PrawfsBlawg

First Amendment Access to "Horse Gathers"?

In Leigh v. Salazar, decided last week, a Ninth Circuit panel reversed and remanded for reconsideration a trial court's denial of a preliminary injunction to a photojournalist seeking unrestricted access to a "horse gather" of wild horses by the Bureau of Land Management. Roundups of wild horses by the BLM are statutorily authorized when necessary to remedy overpopulation. During one of these roundups, the BLM allowed daily public viewings, but restricted the public and a photojournalist for Horseback Magazine to "designated viewing areas" and required them to "sit down and remain quiet during parts of the gather." The journalist challenged the access restrictions. The Ninth Circuit held that the access claims were not moot because the restrictions "could apply to future horse gathers . . . and to [the journalist's] request for unrestricted access to horses in holding facilities" after the gather. Notably, the court interpreted the Supreme Court's courtroom access cases, particularly Press-Enterprise Co. v. Superior Court (Press-Enterprise II), as setting the framework for analyzing whether the press and public had a First Amendment qualified right of access to the horse gathers. This is notable because the court might justifiably have applied the far less generous access precedent of Hourchins v. KQED, which dealt with access to prisons and indicated that the First Amendment does not "mandate[ ] a right of access to government information or sources of information within the government's control." (See, e.g., Flynt v. Rumsfeld, in which the D.C. Circuit refused to apply the courtroom access precedent "outside the context of criminal proceedings").

That said, application of the Press-Enterprise II framework does not guarantee the press and public will receive unrestricted access to the horse gathers or any other government activities. As described by the Ninth Circuit, the Press-Enterprise II framework requires courts to examine whether there is a historical tradition of public access to the particular government activity at issue and whether "public access plays a positive role in the functioning" of the government activity. If these two tests are met, the government may still "overcome" the right of access "by demonstrating an overriding interest" and establishing that its restrictions "are narrowly tailored to serve those interests." Even though the Ninth Circuit's holding does not grant access, it at least evinces a willingness to examine the question closely and perhaps tip the balance in favor of transparency. [The Reporters Committee for Freedom of the Press and the National Press Photographers Association wrote amicus briefs in the case.]

Adventures in article placement and timeliness

At long last, my (hopefully definitive) take on the jurisdictionality of the ministerial exemption has been published in Penn Law Review's PENNumbra. As I said, I hope it will convince doubters that this is a merits doctrine, grounded in First Amendment limits on Congress' legislative power, that has nothing to do with the courts jurisdiction to hear and resolve an individual case. I am especially interested in hearing from members of the law-and-religion community, who have proven much harder to convince than the fed courts folks.

But I want to talk about a strategic dilemma with the piece, that brings up issues of timeliness as it affects article placement. Nothing new there, of course, but the new world of on-line law review supplements changes things, where the turnaround time can be a matter of weeks or just a few months. In other words, while timeliness always has been part of the placement process, it often was comparing nine months to six months for publication; now it's comparing 10 weeks to 4 weeks.

I finished writing the piece and submitted it to on-line journals in October, just after the oral argument in Hosanna-Tabor. My original hope was to get the piece out before the Court decided, as an argument for why the Court should reach out to resolve jurisdictionality, with the longer-shot hope of getting the piece noticed by the justices. I received an offer from one top-20 journal that has a newer on-line supplement. Then I received the offer from PENNumbra, but with the limit that they would not be able to publish until February. This presented a dilemma.

If I took the non-Penn offer, I would achieve what I originally wanted with the piece, although in a less-high-profile placement. If I took Penn and waited, I faced several obvious risks: 1) the Court could decide the case before publication while analyzing jurisdictionality; 2) the Court could decide the case before publication while ignoring jurisdictionality; or 3) the Court could decide the case very soon after publication. The problem with # 1 is that it essentially would preempt the article; the problem with # 3 is that it would give the piece a ridiculously short shelf life while being too close to the decision date to actually affect the decision. Number 2 would have required some (perhaps substantial) reworking of the article on a fairly short time frame to explain why the Court should have resolved jurisdictionality and to tell lower courts what they should do about this aspect of the ministerial exemption going forward.

I took Penn and waited. And, in the end, the Court threw a fourth option: It resolved the jurisdictionality issue, announcing in a footnote that the exemption is an affirmative defense to the merits of the discrmination claim, but with virtually no analysis or explanation for that result. I thus rewrote the piece as "here is why that conclusion is correct, here is the analysis the Court should have done, and here, lower courts, is what these concepts mean." Frankly, I think the reworked version is significantly better and could have longer staying power. And it has the benefit of coming out about six weeks after the Court's decision, so it may be among the first articles on Hosanna. Plus, the chances of getting noticed by the Court in advance were slim to begin with, so I think I made the right choice.

But what would other people have done faced with the same choice?

Stoner Law-Reform: The Self-Informing Jury

Like I said last time, my inner stoner hates jury duty. Another reason is that he's a bit of a conspiracy theorist; he really bugs out when he thinks people in power are hiding something from him. So you can imagine how he's been reacting to stories about jurors being dismissed for looking things up on Wikipedia and doing other online research. I tried to explain that it was about ensuring a fair trial, but he wasn't interested. The way he sees it, for a system that supposedly thinks the jury is smart about ferreting out the truth, we sure don't trust its judgment very much. And trying to stanch the flood of the Internet is the very definition of a losing battle. So, he asks, why not encourage the jury to do its own research?

It used to be, as Mark Spottswood observed last time, that the jury was self-informing. It was summoned because jurors actually knew what had happened; they came to court to give evidence, not to receive it. That system went by the wayside as jurors stopped having personal knowledge of events, and then the lawyers took over everything and the ideal jury shifted from being merely neutral to being actively ignorant. The modern treatment of the jury is honorific in theory but contemptuous in practice. Rules of evidence are designed to conceal from the jury any information that hasn't been pre-masticated into flavorless cud by the attorneys; trial procedure reacts with horror to jurors who know something useful or have well-formed opinions on anything relevant.

The Internet age, though, gives us a chance for a do-over. Instead of trying ever harder to stuff blank-slate jurors into informational Faraday cages, how about we embrace the idea that jurors know what they're doing? Jurors could ask questions of witnesses and do their own research. If they want to go to the crime scene on their own and take a look around, let them. If they need to consult a dictionary to figure out what the words the judge used in the jury instructions mean, let them. Honestly, if the jurors are surfing Wikipedia, they're probably doing about as well, if not better, than they're getting from at least one side's expert witness. And really, if the jurors are going home at night and surfing Wikipedia, how often do you think we're going to catch them at it?

Crazy, or so crazy it might just work?

“Breaking and Entering” Through Open Doors: Website Scripting Attacks and the Computer Fraud and Abuse Act, Part 1

IMPORTANT: clicking through to the main body of this post may will cause unusual behaviors in your web browser.
Seriously. Please read more below before clicking through to the post!

Thank you Dan, Sarah, and the other Prawfs hosts for giving me the opportunity to guest Blawg! I will be writing about a project I am currently working on with one of my students (Nick Carey), examining common website cybersecurity vulnerabilities in the context of cybercrime law.

The purpose of this post is to examine these (potential) cybersecurity vulnerabilities in PrawfsBlawg. It is the first of what I hope will be a few posts examining how current federal cybercrime law (the Computer Fraud and Abuse Act, or CFAA) applies to certain Internet activities that straddle the line between aggressive business practices and criminal intent.

While certainly possible to analyze these without a public post, making the post public provides more opportunity to showcase these vulnerabilities in a way that brings the debate to life without the "risk" of engaging attackers set on causing damage.

As other scholars have observed, judicial references to the CFAA notably increased over the past decade. Part 2 of this post, which will be forthcoming after we identify which vulnerabilities are (and are not) present in the Blawg, will provide a more substantive treatment of the legal issues involved and a (better) place for discussion.

Chief Justice Roberts and the Supremacy Clause "Near-Miss" in Douglas v. Indep. Living Ctr.

There's a lot to say about the Supreme Court's decision this morning in Douglas v. Independent Living Center of Southern California, a case I've written and blogged about fairly extensively (and in which I submitted an amicus brief on behalf of former HHS officials).  

Going into the oral argument, the case appeared to present the issue of whether the "equal access" provision of federal Medicaid law could be enforced by Medicaid beneficaries via the Supremacy Clause in a suit for injunctive relief against a (arguably preempted) state law, even though the same plaintiffs could not enforce the equal access provision directly or under 42 U.S.C. § 1983. The Ninth Circuit had said yes, and given both the cert. grant and the Obama Administration's amicus brief to the contrary, there was reason to believe that the Court would say no--not just in this specific case, but that, in general, the Supremacy Clause could never be used to obtain injunctive relief on a preemption claim (that a state officer was enforcing a state law in violation of federal law) when the federal statute allegedly being violated was not otherwise privately enforceable.  

Whatever one thinks about the merits of such a result, I think folks would generally agree that this would have been a remarkably important outcome for the future of Federal Courts jurisprudence. And as I explain below the fold, at least four Justices, led by Chief Justice Roberts, would have gone there--all the more reason, methinks, to be relieved that the majority ducked....

Writing for a 5-4 majority (Kennedy + the lefties), Justice Breyer held that intervening developments (to wit, HHS's approval of California's Medicaid plan amendments--which presumably means HHS now believes that the amendments as modified don't violate the equal access provision) fundamentally changes the nature of the question presented. Now, from the majority's perspective, instead of arguing that the California rate-cut violates the equal access provision, the plaintiffs' real claim is that HHS acted arbitrarily and capriciously in concluding that it doesn't... Thus, the Court vacated and remanded for further proceedings.

But what's far more interesting is Chief Justice Roberts' dissent. Notwithstanding his assertion that "The question presented in the certiorari petitions is narrow," the Chief would have held that the Supremacy Clause never provides a general basis for pursuing injunctive relief against a preempted state statute if the federal statute creating the conflict cannot be privately enforced. In his words, 

[I]f Congress does not intend for a statute to supplya cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause itself must provide one. . . . Indeed, to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right ofaction and 42 U. S. C. § 1983 jurisprudence. We have emphasized that “where the text and structure of a statute provide no indication that Congress intends to createnew individual rights, there is no basis for a private suit,whether under § 1983 or under an implied right of action.” This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simplyby invoking a right of action under the Supremacy Clause to the exact same effect.

The problem with the Chief's analysis is that the case law to which he alludes is almost entirely about claims for damages, not injunctive relief. Whatever else one might say about the Court's jurisprudence in that regard, it has not yet incorporated the rules of Alexander v. Sandoval and Gonzaga University v. Doe into claims for injunctive relief under the Supremacy Clause, and for good reason. If one could only obtain an injunction against a state officer for violations of federal statutes that are themselves privately enforceable, that would turn the doctrine of Ex parte Young on its head--converting it from a cause of action into nothing more than the answer to why defendant officers wouldn't have a sovereign immunity defense to a suit directly under the relevant federal statute.

To be fair, the Chief doesn't ignore this point. Instead, he tackles it head-on:

Those cases [under Ex parte Young] . . . present quite different questions involving “the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law.” Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. ___, ___ (2011) (KENNEDY, J., concurring) (slip op., at 1). Nothing of that sort is at issue here; the respondents are not subject to or threatened with any enforcement proceeding like the one in Ex parte Young. They simply seek a private cause of action Congress chose not to provide.

Before today, only Justice Kennedy (among the current Justices) had ever argued that Ex parte Young was so confined--that is, to "the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law." In the very case in which he said it last Term, Justice Scalia (who joined the Chief's dissent today) reiterated for the majority that Ex parte Young only requires a "straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." 

Reasonable people may disagree about whether Ex parte Young should be so limited; the critical point is that, before today, the Court has never so limited it--and so by ducking, the majority avoided a potentially momentous holding on the availability vel non of injunctive relief to enforce federal statutes. Thus, in trying to come up with a pithy summary for today's result, the best I can do (notwithstanding George Carlin's well-taken objection to the term, i.e., "oh look--they nearly missed!") is that, thanks to Justice Kennedy, this was a Supremacy Clause near-miss...

Religious Legal Theory Conference

For those in and around Southern California the next couple of days, I wanted to alert you to a conference on "The Competing Claims of Law and Religion:  Who Should Influence Whom?"  The Conference will be in Malibu Thursday afternoon through Saturday.  The general conference webpage is here, and a full list of the spectacular group of speakers is here.  Among others, leading scholars such as Abdullahi Ahmen An-Nai'Im, Andrew Koppelman, Michael Stokes Paulsen, Ayelet Shachar, Steven Smith, Suzzane Stone, and this blog's own Rick Garnett and Paul Horwitz will be presenting.  Here's hoping to see you in Malibu!

Stanley Fish, "Failing Law Schools", and Institutional Pluralism

Here, in the New York Times.  Fish writes that "Tamanaha’s analysis pretty much tracks [David] Segal’s, but his book is more ambitious in its scope and puts statistical flesh on the bones of Segal’s polemic."  I'd be surprised, given what I've read from Brian, if the book really track's Segal's pieces, which I thought were burdened by the tired "law schools focus too much on theory instead of teaching really useful things, like _____" critique.  But, it seems to me that both Fish and Brian are spot-on in directing heavy criticism at the role played in legal education by the ABA and U.S. News (and on how these entities perform that role). 

This caught my attention:

And the solution? In a word, differentiation. Don’t let the A.B.A. and U.S. News call the tune. Instead, take a good look at the educational landscape, at the market, at the costs, at the demographics and come up with a flexible system that matches law school graduates to needs: “Research oriented schools will remain as they are. Practice-oriented schools will be staffed by experienced lawyers; … research institutions will be staffed by scholars mainly engaged in research; other schools will be staffed by both types.” Different strokes for different folks.

This strikes me as a good and important point, but maybe we can (channeling Paul Horwitz?) push the point further:  Not only the ABA, but also the AALS and the academy generally, should welcome and encourage what John Garvey a few years ago called "institutional pluralism" in legal education.  This would involve, among other things, appreciating the role and purpose of distinctively religious law schools.  A few years ago, Madisonian.net hosted a forum on law schools, and I contributed this post, also on "institutional pluralism":

. . . this might not be the forum for thinking-out-loud about what a “Catholic law school” should be, what precisely should be its distinguishing features, etc.  In my view, the project of building such a law school — an engaged, open, critical, and distinctively Catholic law school — is not an exercise in nostalgia, reaction, or retrieval.  The project is, in my view, a new one.

It’s also, I think, an exciting and worthy one, and I’m inclined to think that it should be regarded as such by the legal academy generally, not just by co-religionists and the like.   It is not just “not a bad thing”, it is a good thing, that there be distinctive law schools.  Our commitments to diversity need not, and should not, lead us to insist on homogenization at the level of institutions.  Quite the contrary — the same commitments that push us to respect and learn from diversity in many academic settings might also push us — and the AALS, and the ABA — to stay our hand from requiring that each institution look and act in precisely the same way.

Garvey fleshes out a number of reasons — reasons that I find persuasive — why we might think that institutional pluralism in the academy is a good thing.   It seems to me that we ought not to resist, but instead should welcome, not only law schools that have focused on serving underserved populations, or law schools with a particular strength in a specific subject-matter area (for example, Lewis & Clark in environmental law), or even law schools with a particular animating point-of-view (Law & Economics at George Mason?), but also law schools that are distinctive in being meaningfully animated by a shared — even if contested — religious tradition.

 

Thinking it Through: A Reaction to Carnegie's "Practice Ready" Proclamation

Since the release of the Carnegie report, many of us here have been discussing our methods of incorporating "practice ready" skills into our classrooms and outcome measurement tools into our evaluation methods. Two authors recently posited that the focus on teaching practical actions may be trumping the more critical skill of thinking to the potential detriment of the legal profession. In their article Performance Isn’t Everything: The Importance of Conceptual Competence in Outcome Assessment of Experiential Learning, Stefan Krieger & Serge Martinez (at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1972414) scrutinize and reject the recommendations for outcomes and assessment in the area of experiential education, arguing that teaching law students to follow expert protocols, procedures, rules and checklists in lawyering practice situations fails to develop the more critical skill of reasoning, in opposition to a body of cognitive science and neuroscience research on the development of professional expertise. The authors argue that merely mimicking legal professionals actions minimizes the reasoning required to be an effective law practitioner.

It seems that most schools (all schools?) have received the Carnegie Report as an edict and scrambled to adjust teaching methods to accommodate the recommendations. Law school compliance may be  primarily due to the ABA intention to adopt many of the recommendations into guidelines (please correct me if I am in error). But have any schools looked deeper into the ideas of Carnegie's non-legal educators' recommendations and questioned the recommendation of a complete overhaul in law teaching methods? How "bad" was legal education B.C. (Before Carnegie), and why is there a dearth of resistance to a full-on bandwagon?

Stoner Law Reform: Trial by DVD

I'm not a fan of the jury system for any reason other than as a check on government power. Even leaving aside the jury's fact-finding competence, it has a baleful influence on trial structure. Jury trial is concentrated trial: all the lawyers, witnesses, and evidence converge on the courtroom for a one-shot high-stakes live battle. Once the trial starts, there's no going back to the reasoned deliberation of motion practice. Judges have to make evidentiary rulings on the fly; lawyers work themselves to exhaustion; jurors put the rest of their lives on hold indefinitely. And the pretrial stage swells to ridiculous proportions (especially discovery), because neither side wants to be caught unprepared for an unpleasant surprise at trial. Jury trial is an adversarial system in which the adversaries both operate under severe handicaps that make it hard for them to present their best arguments.

I asked my inner stoner about the role of the jury. He hates jury duty: he says trials are boring and it's hard to bring weed into the courthouse. I told him that jury duty isn't going away, not until we rewrite Article III and the Fifth, Sixth, and Seventh Amendments and their state equivalents. So he said, If we can't get rid of the jury, can we get rid of the trial? I asked him to explain, and he said he likes watching movies, so put the evidence on a DVD and play that for the jury.

Under the trial-by-DVD system, pretrial motion practice wouldn't just be directed at winnowing down the issues for a trial. It would actually produce the precise set of evidence to be submitted to the jury. All of the evidentiary rulings--every objection as to form and request to strike--would already have been aired and resolved. Then, and only then, would a jury be sworn in. A courtroom deputy would sit with the jury while they watched the DVDs, the judge would give them their instructions, and they'd deliberate as usual. The trial itself would be far more efficient without the sidebars and other frou-frou. Perhaps surprisingly, so would the pretrial. Instead of having to prepare for anything the other side could possibly throw at them, the lawyers would only need to respond to those things the other side actually did throw at them.

And that's just the beginning. Stop thinking of the trial as theater; start thinking of it as a movie. The judge and parties would be able to edit the DVD tightly. If the plaintiff's lawyer realized that a cross-examination hadn't gone anywhere useful, she could just excise it from the testimony she offered. The parties could draw far more freely on documents, depositions, expert reports, demonstrative exhibits, and other sources of evidence to make their cases clearly, rather than needing to filter everything through someone in the witness box droning on endlessly. And the judge could easily issue appropriate rulings as the parties assembled their evidence, granting partial or total directed verdicts that narrowed or eliminated the need for a trial entirely. Think of it as picking up the logistical benefits of inquisitorial trial within a system that remains broadly adversarial.

Some states have experimented with the use of pre-recorded testimony. But, to my knowledge, none have ever used the opportunity of pre-recording to rethink from the start what a "trial" and a "pretrial" actually are. Given that our system treats them jurors as children who are to be seen and not heard, it's not clear what real value there is in having them in the same room as the witnesses at the same time. If we're committed to keeping the jury, why not use their time effectively?

Crazy, or so crazy it might just work?

Offensive Compliance

We ordinarily think of the corporate compliance department as a defensive unit within the corporation. Compliance personnel utilize a variety of investigatory tools and reporting processes to help defend the corporation from internal and external threats.

But compliance can also be used offensively.  Boards and corporate managers can direct investigators to search for "dirt" in order to force governance changes internally, or perhaps stave off external threats such as a takeover by a hostile suitor.  Suddenly, compliance no longer looks so virtuous. (For an earlier discussion of the darker implications of compliance, see my discussion of Hewlett Packard here.)

For an example of offensive compliance, one need only glance at the turmoil brewing within Wynn Resorts, the purveyor of fancy casinos throughout the world. Recently, Wynn's 20% shareholder, Kazuo Okada, sued Wynn in Nevada for the release of records relating to Wynn's $135 million donation to the University of Macau. Wynn's Board, meanwhile, was upset with Okada because his company was building its own casino in the Philippines, thereby competing with Wynn in Asia.  

If your 20% shareholder flexes its competitive muscle and then sues you noisily for making a large donation to a foreign university (thereby triggering an informal SEC investigation), you've got a governance problem. How do you solve it?

If you have a provision in your corporate charter that permits a redemption of shares of any person who the Board finds "unsuitable" (see the paragraph at p. 142 - intended to preserve gaming licenses), the answer is simple: you pay the former director of the FBI to conduct an investigation of your shareholder.  Since the target of your investigation is itself a multinational corporation, your investigator undoubtedly focuses on possible violations of the Foreign Corrupt Practices Act.  When his report turns up evidence that said shareholder made some questionable payments to local officials in the Phillipines (in the form of complimentary accomodations and the like), you go public with the evidence and then invoke the language of your charter provision, which permits the company to redeem the stock of any "unsuitable" person at "fair value."  This removes your governance problem.  It also may permit you to buy your shareholder out at a discount if you can explain that the resulting price is "fair", since your charter warns as much.  Sure, your shareholder will probably sue you, but he'll have to explain away those FCPA allegations too.  If the market believes your investigator, your shares will probably rise.    

Is offensive compliance a positive development?  My intuition tells me "no" although I want to think about the topic more carefully over the coming months.  On the upside, it demonstrates ways in which incentivized boards and shareholders can police each other, thereby deterring violations of law.  Under this narrative, compliance isn't simply a requirement in which the Board reluctantly invests, but a potentially useful tool that the Board eagerly embraces.  

On the downside, offensive compliance can trigger a number of long-term costs for shareholders and society.  Instead of debating corporate policy and solving problems, everyone spends money and time investigating and fighting with each other.  In short, offensive compliance generates and exacerbates internal corporate conflict.  It's difficult to call this a positive outcome, particularly over the long run.  

In any event, as the Wynn scenario demonstrates, offensive compliance yields information, and information can be quite valuable when delivered to the right hands.  To that end, we should not expect it to disappear any time soon.  

Some Confident Predictions About the UT Affirmative Action Case

I'm grateful for Franita's serious early commentary on the Fisher case. I thought I would offer some lighter, but fairly confident, predictions of my own:

1) With all due respect, whichever way it goes, the Court will, somehow, some way, blow it.

2) If Chief Justice Roberts writes the opinion, it will be clear, eloquent, to the point, and avoid most of the difficult issues like the plague.

3) If Justice Thomas writes something, it will be more interesting (whether right or wrong), and closer to an actual description of a number of pertinent social facts, than anything written by the other seven Justices combined. He will be widely condemned. Various CRT-oriented scholars will come along later and make many of the same points. They will not be condemned by other scholars, although it is possible they will be ignored or condescended to.

4) As in CLS, Justice Alito will offer a confident, slightly angry, fully up-to-date vision of the properly functioning university (circa 1975).

5) We will get a full discussion of the history  original public understanding text of the Equal Protection Clause.

6) We may get another, and perhaps slightly richer, discussion of diversity within a given university. We will hear virtually nothing about pluralism or diversity between universities.

7) My forthcoming book First Amendment Institutions, which contains almost everything the Court will need to deal soundly with the case, will be widely cited. (My confidence level on this one is much lower, I admit.)

And . . .

8) Justice Kennedy will be a key vote.  

 

Supreme Court grants cert in UT Affirmative Action Case

The Fifth Circuit’s opinion is here.   One thing that jumps out at me is that Judge Jones’ dissent from the denial of rehearing en banc relies on the majority’s failure to adhere to the “narrow tailoring that Grutter requires.”  My sense of Grutter, however, is that the tailoring wasn’t that exact given Justice O’Connor’s deference to the University of Michigan’s desire to preserve its elite status and yet still loosely factor race into its admission’s process.  I suspect that Justice O’Connor’s decision to cloak this deference in the rubric of strict scrutiny has laid the groundwork for a Brown v. Board of Education/Parents Involved sleight of hand in which the majority will limit the ability of institutions of higher education to use race by requiring that the fit to be exact and the state’s interest in diversity be narrowly defined, and it will do so while still claiming to be in line with Grutter.     

Stoner Law Reform: Fee-Shifting

This week, I'm going to post some stoner law-reform proposals. Sometimes, you need to remove your own common sense to imagine how the world might be different. And what better way to do that than stoner logic?

First up, consider fee-shifting. Critics complain, and rightly so, that the American rule of each side bearing its own costs is bad for plaintiffs with good claims. They may find it too expensive to vindicate their rights. But while we've picked up a variety of fee-shifting statutes here and there, we've stubbornly resisted the English rule, in which the losing party must pay for the winning party's lawyers. Critics complain, and rightly so, that the English rule encourages overspending and can put unbearable pressure on parties facing a well-financed opponent.

I asked my inner stoner, and he said, "What if the loser pays its own fees to the winner?" In essence, this rule means that the loser ends up paying double its attorneys fees: once to its own lawyers, and once to the winner. The English rule tries to make the plaintiff whole. But that's really hard to get right and it creates weird incentives. A stoner would rather just charge the loser what it paid, call it close enough, and order some pizza.

I think he might have a point. Where the parties are equally matched and spending evenly, loser-pays-double rule is ex post equivalent to the English rule. But ex ante, it dials up the incentive to get the lawsuit done cheaply. Where the parties are mismatched, loser-pays-double looks even better. A pro se party up against a behemoth faces no risk of a crushing fee award. Its wealthy opponent knows that every dollar spent on intimidation only increases the little guy's potential payday. Loser-pays-double also answers the criticism that the English rule can result in wholly disproportionate fee awards: a party's potential fee payout is never more again than it has already spent.

Crazy, or so crazy it might just work?

Some sad news

It is my great sorrow to advise our readers that Professor Katherine Darmer of Chapman University School of Law  passed away this Friday.  Professor Darmer attended Princeton and Columbia Law School, practiced as an Assistant United States Attorney in the Southern District of New York and joined Chapman in 2000.  Her scholarship ranged from topics relating to national security and criminal procedure, to discussions of equality and Proposition 8.  She had just recently completed a successful term as chair of the AALS Criminal  Justice Section and was well known in the academy.   The OC Register has collected here a number of touching comments from those who knew, worked with and learned from Professor Darmer. 

Our thoughts and prayers go out to Professor Darmer's family, friends, colleagues and students.   

Rogue Programmers

In early 2010, Google apologized for the way Google Buzz had revealed people's Gmail contacts to the world. Later that year, the company announced that its Street View cars had been recording the data being transmitted over WiFi networks they drove by. And just this week, the Wall Street Journal and privacy researcher Jonathan Mayer revealed that Google had been using cookies in a way that directly contradicted what it had been telling users to do if they didn't want cookies.

Once is an accident, and twice a coincidence, but three times is a sign of a company with a compliance problem. All three of these botches went down the same way. A Google programmer implemented a feature with obvious and serious privacy implications. The programmer's goal in each case was relatively innocuous. But in each case he or she designed the feature in a way that had the predictable effect of handing people's private information in a way that blatantly violated the company's purported privacy principles. Then--and this is the scary part--Google let the feature ship without noticing the privacy time bomb it contained.

When it comes to privacy, this is a company out of control. Google's management is literally not in control of the company. Especially given its past mistakes, Google's legal team know that privacy compliance is critically important: witness the extensive effort lavished on its new forthcoming privacy policy. And yet they have been unable, time and time again, to keep privacy blunders affecting millions of users from getting out the door.

Google was founded and is run as an engineering-driven company, which has given it amazing vitality and energy and the ability to produce world-changing products. But even as the company has become a dominant powerhouse on which hundreds of millions of people depend, it continues to insist that it can run itself as a freewheeling scrum because, er, um, Google is special, Google's values are better than the competition's, and Google employees are smarter than your average bear. All of these may be true, but adult companies have adult responsibilities, and one of them is to train and supervise their employees. Google is stuck in a perpetual adolescence, and it's getting old fast.

The only other firms I can think of with this kind of sustained inability to make their internal controls stick are on Wall Street. (See, e.g.) Google has already had to pay out a $500 million fine for running advertisements for illegal pharmaceutical imports. And the company is already operating under a stringent consent decree with the FTC from the Buzz debacle. If those weren't sufficient to convince Larry Page to put his house in order, it's hard to know what will be. Sooner or later, the company will unleash on the Internet a piece of software written by the programmer equivalent of a Jérôme Kerviel or a Kweku Adoboli and it won't be pretty, for the public or for Google.

More Unforced Errors in the Copyright Act

My belief that termination of transfers is the worst provision in the Copyright Act is apparently not widely shared. Here are some of the other sections that commenters nominated instead:

• Aaron Perzanowski suggested Section 119, a 9000-word monstrosity that creates a statutory license for satellite retransmissions. It's probably the single worst offender in the Act in terms of sheer verbiage. Along similar lines, Bruce Boyden suggested Section 114(d), which deals with webcasting, but weighs in at a mere 7000 words. Both licenses "work" in the sense that they're actually used, but other than that it's hard to have much positive to say about their labyrinthine complexity. Jeffery Harrison went with Section 110(5), which is supposed to let small businesses turn on the radio. Not only does this one pack a long section's ambiguity into a short section's text, it's also gotten the United States slapped down by the World Trade Organization for violating its copyright treaty obligations.
• Paul Gowder objected to statutory damages. I'm not so sure that these are really a disaster area. Congress wanted to bring the hammer down on copyright defendants even in the absence of proof of actual harm, and while it's possible to disagree with that policy judgment, there's also a strong argument that copyright infringement frequently by its nature will result in hard-to-measure damages. If I were going to pick on a copyright remedy, I'd pick attorneys fees--and there, the problem is not bad drafting by Congress but rather loose-cannon lower courts that award fees to prevailing plaintiffs at the drop of a hat.
• "Mike" complained about fair use because it was going away. Here, I simply disagree. Fair use has to be a case-by-case balancing act requiring discretion. Section 107 does, all in all, a pretty good job of giving courts the ability to shape a common law of fair use while also directing their attention to important considerations. And, as Patricia Aufderheide and Peter Jazsi have shown, fair use remains a vibrant and useful doctrine when wielded by defendants who understand how it works.
• C.E. Petit fingered the works-made-for-hire provision in Section 201(b), together with its supporting definitions. This one probably takes home the prize for most mayhem per word. It leaves what ought to be one of the clearest questions in copyright--initial ownership of a work--under a perpetual cloud. And by vesting ownership of some works in someone other than the author, in Petit's words, it "has the additional bonus of being inconsistent with the copyright scheme of every other nation in the Berne Convention."

A weekend question

As part of some ongoing research (hopefully submitted soon) into the impact that scholars have on judicial decisionmaking, I am noticing that a good deal of scholarship tends to be reactive. This will, of course, come as no surprise. For one, we publish in law reviews where we are supposed to react to the law. Likewise, much food for thought comes from reading and reacting to judicial decisions. I am beginning to wonder, though, how often is legal scholarship proactive or constitutive? In other words, how often does it not simply review and participate in the conversation but move the conversation and boldly go where no one has gone before? Does anyone have any nominations for such scholars or articles?

RIP, Gary Carter

Gary Carter passed away the other day. He was 57; the cause was brain cancer. Gary was no law prawf. He was a baseball player: the catcher for the Montreal Expos and then the Mets. He was inducted into the Hall of Fame as an Expo. I grew up in Montreal and in the 70's and 80's and just loved that team. He was "the Kid" while I was a kid. Hanging out in the bleachers of the Olympic Stadium eating cheap hot dogs on a sunny day was a big joy. The Expos never did too well, with only one real chance at the NL title in a strike-torn season. But they had heart and humility; they were a group of people, not performers; and the game was simple, not starry. Gary Carter was a cheerful and earnest guy, full of spirit and private faith. The Expos have long left Montreal. And now one of their pillar players, too, has left. The Montreal press is in mourning. Of course Gary is remembered most for keeping the Mets alive while in the jaws of death in the 1986 World Series. But to me, and many others, he is remembered for playing for fun. Time to pull out that vintage Expos cap. RIP.

A Clearinghouse for Questions, 2011-2012

NB: Bounced to the front.

The 2011-2012 law school hiring market has begun. Time for the while-the-market-is-happening information-gathering posts. 

In this post, you can ask questions about the law teaching market (anonymously if you wish, assuming the questions are not especially offensive or otherwise improper), and prawfs or others can weigh in, also anonymously if they choose. Dan Markel will keep an eye on things and delete misinformation and anything else he finds out of bounds.

In the distinct but related post, candidates or prawfs can report on callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.

So...questions?

Update: The most recent comments are here. 

The Angsting Thread (Law Review Edition, Spring 2012)

Friends, the time has come when Redyip is visible.  You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.

What I Want to Read, but Can't

Most definitely, this.   I sure hope the authors follow through with uploading their paper to SSRN!

Sentencing Guidelines: Discretion or Bias?

Last week I took my 1L students on a field trip to the Federal District Court. The students met with a judge, who briefly discussed an imminent sentencing hearing and how the Federal Sentencing Guidelines limited his ability to give the defendant a longer sentence. We stayed to watch the sentencing hearing and what transpired was the following: Government requested 97 months, where the range for the offense was 97-120 months. Defense counsel agreed to Government's request for 97 months. Defendant made elocution, wherein he noted his very sad personal story and apologized to victims. Judge then acknowledged the parties agreement on the sentence, noted he read the pre-sentencing report, and sentenced the defendant to 120 months. I have limited personal experience with the federal sentencing guidelines. In the case of my own federal appeal as a CJA, the Government and defense counsel requested a mid-range sentence and the judge agreed to and entered the sentence. So my query is this: is it typical for the judge to enter a sentence in excess of the term agreed upon by the parties and to max out the Guidelines? In this case for an additional two years? I was a little surprised, but am curious if this is the norm.

Coasean Positioning System

Ronald Coase's theory of reciprocal causation is alive, well, and interfering with GPS. Yesterday, the FCC pulled the plug on a plan by LightSquared to build a new national wireless network that combines cell towers and satellite coverage. The FCC went along with a report from the NTIA that LightSquared's network would cause many GPS systems to stop working, including the ones used by airplanes and regulated closely by the FAA. Since there's no immediately feasible way to retrofit the millions of GPS devices out in the field. LightSquared had to die so that GPS could live.

LightSquared's "harmful interference" makes this sound like a simple case of electromagnetic trespass. But not so fast. LightSquared has had FCC permission to use the spectrum between 1525 and 1559 megahertz, in the "mobile-satellite spectrum" band. That's not where GPS signals are: they're in the next band up, the "radionavigation satellite service" band, which runs from 1559 to 1610 megahertz. According to LightSquared, its systems would be transmitting only in its assigned bandwidth--so if there's interference, it's because GPS devices are listening to signals in a part of the spectrum not allocated to them. Why, LightSquared plausibly asks, should it have a duty of making its own electromagnetic real estate safe for trespassers?

The underlying problem here is that "spectrum" is an abstraction for talking about radio signals, but real-life uses of the airwaves don't neatly sort themselves out according to its categories. In his 1959 article The Federal Communications Commission, Coase explained:

What does not seem to have been understood is that what is being allocated by the Federal Communications Commission, or, if there were a market, what would be sold, is the right to use a piece of equipment to transmit signals in particular way. Once the question is looked at in this way, it is unnecessary to think in terms of ownership of frequencies of the ether.

Now add to this point Coase's observation about nuisance: that the problem can be solved either by the polluter or the pollutee altering its activities, and so in a sense should be regarded as being caused equally by both of them. So here. "Interference" is a property of both transmitters and receivers; one man's noise is another man's signal. GPS devices could have been designed with different filters from the start, filters that were more aggressive in rejecting signals from the mobile-satellite band. But those filters would have added to the cost of a GPS unit, and worse, they'd have degraded the quality of GPS reception, because they would have thrown out some of the signals from the radionavigation-satellite band. (The only way to build a completely perfect filter is to make it capable of traveling back in time. No kidding!) Since the mobile-satellite band wasn't at the time being used anywhere close to as intensively as LightSquared now proposes to use it, it made good sense to build GPS devices that were sensitive rather than robust.

There are multiple very good articles on property, tort, and regulatory lurking in this story. There's one on the question Coase was concerned with: regulation versus ownership as means of choosing between competing uses (like GPS and wireless broadband). There's another on the difficulty of even defining property rights to transmit, given the failure of the "spectrum" abstraction to draw simple bright lines that avoid conflicting uses. There's one on the power of incumbents to gain "possession" over spectrum not formally assigned to them. There's another on investment costs and regulatory uncertainty: LightSquare has already launched a billion-dollar satellite. And there's one on technical expertise and its role in regulatory policy. Utterly fascinating.

Partisan Gerrymandering is a Good Thing

Or so I argue in my latest draft. Before you call me crazy, read the article. I think I might be able to bring you around to my way of thinking.

Comments are definitely welcome!

What if they held a part-time program and nobody came?

Debbie Borman brings up the recent NLJ article on part-time programs, which in turn references an AALS panel on the future of evening programs. FIU runs a part-time/evening program and has made it a core part of the school's mission, which is, in part, to increase the diversity of the legal profession. Our very first evening class (who were 2Ls when I started teaching here) remains one of my favorite cohorts--for their intelligence, their engagement in the life of the law school, and their seeming enjoyment of law school.

But there is a reality we can't ignore. Law-school applications are down nationally (although FIU's are up, likely owing to our being a relatively inexpensive public school); applications to evening programs are down by even more nationally. I'm speculating, but I can imagine a number of reasons for this. Law school no longer is seen as the golden ticket to a lucrative career. This is likely to have an especially more-pronounced effect on would-be part-time students, who already have jobs, careers, and/or families, who no longer see the great benefit in switching careers, and who certainly do not see the great benefit in taking on the cost, burden, and work involved in getting a legal education. Also, the economy being what it is, fewer people may be willing to put their current job in any jeopardy by taking on the extra work of law school. Similarly, putting aside whether businesses are willing to pay for their employees to go to school, businesses may simply be less willing to be flexible or accommodating of their employees who have to miss work or shift hours to go to class or study for exams.

So the question is whether our "mission" to the profession demands that we offer a service that would-be consumers of that service do not seem to be interested in. Or at least not interested in in sufficient numbers as to be economically feasible for the law schools to offer. If there are not enough "qualified" students^* interested in attending law school to consistently fill seats in an evening program, are we truly serving anyone by continuing to do what we've been doing? Especially when, contra one of Debbie's commenters, these are not cash cows, given the resources required to do the program right.

So Debbie asks whether there are alternatives. I was not at the AALS panel, so I do not know what was discussed there. But let me offer a few random ideas--keeping in mind that these are ideas that, to my knowledge, never have been tested out and that probably have significant weaknesses.

1) Have entering evening classes only every other year. This could build up demand.^** If the problem is that you only have 20-25 interested-and-qualified part-time students each year (too few to be economically viable), then alternate tears gives you a class of 40-50, which is about the right number. A senior colleague mentioned this idea to me years ago and I have been interested in it ever since. What to do on the alternate years? Admit 40-50 extra full-time students every other year. We then can get creative, such as having small sections for some classes and giving some students that experience. Or we just have 3 sections of our 1L classes, but all during the day.

2) Fill-out the part-time 1L classes by admitting weaker full-time applicants into the part-time program. The problem here is creating two "classes" of student--those who are working full-time and those who really are full-time students, just taking a slower law school track. There is a risk for resentment, not to mention a risk of combining some potentially strong students who are going part-time by choice with weaker students who are being made to go part-time.

3) Eliminate part-time/full-time designations in class sections and go to combined 1L sections, with one section of each class offered in the evening, to be taken by part-time attendees (who still take a reduced course load) and full-time students who either choose or are assigned to take their classes in the afternoon and evening. This one has some logistical problems, but those could be worked out. There again is a risk of resentment from students who are working full-time, but you are putting (hopefully) uniformly strong students together.

Smarter people than me probably have thought of other ideas and I would love to hear them.

    ^* The danger quotes are intentional. It is easy to blame this on US News (as one of Debbie's commenters does) and the decision to make schools include part-time students in their number reports. But even without this change, I doubt most schools had open enrollment in their part-time divisions. So we still must maintain some level of standards just as a way to screen (however imperfectly) those who will be able to handle law school and the legal profession.

    ^** The key to FIU's first part-time cohort that I mentioned above was pent-up demand. Many of the students would have gone to law school 5-10 years earlier (right out of college or sooner after college), but there was no public law school in Miami at the time and many either didn't want to pay private-school tuition or didn't want to leave town. By the time we opened our doors in 2002, they were too settled in to careers or family situations to go full-time.

Figuring out the DOJ's 2013 budget

Something I would really like to get the hang of is figuring out the DOJ's yearly budget.  I usually notice when the Department seeks additional funding, and I certainly notice when the President announces some new enforcement initiative.  But I always have a hard time wrapping my head around various statements.  For example, if the President's budget calls for an additional $55 million this year in funding for fighting "financial and mortgage fraud," is this a big number or a relatively small number?  What does it include? And how much money does the DOJ already devote to the great fight against mail/wire/securities fraud?   

So, out of curiosity, I checked out a bunch of documents today, after I learned that the President had released his FY 2013 budget, including his proposed budget for the Department of Justice.  The DOJ's funding is mostly flat this year, but it is requesting additional funds for fighting financial fraud, my favorite topic.

I started by reading the Civil Division's FY 2013 budget justification, the link to which I found on the WSJ law blog here.  At least two aspects of this document caught my eye.  

First, the cover page proclaims the Civil Division as a "Profit Center for the US Treasury" and below that, "Guardian of Laws, Programs, and Policies of National Importance."  The phrase "Profit Center" simply does not sit right with me.  Now I understand that the Civil Division, ostensibly less glamorous than its Criminal Division cousin, has to remind Congress that it recovers millions or billions of dollars for the US taxpayer.   But it's one thing to call yourself a profit center when you are a component of a profit-making firm, and quite another when you are a division of one of the most powerful agencies in the United States government that is devoted to achieving more abstract goals like "justice."    

Moving along, I was even more surprised by the statement on page 2 of the Civil Division's budget justification document.  Much of the document is just a nice advertisement for the Civil Division, explaining what it does and what its various offices have achieved in the prior year.  The document also contains budget information sprinkled throughout, including on page 2.  Indeed, the top of page 2 contains a grey set-off box that includes just two paragraphs.  The first paragraph starts with this sentence: 

Financial industry fraud has shaken the world’s confidence in the U.S. financial system. 

The paragraph then goes on to describe all the bad things that arise out of financial and mortgage fraud.  

The second paragraph then states:

The FY 2013 President’s Budget includes a program enhancement of 1,476 positions (including 1,063 attorneys) and $298,040,000. These resources will enable the Department to hold perpetrators of financial and mortgage fraud accountable, deter future perpetrators of fraud, and recover monies stolen from the U.S. taxpayer. 

"Wow!" I thought to myself.  "In just one year, a program enhancement of 298 MM for fighting financial fraud and an additional 1,476 positions!  All in FY 2013.  That's amazing!"  Then the smarter part of my brain responded, "No, no, that can't work.  That's a huge number.  Too huge for just one year.  And how does that match up with the $55 million you saw earlier in press reports?" 

So I went back to the US DOJ website and looked at the Budget press release, which mentions the lower $55 million for fighting mortgage and financial fraud.  I used the links from there to get to this document, which had additional links to the 2013 budget summary, and to a pdf factsheet that summarized requests for fighting financial and mortgage fraud.   The pdf factsheet confirmed that the President had requested an additional $55 million for fighting such fraud, with $37.4 MM going towards criminal enforcement efforts and $17.6 MM going towards civil enforcement efforts.  Then I looked at the 2013 budget summary overview, from which I learned on page 5, under "Funding highlights" that the government "[i]nvests more than $700 million to investigate and prosecute financial crimes, an increase of $55 million over FY 2012" So the government had already been spending approximately $645 MM fighting fraud?  Good to know; now I had a reference point for understanding the $55MM increase. 

Still, how had the Civil Division's justification document come up with a number like $238 mm?  Where did it get that number?  So I went back to the DOJ's budget summary index and clicked on the link for the Civil Division and there it was, on the very first page: the $238 MM represented the President's budget request for the entire Civil Division this year, up about $8 MM from last year.  It wasn't an additional "enhancement" over last year's budget request (at least not under the ordinary definition of the word, "enhancement"), and it certainly was not limited to fighting just just financial and mortgage fraud.  Indeed, the additional 2013 outlays for the Civil Division for fighting such fraud amounted to just $7 MM according to the second page of the budget summary.  Of course, I would have seen that too in the Civil Division's justification document had I read as far as pages 26-27.  I also would have realized that the $238 million pertained to the entire Division had I read as far as Exhibit B of the justification document.   Then again, how many people stop reading after page 2 or 3?

I want to make clear here that I don't think anyone intentionally misstated the Civil Division's 2013 proposed budget. I can only speculate that multiple employees drafted and edited multiple drafts of the Civil Division justification document, and over time, they stopped reading the language and checking its accuracy.  Thus, we are left with a document that makes a wildly misleading and inaccurate statement on page 2, but then sets forth correct information later on in the same document and in other documents.  

Should I care?  Well, it certainly is not reason for celebration when any government agency or division makes an inaccurate statement about its future funding and how it will fight a type of crime that is of great popular interest.  As to how many people will be actually misled by the document, that number is likely rather small, given how few people read the document in the first place.  Sophisticated observers will probably recognize the inaccuracy, if they read the document at all.   As for everyone else, it's just another website link that most people don't even know about, much less read.  Nevertheless, the document demonstrates the ways in which large organizations can allow misstatements to end up in important documents.   It also demonstrates (to me at least) just how difficult it is to "follow the money" even with Internet availability and a little bit of background knowledge.  

And with that, I'm heading home.  Happy Valentine's Day, prawfs readers!

I want my L[aw] TV

Tonight at 9 p.m., HBO debuts The Loving Story, a documentary on Mildred and Richard Loving, whose interracial marriage provided the basis for SCOTUS's decision striking down anti-miscegination laws in Loving v. Virginia (still at the top of the list of appropriate SCOTUS case names). Here is a review of the program by Time's James Poniewozik, although I have no idea how a law-trained audience may view the show. This program is especially timely, premiering as it does: 1) on Valentine's Day; 2) on the heels of the Ninth Circuit decision on the constitutionality of Prop 8 in Perry; and 3) on the closer heels of the statutory recognition of same-sex marriage in Washington.

A fun parlor game for law-and-policy geeks is to argue over what legal issues we will look back on 50 years from now and say  "how could that have possibly been up for debate?". I believe same-sex marriage will be one such issue--much as we now view anti-miscegination laws.

A preview of the show after the jump. I may have more to say after I've watched it.

 

Preview - The Loving Story

 

The Worst Part of Copyright: Termination of Transfers

There were some great responses to my survey about the worst provision in the Copyright Act. Bruce Boyden nailed it when he guessed I was thinking about termination of transfers. This rule lets authors revoke any licensing contract between 35 and 40 years after they enter into it. (There was a similar but different system for renewals under the 1909 Act, which also survives in modified form in the 1976 Act, just to add to the confusion.)

This is an inalienability rule. But it's not an inalienability rule that rests on a deep and shared moral intuition, like the rule prohibiting people from selling their organs as meat for the super-rich. Termination of transfers rests instead on a view that authors are "congenitally irresponsible" to the point that they can't be trusted to make licensing decisions for themselves. They need to be given a second bite at the apple because they're not smart enough to negotiate fair deals the first time around. As for the theory that it's hard to value creative works up front, apparently percentage royalties and reversion clauses are too complex for authors to understand or insist on.

Trying to impose an inalienability rule on authors and publishers who don't want it at the time they strike their original licensing deals leads to no end of practical trouble. Making the rule stick means overriding any number of contracts, including contracts specifically drafted to get around it. Litigation over decades-old agreements, frequently with intervening modifications and regrants, is virtually guaranteed to be a morass--and so it has been, with well-publicized disputes like the fight over the termination rights in Action Comics #1 dragging on for years at ridiculous expense. The courts have been fighting against this system for much of the century, but all they've really accomplished is to increase its complexity. And Congress has done its part to make the statute incomprehensible: I dare you to read Section 203(b) and explain what it's supposed to mean.

But the demented logic of inalienability doesn't stop there: it continues beyond the grave. The termination rights of a deceased author vest in the widow or widower, then the children, and then the grandchildren, on a per stirpes basis. That's right: the Copyright Act displaces state probate law by creating future estates. And it does so in the form of byzantine set of fractional shares subject to an idiosyncratic voting rule requiring a majority of majorities to exercise the termination right. (Need I add that the drafters of the Uniform Probate Code concluded that a vast majority of Americans wouldn't want per stirpes distribution if they understood how it worked? No. That would be overkill.)

The underlying assumptions behind this postmortem provision are creepy, too. The romantic author, it would appear, is both the family breadwinner and a bad provider. His family, having sacrificed for decades to support his creative efforts, will receive their reward after his passing, when his genius is belatedly recognized. Copyright law has a theory of the family: it's nuclear and dominated by a single individual on whom the rest depend. The statutory text is gender-neutral, but its assumptions aren't.

As an incentive for authorship, this a terrible one. If authors make bad up-front deals because they're unmindful of future revenues, it follows that those same future revenues won't operate as an ex ante incentive for creativity. As a welfare system to support deserving authors in their old age, it's also terrible, since it bestows large windfalls on a very small number of them, at immense administrative cost. If this is a welfare system to support the families of authors, it's beyond terrible, since it bestows windfalls on a small number of people with the good fortune to be related to a commercially successful author, while doing nothing for the families of those who toiled their whole lives in some other, equally worthy calling.

There is, I recognize, essentially zero chance that this system will be modified for the better any time soon. But that doesn't mean we have to like it.

Tomorrow: comments on readers' choices of their own least-favorite copyright rules. There's still time to add your suggestion to the list!

Part-Time Programs Go Under the Bus

The National Law Journal website law.com is reporting the decline of enrollment in part-time law programs. (http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202541306229&slreturn=1) Apparently, part-time programs have been on the chopping block for a few years, as the article indicates that several schools have shut down part-time programs. Losing part-time programs is a travesty for the future of the legal community. I currently teach in both a full-time day program and a part-time evening program and my evening students demonstrate an incredible level of engagement, commitment, ability to reason and apply concepts quickly, and a maturity that is distinct from some students who are fresh out of college. I have many friends and relatives who are excelling in the field after graduating from part-time evening programs, none who were sponsored by their employers for tuition. I did not attend the AALS panel on the decline of enrollment in evening programs, but if anyone did attend that panel, or presented, are there any solutions in the offering?

What's the Worst Provision in the Copyright Act?

I spend a lot of time regarding the Copyright Act with a kind of horrified fascination. Although parts are elegantly drafted, most of it is, quite frankly, a mess. So here's a quick survey: what's your least favorite provision in U.S. copyright law? Ideally, it should be one or more of the following:

• Incomprehensibly drafted
• Unpredictably applied by the courts
• Economically inefficient
• Full of traps for the unwary
• Unfair to the well-intentioned
• Ineffective at its stated purpose
• Demeaning to personal autonomy
• Disruptive to other areas of law
• (Bonus) Racist, sexist, or homophobic

I'll report on the results of the survey tomorrow, along with my own candidate.

What Happens When Federal Law Is Limited?

For all the work on U.S. federal courts, a surprisingly understudied areas is what happens when federal courts close their doors or limit federal law.  In other words, when federal doctrine makes it harder to file cases in federal court, what do plaintiffs do?  This link provides an interesting case study.  In short, the Supreme Court in a recent case decided that the federal securities laws do not have extraterritorial effect because Congress did not specifically provide for such effect.  This means that many alleged foreign fraud cases cannot be pled in federal court under those laws.  As the link shows, plaintiffs are now trying to get around that federal rule by pleading the case under state fraud (and other) law.  Interestingly, while there is federal law limiting the extraterritorial effects of that law, many states do not have a similar rule for state law, which may raise due process concerns.  So, by closing federal doors to these cases, the Court may have left open a window for state law claims.  In so doing, I wonder if there is an even greater risk of extraterritorial application of U.S. law and the potential for conflicts between U.S. states and their law and foreign states and their regulatory interests?

The end of football?

Tyler Cowen and Kevin Grier have a piece at Grantland that hypothesizes how professional football may end as a major American professional sport under the weight of a worsening concussion crisis. They argue that the "collapse of football is more likely than you might think. . . . Once you start thinking through how the status quo might unravel, a sports universe without the NFL at its center no longer seems absurd." They also argue that the economic consequences will be minimal at the national level, although harsher at the local level in small markets (e.g., Green Bay) that only have professional football.

I agree with the basic point of the piece. I am not sure how long football can continue as it currently is played (and I say that as a big fan). It is not just about "hits to the head" and concussions. The irreducible element of the game is for incredibly large, incredibly athletic, and incredibly fast-moving men to run into one another at full speed. It is simply not possible for serious long-term health problems not to result, no matter the evolution in equipment (which the NFL promoted in a Super Bowl ad (after the jump)). All the conversations about player safety seem to ignore that modern players are significantly larger than they were 20 and certainly 50 years ago, but that they're also signficantly faster, quicker, and more agile. If F = M x A, then players today are hitting and being hit with significantly more force than 20 or 50 years ago. Neither eliminating helmet shots nor improving helmets can change that.

This doesn't mean football is going away, just that it is going to become less important to our sports culture. The chain they describe looks something like this: As fewer high schools and colleges have football programs in light of the medical evidence (and probably some large liability judgments), more and better athletes will be drawn to other sports, leaving football with less talent, less money, less cultural and media presence, and, ultimately, more of a niche place in the sports landscape.

It's an interesting take on the issue. There is historical precedent--look at boxing and horse racing.  And their broader point is not so much predicting football's demise as suggesting what could happen if things play out a certain way (mostly because of the medical, and subsequent legal, issues) and the status quo unravels. And who better than economists to follow the logical trail . . .

VAPs and Fellowships: Open Thread, 2011-2012

As requested, here is this year's open thread in which comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  (Here is last year's thread.)

Update: We have an aggregator! Below is the spreadsheet, which you can view and download here.

Additionally, this link will always take you to the last page of comments for this thread.

From the aggregator:

The column titles should be self-explanatory. Most columns are populated by dates, each of which may have a descriptor next to it indicating (method of notification) AND/OR [slots filled/total slots].

Dates correspond to the posting date or the date I (VAP Aggregator) received an email directly.

Reports on some programs leave outstanding questions based on the information provided. I have highlighted those in yellow in the hopes folks will provide additional info.  (Committees, you are especially encouraged to correct me if I make a mistake!)

Some programs are not running this year (either via their webpage and/or reports). I have marked those rows in gray, but preserved them to help make the spreadsheet reusable next year.

Submit any questions/comments/corrections to vapaggregator (at) gmail (dot) com.

New Rakoff Opinion Slams Solicitor General's Office

Wow.  Last week, Attorney General Eric Holder spent time on the Congressional hot seat responding to allegations that the DOJ misled Congress regarding a flawed firearms investigation. 

This week, Attorney General Holder was probably feeling a little better ...until this morning.  Today, the Wall Street Journal reports that Judge Rakoff (of SEC-settlement fame) issued a rather interesting 20 page opinion granting the National Immigration Project of the National Lawyer's Guild and several other organizations (including NYU's immigration clinic and Northeastern's Immigration Prof Rachel Rosenbloom) the right to view previously redacted information in four emails that pertained to a 2009 Supreme Court immigration case.  

As Rakoff explains in his Order, in a 2009 immigration case, the Office of the Solicitor General represented to the Supreme Court that:

[b]y policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courtseffective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary,and according them the status they had at the time of removal." Brief for Respondent at 44, Nken v. Holder, 129 S. Ct. 1749 (2009) (No.08-681), 2009 WL 45980 at *44. Although the OSG did not support thisassertion with any citation, id., the Supreme Court in Nken, inholding that deportation of an alien before the resolution of anappeal from her order of removal does not constitute irreparable injury, expressly relied on this representation

Rakoff Order at 2.  The plaintiff organizations subsequently filed a FOIA request to obtain information regarding the government's alleged "policy and practice."  According to Rakoff, the plaintiff organizations did not receive overwhelming evidence demonstrating such policy or practice.  At issue were four heavily redacted emails that the OSG's lawyers apparently relied upon in making their representation to the Supreme Court.   These four emails, which were between OSG lawyers and other government officials, formed the basis of the plaintiffs' motion and Judge Rakoff's Order. 

The emails, which the government produced in response to the plaintiffs' FOIA request, were redacted by the OSG for a number of reasons, most of which Rakoff rejected after reviewing the emails himself in camera. Judge Rakoff's Order directs the government to unredact specific factual information contained in each of the four emails.

An order directing the government to produce emails, or even unredact statements contained in those emails, is not necessarily a blockbuster event.  It is Rakoff's characterization of the emails, however, that is so stinging:

[N]either 8 U.S.C.§ 1182(d)(5)(A), nor the MOA, nor any other evidence here proffered bythe Government supports the suggestion that the OSG’s representation in Nken was based on anything other than the facts provided to the OSG in the email chain here at issue.

By contrast, the email chain (as reviewed by the Court in camera) evidences an attempt to cobble together a factual basis for making the representation the OSG made to the Court in Nken.  

Rakoff Order at 12 (emphasis added).   Yikes! "Cobble together" is not one of those phrases that suggests strong factual support for one's assertions. 

And in case you have any doubt about where Judge Rakoff stands, consider the Order's opening paragraphs:

“Trust everybody, but cut the cards,” as the old saying goes.

When the Solicitor General of the United States makes a representation to the Supreme Court, trustworthiness is presumed. Here, however, plaintiffs seek to determine whether one such representation was accurate or whether, as it seems, the Government’s lawyers were engaged in a bit of a shuffle.

Rakoff Order, at 1 (emphasis added, citation omitted).  Ouch!  If the Order is as bad as it seems, we will likely hear more about it in the days to come.  What will be of most interest to me is the organizational dynamics at play.  How does the size and organizational structure of an organization such as the DOJ (or much smaller organization like the OSG) affect information-reporting failures such as the one that quite possibly occurred here?  What reforms would we seek to prevent information-based failures of the type that occurred here?  Or is this simply a one-off problem, an outlier that will solve itself thanks to an embarrassing opinion by a district court judge?  Stay tuned ....

 

teenage contracts

I mentor a high school student as part of a state-wide program (run by the local school districts) that offers needy students, beginning in the seventh grade when they apply, the promise of a full college tuition in a state school so long as they meet certain commitments. The whole thing starts with the signing of a formal, oversized contract (sort of like a golf tournament check) in which the students agree to keep a certain GPA, stay out of trouble with the law and school, and meet regularly with an assigned mentor. I've met almost weekly for lunch with the same kid since 7th grade; he's now in 10th.

Boys, it turns out, meet the contract's obligations much less frequently than girls. And my mentee -- jeez, if you had any sense of the things he has been through in his short life, you would do what I do after every one of our meetings: hug my kid, bless my parents, and curse a set of structural inequities that stand in the way of his admission into the world and economy that the program is designed to push him towards. He's still the same charming boy with the winning smile that would melt the world's remaining icebergs. But he's not making it. His grades have deteriorated as he's moved up through high school. He's about to be given his final probation warning.

But the contract's formality and meaning -- that's a really interesting psychological thing to watch in him. We had lunch for the first time in a while yesterday and his grades had just come out. It was an extremely difficult conversation in the way such things are with teenagers. Lots of frustration with the teachers, schoolwork, etc., all the things that a teenager who wants to avoid responsibility will point to in order to avoid facing up to their own culpability. Tying achievement to the set of commitments he had made several years before -- even when the reward of a college scholarship seems so abstract, far away, and unlikely -- lit ... well, not a fire or even quite a spark. But talking to him about what it would mean to get kicked out of the program for breaching the contract he'd signed engendered a much more productive conversation. We could talk about why work is necessary not just because of what the teacher asks or requires, nor for the validation of a better grade, nor even for the contract's payoff. No, it was driven in part by a sense of honor and personal responsibility, a pull to live up to the expectations of the 7th grader who signed that contract, even when 10th grade and being a teenager is so much harder. That agreement bound him, at least for the balance of my Big Mac and his McNuggets. We could talk more practically about the steps he needed to take to pull up his grades and get himself back on track at least to graduating from high school.

Makes me want to teach Contracts!

Bargaining Your Way Out of War Crimes

Writing book reviews may be a fading fad, but I’ve agreed to do one for Criminal Law and Philosophy on Mark Freeman’s Necessary Evils: Amnesties and the Search for Justice. Freeman argues that the push in international criminal law towards banning the amnesty, although certainly understandable, comes with some costs and, hence, isn’t self-evident. According to Freeman, some room should be left for human rights abusers to bargain away their criminal liability in exchange for peace. Ultimately, Freeman sets a very high bar on the permissibility of such bargains. His bar is so high, and his conditions so complex/onerous, that in practice under his own framework the amnesty may never be possible. In any event, Freeman’s position is an unorthodox one for an international lawyer to take. In this regard, his book is brave indeed. To be sure, political scientists routinely embrace the amnesty as a means to do business. But for lawyers, steeped in retributivist ethics, the cost of doing such business may be too much to bear. Freeman frequently turns to Dan Markel’s work in order to offer theoretical background on interplay between the deontological need to punish and the utilitarian reality that sometimes non-punishment may serve a greater good. That said, these questions are far from theoretical. In September 2011, Uganda’s Constitutional Court respected an amnesty given domestically to Col. Thomas Kwoyelo, who is among the highest level leaders of the rebel Lords’ Resistance Army (LRA), notorious for massive human rights abuses, wide-scale rape, and abduction of child soldiers. The Court ordered his release; the Court of Appeals affirmed in November; but Kwoyelo is still in custody. Kwoyelo himself had entered LRA as a teenage child soldier. In response to international pressure, a couple of years ago Uganda established an International Crimes Division in its domestic courts to prosecute LRA fighters. Kwoyelo was the first person brought to trial. These fighters, like Kwoyelo, had previously been granted an amnesty (pursuant to legislation adopted in 2000) in exchange for their renunciation of violence. The debate over Kyowelo’s amnesty therefore involves tension within branches of the same state: Uganda’s constitutional imperatives to equal treatment of its citizens, on the one hand, and Uganda’s prosecutorial obligations to punish perpetrators of serious international crimes, on the other. One angle to the amnesty debate that I have not seen much of in the literature, and which I hope to explore at greater length in the review, is how reneging on an amnesty previously granted may in and of itself amount to a rule of law denial, thereby imperiling constitutional legitimacy. In this regard, respecting a painful and unattractive bargain may signal a deontological commitment to promise and predictability. Any thoughts on how upholding ugly bargains may prettify a new constitutional order? How scuttling them, however attractive in the short term, may come to blight constitutional credibility?

Dog bites tv anchor, news at...

Just a quick post about the potential consequences of this sad story: The 85 lb. dog rescued from an icy lake on Tuesday is featured on television (morning news show) with his rescuer, and then bites the tv anchor who moved closer to his face. Animal experts have explained that the dog's body language was clearly signalling his discomfort, yet the anchor persisted in trying to hug or cuddle him.

Why did the dog need to be rescued? This story describes how the dog's owner allowed the dog to be off leash, and when the dog spotted a coyote, his chase instinct kicked in. He wound up falling into frigid water until firefighters came to rescue him 20 minutes later.

The anchor required extensive surgery, the dog must be quarantined for 10 days for signs of illness or rabies (he was not innoculated), and the dog's owner received multiple citations: for allowing his dog off-leash, for allowing the bite, and for failing to have his dog properly vaccinated.

There is so much wrong about this tale. On one side, we have an irresponsible owner whose poor judgment nearly caused his dog to die of drowning or hypothermia, who risked his dog's health & the health of anyone who comes into contact with the dog with the failure to vaccinate, and who allowed his dog to be featured on a "feel good" television segment the day after the dog experienced such a traumatic experience. On the other side, we have a television anchor so focused on getting the "feel good" moment on camera with the dog, despite her own lack of knowledge of dog behavior and communication, to the point where she was hospitalized and needed major reconstructive surgery. Caught in the middle of two humans with poor judgment is the dog, who now must be quarantined & subsequently treated as a dog with a vicious biting history.

The consequences will likely be felt by responsible dog owners everywhere who grapple with the difficulties in finding suitable on-leash and safe off-leash outlets for our canine companions.

From the Office of Bad Ideas

Let's say you're a judge. A domestic violence case crosses your desk.  The affidavit filed with the Complaint indicates that a husband and wife engaged in a dispute that began with the husband's failure to acknowledge the wife's birthday, and escalated into the husband pushing the wife onto the couch, putting his hand on her throat and threatening to hit her with his fist.  During the husband's first appearance do you: (a) order the husband to enter some type of anger-management counseling as a condition of his bond and consider additional evaluation or monitoring, or (b) ask the wife in court whether she was hurt, and when she says "no," proceed to order the husband to buy her flowers, take her out to dinner, and then go bowling because, in your opinion, this really was nothing more than a "minor incident"?  

If you chose answer "B" then you should be pretty happy with this judge, who reportedly ordered the defendant to take his wife to a Red Lobster and attending marital counseling.  (Well hey, at least I should be happy that he told the couple to go to a marriage counselor, given how "very minor" the incident was).

It is difficult to find anything praiseworthy in this approach.  If you believe the wife, then her husband came dangerously close to physically harming her.  It is extremely difficult to believe that dinner, flowers and a nice heart-to-heart will solve the problems underlyling this relationship, much less prevent future harm. 

Studying State Law

I am at the University of Virginia the next couple of days as part of this fabulous conference on Conflicts of Interest: Resolving Differences in Global Legal Norms. In studying that question, one tends to focus on federal courts and federal law. As I have observed here, however, many international law cases may be brought under state or foreign law and, in some cases, in state court. For those interested in a retreat from east coast weather, Chris Whytock (UCI), Mike Ramsey (USD), and I are co-organizing a symposium on human rights litigation in state courts and under state law, which will be held March 2 at the UC Irvine School of Law. Further information is here.

With this as background, here is my question: Are we spending too much time teaching and studying federal law when we should be looking more critically at state law and, in particular, its relationship to international and foreign law? Obviously, many of our students will practice state law. I wonder: Is there a way to bring more state law into our teaching and scholarship and, if so, how?

ReDigi and the Purpose of First Sale

For now, at least, ReDigi lives. Judge Sullivan denied the preliminary injunction, but according to the transcript, on irreparable harm grounds rather than a lack of likelihood of success on the merits. The case is set for rapid progress towards trial, quite possibly on stipulated facts.

I'd like to take up one of the central questions in the case: first sale. Whether you think ReDigi ought to win certainly turns on your view of what first sale is for. So too, may the legal merits. How you interpret statutory text like "owner" or "sell" may depend on on your theory of what kinds of transfers Congress meant to protect. And even if ReDigi's particular form of transfer falls outside of the text of first sale itself, the arguments for and against fair use can draw on first sale principles. Here, then, are some competing theories:

• Conservation of copies: Copyright is fundamentally copy-right: the ability to prevent unauthorized copying. Practices that don't increase the total number of copies in existence don't fundamentally threaten the copyright owner's core interests. First sale blesses one of those practices: moving a copy for which the copyright owner has already been paid from one set of hands to another. On this theory, ReDigi is okay because it forces sellers to delete their copy of the music, thereby keeping the number of extant copies constant.

• Freedom of alienation: First sale protects the rights of owners of personal property against copyright claims that might interfere with their right to use their property as they wish. This idea is sometimes described in terms of "servitudes on chattels" or "exhaustion" of the copyright owner's rights. We could also think of it as a negotiability regime promoting free transferability of personal property, given the information and transaction costs involved in allowing third-party copyright claims. On this theory, ReDigi is in trouble because it deals in information, rather than in tangible objects.

• Copyright balancing: First sale is one of a cluster of doctrines that shape the level of control copyright owners have over the market (economic and cultural) for their works. If that balance changes over time, the doctrines should be recalibrated to restore it. Since the reproduction right has expanded to cover all sorts of computer-based uses such as loading a file into memory, the first sale defense should expand to maintain the same rough level of control. On this theory, ReDigi should win, because it would preserve roughly the same levels of freedom for users and control for owners as they had in an analog era.

• Copyright balancing: Or wait ... if the goal is balancing, then perhaps ReDigi should lose. First sale used to be practically restricted by the facts that physical copies wear out and that exchanging physical objects takes time and money. ReDigi would blow those practical limits away, disrupting the first sale balance in the direction of too little control for copyright owners. In the face of rampant illegal file-sharing, why should a court, in effect, legalize the process by allowing ReDigi to serve as a super-low-friction intermediary?

What I love about this case is that it pushes and pulls our intuitions about copyright in so many different directions. It brings up fundamental questions not just about unsettled corners of doctrine, but also about what copyright is for. It offers grist for every mill, food for every kind of thought.

Hammer the last nail on the donkey

I've been having a lot of good laughs over the last week with a friend in practice in Chicago who is casually collecting mixed metaphors and malapropisms from co-workers and clients used in a legal context. We all have the propensity now and again to sound out a couple of blended cliches - but it is really hard to keep a straight face when you are on the receiving end of one from a student, client, judge (or managing partner . . .)  Any one care to share a good faux pas experience here so we can all have a good February laugh? No need to reinvent the wagon.

boring!

A student forwarded me the story in Above the Law a couple of weeks back about Yale Law School's issues with placating student demand for Administrative Law (short story shorter: a large number of 3Ls were locked out of Admin in their last semester and complained; the administration then offered an additional section). One apparent reason among many (and it's clear from the story that there were many, so I'll stipulate that this may have been a minor reason even though I suspect it might not be) is that students preferred to avoid taking the course from Jerry Mashaw, who "has a reputation for running a dry and difficult class." I'll testify to that. It was one of my favorite classes, and it's now one of my favorite ones to teach, and it's dry and difficult, and although his extremely dry and ironic wit was there if you were paying attention, Jerry Mashaw made little effort to enliven it.

To which I say: good for him. The notion that classes should be entertaining, and that law school should be entertaining, and, more importantly, that it is a profession that should be entertaining (as no doubt entering law students expect), seems misplaced. Being bored and being boring is a defining feature of adulthood, of responsibility, of doing the things that need to be done in order to live and provide for others. Most jobs are boring -- the most boring job I ever had was on a film set, which of course had the aura of sexiness and entertainment but which was mostly about sitting around, waiting for the lighting, sound crews, and talent to be satisfied with the set up. Mastery of anything requires repetition; repetition by definition is boring.

More significantly, like most professions law is about repetitive tasks and arcane things. There are periods of great, sustained, enervating intellectual activity in many legal jobs, but also vast stretches of reading, research, and manipulating boiler plate that are defined by their dreariness. And perhaps no field, and no course, can be as dreary as Administrative Law where, this week, we have debated the difference, if any, between "substantial evidence" and "arbitrary and capricious" as judicial standards of review for findings of fact in agency adjudication. If someone has found a way to make this anything but dry and difficult -- other than in a meta-conversation that considers the absurdity of making the distinction -- then my hat is off to them.

But this is why I think it's our obligation to make our material dry and difficult and, where appropriate, boring. I found Jerry Mashaw's teaching style almost performance-art-like in its fascination with the dry and arcane. I try, no doubt unsuccessfully, to emulate that fasination, to get students to see the boring and to understand why it exists. To become an effective government lawyer or administrative law attorney requires one to recognize the importance of bureaucracy, as well as the necessity of channeling it within legal bounds. That's essential and can be exciting; it can also quite frequently be really boring. 

Criminalizing Cyberbullying and the Problem of CyberOverbreadth

In the past few years, reports have attributed at least fourteen teen suicides to cyberbullying. Phoebe Prince of Massachusetts, Jamey Rodemeyer of New York, Megan Meier of Missouri, and Seth Walsh of California are just some of the children who have taken their own lives after being harassed online and off.

These tragic stories are a testament to the serious psychological harm that sometimes results from cyberbullying, defined by the National Conference of State Legislatures as the "willful and repeated use of cell phones, computers, and other electronic communications devices to harass and threaten others." Even when victims survive cyberbullying, they can suffer psychological harms that last a lifetime. Moreover, an emerging consensus suggests that cyberbullying is reaching epidemic proportions, though reliable statistics on the phenomenon are hard to come by. Who, then, could contest that the social problem of cyberbullying merits a legal response?

In fact, a majority of states already have legislation addressing electronic harassment in some form, and fourteen have legislation that explicitly uses the term cyberbullying. (Source: here.) What's more, cyber-bullying legislation has been introduced in six more states: Georgia, Illinois, Kentucky, Maine, Nebraska, and New York. A key problem with much of this legislation, however, is that legislators have often conflated the legal definition of cyberbullying with the social definition. Though understandable, this tendency may ultimately produce legislation that is unconstitutional and therefore ineffective at remedying the real harms of cyberbullying.

Consider, for instance, a new law proposed just last month by New York State Senator Jeff Klein (D- Bronx) and Congressman Bill Scarborough. Like previous cyberbullying proposals, the New York bill was triggered by tragedy. The proposed legislation cites its justification as the death of 14-year-old Jamey Rodemeyer, who committed suicide after being bullied about his sexuality. Newspaper accounts also attribute the impetus for the legislation to the death of Amanda Cummings, a 15 year old New York teen who committed suicide by stepping in front of a bus after she was allegedly bullied at school and online. In light of these terrible tragedies, it is easy to see why New York legislators would want to take a symbolic stand against cyberbullying and join the ranks of states taking action against it.

The proposed legislation (S6132-2011) begins modestly enough by "modernizing" pre-existing New York law criminalizing stalking and harassment. Specifically, the new law amends various statutes to make clear that harassment and stalking can be committed by electronic as well as physical means. More ambitiously, the new law increases penalties for cyberbullying of "children under the age of 21," and broadly defines the activity that qualifies for criminalization under the act. The law links cyberbullying with stalking, stating that "a person is guilty of stalking in the third degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directing electronic communication at a child [ ], and knows or reasonably should know that such conduct: (a) causes reasonable fear of material harm to the physical health, safety or property of such child; or (b) causes material harm to the physical health, emotional health, safety or property of such child." (emphasis mine) Even a single communication to multiple recipients about (and not necessarily to) a child can constitute a "course of conduct" under the statute.

Like the sponsors of this legislation, I deplore cyber-viciousness of all varieties, but I also condemn the tendency of legislators to offer well intentioned but sloppily drafted and constitutionally suspect proposals to solve pressing social problems. In this instance, the legislation opts for a broad definition of cyberbullying based on legislators' desires to appear responsive to the cyberbullying problem. The broad statutory definition (and perhaps resorting to criminalization rather than other remedies) creates positive publicity for legislators, but broad legal definitions that encompass speech and expressive activities are almost always constitutionally overbroad under the First Amendment.

Again, consider the New York proposal. The mens rea element of the offensive requires only that a defendant "reasonably should know" that "material harm to the . . . emotional health" of his target will result, and it is not even clear what constitutes "material harm." Seemingly, therefore, the proposed statute could be used to prosecute teen girls gossiping electronically from their bedrooms about another teen's attire or appearance. Likewise, the statute could arguably criminalize a Facebook posting by a 20-year-old college student casting aspersions on his ex-girlfriend. In both instances, the target of the speech almost certainly would be "materially" hurt and offended upon learning of it, and the speakers likely should reasonably know such harm would occur. Just as clearly, however, criminal punishment of "adolescent cruelty," which was a stated justification of the legislation, is an unconstitutional infringement on freedom of expression.

Certainly the drafters of the legislation may be correct in asserting that "[w]ith the use of cell phones and social networking sites, adolescent cruelty has been amplified and shifted from school yards and hallways to the Internet, where a nasty, profanity-laced comment, complete with an embarrassing photo, can be viewed by a potentially limited [sic] number of people, both known and unknown." They may also be correct to assert that prosecutors need new tools to deal with a "new breed of bully." Neither assertion, however, justifies ignoring the constraints of First Amendment law in drafting a legislative response. To do so potentially misdirects prosecutorial resources, misallocates taxpayer money that must be devoted to passsing and later defending an unconstitutional law, and block the path toward legal reforms that would address cyberbullying more effectively.

With regard to criminal law, a meaningful response to cyberbullying--one that furthers the objectives of deterrence and punishment of wrongful behavior--would be precise and specific in defining the targeted conduct. A meaningful response would carefully navigate the shoals of the First Amendment's protection of speech, acknowledging that some terrible behavior committed through speech must be curtailed through educating, socializing, and stigmatizing perpetrators rather than criminalizing and censoring their speech.

Legislators may find it difficult to address all the First Amendment ramifications of criminalizing cyberbullying, partly because the term itself potentially obscures analysis. Cyberbullying is an umbrella term that covers a wide variety of behaviors, including threats, stalking, harassment, eavesdropping, spoofing (impersonation), libel, invasion of privacy, fighting words, rumor-mongering, name-calling, and social exclusion. The First Amendment constraints on criminalizing the speech behavior involved in cyberbullying depends on which category of speech behavior is involved. Some of these behaviors, such as issuing "true threats" to harm another person or taunting them with "fighting words," lie outside the protection of the First Amendment. (See Virginia v. Black and Chaplinsky v. New Hampshire; but see R.A.V and my extended analysis here.). Some other behaviors that may cause deep emotional harm, such as name-calling, are just as clearly protected by the First Amendment in most contexts. (Compare, e.g., Cohen v. California with FCC v. Pacifica).

But context matters profoundly in determining the scope of First Amendment protection of speech. Speech in schools and workplaces can be regulated in ways that speech in public spaces cannot (See, e.g., Bethel School Dist. No. 403 v. Fraser). Even within schools, the speech of younger minors can be regulated in ways that speech of older minors cannot (Cf. Hazelwood with Joyner v. Whiting (4th Cir)) , and speech that is part of the school curriculum can be regulated in ways that political speech cannot. (Compare, e.g., Tinker with Hazelwood). Outside the school setting, speech on matters of public concern receives far more First Amendment protection than speech dealing with other matters, even when such speech causes tremendous emotional upset. (See Snyder v. Phelps). But speech targeted at children likely can be regulated in ways that speech targeted at adults cannot, given the high and possibly compelling state interest in protecting the well-being of at least younger minors. (But see Brown v. Ent. Merchants Ass'n). Finally, even though a single instance of offensive speech may be protected by the First Amendment, the same speech repeated enough times might become conduct subject to criminalization without exceeding constitutional constraints. (See Pacifica and the lower court cases cited here).

Any attempt to use criminal law to address the social phenomenon should probably start with the jurisprudential question of which aspects of cyberbullying are best addressed by criminal law, which are best addressed by other bodies of law, and which are best left to non-legal control. Once that question is answered, criminalization of cyberbullying should proceed by identifying the various forms cyberbullying can take and then researching the specific First Amendment constraints, if any, on criminalizing that form of behavior or speech. This approach should lead legislators to criminalize only particularly problematic forms of narrowly defined cyberbullying, such as . While introducing narrow legislation of this sort may not be as satisfying as criminalizing "adolescent cruelty," it is far more likely to withstand constitutional scrutiny and become a meaningful tool to combat serious harms.

Proposals to criminalize cyberbullying often seem to proceed from the notion that we will know it when we see it. In fact, most of us probably will: we all recognize the social problem of cyberbullying, defined as engaging in electronic communication that transgresses social norms and inflicts emotional distress on its targets. But criminal law cannot be used to punish every social transgression, especially when many of those transgressions are committed through speech, a substantial portion of which may be protected by the First Amendment.

[FYI: This blog post is the underpinning of a talk I'm giving at the Missouri Law Review's Symposium on Cyberbullying later in the week, and a greatly expanded and probably significantly changed version will ultimately appear in the Missouri Law Review, so I'd particularly appreciate comments. In the article, I expect to create a more detailed First Amendment guide for conscientious lawmakers seeking to regulate cyberbullying. I am especially excited about the symposium because it includes mental health researchers and experts as well as law professors. Participants include Barry McDonald (Pepperdine), Ari Waldman (Cal. Western), John Palfrey (Berkman Center at HLS), Melissa Holt (B.U.), Mark Small (Clemson), Philip Rodkin (U. Ill.), Susan P. Limber (Clemson), Daniel Weddle (UMKC), and Joew Laramie (consultant/former direction of Missouri A.G. Internet Crimes Against Children Taskforce).]

Hello I am Sponge Bob….

...and this is opposite day. When I woke up this morning, I did not expect to see that Rick Santorum had won the caucuses/primaries in Missouri, Minnesota and Colorado yesterday. Even more amazing (at least to me) is that Mitt Romney came in third in Minnesota, a state that he won in 2008 and competed for this year. For Santorum, yesterday’s wins mean that he has changed the narrative about Romney’s frontrunner status, but the Republican primaries also raise interesting questions about the underlying legal regime that serve as a backdrop to these contests.

For example, Romney is extremely well-funded, both as a candidate and through a pro-Romney SuperPAC. He outspent Gingrich 5-1 in Florida, and won the state by 14 percentage points. Many blame this huge influx of money into the Republican primary and the rise of SuperPACs on Citizens United, and there is some truth to that. As we all know, money matters and the more money one can raise, even from corporate donors through unaffiliated, pro-you SuperPACs, the better your chances of winning the election. But Romney lost all three contests yesterday, despite his resources and despite the fact that he had hoped to win Minnesota and had spent money there. He lost to a candidate who is a pauper by comparison. Santorum had limited resources, but he spent time in each state, shaking hands and talking to voters.

So yes, it is certainly true that money in elections matters; that having organization and boots on the ground matter….but I still like to think that yesterday’s contests show that if the voters don’t like you, you won’t win. Although I feel for Romney given that this is his second bite at the apple, I do find it somewhat reassuring that the voters still have some say in this process.

Or it could just be that voter turnout was down yesterday and that increased Santorum’s chances of winning. Either way, I would rather believe in the system. Yay democracy!

Cross-posted at Democracy and Distrust.

The Savvy of Perry

I had the chance to skim quickly the Perry decision earlier today. I skipped the boring stuff, yes. And, not having followed the litigation carefully, I was surprised to discover the argument that swayed Reinhardt and Hawkins. Indeed, I don't remember anyone saying: it's not the right to gay marriage that the 9th has to decide, but rather the wrong of withdrawing the right to gay marriage. Thus Roemer controls.

Genius. Kennedy will affirm this "narrower" holding, thereby creating more time for older homophobes (who make up only part of the constituency that opposes gay marriage) to die off and thus allow the trend of gay marriage rights at the state level to percolate and evolve. Satisfies libertarians somewhat and federalists somewhat more for letting states decide these contested issues.

So, who deserves credit for this strategy? From the Perry decision in the Ninth, it seems like the argument was introduced on appeal by the city attorneys of San Francisco, but I wasn't sure. Anyone know if this argument was ventilated beforehand or in the amicus briefs? In any event, it's the kind of foxiness good lawyers should be recognized for, even if it's likely to stick in the craw of uber-lawyers Olson and Boies. They, after all, tried to address the larger issue at trial and Judge Walker's "adjudicative" facts determinations will be somewhat for naught. The Ninth Circuit's ruling, for now, is a Roe-avoidance mechanism.

Entry Level Hiring: The 2012 Report

Time once again for the entry level hiring report. Woo hoo!

We will report the following information: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship: Institution and Type of Fellowship

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to three)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across (using the little triangle-looking thing at the bottom of the spreadsheet) to see all of the information we will be aggregating. 

Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at slawsky *at* law *dot* uci *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

We will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Other links:

This report follows in the tradition of Larry Solum's excellent work over the course of many years. 

Here is last year's initial post, and here is last year's spreadsheet.

At the end of the whole process, there will be pretty pictures, like this.

Rupert Murdoch and the FCPA

The Foreign Corrupt Practices Act is a controversial federal statute that was enacted in 1977 and was intended to deter and reduce bribery of foreign officials for US business. It has contributed substantially to the number of deferred prosecution agreements (DPA's) that the federal government signs (usually) with large, publicly held corporations.  Ordinarily, the corporation gets into trouble when one or more of its employees pays money to a foreign official in connection with the corporation's business transactions.  

On those occasions when the government prosecutes the individuals responsible for violating the FCPA, the results can be mixed.  For an example of a recent loss, you can see this juror's discussion at Mike Koehler's FCPA Professor Blog, which discusses how and why the government failed to secure convictions in a case that involved an undercover sting and ruse to bribe the defense minister of Gabon.  The case had been considered pathbreaking because it involved an undercover sting; now, it may be pathbreaking because it involves a massive loss and the government is considering dropping its remaining prosecutions. 

According to the conventional wisdom, FCPA convictions (at least conviction of those individuals willing to take the cases to trial) are difficult to secure because the underyling transactions are often complex and difficult to understand.  Reasonable doubt abounds. 

But that might not be such a problem if the government decides to go after Rupert Murdoch's News Corp.  The company, which is headquartered in New York, is currently the subject of a number of investigations, here and overseas.  Senators and Congressmen began calling for investigations back in July, and the FBI's FCPA investigation seems to be moving forward, as reported by Reuters today.  The FCPA investigation relates to News Corp employees' payment of money to (British) police officials.  Unlike most FCPA cases, I can't imagine jurors will have too much difficulty understanding the underlying transactions.  Perhaps this is why News Corp hired Mark Mendelson back in July 2011.  

Things are Different in California

Imagine that you are in the market for a car. You head to the car dealership and conscious of gas prices (especially in California) you pay particular attention to the advertised miles per gallon. You look across the showroom and there you see it--a car that advertises 50 MPG. You buy it and drive away a very happy consumer....until you discover that you are only getting 30 MPG. Thankfully, class action lawyers are looking out for you. They file a class action and settlement ensues. You will receive a couple hundred dollars in rebates and coupons. They will receive roughly $8.5 million. The American class action system at work.

In California, however, some folks do things differently. One such person is Heather Peters (a former lawyer) who decided to opt out of the settlement, create a website encouraging others to opt out, and filed a case against the automaker in California small claims court. The maximum amount she can receive in small claims court is $10,000. And, here's the plus: the automaker can't be represented by a lawyer before the small claims court under California law.

As reported late last week in the LA Times, Heather Peters was awarded $9,867,19. In other words, she defied conventional wisdom by opting out of a class and won. She is now encouraging others to do the same.

When I teach class actions as part of first year civil procedure, it is easy to point to the benefits of class treatment (efficiency/fairness/incentivizing some types of cases) as well as its disadvantages (massive attorneys fees that are passed back to the consumer). Is there any reason to believe that folks like Ms. Peters will change class action litigation in the future? Or, do we just do things differently in California?

Restating, stating, shuffling, or changing?

I’m really glad to have a chance to rejoin the Prawfs community for this month. Sorry for the somewhat belated start, but the past couple of days have been a flurry. I was just out in sunny California for a fascinating international humanitarian law conference at Santa Clara Law School. As Ken Anderson, one of the participants, notes in his opinio juris blog post on the conference, topics covered included the applicability of classic criminal responsibility theories to robots that are used in warfare; the intersections between gender, justice, and conflict; and the right to counsel in military proceedings. I had a chance to present on my new book on child soldiers, several aspects of which I hope to blog about here this month as well.

Yesterday the Transnational Law Institute at my law school hosted George A. Bermann from Columbia Law School, who delivered a fantastic public lecture entitled "American Exceptionalism in International Commercial Arbitration". We are fortunate at Washington and Lee to have Susan Franck as a colleague, in that her work situates at the cutting-edge of scholarship in this field -- and our Moot Court Room was packed and engaged. Although the notion of "American Exceptionalism" often applies in human rights law areas (such as constitutional interpretation, war crimes trials, and terrorism), Prof. Bermann explored how aspects of the US legal system interface with the quest, through international convention, for uniform enforcement of international arbitration awards in commercial law matters. In particular, Bermann identified a number of factors, which may not always be anticipated in contract negotiation, including federalism (for example, how the public policy of one of the US states may interface with the recognized ability for an award to be denied enforcement if it infringes public policy), inadequacies in the domestic Federal Arbitration Act, and procedural features of the US legal system. In this regard, clearly, I would answer Trey Childress' earlier question on this blog with a clear yes – international law matters and domestic legal structures ought to be mindful of it.

Bermann serves as Chief Reporter of the American Law Institute Restatement (Third) of the U.S. Law of International Commercial Arbitration. At the end of his talk, a student in the audience raised what I thought to be an important reminder – namely, what are the obligations and duties of Restatement authors? Is it to photograph the law, prod it along, or reengineer it? Do different obligations arise in different areas of law? For example, in areas of law thick with case-law and statute, is photography preferable? In areas of law lolling in ambiguity, grappling with change, or redolent with awkwardness, is something more required? What is the proper place for normativity? For international law junkies out there: are the obligations of the Restatement drafters similar to or different from those of the members of the International Law Commission (ILC), who are called upon to promote the progressive development of international law and its codification – recognized by convenience in art. 15 of the ILC's statute as two separate tasks?

Rethinking technology in the classroom

Notice  I did not say "laptops." I am thinking about tablets and book readers, which are becoming increasingly popular as a way to read papers, cases, briefs, etc. At the Junior Fed Courts Workshop last weekend, several participants were reading everything off an iPad or Kindle. And I read an article recently that said Justices Scalia and Kagan both use Kindles for reading briefs and carry them onto the Bench.

Students may increasingly want to do the same for things like supplemental materials (I assign sample pleadings, for example) or additional cases not contained in the casebook or for statutes and rules assigned outside any book. In fact, I entirely forego a casebook in one class, simply having students print out and read raw cases. I am sure many would want to have the materials with them in electronic rather than paper form. I confess to having a bias in favor of reading on paper and being able to underline and make notes and comments in the margin. That is especially so in code classes; I still believe it is easier to jump around from rule to rule or statute to statute on paper than on an iPad. And there still were many at last weekend's conference, like me, with tabbed loose-leaf binders of marked-up paper. But we may be a dying breed.

Accepting (as I do) that the ban on laptops for notetaking is pedagogically beneficial, the question is how to incorporate two distinct issues. My objection to laptops always been more about preventing stenographic notetaking and ensuring more-active participation than preventing surfing, so perhaps I don't lose anything if students have their materials in electronic form but are not taking verbatim notes. On the other hand, there is a disconnect and potential unfairness if I permit students to use some electronic formats for their class reading (iPads, Kindles, etc.) but not laptops. But I don't see how it would be possible to allow students to use laptops in class for the reading without them also taking notes on them. And that reintroduces the notetaking problem that I am trying to avoid.

Thoughts?