention tourism that includes examples outside of the medical context (such as prostitution, drug use, honor killings, and others)

I don't normally post drafts on SSRN until they are in page proofs (this draft is before the editors have had a chance to improve it) but am doing so early in this case because the topic is developing and I want my views to be part of the conversation. Still, it is a work-in-progress, so if you have any feedback you want to give me I always value it; though I think it makes more sense just to email me comments on the paper directly rather than post it on here so as not to clog the blog...but happy for more editorial/conversational comments to be added on here.

PS: I've already benefitted greatly from workshops of this paper at HLS, UT Austin, and by the NYU/Brooklyn Crim Law Theory Group that Dan Markel coordinates. I love workshopping papers, so if you are interested in having me present this or another paper feel free to get into contact.

Posted by Glenn Cohen on December 5, 2011 at 02:51 AM in Criminal Law, Gender, International Law, Legal Theory | Permalink | Comments (0) | TrackBack

Sunday, December 04, 2011

Police Stops Go Up, Citizen Complaints Go Down -- What Gives?

The Milwaukee Police Department has just released some new data on traffic and subject stops.  There is a fascinating story here on policing strategy.  Since 2007, Milwaukee has experiened a dramatic increase in the number of stops: both traffic and subject stops are up close to 250%.  This has been part of a deliberate strategy to increase the number of police-citizen contacts, especially in high-crime neighborhoods.  (The MPD has also been very active over the past four years in promoting uncoerced police-citizen contacts, too.)  The objectives are to gather intelligence, disrupt criminal activity, and enhance community perceptions of safety in public spaces.  

As hoped, crime has indeed gone down considerably since 2007: violent crime is down 24%, and property crime is down 21%.  Whether and to what extent the increased-stops strategy has caused the crime drop is uncertain -- the MPD has also made some other significant changes in the past four years, and, in any event, crime has been dropping nationwide -- but the causal claim strikes me as at least facially plausible.  Providing some additional support is a month-by-month breakdown of auto theft and robbery data: in general, in months when stops have lagged, auto thefts and robberies have spiked; in months when stops have spiked, auto thefts and robberies have dropped.

But safety has a cost.  

Citizens are being stopped by the police tens of thousands more times now per year than they were in 2007.   The great majority of these stops do not result in an arrest, suggesting that most who suffer the inconvenience and embarassment of a stop are not guilty in any substantial way.  Moreover, because of the racial demographics of the high-crime neighborhoods in which stops are concentrated, African-Americans bear a greatly disproportionate share of the inconvenience and embarrassment relative to their share of the general population.

There is some risk that such racial disparities may prove counterproductive to the goal of enhancing police legitimacy and decreasing crime in the targeted neighborhoods.  (See, for instance, this post, which discusses concerns about the potential impact of racial profiling on police effectiveness.)

Yet, as far as I can tell, there has yet to be any significant backlash against the disparities or the underlying strategic choices.  In conversations and in the local media, I regularly hear complaints about the heavy-handedness of the TSA, but I almost never hear such complaints about the MPD.  Admittedly, I do not live in any of the neighborhoods most affected by the increased-stops strategy.  Yet, even in my relatively low-crime neighborhood, I can remember hearing frequent complaints about MPD racism when I first moved to the city a decade ago.

This brings us to what may be the most surprising aspect of the MPD data: despite the huge increase in the number of coercive police-citizen contacts, the number of citizen complaints is down by more than 44%.

What gives?

The cynical hypothesis would be that the MPD is doing something to discourage or impede complaints.  However, I'm not aware of any evidence of this, and, in fact, I understand that steps have been taken in recent years to facilitate complaint-filing.

Another possbility is better training and supervision of the officers in the street.  As noted above, improving police-community relations has been a major priority of the current MPD leadership, and some of that must be filtering down the ranks, which could result in greater restraint and more respectful treatment during stops.

Still another possibility is that the innocent people targeted for stops are actually willing to accept the inconvenience in view of the benefits of the MPD's strategy.  As the MPD data demonstrate, African-Americans are disproportionately victimized by crime in the city, and African-Americans are disproportionately identified as suspects.  African-Americans might thus see the increased number of stops in their neighborhoods as a rational and even reassuring response to the high rates of victimization they experience.  In turn, this positive perspective on the strategy might lead to greater tolerance of tactics that might otherwise lead to complaints.

One final possibility that I find particularly fascinating is framing effects.  The numbers are not included in the data I linked to above, but I have seen elsewhere that the number of tickets written by the MPD has stayed relatively constant, even as the number of traffic stops has increased so dramatically.  Most stopped motorists get off with a warning.   For many, this must profoundly color their emotional response to the stop (I know it would for me).  Instead of "I'm so irritated with this cop who interrupted my day because I was going a few miles per hour over the limit," the dominant feeling is "I'm so relieved that this nice cop gave me a break."  Whatever else is going on, routinely showing lenience to stopped motorists must surely contribute in some measure to public acceptance of the increased-stops strategy.  It must also help to defuse some of the anger that might otherwise lead to complaints.

Disclaimer: I serve as a member of the Milwaukee Fire and Police Commission, which is a civilian oversight agency for the police.  However, I have not had any role in the development of the increased-stops strategy.  A lengthy video of MPD Chief Ed Flynn explaining the strategy and responding to racial disparity concerns is here.

Posted by Michael O'Hear on December 4, 2011 at 05:03 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Parry on "Sovereignty, Emergency, Legality"

My posts are going to be fairly limited while I'm recovering, and mostly of a "hey, read this" or "watch this" variety.  With that in mind, and aware of the depressing adage that charity begins at home, I thought I'd point to this short but thorough and graceful review, on the Texas Law Review's Dicta site (a way of allowing the journal to allocate more virtual space to book reviews, God bless 'em), of Austin Sarat's edited collection, Sovereignty, Emergency, Legality.  To quote the book's publisher, Cambridge University Press, the book "examines law's complex relationship to sovereign power and emergency conditions. It . . . concentrates on officials and the choices they make in defining, anticipating, and responding to conditions of emergency as well as the impact of their choices on embodied subjects, whether citizen or stranger."  The review's author is John T. Parry of Lewis & Clark Law School, who has written a good deal on these issues himself.  The review is largely descriptive, but it is a thoughtful and elegant description of a book whose primary essays (by Pat Gudridge, David Dyzenhaus, Michael Rosenfeld, and others) deserve more attention.

Sarat has run a number of symposia out of the University of Alabama, where I teach, and in my experience he has a knack for bringing together good people, asking good questions that offer worthwhile, defamiliarizing spins on perennial topics, and expecting (and getting) good original work out of the participants, rather than typical edited-collection recapitulations of other work.  Of course I am biased, but it's a bias that arises out of watching him at work and seeing the results, not out of a generalized sense of institutional loyalty.  His recent symposium on freedom of religion was especially good, and I can't wait to read the primary essays in the published collection that will result, and to add my own short commentary.  

Further to the home-charity bit, as Parry's review notes, I have a short piece in the Sovereignty collection.  It hardly measures up to the paper, by Pat Gudridge, to which I was responding.  But it offered me a nice opportunity to think and write further about the relationship between oath-taking, decision-making, and deference.  Hopefully this collection is in your law school's library (at $90, it's clearly priced for institutional and not individual purchase), and I hope you'll take a look at it; if you do, Parry's review offers a superb starting point.     

Posted by Paul Horwitz on December 4, 2011 at 04:15 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Friday, December 02, 2011

When Easy Cases Make Bad Law

I'm glad to be back, and thanks to Prawfs for having me.  I hope to blog on a few different issues, and use my visit to rejuvinate my permablogging at Madisonian. I want to start by picking up a topic nicely covered by my Madisonian co-blogger, Greg Lastowka -- the recent case involving Bella's jacket from the movie Twilight. Perhaps you've heard of it -- the movie, I mean, not the case.

There is a maxim that "Hard Cases Make Bad Law." Today I want to talk about a lesser used maxim - when easy cases make bad law. But first, a bit about the case after the jump.

I've never seen the movie, but apparently the Bella Swan character wears this jacket. A jacket so popular that...it was discontinued before the movie ever came out. Not surprisingly, the jacket became wildly popular. Indeed, Bella wears the jacket in key promo photos, in this country and others. As Greg notes, the image is everywhere.

And so the manufacturer, BB Dakota, brought the jacket back. But here's the kicker. They renamed it the "Twilight" jacket. And, they put a hang-tag on it that used the very same promo photo described above. Here is one on sale at eBay. To be fair, BB Dakota did not just use the picture - it added information - here is an image of the hangtag, which BB Dakota sent widely with instructions to use the image in advertising, which retailers did.


See how the words "BB Dakota as seen in Twilight" were added the image? This is where things get interesting. BB Dakota argued that the purpose of the hangtag was "nominative." That is, it used the image to call Twilight by name, much in the same way I might say, "Did you see Twilight?" The idea is that it can't be trademark infringement if you are just calling a product by its name.

 This is also where things get seriously confused. As Greg makes clear (and others of my IP colleagues have noted offline), nominative use doctrine - though well meaning - is a real mess. The district court here goes down the rabbit hole and does little to clarify things.

Thus, I want to make clear that I agree with my colleagues that the state of the law is a mess, and this opinion is not so great. Greg does a great job of analyzing the problems. Instead, I want to take a step back. Specifically, this was a ridiculously easy case. Greg notes: "What distresses me is not so much the ruling, but how much the opinion exemplifies the general trend in trademark doctrine of ignoring the interests of consumers in favor of the proprietary claims of powerful franchises."

I would go a step further and say that despite the troubling general trend this is not a case BB Dakota was ever going to win, any time, in front of any judge. This was not a case to make policy, and at no time, whether before or after I entered academia, would I have ever counseled a client to pursue this strategy.

Don't get me wrong - there has to be a way for BB Dakota to communicate that this was the jacket worn. The added language for example. A poster next to the display with a screen cap from the actual movie. Something, anything, other than renaming the jacket the "Twilight" jacket and putting a promotional poster image on a hangtag.

Note that I say this is an easy case holistically, without reference to specific doctrine (which I will do in a bit). Instead, I say it as a rule of thumb - when you name your product after a well known movie that it appears in, and put the movie poster on a hangtag, you lose. In the same way that you lose if you try to argue that peer to peer music sharing is fair use. You just can't win, and you never could.

Now, to the part where some of my colleagues might disagree with me. BB Dakota should have lost in this case, as a matter of doctrine and as a matter of policy.

Start with copyright. Yes, the image is everywhere, thanks to fan sites. That's a fair use and I would say should be protected. Greg takes issue with the court giving dispositive weight to the fact that the whole image was copied. I agree that this has the potential to create bad precedent, but it's not the first time a court spent little time on a weak fair use argument. Greg worries that cases like this make fair use unpredictable, but (if I haven't said it already) this one was a predictable loss. 

Let's look at the fair use factors:

1. Nature of the use: non-transformative, slavish copying, and commercial. 

2. Nature of the copyrighted work: creative photography that is much more than point and shoot, though admittedly it does have the product at issue in it

3. Amount copied: all of it

4. Effect on the market: It might look like there isn't any, but consider that the plaintiff Summit might have wanted to license the image for use on sanctioned products (vampire teeth or what have you). If everyone could use this image on products (and this isn't trademark, so we aren't limited to non-confusing uses), then the value of that opportunity is reduced.

And the policy: The image was used on the product, in ads, in marketing, etc. There are few (and I can't think of any) cases where this kind of use is considered fair. It is just not the type of activity that fair use is intended to protect. I can see an argument for a screen capture, or some other image, but the promotional poster? No way.

On to trademark. The first mistake - and I think the one that proves the maxim that easy cases make bad law - was for the court to entertain the nominative use defense at all. This was not a nominative use. A nominative use might have been just the red inset "BB Dakota as seen in 'Twilight'" That's information. That's the name of the movie. 

Instead of nominative use, this was a trademark use. They called it "The Twilight Jacket." They used the promotional poster as a hangtag not only in advertising but on every jacket sold. That's not naming Twilight, that's branding the jacket. When viewed this way, you get right to the likelihood of confusion factors. And under those factors there is certainly confusion - it's the promotional poster! You don't get much closer to appearing to be sponsored by the makers of Twilight than that. My "actual confusion" survey of one (my wife, who has seen the movie) pretty clearly thought that the moviemakers had sponsored or otherwise were associated with the jacket makers. I won't go through the confusion factors here, but I believe they clearly favor a finding of likely confusion as to source, sponsorship, or association.

The irony here is that the nominative use defense is suppose to help the defense, but the law in the Ninth Circuit is such a disaster that when you assert it wrongly (as BB Dakota did here) you are almost sure to lose. But sometimes that's the right outcome. In an effort to give BB Dakota the benefit of the doubt, it considered this ill-applied defense to make this easy case more difficult than it had to be, making the law worse.

And a point about policy. While I agree with Greg about the trend in general, the traditional consumer confusion policies might apply here. I suspect that a) the costume crew used multiple jackets, b) that the jacket survived apparent harms it might not have because those harms were actually special effects, and c) there were repairs made to the jackets over time in shooting. In other words, clothes in movies are indestructible. (Jack Bauer in 24, anyone?). Perhaps someone buying the "Twilight" jacket might have expected that indestructibility. Or more simply, what if manufacturing efficiencies meant that the coloring was off a bit - the Twilight folks, if sponsoring, might want some quality control over that. Or what if the price is higher at retail and secondary markets than it might have been for a jacket that did not have the imprimatur of sponsorship? In all of those cases, consumers suffer, and that is the policy of trademark law.

And that's why I see this as an easy case - and why the court should have treated it as such with a straightforward slapdown rather than a convoluted application of inapt rules.

Posted by Michael Risch on December 2, 2011 at 07:06 PM in Intellectual Property | Permalink | Comments (1) | TrackBack

Supremes to Sort Out Harmless Error (Maybe), But Does It Matter?

I'm glad to be back for another stint on Prawfs.  Thanks to Dan for inviting me.  At the risk of not being invited back, I'll start with a post on harmless error -- a terminally unsexy topic that nonetheless is much on my mind as I prepare to teach Post-Conviction Remedies next semester.

Earlier this week, the Supreme Court agreed to hear a case that offers an opportunity to clarify a longstanding ambiguity in harmless error law.  As many scholars have observed, the Court has at different times articulated the harmless error standard in two different ways, without ever clearly indicating whether the two formulations are substantively different and, if so, which one is preferred.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.  On the one hand, there is the standard from United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

Admittedly, it requires some effort to see a difference between the standards, but I think the formulations do indeed suggest two distinct ways of performing the analysis, at least at a conceptual level.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.  That's because the appellate court will rarely have any reliable basis for determining what really mattered to a particular jury.  Juries normally render bare-bones general verdicts — a simple declaration of guilty or not guilty — and formal examination of jurors about what happened during deliberations is almost always forbidden.  In light of these limitations, an appellate panel really has no alternative in most cases but to try to imagine what it would have done if it had been the jury.  This no doubt helps to explain why the courts have not felt it necessary to resolve the longstanding ambiguity.

It is possible, though, that there are some cases in which the formulation really does matter, and Vasquez just may be such a case.  Here’s what happened.  Vasquez drove to a Denny’s parking lot to meet Perez, who was attempting to complete a purchase of a kilogram of cocaine.  It turned out, however, that the seller was working with the police, and Vasquez soon found the car surrounded by cops.  Rather than surrendering, Vasquez attempted a getaway, crashing into a couple of police cars in the process.  After a chase by car and on foot, Perez and Vasquez were apprehended and prosecuted on drug charges in federal court.  Perez pled guilty, but Vasquez went to trial.

At trial, Vasquez’s defense was that he was simply in the wrong place at the wrong time.  Perez’s wife was his key witness. She testified that she had asked Vasquez to pick up Perez at the parking lot, apparently indicating that he did it as a favor for her, not as a knowing participant in a drug deal.

In order to undermine the testimony of Perez’s wife, the government played for the jury recordings of phone conversations between Perez and his wife while Perez was in jail following his arrest.  Through those recordings, the jury learned that Vasquez’s lawyer had advised his client that he would likely lose at trial and should plead guilty.  When Vasquez’s lawyer then stood up to deliver his closing argument a little while later, one imagines that he had very little credibility left with the jury.

On appeal to the Seventh Circuit, all three members of the panel agreed that the trial judge had committed an error in admitting the sensitive portions of the recordings, at least without an appropriate limiting instruction for the jury.  However, the majority concluded that the error was harmless, reasoning that the evidence of Vasquez’s guilt was “overwhelming.”  The majority particularly emphasized the importance of Vasquez’s getaway attempt as evidence of guilt.  The majority also cited some other items of evidence, including testimony indicating that Vasquez knew the car contained $23,000 in cash.

For the majority, the harmless error determination was quick and easy, requiring only a brief recounting of the evidence against Vasquez, with no attention to the question of what the jury actually thought about the evidence.  The dissenting judge provided much more extensive analysis, carefully parsing the trial record to determine what impact the evidence actually had on the jury.  Here’s a taste:

The [Chapman] standard is not easy to satisfy, and four factors here lead me to conclude this error was not harmless: the modest strength of the rest of the government’s case against Vasquez, the prejudicial character of the evidence that was admitted erroneously, the fact that the jury acquitted Vasquez of one of two charges, and the importance that the government itself attributed to its flawed rebuttal evidence.

. . .

Without the flight evidence and the MCC tapes erroneously admitted for their truth, then, the government had evidence that was legally sufficient to convict Vasquez, but the case was far from a slam-dunk. The dramatic evidence of the dangerous flight strengthened the case substantially and makes it easier for my colleagues to describe the district court’s error as harmless. But the flight evidence cannot carry that much weight, in my view. The Supreme Court and we have repeatedly cautioned against too much reliance on flight as evidence of guilt for the crime charged because there are so many links in the chain of inferences . . . .

We must also consider the prejudicial effect of the improper evidence. The evidence from the MCC tapes, admitted here erroneously for their truth and with no true probative value, was just about as prejudicial as one could expect to encounter in a trial. The jury heard that Vasquez’s lawyer — the man who would soon make a closing argument asking them to find reasonable doubt in the government’s case — had told Vasquez that he should plead guilty and had said that if he and his codefendants went to trial, “everyone is going to lose.” A juror who heard and believed that evidence would surely discount anything she heard from that lawyer. In terms of prejudice, these harpoons are comparable to evidence of a defendant’s own withdrawn guilty plea. Such a plea is virtually never admissible because of its powerful force.

We also have strong indications from both the jury and the government itself that the erroneous admission of the MCC tapes was not harmless. Even with the prejudicial and erroneous evidence, the jury still found Vasquez not guilty on the charge of attempted possession with intent to distribute. That verdict is hard to reconcile with the jury’s conviction on the conspiracy charge, and the split verdict certainly has the whiff of a compromise verdict in a close case. Such verdicts are permissible in criminal cases, of course, but when determining whether, beyond a reasonable doubt, a conceded error was harmless, we should not ignore that strong signal that the jury viewed the case as a close one, even with the evidence of flight and the improper rebuttal evidence.

The government also showed how important it believed the improper rebuttal evidence was by its extraordinary efforts to obtain its admission. The trial seemed nearly over when the government filed its emergency Sunday motion for a continuance to enable it to prepare this rebuttal case. The events of the next several days, including especially the government’s emphasis on the improper evidence in its closing argument, showed that the government believed that Mrs. Perez had seriously weakened its case and that the improper rebuttal evidence strengthened its case considerably.

In light of the considerations highlighted by the dissenting judge, I think Vasquez does have a plausible argument that the choice of which harmless error test to use was critical in his case.

On the other hand, it’s not entirely clear to me that Vasquez must necessarily lose under the “overwhelming evidence” test.  It really comes down to how much weight you want to give the flight evidence: does this really demonstrate in an “overwhelming” way that Vasquez was conspiring to deal drugs?  I’m skeptical, although I’d really like to know more about the circumstances of the flight.  Minority men (based on his surname, I’m assuming that Vasquez is Hispanic) have plenty of reason to fear encounters with the police even if they are not doing anything illegal.  Although trying to bull his way through a cordon of police cars was stupid and dangerous on many levels, Vasquez seems to have made a snap decision in a high-stress setting that may not really say much at all about what he was thinking when he drove to the parking lot.

So, the Court may be able to dodge sorting out the harmless error standard yet again.

If it does resolve the ambiguity, which way will it go?  Given the restrictions on finding out what a jury was actually thinking, I’m dubious that the sort of approach exemplified by the dissenting judge in Vasquez can really work on its own terms.  Applying the test will almost always seem a highly speculative exercise.  And it may be one that actually works against defendants in some cases.  For instance, if a jury convicts on all counts with only a very short period of deliberation, that would seem rather compelling evidence that the jury did not find the case at all close and would help to support a finding of harmlessness.  (This would be the flipside of the compromise verdict in Vasquez.)

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.  To be sure, though, as Vasquez points out, it is not easy to reconcile this approach with the Sixth Amendment guarantee of a jury trial.

Cross posted at Life Sentences.

Posted by Michael O'Hear on December 2, 2011 at 05:49 PM in Criminal Law | Permalink | Comments (2) | TrackBack

UPDATED: Jurisdiction and Venue Clarification Act

Update: Here is the enrolled bill that was sent to the President.

One More Update: President Obama signed the bill into law on Wednesday.


After the jump is a post from Arthur Hellman at Pittsburgh, discussion the Jurisdiction and Venue Clarification Act, which just passed Congress and is on its way to the President. The law makes significant changes in a number of confusing areas of jurisdiction and venue, including diversity cases involving resident aliens, the 30-day removal clock in cases involving multiple defendants, and all of venue.

My civ pro class is going to change once again. But, as I said in a comment on the earlier post, for once I am glad civ pro is a spring course here.

Shortly after 7:30 p.m. yesterday (Nov. 30), the Senate gave final passage to H.R. 394, the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (JVCA). The bill, which President Obama is expected to sign, embodies the most far-reaching package of revisions to the Judicial Code since the Judicial Improvements Act of 1990. The amendments deal primarily with removal and venue. Here are some highlights:
-- The Act revises the notoriously troublesome “separate and independent” claim provision of § 1441(c), dealing with the removal of civil actions that include both federal and unrelated state claims.  To protect the defendant’s right to remove the federal claims – and to avoid constitutional problems that some courts have perceived – the new provision requires severance and remand of claims not within the original or supplemental jurisdiction of the district court.
-- The Act codifies the judicially created “rule of unanimity” for removal in cases involving multiple defendants; it then gives each defendant 30 days in which to initiate removal, thus resolving a longstanding conflict in the lower courts over the deadline for removal when different defendants are served at different times.
-- It resolves several issues relating to the determination of the amount in controversy when the defendant removes a civil action based on diversity.
-- It adopts a carefully crafted “bad faith” exception to the statutory provision prohibiting removal of a diversity case more than one year after filing.
-- It completely rewrites Chapter 87 on venue, finally abolishing the hairsplitting distinction between backup venue in diversity and federal-question cases and also doing away with § 1392’s separate provision dealing with “local” as opposed to “transitory” actions.  The JVCA further abrogates the Supreme Court decision in Hoffman v. Blaski, 363 U.S. 335 (1960), by authorizing transfer of venue to a district where the action could not have been brought initially, as long as all parties consent.
-- In the single provision affecting original jurisdiction, the Act narrows the resident-alien proviso now located at the end of § 1332(a). The purpose is to avoid the interpretative and even constitutional problems generated by the current language, which was added by a 1988 amendment to the Judicial Code.
The Act’s provisions will apply to newly filed actions starting 30 days after enactment.
The JVCA has a long and somewhat convoluted history. Fortunately, I need not recount that history here, because it is nicely summarized on pp. 2-3 of the House Judiciary Committee Report (linked below).
With unusual candor, the Report acknowledges that the purpose of the vetting process in the latter stages of the bill’s evolution was “to identify and delete those provisions that were considered controversial by prominent legal experts and advocacy groups.” I particularly regret the deletion of two provisions that would have allowed a plaintiff to avoid removal based on diversity by filing a “declaration” (i.e. stipulation) reducing the amount in controversy below the minimum specified in § 1332(a). One of the provisions would have applied in state courts to forestall removal; the other would have operated in federal courts to encourage remand. The latter would have abrogated decisions like Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868 (6th Cir. 2000). Perhaps these provisions will resurface in future jurisdictional legislation.
Final passage of H.R. 394 was delayed by the need to resolve a conflict with the “Holmes Group fix” enacted as part of the Leahy-Smith America Invents Act (AIA) that President Obama signed in September. The AIA added a new section 1454 to Chapter 89 authorizing removal of state-court actions involving patent and copyright claims. H.R. 394 also added a new section 1454, this one specifying the procedure for removing criminal cases. (The contents of the new section are currently included in section 1446.) A Senate amendment to H.R. 394 changed the number of the criminal removal section to 1455.
The JVCA also intersects with another piece of jurisdictional legislation passed by Congress this fall. That is H.R. 368, the Removal Clarification Act of 2011, which was signed into law on Nov. 9 and became Pub. L. No. 112-51. The Act’s title is somewhat misleading; it deals only with removal of actions against federal officers. A final amendment to H.R. 394 corrected a cross-reference in a new subsection of section 1446 added by Pub. L. 112-51.
I wish to thank Professor Tom Rowe for help in preparing this summary of this extremely important legislation. Tom (and, of course, others) may have more to say about the changes in jurisdiction and venue law that will take effect just as we’ll be starting to teach our second-semester courses in Federal Courts and Civil Procedure.
 House Report on H.R. 394 can be found here.

Posted by Howard Wasserman on December 2, 2011 at 09:46 AM | Permalink | Comments (7) | TrackBack

Thursday, December 01, 2011

Tenure Review Standards and Educational Reform

Greetings prawfs, it’s nice to be back.

 As a junior, untenured guy who has recently made a lateral move, I have become interested in the nature of the tenure/retention process at different schools.  And as I follow (somewhat anxiously) David Segal’s and others’ sustained attacks on contemporary legal education, I have also begun to wonder about the potential intersections of tenure reform and pedagogical reform.   I don’t mean to rehash or reopen the debate here about whether the institution of tenure should continue to exist in law schools, rather I am wondering about whether the standards for tenure might shift as schools respond to criticism of the “overtheoretical” legal academy.

 I consider myself very lucky to be at a school that places a high value on research and writing of all stripes—theoretical, doctrinal, empirical, practical, etc—and which provides ample time and support to junior folks like myself.   The prospect of a standard three-course load and a semester of research leave every three years was very attractive to me as I made my decision to move.  With freedom comes responsibility, however, and I am preparing myself for a pretty rigorous tenure review process that will focus both on the originality/quality of the work I have produced AND on that work’s reception among the established academic intelligentsia in my field.  To that end, I do feel a certain pressure to engage in the kinds of theoretical (what critics seem to like to label “useless”) scholarship that is the status quo.

 I should first say that I like the current model.  Call me traditionalist, self-indulgent, overeducated, or whatever, but I truly enjoy the kinds of theoretical work I get to do, and I think it pays off well in my classroom teaching as well.  I think that the much-ballyhooed dichotomies between theory/practice, scholarship/teaching are generally false.  Theory informs practice, scholarship informs teaching and vice versa.  BUT having said all that, I do wonder if the educational reform movement—which seems, to me at least, focused on outcomes and results over process (“no law student left behind”)—might result in changes to the general character of tenure review standards. 

I realize that most (all?) schools consider “teaching” as part of tenure review.  But my impression is that this is kind of a fuzzy and probably less weighty part of the calculus.   But, if we do become more focused on outcomes—on students’ ability to pass the bar, get a job, and fold seamlessly into a practical workplace—might we also become more focused on empirical measure of faculty “outcomes” as well?   Might we start looking at things like bar performance among our student re the subjects we teach?  The data are certainly available to determine my students relative success on the Con Law portions of the MBE.  Do we seek feedback from hiring firms about which students were well or poorly prepared to draft motions or keep track of billable hours, and then track those stats back to their legal writing/lawyering profs?

 Personally, I shudder to think about these kinds of changes.  To my mind they could soon leave us asking—to paraphrase Tony Kronman—when our law schools stopped teaching the meaning of law.  But maybe that’s because I’m insecure about the practical value of my teaching.  Maybe tenure review changes are an appropriate and efficient way to incentivize needed reforms in legal education; maybe these are ideas whose time has come.  Thoughts?


Posted by Ian Bartrum on December 1, 2011 at 04:43 PM | Permalink | Comments (23) | TrackBack

Cavazos v Smith I

Cavazos is a habeas petition involving a grandmother convicted of killing her grandson by violently shaking him. The case implicates two important issues involving courtroom science. In this post, I’ll look at what it suggests about the role of dueling experts. In my next post, I’ll look at how the dissent—which dives head-first into the medical literature on shaken baby syndrome—uses scientific evidence.

The question at the heart of Cavazos is whether a 7-week old boy, Etzel Glass, died one night from SIDS or due to shaken baby syndrome (SBS) at the hands of his grandmother, Shirley Smith. At trial, the jurors heard from dueling pathologists about the likely cause of death, and they ultimately accepted the story of the prosecution’s doctors and convicted Smith.

The evidence in the case was ambiguous. Many (though not all) of the “tell-tale” signs of SBS were missing, and the state’s experts concluded that death resulted from an undetected—and perhaps undetectable—shearing of the brainstem. Smith’s pathologists noted that Etzel was a low birth-weight child born with jaundice and a heart murmur, all of which are risk factors for SIDS. A classic dueling-experts situation.

While all the state appellate courts and the federal district court upheld Smith’s conviction, the Ninth Circuit tossed it on the grounds that the conviction was based on an unreasonable determination of the facts, since there was “no evidence to permit an expert conclusion one way or the other.” Though a rather narrow claim, I think it actually points to a potentially far more radical take on dueling experts that I want to consider* here.

The California Court of Appeal, in upholding the conviction, and the Ninth Circuit, in reversing it, lay out potentially different conceptions of the jury’s role in the presence of dueling experts. The CCA adopts the conventional view on jury fact-finding in complex scientific cases: “The expert opinion evidence … was conflicting. It was for the jury to resolve the conflicts. The evidence was substantial and sufficient to support the jury’s conclusions….” The Ninth Circuit, on the other hand, argues that the scientific uncertainty here bars a beyond-a-reasonable-doubt conclusion about guilt as a matter of law.

In a narrow sense, the Ninth Circuit’s claim, if true,** is perhaps not all that daring. It seems to be arguing that the state’s evidence, in isolation, is insufficient. But the court also points to other exculpating empirical evidence (or at least empirical claims***) about Etzel’s social environment to bolster its insufficiency claim. So it isn’t entirely clear that the panel is reversing because the state provided no evidence, but because it provided insufficient evidence given the evidence brought to bear by the defense.

One reading of this would simply be “judicial activism” of a sort: the Ninth Circuit replaced the jury’s weighing of expert testimony with its own. And perhaps that is what actually happened; and if so, the Supreme Court’s majority is surely right that that is precluded by AEDPA and Jackson v Virginia.

But there is a different, broader way to read the Circuit court opinion that in some ways avoids the AEDPA problem (but introduces a host of other problems): what if we have a blanket rule that when both the state and the defense introduce plausible, reliable and contradictory scientific evidence  about an essential element of a crime, the state automatically loses? (I will note here that accurately making the prima facie assessment of reliability and credibility is a tough issue I’ll return to again and again this year but put aside for now.)

Think of it this way: when both sides introduce credible expert testimony on an element of a crime, perhaps there is no uncertain fact for a jury to “find.” What we have is a “known unknown”: we know that we do not know the answer. And not knowing seems to be reasonable doubt; or, phrased more carefully, in the presence of a “known unknown” it is unreasonable to say that you know one way or the other. And at least in criminal cases, that should tip the balance automatically in favor of the defense.

Of course, juries are already free to find a “known unknown” if they wish. I want to push the issue further: as a matter of law, should we compel such a non-finding? Even before getting to questions of jury competence, is there some sort of particularly important meta-evidence we get from credible dueling experts? Does the very inability to agree suggest, at least in criminal cases, that as a matter of law there is no fact for the jury to find? We know that we don’t know, and it is unreasonable to argue that you do know in such a setting.

Even if you’re not convinced by this argument—and I’m still trying to decide if I am—the jurors’ lack of epistemic competence may still play a role: while perhaps in theory there is some fact to be “found” here, the people we are asking to find it are effectively blind. Jury pools are not well-educated: at best about half are college graduates (and this from a study set in Connecticut, the sixth-best educated state in the country), and few college graduates have real math/science training. So if dueling experts do not theoretically demand a non-finding, does the clear inability of the jury pool to make the necessary finding along rational lines do so pragmatically?

This is a radical claim, I admit, and I’m generally wary of let’s-start-from-scratch proposals; if nothing else, Tal Golan’s history of the centuries-long failure to meaningfully reform courtroom science proves that even more-modest proposal generally seem doomed. On the other hand, Mirjan Damaška claims that the current “scientization” of the law is the biggest challenge it’s faced since proof-by-ordeal was replaced by proof-by-jury, so maybe this is the time to Think Big.

That said, it may not be that the solution requires a radical reformation of the law, just substantially greater honesty. Smith was convicted under Cal. Penal Code § 273ab, which punishes:

any person, having the care … of a child …, who assaults that child … resulting in the child’s death ….

Under my suggestion here, Smith could not be convicted since we cannot prove that she assaulted the child. So what if we rewrote the statute to punish:

any person, having the care … of a child …, who plausibly assaults that child … resulting in the child’s death ….

In effect, this is the statute under which Smith was convicted, given the ambiguous evidence and the limited epistemological competence of the jury; maybe we even need to replace “plausibly” with “potentially.” Under this statute, the state’s experts can advance a causal story and the defense can try to show that it is preposterous. Perhaps jurors are far more competent at deciding whether the state is telling a viable story more than deciding whose story is more convincing.

Forcing us to rewrite statutes along these lines lays bare the implications of the legal fiction of “jury factfinding” in situations of scientific complexity and "known unknowns." They are not finding that x caused y; at best they are finding that x perhaps caused y, or that it is not completely impossible that x caused y, or something along those lines. The revised statute may be unpopular—how can we convict someone for possibly causing a death?—but again, stripping away the legal fiction of “jury factfinding” here, that is what we are doing.

(It is worth point out, briefly, that administrative law is honest in just this way: agencies are allowed to issue regulations when the causal relationship is unknown.)

Eliminating the fiction surely must advance justice. Perhaps we want a lesser “plausible” offense, so we punish people less in the presence of scientific complexity. Perhaps we don’t want the “plausible” statute at all, and so eliminating the legal fiction makes us appreciate the extent to which we have been wrongly punishing people. These are all normative questions, but it should be clear now that the legal fiction that concerns me has saved us from having to ask them. And they are not easy questions to ask.

And, it is worth pointing out, these questions are actually easier to answer in the criminal context, where we are more comfortable stacking the deck against one party. How to handle known unknowns is even tougher in the tort context, which is an issue I will also consider in future posts.


* I almost used “unpack” rather than “consider,” but I am really working hard to purge law-professor-slang from my vocabulary.

** As the Supreme Court points out, the Ninth Circuit’s statement of the facts is not entirely correct. While the state’s experts admit that they could not find evidence of the brainstem shear, and that in fact such evidence may have been impossible to find, the expert also said he could rule out SIDS due to other symptoms. Thus the state’s expert was not just guessing, but instead was saying “there are two possibilities, I believe I can eliminate one, and the evidence we have is consistent with the second.”

*** The magistrate judge states that grandmothers rarely are charged with SBS, that there was no evidence of social stress that could have caused the defendant to snap, etc. It is unclear if the magistrate cited (or at least encountered) studies to validate these claims, although they are in general facially plausible.

It is unfortunate that Donald Rumsfeld has been mocked for using this term, and it is unfortunate that the term now often elicits a snide laugh because of its association with Rumsfeld. The concept is a profoundly important one, and whatever your impression of Rumsfeld he used it completely correctly in his speech.


Posted by John Pfaff on December 1, 2011 at 01:19 PM | Permalink | Comments (0) | TrackBack

Fetal Pain: The Next Front in the Abortion Wars

Last April, Nebraska launched a national controversy when it prohibited abortion after twenty weeks of “post-fertilization” gestation (or 22 weeks using the more traditional LMP criteria for dating pregnancies). Since then, at least 6 other states have followed. These laws differ from previous attempts to prohibit abortion because they rely on the scientific claim that a fetus is capable of feeling pain, and the legal claim that states may prohibit abortions to prevent that infliction of pain.  These laws present a major threat to abortion rights in America as we know them.

Earlier this year, Sadath Sayeed and I published the first comprehensive legal and bioethical analysis of these laws in the Journal of Law, Medicine and Ethics. Here in more op-ed form is what we concluded (the actual paper is written in a more academic tone):

Since Roe v. Wade, and certainly since Planned Parenthood v. Casey the Supreme Court has consistently held that the Constitution only permits states to prohibit abortion in order to preserve fetal life after the fetus is capable of survival outside the womb, the so-called viability standard. Most medical professionals agree that viability now begins at approximately twenty-three to twenty-four weeks into pregnancy. Nebraska’s law represents an attempt to prohibit abortion before this viability threshold. 

These so-called fetal pain bills do not directly challenge the Supreme Court’s judgment that states can prohibit abortion outright to preserve fetal life only after viability. Instead, these bills assert a new theory for criminalizing abortion: The Nebraska bill, for example, states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” Nebraska claims that preventing this pain is a compelling state interest that justifies prohibiting abortion.  

Hence, the loophole: while the Supreme Court has identified preserving fetal life as a compelling interest after viability, it has never said it is the only compelling interest that justifies restricting abortion.  Thus, these statutes might be thought of asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, these states may argue that while preventing pain is not compelling on its own, when combined with the state’s growing (but not yet compelling) interest in preserving fetal life before viability the two interests together become compelling.

Whichever variant is adopted, the argument is flawed.

First, medical and psychological research show that pain is both a physical response and an experiential one. The neural structures that a fetus would need to “experience” pain do not develop until well beyond the point at which these bills prohibit abortion. It is this experience of pain—not the observable neuroendocrine, metabolic, and reflexive responses to stimuli to which these bills point —that matters in terms of the state’s interest.  Thus, these bills are based on a false construct. 

Second, even if fetal pain existed, the alleged experience could be prevented without outlawing abortion. Nebraska’s law notes that physicians often administer anesthesia to fetuses as proof that fetuses are pain-capable. The real motive for the use of anesthesia is muscle relaxation or prevention of neurodevelopmental problems later on and not, medically speaking, related to controlling pain. But if these fetuses were capable of feeling pain, administering anesthesia would likely prevent any sensation of pain, just as it does in children and adults. Thus, there is no legal reason to prohibit abortion at twenty weeks: We can achieve the same effect of preventing fetal pain by simply requiring administration of anesthesia to the fetus—and without burdening a woman’s right to abortion.

Even if these bills could overcome both of those objections, these states still have not shown why their interest in avoiding (the allegedly real and unavoidable) experience of fetal pain should outweigh a woman’s existing right to an abortion. While fetal pain might be relevant to the calculus (perhaps changing what abortion procedures are performed), it is not clear why it should be dispositive on the question of whether women have a right to abortion. For those who believe that the abortion right stems from a woman’s right to avoid unwanted invasions of bodily integrity, in particular, it is not clear why that right should give weigh to the interest in preventing fetal pain. For example, on Judith Jarvis' Thompson's famous (and still controversial) thought experiment of detaching oneself from being a human dialysis machine to a famous violinist (when one did not voluntarily undertake to do so), many have implicitly accepted this will be painful for the violinist. If that is right, it unclear that adding the additional fact of fetal pain changes the way in which the conflicting rights claims behind abortion should be resolved.

While they are scientifically and legally ill-founded, these bills should nonetheless be of significant concern to defenders of abortion rights.  Because they invite courts to further restrict abortion without overruling existing precedent, it is entirely possible that they will garner five votes on the current Supreme Court and thus change the face of abortion law as we know it.

This may be why none of the major abortion litigation groups (ACLU, Planned Parenthood) have challenged these laws head-on yet, for fear they will invite unfavorable precedent.

Posted by Glenn Cohen on December 1, 2011 at 08:59 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (3) | TrackBack