Wednesday, October 31, 2012
LST's "Score Reports"
The folks at Law School Transparency sent out an announcement today that they are offering an online "alternative to the U.S. News law school rankings," called the LST Score Reports. More information and links are available after the jump.
As I've said here before, I've been very impressed by my dealings with Law School Transparency and think it deserves attention and support. I'm afraid I haven't had a chance to dig in to the information, so I'm not in a position to vouch for it (or to say how my own institution fares). I hope and expect that it will receive analysis and critiques from other quarters, and no doubt there will be room for improvement. But I'm happy to get the ball rolling by linking to the project.
I will add that I think the most important statement in the announcement is the following: "[U]nlike rankings, the Score Reports do not reduce complex data to a single metric. Instead, the Score Reports focus on observable relationships to specific legal markets and job types. Only a small handful of schools have a truly national reach in job placement. The rest have a regional, in-state, or even just local reach. A decision tool should not obfuscate this reality; it should embrace it." Amen. I'm not adamantly opposed to national rankings, but I worry that they tend not only to overlook the degree to which law schools mostly serve regional markets; they also actively encourage law schools to focus on nationally measured metrics rather than local needs, and end up creating an undue amount of homogeneity in curricula, faculty, and other areas.
The announcement and links follow; judge for yourselves, and feel free to contact the LST folks if you have questions, comments, or constructive criticisms.
Today, Law School Transparency announces an alternative to the U.S. News law school rankings: The LST Score Reports.
LST has developed the Score Reports in an effort to produce a tool to help prospective students make application and enrollment decisions, keeping in mind that each person has a different risk tolerance, financial situation, and set of career aspirations.
The Score Reports are user-friendly tools for sorting law school employment outcomes, projected costs, and admissions stats. There is a Score Report for every state (includes only schools that place graduates there), every school (called a profile), and job types. They measure job outcomes, use a regional scope, and use real terms about the outcomes to allow prospective students to make an educated decision about not just which school to attend, but whether any school happens to meet their needs.
The Score Reports are not rankings, although they do serve as an alternative to conventional law school rankings. But unlike rankings, the Score Reports do not reduce complex data to a single metric. Instead, the Score Reports focus on observable relationships to specific legal markets and job types. Only a small handful of schools have a truly national reach in job placement. The rest have a regional, in-state, or even just local reach. A decision tool should not obfuscate this reality; it should embrace it.
You can view the Score Reports, and read more about them, by following these links:
Methodology (published in the Journal of Legal Metrics)
FarewellThank you to everyone at Prawfs for the opportunity to comment during the last month. I have enjoyed my stay here and hope to return before too long. Best wishes to everyone for a wonderful end of the semester and a happy holiday season.
Flipping the Discovery Presumption
Thanks to Dan and the crew for allowing me to blog here this month – it’s been fun. Before my time ran out, I wanted to circle back to the remarkable new set of civil rules in Utah, an issue I teased in a previous post.
In 2011, Utah passed a comprehensive new set of Rules of Civil Procedure, with major changes to the rules of discovery. The process involved four years of research, negotiation, and drafting. Utah’s rules had previously mirrored the Federal Rules of Civil Procedure, and gave rise to the same well-documented frustrations about excessive and abusive discovery that have haunted the Federal Rules for decades. At the core of the problem is a concern over disproportionate discovery: in too many cases, the cost of discovery is out of proportion to the amount in controversy or relative complexity of the case. Federal rulemakers have tried to address this problem for more than thirty years with everything from instituting presumptive limitations on certain discovery tools to giving judges broad authority to limit discovery on their own. As I have documented here, none of these rules changes have worked as intended.
Utah’s solution after the jump.
Like the federal discovery rules, Utah’s new rules also center on proportional discovery, but with an important twist: where the Federal Rules presume that discovery is allowable unless the rules or judge say otherwise, the Utah Rules flip the presumption and presume that discovery is prohibited unless the rules or judge say otherwise. The parties plead into one of three tiers of discovery at the beginning of the case, and the right to recover is limited by that pleading. The tiers strictly limit standard discovery: Tier 1 (for cases of $50,000 or less), for example, permits each side only 3 hours of fact deposition, 5 requests for production of documents, and 5 requests for admission. Tier 3 (for cases above $300,000) provides more, but is still sharply limited in comparison to the federal scheme: standard discovery maxes out at 30 hours of fact deposition, 20 interrogatories, 20 requests for production, and 10 requests for admission. Extraordinary discovery in any case is only permitted by stipulation or motion after the parties have completed standard discovery, and the burden is always on the party seeking additional discovery to prove the need for it.
Flipping the presumption of allowable discovery is a particularly clever way of enforcing proportionality because it forces the parties to focus from the outset on the discovery requests that are most relevant to proving their claims and defenses. It also would seem to increase the likelihood that cases involving less than $50,000, which might otherwise be priced out of court altogether, can be litigated to a satisfactory conclusion on the merits.
Tomorrow marks the first anniversary of the new Utah Rules, and rulemakers in other states and at the federal level should keep a close eye on the new system. The effect of the new rules on the conduct of discovery, litigant satisfaction, and access to the courts will certainly be worth watching.
Politics, partisanship, and democracy
My thoughts and prayers go out to all the Prawfs family (including my own family in NJ, NYC, and Long Island), friends, and readers dealing with the effects of Sandy. I hope you all are safe and that you have your power back soon. I want to consider two things with respect to Sandy's effects on next week's election.
First, folks are beginning to talk about how the storm will affect the mechanics of the election and whether state and local governments (who wield exclusive authority to administer the electoral process) hit by the storm will be ready and able to carry out an election, both with early voting ongoing this week and Election Day itself next week. This has lead to discussions of whether the election could or should be delayed, either by congressional action or by unilateral actions of individual states or localities. Here is some good analysis of the constitutional and statutory issues involved. Rick Hasen argues that this again demonstrates the need for Congress to create a uniform national scheme to respond to natural and other disasters that affect voting. Hasen calls this another example of Congress failing to act on what should be non-controversial issues resolvable with non-partisan solutions. He compares congressional inaction here with congressional inaction on ensuring continuity in the House of Representatives in the event of a terrorist or other attack.
Actually, though, the current situation brings to mind a different concern on continuity of government, a subject on which I wrote in my early scholarship. I have argued that if we ever get into the statutory line of succession (below the Vice President), we should hold a special election as soon as practicable (within 3-6 months, for example), so that the ultimate recovery from a mass catastrophe can be lead by a popularly chosen executive. But I may have to rethink that, depending on how things play out in the next week. If a bad storm affecting five or so states can hamper a national election, it may not really be possible to hold one a few months after a catastrophic attack on the nation and the government itself.
Second, when asked about the election, New Jersey Governor Chris Christie responded as only he can: "I don't give a damn about Election Day . . . This administration, at the moment, could give a damn less about Election Day." Now, obviously the first concern must be ensuring public health and safety, getting roads and debris cleared, and getting the power back on. But Christie's bluster reveals an unfortunately blase attitude about the election and thus about democracy. It suggests that the election is not important; it is "partisan" and "political" and thus not what we should be thinking about in times of high-minded crisis, when we should put our differences aside and come together, blah blah. It is the same attitude reflected in 2008 when John McCain called for a suspension of the campaign and cancellation of the debate so he and then-Senator Obama could return to Washington to work on bailout legislation.
But, as I wrote four years ago, elections are the procedural element that most fundamentally identifies our socio-political system as democratic, as a system in which here, sir, the people govern. Partisan politics describe and define the process by which we select the "immediate representatives" through whom the people act in governing themselves. And elections work through a two-party adversarial process.
Thus, inability to carry out an election is no small thing and should not be treated, or discussed, as such. It would be no mere minor inconvenience if New Jersey or New York is unable to administer elections next week--or unable to efficiently administer elections in which those who want to vote are able to do so. It would be a genuine problem for the functioning of a supposedly democratic national government. Alternatively, if we really believe that we must "come together" and put all electoral conflicts aside and not concern ourselves with an ongoing election, then Hasen is right that we must establish mechanisms to postpone the whole thing or otherwise alter the rules. We should not ignore the problems or let the election go forward as planned and simply accept sub-optimal processes in those places still recovering from the storm.
Again, the election should not be the top concern at this moment, either for the people trying to recover or for the governments trying to help them. But neither should the election be pooh-poohed as an unimportant triviality beneath government concern.
How to Scare a Law Professor
In honor of Halloween--and as my farewell guest blog--I want to add a little scare (and levity) to your day. If you are faint of heart, you may want to skip to the next post. But if you are of a heartier constitution, read on. Today I propose the scariest of activities . . . reread your . . . Teacher Evaluations and (as if that's not sufficiently terrifying) . . . share them with me! Muahaha!!
Now if you are pre-tenured, the terror elicited by teacher evaluations is self-explanatory (a little thing called self-preservation) but, I submit that dark monsters lurk in those pages for tenured professors as well. Such as: irrefutable evidence that your brilliant teaching of [place issue of choice here] for two days left no impression; the fact that few students seem to realize that "ru" is not actually a word; and, the realization that no matter how important the subject/issue/process you taught and how creatively/well/in-depth you taught it, students base their evaluation of your teaching skills on complete non sequiturs.
Therefore, for a little terrifying fun, I invite you to share your most choice teacher evaluations here. It would not be right if I didn't offer myself as the first public sacrifice. Here are a couple of jems . . .
Please let students use computers in class. Also, professor has great taste in shoes.
Great shoes. ;-)
Oh yeah, those comments will get me tenure.
Looking forward to hearing from you! To those on the East Coast (including my own family in New Jersey, Delaware and Maryland), know our thoughts and prayers are with you--we all hope you are well, keep safe and please call when you can. A big thank you to PrawfsBlawg for the guest spot and, to all, Happy Halloween!
Legal education v. legal systems
As the swan song of my month-long guest blogging stint at PrawfsBlawg, I'll throw out a final comment that relates to current debates on legal education, and which links that debate to recent scholarship on the relative effects of legal systems.
There is a literature on comparative political economy that explores how various national economic policies (e.g., more market-oriented v. more social welfare and market-coordinating) do relative to each other in terms of economic growth and other measures of wellbeing. Related literature explores the effect of different legal systems on national economic growth and other policy indicia. Some work is more specific, looking at, say, regulation of public firms or capital markets. Other work looks more broadly as common law v. civil law legal systems; the work on effects of the 'legal origins' of a nation's legal system is part of this.
The findings are complex (if hedged in terms of strong causal claims), but let me just say that there's plausible evidence some legal systems correlate more stronger economic growth than others, some are better than others at fostering large public firms or certain kinds of capital markets, and some seem to do better than others at things like providing more settled law for people and firms to rely on.
If all (or much) of that is so, it makes me wonder: does it really matter all that much how well trained lawyers are? Whatever the flaws of our legal education model and of those elsewhere, advanced nations probably do a good enough job of producing lawyers competent to make the local system work. In terms of the competence of a nation's legal professionals, the kinds of questions about legal educaton that we tend to focus on are probably pretty marginal in the grand scheme of things: whether law school's third year adds enough to lawyer competence; whether legal training needs more clinic/apprenticeship/practical experience before licensure; whether Socratic method is effective pedagogy; what mix we should choose of legal methods, policy, professionalism, critical analysis, etc.
I don't mean to say that these education debates aren't worth having; it's surely always a good idea to try to improve legal pedagogy and the training/licensure model. And many of our education debates are driven by other issues that are important but separate from this legal-system point: e.g., the cost of U.S. legal education and the attendant student debt problem. But work on the seeming effects of national legal systems and regulatory regimes--while it doesn't say this--leads me to think that, as long a jurisdiction consistently cranks out a corps of lawyers with basic competence, the efficacy of legal education doesn't much matter to the efficacy of a legal system. We seek to fine-tune legal education for many good reasons, but for policy goals like more justice, optimal balance of economic growth and welfare, or better regulatory outcomes, fine-tuning the law matters more than fine-tuning lawyers.
Tuesday, October 30, 2012
The Supreme Court Goes to the Dogs
Among the cases scheduled for argument this week are Florida v. Jardines and Florida v. Harris, two criminal cases involving the constitutionality of dog sniffs. The question in Jardines is whether a dog sniff at the exterior of a home is a "search" within the meaning of the Fourth Amendment. That question, in turn, depends on whether the occupant of the house has a "reasonable expectation of privacy" against the dog's detection of the odors emanating from the home.
This one isn't hard (at least if we accept precedent): Jardines should lose. Jardines will analogize dog sniffs to thermal imagers, the use of which was held in United States v. Kyllo to be a search), but the analogy fails because of the limited information dog sniffs reveal. In past cases, notably United States v. Place (see esp. at pp. 706-07) and Illinois v. Caballes, the Court held that dog sniffs of luggage and cars were not "searches." Those cases relied on more than the reduced expectation of privacy individuals have in those areas (although the location of the search was noted); rather, the Court argued that the key fact about dog sniffs was that they disclosed only the presence or absence of contraband. Thermal imagers, by contrast, are capable of providing far more details about the area searched, including the time at which the lady of the house takes her nightly sauna and bath. At least until now, the Court's position has been that individuals have no reasonable expectation of privacy in the possession of contraband, and so a dog sniff that reveals only that information is not a "search." The fact that the sniff occurred here at a home, as opposed to a car or at an airport, should make no difference.
Harris is a bit tougher. This time the dog sniff took place at Harris's truck. The dog sniffed the outside of the truck, alerting to the presence of contraband. The resulting search of the interior of the truck's cab turned up materials for manufacturing methamphetamine. The Florida Supreme Court nevertheless suppressed the evidence, for two reasons. First, the state court held that the sniff could not justify a search of the interior of a vehicle. Second, the court held that the dog sniff did not yield probable cause because there was insufficient evidence presented about the dog's training and reliability.
The Florida court's first argument is clearly wrong. If the police have probable cause they may search the entire vehicle, including the interior and including containers inside the vehicle. California v. Acevedo. Whether there was probable cause, however, is a more difficult issue for the government. If training and experience of human officers are relevant to assessing probable cause (and they are), the same matters should be relevant in assessing whether the dog's alert gives us probable cause to believe that contraband is being concealed. Whether the police officer is human or canine, we have to assess the likelihood that the officer has correctly inferred criminal activity from his/her/its sensory observations, and the observer's training and experience are valuable indicators of reliability. Still, I can imagine some hesitancy about turning probable-cause hearings into complicated examinations of police departments' dog-training procedures.
Forms of Legal Scholarship and Law Professors' Influence
Following up, tangentially, on earlier threads about the value of legal scholarship, I'll offer this speculation about forms of legal scholarship and law professor influence. I'm spending a fair bit of time now reading English legal scholarship, and a little German, which reminds one of the distinctions in how law professors approach their work. American law profs are notorious for long articles (but we write fewer books--probably because two or three U.S. law review articles equal a book in word length.) English and German law profs (like most other U.S. academic disciplines) write mostly in shorter forms, often articles of 15-30 pages (plus books). I'd also say that it seems English and German scholars do more work than we do that focuses on a recent court decision, statute, bill or other specific development in law--work that Americans might call (sometimes a bit perjoratively) "close to the ground." (Though there's plenty of critical/theoretical/etc. work as well as this policy-analytical work, to be sure.) My speculation is this: shorter, more practical articles reflect scholars' greater capacity to influence law development and reform in these jurisdictions. The higher the prospects that one's work might matter to courts and legislatures, the more likely one is to write in forms that are accessible and relevant to them.
I can defend this a bit more as to England than Germany. I think English law profs have better odds of having influence on law reform by Parliament and agencies than in we do in the U.S. At least two things point in that direction: England's standing Law Commission, on which law professors serve and which can realistically influence Parliament's agenda; and the English tradition of appointing ad hoc Royal commissions, staffed by respected lawyers and scholars (among others), to study and report on various policy issues, which then often help set legislative reform agendas. (And note that, with law profs on those commissions, other law profs can write pieces relevant to a commission and expect law prof members, at least, to pay attention.) Perhaps the greater capacity to influence policy and law reform inclines scholars to write more often in ways that directly speak to current issues and specific topics in fairly practical ways. (Here is an interesting paper on how 'knowledge regimes'--think tanks and other sources of data/information/analysis that informs government policy--vary across nations. One argument/insight is that information sources affecting politics are more partisan in the U.S. than England and elsewhere.)
This is broad generalization, to be sure. U.S. law profs do plenty of articles with the purpose of saying, in effect, "X line of cases are wrong and doctrine Y ought to be this way," though it tends to take us 60 pages to make the case. Still, I think there's something to the distinction.
I can't say as much about Germany, except that I have a vague sense mostly from hearing this said by those who claim to know, that by long tradition German legal scholarship carries more weight with German courts (and even legislatures?) than American scholars' work does with U.S. courts. Others surely have better information and insights. BTW: German law profs, I've noticed, seem also commonly to produce very short pieces--2-5 pages--that are basically case comments. I'm a bit puzzled about the utility of these, unless German legal materials lack equivalants to our various law update/summary services (e.g., U.S. Law Week, Cornell's LLI, or various good blogs), which seems unlikely.
Monday, October 29, 2012
The Punishment Jurist
I've posted a new essay, The Punishment Jurist, a short critical history of the thought of Sir James Fitzjames Stephen, whose manner of expression is as furiously powerful as the wind of a hurricane. Blow, winds, and crack your cheeks! rage! blow!
Internships, the third year, and the German model
I recently commented on one feature of Geman legal education (4-hour-long lectures with no assigned reading) that most Americans, I think, would find a dubious model. I'll now flag another feature that not only strikes me as good practice but says something about the arguable flaws of U.S. lawyer training, and maybe law school's third year and overall cost, about which there is now a cottage industry of criticism.
After completing the undergraduate law program (at low or no tuition), aspiring German lawyers take the first of two state exams. Then, they embark on a year or two legal internships, for which they receive a modest government-funded salary. After that, they take the second exam to become licensed attorneys. (Other nations, e.g., Italy, use similar systems, though not always with state-funded pay). Pre-Langdell, U.S. lawyers were commonly trained in law office apprenticeships. But modern U.S. legal education has no formal apprenticeship component, though we recognize experience is necessary. Our de facto model model has been (especially for elite schools feeding elite firms) that firms provide the practical training in a lawyer's first year or two of practice. But they do so to fully licensed lawyers, who are paid starting-lawyer, not trainee-intern, salaries. Some state bars have added very modest gestures in this direction; in the distant past when I joined the Georgia bar, we had a post-bar-exam requirement to take intro-to-lawyering CLEs and observe some court proceedings. And law schools have added more training in law school clinics, for which students pay rather than get paid.
Firms complain about paying new lawyers whom they must still train. And perhaps students ought to complain about paying tuition for on the job training in law school clinics. I'm not entirely sure; it depends in part on whether law school clinic instruction adds sufficient value over what one gets from an internship experience otherwise. I'm confident it can, but I won't venture a view on whether it's enough to merit current tuition rates.
Our key difference from the German and other systems, it seems to me, is the point at which we license attorneys: basically, after classroom training but before apprenticeship training. If law school graduation and a bar exam entitled one only to legal apprentice-intern status, it might help solve the collective action problem firms face in wanting to pay first-year associates less because they're really trainees. (Granted, they've managed cut first-year salaries in recent years anyway, but not to clerk-level pay.)
But the collective action and path-dependence problems of any shift are formidable.Law schools are deeply invested in three-year programs (rightly or not), backed by AALS and ABA accreditation control, and states control bar admission standards. I'm not up on all the extended critiques of U.S. law schools. But our reform of third year curricula away from the Langdell-inspired model strikes me as a second-best response constrained by the barriers to moving to something more like the German internship/licensing model (and with limited prospects for doing much about tuition rates and student debt). On the tuition point, the German and other European models are almost too distant from our own political economy to be viable comparisons: the U.S. in the last generation has steadily reduced public subsidies for higher education as part of its broader privatization and shrinking of much of the public sector (military/security/prison sectors aside).
Saturday, October 27, 2012
Orphan Works and Mass Digitization
You can enjoy the second and final day of In re: Books, a conference on law and the future of the book, here. This morning (9 am EDT), our panel will consider how to resolve the orphan works problem - what does one do when one wants to use a copyrighted work, but cannot find the owner after reasonable effort - and how mass digitization projects making getting a right answer more important than ever.
Panel Five: In re Backlist (9:00 - 10:30)
Printed books have existed for more than five centuries. Bringing this immense backlist into digital form presents both challenges and opportunities. This panel will discuss the twinned problems of orphan works and mass digitization.
- The causes of and extent of the orphan works problem
- The Google Books project and litigation
- The future of physical and electronic archiving
- Are the "digital humanities" an oxymoron?
- Orphan works reforms, legitimate and otherwise
- Jake Linford, Florida State University (moderator)
- Matthew Sag, Loyola University Chicago
- Pamela Samuelson, University of California at Berkeley
- Jule Sigall, Microsoft
- and our mystery panelist!
With Friends Like These: Obama's "First Time" Ad
What would the last two weeks before an election be without some fun controversy to divert us from real issues, eh? The Obama campaign's "First Time" ad compares voting to sex, and urges young women to vote for the President's re-election.
I find the ad distasteful, as do many others, but my point here is not to criticize the ad or its message per se. I do not know what the political effect will be. It might be that voters targeted by the ad find it informative or funny, and perhaps it will end up gaining the President some votes. But it is certainly possible that the backlash created by the ad will have quite the opposite effect.
Which brings me to my point. One of the reason the Supreme Court has protected independent expenditures in cases from Buckley to Citizens United has been that such expenditures may not be a help to the campaign. That is, it's unfair to limit a candidate's ability to speak because someone else has spoken for him, when the supporter's speech is different from the message that the candidate would prefer to make. Until now, I have used hypotheticals to illustrate the Court's point, but this ad illustrates it better than I could have imagined -- even though this was an Obama campaign ad and not the speech of an independent group.
Friday, October 26, 2012
Sports Law in Malibu
It is my pleasure to announce that the Pepperdine Law Review will host a Sports Law symposium on Friday, April 5th, 2013. The event, titled The New Normal in College Sports: Realigned and Reckoning, will take an in-depth look at various issues in the ever-evolving world of college sports. The current schedule of distinguished panelists reflects a wide-range of expertise, such as: scholars Michael McCann, Matt Mitten, Daniel Lazaroff and others (including little 'ole me); broadcast professionals Andrew Brandt and my own colleague Roger Cossack; and other panelists with unique NCAA and conference leadership perspectives such as Brian Halloran and Britt Banowsky. If that's not enough, I submit for your consideration a link to the historic, average temperature in Malibu on April 5th. Have a wonderful weekend, and I'll see you in April!
It's not how you blog, it's how you lookAt his blog Noncuratlex, Kyle Graham (Santa Clara) proposes new mottos for other law blogs. Both of my current homes make the list, although with a strange obsession over how we look: Prawfs ("Please Don’t Judge Us by Our Website’s Hideously Ugly Color Scheme") and CoOp, where I'm visiting this month ("Check out the Pretty, Pretty Logos of Many Leading Law Reviews"). My favorite was SCOTUSBlog: "The True Winner of the ACA Litigation". Quite true.
The Future of Books at NYLS
I'm at a wonderful conference, In re Books, hosted by New York Law School and Internet / copyright guru James Grimmelmann, and you can attend, at least virtually: https://www.nyls.edu/centers/harlan_scholar_centers/institute_for_information_law_and_policy/events/upcoming_conferences/in_re_books/webcast
The remedy to be applied is distancing speech
I have not written about the numerous controversies that have sprung up over anti-Islam ads by the American Freedom Defense Initiative on public-transit billboards throughout the country. The ads feature the slogan "In any war between the civilized man and the savage, support the civilized man" and urge people to "Support Israel/Defeat Jihad." Transit authorities have sought various ways to deal with ads that many find offensive and which have sparked fears of both anti-Muslim discrimination and Muslim violence. Efforts to block the ads have, quite correctly, failed--transit billboard spaces are public fora and the objection is pretty clearly content- and viewpoint-based.
One solution to post disclaimers next to the AFDI ads, stating that Muni "doesn't support the message" (San Francisco's Muni) or, for those who want legal detail, "This is a paid advertisement sponsored by [sponsor]. The advertising space is a designated public forum and does not imply WMATA's endorsement of any views express." (Washington, D.C.'s WMATA). Pam Geller, a conservative blogger, co-founder of AFDI, and driving force behind this ad campaign, derided the San Francisco plan as "the manifestation of Sharia in Western society," which seems just a tad overwrought.Obviously, government can respond to private speech in a public forum; a disclaimer distancing the government from AFDI's message is one very good way to respond to or oppose a message being espoused in the forum. We might question whether it is necessary, whether anyone would seriously believe the transit authority endorses every message on every billboard in the Metro stop. But making that disassociation explicit seems an appropriate way for government to proceed.
But there arguably is something different at work here than simple government speech. Here, the transit authorities are responding to a message through and with the message itself. The government is slapping its own message right next to (and as part of) the private message and using the original message as the vehicle for its own. This then looks less like government counter-speaking to the private speaker than the private speaker being compelled to counter-speak to itself. By making the counter-speech part of the private speech, it looks a lot like mandatory warnings, which ordinarily raise concerns outside the commercial speech context. So the transit authority could post signs throughout the forum explaining designated public forums, its obligation to accept the offensive ads, and its non-endorsement of the message; but its power to place that sign next to particular billboards from which it wants to distance itself is more limited.
Alternatively, perhaps the disclaimer is better understood not as government counter-speech (which receives no First Amendment scrutiny) and more as a condition on, or term of access to, the traditional public forum (akin with having to pay a fee), which does receive constitutional scrutiny. Then the question is how broadly government applies the new practice. It would be plainly unconstitutional if the government singled out only this speaker or message for a disclaimer or if it singled out only certain speakers or messages in content-based terms. The WMATA policy apparently will apply to all "viewpoint" ads, a non-legal term that I am guessing means noncommercial ads. That is better than only targeting AFDI. But distinguishing commercial and non-commercial is still content-based, so WMATA must justify the distinction; the likely argument is that only noncommercial speech requires a disclaimer because only noncommercial speech creates a risk that the authority will be associated with the controversial or offensive message (although I wonder how true that is). Assuming that these disclaimers are more than ordinary government speech and thus are subject to some First Amendment scrutiny, the transit authorities would be better off using disclaimers to all ads of all kinds.
JOTWELL: Vladeck on Collins & Nash on federal crime in state courtThe new review essay in the Courts Law Section of JOTWELL is by our own Steve Vladeck, reviewing Michael G. Collins and Jonathan Remy Nash's Prosecuting Federal Crimes in State Courts, published last year in Virginia Law Review. Steve argues that their detailed historical analysis has broader implications for the ability of Congress to authorize any type of adjudication in non-Article III tribunals.
Jacques Barzun, R.I.P."Cultural Critic Saw the Sun Setting on the West." More here. And, you can buy his Dawn to Decadence here.
Thursday, October 25, 2012
Vischer selected as new dean at St. Thomas
I am delighted to report that Prawfs-guest, and my Mirror of Justice colleague, Rob Vischer, has been selected to take over as the new dean of the University of St. Thomas School of Law. Tom Berg has the announcement, here. Rob does great work in law-and-religion and legal ethics, and he will, I have no doubt, building on the record of success that St. Thomas, in just a few years, has already put together. (See, e.g., the scholarly-impact statistics in this piece.)
Congrats to Rob, on this, and on his new book, Martin Luther King, Jr. and the Morality of Legal Practice: Lessons in Love and Justice.
Creating Stumbling Blocks
Below, Paul has a critical comment on some of the interesting posts now swirling about at Concurring Opinions. I've been enjoying them, too, and thought to remark on the following in Professor Rebecca Lee's post: "Although Brian Bix understandably wonders whether legal academics have the attributes and skills to best advance social justice causes, it seems to me that law professors, even if not especially activist-inclined, through their research and teaching help provide the building blocks for those who may be more so. Legal scholars whose expertise tends to focus on deconstructing theories and unpacking doctrine certainly contribute by helping to light the spark for others who then reconstruct them toward change."
While I appreciate the thoughtfulness and the sentiment of the post, my own view is a little different. I don't have a desire to create building blocks, whether for the actively or passively disposed. I do have a desire to create stumbling blocks, inasmuch as I've found it to be educationally satisfying -- for my students and for me -- to chew and re-chew the problems and quirks of doctrine, legal institutions, and theory, with the explicit aim of ferreting out additional, unlooked-for, and (sometimes) surprising problems and obstacles. As a writer, it seems to me that my ends are to think and express interesting and, as I see it, true things about law, or to react to the interesting thoughts of others. As a teacher, my ends are to get my students to understand well and reflect on existing law, and to think their own interesting thoughts about law. Often enough I fail: I think extremely boring or conventional thoughts, for example, and when I realize it I reproach myself (at times in a wretchedly melancholy state of splenetic ennui). But my tasks have nothing overtly to do with inspiration (an altogether inexpedient and unpredictable thing to aim at) or block-building for the construction of an imagined edifice. Of course, I would find it extremely congenial that my students themselves aimed to change the law in the direction of their choosing or instead aimed to make a good and fruitful practicing life within it. Both of these paths, I should add, represent different possible active legal lives, although I will admit that I am unsure whether they are both "activist." But those will be their aims, not mine.
Comparative notes on German legal education
I'm spending that fall with the law faculty at University of Muenster, Germany, and learning some basics of German legal education in the process. I knew that German lawyers must take two state (i.e., bar) exams to be fully licensed, one after completing university, the second after a year or two rotating through low-paid internships with law firms, prosecutors, judges, etc. What I didn't know was the basic structure of undergraduate legal education. There are some smaller classes, and a sort of "workgroup" in which 20-30 students pratice 'solving' case files with written answers; it sounds something like written moot court or mock trial, I think. But the core subjects are taught in lecture format, to classes of 200-400 students at a time (which, to be fair, the U.S. has for undergrads in some large universities). Here's the kicker, from a U.S. perspective: lecture classes commonly last 2 or 4 hours, for which students do no assigned reading; the lecture (maybe with powerpoints or handouts) provides the content. One prof I know have tried the American custom of assigning reading for each class (as did I, in teaching a short course here as a visitor), but students won't do it; the culture of no assigned reading is too established.
Another shocker to me: students get *no credit* some law school courses, which (consequently) have no exams. For example, there are four semesters of criminal law. The first two are for credit and have exams; the latter two aren't and don't. Attendance, naturally, drops off in for no-credit courses, but a notable number attend nonetheless, because the course material is on the state exam. (There is no university *degree* for law, by the way--no diploma to hang on the wall. Nor for medicine, education, etc.; only for arts and sciences majors. Professional majors just complete their university course work then take a the relevant state licensing exam. There are law graduate degrees, however, which non-academic lawyers commonly earn.)
As we agonize over the efficacy of U.S. legal education and the value of the third year, there might be grounds for thinking our system doesn't look so bad in comparison. Except for one crucial thing: our sky-high tuition and the consequently high student debt load.
Copyright's Serenity Prayer
I recently discovered an article by Carissa Hessick, where she argues that the relative ease of tracking child pornography online may lead legislators and law enforcement to err in two ways. First, law enforcement may pursue the more easily detected possession of child pornography at the expense of pursuing actual abuse, which often happens in secret and is diffcult to detect. Second, legislators may be swayed to think that catching child porn possessors is as good as catching abusers, because the former either have abused, or will abuse in the future. Thus, sentences for possession often mirror sentences for abuse, and we see a potential perversion of the structure of enforcement that gives a false sense of security about how much we are doing to combat the problem.
With the caveat that I know preventing child abuse is muchmuch more important that preventing copyright infringement, I think the ease of detecting unauthorized Internet music traffic may also have troubling perverse effects.
When I was a young man, copying my uncle's LP collection so I could take home a library of David Bowie casette tapes, there was no way Bowie or his record label would ever know. The same is true today, even though they now make turntables that will plug right into my computer and give me digital files that any self-respecting hipster would still disdain, but at least require me to flip a vinyl disc as my cost of copying.
On the other hand, it's much easier to trace free-riding that occurs online. That was part of what lead to the record industry's highly unpopular campaign against individual infringers. Once you can locate the individual infringer, you can pursue infringment that used to be "under the radar." The centralized, searchable nature of the Internet also made plausible Righthaven's disastrous campaign against websites copying news stories, and the attempt by attorney Blake Field to catch Google infringing his copyright in posted material by crawling his website with automated data gathering programs.
What if copyright owners are chasing the wrong harm? For example, one leaked RIAA study suggests that while a noticeable chunk of copyright infringement occurs via p2p sharing, it's not the largest chunk. While the RIAA noted that in 2011, 6% of unauthorized sharing (4% of total consumption) happens in locker services like Megauploads, and 23% (15%) happens via p2p, 42% (27%) of unauthorized acquisition is done by burning and ripping CDs from others, and another 29% (19%) happens through face-to-face hard drive trading. Offline file sharing is apparently more prevalent than the online variety, but it is much more difficult to chase. So it may be that copyright holders chase the infringement they can find, rather than the infringement that most severely affects the bottom line.
In a way, leaning on the infringement they can detect is reminiscent of the oft-repeated "Serenity Prayer," modified here for your contemplation:
God, grant me the serenity to accept the infringement I cannot find,
The courage to crush the infringement I can,
And the wisdom to know the difference.
All this brings me back to the friends and family question. The study on Copy Culture in the U.S. reports that roughly 80% of the adults owning music files think it's okay to share with family, and 60% think it's okay to share with friends. In addition, the Copyright Act specifically insulates friends and family sharing in the context of performing or displaying copyrighted works to family and close friends in a private home (17 USC s. 101, "publicly"). Thus, there is some danger in going after that friends and family sharing. If the family and friends line is the right line, can we at least feel more comfortable that someone to whom I'm willing to grant physical access to my CD library is a "real" friend than my collection of Facebook friends and acquaintances, some of whom will never get their hands on my vinyl phonograph of Blues and Roots?
More on electoral politics and "Friday Night Lights"
Dan Hopkins (political science at Georgetown), writing at The Monkey Cage, applies a model to predict how the major characters would have voted in 2008. He concludes that pretty much everyone would have voted for McCain, including Mrs. Coach (not sure I agree with that one). He does not discuss Julie Taylor (Coachette, if you will), whose "get-me-out-of-this-small-town" attitude likely makes her a Democrat. Definitely worth a read.
Legal Intellectuals on Law School Reform
Concurring Opinions has been having a long and fairly interesting group discussion, with plenty of guests, about Robin West's new book Normative Jurisprudence. I think these CoOp book discussions are great, although I think the authors should be encouraged to delete the first one or two sentences of each post, in which a good deal of general flattery is thrown around. (The same accusation, in fairness, has been made by others about plenty of posts and comments here.)
I want to link to a couple of posts that appear to focus on curricular reform in law schools: this one, by Rebecca Lee, and this one, by Chai Feldblum. They are certainly thought-provoking, although rather hard to pin down; and it should be said that Feldblum has done a good deal of well-known and highly practical work in training lawyers. Still, these entries strike me both as highly problematic, and as potentially indicative of a serious gap between the ways different law professors discuss things like law school reform, curricular or otherwise, and also of a gap between the ways that some legal academics discuss law school reform compared to the ways that students, lawyers, and recent graduates struggling to find actual jobs discuss it. I won't say much more, because 1) I'm not sure my reasons for feeling this way are fully thought out, 2) I'm not sure I wholly understand their posts, and 3) to some extent I think my point, even if not fully thought out, will be evident to anyone who reads those posts.
I will add one thing, though: It seems to me if Feldblum is serious about thinking that "it is essential for law schools to give students a rich grounding in theories of justice concomitantly with teaching them such legal skills," and that "giving students a rich grounding in theories of justice is imperative both to changing our legal approach and our scholarship in the manner that [West] is suggesting, then there are models out there of law schools that combine "a thick understanding of justice and moral goods" with efforts to train and help students to implement those thick understandings in the real world of lawyering. The one that comes most to mind is Regent Law School.
Wednesday, October 24, 2012
Recently I've been researching the antitrust and communications law issues posed by various league sports' broadcast contracts (that's broadcast with a little "b" for you telecom wonks (and you know I say that with affection)). One of the more interesting developments in the arena is the birth of the University of Texas' Longhorn Network (LHN). LHN provides hook 'em viewers total access to all things Longhorn, including team practices and interviews with coaches.
LHN is managed and delivered to distributors by ESPN. In exchange for content, ESPN will pay UT $300 million over twenty years. Now since the academy may just be the last place where that's still considered real money; it was with a bit of disbelief that I read an article in which Longhorn coach, Mack Brown, listed some "first world problems" LHN was causing him. Here are some brief excerpts:
[Problem 1, the opponents]: "We know they (opponents) have it for a fact," Brown said. "Lots of them do. And people are taping it across the country and sending it to the coach if they don't have it in their area. . . . "It's in Waco. Baylor sees every practice. So it's not like it used to be. We're a little overexposed." [ed. note - the LH's only transmit the exercise portion of their practices, not the actual plays].
[Problem 2, the time commitment]: Brown said he's spending six hours a week minimum preparing, participating or traveling to the studio for shows that air on LHN. [As Brown says] ,"And I do have three shows over there that take you 20 minutes to get there and 20 minutes to get back and an hour to do them. So there's no question it takes away some of your time."
At first I thought Mack sounded a bit like a whining 1L but I quickly abandoned that analogy as being unfair to 1Ls -- after all 1Ls pay us, Mack is paid millions. If Mack feels he (or his staff) is now personally obligated to do more under the new regime I have just two words of advice: "contract modification." But then again, I'm not a Longhorn follower--and I don't watch LHN--so I may be missing the wellspring of fear that the network will reveal team secrets and strategies so important $300 million is simply inadequate compensation. If I am missing such a point, I have a strange suspicion you just may tell me about it.
What is it about Common Law jurisdictions?
I blogged recently on America's notoriously high incarceration rates. An interesting, related fact, much less well known I think, is that common law jurisdictions worldwide have, on average, higher incarceration rates than civil law jurisdictions. (Harvard Law Prof. Holger Spamann has a 2008 working paper on this that he has not published or even posted on ssrn; nonetheless it's available from a U.Texas weblink. Publish it, Holger!) This is one insight from the growing work on "legal origins," most of which focuses on private law and economic growth topics. This scholarship tries to isolate the effects of a nation's legal system by looking to its origin (often through colonization) in either a contintental (mostly German or French) civil law model or in English common law.
The difference between the average common law jurisdiction's incarceration rate and that of the average civil law jurisdiction is not nearly as dramatic as the outlier status of the U.S. incarceration rate compared to all others, but it is notable and statistically signficant nonetheless. What is likewise interesting is that common law nations also (or nonetheless?) have, on average, somewhat higher crime rates.
I can't offer an explanation for this and won't survey the various theories. But I will venture a speculation and an observation. The observation is that common law nations tend to value, and certainly claim to value, limited government and individual liberty more highly the civil law nations, yet they end up with criminal punishment policies--coercive state practices--that limit or deny liberties to a greater share of their citizens. The speculation is that some part of the explanation lies well beyond a deterrence-oriented cause-and-effect framework of more punishment responding to more crime, or even of more crime perversely resulting from more punishment. I suspect the higher crime rates have something to do with with the stronger tradition of individual liberty and concomitant suspicion of government; maybe something like less government and respect for government > lower social solidarity and social order > more interpersonal violence > (a) more punishment to address the violence and/or (b) a political ethos that supports punishment in part because of the background rate of violence. That suspicion is informed in part by the thesis of Randolph Roth's excellent book American Homicide, and by the “civilizing process” thesis of German sociologist Norbert Elias. Alernately (or also), maybe it has something to do with ideas of liberty and citizenship: high valuation of liberty travels with ideas of greater personal responsibility for that liberty and harsher treatment of who abuse and forfeit it. Or, higher liberty values travel with greater individualism, which incline polities toward weaker norms of solidarity with and reintegration for violators. Again, mere hunches.
The Wrong Way to PSA
People have been discussing Bridget Mary McCormack’s recent, 4-minute web ad in support of her candidacy for the Michigan Supreme Court – a video which features the reunited cast of The West Wing. The ad is clever enough for what it is – a way to raise McCormack’s profile in a down-ballot race where citizens are less likely to vote. And it says all the things a judicial candidate must say to win over voters: McCormack favors “justice for ordinary people, for families with sick kids, for victims of domestic violence.” She has "fought to free innocent men and women, and put the actual criminals behind bars." Reciting these qualities is somewhat trite, of course – what judicial candidate would ever come out as soft on crime or against families and victims? – but otherwise, it’s all well and good. As an advertisement for a particular candidate in a contested race, it seems quite effective.
However, a shorter version of the ad – pitched as a nonpartisan public service announcement – fails spectacularly. That version retains the identical West Wing “walk and talk” setup but omits any specific mention of McCormack’s qualifications. Instead, it positions itself solely as (in CJ’s words) “a gentle reminder for people to look for the nonpartisan section on their ballot and go vote there.” Voting is important, the ad tells us, because state supreme courts rule on issues that affect millions of Americans, like civil rights, workplace rights, and the environment.
These are certainly issues where an informed vote matters. But in the short-form ad, the Bartlett Administration braintrust offers no guidance whatsoever on how citizens might actually cast such a vote. Indeed, the ad doesn’t even recommend that citizens learn anything about the candidates before stepping into the voting booth. The cognitive dissonance is jarring: your vote is critically important, the ad suggests, but not so important that you should take the time to enlighten it in any way.
The short-form PSA is all the more troubling because it deliberately targets citizens who engage in straight-ticket voting for legislative and executive races (i.e., checking one box to vote for all Democrats or all Republicans). As Meryl Chertoff and Dustin Robinson recently highlighted, this “check one and you’re done” approach raises significant accountability problems in states with partisan judicial elections. In nonpartisan judicial races, the dangers of voter ignorance are exacerbated even further: without any readily available information, voters who otherwise rely on party affiliation are apt to choose among candidates based on factors like gender, perceived race or ethnicity, a familiar-sounding last name, or even complete whimsy. Toby, Josh, Donna and the gang may as well look into the camera and say, “Go into the booth and flip a coin. People’s lives depend on it.”
There are better ways to get out an informed vote in judicial elections. Two years ago, the Colorado Bar Association sponsored this lighthearted PSA which encouraged voters to actually learn something about their judges before deciding their fates in the voting booth. To be sure, Colorado benefits from some structural advantages over Michigan, including retention elections and a formal judicial performance evaluation program (the benefits of which I discuss here). But at least the message in Colorado was the right one: if you’re going to vote in judicial elections, be responsible enough to learn something about the people on the ballot before you do. Regardless of how your state chooses judges, that’s a good message for all of us to take into Election Day.
Prominent Law School RejectsAs a variation of Howard's, and Michael Madison's, posts on famous law school drop outs, it's surely possible to put together a list of accomplished notables who never got the chance to drop out because their applications to law school were rejected. George W. Bush, for example, was rejected from University of Texas law school (and had to settle for Harvard Business School). The list of women and African Americans who were rejected in the era of racial and gender barriers is an obvious source; Thurgood Marshall, rejected from University of Maryland law school (but admitted to Howard), comes to mind. The more interesting half of such list might be those who went on to prominent careers in law despite law school rejection. The late Harvard Law School Professor Bill Stuntz used to acknowledge that his first application to University of Virginia Law School was rejected (which he joked with characteristic if absurd modesty signaled the school's wise judgment).
Tuesday, October 23, 2012
What if they'd stayed in law school?
Michael Madison (guesting at Faculty Lounge) started a discussion about famous people who have started, but not completed, law school before going on to fame and fortune. He and his commenters have identified Gene Kelly, Paul Simon, and Cole Porter (who, while giving up the law, famously set the old standard for summary judgment in a case still included in many case books, even if students no longer know who Porter was).
Can you think of others? Leave comments here or at The Lounge (or both).
Outsourcing NCAA enforcement
An excellent and thoughtful essay in The Atlantic from my friend and law school classmate Stephen Miller, arguing that the NCAA should charge an outside body with conducting major investigations and punishments. Steve is a former Scalia clerk and AUSA; his practice now includes representing athletes in NCAA proceedings. He also is a lifelong Kentucky fan, so he is personally familiar with the vagaries of NCAA enforcement.
This is an interesting take, especially if we begin from the premise that the NCAA is here to stay, that there is good reason to regulate intercollegiate athletics and the conduct of student-athletes (in terms of amateurism, academics, etc.), and that self-regulation, given the structure of college sports, is unworkable.
A review of Jenkins, "The Partisan: The Life of William Rehnquist"
This weekend, the WSJ ran my review of John Jenkins' "The Partisan: The Life of William Rehnquist." It is a pretty tough review of (what should be seen, whether or not one shares my high opinion of the former Chief, as) a very bad book. That said, it struck me -- apart from the (minimal) merits of this particular book, that the genre is a tricky one:
It is true that gripping judicial biographies are difficult to write. The story
of the Supreme Court is compelling and dramatic, but the justices' own stories
are usually prosaic: They are, for the most part, gifted and well-credentialed
lawyers, not unlike many thousands of others, who work in relative privacy on
fairly technical questions and are, from time to time, hauled into the headlines
by virtue of a close vote in an abortion-regulation or affirmative-action case. . . .
The Lost Posner Book Reviews...
I'm a big fan, in the main, of both Richard and Eric Posner's book reviews in the New Republic, among other places. Thanks to a pointer from Dave Lat on FB, I stumbled upon this selection of excerpts from the Elder's book reviews over at Kyle Graham's blog. Check it out :-) Here's a funny send-up of what RAP would say about Moby Dick:
Fairly early in the text, it becomes clear that Ahab could maximize his returns by pursuing other whales, instead of Moby-Dick. True, Ahab lost his leg to the creature, but that is a classic sunk cost. (Can you see why?) That Ahab foregoes other, better opportunities for oil and ambergris in his hunt for the white whale represents a mystery that the author never satisfactorily explains...
More Allegations Against Thomas Jefferson
The law school, not the slave-owner. In this case, they come via Law School Transparency, which reports that a former assistant career services officer at TJ, in a sworn statement, "admits that she fabricated graduate employment outcomes for the class of 2006. [She] alleges that her fraud was part of a deliberate scheme by the law school’s administration to inflate its employment statistics." The release, along with the statement, is available here. Three things about this: 1) Obviously, I am in no position to make a statement about the accuracy of the allegations. 2) Without seeking to minimize the allegation, I will note that it describes only conduct by one school in one year. The statement was made in August, in connection with current litigation against TJ. I'm not sure why it is being publicized now, whether because it was just recently noticed or as part of a media strategy on the part of plaintiffs. The school says it "stands behind the accuracy of the data that we submitted to the American Bar Association," which certainly seems like a denial, albeit in some ways not a full-throated one. 3) I have had some limited dealings with the folks at Law School Transparency and have been very impressed by the group and its efforts.
UPDATE: A response from TJ is here.
The New Normal
Two news items from across the pond highlight the adaptability of musicians, but also a highlight a shift from music as a good to music as an experience, necessitated by the ubiquity of file sharing.
+, the debut album by British singer and producer Ed Sheeran, has apparently been downloaded illegally more than any album in the U.K this year. Sheeran is sanguine about the whole thing, gushing on Twitter about purchasers and free-riders alike, because he concludes that both types of fans are buying tickets, and as Sheeran puts it, "I'm still selling albums, but I'm selling tickets at the same time. My gig tickets are like £18, and my albums £8, so ... it's all relative."
Venerable British pop stars Squeeze are also moving to a more DIY, performance-based financial model this year. Fans who attend concerts can choose to purchase a download of the show at a "pop-up" shop after each performance, and meet the band as well. To date, this is the only way for fans to get their hands on Squeeze's first new songs in 14 years...at least until they are posted online. Squeeze founder Glenn Tillbrook is also excited about this brave new world. Tillbrook states, "I love the opportunities and surprises thrown up by the digital age and the fading away of the major labels. Being able to innovate and take control of our own destiny is something I could only have dreamt of back then." And for bands like Squeeze, the old label-centric business model may well have passed them by. As Tillbrook notes, “With the traditional record label no longer relevant for us, our relationship with the merchandisers is increasingly important in order to help us deliver quality products for our fans.”
As I postulated a few months ago, with regard to comic books offered online, I can't help but wonder whether the end result will be less professionally crafted music because the system will support fewer professional craftspeople, or whether we'll just get more artists who are more comfortable with a DIY esthetic, and fewer that rely on big machinery or well-placed intermediaries to make things happen.
It may be that the most important thing a new artist can do is leverage networks and relationships. Here's an example: I'm a huge Josh Ritter fan. Chris Thile's band, Punch Brothers, recently covered a Ritter song, and offered a free download of it for fans that purchased the new Punch Brothers EP. How did I find out? I follow Ritter on Twitter, and he let me know. I wouldn't have otherwise purchased the Punch Brothers EP, but was excited about this opportunity. Once upon a time, you could rely on certain labels for a certain aesthetic in its recorded offerings. Relationships between artists might in the future do some of that same work.
Monday, October 22, 2012
Why I Do Not Watch the DebatesAs you all know, the third and final presidential debate is held tonight. I do not expect to watch. This isn't because I dislike politics. I love politics. No, check that. I love studying politics. I love the strategies and the personalities, for the same reason I love history and in the same way I can appreciate a good sporting event when I don't care who wins.
But the situation is entirely different when I do care who wins. When in the midst of a campaign or a political controversy, it's harder to see politics as a game. Now it matters. My blood pressure rises as the other side makes some move I perceive as unfair. When I care about a candidate, I hate that who "won" a debate turns on who looks at his watch or who delivers the "zinger" rather than who has the better argument. I become aggravated as my candidate does something different from what I would do. I feel elation or relief in victory and utter despair in defeat. And all the while I know that politics is a game for the biggest stakes of all. The wrong choice could meen irreparable damage to the country's finances/resources/morals/health/education/civil liberties/security.
Enjoy the debate. I'll be watching the baseball game -- and I don't care who wins.
God, Football, and Texas
Law and religion scholars and others may have been following with interest the case of a Texas high school football cheerleading squad that has been litigating for the right to display banners featuring religious messages--typically Bible verses--at football games. Here's a recent story about a state court ruling last week enjoining the school district and allowing the practice to continue, and here is the state's petition to intervene in the case, which includes some relevant details.
The New York Times has an editorial about the controversy today. It argues that the conduct violates the Supreme Court's 2000 decision in another Texas football/religion case, Santa Fe Independent School District v. Doe. The editorial says that in that case, "[T]he Supreme Court said the Constitution prohibits a student from delivering prayers over the public address system before each football game because that practice violates the First Amendment’s Establishment Clause, which forbids government from favoring a particular religion." It argues that the various public officials, including the governor, who have jumped very visibly onto the cheerleaders' bandwagon "are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one."
Some of my friends and co-bloggers take a particular delight in bashing the Times for its failings; I'm not one of them.But I think the editorial overstates the meaning of Santa Fe and lacks enough information to say whether the banners' display violates the Establishment Clause. The problem in Santa Fe was not simply that religious messages were being broadcast at a school event. In some circumstances, such as the inclusion of religious messages in a valedictorian address at a graduation by a student who has been fairly selected according to academic criteria rather than by virtue of the likely content of her speech, there is no constitutional problem with such a religious message, even if the school's resources are used to amplify and broadcast it. The problem arises when the school, through overt or covert means including the use of fairly foreordained school-administered student voting, is actively involved in collaborating with students to encourage or engineer the dissemination of religious messages. The summary of the editorial on the Times's web site reads: "A Texas case about religious expression at a public school is testing whether a landmark Supreme Court ruling is still the law of the land." The editorial itself doesn't go that far, and I don't blame the editorial writer for what was posted by some website staffer. But that statement certainly is overstated. The question is whether Santa Fe applies in this case; this isn't a frontal assault on that opinion, as Texas's petition makes clear. Nor does the editorial have anything to say about Texas's Religious Viewpoints Antidiscrimination Act, which arguably applies here and which has both uncontroversial and more controversial aspects.
Does Santa Fe apply here? That depends on the facts, which unfortunately I haven't been able to find in any decent form in the stories covering the controversy, or in the short judicial order enjoining the school. The cheerleaders say they chose the messages on the banners themselves, and made them off school property. That's a start. But I would want to know whether that choice was unilateral and unanimous, whether the school was openly or quietly involved in the process, what rights a single dissenting cheerleader would have to display a different banner ("The Kountze Lions--products of evolutionary triumph!"?), and so on. Without such facts, the practice might be permissible. If the school, the coach or faculty advisor, or other officials were more involved, however, it would be a different story.
Those who are interested in Texas high school football and the Religion Clauses, and who have already burned through all the episodes of Friday Night Lights, may want to read my paper on the Santa Fe case. For a broader overview of Texas school conduct--and some public threats against those who have complained about various religious practices, including school-sponsored practices, in and around Texas schools, especially since Santa Fe--see this recent ACLU of Texas report, available at a link here. Whether the cheerleaders are within their rights, which they may be, or not, it's worth reading this report and remembering that there's a reason the plaintiff in the Santa Fe case was called "Doe."
UPDATE: Marc DeGirolami has a post on the case here. He notes quite correctly something I should myself have noted: that the Santa Fe defense seems to have dropped out of the litigation. Like Marc, I find that odd.
Intractable U.S. incarceration policy
Berkelely Law's Jonathan Simon is a reliably perceptive analyst of American criminal justice policy. His observations here on Calif. Gov. Brown's recent statements about prison policy are depressingly insightful. Brown, speaking on the state's plan to meet the Brown v. LaPlata mandate that it reduce prison overcrowding from 200% capacity to a mere 137% of capacity, assured the public that reform would avoid "let[ting] felons out of prison." It's another small sign of politically intractable reform of America's incarceration rate--the world's highest by far--has become, even in the wake of the 2008 crash and state budget crises.
The U.S. incarceration rate grew from 220 (per 100,000 residents) in 1980 to 753 in 2008. The same year, only two other OECD states had rates over 200 (Czech Rep., 206; Poland, 224); data here. Criminal justice scholars and policy advocates had some hope that budget pressures, plus twenty years of declining crime rates, would prompt states to reverse policies that keep prison rates so absurdly high. There have indeed been a range of state efforts to moderate sentencing policy. But the results have been depressingly modest. Incarceration growth rates slowed in 2008-09, but it was growth nonetheless. 2010 (the latest data year) saw the first decline in the U.S. prison population in decades--a whopping 0.3%. Brown's rhetoric--from a Democratic governor in a Democratic state that spends more on prisons than higher education despite its intractable budget crisis--suggests we shouldn't get our hopes up for that rate of decline to increase much. In fact, some states have managed to cut prison costs without cutting prison populations; 2/3 reduced prison expenditures in 2009-10, but only 1/2 also had a decline in prison populations.
An insightful report by the Center for Economic and Policy Research calculates that U.S. governments could save $16.9 billion a year (22.8% of corrections spending) by shifting half of current non-violent inmates to probation and parole, a policy change that would put America back to its 1993 incarceration rate of a mere 521. That would drop us--huge victory!--to merely the world's fourth highest incarceration rate, behind Russia, Rwanda and Cuba. Alas, that achievement doesn't seem likely anytime soon.
Friday, October 19, 2012
"The Freedom of the Church in the Modern Era"
Last weekend, I participated (along with Paul Horwitz and GuestPrawfVets Caroline Corbin, Rob Vischer, Nelson Tebbe, Michael Helfand, and others) in what was, I think, the most rewarding academic conference I've experienced: "The Freedom of the Church in the Modern Era." Thanks and congrats to Larry Alexander and Steve Smith, of the University of San Diego, and their new Institute for Law and Religion, for organizing and hosting. Here's the conference blurb:
The Western commitment to freedom of religion, reflected in the United States Constitution and in a variety of international human rights documents, arguably descends from the medieval campaign for libertas ecclesiae—“freedom of the church.” In modern times, though, it seems that the progeny (freedom of religion) has largely displaced—and forgotten—the parent (freedom of the church). Jurists and scholars debate whether there is any constitutional commitment to freedom of the church, or church autonomy, or institutional free exercise. And they often suppose that such commitment, if there is one, must be derivative from a more fundamental commitment to freedom of religion.
The issue of freedom of the church has become urgent in recent years. Claimants sue churches in secular courts for what they perceive as abuse or discrimination. Government agencies act to compel religiously-affiliated institutions to provide goods or services such as contraceptives or abortion. In 2011 the Supreme Court considered for the first time a case raising the issue of the so-called “ministerial exemption” for churches from some federal regulatory laws. Opposing the position taken by numerous lower courts, the Obama Administration argued in that case that the Supreme Court should reject the exemption.
This conference will accordingly consider issues related to freedom of the church . . .
Micah Schwartzman and Rich Schragger presented their paper, "Against Religious Institutionalism" (discussed earlier here on Prawfs); Steve and Paul added to the body of important work they've done on the institutional dimension of religious freedom and the First Amendment more generally; I tried to update and expand my defense of "the freedom of the church" as a still important (i.e., not anachronistic) idea; and a number of us did an interpretive dance-reenactment of the Canossa meeting between Pope Gregory VII and Emperor Henry IV. Lots of other interesting papers were presented, and they should be out this Spring in the San Diego Law Review. Stay tuned!
Swing Staters Have All the Fun
As we march forward towards election day I must admit I'm starting to have a bit of "swing state" envy. I mean, let's face it, it's not as if you East Coasters will tuck in the kiddies and stay up all night, biting your nails until the California results are in. Everyone knows how our story ends. Besides reducing polling costs, the certitude of the California vote means that presidential candidates only need visit us in Los Angeles to make a withdrawal at "Bank Hollywood"--and that makes me a bit cranky and, yes, jealous of you in electorally glamorous states like Ohio et al.
Admittedly, the only election law nuances that I know are that (i) the "swing state" phenomena is a consequence of our Electoral College system and (ii) most states, including California, cast their electoral votes in "all or nothing" fashion, rendering the minority vote irrelevant to the national result. I also know that not all are fans of the Electoral College and a recent proposal, called the National Popular Vote, would basically abolish it and turn presidential elections into a single national election. A number of states (California included, of course) have signed on.
That pretty much exhausts my knowledge of election law. Fortunately, my colleague, Derek Muller, knows much more. Derek has written a fascinating piece titled Invisible Federalism and the Electoral College that will be coming out soon in the Arizona State Law Journal. In his article, Derek argues that proponents of the National Popular Vote undervalue the importance of the Electoral College's support of "invisible federalism" principles. Derek sets forth a strong argument that election law should be left to the mandate of individual states and that state-run elections should continue to operate intra-state, rather than be dumped into a national bucket of votes. For instance, felons can vote in some states but don't have a right to vote in others. In that regard (paraphased through my own naive lens of the subject), the Electoral College may not help California get noticed by candidates, but it may better support Federalist ideals if we continue to let states decide issues like voter eligiblity rather than homogenize the process in a national vote. Hmm, felon voting--not sure that would change the California results either. So for now, it looks like you on the East Coast can still get your beauty sleep and I'll still be cranky.
Thursday, October 18, 2012
Romney's Foreign Policy Team: Binders full of....?
Stay tuned for a further post on the substance (if one can use that word) of Romney/Ryan's foreign policy. But since this has become the Week of Binders, I thought I'd first take a glance at the team the Romney/Ryan campaign has assembled to advise them on foreign policy. Of the 24 individuals listed as special advisers 3 of 24 are women. Two of the women have serious foreign policy experience and one doesn't (Romney's former Lieutenant-Governor in Massachussets).
An article that appeared in Foreign Policy in August, https://thecable.foreignpolicy.com/posts/2012/08/09/who_will_get_top_jobs_in_a_romney_administration, listed around 20 people (including Joe Lieberman and-rather frighteningly-Elliot Abrahams) as possible senior foreign or security policy appointees in a Romney administration. One of these 20 is a woman.
Clearly, for Romney it is the domestic binders in which women (mostly) belong.
As for these other binders they are full of neo- and other cons of various sorts (including Eliot Cohen and Bob Kagan and a former vice-president of Blackwater). More on that soon.
F-Words: Fairness and Freedom in Contract Law
I am participating in a online symposium on Concurring Opinions, where we are discussing Larry Cunningham's fantastic new book, Contracts in the Real World, and where you should check out the rest of the commentary.
As I read "Facing Limits," Larry's chapter on unenforceable bargains, I had to pause and smile at the following line:
People often think that fairness is a court's chief concern, but that is not always true in contract cases (p. 57).
I still remember the first time someone used the word "fair" in Douglas Baird's Contracts class. "Wait, wait," he cried, with an impish grin. "This is Contracts! We can't use 'the f-word' in here!"1 Of course, Larry also correctly recognizes the flip side of the coin. If courts are not adjudicating contracts disputes based on what is "fair," we might think that "all contracts are enforced as made," but as Larry points out, "that is not quite right, either" (p. 57).
Pedagogically, Contracts in the Real World is effective due to its pairings of contrasting casebook classics, juxtaposed against relevant modern disputes. In nearly every instance, Larry does an excellent job of matching pairs of cases that present both sides of the argument. I don't mean to damn with faint praise, because I love the project overall, but I feel like Larry may have missed the boat with one pairing of cases.
As I mentioned, the chapter on Facing Limits is in part about the difficulty of balancing fairness, or equitable intuitions, against freedom of parties to be bound by their agreements. Larry pairs In re Baby M, a case where the New Jersey's highest court invalidated a surrogacy agreement with Johnson v. Calvert, a case where the California Supreme Court upholds such an agreement. As I discuss after the break, I'm troubled that the Court in Baby M could be on the wrong side of both fairness and freedom.
Facing Limits on Surrogacy Agreements
In re Baby M was arguably the first case on surrogacy agreements to reach national prominence. The court found unenforceable a surrogacy agreement between William and Elizabeth Stern, who hoped to raise a child that Elizabeth could not bear, and Mary Beth Whitehead, who wanted to give another couple "the gift of life" and agreed to bring William's child, Baby M, to term. Mrs. Whitehead and her then-husband Richard were in tight financial straits, and the surrogacy deal promised $10,000, "on surrender of custody of the child" to the Sterns.
Once she gave birth, Mrs. Whitehead found it difficult to part with the baby girl she called Sara Elizabeth, but the Sterns planned to name Melissa. To avoid relinquishing the child, the Whiteheads fled to Florida with the baby. When Baby M was returned to the Sterns and everyone made it to court, the trial judge determined that the interests of the baby were best served by granting custody to the Sterns. The Supreme Court of New Jersey agreed with that assessment, but on its way to that conclusion, rejected the validity of the surrogacy contract itself, in which all parties stipulated, prior to the birth of Baby M, that it was in the child's best interest to live with the Sterns.
The Supreme Court's decision ostensibly turned on the unenforceability of the contract because, even in America, "there are, in a civilized society, some things that money cannot buy" (p. 55). But the decision is full of language suggesting that, in the Court's opinion, Mrs. Whitehead didn't know what she was doing. In the very paragraph that the Court assumed that she could consent to the contract, the Court marginalized her capacity to consent.
The Court bought into two tropes often trotted out by those who aspire to protect the poor from themselves: the coercive effects of money, and the inability of the poor to fully understand the consequences of their decisions. The Court was troubled that Mrs. Whitehead, "[t]he natural mother," did not "receive the benefit of counseling and guidance to assist her in making a decision that may affect her for a lifetime." The Court was perhaps suspicious she could not. After noting the distressing state of her financial circumstances, the Court posited that "the monetary incentive to sell her child may, depending on her financial circumstances, make her decision less voluntary."
Fairness and Freedom
It strikes me as unfair to conclude that a mother of two is incapable of considering what it might mean to give birth to a third. Holding the surrogate to the bargain can seem unfair at the difficult moment where she hands over the baby, but I struggle to see how it is any less unfair to allow the parents to invest their hearts and energy into planning for a baby that will come, but will not become theirs.
Turning to the question of the coercive effect of money, the problem with paternalistic protections is they often protect the neediest from the thing they ostensibly need the most. Many interested parties find ways to make money on adoption and surrogacy. It's puzzling, if we are truly serious about protecting the needy, that we would protect them from also acquiring some of the money that we seem to assume they so desparately need.
Here's another way to make the same point: in the wake of Baby M, some states allow surrogacy contracts, and some don't. Hopeful parents who can afford to enter into surrogacy contracts will go to states, like California, where those contracts are enforced. Surrogacy providers who hope to make their money as an intermediary will focus on markets where their contracts will survive judicial scrutiny. Our potential surrogates, however, are more likely to be tied to the jurisdictions in which they reside, at least if the assumptions about poverty in the Baby M opinion are generalizable. So altruistic surrogates will be able to carry a child to term in every state, but those who desire to make a bargain can do so only in those states willing to recognize them. To me, that sounds neither free nor fair.
Larry takes some comfort in the common law inquiry into the best interests of the child, and with that I take no issue. In a case where the contract and the child's interests are at loggerheads, it seems appropriate in the abstract for the best interests to be a heavy thumb on the scale, or even to trump the prior agreement. I'm just not sure that In re Baby M -- a case where the Court knocked out the contract even though the contract terms and best interests were essentially in line -- is a case where the value of the best interest test are best brought to light.
1 I may have slightly dramatized this exchange, although my classmates assure me I did not invent it from whole cloth.
Unemployment Insurance Debated
The presidential debates have focused heavily on jobs, unemployment rates, training, skills, entrepreneurship, and growth. Unemployment insurance, administered through a unique blend of federal and state regulation, plays a key role in sustaining labor market vitality through its various cycles. Unsurprisingly, during downward cycles of high unemployment, debates about the depth and breadth of UI coverage surge. Yesterday on Hufftington Post Live TV, I participated in a debate about whether the "millionaires, prisoners, employed folks, and dead people are gaming the system". As you can guess, that is the wrong question for a serious debate about the effectiveness and potential reform of UI systems. Gladly, my co-panelists and I shifted the debate to questions about eligibility and job search requirements, state variation, economic incentives, and job placement initiatives, asking not just about over-payments but under-payment.
Rick Bales has a little item about it here which breaks down the segment to its minutes.
The Presidential Election and the Lower Federal Courts
Over at the Volokh Conspiracy, Ilya Somin wonders why no one is asking the Presidential candidates about judicial nominations during the debates. I sympathize with the concern but find it a bit misplaced: in any of the typical debate formats, the responses will inevitably tend toward vague descriptions of “strict constructionists” or individuals with sufficient “empathy.” This may rally the base but otherwise offers little insight. (The problem isn’t limited to Presidential aspirants: in their second debate, Massachusetts senate candidates Elizabeth Warren and Scott Brown offered two of the least illuminating answers ever when asked to name their model Supreme Court Justice.)
One way to get better answers on the candidate’s view of the relevance and importance of judicial nominations is to focus on the lower courts. The Supreme Court captures public attention, of course, but it is the lower courts where most citizens have contact with the federal judiciary, and where a President can leave a more lasting legacy. To that end, here are two questions I would like to see posed to the candidates before Election Day:
President Obama, you inherited 41 federal district court vacancies on Inauguration Day 2009, yet during the entirety of your first year in office you nominated a mere 21 people to fill those vacancies. (Fuller details here.) Today there are 62 vacancies in the district courts, representing a shortfall of almost 10 percent. Despite this crisis, and even though you enjoyed a significant Democratic majority in the Senate for your first two years in office, your overall pace of lower court nominations has lagged significantly behind your two immediate predecessors. Why?
Governor Romney, during your time as Governor of Massachusetts you established a Judicial Nominating Commission to vet judicial candidates and send the most promising individuals to you for further consideration. The Nominating Commission was heralded as a model for the country, particularly since it relied on a blind review that did not consider the candidate's party affiliation. Yet some have complained that you stripped the commission of many of its powers toward the end of your term in order to put a more partisan stamp on the judiciary. What lessons did you learn from the Nominating Commission experience, and as President, would you favor the expanded use of senatorial screening committees to help select qualified candidates for nomination to district court judgeships?
Wednesday, October 17, 2012
A Stylish Address...Before the Knives Come OutThanks to Marty, Pam, Paul, and Matt for references to some canonical critiques of canonical works. Poor Herbert Wechsler came in for some wonderful critiques.
Since it's been on my mind, here's one of the smoothest moments of initial address by the critic to the master. From James Fitzjames Stephen's extended critique of Mill's On Liberty -- "Liberty, Equality, Fraternity" (54) -- which is a pleasure to read, even if in the end one sides with Mill (as most people do):
Nothing is further from my wishes than to make a captious attack upon the writings of a great man to whom I am in every way indebted; but in stating the grounds of one’s dissent from wide-spread and influential opinions, it is absolutely necessary to take some definite statement of those opinions as a starting point, and it is natural to take the ablest, the most reasonable, and the clearest.
Today in sanctionable lawsuits
A New Orleans Saints fan named David Mancina has filed a putative class action against Roger Goodell and the NFL, alleging that Goodell and the league's suspension of Saints players entitles Mancina and other Saints fans to damages from (I am not making this up) "the diminishment in the value of their tickets; their personal emotional reaction to the unwarranted penalties inflicted on their beloved team, players, coaches, and executives; and the deliberate reduction of the competitive capability of the Saints due to the selective gutting of the critical components needed to justify the loyalty of Plaintiff and the class." And according to the complaint, he actually had counsel to do this.
The first, obvious response is they lack standing. But the defects in this go so far beyond that. This has to be sanctionable, and I am not someone who is big on sanctions. If one of my students turned this in in a drafting exercise, she would fail.1) The Complaint does not identify any claim, that is any right or legal obligation to the plaintiffs that Goodell or the league breached on the facts at issue. They just ask for damages to fully compensate them, but assert no legal rule that entitles them to recovery, but they assert no legal right to recover. We teach in Civ Pro that "he violated my rights" or "he injured me" is not sufficient in a complaint, even pre-Twiqbal. You never expect to actually see one of those.
2) The prayer for relief asks "that Defendants be duly cited to appear and answer this complaint and after due proceedings for judgment against The Commissioner and the League for damages to fully compensate Plaintiffs, and the Class, for damages, and all other general and equitable relief required in the premises." This is utter nonsense. His prayer for relief is that they be made to respond to the complaint.
3) The complaint asserts as one basis of jurisdiction § 1331, but no indication of how this is a civil action "arising under" federal law.
I am tempted to use this in class next semester, as a sample complaint showing what you absolutely shouldn't do. But this is almost so bad as to not be a good illustration of what is bad. Almost.
Tuesday, October 16, 2012
10 Tips for Giving for a Job Talk that Doesn't Suck
My FIU colleauge Joelle Moreno (who is our Associate Dean for Faculty Research and Development) offers an updated version of her job-talk tips, which we posted last year. As hiring season ramps up this week, hope people, on both sides of the process, find these helpful.
Remember you are salmon swimming upstream
Every school that paid the big bucks to attend the meat market is bringing back a slate of candidates. It may only be six, but more likely it is ten to twelve. This means that the faculty is exhausted before the first candidate even arrives.
Most of you have received bad advice.
If the 75 job talks I have attended over the past dozen years are any indication, most faculty candidates have been advised that the goal is to convince the faculty that you are a deep thinker and the smartest person in the room. This is bad advice. Your goal is to be interesting, to make us understand why you care, and to leave us wanting more.1. Don't be Boring
Your most important and challenging task is not to convince us that you are smart. Assume that all of the candidates we have invited to campus are smart. You have 30 minutes to make us care about your ideas and your work. The best way to do this is to explain why you care.
2. Be Clear
Use road maps and signposts. Begin with a road map for your talk that explains why you are interested in this topic and what you hope to accomplish in your talk and your research. Use signposts to signal transitions (e.g., "I'll begin with a brief discussion of the legal history." "Now I will explain why recent developments in behavioral economics provide new insight.") If we can’t understand what you are saying and where you are going -- what hope do our students have?
3. Don't be Slick
If you try to sex-up your talk, name drop rock star academics, or imbue your talk with jargon or highfalutin theory, you don't sound smart, you sound arrogant.
4. Be Organized
Start strong and end strong.
5. Don't be a Techie, Unless....
Don't use PowerPoint unless you plan to show us: (1) pictures (e.g., If your work focuses on the environmental impact of particular regulations on a rare spotted songbird; show us the bird); or (2) a simple graphic that illustrates complex information (e.g., a graph showing trends, a timeline). If you must use PowerPoint, do not trick your slides out with fancy animations or cute cartoons.
6. Be Prepared
A good job talk provokes questions and debate. This is not a happy accident. You must make this happen. If you present your ideas clearly and explain why these questions are interesting, we will engage with you. The best way to provoke good questions and comments is to practice giving your job talk to three of the smartest people you know -- who know nothing about the subject -- and then revise based on their suggestions.
7. Don't be Unrealistic
Don't waste time during your talk regaling us with the details of your brilliant and ambitious research agenda. We know you are just starting out, so claiming that you have shattered the paradigm or forced Professor X to reconsider 30 years of work are just spurious nonsense. Instead, near the end of your talk raise three provocative questions that you intend to explore in the future and invite us to respond.
8. Be Relaxed, but not too Relaxed
Use notes. It is a short talk and you need to stay on task especially if you are interrupted with questions. Besides, Spaulding Gray needed his notebook and he was a more interesting speaker than any of us will ever be. But don't ever read anything especially a PowerPoint slide.
9. Don't be a Suck-Up
Do not tell us that at dinner last night our colleague Bill offered wonderful insight that has really changed the way that you are looking at these questions. Even if you are genuinely nice person who hopes to befriend our entire faculty, you sound like an obsequious sycophant. Besides, Bill may be the biggest and most vacuous blowhard on our faculty (we all have at least one); so you are not sucking up, you are sucking down.
10. Be Reasonable
Do not, under any circumstances, speak for more than 30 minutes.
Finally, remember it's not just what you say, it's how you say it. Communicate your enthusiasm. Use your voice (volume and pacing) for emphasis. Use your space; don't trap yourself behind the podium. Make eye contact with us and assess our interest. If we start to look bored, change it up, throw us a question, or grab our attention by telling us the most interesting thing you can think of about your work.
Chickens and Eggs in Music Consumption
As I blogged about in my previous post, the Copyright Culture survey, which looks at music consumption habits in the U.S. and Germany, has leaked in bits and pieces. Another interesting tidbit found its way to TorrentFreak yesterday. It turns out that p2p file sharers, both in the U.S. and Germany, have bigger music collections than non p2p file sharers. Perhaps more importantly, the file sharers buy more music than their counterparts. U.S. file sharers bought 30% more music, and German file sharers almost 300% more music, than non-p2p luddites. [TorrentFreak has a nice chart that breaks this down for you.] The tone of TorrentFreak's summary suggests that this means file sharers are the best friends the music industry could have, because they love music. I am a bit skeptical, because there's another way to cut the same data, which I share after the break.
File sharers bought more music than non file sharers, but they also obtained more music without paying for it. U.S. file sharers paid for only 38% of the items in their collection, while non file sharers paid for 47% of their music. And the difference was more stark for German consumers. German p2p users paid for only 26% of their music, while non p2p users paid for 60% of their music, although this amounted to significantly smaller sales.
Do non p2p users buy less music than their counterparts because they aren't exposed to as much music as p2p users? Or do p2p users pay for a smaller proportion of their music consumption because they elect to use more unauthorized avenues to purchase music? I don't have an answer. I'm slightly more sympathetic to the latter interpretation than the former, but I'm really interested to see what the full report looks like, when it's released.
Dorf against debateHere, hereHear, hear. I haven't watched any of the debates and don't plan to start now. The only thing I would add against them is that they are largely theatre, a performance, not unlike confirmation hearings.
Do MPC canons of statutory construction matter? Not much, it seems.
I will indulge in one self-promoting plug during my guest-blogging stint. Below is the abstract for a paper just published in Duke Law Journal, which may be of interest to those who teach criminal law. I reviewed how state appellate courts, in those states that adopted the MPC’s key provisions establishing presumptions against strict liability, handled statutory interpretation questions regarding mens rea requirements in the decades since they adopted MPC-based rules. The bottom line—contrary to what I have suggested to my criminal law classes for years—is that the MPC culpability presumptions don’t do all that much. They don’t simplify statutory interpretation on the questions they govern; appellate courts in MPC states find lots of ways to avoid or ignore mens rea presumptions and to interpret felonies to carry signfiicant strict liability elements.
Two reform movements transformed American criminal law in the quarter century that began in the late 1960s. Their origins and effects were starkly different, and their conflict meant that, on core choices about the basis for criminal liability, one movement had to win and the other had to lose. The first movement was the wave of criminal code reform inspired by the American Law Institute’s Model Penal Code (MPC), first published in 1962. The MPC movement sought to increase the role of culpability as a prerequisite for liability by presumptively requiring proof of mens rea for every element of criminal offenses—a policy that rejected longstanding use of strict liability for significant offense elements. The second movement, which could be called the tough-on-crime movement, became the more significant. This movement led to the transformation of American criminal-justice policy that expanded criminal offenses, enforcement, and sentences, resulting in a national incarceration rate that quintupled and became by far the world’s highest.
This Article identifies the twenty-four states that codified the MPC’s culpability rules and then recounts an extensive survey of the case law in those states to assess the reforms’ effect on judicial interpretation of mens rea requirements. It finds that legislative codifications of presumptions for mens rea have had surprisingly little effect on courts that define mens rea requirements when interpreting criminal statutes. It describes the recurrent rationales that courts use to impose strict-liability elements in a wide range of crimes, notwithstanding statutes that direct presumptions to the contrary. It then offers an explanation for this outcome—a substantial failure of the MPC-inspired revision of criminal codes—that emphasizes the continuing normative appeal of strict liability, the influence of instrumental rationales for punishment, and the limits of the judicial role in an era in which the legislative and executive branches are vastly expanding the reach and severity of criminal punishment.
Monday, October 15, 2012
Hilary Clinton: The Politics of Responsibility
The Secretary of State has taken responsibility for the failures of security that may have contributed to the deadly consequences of an attack on the US Mission in Benghazi. There is an admirable nobility in her gesture; but it also reflects frustration that Romney/Ryan are using this tragedy of errors opportunistically, to attack the President and Vice-President and disguise the utter vacancy of their own foreign policy stance.
Error, miscommunication and miscalculation are endemic to foreign and security policy. Each year I teach part of Thucydides' account of the Peloponnesian Wars in my seminar at NYU on the history and theory of international law. I doubt that any modern author has captured the pathos of error and imperfect foresight as well as did Thucydides. But Ryan/Romney are not pitching to voters with a Thucydidean sensibility. And so they are trying to sell what could be a single humanly costly mistake as emblematic of the Admistration's foreign policy.
Let's assume that the worst that Romney/Ryan have insinuated were true-I believe the Secretary of State that it isn't-namely, that the White House was directly responsible for refusing to improve security at the mission in Benghazi. What would this prove about the overall choice that Americans face in this election? As today's historians like to tell us, Winston Churchill was directly responsible for numerous errors of judgment, costing many lives. Yet imagine what the world might have been like had he been replaced by the kind of men who were his political competitors.
The world projected by the Romney/Ryan foreign policy fantasy is one where America can bellow and bark at clearly defined enemies, while basking in the grateful acceptance of America's leadership by her friends. But every day and every night, Secretary Clinton and President Obama have faced the real world, today's real world. As described so precisely and eloquently by Ruti Teitel, my fiancee, in her recent book Humanity's Law, this is a world where threats to our security come from multiple sources, including non-state actors, where there is dangerous intererdepence and yet without political integration, where devils as well as angels use the discourse of human rights and humanitarianism. It is a world where the responsibilities and demands on each state, and particularly on a power like America, have multiplied while the ability to meet them depends ever more on intricate cooperation with a very wide range of actors, about whom we can never know everything and-despite all our high-tech intelligence capacities- about whom we often know very little indeed.
One of the most telling features of the Romney/Ryan foreign policy fantasy is their get tough on China stance. The doublespeak is most evident in the case of the platform on trade policy. On the one hand, Romney says he would take unilateral action against China on his first day in office, which would almost certainly violate the rules of the World Trade Organization. On the other hand, Romney attacks the Obama Administration for not signing enough free trade agreements. But who would want to sign a trade agreement with an Administration that signals on its first day of office that it doesn't care about the rules of the commercial treaties it has already signed? The Obama Administration has, rightly, taken China to court at the WTO: Rather than flouting the law, it has insisted that the law be enforced vigorously in America's interests.
But let's return to Hilary Clinton. Her China diplomacy shows a savvy sense of our real world today. China is our largest foreign creditor; a competitor in trade; an important part of the supply chain of American business; a human rights violator; a force for good or for ill in the Asia-Pacific region (for example, its shift on Myanmar was an important factor in the pressure on the regime for reform). Secretary Clinton has balanced all of this. Imagine the risks of replacing such finesse with bullying and hot air.