Friday, August 17, 2012
Early tort reform
From Atul Gawande's piece on Big Med in the new New Yorker:
In the eighteenth century B.C., Hammurabi’s code instructed that a surgeon be paid ten shekels of silver every time he performed a procedure for a patrician—opening an abscess or treating a cataract with his bronze lancet. It also instructed that if the patient should die or lose an eye, the surgeon’s hands be cut off. Apparently, the Mesopotamian surgeons’ lobby got this results clause dropped.
Kind of makes sitting for a deposition seem tolerable.
Two Gems on This Year's Academic Market
This is not something I'd normally post, but a few years ago, a good friend on this site did something like this for me, and if he had debts to pay, that goes more than double for me. More importantly, these two candidates are, in my view, not to be missed by appointments committees in what is likely to be a tight hiring season (so I've heard, at least).
The first is a superbly (really, astonishingly-well) published and very insightful scholar who writes broadly -- immigration law, private and public international law, contracts, criminal law, and jurisprudence -- with a distinctly philosophical background and set of methodological tools.
The second is likewise extremely well published in constitutional law and law and religion, with a strong interest in civil procedure and professional responsibility as well. His methodological toolkit tends more toward the historical.
Both men are generous but extremely keen readers; they have helped me repeatedly with excellent criticisms of my own projects. Both are already very productive scholars and have a real love for writing. Both are warm folks who would be superb colleagues. And they are the kinds of scholars and teachers who can have an impact in several distinct areas of the law. Please feel free to get in touch with me by email about either of them.
Thursday, August 16, 2012
Changing Parenting Norms
NYC recently announced an initiative to encourage breastfeeding, to begin this September in most city hospitals. The initiative is aimed at new parents and entails eliminating advertising and the “goody bags” from formula makers in hospitals, informing mothers about the health benefits of breastfeeding (per existing state law), and only providing formula to those mothers who request it.
Predictably, heated debates about the initiative are rampant: Does it force mothers to breastfeed? Is it still too formula-friendly? What do hospitals do in Australia? Don’t worry; despite having had my own encounters with the pro and con breastfeeding forces during the births of my kids at an NYC hospital, I’m not going to weigh in on the breastfeeding battle. What is interesting to me about the NYC initiative is the potential malleability of parenting norms.
Many of us know firsthand—and recent discussions on this blog, such as Jody’s last week about bringing children to work, have illustrated—that how people raise their children is usually a deeply personal issue, which is what often makes the debates so heated. Accordingly, lawmakers and public health experts have struggled with how best to impact parenting behavior. One notable success story is Sweden’s approach to corporal punishment. Corporal punishment was banned there in 1979. Few people were prosecuted; the point of the law was to signal appropriate behavior, rather than actually punish wrongdoers. The Swedish government wanted to change behavior, and it succeeded. Over the next twenty years, the number of children who had been smacked by their parents dropped from 50 to 10% and public support for parental corporal punishment also declined sharply.
Many U.S. initiatives have not had the same success, probably in large part because it is much larger and more diverse than Sweden and than most countries. And yet this NYC breastfeeding initiative already has shown some interesting results. One hospital implemented the initiative early and recently announced that its breastfeeding rate had increased from 39 to 68 per cent as a result. Of course, this is only one hospital in one city, although having delivered three kids at that hospital, I can tell you anecdotally that it has quite a diverse clientele. This number also only reflects who breastfeeds their newborns in their few days at the hospital, and the understandable fatigue of many new mothers may have made the original number lower than the number who routinely breastfed once they left the hospital. Nonetheless, it does show that small changes—no more formula swag and a little bit of information—can have significant effects on people’s behavior.
Much Ado (But Little To Do) About Obsessive Media Coverage of Criminal Suspects?
In June of 2012, my new book, Killing McVeigh: The Death Penalty and the Myth of Closure (also discussed in The Atlantic here), was released. For this research I talked at great length with 33 Oklahoma City Bombing’s victims’ family members and survivors about their feelings surrounding “closure,” their involvement in memorialization and victim advocacy, and how they were impacted by the bombers’ capital trials as well as Tim McVeigh’s execution. One of my most interesting conclusions was that McVeigh’s extraordinary media visibility (through news media, interviews, and an authorized biography) contributed to most family members’ and survivors’ perceptions that McVeigh had to be silenced through execution, and contributed to a feeling of “relief” following his execution (even those who opposed the death penalty felt relief, but they attributed this to media silence, not McVeigh’s silence).
In retrospect, this conclusion is fascinating, but perhaps not entirely surprising—unless we live under rocks, we are exposed to social media through television, radio, the internet, even others’ conversations. If the public’s perceptions of criminal suspects is shaped by media coverage, how much more so are those of victims’ families and survivors, who are especially sensitive to such details (and often either seek them out or seek to avoid them to a much greater extent than the general public). Yet when we think of what would influence victims’ family members’ and survivors’ feelings about a criminal suspect, we would think first of their criminal activities, and not media coverage. The extent of media influence upon these perceptions was striking—and of course the media coverage is what potentially continues (and continues, and continues) years after the suspect’s initial murderous act. And in a capital case. the effects of media coverage might be felt most pervasively in the years between trial/sentencing and execution. I am just beginning to interview September 11th victims’ family members and survivors, and the degree of voluntary and involuntary media exposure seems to be directly connected to the degree to which the terrorists are perceived to be a presence in their lives.
The difficult question now is determining what, if anything, can or should be done about this.
For instance, one could advocate the adoption of certain media professional standards to discourage “obsessive” coverage or a singular focus on criminal suspects. Even aside from First Amendment concerns, this poses problems. In the wake of the Aurora shootings, for example, several (including President Obama) decried the attention that James Holmes was receiving. But enunciating a standard would be extremely difficult. Would it apply to the size of the suspect’s photo, or where it would be placed in relation to a news story? Would it consist of recommendations to display other images, such as those of the deceased victims while living, or the crime scene or general location? At the same time, however, it is unappealing to rely on what amounts to standards such as “decency” or “professionalism,” which are similarly vague. Mass media itself has resisted many attempts at limiting certain types of images, which are easier cases because of their content—here, I am thinking back to 2010, to videos of a killer whale holding Sea World trainer Dawn Brancheau underwater in the killer whale tank (the trainer later died from her injuries). The trainer’s family pleaded with the media not to continue to air this footage or to make it available on the internet. So where does this leave us--stuck between the proverbial rock and a hard place?
Sanchez on Broadband Deregulation and NSA Wiretapping
Thanks to round-the-clock efforts over the last two weeks to get a piece out the door this submission season, I have leaped into the running for the least-blogging-Prawfsblawg-guest-blogger ever. Fortunately, the piece is out the door to journals as of today (into, um, the teeth of an unraveling market.)
So, to blogging… My one-time housemate Julian Sanchez has an interesting post over at Cato’s blog speculating on the back history of the NSA surveillance program. He writes:
One of the great mysteries of recent national security surveillance policy is exactly why the controversial FISA Amendments Act of 2008 was necessary . . . . [I]n early 2007 . . . then–House Minority Leader John Boehner (R-Ohio) publicly declared that a secret ruling by the (normally highly deferential) Foreign Intelligence Surveillance Court had found a problem with a National Security Agency surveillance program . . . . Most of us at the time assumed that the issue had to do with the greatly increased breadth of the surveillance NSA was trying to conduct—but flipping through the latest edition of David Kris and Douglas Wilson’s invaluable National Security Investigations and Prosecutions, I’ve just realized there’s another possibility that fits the public facts extremely well.
The possibility, he explains in a detailed post, is broadband deregulation. Interesting stuff!
Wednesday, August 15, 2012
Is Legal Realism "Giving Up" on Law?
In the comments to my prior post, I had a long and enjoyable exchange with commentator “AF.” One particular sentence that caught my attention was this: “whenever law professors say that the doctrine is entirely incoherent and that for every case there is a countercase, they are usually taking particular dicta out of context and not presenting a fair reading of the overall state of the law.”
AF’s sentiment is pretty common. I’ve had multiple law professors characterize my legal realist approach as automatically equivalent to giving up on law. Whenever a legal realist like myself argues that a doctrine is incoherent, it upsets a lot of people, because they read this to imply that everything is up for grabs and judges make decisions based either on what they ate for breakfast, or based on crass ideology a la conservative versus liberal. And since most people—especially most judges—do not think that is how many areas of law work, and especially not the relatively apolitical arena of patent law, they think that the claim is overstated. Sure, there is some openness in the doctrine that requires judgment, but experienced lawyers and judges (i.e. those with good judgment) have a pretty good sense of the right answer most of the time. Thus, not everything is up for grabs. It is not a fair reading of the law to say that everything is up for grabs.
This “response”—and I put response in scare quotes because I don’t really disagree with it—rests on a fundamental misunderstanding of the realist claim and the realist project. The legal realist claim is not, at least not to me, that conflicting doctrine means everything is up for grabs. It is that when we say that a legal doctrine requires judgment, the “judgment” incorporates some unarticulated intuitions. The point of the legal realist project was not and is not to say that these unarticulated intuitions are wrong or bad or arbitrary, it is to articulate the intuitions and then formalize them into doctrine.
Take contract law. The legal realists criticized a bunch of contract law doctrines (e.g. unconscionability, rescission, consideration) as incoherent. The point was not that lawyers could not predict how courts would decide contract cases, or that judges could do anything they liked. The point was that judges were using “judgment” to incorporate many unarticulated factors such as ordinary commercial practice, the relative sophistication of the parties, the amount of economic duress in a bargain, etc. What the realists then did was write the Uniform Commercial Code to more formally incorporate these considerations rather than leave them to judicial discretion. The point is not so much to address uncertainty (if skilled lawyers share the same judgment as judges, there is no uncertainty), but to increase transparency. In this important sense, the legal realists were optimists about doctrine and rules.
This leads to another of my pet peeves. Whenever the legal realist project has succeeded in formalizing what were previously economic and other unarticulated considerations into legal doctrinal factors, e.g. tort (Hand formula), contracts (UCC), antitrust, etc., courts treat the reformed doctrine as God-given and the legal realist contribution is promptly forgotten in an Orwellian we’ve-always-been-at-war-with-Eastasia fashion. Whenever the legal realist project has yet to succeed, courts and lawyers argue that law professors write useless articles.
Free Speech Rights in Social Media for College Students: Tatro v. U. of Minn.
I've been working on putting together a comprehensive list of social media cases with a First Amendment angle, and I recently came across the fascinating case of Tatro v. University of Minnesota, 816 N.W.2d 509 (Mn. 2012), which the Minnesota Suprem Court decided at the end of June. In case you missed reading this case in June, as I did, here's a summary.
The University of Minnesota sanctioned Tatro, a junior in its mortuary science program, by giving her a failing grade in her anatomy lab and forcing her to undergo a psychiatric evaluation because she posted “violent fantasy” (pretty tame stuff, really) and “satiric” comments about her human cadaver on Facebook. Posting or "blogging" about her cadaver violated the University’s “Anatomy Bequest Program” policies, the Mortuary Science Student Code of Professional Conduct, and the rules of her anatomy course. She appealed the University’s imposition of sanctions on her speech through a writ of certiorari. The Minnesota court of appeals affirmed the constitutionality of the sanctions, and the Minnesota Supreme Court granted further review and also affirmed, basing its decision on the unique nature of the professional program in which the student was enrolled.
The Minnesota Supreme Court treated the case as one of first impression, noting that the constitutional standard governing “a university’s imposition of disciplinary sanctions for a student’s Facebook posts that violate[ ] academic program rules” is “unsettled.” Although the court of appeals had resolved the case by applying Tinker v. Des Moines Inc. Comm. Sch., the Minnesota Supreme Court held this standard to be inappropriate because Tatro was disciplined not for the disruptiveness of her post but for its lack of “respect, discretion, and confidentiality in connection with work on human cadavers.” The Court instead determined that the appropriate standard was whether the university had “impose[d] sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.” (The Court did not cite any particular Supreme Court precedent as the basis for this standard). Applying this new standard, the Court concluded “that dignity and respect for the human cadaver constitutes an established professional conduct standard for mortuary science professionals.” Having previously noted that the asserted purpose of the University’s rules was to “educate students” about their ethical duties in the funeral service profession and “maintain the viability of the Anatomy Bequest Program,” the Court found the academic program rules to be narrowly tailored even though they completely barred (!) blogging about cadaver dissection or the anatomy lab. Tatro clearly violated these rules by giving her a “cadaver a name derived from a comedy film” and engaging in “widespread dissemination” of her comments, first through Facebook and later through the news media. Consequently, punishing her for violating them did not abridge her First Amendment rights.
This case raises some interesting issues, which I'd explore in more detail if I weren't staring down the barrel of multiple deadlines. Some obvious questions raised are as follows: Is a standard proscribing "disrespect" unconstitutionally vague? How can a complete ban be narrowly tailored? (Can't help thinking of Atul Gawande's writing in this context.) Why doesn't ordering a psychiatric evaluation for "unprofessional" speech violate the First Amendment? (The Court didn't address whether the speech constituted a "true threat.")
As a media law professor, I noted with interest that my fellow media law professor Raleigh H. Levine, from William Mitchell College of Law, was an amicus in the case for the ACLU, along with Teresa Nelson.
Public Corruption in India As the Triumph of Market Over State
Today is Indian Independence Day, an anniversary that contains memories of great promise but also terrible butchery.
I once wrote a letter to my college newspaper that compared the opinions of my high-caste family members on Muslims and the "reservations" system in India (which was affirmative action for lower-castes and religious minorities) to the complaints of white people about affirmative action - and therefore, wasn't it interesting how we were all having the same debates? Okay, I may have said it a little more like an undergraduate nearing peak activism.
This prompted a very irritated response from an Indian (Indian-Indian, not Indian-American) grad student noting (correctly) that I knew nothing about actually living in India, and by the way, the differences in India were not racial, and therefore there was no comparison to be made. Can you tell I'm still bitter the paper wouldn't print my reply?
In my last post, I made a different, but also not-crazy, comparison between the labor rights of freed slaves during Reconstruction, after the Civil War, and those of undocumented workers today. Both sets of workers exist in a space that only partially overlaps with the coverage area of society's legal protections, so their actual experience of those rights depends almost entirely on the willingness of those empowered to intercede on their behalf to do so.
Of course, this is often true for low-wage workers and people in poverty generally. The difference is one of degree, not kind. But definitionally, both undocumented workers and freedmen are (or were) a legally distinct class, with different rights than the rest of the population. Whatever spectrum of dislocation-from-rights exists, they anchor the far end of it.As viewers of Oscar-worthy cinema know well, the dislocation of slum dwellers in India - who are almost uniformly low-caste or religious minorities - is so extreme that it also includes physical separation from the infrastructure of Indian society (itself no great shakes). The dislocation of the slums is at such remove from "civil" society that the value of others interceding in affairs there is more often than not a negative one.
Indians of all classes - but slum dwellers most of all - would likely get a good chuckle from Reagan's joke about the nine most terrifying words in the English language being "I'm from the government and I'm here to help." Katherine Boo's Behind the Beautiful Forevers: Life, Death, and Hope in a Mumbai Undercity, a brilliant work of narrative non-fiction that came out of an even more brilliant ethnographic research project in a "single, unexceptional slum" of 335 huts adjacent to the Mumbai airport, is replete with examples of this terror.
I credit witnessing from an early age the epic, incomprehensible squalor of India's slums, which contain about half of the population of its largest urban areas, for my ability to always be grateful for my life in the United States. Boo's work allowed me to place some actual human beings in this frame, with more information about their lives than I ever got from the dude I once negotiated with over a cable-TV connection to my grandmother's house (ah, those summer trips to India).
From the perspectives of the slum dwellers in her book, public institutions are "bazaars," like all the others they must navigate to buy what they need to live. The people who comprise these entities, rather than serve their ostensible non-market missions like, say, the public welfare or justice, are engaged in transactions for individual material gain, like everyone else.
This leads to anecdote after anecdote of policemen fabricating evidence to raise the price of the bribe needed to drop a criminal case, doctors requesting thousands of rupees to certify that a criminal defendant is young enough to be treated as a juvenile, and teachers opening the school doors only on days when the inspector comes around to check on them. Buy a desi a drink and many such stories can pour forth.
When called on it (probably in some cases by the invisible, but not actually nonexistent, narrator), the public officials in question uniformly defended themselves by pointing out that they were just trying to earn a sufficient living for their own families. There is simply not enough to go around for them to hold their official duties above this basic requirement that the market makes of them. Lindblom refers to this as the "particular kind of contribution - a marketable one" that all adults must make, or perish.
The commenter to my last post pointed out that the Freedmen's Bureau agents were often no better. "Who watches the watchmen?" is a foundational question of governance (although I first learned the phrase from Alan Moore). The conservative answer (as I understand it) is that there should not be watchmen, or at least, as few as possible, and that will solve the issue of rights conclusively. I have a hard time envisioning how that would have worked for the freedmen, and similar difficulty in applying that principle to the people who presently dwell at (or beyond) our modern frontier of rights.
YLS Admissions Blog: Unapologetically Elitist
My friend Lisa McElroy is a Legal Research and Writing Professor at Drexel. She alerted me to this blog missive from Yale Associate Dean of Admissions Asha Rangappa, providing advice to potential transfer students:
“The other part of your application that is going to carry a significant amount of weight is your law school recommendations (we require two). We use these references to place your grades in context and also to determine what kind of student you are. A common mistake on this front is to make one of your two required recommendations from a legal writing instructor -- most students do this because they've usually had much more one-on-one interaction with their legal writing instructor than with their other professors, and so the instructor usually knows them well. There's nothing wrong with this per se, but the Admissions Committee generally likes to have at least two letters from one of your first year core subject area professors, who can speak to your ability to keep up with the subject material, contribute to class discussion, and think through difficult concepts (a third letter from your legal writing instructor is fine). Letters from professors who went to YLS -- who as you probably know are ubiquitous in the legal academy -- are often especially helpful, since they usually discuss why the applicant would fit into the academic and cultural experience here. But don't go stalking a Yale alum just for this purpose -- just pick professors from classes in which you have performed very well and you'll be on the right track.”
As Lisa writes (I'm closely paraphrasing her post on the LRW listserve) , the subtext of the advice is basically as follows: (1) LRW is not a "core subject area;" (2) LRW profs don't really teach "subject material," or at least none that is hard to keep up with; (3) LRW profs don't lead class discussions, or none that require student contributions; (4) LRW profs don't teach difficult concepts, or ask students to think them through; (5) LRW profs are "instructors," and, as such, could not have attended YLS. [Lisa went to Harvard Law, btw & fwiw!!]
Please also note that those of us who didn't go to YLS couldn't possibly understand the rigors of legal education there, and thus our letters are discounted.
[Addendum: It has been brought to my attention since I originally posted that it is unfair to single out Dean Rangappa as being "gratuitously insulting" simply for being bracingly honest about the elitism in legal academia, and I thought the point a fair one. Dean Rangappa's letter, in fact, is a way of levelling the playing field somewhat for students from non-privileged backgrounds seeking to transfer to YLS; it gives them access to valuable information about how the process really works. The reason her letter has resonated among LRW profs and others is the fact that many, if not most, law schools treat their LRW profs as second-class citizens and LRW as an unimportant subject that can be picked up by osmosis.]
Attention Lateral Appointment Committees: My New Book of Short Stories Has Just Come Out
Unlike almost every other professor I know, I've never been asked to do one of those "look see" visits at another school. And the one time that I did interview somewhere else, I was pretty much rejected about 8 seconds after leaving the building. But that is all about to change, because today is the official publication date of my new book of short stories, humor pieces, and paintings of irritated fruit, "The Adventures of Ed Tuttle, Associate Justice, and Other Stories."
The book is published by the awesome Quid Pro Books, run by the awesome Alan Childress of Tulane Law School, who was kind enough to take a chance with what is admittedly a borderline insane volume. The book contains 23 pieces, some of them kind of about law (there's a sitcom script, for example, called "Death Row," and a story called "Embedded" about a New York law firm partner who hires a journalist to live with his family and report to him on their daily doings so he can keep track of what's going on with them). The book is available in paperback and a variety of electronic formats. It's pretty cheap too. The Kindle version, for instance, is only six bucks. That's like only 42 cents a laugh. How can you beat that?
I actually think there's a Prawfy point to make related to the book. Except for two very short pieces that I wrote in the last few years (including the humor piece about what the confirmation hearing of Justice Sotomayor would have been like if it had been held before the 1978 Kansas City Royals instead of the Senate Judiciary Committee) and two stories which were written before I went to law school, I wrote all of the pieces during the six years between starting teaching and getting tenure. It was important for me in that period to have some creative outlet to keep me sane while writing a few of those 400 footnote battleship law review articles that one needs for tenure. Now that I have tenure, I feel less constrained about what I write and have been able to combine my interests in legal and creative writing in my other non-fiction books (Holy Hullabaloos and The Odd Clauses), thus making it less important to write crazy stories and humor pieces in my spare time. So I guess the Prawfy point I'm trying to make is this: if you're still a junior prof working hard to get tenure, don't be afraid to paint an angry pineapple from time to time. You're welcome.
Tuesday, August 14, 2012
Memorial Service for Ann Scales
As many of you already know, on June 24th, our wonderful colleague Professor Ann Scales passed away after a tragic accident in her home. The Sturm College of Law decided to wait until our full student body returned to Denver for the fall semester to hold a memorial service and reception in Professor Scales's honor.
The event will take place on Friday, September 21, from 3pm to 6pm in the law school's Forum. It is open to anyone who would like to attend. We only ask that, if you expect to attend, please register here so that we are able to plan the event appropriately.
We look forward to celebrating the life and work of our friend and colleague with you in September.
One of the fundamental doctrines of patent law is that the patent must contain sufficient technical detail so that someone reading the patent can practice the invention. This is known as the “enablement” requirement. But there is pervasive conceptual confusion about what the “invention” means for this purpose.
Say that I invent a supersonic airplane. What do I have to teach? If the point is that I have to describe one particular supersonic airplane, then most patentees describe one such embodiment, and meeting the requirement is easy. But if the point is that I must teach every supersonic airplane, then it is impossible to meet this standard, because it is impossible to teach an airplane that flies at the speed of infinity.
A case out of the Federal Circuit today provides a great example. In Magsil Corp. v. Hitachi Global Storage, the patentee claimed to have invented an electrical insulator used in hard drives with a change in resistance of “at least 10%.” The Federal Circuit struck this patent down, saying that the patentee had not taught how to make a insulator with an infinite change of resistance. Applying this logic, an inventor who invents a faster-than-light spaceship could not claim a faster-than-light spaceship, because he cannot teach every spaceship that flies at all speeds up to infinity (faster than light is still not infinity).
The Federal Circuit comes back and says that the patentee brought this problem on himself, because he should include both a lower and upper bound for the resistance (i.e. “at least 10% and not more than 12%”). But it is important to realize that an accused infringer in litigation has an unlimited number features to pick bones with. By default, patent law sets the upper bound for everything at infinity unless it is expressly disclaimed. By the Magsil logic, every patentee must specify the upper and lower bound for the shades of paint color, the upper and lower bound for the number of screws, and then the upper and lower bound for the size of each individual screw, etc. Nobody does this, so taking Magsil seriously would invalidate every patent in existence.
What this shows is that the Federal Circuit oscillates between conceptualizing the invention as an embodiment and as an idea. If the enablement doctrine is conceptualized as requiring only one embodiment of what is claimed--a supersonic airplane or an insulator with at least 10% change of resistance--then the requirement is meetable and is usually met. If the enablement requirement is conceptualized to require teaching every embodiment of what is claimed--every supersonic airplane or every insulator with at least 10% change of resistence--then it is impossible to meet. And what happens in reality is that the courts subtly oscillate between the two conceptions, to strike down patents they don't like and uphold the ones they do, all sub rosa.
Stephen Glass and the "Family Background" Defense
In preparing (or procrastinating?) to teach professional responsibility this fall after a hiatus, I have become fascinated by the litigation over Stephen Glass' application for admission to the California bar. For those who don't remember, Stephen Glass was the New Republic writer who fabricated over 40 articles in the late 1990's, perpetuating what has been deemed "one of the greatest journalistic frauds in history." He wrote some of them while enrolled at Georgetown Law School. When he was fired after his lies were finally uncovered, Stephen first sought admission to the New York bar, but withdrew after learning that his application would be denied on moral character grounds. His application to California was denied by the state bar, but Glass appealed and his application was twice approved by bar review board judges. The California Supreme Court accepted review of the bar's appeal this year, making it the first attorney discipline case the state's high court will review in over a decade.
Lawyers and ethics experts are divided on whether or not Stephen Glass should be admitted to practice. (See here for an article citing Deborah Rhode as in favor and Steven Gillers as in in opposition). Those supporting his application point to the fact that he has undergone therapy to understand his behavior; that he has apologized to many of those he wronged; and that he should not be penalized forever for mistakes he made when he was in his early 20's. Those opposing his application point to the magnitude of his deception (he invented reporter's notes, fake voicemails and faxes, and even enlisted his brother to act as a phony "source" to cover his tracks); the self-avowedly "mean-spirited" nature of his lies (several of which played on racial stereotypes of African Americans, including Vernon Jordan, as lazy and lecherous); the fact that he only sent apology letters years after his lies were uncovered, and sent them on the eve of his publication of an autobiographical novel for which he earned $190,000; his failure to return or donate any of the profits from his fraud; and the fact that he only fully disclosed the scope of his false articles when applying to the California bar in 2007, having not done so when applying to the New York bar in 2002, nor when the publications for which he had worked sought his assistance in correcting the falsehoods in 1998.
The relative lengths of the two lists above probably reveals my bias, but I am firmly against Stephen Glass' admission. I think his actions as a journalist, compounded by his self-interested and seemingly remorseless actions in the almost fifteen years since that time, make him ill suited to the trust people place, or should be able to place, in their lawyers. I don't normally take these things personally but, as a member of the California bar myself, I would be very uncomfortable to be in the same category as Glass.
The thing that most disturbs me about the Glass case, however, is that he explains--or tries to excuse?--his actions as the product of his parents' strictness and extreme pressure for him to succeed and (oh, horrors!) attend medical school. The judge overturning the bar's denial of Glass' application gives tremendous credence to these tales of woe, citing his parents' hiring of a tutor to help Stephen learn rope climbing and their meticulously organized refrigerator as leading to lasting damage. As Judge Honn wrote: "[Glass] grew up with deep feelings of inadequacy and low self-esteem, despite having an impressive academic record. . .The criticism hit him particularly hard. He had trouble sleeping and felt he could never achieve success in his parent's eyes without going to medical school. . .[To get around this problem,] he decided to create articles with 'electricity' and excitement that even his parents would appreciate."
What's amazing to me about this is not only the fact that many people have parents who pressure them or are strict, and do not engage in massive and mean-spirited public lies for personal gain. It is also that the majority of juveniles--and I mean real juveniles, not recent college graduates--adjudicated delinquent or convicted of crimes have grown up with serious family and socioeconomic deprivations. For instance, abused and neglected children are 1.5 to 6 times as likely to be delinquent and 1.25 to 3 times as likely to be arrested as an adult; over 30% of young people involved in the juvenile justice have a learning disability; and the vast majority are from poor families and poor neighborhoods. And, because poverty is highly correlated with race in America, there are tremendous racial disparities as well. (See the CDF website for statistics, and Robert Schwartz's article on juvenile justice and poverty at 16 Geo. J Law & Pov 471 (2009). Check out also Tamar Birckhead's great recent blog post about the disparities among poor kids and more affluent kids in the same communities here). And yet prosecutors, judges and we as a society, are routinely unwilling to forgive them their mistakes based upon a "family background" or environmental defense. Instead, the U.S. continues to have one of the most punitive juvenile justice systems in the world.
The only conclusion I can draw from this contrast is that most people are only willing to accept an excuse that they can understand. The largely middle class and white bar and bench can relate to strict or overbearing parents, but cannot fathom the deprivation and perils with which too many children grow up today.
Monday, August 13, 2012
Justice Scalia Tops Oral Argument Yuks Ranking Once Again
Hello there. It's great to be back here blawgging on Prawfsblawg again. During my stay I hope to blog about my new book of short stories and humor pieces that comes out this week as well as a new book project that looks at instances from around the world where religious practices happen to interfere with environmental goals. But first, since it's the only thing I've ever done that anyone remembers, I thought I'd revisit my old Supreme Court oral argument humor study and update the figures for this past term.
As always, I looked through the oral argument transcripts and counted the number of times each justice said something funny enough to make the court reporter enter the phrase "[laughter]" in the transcript. Following my typical methodology, I did this in a half-assed fashion while learning to play "Take Me Out to the Ballgame" on the ukulele. Also, you should know that tallying up the totals is in many ways a subjective endeavor. For instance, at first, I refused to give Justices Kagan and Roberts any credit for the laughs they both got while seemingly tripping over each other at the beginning of Walter Dellinger's oral argument in the Hosanna-Tabor case, but then, after realizing that counting Justice Kagan's laugh lines would result in her eclipsing Justice Kennedy to become the fourth funniest justice, I decided to include them, because I like Justice Kagan more than Justice Kennedy. As you can tell, this shit is art, not science, folks.
Anyway, once again Justice Scalia topped the list of funniest justices, bowling over the audiences with such classic laugh lines as "it must be unconstitutional if it's scary" (US v. Jones), "we don't like that" (Mims), "I don't really care" (Caraco), "you don't want to say that," (Filarsky), "you really want us to go through these 2,700 pages?" (Sebelius), "I'd like to get out of the work to tell you the truth," (National Meat), "that is absolutely weird," (Elgin), and "so, absent legislative history, I guess we have to rely on the words of the statute, right?" (Taniguchi). Altogether, Justice Scalia got 83 laughs, blowing away Justice Breyer, who came in second at 56 laughs. Justice Roberts was third with 30 laughs. The rest, in order, were J. Kagan (15), J. Kennedy (14), J. Alito (7), J. Sotomayor (6), Justice Ginsburg (2), and Justice Thomas (0). Notably, perhaps, Justice Scalia got 14 laughs during the health care oral arguments alone (Roberts only got one).
As for the funniest joke of the year, I would give that award to Justice Breyer. In Kawashima v. Holder, the justices were trying to sort out whether tax evasion can ever occur without deceit (you know, or something like that) when Justice Breyer posed this hypothetical to the government lawyer: "Well suppose somebody goes--he goes to a country where we have no extradition treaty, takes all his assets and writes a postcard to the IRS every--once a month saying ha-ha-ha." I could see a cool indie black and white film premiering at the Toronto Film Festival starring Steve Buscemi just based on that one flitting Breyer thought alone.
A Not-Crazy Comparison Between Freedmen and Illegal Immigrants
By "not-crazy," I mean not what this guy is saying. Last week, I promised to link my interest in the postbellum origins of our anti-discrimination laws to the enforcement of those laws, and other workplace rights, in our modern economy.
To recap, it was to protect the freed slaves' right to freely contract that Congress passed the nation's first Civil Rights Act, less than a year after the end of the Civil War, and hard on the heels of the ratification of the Thirteenth Amendment, which stamped out slavery and involuntary servitude everywhere the US Constitution reached, except for prison. The forebears of modern conservatism who lived in that era argued that law could rightfully only be used to proscribe the infringement of individual liberties, not to prescribe any particular condition like freedom.
But for the Northerners charged with keeping order in the South, like the Freedmen's Bureau agents, military men all, whose responsibility was nothing less than the well-being of the newly-freed slaves, it seemed plainly insufficient liberty for freedmen to simply be told that they could not be enslaved again.
There are many striking illustrations of this dynamic in the fantastic primary-source archive Freedom, A Documentary History of Emancipation. One is a military order issued sixteen days after Lee's surrender, and eleven days after the assassination of Abraham Lincoln, by the Union commander of Charleston, South Carolina (location of Fort Sumter, and well-ravaged by the war). The first thing ordered is that all slaves are free and "henceforth they must depend upon their own exertions for their support." The second thing ordered is that "equitable contracts in writing will be made" for their work.
If they were to survive and eke out a living on their own, the Freedmen needed the Bureau that was named for them to intervene when they could not get a fair shake from their former owners. They enjoyed only partial access to full equality of contract rights, depending entirely on the willingness of local whites (some of whom had recently owned them) to recognize this new legal status, or the resolve and ability of the nearest Bureau agent to convince them otherwise when they did not.
Today, all labor markets (including our own) still contain a sizeable number of informal, illegal, or otherwise illegitimate workers, to whom the same workplace protections as everyone else ostensibly apply, but whose actual, lived experiences of these protections depend greatly on the priorities of those with the ability to intercede on their behalf.
The workers' centers of today are the heirs of the Freedman's Bureau, providing the same types of interventions where they can for undocumented workers. We are vehemently divided about the value of doing such work on behalf of undocumented workers in much the same way that Americans were over the Bureau, in its time.
It has ever been thus where land, labor, race, and law intersect with migration. In my next post, I will briefly stop picking on this country, to instead provide an illustration from my parents' birthplace, India, where you only need to substitute "caste" and "religion" for race to watch similar dynamics in play, in far more stark terms.
Two Types of Patentability Arguments
In debates about patentable subject matter, we tend to see two types of arguments that something should not be patentable. The first type is an argument directed to the embodiment. For example, many people object to patents on human clones. The objection here is categorical, and it is directed to the physical thing that the patentee has created. The critics would not be happy if the patent was narrower—if the patent covered only some human clones, or if it covered only the single human clone that the patentee actually made. This is the type of objection that people have in mind when they describe patentable subject matter doctrine as being about a machete that takes broad swaths of inventions out of patent law.
But frequently, the objection in actual patentable subject matter cases is different: it is to the degree of scope being asserted, and not to the physical embodiment that has been created. Take the classic patentable subject matter case, O’Reilly v. Morse, dealing with Samuel Morse’s patent on the telegraph. Samuel Morse claimed a patent covering all devices that used electricity to communicate text. The Supreme Court held this was unpatentable because it effectively encompassed the “natural law” of electricity. What subsequent generations take from this is that there is some “categorical” exclusion of natural laws from patentable subject matter. This is an incredibly unhelpful way to understand the Morse case (not least because the Supreme Court later upheld Alexander Graham Bell’s claim to using electricity to communicate voice).
A far better way is to understand Morse is to first differentiate between the embodiment he created and the scope that he claimed. Nobody objects to a patent on Morse's embodiment—an actual telegraph machine with nuts and bolts configured in a particular way. And no patentee ever files a patent without an embodiment, as in writing only "I just thought that using electricity to communicate is a good idea, though I have no real-world machine to do it." What Morse did is abstractly describe his embodiment in his claim, because such abstraction results in greater monopoly scope. The objection that follows is that the claimed degree of scope creates more monopoly costs than the incentive benefits of the patent.
The key point is that the conceptual foundation of the argument is entirely different from the objection about human clones. An economic argument about the proper degree of patent scope—how much of a patent should Samuel Morse receive—is different from an argument about whether any patent should be granted at all due to the nature of the underlying embodiment (which tends to be moralistic). Current patentable subject matter jurisprudence reflects a pervasive conceptual conflation of these two types of argument. The "natural law" doctrine is cited both as an objection to Morse's patent on the telegraph and to a patent on human clones, but in fact they reflect entirely different underlying policy arguments that implicate different policy considerations.
For those who are interested, I discuss this topic in more detail in this article.
Sunday, August 12, 2012
Getting to Know You...
One of the things that I always look forward the most is getting to know my new students. By "getting to know," I am not referring to the experience of mispronouncing their names on the first day, cold-calling on them, or even running into them at the grocery store in my Saturday-least-best attire, when I am making a beer run as a break from some late-summer painting project. I mean learning the reasons why my students went to law school, what they did before, what they hope to do after, why they took my class (ok, for torts, that's an easy one), and what they like to do in their spare time. But in a larger first-year course, that can be pretty challenging.
The last time I taught Torts, I came up with a (voluntary) "Torts and Tortes" plan where interested students could sign up in groups of six to have dinner with me at a local restaurant. That proved to be a lot of fun. But this fall, I'm stuck. I can't easily implement Torts and Tortes again, because my 10-month-old has food allergies and so I have to modify my diet accordingly. So I have thought up a new plan to implement--a "book club" of sorts where interested students can read a book or two over the course of the semester and get together at a local watering hole to discuss them.
For Law and Medicine, my selections are (I think) The Immortal Life of Henrietta Lacks and, for fiction, Kazuo Ishiguro's Never Let Me Go (though I am torn between that and My Sister's Keeper). But I can't seem to think of a second book for Torts. So far I've selected Ken Feinberg's What is Life Worth, about the 9-11 compensation fund. I can't seem to decide on a second book. I'm not thrilled about obvious picks like A Civil Action or The Buffalo Creek Disaster. Most of the other titles that spring to mind are criminal law-oriented. Any suggestions?
Last month Errol Morris, the filmmaker and high-quality American responsible for both Vernon, Florida, and the Miller "High Life" ad campaign, conducted an experiment about the human response to authority. With the help of an expert statistician, he established to a greater than 99% certainty that, among Web readers of the New York Times, there is a correlation between
(1) the credibility granted to a proposition; and
(2) the font in which it is printed.
(Baskerville beats Comic Sans, of course, but it also beats stately Garamond and Times New Roman by a significant margin.)
Superficialities matter -- typefaces, cover letters, hairstyles, likeability. For those of us (law students) entering a profession of persuasion, this is distressing. We would like to believe that as adults our credulity is triggered only by reliable markers of truth, and that superficialities make no difference to our judgment. This may in fact (for all science has proven) be mostly true of well-trained attorneys and judges.
But the legal profession ignores the untrained mind (and the superficial part of the trained mind) at its peril. When the outcome of a case hinges on a factual dispute, an untrained mind -- the juror's -- decides the result. (In addition, yet more distressingly, the mind deciding where your article will be published is no more than two-thirds trained.)
The job of rhetoric is to coopt the habits of the untrained mind, or else to train it.
The fact that superficialities matter is not news to those of us with significant experience in education. The teacher must know his or her audience, and know which superficialities will best trigger its energy and curiosity. Indeed, in teaching nothing is more important than knowing one's audience -- except, perhaps, knowing exactly how one would like to change it.
The same is true of persuasion. And yet almost none of the law-school curriculum focuses on the thought processes of "finders of fact," and the features of a plan to guide those processes. (We at the journal have received a thrilling article on this topic, the argument of which I hope to share with you with the author's permission.)
To remedy the law professoriate's general blind spot toward juries (and toward the superficial part of every decision-maker's mind), I am spending a good bit of my time in law school developing trial "lesson plans." This piece of my training goes on in the context of the Cleveland-Marshall trial-advocacy team. In the classroom and the library, we focus on what persuades judges; in the school's state-of-the-art mock trial courtroom, my teammates and I focus on what persuades juries. This includes superficialities.
Because jurors, like students, have their credulity triggered in certain ways, an attorney must have a plan tailored to its audience. Specifically: to maximize the chance of a favorable jury verdict, trial advocates must strike a balance between two strategies. In some areas, a trial strategy should conform to the layperson's learned habits of decision-making; in others, it must help each juror unlearn those habits.
Unlearning is very, very hard to create -- as is shown, for example, by my experience so far blogging this month. I presented myself last week with no authority except that of a Submissions Editor, put forth novel and entangled propositions, and scrambled basic constitutional facts (amendment numbers). As teachers of clear thinking (which is also to say, clear writing), the blawg's readers came down on me -- that familiar thing, a confused and arrogant law student -- like a ton of bricks.
In case you're just joining us, one of my initial posts stirred up a good bit of discussion with two naive propositions: (1) the Constitution sets a framework for targeted drone strikes against probable terrorists; and, further, (2) the Fifth Amendment requires the involvement of a jury in the deployment of Hellfire missiles against single identified individuals. Unsupported though the first proposition is, the second seems compelling to me for a number of philosophical and policy reasons.
One commenter pointed out disapprovingly that in extending the Fifth Amendment to (terrorist) conspirators outside US borders, I was merely "playing with levels of generality." This is true. But in itself that doesn't make the approach illegitimate. In fact, as I and another commenter pointed out, monkeying with levels of generality has a pretty distinguished pedigree. As Justice Scalia put it in 1987 (in a passage brought to my attention in a superb article by Prof. Banner), choosing a level of generality is unavoidable, even though it is "essentially a policy judgment, and there is no scientific or analytic demonstration of the right answer." United States v. Stanley, 483 U.S. 669, 681 (discussing "the varying levels of generality at which one may apply 'special factors' analysis" under the Feres doctrine).
More significantly, however, altering the level of generality is a crucial trial strategy. It is a skill we should learn in law school (and one I failed to apply properly in my post).
In their trial manual Reptile, David Ball and Don Keenan give the example of an unsympathetic med-mal plaintiff who had been harmed in a freak accident involving an overheating surgical implement. The device had never overheated before in hundreds of thousands of uses -- but it was susceptible to overheating, according to an internal memo, and the fix would have been virtually free. The lawyer's technique, atypically, was not to focus on the particular plaintiff, but to generalize and talk about the type of mistake that had occurred. A costless fix not undertaken despite a clear warning: what would be the result if every entity made choices like that? By making the case more general than its own facts, the plaintiff's attorney gave the jury an altered framework that made possible a large recovery for the plaintiff.
The opposite technique is necessary in the criminal-defense context -- when the state seeks to harm people for what are, generally speaking, good reasons. With the procedural requirement of a jury, the Constitution refuses to allow generality to govern such decisions. The court is not allowed to ask, "What if we let all indicted people go?" but rather "Do you, the jury, twelve particular untrained people, see this defendant as guilty beyond a reasonable doubt?" It's the judge's job to remove judicial generalizing ("I've seen cases like this dozens of times") from the equation, and it's the defense attorney's job to insist on particularity, and help the jury unlearn its own generalizing instincts.
Can or should this principle of particularized judgment be, in turn, generalized to those targeted overseas as terrorists? I think the question is worth asking, but there are many thresholds barring the path of asking it effectively.
To raise this question properly, I should have sought a way to help my audience -- law professors -- unlearn the standard habits of generalization that govern these two key discourses: constitutional law and anti-terrorism policy. Without particularity as a premise, there is no individual with rights at the heart of the question. Since I failed to change the framework, my textual argument stood no chance. It was ignored, as it deserved, because I had not done the rhetorical work of tailoring it to its audience.
I want to emphasize, however, that this is now becoming very slippery idea, this concept of 'deserving' more attention. Does a writer who chooses what he or she knows to be a more authoritative font 'deserve' more credibility? What about an attorney who chooses a particularly fetching tie or outfit, or a Southern drawl, or a friendly tone of voice? What if all these questions were focus-grouped and the right answers expensively discerned? Would the optimally packaged attorney deserve the credibility he was assigned?
Surely these are superficial matters -- but we are kidding ourselves if we think judgment is blind to them. The evidence to the contrary is all around us, sometimes statistical and sometimes not. In a profession centered on contestation between reasonable people, no single definition of "desert" can possibly be correct; so in law school I am trying to develop facility with all of them.
Sporting performance, then and now
I’m joining this discussion too late, but in light of the gold medal game, there has been some discussion Kobe’s boast that this years U.S. Olympic basketball team would have been able to beat the 1992 Dream Team. Most commentators find the claim ludicrous, and I must admit that, overall, even I am still pretty skeptical of it.
But I want to make the point that it is not as ludicrous as it might first seem. To be sure, the Dream Team had 11 hall of famers, and it featured some of the legendary players of basketball. But how much do legends count with the progress of time?
Unfortunately, basketball doesn’t have absolute metrics by which we can measure competition across time. So I chose swimming instead, where we do have an absolute metric in the finishing time. In particular, I chose the men’s 4x100m medley relay, on the theory that it is a team event with each member serving a slightly different role. So how does the 2012 U.S. medley relay team compare to the 1992 U.S. medley relay team?
Well, the 1992 U.S. medley relay team won the gold medal and set a world record in a time of 3:36.93. It is fair to say that they were the dominant team of the time, though not quite at Dream Team levels. But the 2012 U.S. medley relay team easily beat them, with a time 3:29.35. The progression of two decades means that the absolute tip top of 1992—the world record of the time—falls far behind the gold medal performance today.
One might reply that the comparison is not quite fair, given that the 2012 U.S. medley relay team has its own legend in Michael Phelps. But, to give one an idea of how much two decades means, consider that the qualifying time in the medley relay this year was 3:34.46. The world-record setting, gold-medal winning 1992 U.S. medley relay team would not even have qualified for the 2012 relay final, let alone beaten the 2012 U.S. team. They would have lost to lowly Italy and barely beat Brazil. Viewed in this light, Kobe’s boast doesn’t seem nearly as ridiculous at it seemed at first blush.
Saturday, August 11, 2012
McCormick on SLU and law teaching
Marcia McCormick (SLU) at Workplace Prof Blog offers some thoughts on the dean mess at SLU and what it says about broader issues of legal education and the role and responibilities of law factulty.
Friday, August 10, 2012
The Angsting Thread (Law Review Edition, Autumn 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.
Update: Here is a link to the last page of comments.
OUP Journals No Longer Available on Westlaw?
Daniel Sokol reports that Oxford University Press has pulled its journals from the Westlaw database, leaving them available primarily on Lexis-Nexis. I'm sorry to hear that. Apart from the citation count issue Daniel raises, I'm saddened because too few American legal scholars read work from non-US legal journals, and high-end subject matter journals, as it is. For those of us who stick mostly with WL, this is sad news and we'll have to try to route around. A good reminder that research is only as good as the database you use and that relying only on a single database for research can be problematic.
Women's Sports and the Olympics
A few of thoughts and questions on a good morning to talk about women's sports and Title IX, in the wake of 1) yesterday's gold medal win by the U.S. women's soccer team before 80,000 at Wembley Stadium (and millions more live on some medium--are you listening NBC) and 2) the Second Circuit's decision earlier this week holding that Quinnipiac University violated Title IX by trying to eliminate the women's volleyball team.
First, there has been talk in the last few days about US women earning more medals, and more golds, than their male counterparts. Yesterday's wins in soccer and water polo add to that, as might a gold in today's women's volleyball final (the men were eliminated in the quarters).
Second, here is a nice essay by Slate/NPR's Stefan Fatsis about the women's soccer match and its "meaning," arguing that it actually has no deeper meaning other than that a bunch of women's teams played an exciting tournament that in every way (from playing hard to bitching about the refs) resembled a men's tournament, was watched by a lot of people, and can be evaluated on its own terms. He does consider briefly what the large audience for Olympic soccer tells us about the sustainability of a professional women's league (a point I addressed here). I do like his broader point--that women's sports is, slowly, becoming less of a cause and a simply a matter of good competition.Third, the Second Circuit decision received some attention because Quinnipiac had sought to make up the lost volleyball spaces by creating a competitive cheerleading team; this required the court to consider whether cheerleading is a sport, concluding it was not (although not for the reasons I would offer--it had to do with how well-established and well-organized something was as a competitive event, meaning cheer could become a sport some day).
A question: Would a more purposivist take on Title IX uniformly favor opportunities in volleyball or soccer over opportunities in cheer, given the statute's goal of creating new opportunities for women in sports? Cheerleading predates Title IX by many years, obviously, and it seems to me it would undermine the statute if schools could satisfy their statutory obligations by increasing the number of opportunities for women/girls to do what they have been doing all along rather than providing genuinely new athletic opportunities.
Thursday, August 09, 2012
Take the children and run?
A recent attorney discipline decision from the Indiana Supreme Court brings together two issues of great interest to me--legal ethics and family law. (Thanks to the legal profession blog for bringing this to my attention). The Court suspended the attorney, without automatic reinstatement, for numerous violations.
The opinion's facts are as bizarre as they are disturbing. The attorney represented a father in a divorce proceeding. Her client told her that his 8 year old daughter had told a state worker that her mother's boyfriend touched her inappropriately, but the girl had later said she invented the story because she wanted to live with her father. From this alone, the attorney concluded that "the children were in grave danger," drove to their school and badgered the secretary there to release the 8 year old and her brother to her. She then drove the children around for several hours, asking them about the mother's boyfriend. Neither child revealed any abuse. She did telephone the children's babysitter to tell them she had the children, but would not reveal her whereabouts. Meanwhile, the mother was "terrified." The story then verges further into the ridiculous and scary, with the attorney driving the children around to find a birthday party to which they had been invited, but losing cell phone service and almost running out of gas. Six hours after she had wrongfully picked them up from school, the attorney finally dropped the children off at their mother's house.
This case demonstrates a few things. One is that there are a lot of disturbed attorneys out there, willing to use questionable tactics. Perhaps this is more true in family law than in other fields, as some of us debated earlier this week under the post A Family Law Fraternity. Even more, it demonstrates how entitled many people feel to intervene when they catch the slightest hint of child abuse. As a parent, and a former attorney representing children in family court proceedings, I, like most people, think child abuse is a terrible thing. It is all too prevalent and we, as a society, should play a bigger role in helping to prevent and address it. Nonetheless, that does not give anyone carte blanche to wrongfully take children or question them--particularly since questioning by strangers with no expertise may only traumatize children who have actually been victimized. The attorney here is, sadly, all too typical in thinking that "she was serving a higher purpose of protecting" children. If she really wanted to help--which is not at all clear to me from these facts--she had many other options available to her, including calling in a report of abuse or discussing the issue further with her client, the father (who seems not even to have really suspected abuse).
Although the U.S. Supreme Court recently addressed this issue, in Camreta v. Greene, it avoided deciding on the merits of the case, instead ruling that the case was moot. (There, a 9 year old girl was taken from her classroom to be interviewed for several hours by a police officer and a caseworker because of vague allegations of sexual abuse by her father. The questioners had no warrant, nor did they rely on the "imminent risk" exception to the 4th Amendment, instead waiting for 3 days after hearing of the allegations to question the child). Hopefully, however, the problematic practices in that case remind us that, even where a more reasonable suspicion of abuse is raised, there are procedures that should be followed--whether by law enforcement, child protective services, or private citizens. The procedures exist not only to protect parents' constitutional rights, but also to protect children's wellbeing. (The child in Camreta, for instance, vomited after her intensive interrogation). As Chris Gottlieb argued in her oped about the Camreta case: "[T]he potential threat [of abuse], as horrible as it is, can be effectively addressed without eliminating important rights that belong to children as much as they do to parents."
(Quasi-)Achievements by Declination or Proximity...
It's roughly FAR time now, and I'm up in beloved cottage country in Canada, stealing a few moments while the boys are napping and the wife's away. So, a quick question for prawfs that was raised by some folks as they head out on to the rookie and lateral market: which, if any, *declined* honors or awards or invitations or opportunities do you think one should list on the academic cv? Relatedly, what do you think about near-misses?
I had a recollection, which I recently confirmed, that the cv belonging to one of our connoisseurs of prestige, separately twice listed honors that were declined by him. I've also seen numerous other people list "near-misses" such as Rhodes Scholar finalist. I am curious to hear to what extent those on hiring/tenure committees would welcome such information. (I am also interested to learn what the views of others are too, including those deliberating whether to include such information).
My own sense is that since the CV is used by committees to do a lot of screening, some information about this stuff would be helpful. For example, if a person was a single mom/dad but had twenty faculty workshop invitations that s/he declined because of caregiving responsibilities, I suspect that would be useful information to know--at least insofar as such workshop invitations are a signal (perhaps a noisy one) of prominence in the field. As for those who are aspiring prawfs, they typically have slim academic cv's and it might be useful to know about the verifiable close-calls or opportunities they have had to turn down in the past as they try to get to where they are.
I reckon lots of people will disagree and view this as largely further evidence of the decline of manners in our ceaselessly debased civilization. [Others clearly believe that including near-misses or opportunities declined dilutes the brand of the achievements that are on there already.] Not sure if this would mollify both sides, but perhaps there should be an appendix/codicil to CV's where one agglomerates these unaccepted honors and invitations or near-misses, and then those who care about them can pay them heed and those who don't care about them just disregard them, with some sympathy to their inclusion based on the always available (though perhaps untrue) reason that his/her mentor (or Dean) must have suggested that's a good idea! Poor thing.
What is tenure?
As reported here, the Sixth Circuit recently held that a tenured professor at Thomas Cooley Law Schooldid not have permanent employment or a right to continuous employment, where the contract was only for a one-year term and did not provide for, or define, tenure. The court also read the ABA standards, which were incorporated into the contract, as exemplary and hortatory, and not as formal contractual definitions of tenure as lifetime employment in this contract. The court also held that a faculty review process held three years after the termination decision was sufficient process under the contract.
I always have considered myself to be on a one-year contract that is automatically renewable, except for cause and with certain contractual process rights, which seems to be what the Sixth Circuit is saying here. Do others define tenure differently? Is this decision unique to the contract at issue and to Michigan law? Is this case really not about tenure per se (despite the tenor of the NLJ report) but about a conclusion as to what cause and process is sufficient for a school to fire a tenured professor?
Update: Jeff Hisrch comments at Workplace Prof Blog, calling the court's disregard for the ordinary meaning of tenure "troublesome" as a matter of ordinary contract law, doubting that anyone at Cooley believed or inteended that faculty could be fired at will at the end of an academic year. Jeff believes this is partly a product of the contracts at issue and most contracts specifically define tenure (or will going forward). One of my initial thoughts, confirmed by Jeff's post, is that under the Sixth Circuit's view, a tenured professor has less job security year-to-year than a professor on a long-term contract.
"Time for Action" and some backlash
At the law school scam site, Deborah Jones Merritt has a post proposing that "students form official organizations at their law schools with the mission of 'promoting financial responsibility in legal education.'" The student groups, she suggests, could request more information from law schools about financials, network with alumni, advocate to bar officials, and so on.
This seems like a perfectly sensible idea to me. For instance, I have urged my own school to do better on transparency issues, and I hope and trust that it will, but I'm only one voice (although for all I know other colleagues here have also urged the same thing), and such requests might be more easily sustained and repeated through a student group.
I will note three points, however. The first is that some of the things Merritt suggests these groups should do are nicely geared toward individual schools and local legal employment markets, while others are really about national advocacy and lobbying. In terms of structure, she (or, more to the point, the students involved) will want to think about coordinating on a larger level and not just doing it piecemeal at each school, at least if they're serious about the national advocacy part of the proposal.
Second, it's worth noting that her post has already occasioned many negative comments and the usual infighting. Hey, it's the Internet. But I assume there are many other students out there who are concerned about financial and other issues involving law schools but who are neither as fatalistic as some of the commenters on that site nor as apocalyptic (along "no, what we need is to remake capitalism" lines) as other commenters there. The constituency of students concerned about these issues is larger than just the commenters on scamblogs.
Third, some commenters complain that this is really a job for professors, not students. That's a perfectly fair point. They should not assume that no professors are doing anything, or that if something's not happening on the Internet it's not happening. But I don't see the formation of student groups along these lines precluding professorial involvement in the same issues; to the contrary, one might help spur the other.
As I did last year, I will note for those students, lawyers, or blog denizens who favor more dramatic action and who have urged protests or demonstrations that the AALS has its annual convention in early January in New Orleans. I have never been terribly personally interested in public protests, marches, and so on, and I doubt that will change. But many professors are, and this would be the best possible time and place for such a demonstration. I'm neither encouraging nor discouraging it. But the AALS is still nearly five months away, and if there is any actual commitment to this kind of action, there's really no sufficiently good reason why it can't take place.
Law Schools and Little Ones...
Sticking with the same theme of my last post--how tenure-track professors try to juggle family and career to "have it all"--how comfortable do we feel bringing our children into our office with us? (Not just a posed picture, but the actual child, that same force of nature that can make loud noise, cause mayhem, and clamber onto colleagues.)
Do we often bring babies to (or see babies in) our offices? Classes? Faculty meetings? Does it depend on the time of year? On the child him or herself? Do we make these arrangements part of our child care routines, or do they tend to result from the inevitable child care fiascos? What are customary colleague reactions? How do our decisions change the culture of our law schools?
Wednesday, August 08, 2012
The Blocking Patent Conundrum
One of the most difficult concepts to teach students in patent law is the idea of the blocking patent. Contrary to common intuition, a patent does not confer a right to use the embodiment that you have patented. It confers only a right to exclude others from using the idea that you claim.
This becomes somewhat more intuitive if we consider a patent on a wheel and on a car. Quite intuitively, we would think that both a wheel and a car should be patentable; but obviously to build a car one needs a set of wheels. Thus, the first inventor of the wheel and of the car each get their own patent. A car manufacturer such as GM needs to pay royalties to both patent holders.
All of that works if everything goes according to plan. Of course, lawyers exist because nothing ever goes according to plan in real life. One of the trickest—and surprisingly unresolved—dilemmas in patent law is this: is a pioneer patent holder entitled to the patent profits of the subsequent improver? In other words, in order for the inventor of the car to come up with his invention, he probably needs to experiment with a set of wheels (or he could never come up with a working car). Can the holder of the patent on the wheel sue the inventor of the car, and seek compensatory remedies in the form of title to the patent over the car?
This question is unresolved in patent law. If the answer is yes, then it basically destroys the idea of blocking patents and patents for improvements, because the inventor of the wheel then gains all subsequent developments including the car. If the answer is no, one has difficulty finding a coherent theory of why not, given our normal theories of consequential damages.
As an aside, this is a pressing issue in the Monsanto case. Apparently, the defendant’s product in that case had not even been sold yet. Monsanto’s theory in that case is that the defendant’s research use of the Monsanto invention—in order to develop the defendant’s own variant—was an infringement that entitled Monsanto to damages. In other words, Monsanto invented the wheel, and the defendant was researching a car.
Adoptions Open and Closed
Last Sunday's Modern Love column in the New York Times was a moving account of an adoptive family's decision to maintain contact with their daughter's birth family in Guatemala. "Open" adoptions, where such post-adoption contact is encouraged or required, have become the norm in private domestic adoptions in recent decades. Yet international adoptions, and adoptions out of the foster care system in the U.S., continue to rely on the traditional "closed" adoption framework, wherein one family replaces or eradicates another.
This practice continues despite the data showing that open adoptions are healthier--psychologically and physically--for the children, adoptive families and biological families. It also ignores the reality that most children adopted out of the foster care system are not infants, and have strong ties to their biological parents and families.
So why does this paradigm persist? In the child welfare context, at least, I think the main motivation is a static view of the "normal" American family which I, and others, discussed in my post last week about the CA statute allowing for more than two legal parents. This attempt to shoehorn families into a mold which most of them will never fit is further complicated by the race and class inequities underlying our child welfare system. As Naomi Cahn has described the history of adoption, it serves as “a means of socializing culturally disfavored children—of removing them and placing them in middle-class homes[.]” (See her article Perfect Substitutes or the Real Thing? here). Encouraging open adoptions, in both the foster care and international contexts, would both recognize children's actual attachments to a network adults and perhaps help to expand our legal concept of family--something that is long overdue.
Does Employment Discrimination Law Still Have Permission to Exist?
On Monday, I described a longstanding need to provide justifications for my professional existence. I am not the only one so searching, these days. The (admittedly, somewhat snarky) term I used was "permission to exist" for specialty practice areas, and I suggested it was only asked of the laws represented by the courses that come after the first year of law school. At least, it has always been asked of the practice areas in which I began my career as a lawyer: labor and employment law.
The passage of the Wagner Act in 1935 was not the result of a consensus being reached on the question of whether the federal government should regulate labor relations. No such consensus has ever existed, making it difficult to debate the question of the form such regulation should take. The withering of labor is well-documented, and with each passing year, the sentiment in the country regarding the lofty goals of promoting collective bargaining and labor peace seems to grow either more hostile or dispirited, depending on the direction it's coming from.
The law of employment discrimination is another of my practice areas for which permission-to-exist was hotly contested from the outset, and in many respects, today such permission - to the extent it ever existed - has been substantially withdrawn. This has led me on a search for the reasons why permission was ever given for these laws in the first place, and that search took me all the way back to the Reconstruction era.I blame Ken Burns, and PBS generally, for my original interest in this time period, which I most recently visited in an article about the Thirteenth Amendment's application in prison. The era has also invaded my clinical practice over the past year, in the form of two Title VII/Section 1981 cases. 42 U.S.C. § 1981 is the descendent of the first Civil Rights Act, from 1866, and it nestles comfortably alongside Title VII, from the better-known Civil Rights Act that LBJ signed, in modern suits alleging race or national-origin discrimination.
The end of human slavery raised hard questions of labor and economy that could not be answered by market logic alone, and the path our system of laws embarked upon in that era led to the employment discrimination statutes of today. Nobody today defends human slavery on principle, and the conservative case against it can be made on the same basis as the liberal one - that of universal, individual human freedom. But the market system requires no such thing, only the laws of property, contracts, and torts, plus the criminal law for the sovereign to maintain the peace.
Charles Lindblom - whose definition of market activity includes that goods and services are obtained without compulsion by voluntary exchange - recognized that voluntariness only matters for these purposes at the level of market actors, which he defined as three institutions - the state, the corporation, and the family or household. None of these entities need internally run along market principles for the market system to function.
A venerable statute like Title VII seems in some sense immutable, in that people now expect non-discrimination, and so society would in theory voluntarily order itself around these principles in the absence of a statute mandating them. There is support, as well as reason to believe otherwise, in the very visible example that we have for this proposition - our population of undocumented workers, to whom only some of the workplace protections available to the rest of the workforce apply.
Next week, I will explain in more detail how I think the labor rights of the undocumented illustrate why the historical reasons our employment discrimination statutes first arose still matter today. Until then, the view from Mars just keeps getting better.
Tuesday, August 07, 2012
The New Green Bag is Out
Our friends at Green Bag have a new issue.
Table of contents with links appears after the jump.
Summer 2012 (vol. 15, no. 4)
To the Bag
Justice Owen J. Roberts on 1937, by Edward L. Carter & Edward E. Adams
It’s Now the John Roberts Court, by Erwin Chemerinsky
What Were They Thinking: The Supreme Court in Revue, October Term 2011, by John P. Elwood & Eric A. White
Who Shot Charles Summers?, by Kyle Graham
A Pronouncing Dictionary of the Supreme Court of the United States, by Sally Pei et al. (with the Pronouncing Dictionaryspreadsheet)
From the Bag
Multivariate Analysis Through Narrative History, by Alfred L. Brophy
The Supreme Court of Canada, Brick by Brick, by Andrew Frape & Cattleya Concepcion
Front & Back Matter
Do female professors feel comfortable deferring tenure after maternity leave?
There has been a veritable landslide of articles this summer asking whether (working) women can "have it all," with Anne Marie Slaughter's article "Why Women Still Can't Have it All" in The Atlantic serving as the giant boulder in the middle of the rubble. These pieces have prompted me to think about whether female assistant and associate professors actually feel comfortable deferring tenure after they take maternity leave. Many (hopefully, most) universities now make this opportunity available. But do many of us take it?
I get the impression that the our general attitude has been one of reluctance. There's certainly a plethora of reasons for not putting off tenure. There's the pay increase, the permanence, and the wonderful sense of being done with that whole process. We may work through maternity leave, so that the time "away" has little impact upon our ability to meet tenure requirements.
But I'm curious whether we also shy away from deferring tenure for other reasons, perhaps from a sense that doing so is somehow tacitly inappropriate or unprofessional for professional women. Slaughter opines that many "women in leadership positions" are "reinforcing a falsehood: that “having it all” is, more than anything, a function of personal determination." Perhaps, then, there is a sense that deferring tenure somehow reflects a lack of personal determination.
I do not mean to imply at all that schools tend to discourage women from deferring tenure. If anything, they have an incentive to strongly encourage women to defer: it is cheaper, and it best protects the school's investment in junior faculty by giving these individuals additional time to strengthen their tenure files. And there is the fact that some women have to actively take advantage of the opportunity to defer tenure for it to seem like a realistic option in the culture of the academy. Otherwise, the opportunity might acquire stigma, rendering it technically available but culturally impractical.
Another interesting question, of course, is whether male professors feel comfortable taking paternity leave in the first place, let alone deferring tenure. But that might be another converstaion entirely.
Southeastern Law Scholars Conference
The Charleston School of Law is pleased to host the third annual Southeastern Law Scholars Conference on September 21-22, 2012. This regional conference will bring together junior law school faculty to present published papers or works-in-progress across all disciplines within the law. The conference is open to all junior law faculty (one to seven years teaching experience) at law schools in the United States. To ensure an atmosphere conducive to feedback, space is limited to twenty participants.
The conference will begin with a reception for all participants on Friday, September 21, 2012. On Saturday, September 22, 2012, conference participants will present either a completed paper or work-in-progress, and comment on the papers and ideas presented by others. As the host school, the Charleston School of Law will provide breakfast and lunch on Saturday, September 22. There is no registration fee. Participants, however, are responsible for their own travel expenses.
To participate in the conference, please send an email to conference organizer, Professor Sheila B. Scheuerman at firstname.lastname@example.org by Friday, August 31, 2012. Please note whether you will be attending the reception on Friday, September 21, in your email. In addition, please include the title of your presentation topic. A short abstract would also be helpful. Please direct any questions, comments or suggestions to Sheila B. Scheuerman at the email address above.
Monday, August 06, 2012
Ideas and embodiments in patent law
Over the next few posts, I will be discussing a variety of patent law topics. With the Apple v. Samsung trial underway, and a recent $1 billion judgment in favor of Monsanto for patent infringement in the news, hopefully this discussion will be relevant to more than just the patent geeks among us. I should say upfront that I will not be directly discussing the Apple or the Monsanto cases, though many of the issues I will be talking about are indirectly implicated.
To set the stage, I want to first introduce a theoretical point, which is the distinction between two senses of the word “invention.” When patent law talks about an “invention,” it can mean either a concrete embodiment, or a more abstract idea. When we say that the Wright brothers invented “the airplane,” we either mean the particular wooden glider that they flew for 59 seconds at Kitty Hawk in 1903, or we mean the general idea of airplanes as in “machines that fly.” The two concepts of invention are very different.
This probably seems so obvious that I sound ridiculous emphasizing this distinction. But the conflation of these two distinct concepts pervades patent law, and it causes no end of confusion. To take a quick example—I will discuss other examples in later posts—courts routinely say that one may not patent an abstract idea, but nobody knows what this means. The “abstract idea” doctrine is one of the most confusing in all of patent law, and the Supreme Court has taken two cases in the past three terms to clarify this doctrine, without much apparent success.
Once we separate out the concepts of idea and embodiment, it becomes clear why the doctrine is so confused. Nobody really tries to “patent” an idea, in the sense of writing a patent that only says “I have invented the concept of machines that fly.” What every patentee does is first build a particular embodiment—e.g. a crummy barely-flying wooden glider—and then claim an idea more abstractly for purposes of patent scope. In the Wright brothers’ case, they claimed a monopoly over all machines that used the principle of coordinating wings and rudders for flight control, which is a technique that is used in planes even today. The reason that the abstract idea doctrine is so confused is that it relies on a conflated version of “invention.” Every patented invention both is an abstract idea (if we are talking about the scope of the monopoly claimed) and is not an abstract idea (if we are talking about the embodiment).
For those interested in this topic, I discuss it in more detail in this article.
The Neglected Institution
My law school, Cleveland-Marshall College of Law, hosts terrific panels and symposia. (A few years ago, the Cleveland State Law Review published the transcript of one, featuring several of the key players in the GM bankruptcy case.) As a former academic myself, I listen to these in stereo: part of me is learning the substantive law, and part of me is considering the institutional choices professors make.
I was particularly engaged in both capacities by one panel in particular this year. It featured several outstanding scholars. The question was simply: when is the executive branch legitimized in killing a person retributively? The context, of course, was the use of drones in the Middle East.
The question is clearly and directly answered in the Constitution. Yet somehow the key word -- "jury" -- was not mentioned in the panel that day. This was professionally appropriate: in fact, there are no law professors, anywhere, saying that word in the context of the (sort of) overseas "war on terror." Why not? I can think of defensible (but in the end, rather weak) political reasons -- but no good civic or academic ones.
Rudimentary constitutional analysis below the fold.
The Sixth Fifth Amendment provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ...; nor be deprived of life, liberty, or property, without due process of law."
And the Seventh Sixth Amendment requires a jury trial once such a person is "held to answer." [Apologies to those who were misled, willfully or otherwise, by my initial mention of the wrong numbers.]
So the question on targeted drone strikes is (to me) clearly answered by the Bill of Rights:
The executive branch may legitimately harm a person retributively when two juries have held him responsible for a crime -- whether treason, conspiracy, or something else prescribed by statute.
The Constitution does not illegalize collateral damage. So if al-Qaeda members in Pakistan or Yemen were sent an indictment, using reasonable efforts, tried in absentia, and sentenced using the reasonable judgment of a well-informed jury (which was well informed about, among other things, potential collateral killing), drone strikes would be indisputably constitutional.
To be clear: I am indeed advocating that law professors should, somewhere, be advocating the following as a matter of law:
Regular juries, from the regular jury system, after simple background checks and after being sworn to secrecy on pain of treason charges, should decide who on the White House's "kill list" may be targeted by a Hellfire missile.
(I am indebted for my own jury emphasis to the Fourth-Amendment scholarship of Akhil Amar.)
Why don't we do this already? Obviously there are national security reasons (but in comments I intend to argue that those are much less serious than you'd think, especially considering the manifest puniness of al-Qaeda in the espionage department); and there are political reasons. But law professors are neither spies nor politicians. Why should they not make the argument in precisely the terms the Constitution suggests? What would it cost the profession?
Prof. Raghunath asks thought-provoking questions about the impact of legal academia on civil society. I think advancing the drone/jury argument could, long term, shift the policy discourse in ways that (in this case) might please both libertarians and liberals. Indeed, I think a sustained push for more citizen engagement with the supercategory "national security" might galvanize our political life generally, as part of a targeted rhetorical and actual effort to re-empower the demos -- here, embodied in the jury, as the Founders clearly intended.
I suggest also, more generally, that legal academia has a deep-seated tendency to ignore the jury. The jury leaves no textual trace; scholars cannot study it in on the page. Therefore judges, who use all the ink, also get all the ink -- both in casebooks and on SSRN. And therefore, too, the question everyone seems to be asking about drones is about the importance of "judicial review" -- even though that term finds no basis in our constitutional culture.
Is there any scholarship out there about the Constitution's clear requirement that drone strikes be linked with jury verdicts? I'm eager to be brought up to speed if so.
Counterarguments addressed in comments.
A Family Law Fraternity?
There are men's only golf clubs, massage parlors, resorts, and now law firms. The Wall Street Journal recently reported that a number of divorce lawyers are marketing themselves as for men only. (See the article here). Preying on men's fears that judges, mediators and others discriminate against them in custody and support matters, these firms claim expertise in helping men avoid common "traps" in divorce matters, such as being accused of domestic violence. Some of these specialized firms provide extra services such as "men's rights" websites (perhaps complete with Robert Bly poems?) and office reception areas adorned with ESPN-tuned TVs and copies of Sports Illustrated.
Although it's not clear whether these firms actually offer unique services or are just shrewd marketers, they claim success in attracting and serving clients. There undoubtedly are some concerns more common to men in divorce proceedings, but this niche practice itself raises some concerns about client selection and zealous advocacy. I don't think these men-focused firms are in the same league as certain famous debates over client selection. (To name just a few: the recent flap over King & Spalding's withdrawal from representing the House of Representatives in the DOMA litigation (see here for Paul Clement's resultant resignation from the firm); the debate between Monroe Freedman and Michael Tigar over the latter's representation of Nazi John Demjanjuk (outlined in the appendix to Freedman's book, Understanding Lawyers’ Ethics, App. B “Must *You* Be the Devil’s Advocate?”); and the controversy over the representation of the Ku Klux Klan by an African-American NAACP lawyer, Anthony Griffin (see Professor David Wilkins' article about it, Race, Ethics and the First Amendment: Should A Black Lawyer Represent the Ku Klux Klan?)). But if these firms are unwilling to represent a woman who came to them, able to pay their fees, it's not clear that they are operating within the ethical rules.
More significantly, this practice raises larger ethical questions endemic to many areas of family law practice. How should lawyers zealously represent clients when there are other, often unrepresented, parties who also have a significant interest in the matter. In the divorce context, I'm speaking, of course, of children. It is one thing to craft arguments from a father's perspective, quite another to coach men in avoiding support obligations or minimizing domestic violence accusations. (I'm not saying these firms do these things, but some of them do espouse a problematic message--that women often use accusations of domestic violence as a "tactic" in divorce and that "a shove" should not really be considered violence). In recognition of the toll divorce litigation can take on children, the American Association of Matrimonial Attorneys (AAML) guidelines state that attorneys for parents in custody and related actions have a fiduciary duty for the well being of a child and thus must competently represent the interests of the client, but not at the expense of the children. (See the AAML guidelines, aptly titled "The Bounds of Advocacy," here). Although these guidelines are not binding, they can hopefully begin to change the notorious "scorched earth" reputation of attorneys in divorce matters.
The First-Year Courses Are the Only Areas of Law That Don't Need Permission to Exist
Walter Olson, lately standing athwart the legal academy and yelling stop, gained some attention last month (including on this very blog) by calling for the abolition of law reviews. In my personal taxonomy of conservative hatchet men, Olson stands out for his belief in the singular power of law professors to control the direction of American civil society:
The work of legal scholars, as we will see, has revolutionized (or created from scratch) whole fields of law, from product liability to sexual harassment to class action law...Anyone who takes part in the world of public controversy, from Capitol Hill staffers to radio hosts, is swayed directly or at a remove by the climate of opinion in legal academia. "[W]hat is taught in the law schools in one generation" - so a celebrated law professor once put it - "will be widely believed by the bar in the following generation" - and, by way of the bar, will come to be believed by many of the rest of us.
In Olson's telling, law profs enjoy a position as intimate and persuasive to power as the Maesters of Westeros. Maybe that's closer to reality for Cass Sunstein than it is for the rest of us, although not for much longer. I would love to wield the power Olson and his cohort dream that I have, as a clinical educator with a litigation docket. I suppose that has been the forlorn wish of many past bugaboos of the right.
Most interesting to me is the idea that dastardly liberal law scholars are responsible for the creation of whole new areas of law "from scratch" - as opposed to Founder-approved pre-mix? - because that sort of strikes at the legitimacy of every one of us who devotes our time to teaching something other than a first-year course (and, I guess, corporations).
What this complaint about new areas of law being created whole-cloth reminds me of is the notion, which first came to me in law school, that the first-year curriculum constitutes the only areas of law whose existence conservatives broadly accept as legitimate. In his famous article All Quiet On the Eastern Front, Richard Epstein memorably summed up the reasons why "property, contract, and tort...enjoy such great temporal durability in the common law," namely that they address the perennial human conditions of scarcity and self-interest:
The first mission of the legal system is to determine an initial set of property rights from which subsequent bargains can go forward at reasonably low cost. The second mission is to insure that these entitlements once established are protected against various forms of theft—the office of the law of crime and tort. The third mission of the law is to facilitate the voluntary exchanges of property rights—the law of contracts.
There's your first-year curriculum, once you add Civil Procedure, Constitutional Law and (maybe) Administrative Law. Under this worldview, and accepting that Epstein thinks at least some of the Civil Rights Act was justified law-making, my entire practice area of labor and employment law (we call it "Workplace Law" hereabouts) is one of those considered to be "created from scratch," that shouldn't exist as it does. It makes me wonder whether pharmacists, engineers, or architects are accused of creating more work for themselves just by doing what they do.
Union-side labor lawyers, as I was a decade ago upon first graduating from law school, are regularly reminded of the withering of the law that was (arguably) written to protect their clients. My continuing inhabitation of the conceptual frame, that of a specialist practitioner in a field seemingly withering on the vine, is what fuels my interest in Reconstruction (that, and a longstanding fascination with the Civil War). Reconstruction is the historical period from which Section 1981, the oldest of the anti-discrimination laws that I use for my clients in my clinical practice, originates. How the lessons of this period might inform our present-day justifications for these laws will be the subject of my next post.
In the meantime, enjoy the view from Mars.
Saturday, August 04, 2012
Free the Tamale Spaceship!
Thanks to Dan for inviting me to blog—and sorry for the delay wading in (I’ve been finishing up a paper this week (whew!), which I will post about later.)
Paul blogged below about an apparently pressing issue for libertarians—whether and how to construct “top ten” lists of Supreme Court decisions. This is indeed an important issue for libertarians. But, for this libertarian, who is currently blogging on an empty stomach, it is not nearly as important as the easy availability of mobile food trucks in Chicago—and, particularly, the easy availability of this, my favorite, Chicago mobile food truck (the only one run by men in masks). Which is why I was sad to see that the Chicago city council, under pressure from incumbent restaurateurs, severely restricted (in the guise of approving) food trucks a week ago.
The Institute for Justice and its Clinic on Entrepreneurship have been doing some fun work on food truck licensing in Chicago and elsewhere—including a terrific symposium and food-truck meet up at the University of Chicago Law School earlier this year. (Conflict of interest disclosure: I once worked for IJ many years ago). For more from IJ on this issue, visit here. And for a good piece on the fascinating politics of food trucks, see this Matt Yglesias piece.
Defining sport: Intrinsic and Instrumental (not utilitarian) Values
I have written before about defining sport and distinguishing sport from other athletic competitions. My preferred definition of sport includes four elements: 1) Large motor skills; 2) Simple machines; 3) Objective scoring (distinct from subjective judging); and 4) Competition. Of these, # 3 has proven to be most difficult, controversial, and contested, as the comments on this post show. Watching the Olympics (count me among the many who detest the NBC Primetime productions) has lead me to a different way of thinking about # 3, using a line familiar to legal scholarship--the difference between intinsic and utilitarian instrumental values. Hear me out.
Everything involves the performance of particular skills (dives, flips, swimming strokes, running strides, throwing, putting the shot, whatever), with the hope of performing those skills as correctly as possible. The difference is why the athlete performs those skills.
Sometimes they are done for utilitarian instrumental purposes--to enable the athlete to swim or run faster or to put the shot further or to put the ball in the basket. And the better or more perfectly the athlete performs those skills, the more likely he is to do well in the competition. But ultimate evaluation is not on the skills themselves and correct performance is not essential to success. A shot-putter still can have a good throw even if his performance on that throw is not technically correct; a swimmer still might swim fast even if his stroke is off; a jump shot in basketball may go in even if the form on the shot is off. Each of those scores is worth the same as one done with perfect form. Other times, those skills are performed for their intrinsic value and utlimate evaluation is on the correctness and form of the skill itself. An Inward 2 1/2 that is not done correctly will score less than an Inward 2 1/2 done correctly; a backflip not done correctly will score less than a backflip done correctly.
This is our new third element. Sport is utilitarian instrumental; skills are performed toward some other end and outcomes are determined by the result of the skill rather than by evaluating the skill itself. It is not sport if it is intrinsic; skills are performed for their own sake and outcomes are determined by evaluating the skill itself. We no longer care about objective or subjective evaluation, about scoring or judging. Instead, we focus only on the thing being evaluated to determine outcome--the skill itself (not sport) or the results of the skill (sport).
Combined with elements 1, 2, and 4, above, we may have a winner.
I accept Patrick's friendly amendment in the comments and have changed "utilitarian" to "instrumental."
I am trying to figure out whether this new element solves the conundrum of boxing. Boxers are throwing punches to score points, although the vagaries of judging sometimes hint that judges are evaluating the punches themselves.
Once more unto the beach! (Um, I mean breach...)
Thanks so much, Dan, for inviting me back to Prawfs. I apologize for waiting a few days to wade into the warm waters of blogging; we just returned from an excellent SEALS conference (I am, afraid, still waxing a bit nostalgic for Florida at this point).
This past year has been a fascinating one. I am returning to the classroom after a semester of research leave under the Federalist Society's Searle Young Legal Scholars Research Fellowship program. I've spent the time in ethnographic mode, using qualitative interviews to investigate how infertility patients make decisions while undergoing in vitro fertilization (IVF), what their experiences of informed consent are like, and how reproductive endocrinologists and other reproductive medical professionals regard patient decision-making strategies. June witnessed the publication of my first book, Killing McVeigh: The Death Penalty and the Myth of Closure. This books taps into my qualitative work on murder victims' family members, specifically how the family members and survivors of the Oklahoma City Bombing came together to memorialize the bombing, how they felt trapped in involuntary relationships with Tim McVeigh and other offenders, and how they negotiated the trials of McVeigh and Terry Nichols as well as McVeigh's execution. I'm now starting on a similar project with family members and survivors of the September 11, 2001 terrorist attacks.
I'm incredibly excited to be jumping once more back unto the breach in these few remaining weeks of summer (seriously, how can it be August already?). This fall brings Torts and Law & Medicine, and I can't wait to be back!
Friday, August 03, 2012
"Having it All"
From the Atlantic, a wonderful article on "having it all." Enjoy.
The Ethics of Practice in the Cloud
Some helpful tips here from the ABA Annual Meeting on this cutting-edge practice issue. I had looked forward to improved mobile access to my work documents in Apple's iCloud service, including my federal appeals, after I upgraded to the Mountain Lion OS. But according to this piece, I may need to consider another cloud service option. Maybe I shouldn't uninstall Dropbox just yet. Time to research the cloud a little more closely!
What Do You Mean "We?"
At the VC, Ilya Somin has a post, building on something published at Reason, discussing the "top ten libertarian Supreme Court decisions." He offers some criteria, suggests a list of his own, and closes with this: "Whether you agree with my particular picks or not, the more important point is that we need to be more rigorous and systematic in our comparative evaluations of Supreme Court decisions."
On the Internet, it can be tough to distinguish between sincere and disingenuous and/or sarcastic questions. Let me be clear that I'm actually being sincere on this one: I find Ilya's last sentence kind of ambiguous. (I find the idea of "libertarian Supreme Court decisions" a little ambiguous too. But I assume it means "Supreme Court decisions that libertarians find consistent with and pleasing to the current prevailing of their views.") Does "we" mean libertarians, or everyone? Does he mean that we need to be more rigorous and systematic in the comparative evaluation of Supreme Court decisions in general? Or that we need to be more rigorous and systematic when constructing "top ten" lists of this kind? Or just that libertarians in particular need to be more rigorous and systematic when constructing their own top ten lists?
Nothing of cosmic significance turns on this, but I found it interesting because it affects whether any of this can reasonably be said to be "important." I think the criteria that Somin proposes for identifying the "best" Supreme Court decisions can be applied by non-libertarians in making their own lists. (I say "best" rather than "most important" or "most influential" because Ilya's criteria include that the decision must have prevented "large-scale injustices" and that it be "legally correct.") So perhaps the best reading of that last sentence is that "we" means everyone, not just libertarians, and that everyone needs to be more rigorous in making their best-of or worst-of lists.
Given the overall focus of the post and the use of that slippery "we" pronoun, however, he may simply mean "libertarians." If that's so, it's a lot harder for me to figure out why it's especially important to come up with rigorous criteria for identifying the top ten Supreme Court decisions pleasing to contemporary libertarians. If the activity itself is unimportant, does it really matter? I suppose one value of doing so has to do with the much-discussed question of canon formation. To the extent that canons help influence our understanding of history and our shaping of values, there may be some value in doing so, and doing so rigorously. But without wanting to be too dismissive of libertarianism as such (it has certainly captured the allegiance of an ever-larger percentage of the students in my con-law classes at schools across the country), it doesn't seem to be a terribly important activity, any more than compiling a list of the top ten English pastoral symphonies, or the the top ten Fourierist Supreme Court decisions, or the top nine members of the Fellowship of the Ring in descending order. More of a parlor game, really.
Even if we take the broader meaning of "we," which I'm inclined to do, I still tend to question the value of this kind of top-ten-list enthusiasm. (Which is hardly limited to libertarians or lawyers, of course. The standard liberal trope on the Supreme Court canon is that "respectable" lawyers are supposed to love Brown and hate Lochner, which also seems silly to me.) It's not really quite the same as canon formation, I think. Sound canon-formation, in my view, has as much or more to do with what is important and influential than with what is "good" or the "best." Although all canon formation is necessarily partial, ideally it should not be emphatically and narrowly partial. It should be a question of what's worth talking about, not who is on or off the team or what is "legally correct." In that sense, a well-constructed canon should include the anti-canon.
Hey, it's Friday, and it's the Internet. No big deal one way or the other, and I'm not trying to be especially barbed about the matter. I just found the ambiguity interesting, and was also interested in what the whole conversation says about our penchant for making lists, especially of the "top ten" variety. It's not a uniquely American pastime, I'm sure. But it sure is an oddly popular American pastime!
Three Parents and a Baby
For those looking to talk about any family law topic other than the latest TomKat maneuvers, some pending state legislation may do the trick.
A state senator (in California, natch) has proposed legislation allowing a child to have more than two legal parents. Any parent would have to meet existing definitions of parenthood, and courts would continue to allocate custody and visitation according to the best interests of the child, including denying contact where appropriate. But whereas existing law requires courts to choose a maximum of two parents, those with the strongest claims, the proposed bill would eliminate the cap. Sponsor state senator Leno offers numerous rationales for the bill including giving more discretion to judges to recognize bonds between parents and children, reducing foster care placements, and increasing children's access to financial support, health insurance and inheritance rights. Perhaps most significantly, Sen. Leno defends the bill as adapting to the changing needs of families: "The bill brings California into the 21st century, recognizing that there are more than Ozzie and Harriet families today."
I wasn't surprised by this bill, only by how long it took for someone to propose it. The data is overwhelmingly clear that families don't now, and it's doubtful they ever did, conform to an idealized heterosexual mother and father model. The growth of assisted reproductive technology (ART) and of unmarried cohabitating couples, both gay and not, as well as the large number of remarriages and stepparents, mean that many children consider multiple adults to be a parent of one type or another. For instance, the 2009 Current Population Study report estimates that about 12% of all children live with a stepparent (a number experts consider to be an underestimate) and the 2010 census reveals that another 3% live in households with a parent and her or his unmarried partner. In line with this reality, a few state courts, as well as a Canadian court, have recognized the possibility of more than two legal parents for a particular child. Numerous scholars have also called for an expanded understanding of legal parenthood, including me and Melanie Jacobs of Michigan State (see Overcoming the Marital Presumption, her latest of a series of articles on this topic).
Another thing that surprised me is the vehemence of some people's reactions to the bill. (Although many would say that I should know better by now how worked up folks get about other people's family structures, and they'd be correct). The comments mostly range from the straightforward if unilluminating (It's not okay for children to have more than two parents. It's completely weird...") to the outright abusive. (In fact numerous media outlets including the Sacramento Bee had to shut down comments on the story due to hate speech). Critics have argued that it will confuse children, compared it to polyaromy and polygamy, and connected it to the ongoing controversy over whether marriage gay couples can marry. Yet none of the critiques that I have seen---and I've been surfing for days--seem to address the fact that this bill doesn't expand the definition of parenthood, but rather it only allows for more people fitting this definition to be involved with a child, if that's in the child's interests.
The bill has passed the senate and is up for hearing in the state assembly next week. It is widely expected to pass, but I'm sure not without more furor. I'm looking forward to posting more on other family law and ethics issues in the coming month. Thanks to Dan for inviting me.
"Reaching the Merits"
There, in the holy of holies, adorned with wisps of emergent satori, is the lama.
Gotta' Love Crim Pro Federalism
I just finished teaching a summer session of criminal procedure. Sometimes, by the end of the course, I feel like I have spent more time teaching what the Fourth Amendment doesn't do than what it does do. I teach in Washington State, however, where Article I section 7 of the state constitution provides so many more privacy protections that I can't track all of them for my students as we study the Fourth Amendment—consent rules on refusal warnings and apparent authority, Leon's good faith exception, inventory searches, the automobile exception, open fields, pretext stops, pen registers, garbage searches, student drug testing, sobriety checkpoints, and I'm sure more that I'm overlooking. Here's a new Washington State Supreme Court decision, issued today, dealing with warrantless searches of students at school. Bravo to state constitutions!
Which state-specific criminal procedure rules do readers think are the most important or significant departures from U.S. Supreme Court doctrine? Personally, I always have been partial to New York State's "indelible right to counsel," particularly since the U.S. Supreme Court decided Montejo v. Louisiana.
Thursday, August 02, 2012
The Ninth Circuit issued an interesting Fourth Amendment decision last week on the subject of reasonable suspicion, in United States v. Valdes-Vega. The "reasonable suspicion" standard dates to Terry v. Ohio, where the Supreme Court upheld limited, investigative seizures on less than traditional probable cause. Instead, following Terry, reasonable suspicion justifies the police in stopping and detaining someone for investigation sufficient to confirm or dispel their suspicion of criminality. A reasonable suspicion, the Supreme Court has held, requires "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."
In Arvizu v. United States, however, the Supreme Court, reviewing another Ninth Circuit decision, made clear that lower courts must consider the "totality of the circumstances" when evaluating reasonable suspicion. Court should not "divide-and-conquer" each fact, however common or innocent each fact may prove in isolation, if reasonable suspicion is supported by the evidence in the aggregate. This understanding of reasonable suspicion has given the police a lot of discretion to stop and investigate individuals without proof of criminality, so long as prosecutors can compile a list of non-criminal factors that, considered as a whole, made the police reasonably suspect criminality. Critics have challenged this standard as giving the police too much discretion with too little judicial review.
In Valdes-Vega, the Ninth Circuit may have pushed back, perhaps fairly hard, against this reasonable suspicion standard. This case involved a vehicle stop and drug seizure in California, about 70 miles from the U.S.-Mexico border. Interestingly, the police observed Valdes-Vega speeding and driving erratically, but they could not stop him to cite or arrest him for traffic violations, because the police here were federal border agents. So, the agents needed to articulate a reasonable suspicion of criminality to stop the vehicle. In arguing that the agents reasonably suspected drug or alien smuggling, the Government highlighted Valdes-Vega's erratic driving, the proximity to the border, Valdes-Vega's decrease and increase in speed near a closed border checkpoint, Valdes-Vega's use of a large truck with Baja California plates, the history of smuggling in the area, and the agents' training and experience. The district court found reasonable suspicion for the stop. But the Ninth Circuit disagreed, concluding that reasonable suspicion on these innocuous facts would permit seizures based on "'broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.'" The Ninth Circuit Blog recently commented on this opinion: "The Ninth, we hope, is becoming increasingly uncomfortable with the 'border exception' swallowing all Fourth rights in the West."
Truthfully, the dissent in Vades-Vega did make a good point on the law that the majority seemed to violate precisely Arvizu's no-divide-and-conquer approach to reasonable suspicion analysis. And maybe this case simply reflects "liberal" Ninth Circuit judges vying for yet another Supreme Court reversal. But on the other coast too, in cities like New York and Philadelphia, critics of the reasonable suspicion standard are challenging police "stop and frisk" programs as too discretionary, abusive, and inefficient. Courts in those jurisdictions also may be attempting to toughen the reasonable suspicion standard. Are these judicial decisions, backed by vocal criticism of police action in certain communities, just blips on the Fourth Amendment radar, or a sign of coming changes to the reasonable suspicion standard, such as an increased emphasis on arrest efficiency?
Minority religions and the Olympics
My colleague Tom Baker linked me to this story on the Jews, Muslims, Sikhs, and other minority religious groups taking special rooting interest and pride in the Olympic success of their co-religionists, even if they are competing for other countries. The author seems surprised by this, although I am not sure why. American Jews always have been very conscious of the existence and success of Jewish-American as well as Israeli athletes (while never being afraid to recycle the old joke "Do you have some light reading? Here's a pamphlet of great Jewish athletes"). What is new here, if anything, is the way that other religious groups in the U.S. are catching on.
For what it's worth, my sense with Jews and Jewish athletes is that it always has been more ethnic/cultural than religious. People knew gymnast Aly Raisman is Jewish because of her name and her floor routine done to "Hava Nagila." The issue was never whether she was particularly observant (although her rabbi is quoted in the story, so we somewhat know), but that she identified as Jewish. That has always been enough.
Compelling patients to listen
On the heels of wave of state laws requiring doctors to provide and narrate ultrasounds and spout state-mandated speeches about medically dubious consequences of abortion comes the new policy regarding use and distribution of baby formula in New York City hospitals, part of the City's "Latch On" campaign to promote breast feeding. The new regs require hospitals to keep formula locked away and to sign it out to patients who take it, prohibit hospitals from giving away free samples to departing parents, and, most problematically, give parents who want formula a mandatory talk about why breastfeeding is best (even if not to come right out and say, as the doctor did here, that "forumula is evil").
The last prong is problematic, for the same reasons that the abortion speeches are problematic. It forces a one-sided message down the throat of a female (as always) patient, in a vulnerable position, presumed not to know any better or to be able to make decisions. Of course, we are not hearing any First Amendment complaints because the compelled speakers--the medical professionals--are on board with giving these speeches about nursing, in contrast to their views about ultrasounds and the abortion-suicide link.
The answer lies in a First Amendment liberty of the patient not to be compelled to listen to government-ordered messages, at least within certain conditions, such as the face-to-face intimacy of the doctor-patient relationship. I have not thought through the details, limits, or implications of this liberty (so any help is appreciated). But it seems to me that it partakes of some aspects of the captive audience and some aspects of Paul's institutional focus on how the medical profession should function and should be allowed to function. There also is a problem of one-sidedness; while breastfeeding may be the better option, the alternative is not affirmatively harmful to a child and should not be presented to patients as such. This liberty recognizes that there is a second party to doctor-patient conversations whose First Amendment interests should not be disregarded, particularly in a way that assumes lack of agency. Again, I welcome suggestions on how this liberty might take shape.
Recognizing this liberty still leaves it to be balanced against the government's interests in promoting public health positions. But it seems that there will be ways for government to gets its message (whether about abortion or the benefits of breast milk) across without compelling participation in a one-sided conversation.On a personal note, I come to this question having made a deliberate decision with my wife, with the full support of our pediatrician, to give our daughter formula, for a variety of reasons. I am happy to say she shows no deficit in any of the areas that breast milk is supposed to enhance. I also can say that hearing a speech suggesting that we were hurting her by our decision would have been incredibly harmful at the time. Of course, for every story such as ours there is a story going in the other direction. But maybe that means a one-size-fits-all speech is not the appropriate public-health solution.