Thursday, January 31, 2013
Hiring Threads UpdateI've now bumped the Law School Hiring thread and the VAPs and Fellowships thread for the final time. In late February or early March, I will open the final hiring thread, in which I will collect information about actual hires and aggregate that information in a spreadsheet. Some positions have already been accepted, of course, but based on previous years, I think it's best to wait to open the thread until there is a critical mass of hires. If you want to submit hiring information earlier than that, though, feel free to email me at slawsky *at* law *dot* uci *dot* edu.
VAPs and Fellowships: Open Thread, 2012-2013
[Originally published 11/26/12; final bump, 1/31/13.]
As requested, here is this year's open thread in which comments can be shared regarding news of interviews for or appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow). (Here is last year's thread.)
[If someone wants to aggregate this information, email me, slawsky *at* law *dot* uci *dot* edu, and I will set you up with an embedded spreadsheet.]
Law School Hiring, 2012-2013, Thread Two
[Originally published 10/14/12; bumped 11/13/12; final bump, 1/31/13.]
We invite those on the market to leave comments on this thread regarding whether they have received:
(a) a callback from a law school and/or accepted it; or
(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Five miscellaneous things:
1. If you don't want your contact information displayed, enter firstname.lastname@example.org or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. All information should come in through the comments. Our aggregator will use a spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below. Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market. [As of 1/31/13, this thread is no longer being aggregated.]
5. This year's first hiring thread is here. Comments on that thread are now closed.
Here is the spreadsheet, which is downloadable.
Update: Here is a link to the last page of comments.
Update: As of 2/27/13, comments on this thread are closed. If you have information about entry level hires, please post that information in the comments to the entry level hiring data collection post.
Erieblogging: The Final Day
Well, I said I was going to post an un- or underexplored question about Erie every day for the month, and that is what I did, as andy-kaufmanesque as the results may have been. People sometimes ask me how I can write so much on Erie (I’m at five articles and have a few more in the works). It may be myopia, but to me the topics of my papers are as different from one another as contract and tort. There isn’t really one Erie doctrine—“Erie” is a code word for a huge set of heterogeneous constitutional and subconstitutional problems that arise from the existence of federal courts (especially federal trial courts) within our federal legal system. That, at any rate, is what I’ve tried to show.
As for my final question, it is this: What can other federal legal systems with federal courts tell us about Erie? Australia, for example, has a federal legal system, federal courts, and even diversity jurisdiction. But things, I am told, look very different (and more Swiftian) down under.(Parallel posted on Michael Green's Civ Pro Blog.)
Wrap-Up for Book Club on "Justifying Intellectual Property"
- Introductory Post
- Gordon: Thoughts on Justifying Intellectual Property
- Masur: The New Institutional Philosophy of Rob Merges
- Merges: Merges on Gordon on Rawls and IP
- Gordon: Replying to Rob Merges, Justifying Intellectual Property
- Bracha: What Good are Midlevel Principles in IP? [Thoughts on Justifying IP]
- Merges: Midlevel Principles: Response to Jonathan Masur
- Merges: Even More on Midlevel Principles in IP Law - Response to Bracha
- Duffy: Merges and Descartes
- Hughes: More on Rawls and Intellectual Property
- Bracha: Still on Midlevel Principles in IP: A Reply to Rob Merges
- Masur: Masur on Merges on Masur on Merges
- Merges: Justifying IP: Putting the Horse Before Descartes (Response to Duffy)
My month long guest blogging stint here is over. Thank you all for your kindnesses and for the opportunity.
Even with 31 days to work with, I never got to blog here on many of the topics on my dream list:
Health Care Price Transparency -- Transparent to Whom?
Scope of Practice Wars Meet the Contraception Wars: Advance Practice Nurses Independently Prescribing Contraceptives in California
A Nation of Liars and Cheats: How Our Health Insurance System Both Shows Us Who
We Are and Who We Might Be
I will pick up the thread on my own blog, Missouri State of Mind, at: http://marciarille.com/
It is an amazing moment to be a health law scholar, teacher, and student.
Thanks, and signing off
My sincere thanks to Dan Markel for the invitation to guest-blog this month. There are many things left I thought I'd have time to discuss, such as the NFL concussion litigation, which I've I’ve spoken and written a little about; and the changes to the Hatch Act that will allow many more government and federally-funded employees to run for office. Another time, I suppose.
Justice Sotomayor wants you . . . to celebrate National School Choice Week
As The New York Times, reports here, Justice Sotomayor is "heartbroken" over the closing of Blessed Sacrament School in the Bronx. The school is, of course, one of nearly 2000 urban-area Catholic schools that have closed in the last decade alone. The Justice said:
“You know how important those eight years were? It’s symbolic of what it means for all our families, like my mother, who were dirt-poor. She watched what happened to my cousins in public school and worried if we went there, we might not get out. So she scrimped and saved. It was a road of opportunity for kids with no other alternative.”
Wednesday, January 30, 2013
ost Book Club: Justifying IP -- Putting the Horse Before Descartes (Response to Duffy)
In this, my final response to the many interesting posts in my book, I want to traverse some comments that John Duffy made. To the other authors of posts, especially those who wrote reactions to my responses -- we will have to continue offline. I have taken too much space already. And the many readers of Prawfsblawg who care nothing for IP are I am sure tired of all this.
I am going to skip over the blush-inducing praise in John's post, and get right to his main point. He says:
" [I]f we are frustrated with the complexities of economic theories and are searching for a more solid foundation for justifying the rules of intellectual property, is Kant (or Locke or Rawls or Nozick) really going to help lead us out of the wilderness?"
John says no. He says further that just as Descartes' doubts drove him to embrace foundations that were thoroughly unhelpful when it came to elucidating actual physical reality, such as planetary motion, so my doubt-induced search for solid foundations will lead nowhere (at best), and maybe to some very bad places (at worst).
This argument may be seen to resolve to a simple point, one often made in legal theory circles: "It takes a theory to beat a theory." (Lawrence Solum has an excellent entry on this topic in his Legal Theory Lexicon, posted on his Legal Theory Blog some time back.) The idea here is that utilitarian theory is a true theory, because it is capable of proof or refutation and because it guides inquiry in ways that could lead to better predictions about the real world. By this criterion, deontic theories are not real theories because they cannot be either proven or refuted. Einstein's famous quip comes to mind; after a presentation by another scientist, Einstein supposedly said "Well, he wasn't right. But what's worse is, he wasn't even wrong."
My response starts with some stark facts. We do not know whether IP law is net social welfare positive. Yet many of us feel strongly that this body of law, this social and legal institution, has a place in a well-functioning society. Now ,we can say the data are not all in yet, but we nevertheless should maintain our IP system on the hope that someday we will have adequate data to justify it. The problem with this approach is, where does that leave us in the interim? We could say that we will adhere to utilitarian theory because it stands the best chance of justifying our field at some future date -- when adequate data are in hand. But meanwhile, what is our status? We are adhering, we say, to a theory that may someday prove true. By its own criteria it is not true today, not to the level of certainty we require of it (and that it in some sense requires of itself.) But because it will be "more true" than other theories on that magic day when convincing data finally arrive, we should stick to it.
My approach was to turn this all upside-down, I started with the fact that the data are not adequate at this time. And I admitted that I nevertheless felt strongly that IP makes sense as a field; that it seems warranted and even necessary as a social institition. So it was on account of these facts that I began my search for a better theoretical foundation for IP law.
If you have followed me so far, you will not be surprised when I say that for me, Locke, Kant and Rawls better account for the facts as I find them than other theries -- including utilitarianism. Deontic considerations explain, to me at least, why we have an IP system in the absence of convincing empirical evidence regarding net social welfare. Put simply: We have IP, regardless of its (proven) effect on social welfare -- so maybe (I said to myself) *it's not ultimately about social welfare*.
This is the sense in which, to me, deontic theory provides a "better" theory of IP law. It fits the facts in hand today, including the inconvenient fact of the absence of facts. Of course, we may learn in years to come that the utilitarian case can be made convincingly. I explicitly provide for this in JIP, when I say that there is "room at the bottom," at the foundational level, for different ultimate foundations and even new ultimate foundations. It's just that for me, given the current data, I cannot today make that case convincingly. And it would be a strange empirically-based theory that asks me to ignore this key piece of factual information in adopting foundations for the field. To those who say deontic theories cannot be either proven or disproven, I offer the aforementioned facts, and say in effect that an amalgam of deontic theory does a better job explaining why we have IP law than other theories. And therefore that it is in this sense "more true" than utilitarian theory. Again, it fits the facts that (1) we do not have adequate data about net social welfare; and (2) we nevertheless feel IP is an important social institution in our society and perhaps any society that claims to believe in individual autonomy, rewards for deserving effort, and basic fairness.
One final point: to connect Kant with Hegel with Marx, as John does, is a legitimate move philosophically. But I have to add that for many interpreters of Marx, he is the ultimate utilitarian. What is materialism, as in Marxist historical materialism, but a system that makes radically egalitarian economic outcomes the paramount concern of the state? The famous suppression of individual differences and individual rights under much of applied Marxist theory represents the full working out of the utilitarian program under which all individuals can be reduced to their economic needs, and all government can be reduced to a mechanistic system for meeting those needs (as equally as possible)? If we are going to worry about where our preferred theories might lead if they get into the wrong hands, I'll take Locke and Kant and Rawls any day. In at least one form, radical utilitarian-materialism has already caused enough trouble.
This is hardly all there is to say, but it is all I have time to say. So I will keep plodding along, like a steady plow horse, trying not only to sort out the foundational issues, but also to engage in policy discussion and doctrinal analysis. And with this image I close, having once again put the (plow) horse before Descartes in the world of IP theory.
Arizona On My Mind
Arizona Governor Jan Brewer has decided to endorse Medicaid expansion under the Affordable Care Act. Since this decision requires state legislative approval in Arizona, I am still puzzled as to why press coverage implies this is also Arizona's decision. Her decision was to stake out the governor's position. What the State of Arizona will do remains to be seen.
Still, it is an amazing thing -- a show stopper really -- to see the governor of the last state to participate in original Medicaid come out in favor of Medicaid expansion. Governor Jan Brewer -- she who bolstered her political reputation by publicly wagging her finger at President Obama on the tarmac -- is all in on Medicaid expansion. Whether this marks the triumph of mathematical calculation over ideology will never be known.
The most important constellation of issues surrounding the NFIB v. Sebelius decision, however, is not whether states will ultimately opt-in to the Medicaid expansion. The Medicaid opt-in is, like original Medicaid, not so much the federal government making the states an offer that they cannot refuse as making the states an offer that they desperately want to find a reason to accept. Even Arizona, after all, ultimately opted-in to original Medicaid, in 1982, with the creation of its Arizona Health Care Cost Containment System ("AHCCS"), still advanced as "Arizona's single state Medicaid agency" under the authority of a negotiated 1115 Medicaid waiver in place to this day.
What I really want to consider is what concessions will states bargaining in the shadow of NFIB v Sebelius be able to exact from the federal government in exchange for participation in the Medicaid expansion? And how big will the federal government allow the states to dream? Arizona's original AHCCS waiver, for example, was to include all state employees in its program -- a daring proposal that has not survived implementation. At least six states have expressed some interest in bartering block-grant authorization of Medicaid for their state’s participation in the Medicaid expansion.
Medicaid is and has always been a heavily negotiated program, particularly as it applies to “optional populations”. Now that individuals at between the federal poverty level and 138% of the federal poverty level are “optional populations”, the negotiations seem likely to increase in intensity. There are currently 426 active Medicaid waivers. This is not uncharted territory. It is merely, for the ACA, an unexpected voyage.
The history of Medicaid reveals the existence of enormous state power to demand unique degrees of buy-in to Medicaid expansion. That is the lesson of the state-by-state brokered buy-in for original Medicaid. That is also the lesson taught by the historic use of the Health and Human Services (“HHS”) Secretary’s Section 1115 waiver authority to allow an extraordinary range of state-level experimentation. Section 1115 strongly suggests that the HHS Secretary may offer states individual bespoke Medicaid programs. But whether states can demand them is a harder question.
Excerpted from "Let Fifty Flowers Bloom: Health Care Federalism After NFIB v. Sebelius" (forthcoming, draft available on SSRN) and a follow up work in progress: "The Medicaid Gamble."
Masur on Merges on Masur on Mergers
I greatly appreciate Rob Merges' generosity in taking the time to respond to my original post. His response is, characteristically for Rob, incisive and thoughtful. I am not sure, in the end, how much we really disagree. But I will take a shot at briefly disentangling and clarifying a few points with the goal of identifying whether or not disagreement actually exists.
Rob is absolutely correct that there are two separate questions: 1) whether an IP system can be justified at all; and 2) how well a particular system is performing. Rob argues that, with respect to question #1, the IP system cannot be justified on economic (by which we mean utilitarian or welfarist) grounds. Why would this be? One possibility is that utilitarianism or welfarism or consequentialism (which is what we mean when we talk about an "economic" foundation) cannot provide a morally satisfactory basis for intellectual property rights. There is a short section in the book (pages 151-153) that coulud be read as developing this argument, but that section is better understood as a critique of a completely unfettered free market, a point with which few economists would disagree. As a general matter, the book does not appear to be making this point, and indeed it would be a mammoth undertaking to do so (even for Rob Merges and this book) given the extensive arguments that scholars have been making for centuries about welfarism as a moral foundation. Rob will correct me if I am wrong, but I do not understand this to be his main argument.
A second possibility is that economics (read: utilitarianism or welfarism) cannot generate the midlevel principles that operate in intellectual property. But as I pointed out in my previous post, it can generate them -- or at least the ones that are really central to the American IP system.
The third possibility, and the one I understand Rob to be advancing, is that the IP system, as it is currently constituted, does not actually promote the utilitarian ends that an economic approach would demand. That is: as an empirical matter, IP doctrines as they operate today do not actually increase social welfare. As Rob wrote in his post:
"The data required by a comprehensive utilitarian perspective are simply not in evidence in this field -- at least not yet. Put simply, I do not think we can say with the requisite degree of certainty that IP systems create net positive social welfare."
That seems exactly right to me, and this is why I believe that Rob and I are actually in violent agreement as to most of the important issues. But this means that economics fails in response to Rob's question #2 -- how well is the system actually performing? -- rather than question #1, which is how the IP system can be justified on a theoretical basis. That is why I wrote that economics has failed an empirical test, while Rob's deontic theory has passed a theoretical test. This touches upon an excellent point made by a commenter to my first post. This is not a reason to abandon deontic theory; rather, the point is simply that when we evaluate different types of theories, we should do on comparable grounds.
Nor do I mean at all to say that Rob's deontic theory is not correct, or compelling, or even superior to economics. It is certainly the first two and maybe the third as well. It is just that I do not believe a utilitarian economic theory can be ruled out on the theoretical grounds used to evaluate Lockean and Kantian deontic theories. Economics is part of the overlapping consensus as well.
Thinking of a visit or a lateral move?
A friend at the AALS writes with the following:
Have you ever considered making a lateral move or had to advise a junior faculty member regarding how best to do so? One possibility you might consider is signing up for or advising your colleague to sign up for the AALS Visiting Faculty Register. This register lists experienced faculty members willing to visit for a semester or a full year in the next academic year. Associate deans and hiring chairs check this resource often to fill their curricular holes, especially at this time of year. Moreover, being on this list may signal to hiring committees your willingness to relocate; however, you should be willing to consider various visiting opportunities should they become available. Notably, many schools like to hire laterals as visitors first to test compatibility. Please note that you must have at least three years of full-time law teaching to register and be a full-time faculty member at an AALS Member or Fee-paid school.
Still on Midlevel Principles in IP: A Reply to Rob Merges
As always it is a pleasure to talk with Rob on these issues, learn from him and occasionally disagree with him. Both points that Rob correctly identifies as the heart of the exchange are clearly a matter of degree and it seems that Rob and I tend to assess those scale-values differently. For now, let me take up the fuzz factor issue.
I am not a Rawls aficionado and I would not like to turn this into a conversation about what Rawls meant by this or that or how specifically to apply his views to IP. But I do want to point out two features of Rawls in general and the quoted text in particular that seems to be of general relevance to our topic. First, Rawls’ focus is on the just design of the fundamental features and institution of society, leaving in a typical liberal fashion much room for variation and disagreement on specifics within the general framework of a just (“well-ordered”) society. Second, at least in part (and as seen in the quoted text), the many variations of specific arrangements within the broad range allowed by a just society are justified procedurally: they derive their legitimacy form the fact (and to the extent) that they were created by an authorized body under a just constitution in a just society.
I think Rob expects his midlevel principles to do much more work than entailed by these two limitations.
First, midlevel principles as described in JIP are not procedural or even quasi-procedural. They do not define a set of consensual procedures for generating IP norms and which are sufficient, by virtue of being just procedures, for justifying the substantive norms they produce. Rather they define (in very general terms) the substantive features of just IP norms.
Second, I doubt that Rob would be content to let the midlevel principles operate only at a very fundamental level of justifying some very basic institutional features of the IP system and leaving everything else beyond their reach (and therefore as either a matter of “opinion” or as requiring resort to “foundations”). Unlike our philosophical justification of the fundamental institutions of society, it would not be good enough in this context to simply single out the graver wrongs that should be avoided. Of course, a major part of the disagreement here is over how much is covered in a determinate way by the principles. My basic sense is that to make the principles consensual (i.e. “independent” of foundations) they must be drawn on a very high level of abstraction—one that leaves most of what we disagree over in much of the IP policy debate beyond the determinate reach of the principles. And remember that there are other “foundational” theories not covered in the book which must be fitted into the base (where Rob promises us there is room). The more theories at the base the more abstract the midlevel principles must be. Sure we can probably all agree, on the basis of whatever midlevel principle, that IP rights should not be conferred arbitrarily on entities who had nothing to do with the creation of the relevant intellectual resource. Perhaps many would also agree that, given certain empirical assumptions (remember Wendy Gordon’s point!), some format of IP rights in certain resources is preferable to none. BTW, can we all agree under consensual midlevel principles that nothing which is in the public domain (i.e. already exists and is used freely by all) should be removed from there? The “nonremoval” principle seems to imply that. But the Supreme Court told us recently in Golan v. Holder that the public domain is not a territory that works can never leave and refused to apply anything more than a rational basis review to legislation that restored copyright in public domain works. Moreover, as I said, there are plenty of specific cases where many foundational theories converge on the same outcome, although I am not sure it’s done through the intermediation of general midlevel principles. And then there is the phenomenon of some branches of IP law that seem very hard pressed to find support in any plausible account based on any foundational theory (i.e. publicity rights in their current format). But I suspect that many of the day-to-day questions of the IP debates (e.g. should non-content-altering transformative uses be considered fair use? Should Google be free to digitally copy books as part of Google Books as long as it allows copyright owners to opt-out? Is an isolated gene sequence an unpatentable “natural principle”?) cannot be adequately answered by simply applying midlevel principles. This is likely to happen either because to allow convergence the principles are too abstract or because they may conflict with each other in specific cases (e.g. are dignity-serving moral rights efficient?).
Finally, remember that relying too much on abstract midlevel principles unmoored from foundations is not only of possible limited utility, it also involves some dangers to which I alluded briefly earlier. One such danger is opening the door to broad platitudes (e.g. “proportionality”) that can justify almost anything in concrete cases but actually provide little normative support or even a coherent basis for reasoned evaluation. I gave one example: an invocation of the supposed built-in internal safeguards of copyright as a shield against free speech arguments, without any discussion of how those safeguards actually work or what the normative significance of that operation is. To be clear, I don’t think for a second that Rob is in danger of falling into this trap. Rob is most likely to go on doing the same rigorous, insightful work as before, which is based on an implicit acceptance of utilitarian assumptions (yes, I do think that utilitarian, or if you wish welfarist, theories are foundational even if “efficiency” is now supposed to be “only” a midlevel principle), hopefully with the promised flashes attributable to the epiphany that manifested itself in JIP. That’s something to look forward to.
More on Rawls and Intellectual Property
It goes without saying that the people in this "book club" are big fans of Justifying Intellectual Property – and posts are now coming fast enough that my own contribution will seem to reach back to the earliest discussions here. I found Oren Bracha's post about mid-level principles quite interesting – and a part of Merges' book worthy of its own conference, blog, and seminar series. Those of us who have worked in Washington know that the problem is not getting people to focus on the choice between mid-level or fundamental principles, but simply to get recognition that whatever the slogan du jour is, a bumper sticker not a philosophy.
But I'd like to return to the Gordon-Merges interchange on Rawls.
I agree with Rob's post that Rawls was initially tepid about private property rights; in Theory of Justice Rawls was very explicit that he believes his principles of justice would work with different ideological views of private property. (The book was, after all, a product of its time -- when it was unclear that Westerm capitalism would be the "winner".) Later in life, Rawls advocated private property, particularly where "background institutions of property-owning democracy work to disperse the ownership of wealth and capital"; he saw this as important to "prevent a small part of society from controlling the economy, and indirectly, political life as well." John Rawls, Justice as Fairness: A Restatement (Erin Kelly, ed., 2001) §42.3 at 139
IP AND THE DIFFERENCE PRINCIPLE
In her thoughtful post, Wendy Gordon wrote that "it’s far from clear that the worst-off benefit from the restraints that patent and copyright impose on the use of inventions and works of authorship." Just to be clear – and I know Wendy knows – the argument is not that they benefit from the *restraints*; the argument is that they benefit from the *outcomes* of the *incentives* and that these benefits are enhanced by limiting the incentives (that is, limiting the restraints). There are serious and profound issues over access to patented medicines, but that should not blind us to the fact that 10% or less of the drugs on the WHO organization's essential medicines list are now generic and off-patent. (The relationship of the WHO list to patented compounds is itself contested, deserving a long post for even-handed treatment.)
Let me try to approach what I think is Rob Merges' point about Rawls from another direction. It is hard to think how Rawls' Difference Principle would work except through incentive mechanisms like we have now, including intellectual property. Under the Difference Principle, if an individual does something to make humans better off, particularly those in the worst-off class, then we give that individual a little more than everyone else. If the individual were Samson and he kept the roof from falling instead of bringing it down, the Difference Principle would say it's fine to reward him (particularly if the roof was that of a homeless shelter, not Saks Fifth Avenue). But unlike Samson, most of us will make the lives of others better – if we do at all -- through informational, organizational, and leadership contributions. I would conjecture that many of examples that spring to mind for philosophy teachers when they are trying to explain how the difference principle works are related to IP -- Jonas Salk, Bill Gates, Walt Disney, etc. (And many would be related to the application of organizational and leadership contributions -- know-how, if you will. That would be the path to justify differential wages within corporations, government agencies, and non-profits.)
One of Wendy Gordon's point is that we cannot know we would not have these least-advantaged enhancing contributions without IP: on that point she is completely right. Her point applies to *any* differential outcome we would try to justify with the Difference Principle. It's possible that the team that turned around GM would have done so for fun or glory and need not be paid a cent more than the people on the assembly line. It's possible that they would have done it in complete anonymity and without a stitch of glory. But if there were no financial or reputational incentives, it's also possible they would have stayed home or just worked 9 to 5. So, whenever you use the Difference Principle, you are riding on your hunches of how the counterfactual would turn out without the "difference" you seek to justify.
My hunch – and I think Rob Merges' – is that financial incentives/differences are needed for a large chunk of the informational, organizational, and leadership contributions that make the worst-off better off. Of course, financial incentives/differences can be provided in different ways – there is a vast literature on patent prizes and a vast world of grant giving for inventors and artists. But it is also important to recognize that a big chunk of the information contributions that will make the worst-off better off cannot be identified in advance – that's one reason that the disaggregated decision-making of a property system is preferable to the more centralized decision system of grants or even prizes. (What government body would have established a huge prize for "social media"?)
As to Wendy's more fundamental point – maybe the worst-off would be better off with "OTHER and DIFFERENT advantages," that is completely legitimate too. It's easy to think that people would be better off reading old classics in the public domain than watching new television shows. But that gets into deeper questions as to how we will measure "better-offness" . . . . .
IP AND THE REST OF THE SECOND PRINCIPLE
But I want to return to a different point Rob Merges raised in his interchange with Wendy Gordon – ideas with which he and I have been puttering around. An important part of Rawls' structure is the second principle's requirement that "offices and positions must be open to everyone under conditions of fair equality of opportunity," -- meaning not just formal positions, but stations in life. Rawls elaborated his notion of the "primary goods" that would come from offices and positions to include "income and wealth, understood as all-purpose means" as well as "the social bases of self-respect."
I think it is clear to everyone reading this that no modern society truly meets this standard, but I think that Rawls' principle that "offices and positions must be open to everyone under conditions of fair equality of opportunity" is captured by what we refer to as the "American dream." And *if* offices, stations, and positions in life are going to be open to all, then we must have mechanisms for that to happen. Excellent public schools in all neighborhoods, meritocratic university admissions, and maybe even term limits on elected office seem to me social elements needed to operationalize the principle.
In a capitalist economy founded on private property, there is no question that social station ("office") depends partially on wealth, so we need mechanisms for capital accumulation that do not depend on inherited wealth, i.e. "open" channels that allow people to go from ZERO to any social station/wealth level. Again, think of Rawls' concern that a "property-owning democracy work to disperse the ownership of wealth and capital."
Wendy writes that "we need data on whether there are alternative incentives to write soap operas and invent air conditioning" – and, again, she is certainly right. But it is not just a question of whether these things will be created; there is also the question whether there is fair opportunity to occupy the positions that permit such creativity. If you look at the wealthiest African-Americans – as Rob and I have – you are struck by the fact that the vast majority of them accumulated their wealth through intellectual property – a much larger percentage than the corresponding list of white Americans. This is not to deny that the legal system has often deprived African-Americans of their legal right to intellectual property and its proceeds (just as it often deprived them of other rights). But those very real injustices should not prevent an inquiry into how intellectual property can literally "reify" – and capitalize – talents and skills of otherwise disadvantaged citizens and, thereby, *help* keep (or make) "offices and positions . . . open to everyone under conditions of fair equality of opportunity."
Again, this doesn't mean that there are not alternative ways to make and keep " offices and positions . . . open to everyone under conditions of fair equality of opportunity," but *if* intellectual property seems to be such a mechanism and *if* better mechanisms have little or no chance in the political environment, then that is something we need to consider seriously in what Amartya Sen would call the "nyaya" quest to improve practically peoples' lives.
Merges and Descartes
Rob Merges is one of the best—no forget that—the best law professor in the intellectual property field. He’s brilliant, thoughtful and a great writer. All of these qualities are on display in his book Justifying Intellectual Property. But even that praise does not do the book justice. The most impressive quality of the book is Merges’s transformation from a scholar who takes a law-and-economics approach to explaining intellectual property to one who has seemingly effortlessly and successfully switched to embracing a philosophical approach. This book marks him as our field’s Descartes—someone who has contributed greatly to the hardest of hard quantitative subjects (remember learning Cartesian coordinates in math?) and who can then switch gears to have a go at philosophy (“Cogito ergo sum”). To me, Justifying Intellectual Property’s most impressive attribute is its revelation of Merges’s Cartesian range of abilities. The parallel to Descartes is also, I’m afraid, the biggest stumbling block I have in appreciating the book.
To understand Merges’s achievement in this book, a reader must understand the full scope of the transformation that has occurred here. Merges was the dean of our field’s law and economics school. Among his many great works, his article “On the Complex Economics of Patent Scope” is watershed piece. Just three years ago Indiana University organized an entire conference around that article’s thirty year anniversary. Pretty much all U.S. professors who cared about the law and economics of patents came to the conference to praise Merges’s contributions.
Now in Justifying Intellectual Property, Merges (in his own words) “go[es] back to the dugout, pick[s] up a bigger bat, and swing[s] from the heels.” (At page ix.) It’s a homerun, or as Jonathan Masur said yesterday on this blog, a “masterpiece … [that] accomplish[es] something monumental, elevating deontic theory to a sustainable position as the foundation for intellectual property law.” That kind of successful scholarly transformation doesn’t happen often, and when it does a comparison to a great thinker like Descartes is not unwarranted.
But there’s another reason to make the comparison to Descartes. Like Descartes, Merges’s foray into philosophy began as “a search for foundations.” (At page. 2.) Merges knows well the law-and-economic foundation of intellectual property law—he knows it so well that he understands the approach leads to “[i]mpossibly complex”—“overwhelmingly complicated”—calculations of the “costs and benefits” of intellectual property. For Merges, those “computational complexities … cast grave doubt on [the] fitness [of an economic approach] as a workable foundation for the field.” (At p. 3.) And so Merges has sought out a better and more satisfying foundation than economics on which to justify intellectual property.
That’s very much the same inspiration at the heart of Descartes’s most famous philosophical work, Principles of Philosophy, for Descartes believed that “all Philosophy”—here meaning all rational knowledge—“is like a tree, of which Metaphysics is the root, Physics the trunk, and all the other sciences the branches that grow out of this trunk.” Descartes believed that if he could get the roots—the metaphysics—rigorously correct, he would then have a basis to reason out the rest of the sciences, starting with physics.
Did Descartes succeed? As a philosopher, of course. As a physicist who could accurately describe the world of natural phenomena, not so much. And that’s the concern I have with Justifying Intellectual Property.
If we face—as we do face—seemingly impossible empirical and computational complexities in establishing a justification for intellectual property through the science of economics, that frustrating situation only strengthens the parallel with Descartes’s era. We might think that Descartes lived in enlightened era when true science, such physics, was beginning to yield solid insights into the way the world worked. After all, Copernicus lived about a century before Descartes, and at least he had finally cleared up the matter of whether the earth went around the sun or vice-versa. But that’s not so.
Copernican cosmology was an empirical disaster; it just didn’t fit the evidence as well as the pre-existing geo-centric system (which had evolved a complex, but empirically-grounded, system of spheres of motion). Tycho Brahe—the greatest astronomer in the approximately half century between the death of Copernicus and the birth of Descartes—rejected the Copernican system in favor of a mixed system with the sun still going round the earth, but with other planets going round the sun. Johannes Kepler—roughly a contemporary of Descartes—came up with the seemingly more outlandish view that, while the earth and other planets did revolve around the sun, they did so in ellipses rather than in nice neat Copernican circles. On top of it all, no one had any idea why any of the celestial bodies was moving in the first place. In sum, really basic questions about physics and cosmology were totally up for grabs in Descartes’s era; the empirical evidence was frustratingly inconclusive; and the theory was either a disaster or nonexistent. Confusion reigned; it probably seemed like a good time to look for a better foundation—better roots—that could support physics and the rest of the tree of knowledge.
As an inquiry into metaphysics and philosophy, Descartes was brilliantly successful, but his ideas on physics and cosmology—such as his vortex theory of planetary motion (which is also set forth in his Principles of Philosophy)—didn’t lead anywhere productive; they were an excursion down the rabbit hole. “Cognito ergo sum” is a great piece of reasoning; Descartes proved his own existence from his own thoughtful doubts about his existence. But as a helpful foundation for reasoning out the rules of planetary physics, that dog doesn’t hunt.
That’s my worry about any work on intellectual property, or any work on any economic regulatory system, that tries to look to Emmanuel Kant and other philosophers for its foundations. To be sure, Kant’s a great ethicist and philosopher, but if we are frustrated with the complexities of economic theories and are searching for a more solid foundation for justifying the rules of intellectual property, is Kant (or Locke or Rawls or Nozick) really going to help lead us out of the wilderness? Indeed, Kant’s a good example. Kant can be said to provide an intellectual basis for much of what we find in modern liberal democracies, but we cannot forget that there is also a direct intellectual lineage from Kant to Hegel to Marx. Lest I be misunderstood, I’m not, of course, making some sort of ridiculous claim that Kant was Marxist or something similarly absurd. Instead, my point is about indeterminacy. Yes, Kant can provide a basis for intellectual property, but Kant can provide a starting point to get to lots of things, and so can Locke and Rawls and Nozick.
And so that’s my stumbling block with Justifying Intellectual Property. Still, none of this is deny the book’s intellectual achievement. Merges has given all intellectual property scholars the opportunity to take a break from (once again, to use his wonderful prose) our “staccato series of law review articles, punctuated by casebook revisions, with the occasional ‘think piece’ woven into the mix.” (At p. ix.) He’s given us a chance to sit back and ask what’s the fundamental basis for everything we are studying. That’s brilliant academic work, and it’s only a compliment that a skeptic can compare him with Descartes.
Erieblogging: Day Thirty
My penultimate Erie question is about the District of Columbia. I’m not concerned here with the puzzle of how Congress can send a state law cause of action between a citizen of a state and a citizen of the District to federal court, given it is not a controversy between “citizens of different states" under Article III.
My question is about the fact that "federal" courts (including the District Court for the District of the District of Columbia, the D.C. Circuit and the Supreme Court) defer to the "state" supreme court, the D.C. Court of Appeals, concerning D.C. law, as if Erie applied here. But that's nonsense: D.C. is a federal enclave and the "state" supreme court is itself a federal court.
D.C. has its own common law (often borrowed from Maryland common law). This is a body of federal common law for the District, which, prior to 1970, was developed by federal courts. Why then aren’t federal courts still interpreters of D.C. common law? Furthermore, much D.C. statutory law consists of Acts of Congress, and even acts of the D.C. government are the exercise of delegated congressional authority. So why don’t federal courts have interpretive authority over D.C. statutory law?
The argument for deference is the District of Columbia Court Reform Act of 1970, which intended to make the D.C. Court of Appeals the equivalent of a state supreme court. I question whether Congress really could make the U.S. Supreme Court defer to another federal court concerning the content of federal law. But setting the Supreme Court aside, this isn’t really Erie were talking about here, right? This is some fake federal statutory equivalent of Erie. Shouldn't that matter?(Parallel posted on Michael Green's Civ Pro Blog.)
Book Club: Even More on Midlevel Principles in IP Law - Response to Bracha
In a previous post I explained the concept of midlevel principles in IP law. In this post I respond to a couple of detailed points made in a very insightful post on this topic by Oren Bracha. Oren has a number of interesting things to say, but his critique has two main points: (1) the conservative bias of midlevel principles; and (2) the fuzzy nature of midlevel principles, a product of their origin in a (hypothetical) consensus-building procedure.
(1) The conservative bias: I think there are two senses of "conservative." In my view, what are conserved are meta-themes that derive from but transcend specific practices. These themes do not uniformly point to results that are "conservative" in the other sense -- tending to preserve the status quo; continuing with trends currently in place. Let me illustrate with two specific examples. When Wendy Gordon introduced the idea of "fair use as market failure," she tied together a number of emerging themes in copyright law and connected them with a large body of thought (including caselaw) that came before. But her ideas -- based largely on what I would call the efficiency principle, though surely infused also with considerations of proportionality, nonremoval (public domain), and perhaps even dignity -- were not conservative with respect to outcomes. In fact they created a revolution in consumer or user rights, by shifting the focus from the copyright owner's interests, the amount copied, etc., to higher-level issues such as transaction costs and the nature of markets for IP-protected works.
A second example is eBay. The majority opinion, based on traditional equity doctrine (as codified in the Patent Act), was conservative in the sense that it deployed well-known rules. The Kennedy concurrence had a richer policy discussion, which centered (in my view) on the proportionality principle. The basic idea was that sometimes the automatic injunction rule gives patent owners "undue leverage" in negotiations; and that equity was flexible enough to take this into account. I see this as the embodiment of a very general principle, one that finds expression in many areas of IP law, from the rules of patent scope (enablement, written description, claim interpretation, etc.) to substantial similarity in copyright law, and so on. Again the discussion "conserved" on meta-principles by deploying a familiar theme from the body of IP law. But the outcome was not therefore necessarily conservative in the sense of preserving the staus quo. The status quo heading into the case was the automatic injunction rule. And that was rejected in favor of a more flexible approach.
(2) The fuzz factor: Oren's second point is that the midlevel principles just do not seem to have the requisite level of granularity to resolve difficult problems in IP policy. This leads him to conclude that the only way to gain true resolution is to engage each other at the (admittedly contentious) level of our foundaional commitments.
Here I would advert to the master for some guidance. John Rawls, in A Theory of Justice, describes a detailed multi-stage procedure by which fair institutions can be established. In the course of the discussion he says this about the problem of fuzziness:
"[O]n many questions of social and economic policy we must fall back upon a notion of quasi-pure procedural justice: laws and policies are just provided that they lie within the allowed range, and the legislature, in ways authorized by a just constitution, has in fact enacted them. This indeterminacy in the theory of justice is not in itself a defect. It is what we should expect. Justice as fairness will prove a worthwhile theory if it defines the range of justice more in accordance with our considered judgments than do existing theories, and if it singles out with greater sharpness the graver wrongs a society should avoid." (A Theory of Justice, sec. 31, pp. 200-201).
So foundational consensus will inevitably be general. But that does not mean that citizens cannot engage each other in contentious argument at more operational, implemenetation-oriented stages. The way I see things, the midlevel principles are expansive enough to cut through the generality required to agree on them. (Note that this pluralistic sensibility is a product not of the early Rawls of A Theory of Justice but of the later Rawls of Political Liberalism.) These principles admit of sharper disagreement and a deeper level of engagement than Oren seems to believe. Perhaps they require greater elaboration than my brief treatment made possible. But they are not in my view fatally vague as a vocabulary of policy debate.
I should add one additional point. Oren notes my emphasis in JIP on the complete independence of foundational commitments and midlevel principles. I have begun to rethink that a bit, based in large part on a thoughtful critique of this aspect of the book by David H. Blankfein-Tabachnick of Penn State Law School. His critique and my response are both still in process and are forthcoming in the California Law Review, so I do not want to say too much. But suffice it to say that I have rethought the "complete independence" thesis a little bit. I can see that in a few rare instances, where policy issues are in equipoise, resort to one's ultimate commitments -- the foundations of the field as one sees them -- may be useful and even necessary. So, to close with Oren's wonderful imagery, after the flash of white light on the road to Damascus, the rider surely does remount and head on down the road. But he or she is changed utterly at some level -- and that change is bound to peek out, now and then, in the clinch.
Book Club: Justifying IP -- Midlevel Principles: Response to Jonathan Masur
In this post I respond to some comments on my book (abbreviated "JIP") by Jonathan Masur. It is not surprising to me that Jonathan takes aim at Part II of JIP, in which I introduce and explain what I call the midlevel principles of IP law. It seems whenever the book is addressed in depth (most notably at a full-day conference at Notre Dame organized by Mark McKenna; and a number of discussions at a conference on the Philosophy of IP rights at San Diego convened by Larry Alexander), this is the topic that seems to stir up the greatest interest.
Before I turn to Jonathan's specific points, let me say a word about what I mean by midlevel principles. Basically, these are meta-themes in IP law that mediate between pluralist foundational commitments and detailed doctrines and case outcomes. They are meant to serve as the equivalent of shared basic commitments in the “public” and “political” sphere as described by Rawls in his book Political Liberalism (2005). That is, midlevel principles supply a shared language, a set of conceptual categories, that are consistent with multiple diverse foundational commitments. They are more abstract, operate at a higher level, than specific doctrines and case outcomes; but they are pitched in a language that is distinct from that of foundational commitments. They create, as I say in JIP, a shared public space in which abstract (non-case-specific) policy discussions can take place. The payoff is this: a committed Kantian can conduct a sophisticated policy argument with a firm believer in the Talmudic (or Muslim, or utilitarian) basis of IP law about the proper scope of fair use in copyright, or the proper length of the term for patent protection, or what should be required to prove that a trademark has been abandoned. The argument can proceed without the Muslim needing to convert the Kantian or utilitarian to a religious worldview, and without the Kantian talking others out of the view that religious texts provide a set of workable guiding principles for right behavior. Diverse people can – and indeed, often do! – speak in terms of an appropriate public domain (i.e., the nonremoval principle); a fair reward for creators (the proportionality principle); the importance of moral rights (the dignity principle); or the cheapest way to offer legal protection at the lowest net social cost (the efficiency principle). All without the conversation devolving into fights over ultimate commitments.
Jonathan Masur recognizes the versatility of the midlevel principles. And he acknowledges that although these principles are fully consistent with utilitarian foundations, the IP system as a whole has failed to fully implement the policies called for by those with a thorough commitment to utilitarian foundations. As he puts it:
"The problem, as Merges correctly describes it, is that IP doctrine, as implemented by courts and other parties, has failed to advance the economic aims that it set out. This is an empirical judgment, and quite possibly a correct one."
As Masur notes, I have come to believe that utilitarian foundations are inadequate in the IP field. The data required by a comprehensive utilitarian perspective are simply not in evidence in this field -- at least not yet. Put simply, I do not think we can say with the requisite degree of certainty that IP systems create net positive social welfare. Yet I still had the intuition that IP rights are a valuable social institution. Which is what led me to search for alternate foundations. Hence Part I of JIP, in which I describe foundational commitments growing out of the ideas of Locke, Kant and Rawls. These deontic conceptions provide a better set of foundational commitments for the IP field, in my view. Others of course disagree, which is why the midlevel principles are so important as a shared policy language for those with divergent foundational commitments.
Masur notes the lack of empirical support for utilitarian IP foundations, but says in effect that deontic foundations do not provide much of an alternative. As he puts it,
"But what is the comparable standard by which a deontic conception of IP is to be judged? What would it mean for IP doctrine in practice not to have properly advanced Lockean or Kantian ethics? How could anyone tell? The problem—or, more accurately, the advantage for Kant and Locke—is that those approaches are purely theoretical and do not generate testable predictions. Economic theory has foundered on a set of tests that cannot be applied to the alternatives Merges proposes."
The way I see things, Jonathan has conflated two separate issues here. The first is whether IP can be justified at all. The second is how well any particular IP system is performing, given that there is a basic consensus that there should be such a system in the first place. The first issue is where foundational commitments come in. The second is operational; it is a question more of "how" or "how well" as opposed to "whether." (I address this in more detail in an article forthcoming in the San Diego Law Review, "The Relationship Between Foundations and Principles in IP Law.")
Seen in this light, there is no need for empirical tests to prove the viability of Lockean, Kantian, and/or Rawlsian foundations for the field. The only question that needs to be answered is whether a body of IP law can be envisioned that is consistent with these systems of philosophical thought. If so, the foundational question has been successfully answered. Then it's on to the operational level -- designing actual institutions and rules to implement a workable IP system. In my view this is where the efficiency principle comes into play: one important design principle for IP law is and should be getting from our IP system the greatest social benefit at the lowest net cost (as best we can estimate these values). Efficiency is an operational (midlevel) principle, in other words. It does not (and in my view cannot) justify the existence of the field. But it can serve us well in crafting the detailed operations of the field -- once we decide, consistent with ultimate commitments, that it makes sense to have such a field in the first place.
Does Not Translate?: How to Present Your Work to Real People
Recently I've agreed to give talks on social media law issues to "real" people. For example, one of the breakfast talks I've been asked to give is aimed at "judges, city and county commissioners, business leaders and UF administrators and deans." Later, I'm giving a panel presentation on the topic to prominent women alumni of UF. My dilemma is that I want to strike just the right tone and present information at just the right level for these audiences. But I'm agonizing over some basic questions. Can I assume that every educated person has at least an idea of how social media work? What segment of the information that I know about Social Media Law and free speech would be the most interesting to these audiences, and should I just skip a rock over the surface of the most interesting cases and incidents, accompanied by catchy images? How concerned should I be about the offensive potential of talking about the real facts of disturbing cases for a general but educated audience? As a Media Law scholar and teacher, I'm perfectly comfortable talking about the "Fuck the Draft" case or presenting slides related to the heart-wrenching cyberbullying case of Amanda Todd that contain the words "Flash titties, bitch." But can I talk about this at breakfast? If I can, do I need to give a disclaimer first? And for a general audience, do I want to emphasize the disruptive potential of social media speech, or do I have an obligation to balance that segment of the presentation with the postive aspects for free speech? And do any of you agonize over such things every time you speak to a new audience?
Anyway, translation advice is appreciated. I gave our graduation address in December, and I ended up feeling as if I'd hit the right note by orienting the address around a memorable story from history that related to the challenges of law grads today. But the days and even the minutes preceding the speech involved significant agonizing, which you'd think someone whose job involves public speaking on a daily basis wouldn't experience.
Ranking the Rankings
There are lots of law-related rankings out there. And many of them are law school-related rankings. But, with all apologies to Juvenal, quis iudices ipsos iudicabit? Why not me?
So, here’s the first-ever ranking of law school rankings. The methodology is simple: it’s wholly idiosyncratic based upon what I value, which is, of course, what I expect others to value. I can’t include all rankings, but I try to include some of the most significant ones out there.
- Intentionally left blank. That’s right. The top slot goes to no ranking. Because I don’t think any of them deserve the top slot. Edgy.
- Sisk-Leiter Scholarly Impact Study: Formally Sisk et al. at the University of St. Thomas, but operating under the Leiter methodology, the study tidily measures scholarly impact of tenured faculty in the last five years. As peer assessment is one of the most significant categories in the U.S. News & World Report rankings, it objectively quantifies much of the academy’s impressions. And absent Green Bag’s promised Deadwood Report, it’s the next best thing. As they say, “Do your job or get fired.” Drawbacks: narrow focus; rewards “old” scholarship that gets a number of recent hits; limited utility for prospective students (except that it provides a good indicator of the strength of the institution).
- NLJ 250 Go-To Law Schools: It’s about as specific and clean a ranking as you can obtain: the percentage of graduates of each school who landed position at a NLJ 250 firm last year. It also finds alumni promoted to partner. Drawbacks: biglaw-centric; a single associate placement can significant change the percentages and ranking; does not include judicial clerkships, which can skew placement.
- Princeton Review Rankings: The strongest trait of PR is perhaps counterintuitive: it refuses to create a comprehensive ranking, and instead provides 11 ranking lists. As overall quality is a difficult task, I, for one, admire the concession. Additionally, it provides student feedback from the relatively near past, a more immediate evaluation of the institution. Maybe you think it’s too quirky. I guess I like the fact that it’s trying to do something different than the field. Drawbacks: black box methodology that refuses to disclose response rates; some less-relevant categories; fairly subjective student surveys.
- SSRN Top 350 U.S. Law Schools: One of the better ways to sort this data, I think, is by “total new downloads” in the last 12 months. That gives a sense for freshness, recency, and output. Drawbacks: narrow focus; driven heavily by a few heavy hitters.
- The Black Student’s Guide to Law Schools: While this survey may not get very much attention, and is admittedly narrow in focus, I appreciate a serious reflection on aspects of legal education that are of real concern to law students. Cost and cost of living are important. One additional thoughtful factor: “Distinguished Black Alumni,” a category that helps identify the long-standing institutional quality in a unique way. Drawbacks: “local legal job access” factor (perhaps unjustifiably) punishes schools in more rural communities; narrow audience.
- Rogers Williams Publication Study: With a more inclusive selection of journals [UPDATE: study of schools; a friend corrected that it only includes the top 50 journals, while Sisk-Leiter includes all journals] than the Sisk-Leiter studies, the study highlights some of the publications at “non-elite” law schools. For those who want to see school rankings all the way down, this fills a gap left by Sisk-Leiter. Drawbacks: narrow focus; relies on Washington & Lee Law Journal Combined Rankings scores from 2007, without updates; band-only rankings below top-40; nearly 20-year publication period may not detect more recent movement.
- Law School Transparency Score Reports: It’s not a formal ranking, but there are a number of categories where one can rank schools from top-to-bottom. It nicely aggregates some of the data otherwise found in disparate places. For instance, here I sorted by the percentage of graduates in federal clerkships. You can poke around for admissions data, costs, or employment outcomes. The real problem is less the format; it’s the data itself. And this isn’t LST’s fault. It’s just that the schools have not been inclined to provide more detailed data. That leaves LST a nice place for sorting single characteristics of self-reported data, but not much else.
- Wall Street Journal Law Blog’s Best Big Law Feeder Schools: The good folks at the WSJ took the ABA figures of those who landed full-time, long-term jobs at firms with more than 250 attorneys and made a chart. It is what it is: a much narrower, less useful version of the NLJ 250 list.
- U.S. News & World Report: I don’t need to write anything about this, right? It’s far and away the most important to most prospective law students. But, in case you haven’t heard, there are flaws with it. And I’ll just say one thing about the methodology: 9.75% of the ranking is based on how expensive you are and how much money you spend on things like electricity, plumbing, and chalkboards. Really. The more expensive you are, the better your ranking. If you’re a prospective law student, re-read that bold sentence a few times. Think it over. Read about it. And ask Robert Morse why that’s still in there. As schools are looking for ways to cut costs, and as other rankings value low-cost options, USNWR still rewards high costs and high spending
- Business Insider 50 Best Law Schools in America: It’s driven entirely by a survey of 650 readers, and only 60% have JDs. The curve is harsh: most schools score under a 3 on a scale of 1 to 5. Not a terribly scientific survey, but at least it measures perceptions and aggregates those perceptions into a score.
- QS World Law School Rankings: I don’t know. Comparing Yale to Melbourne to Singapore to Monash to McGill is a little too broad a series of rankings to have much value. Unless, I suppose, you care passionately that your decision to attend Victoria University of Willington over Cornell was a wise investment.
- Seto Rankings: Professor Theodore P. Seto’s rankings have been thoroughly debunked by my colleague Rob Anderson over at WITNESSETH. I certainly can’t top his perspective (DeLorean metaphors and all).
- National Jurist Best Value Law School Rankings: An ostensibly noble project that tries to merge affordability, employment, and bar passage into a ranking. Unfortunately, it’s basically just a list of flagship state schools, and one with a number of flawed metrics because of data reporting.
- Top Law Schools Rankings: What a hot mess. It includes the Gourman Report, which hasn’t been updated since 1997. Then, it lists Professor Brian Leiter’s “recently updated law school rankings,” which it doesn’t link. The first clue it’s out of date is the identification of Leiter as “a professor at the University of Texas law school.” And it turns out “recent” means 2002. Otherwise, it just lists the last four years’ worth of USNWR rankings. For a rankings list that concludes, “Put time and thought in to what is one of the most important decisions of your life,” one would expect some thought put into the rankings. But, if you’re interested in rankings possibly relevant to viewers of Seinfeld, Friends, and X-Files, go for it.
- Cooley Rankings: Res ipsa. And who can resist repeating this justification for “Library Seating Capacity” as a factor: “To study, a student needs a place to sit.” But, at least the school stopped publishing its self-promotional rankings in 2010.
So, how would you rank the rankings? (And, by the way, if anyone in the future wants to rank the rankings rankings, let it be known that I was a first mover in this space.)
Tuesday, January 29, 2013
What Good are Midlevel Principles in IP? [Thoughts on Justifying IP]
Like many others, I think that Justifying Intellectual Property is an excellent and important book—a must for any student of IP. Among many other virtues it has the captivating quality of being written in the voice of someone who has seen everything in this field (as Rob has) and yet is utterly engrossed by the delight and fascination of discovering something new (which was there all along). Merges is a master in spreading this sense of delight and discovery as he explores aspects of IP normative theory that for decades were outside the realm of his scholarship. And the exploration of non-utilitarian “foundational” theories of IP is done with Rob’s usual mix of analytic precision and accessible, fun style.
But it would be no fun at all to simply agree and applaud!
So shifting into a somewhat more critical gear, here is another striking feature of the work. As I mentioned to Rob before, the book left me with the feeling that the writer had seen the light on the road to Damascus, and then climbed back on his horse and resumed his previous business as if little had happened. Put differently, the exploration of “foundational” theories appears like a short (and exciting, to be sure) rollercoaster ride in philosophy land, followed by a return to an ordinary, unchanged nine-to-five job in the cubical of ordinary (“midlevel”?) IP policy. Rob says as much with his own metaphor of the scientist who is plagued by doubts about where nature comes from, finds out the existence of a higher power behind the whole thing, and then rejoins his (law and economics) pals in the lab, with no change to the day to day work but with extra serenity about the enterprise (p. 11).
How does one pull such an impressive stunt?
I think that, to some extent, the choice of foundational theories covered in the book—especially what the choice leaves out (e.g. democratic theory of copyright; human flourishing accounts of IP)--helps. But the crucial element that enables this move is the concept of “midlevel principles” (borrowed by Rob from the work of Jules Coleman). In Rob’s account midlevel principles are organizing concepts that tie together many concrete rules (or practices) which are independent of “foundational” accounts, in the sense that different foundational positions may be consistent with and anchor the same set of midlevel principles. It is these midlevel principles (Rob lists four: nonremoval, proportionality, efficiency, dignity) that allow Rob to have his cake and eat it too. To the extent that the same list of midlevel principles is supported by all alternative foundational commitments, one gets the benefits of anchoring the principles (and the specific rules they back, one level down) in deep normative support while at the same time remaining free to forget about those philosophical theories. A related benefit is that various participants in the policy debate can agree on a common ground for resolving specific IP policy issues without agreeing on foundational commitments. To paraphrase Rob, you can remain a diehard fan of English Stout and I’ll remain a devout follower of German hefeweizen, but we can both share a Budweiser at the Midlevel Bar and Grille, which is the only bar that would serve us both.
So what’s wrong with IP policy midlevel principles? This question entails, no doubt, a complicated debate. But let me start off by mentioning, somewhat simplistically, two main difficulties of the concept of midlevel principles as applied to IP:
Midlevel principles have a built-in conservative bias! Where do midlevel principles come from? As Rob explains, they are induced from existing specific rules and practices (to be sure, this is, most probably, subject to some coherence limitation that allows weeding out outlier specific rules). But what guarantee do we have that what IS is what OUGHT to be? The conservative bias in favor of whatever already exists is apparent. The method smells suspiciously like Burkian arguments about the inherent wisdom of the common law or perhaps like their cousins-- arguments about the efficiency of the common law from the heyday of the first wave of law and economics scholarship. But even those who are impressed by such arguments (I am not) should pause and think about the origin of IP law. IP doctrines and practices were produced by a mix of common-law-like judicial development and incremental legislation with all the well-known public-choice aspects and half-baked compromises that often characterize the latter. Why would anyone think that the outcome of this process is necessarily optimal or desirable, or even close to what should guide us in regard to future policy?! In moral philosophy inductive (or alternatively “reflective equilibrium”) methods of reasoning are often justified by reference to our existing moral intuitions in specific cases. Of course, those modes of justification are themselves a subject of a fierce debate, but at least the reference there is to existing intuitions and practices about what is RIGHT, not simply to what IS as a descriptive matter. Thus, to the extent that midlevel principles are ultimately derived from existing rules, they seem like unsupported clinging to whatever exists that blocks the possibility of implementing whatever should be.
Fuzz is the Price of consensus! Still wouldn’t it be nice if all of us, whether we practice at the church of efficiency or at the shrine of Lockean natural rights, could have a shared common ground for our IP policy exchanges? It would be very nice if it could be done, but (the pessimist that I am) I suspect that such “overlapping consensus” could be achieved only at the price of muddling the midlevel principles to the point of making them counter-productive. It is not that it is impossible for specific “foundational” commitments to produce overlapping results in specific cases. That happens all the time. Moral reasoning that starts with very different assumptions and tenets may certainly end with the same conclusion in regard to specific questions of application (e.g. is the Wind Done Gone fair use? Should there be a patent in a newly discovered naturally occurring substance?). But it would be surprising if one could reduce those areas of overlap in specific cases to a small number of (midlevel) principles that on the one hand cover most of the universe of IP policy, and on the other hand are determinate enough to supply actual guidance in regard to specific cases. I suspect that one can pull off the stunt of convergence of many foundational accounts on a small number of principles only by making those principles tremendously abstract and therefore hopelessly obscure. I mean, who wouldn’t like “proportionality” or “dignity” (or “love” for that matter)? But only by supplying a much richer account of these principles and what they assume one could endow them with specific meaning that makes them useful in regard to actual IP law and policy questions. Take for example the public domain (roughly synonymous with the nonremoval principle). Stated on a very high level of abstraction it simply means that some things should not be protected by IP. On such an abstract level who would not agree? (except perhaps, members of the small and secretive cult of very strict absolutist IP fundamentalism). But it is exactly when one asks the more relevant questions of application about what should be included in the public domain that disagreements begin to appear. These disagreements flow from different positions and normative assumptions that could be made intelligible only by appeal to different “foundational accounts.” Nothing in the abstractly stated midlevel principles is likely to solve these disagreements. And indeed when Rob disagrees with David Lange’s conception of the public domain and what should be included in it he does so precisely by appeal to foundational accounts—ones that Lange and others may not share (footnote 25 to chapter 5).
My point is, in part, that such an abstract “consensus” is not helpful because it often breaks down exactly when it matters—i.e. when hard concrete policy questions are at hand. Furthermore, such hopelessly abstract “shared” principles tend to generate two unfortunate phenomena in the IP policy debate. One is instances of fuzzy arguments that could justify almost anything (e.g. general observations about copyright’s “built-in” First Amendment safeguards). Another is instances of parties talking past each other in slogans without really understanding what the other is saying (e.g. the common format of an “efficiency” vs. “free speech” debate in copyright).
None of this means that we should all be turned into moral philosophers. My hunch is, however, exactly the opposite of Rob’s on this issue. I think what we need is more rigorous understanding of “foundational theories” and how to apply them to specific IP policy questions and not intermediary, abstract “common ground” principles. If we move in that direction at least we may be able to understand what we disagree on or which empirical information we lack; not to mention the utopian possibility of actually being able to persuade each other through deliberative reasoning.
Erieblogging: Day Twenty-Nine
My Erie question for the day is still about relatively unguided Erie choices, that is, cases in which a procedural matter faced by a federal court sitting in diversity (or supplemental jurisdiction - or bankruptcy? or CAFA? or statutory interpleader?) is not covered by federal enacted law (such as a federal statute or a Fed. R. Civ. P.). My question is this: What is the grand unified theory?
A federal court facing such a case is supposed to balance the twin aims (whatever those are), which recommend borrowing the rules that would be used by a forum state court, against countervailing federal interests (whatever those are), which argue in favor of a uniform federal common law rule - while taking into account states' interests in their rules applying in federal court (which states? what types of interests? how can we tell if they exist?). Today's question is what happens when you put all of these in the hopper. How is a decision produced? What is the balancing theory (if balancing is what is going on)? What is the grand unified theory?
Two more days. Tomorrow: Erie in DC. The final day: What we can learn about Erie from the courts of other nations with federal systems.
(Parallel posted on Michael Green's Civ Pro Blog.)
replying to Rob Merges, Justifying Intellectual Property
Posted by: Wendy Gordon |
Merges on Gordon on Rawls and IPWendy Gordon, as might be expected, gets right to the heart of the most difficult issues in her post on the Rawls chapter in my book, Justifying Intellectual Property ("JIP"). In this post I want to give some quick context and then point the interested reader to the fuller discussion that addresses the issues Wendy raises. Chapter 4 of JIP is on "Distributive Justice and IP Rights." It comes after an introductory chapter that lays out the architecture of the book, and then two chapters on foundational figures in the philosophy of property rights, Locke and Kant. While Locke and Kant are both sophisticated enough to include "other-regarding" features in their accounts of property, I wanted to include a more thorough, systematic, and comprehensive account of distributive justice issues in my discussion of IP rights. So naturally I turned to Rawls. Rawls himself, especially the early Rawls of A Theory of Justice, is fairly lukewarm on private property. But there is a good bit of subsequent literature that extends and adapts Rawls's framework in various ways that reflect more contemporary concerns. And of course since the 1970s there has been a huge upswelling of interest in property theory and philosophical discussions of private property. (Think Jeremy Waldron, The Right to Private Property; Stephen Munzer, A Theory of Property; Richard Epstein's Takings book and subsequent writings; Henry Smith, Lee Ann Fenell, Carol Rose, Greg Alexander, etc. etc. And in IP law, Peggy Radin, Wendy herself (indispensable on Locke) and others.) So it was in this spirit of updating and adapting that I tried to defend IP rights as consistent with a comprehensive Rawlsian account of distributive justice. I began, reasonably enough I think, with Rawls' two principles of justice. Principle 1 says that all persons have an equal right to the most extensive system of basic liberties that is consistent with the liberty of others (the "liberty principle"). The balancing of individual ownership with the interests and rights of the community is a major theme of contemporary property theory -- arguably *the* major theme. So it was relatively easy to draw on the property rights literature for a defense of property (and particularly IP rights) under the liberty principle. I will spare you the details here; but I would add that for me Kant's emphasis on property as a way to facilitate personal autonomy factors heavily into my description of IP as a true, basic individual right. Rawls aficionados will recognize that I could have stopped there. Under his "lexical priority" approach, if a right is demanded by the liberty principle it need not be justified in terms of the second principle. Because I was not sure everyone would buy my defense of IP under the first principle, and more importantly because I could not resist the challenge, I also tried to defend IP under Rawls's second principle. The second principle is the famous "difference principle." A deviation from strictly equal resource allocation can be justified only if it results in the greatest benefit to the least advantaged members of society. My argument here is based on the fact that industries reliant on IP rights contribute significantly to the quality of life of the poorest members of society. Popular culture (including much TV programming); technological improvements such as air conditioning; low-cost long-distance communication and transportation (especially important for immigrants); and cost-saving innovations of all kinds (mobile phones, hypertension medicines, etc.) are, the data show, highly valued by low-income members of our society. These data are surely what Wendy Gordon has in mind when she says that I have not persuasively defended IP under Rawls's second principle. She makes a good point. IP rights stand behind a number of personal fortunes that in themselves represent wildly extravagant deviations from a pure egalitarian distribution (think Bill Cosby, Bill Gates, Jay-Z, George Lucas, Oprah Winfrey). Consumer enjoyment, particularly for the least advantaged, must be factored into a discussion of these fortunes and the institutions (including IP rights) that make them possible. I would note, incidentally, an interesting feature of my list of IP-backed fortunes. Did you notice that 3 of the 5 people mentioned are African Americans? While not strictly relevant to the second principle, I think it is interesting that so many prominent fortunes in the African American community have been enabled by IP rights. This may not be justifiable unless the poorest of our citizens somehow benefit from the conditions that make these fortunes possible, but it is surely an interesting point from the general perspective of distributional concerns in our socio-economic system. (Incidentally, Justin Hughes and I have undertaken some joint work to pursue this idea in more depth). Nevertheless, as I acknowledge in JIP, what I provide is really not much more than a sketch of a full-blown defense of IP under the difference principle. A fuller defense would have to accept the higher marginal prices brought about by IP, and balance these against the consumer surplus created even for the poorest members of society by IP-based entertainment and technology products. My defense gestures in this direction but falls far short of being truly comprehensive. On the other hand, at least I have tried to integrate a comprehensive account of distributive justice into the discussion of IP rights. It may be less than a full feast. But perhaps it's also more than chopped liver.
The New Institutional Philosophy of Rob Merges
In Justifying Intellectual Property, Rob Merges has written one of the most sweeping, significant, and brilliant books about intellectual property to be published in years. The importance of the book is only accentuated by the identity of the author. Merges is, of course, one of the godfathers of the institutional economics approach to intellectual property law, so this book conjures up the image of Richard Posner arguing that contract and tort law are fundamentally grounded in theories of fairness and distributive justice. Merges’ book is an ideal candidate for a book club such as this one because it covers so much ground and does so with a great deal of nuance and careful detail. This post will only scratch at one corner of Merges’ masterpiece, and I look forward to reading the perspectives of others as well. Many thanks to Matt Bodie for organizing this club and to Prawfsblawg for hosting it.
Justifying Intellectual Property is a tremendous achievement in large part because it succeeds in adducing a fully compelling non-economic justification for intellectual property rights. When Merges argues that he can arrive at the midlevel principles that animate central IP doctrines using Locke, Kant, and Rawls, he is highly persuasive. The antecedent question, which I hope to explore, is what has catalyzed this approach. Merges notes throughout the book that for an economic justification for intellectual property, the evidence is not there: based on existing empirical findings, there is at least as much reason to believe that intellectual property has hampered innovation as that it has advanced it. That is a fair characterization. But note the type of argument being made. It is not the case, and Merges correctly does not assert, that IP’s midlevel principles cannot be justified with economic theory. Such a justification would not be difficult: nonremoval, proportionality, and efficiency are core ideas of an economic theory of intellectual property—efficiency, as Merges notes, might be the foundational principle, with nonremoval and proportionality two of the crucial midlevel principles. The only principle that is missing from standard economic accounts is dignity, unless it is thought of in human welfare terms (which perhaps it should be). But dignity plays a much smaller role in IP doctrine than the other three midlevel principles. This is particularly true in the United States, where artists and creators have fewer moral rights than they do in European jurisdictions. And it is true as well for patent law, where one will struggle to locate an important doctrine that appears to be grounded primarily in a concern for human dignity. When it comes to dignity considerations in IP, it is not clear how great the need for justification really is.
Nor is it the case that IP doctrine is inconsistent with economic theory. To be sure, there are some (perhaps many) doctrines that seem misguided from the position of economic theory. But this will be true for all legal fields, including those, like antitrust, that are indisputably guided by economic thinking and economic thinking alone. If there were not such holes and inconsistencies in the doctrine, there would be little for legal scholars to write about! More importantly, if IP’s midlevel principles could be understood equally well as stemming from economic theory, then any doctrinal failings are attributable to errors in translating midlevel principles into doctrine, not a problem with economics as a fundamental IP precept. So the issue is not doctrine, either.
The problem, as Merges correctly describes it, is that IP doctrine, as implemented by courts and other parties, has failed to advance the economic aims that it set out. This is an empirical judgment, and quite possibly a correct one. But what is the comparable standard by which a deontic conception of IP is to be judged? What would it mean for IP doctrine in practice not to have properly advanced Lockean or Kantian ethics? How could anyone tell? The problem—or, more accurately, the advantage for Kant and Locke—is that those approaches are purely theoretical and do not generate testable predictions. Economic theory has foundered on a set of tests that cannot be applied to the alternatives Merges proposes.
Rob Merges is absolutely right that an economic approach to intellectual property law has failed to deliver on its promise and should be rethought. To take its place, he has accomplished something monumental, elevating deontic theory to a sustainable position as the foundation for intellectual property law. But the terms on which he has lifted Kant and Locke do not entomb economic theory. In the end this may be just as well. It would be a shame if future scholars were to cease reading the terrific institutional economics articles that Merges wrote earlier in his career.
PrawfsBlawg: Tomorrow's News, Today.
Perhaps PrawfsBlawg can't meet a catchy newspaper-themed television show from the 90s, but it does have some predictive power. Back on January 7, a few of you may recall that I wrote about proposed legislative changes to the Electoral College in a handful of states. I suggested three reasons I wouldn't be concerned: that there are House-Presidential mismatches; that such proposals are nothing new and rarely go anyplace; and that there exists a Rawlsian concern that a plan might backfire tomorrow.
Well, it took a few weeks, but everyone's finally coming around. Joshua Spivak at The Week writes about how temporary gain may not pay off in the long-run. Nate Cohn at The New Republic called the move "self-defeating." Rick Hasen wrote at Slate last week not to worry, because such worries are often overblown.
But you, PrawfsBlawg reader, knew all that, because you read what I had to say three weeks ago.
Boy, Do I Love it When I Agree With the Other Guys
I presume that most people in the legal academy, like me, have strong political views, and that their judicial views tend to align quite closely to those political views. Shocking, yes. But if you're like me, and you're a political liberal, and you find yourself agreeing time and time again with the liberal wing of the Court and think Justice Ginsburg is always right and that Justice Scalia is always wrong, and if you have any amount of self-awareness at all, however small, then from time to time you're going to inevitably ask yourself something like: Oh my god, am I just a total hack?
That's why I love this case I taught yesterday in Environmental Law called Alaska Department of Environmental Conservation v. EPA. The case involves the interpretation of the Clean Air Act's requirement that new and modified sources of air pollution in non-attainment areas get a permit that includes a Best Available Control Technology (BACT) provision. The statute gives the state permitting agency the authority to choose the specific BACT, but the question in the case was whether EPA, if it thinks the state's BACT choice is unreasonable, can issue a stop order against the new or modified source, or whether instead it has to go to state (probably) court and challenge the state's BACT determination as unreasonable. Justice Ginsburg, writing for 5 justices (Breyer, Souter, Stevens, and O'Connor) held for EPA. Justice Kennedy, joined by Justices Scalia, Thomas, and Rehnquist, dissented. Now, I love the feds and the environment as much as any card-carrying liberal, but in this case I just happen to think the conservatives were right and that the CAA gives the states the right to insist on their BACT determinations unless those determinations are unreasonable under state law. Whenever I teach the case, I always feel good about myself, and toast myself with Champagne, and give myself a big hug, and sleep the safe luxurious sleep of a small child cuddling his favorite stuffed penguin. Are there cases that make you do this (you know, roughly speaking)?
Now as I was thinking about writing this post, I realized that for me this issue runs a little deeper and affects my scholarship. When I write law review articles (which, let's be honest, I do at a less than Sunstein-ian pace) I'm often attracted to topics that people looking at me from the outside in a not very sophisticated manner would think are counter-intuitive, given my general political and legal views. To be sure, I have written articles in the mode of "this is my real, most important commitment, and here's how the legal system should recognize that commitment, and here's why," and those pieces have tended to be among the more well-received of my articles (again, not talking Nomos and Narrative here). But the pieces I enjoy writing more are those where I take a position that's incidental (orthoganal? what the hell does that even mean?) to my main beliefs and that may seem surprising to people who know me. I'm thinking here of my articles about why we should teach about religion in public schools or why Kitzmiller was wrong to say that intelligent design isn't science or my forthcoming BYU piece on when and why the government shouldn't "disapprove" of religion. I believe all these things (they're not, in other words, simply art projects, although I still wonder about whether it would be ethically wrong to write two articles about the same issue, each one coming down on the exact opposite side and disagreeing with each other on every point), but they're not the things that I care most about (which would be, for example, that public schools shouldn't promote religious truth, that public schools should not and cannot usually teach intelligent design, and that the government should not endorse religion). Of course, writing about these things results in occasionally finding myself in a weird position, like when I was at a Liberty University Intelligent Design Symposium and Michael Behe put a picture of me up on a gigantic powerpoint presentation he was giving to a packed crowd and lauded me as a critic of Kitzmiller (that was weird). Okay, I'm done sharing now, thanks.
Thoughts on "Justifying Intellectual Property" from Wendy Gordon
Here is an initial post for the book club from Wendy Gordon, William Fairfield Warren Distinguished Professor, Boston University, and Professor of Law, BU School of Law:
Rob Merges’s new book book is an immense achievement. Intellectually it is stunning, plus Rob is an amazing and appealing writer.
Not since Peter Drahos’s 1996 book, A Philosophy of IntellectualProperty, has someone attempted to bring together a plethora of philosophic perspectives on IP. Rob adds to this panoptic philosophic view a sharp knowledge of economics, and he puts at the center an acute recognition of how much we need – and lack—crucial empirical evidence about the effects of IP.
Ironically, it’s Rob’s valuable focus on the need for better facts that fails him in the chapter on Rawls. Rob argues that broad IP rights are consistent with giving Rawlsian priority to the worst off in society. But the Rawls chapter is riddled with factual assumptions which, if empirically investigated, might well prove the opposite.
One could quibble on philosophic grounds with Rob’s interpretation of Rawls (details of quibble available on request), but even on Rob’s own terms it’s far from clear that the worst-off benefit from the restraints that patent and copyright impose on the use of inventions and works of authorship.
Book Club on "Justifying Intellectual Property"
Welcome to the Book Club on Robert Merges' Justifying Intellectual Property. Joining us for the club will be:
- Oren Bracha, University of Texas School of Law
- John Duffy, University of Virginia School of Law
- Wendy Gordon, Boston University School of Law
- Justin Hughes, Benjamin N. Cardozo School of Law
- Jonathan Masur, University of Chicago Law School
- and our author, Robert Merges, University of California Berkeley School of Law
Monday, January 28, 2013
Erieblogging: Day Twenty-Eight
Today’s Erie question is about “countervailing federal interests.” Assume that a procedural matter faced by a federal court sitting in diversity is not covered by federal enacted law (that is, a federal statute or a Fed. R. Civ. P). That puts us in “relatively unguided Erie” territory. Assume as well that the relevant state supreme court would not say that a state rule on the matter follows the state law cause of action upon which the plaintiff sues into federal court. That gets us out of Byrd’s “bound up” test. If so, whether the federal court should use a uniform federal common law rule or borrow the rule that would be used by a forum state court comes down to two sets of considerations – the twin aims of Erie (which argue for borrowing) and countervailing federal interests in favor of using a uniform federal common law rule.
My students usually have pretty good idea how to apply the twin aims (or at least the forum shopping part) and sometimes even have intuitions about whether a rule is bound up with the cause of action. What they have the most difficulty with is identifying countervailing federal interests. Consider whether a federal court can apply a uniform federal common law time limit to state law actions – maybe a flexible approach like laches (which was what was at issue in Guaranty Trust v. York). There would obviously be vertical forum shopping as a result. But why aren’t there countervailing federal interests in favor of the flexible federal rule? No one, to my knowledge, has a good theory about why not.
With an expansive view of countervailing federal interests, the twin aims are toothless. There needs to be some restriction on identifying such interests. The restriction cannot be that countervailing federal interests must be grounded in federal enacted law. Granted, such an approach would make some sense. The twin aims are apparently a congressional restriction on federal courts’ power over federal procedural common law in diversity cases. This restriction arguably can be lifted only by another congressional command. The problem is that federal courts commonly find countervailing federal interests without pegging them to federal enacted law.
Countervailing federal interests are, in short, a mystery, but probably no more mysterious than the idea of restrictions on federal common law in general.(Parallel posted on Michael Green's Civ Pro Blog.)
Hall on standing in DOMA litigation
When SCOTUS granted cert in United States v. Windsor to consider the constitutionality of DOMA, I flagged my exchange with Matthew Hall (Georgia) in Fordham Law Review over whether the Bipartisan Legal Advisory Group (BLAG) had standing to represent the United States in the case (as well as whether the Prop 8 sponsors had standing to represent California in the same-sex marriage case).
Matt is back at it, with a new essay in Stanford L. Rev. Online explaining why BLAG lacks standing--it has not been authorized to litigate either by statute or by House resolution. Definitely worth a read, especially if it begins to look as if the Court will take the jurisdictional out in the case. If Matt is right that BLAG is without standing allows the Court to vacate everything that has happened thus far in the case and send it back to the district court to begin from scratch.
The (So Far) Unmentioned Proposition 8 Litigation Tactic
There’s plenty of buzz over Hollingsworth v. Perry, the case before the Supreme Court that will determine whether California’s Proposition 8, which was approved in 2008 and amended the state constitution such that “[o]nly marriage between a man and a woman is valid or recognized in California,” is constitutional. Like many, I read the petitioners’ merits brief with interest.
But I noticed something (and, something, despite voluminous commentary, I haven't seen discussed elsewhere). And I went back to read the petitioners’ cert petition. Sure enough, the petitioners made a significant change between the petition and the brief. Did you notice? Probably not.
Well, the petitioners asked for permission to write a 20,000-word brief instead of a 15,000-word brief. That permission was denied. So, like good litigators should, petitioners changed citations. In the cert petition, petitioners cited a page in the appendix as “App. 445a.” In the merits brief, it’s “Pet.App.445a.” The “Pet.” is to distinguish the petitioners’ appendix—but that’s not the important part. The important part is the omission of a space in the citation. And, an excellent post from the Supreme Court of Texas Blog explains how that small space, in most word processers, reduces that citation from two words to one word. It doesn’t affect the brief’s readability in the slightest. But it saves dozens of words in a word count.
A small, but important, litigation tactic for all attorneys.
Sunday, January 27, 2013
Erieblogging: Day Twenty-Seven
Today’s Erie question is about conflicts between Erie (understood as deference to a state supreme court concerning the content of the state’s law) and the twin aims of Erie (understood as a duty of procedural uniformity with forum state courts). Such conflicts arise in triangular cases – that is, cases in which a federal court is entertaining a cause of action under the law of a state other than the forum. Erie was itself such a case: it involved a federal court in New York entertaining a Pennsylvania action.
There are many examples of conflicts between Erie and the twin aims of Erie:
1) Erie tells us that a federal court in Georgia interpreting Pennsylvania common law must respect the decisions of the Pennsylvania Supreme Court. But under the twin aims, because a Georgia state court interpreting Pennsylvania common law would adopt the Swiftian view that it can ignore the Pennsylvania Supreme Court’s decisions, a federal court in Georgia should be Swiftian too.
2) Erie and its progeny tell us that a federal court in New York entertaining an unsettled issue of Pennsylvania law must predict how the Pennsylvania Supreme Court would decide. But under the twin aims, because a New York state court deciding an unsettled question of Pennsylvania law would ignore the Pennsylvania Supreme Court’s likely decision and presume that Pennsylvania law is like New York law, a federal court in New York should presume that Pennsylvania law is like New York law too.
3) Abbe Gluck has suggested that it follows from Erie that a federal court in New York interpreting a Pennsylvania statute should use Pennsylvania’s rules of statutory interpretation. But under the twin aims, if a New York state court interpreting a Pennsylvania statute would use New York’s method of statutory interpretation, a federal court in New York should use New York's method too.
4) Kim Roosevelt has argued that it follows from Erie that a federal court in New York interpreting Pennsylvania law should be bound by the choice-of-law decisions of the Pennsylvania Supreme Court. But under the twin aims, because a New York state court interpreting Pennsylvania law would use New York’s choice-of-law rules, a federal court in New York should use New York's choice-of-law rules too.
5) In Byrd, Justice Brennan argued that a federal court in New York entertaining a Pennsylvania cause of action is obligated under Erie to respect Pennsylvania rules bound up with the Pennsylvania action. But under the twin aims if a New York state court entertaining a Pennsylvania action would ignore such Pennsylvania rules, and apply New York law instead, so must a federal court in New York.
The easiest way to solve these problems is to argue that state courts entertaining actions under sister state law have the same obligations under the Full Faith and Credit Clause that federal courts entertaining state law actions have under Erie. So I have argued. But even if I'm wrong, some account of state courts' Full Faith and Credit obligations when entertaining sister state actions is needed to make sense of the scope of conflicts between Erie and the twin aims of Erie. What might that account look like?(Parallel posted on Michael Green's Civ Pro Blog.)
Riddle: How Many Doctors Will It Take To Implement One Affordable Care Act?
If you saw the recent Wall Street Journal article on the development of Smartphone apps to detect skin cancer, you may already be wondering about specialty physician over-supply.
The University of Pittsburgh Medical Center study discussed in that article did not particularly endorse the three apps studied that used algorithms to analyze moles -- quite the opposite. They need work.
Though the study did not like the fourth app as well -- the one with the astonishingly accurate results that used a system that forwarded data and images to board-certified dermatologists for remote review at a cost of $5 per mole -- you could tell Christopher Weaver at the Wall Street Journal was intrigued. I am as well.
Teledermatology is not particularly well developed in the United States but is fairly advanced in Australia, another large country with a significant rural population and a chronic problem with various kinds of skin cancers. Australia's teledermatologists have fractured the traditional dermatology appointment, much like the app, reserving specialized visual work for the dermatologogist and leaving lab sampling to hands-on primary care providers. This means that dermatological care for some Australians is provided, in part, remotely.
There are many other health care related apps out there but not as many as you might think. In fact, health care apps are widely discussed as under-developed in the United States. ( If you have one in mind, here's a forum for you to seek fame and fortune: http://rwjf.org/en/about-rwjf/newsroom/newsroom-content/2012/12/foundation-announces--200-000-developer-challenge.html?cid=Xtw_qualequal. No worries if you miss today's deadline, this is an ongoing series of competitions.)
If one remotely-located dermatologist is able to perform these dermatological readings for many primary care providers, it is not difficult to imagine a trend line on dermatology: fewer dermatologists practicing remotely in ever larger specialized practice settings. Indeed, this is something we can already notice in some parts of radiology.
Interestingly, as in radiology, the specialization of the visual exam reader may also improve accuracy -- both in screening function and in elimination of expensive-in-every-way (financially, clinically, emotionally) false positives. I think of this as the paradox of learning to have clinical confidence in the doctor you never meet, the super specialized mammogram reader, for example, you hope you never meet.
Even if this raises interesting questions about specialty physician supply, what about the primary care physician shortage? This one you see everywhere because, after all, how are the many millions of newly insured Americans going to access health care without a primary care physician come January 1, 2014? Even the example above contemplates additional responsibilities for primary care providers coordinating with remote dermatologists.
I recently had the privilege of teaching in a UMKC Business School program for physicians--medical directors in particular. I always take away more than I give from such encounters. This group was genuinely concerned about finding the providers -- and the needed number of primary care physicians -- to implement the Affordable Care Act.
They have everything to be afraid of in a medical educational system where fewer than 20 percent of medical students end up working in primary care. Looked at from another angle, however, times of shortage may in fact be times of great opportunity. Despite decades of discussion about re-inventing medical school education (broadly construed to include post-graduate education), we see only a slight uptick in primary care physician supply.
If we re-invented primary care to be oriented toward a team approach with each team member rewarded for serving to the limits of their licensed authority and training, we might not need a huge infusion of primary care physicians. We might need a huge infusion of advance practice nurses or health educators or any number of associated health professionals who might offer primary care services in a team format. Rushika Fernandpulle has written in Health Affairs about "The Big Shortage" along these lines. And, like him, I wonder do we even have a physician shortage at all?
Riddle: How many doctors will it take to implement one Affordable Care Act?
Answer: Fewer than you might think.
Saturday, January 26, 2013
Justice races at the old ballgame
The Washington Nationals hold the Presidents Race in the middle of the fourth inning, between giant heads of the four presidents on Mount Rushmore. One running story had been Teddy Roosevelt's losing streak, which finally ended last season.
The Nats today introduced a fifth president for the races--William Howard Taft. As explained here, Taft's size (i.e., girth) and facial hair could make him a fan favorite (although the photos show he is not that much
larger than the other president heads). There also is the potential for a fun rivalry, given the political rift between Roosevelt and Taft.
More importantly, every race now can be part of an off-shoot event--Justice Races. No matter how Taft does against the other presidents, he always will be the fastest justice.
Erieblogging: Day Twenty-Six
Here's today’s Erie question (OK – it’s actually a reverse-Erie question). Let’s start with a diversity case. Assume a federal court in New York is entertaining a Pennsylvania cause of action. It has a duty under Erie and Byrd to respect the content of the Pennsylvania action (including rules bound up with that action). That duty is pegged to the likely decisions of the Pennsylvania Supreme Court. But it also has a duty under the twin aims to have procedural uniformity with a New York state court, a duty that doesn’t seem related to the New York Court of Appeals’s likely decision on the matter. My earlier posts were mostly on the former duty, while my more recent ones have been on the latter.
What about when a state court entertains a federal cause of action? Does the state court have a duty only to respect the content of the federal cause of action, analogous to a federal court’s duty under Byrd, or is there also a duty of procedural uniformity with federal courts. In short, do the twin aims apply in a reverse-Erie context?
One might wonder how the distinction between Byrd and the twin aims is possible in a reverse-Erie context. After all, the Supreme Court is authoritative concerning both issues. In our diversity case, in contrast, the Pennsylvania Supreme Court was the authority concerning whether a rule was bound up with the Pennsylvania cause of action, while the United States Supreme Court was authoritative on the role of the twin aims.
But I think there is an important distinction between the Supreme Court saying that a federal rule is bound up with a federal cause of action because the failure of a state court to use the rule would frustrate the substantive regulatory policies of the federal action, and the Supreme Court demanding that a state court use the federal rule to serve federal jurisdictional policies, such as avoiding forum shopping between federal and state court. For example, the Supreme Court would want the bound-up rules to follow the federal cause of action into the courts of other nations. It would not care whether foreign courts used rules of the second type.
I’m pretty confident that a majority of the Supreme Court thinks that something like the twin aims apply in a reverse-Erie context, although I don’t think they would put it that way. Others agree. An example is Haywood v. Drown. Haywood concerned a New York statute according to which any civil action for damages against prison personnel for torts committed within the scope of their employment had to be brought in the New York Court of Claims. Because this court could not entertain federal civil rights suits, the effect of the statute would be to remove state court jurisdiction for federal civil rights suits brought against prison personnel.
The New York statute does not frustrate the substantive purposes of federal civil rights actions, for the only result of the statute is that they get litigated in federal or sister state courts rather than New York state courts. But it does violate the twin aims. In holding the statute preempted, I think the majority of the Court was relying implicitly on the twin aims – and an analogy between diversity and reverse-Erie cases. The upshot of Thomas’s dissent, in contrast, was a rejection of the applicability of the twin aims in a reverse–Erie context. So who’s right?
Friday, January 25, 2013
Erieblogging: Day Twenty-Five
Two more questions about the twin aims of Erie. Do they apply when a federal court entertains a state law action after having gotten personal jurisdiction over a party pursuant to the “100-mile bulge” in Fed. R. Civ. P. 4(k)(1)(B) or through pendent personal jurisdiction?That's what federal courts have assumed. But, once again, why uniformity with a forum state court when it could never have entertained the action, because it lacked personal jurisdiction over the defendant?
When I first started researching this new book I'm working on about religious practices that harm the environment, and what to do about them (if anything), I asked around to see if anyone knew of good examples from around the world. John Nagle from Notre Dame pointed me to this fascinating article from Audubon Magazine about how the use of palm branches from the wax palm tree for Palm Sunday celebrations in a certain area in Columbia had resulted in the near extinction of the yellow eared parrot. The story has a happy ending, as the church decided to use different kinds of palm trees instead, and the parrot has since recovered at least a little way from the edge of extinction.
I did some more research into palm trees and Palm Sunday and came across another interesting story. Many of the palm forests in Guatemala and southern Mexico and Belize have been suffering from unsustainable harvesting practices, as harvesters cut down as many trees and branches as possible to supply the North American market for palms. Part of the market is for churches which use the palms for Palm Sunday. At some point, the Commission for Environmental Cooperation, a body that was set up by NAFTA to promote pro-environmental trade policies, recognized the problem and contacted Dean Current, a professor at the University of Minnesota (and a terrific guy, as I found out when I visited with him last fall), to conduct a study on the palm market in the US. Current learned that lots of religious organizations in the US would be willing to pay a premium price for sustainably harvested palms. Starting in 2005, Current, working together with a number of religious organizations in the US and NGOs in Guatemala and Mexico, began the so-called "Eco-Palm" project. This project allows religious congregations to order sustainably harvested palms for a somewhat higher price than they would pay for other palms, and then this extra money is sent to communities in northern Guatemala and southern Mexico who harvest the trees in a slower, more careful fashion that protects the forests. The communities use the extra money for things they need, such as improving their schools, building community kitchens, and the like. The New York Times reported on the project in 2007 here, and here is another piece about it from the Pittsburgh Post-Gazette.
To me, this project seemed like a fascinatingly creative approach to a difficult problem--an example of using the market as opposed to regulation to protecting the environment from a dangerous practice--and I decided to make it one of the core case-studies in the book. In February, I'll be heading to northern Guatemala (Flores) and Chiapas, Mexico for about 8 days to meet with the NGOs (which have been terrific in helping me plan the trip) and to travel to the communities and forests where the harvesting is taking place to try and understand more fully what's going on there. It should be pretty exciting, and I'm looking forward to getting lots of good material for the book. Wish me luck, won't you?
Thursday, January 24, 2013
Erieblogging: Day Twenty-Four
Statutory interpleader creates federal jurisdiction for minimal diversity state law actions in which a plaintiff seeks to settle rival claims to property. Armed with nationwide service of process, she can drag all potential claimants into one proceeding, thereby protecting herself against inconsistent or multiple liability. The Supreme Court has assumed that the twin aims apply in statutory interpleader actions. So have lower federal courts.
But nationwide service of process creates a problem. Why is uniformity with a forum state court important when the forum state court could never have entertained the action, because there was no personal jurisdiction over the defendant?
(Parallel posted on Michael Green's Civ Pro Blog.)
Wednesday, January 23, 2013
Random pop culture momentWe watched "The Wizard of Oz" over the weekend--first time our daughter had seen it. Now I can't get Dark Side of the Moon out of my head.
Just Open Your Mouth Wide and Say: "Dental Therapist"
Pediatric dental services are included in the essential health benefits standard of the Affordable Care Act. This means the ACA requires individual and small-group plans sold in the exchanges and outside the exchanges to offer pediatric dental services, as of January of 2014 -- just less than a year from now. And dental services already are part of the benefit package for children who are enrolled in Medicaid.
Demand for pediatric dental services is about to increase. But no one knows by how much.
One thing we do know is that the Centers for Disease Control estimate over two thirds of Americans age 16 to 19 have decay in their permanent teeth. The CDC also estimates one quarter of children start school with tooth decay. How many of these people will step forward for dental care is unclear. But the school aged population may be screened more consistently for dental problems now that dental problems have been identified as a marker for lost school days and because of increased pediatric dental insurance coverage.
Our Medicaid eligible population is about to boom. Just to give you some sense of scale, you should know that California estimates a further 900,000 pediatric Medicaid enrollees will soon join Medi-Cal, California's version of Medicaid.
Another thing we do know is that about half of all currently Medicaid eligible children have not seen a dentist within the past year. Whether bringing their parents into Medicaid eligibility as part of what is sometimes called a "culture of coverage" will increase pediatric dental demand in the population of Medicaid enrollees is also unclear. This is especially tricky to forecast since Medicaid dental coverage for adults -- an optional program -- is increasingly rare.
One final thing we do know is that some subset of Medicaid enrollees who have tried to access pediatric dental services but failed, did so because of an inability to find a dental provider who would accept Medicaid reimbursement. This number is hard to quantify but is most often extrapolated from looking at the percentage of licensed practicing dentists in a given service area who accept Medicaid reimbursement. HHS estimates that twenty percent of the nation's 179,000 practicing dentists accept Medicaid and notes that the licensed dentist pool has not kept up with population growth. Interestingly, the labor supply of other oral health professionals (dental hygienists, etc.) has kept up with population growth while dentistry has gone grey.
Medicaid dental reimbursements are low. Though they vary from state to state, they can be as low as 25% of market rates. The National Academy for Health Policy did an interesting study in 2008 comparing Medicaid dental reimbursement rates and the effects of targeted reimbursement increases as well as reduced administrative paperwork. Sure enough, raising the reimbursement rate and lowering the administrative burden increased the number of Medicaid participating dentists dramatically.
Rate thresholds matter, it turns out, but only if a state has the funds to raise Medicaid pediatric dental rate thresholds. Some of those who do not have begun to talk about using dental therapists for some aspects of oral care. Known as "mid-level providers" for the place they take between dental hygienists and general dentists, dental therapists are an interesting group. Dental therapists typically have two to three years of training beyond high school.
Minnesota is the first state to have established a licensing system for dental therapists and advanced dental therapists. Dental therapists, under either general or indirect supervision, may perform many of the services we now associate with dentistry: charting, cleaning, even some work on cavities and more advanced services. Minnesota's Board of Dentistry appears to have made at least a temporary peace with what I call dentistry's scope of practice wars -- the rules and regulations regarding supervisory ratios, services that may be offered by dental therapists, and the education and training of dental therapists.
Minnesota's licensing scheme is new. Since 2011, there have been only a small numbers of graduates. But we do have substantial experience in using dental therapists with under-served rural populations in Alaska. Alaska's Dental Therapist Health Aides ("DHAT") experiment has been moving forward since 2005 under the auspices of the Alaskan Native Tribal Health Consortium. The first DHAT trainee cohort was trained in New Zealand but DHAT's dental therapists are no longer trained overseas, though it is private foundation money that has done much to launch and extend this experiment.
The results for consumers are good, even very good. Care is available in remote or hard to reach places and is provided in a community context. Quality measures have been quite high.
Now, remote Alaskan locations are one thing and rural underserved populations in Minnesota are another, but I am pretty certain the dental therapist scope of practice wars have only just begun. Organized dentistry is concerned about quality standards, educational standards, and the liability concerns of dental therapist supervisors. Organized dentistry is also worried about oral health care provider competition.
I will watch this story unfold. California's Children's Partnership's recent call for the licensing of dental therapists -- in a state with some of the most restrictive scope of practice rules in the United States -- should be worth following.
I tell my students that, in health care, innovation often starts in the arena of government funded health insurance and spreads to the world of commercial insurance only later. If Medicaid leads the way in championing the use of dental therapists as lower cost providers to fulfill its promise of pediatric dental services, I assure you commercial insurance providers both inside and outside of the exchanges will take note.
So, whoever you are, just open your mouth wide and say "dental therapist."
Rave's Politicians as Fiduciaries
David Ponet, Michael Serota, and I have just published a response to Teddy Rave's Politicians as Fiduciaries at the Harvard Law Review's online forum, entitled Translating Fiduciary Principles into Public Law.
Erieblogging: Day Twenty-Three
The question is not whether applicable state law should be used by a federal court sitting in bankruptcy. It obviously should, unless there is some conflict between the state's law and the goals of bankruptcy. The question is whether the twin aims of Erie apply. Is there a reason for uniformity between the federal procedural common law used in bankruptcy and the law used by a forum state court, even if the relevant state supreme court does not care whether its law is used?
The role of the twin aims in bankruptcy is a puzzle because federal bankruptcy jurisdiction is exclusive, so there is arguably no problem of forum shopping. In addition, a federal court sitting in bankruptcy has jurisdiction over all of the debtor’s property, no matter where it is located, and nationwide service of process is available. So it can entertain a state law action or issue even though the matter could not have been entertained by a forum state court.
Once again, it is hard to answer this question unless we know where the twin aims come from. This question counts as underexplored, not unexplored, by the way. There are a few articles out there on the topic, generally focused on whether Klaxon applies in bankruptcy, a matter about which there is a circuit split.
(Parallel posted on Michael Green's Civ Pro Blog.)
Twitter Census of Law Reviews
I tweet occasionally @derektmuller (feel free to follow) on election law, litigation, baseball, Malibu weather, and Notre Dame football (gulp). And the work by Bridget Crawford at The Faculty Lounge in aggregating a law professors’ Twitter census was an extraordinary and highly useful effort.
One good thing about Twitter is the ability to share and read links in a simple, shareable format. And what better place for law journals to promote their recent publications than on Twitter? Well, so I think. It’s difficult to keep track of what so many different journals are doing (with the notable exception of the excellent work at the Law Review Forum over at Concurring Opinions), so Twitter might be a good one-stop shop to see recent publications. (And both as advisor to the Pepperdine Law Review and one eagerly awaiting the arrival of Redyip, I’m particularly interested in what journals are doing.)
But, I haven’t found (or maybe I wasn’t looking hard enough) a good aggregation of law review Twitter feeds. I thought I’d give it a try.
Below are the Twitter feeds for a handful of law reviews. (And I suppose a “census” is a misnomer, because it’s by no means any attempt to be exhaustive.) I’ve aggregated them to a single list here, if you want to subscribe via Twitter. I couldn’t find a number of them (e.g., Columbia and Virginia), so perhaps they do not exist, or perhaps I simply didn’t look hard enough (notice a theme?). A few have ceased activity (e.g., Michigan). Others have no tweets (e.g., Duke). But, here they are, in a somewhat-random and idiosyncratic order.
Yale Law Journal: @YaleLJournal
Harvard Law Review: @HarvLRev
Stanford Law Review: @StanLRev
University of Chicago Law Review: @UChiLRev
NYU Law Review: @nyulawreview
Michigan Law Review: @michlawreview
California Law Review: @CalifLRev
Penn Law Review: @PennLawReview
Duke Law Journal: @DukeLawJournal
Georgetown Law Journal: @GtownLawJournal
Texas Law Review: @TexasLRev
Cornell Law Review: @Cornell_Law_Rev
UCLA Law Review: @UCLALawReview
Boston College Law Review: @BCLawReview
Boston University Law Review: @BULawReview
UC Davis Law Review: @UCDavisLawRev
Ohio State Law Journal: @OhioStateLJ
Fordham Law Review: @fordhamlrev
Alabama Law Review: @AlaLawReview
Iowa Law Review: @IowaLawReview
Illinois Law Review: @UIllLRev
Florida Law Review: @UFLawReview
Tulane Law Review: @TulaneLawReview
American University Law Review: @amulrev
Pepperdine Law Review: @PeppLawReview
Cardozo Law Review: @CardLRev
Connecticut Law Review: @ConnLRev
George Mason Law Review: @geomasonlrev
Oregon Law Review: @OregonLawReview
Temple Law Review: @TempleLawReview
Denver Law Review: @denverlawreview
Feel free to list additional law reviews in the comments!
Tuesday, January 22, 2013
Erieblogging: Day Twenty-Two
One more puzzle about the twin aims of Erie - the goal in diversity cases of uniformity between federal procedural common law and the law used in a forum state court, to avoid “forum shopping” and the “inequitable administration of the laws" (whatever that means). Since we don't know where the twin aims come from, it's not easy figuring out whether they apply when a federal court is entertaining a state law action outside of diversity. My question for the day is: Do the twin aims apply when a federal court entertains state law actions under the Class Action Fairness Act (CAFA)?
The question isn't whether federal courts sitting under CAFA have a duty to respect state law that the relevant state supreme court wants federal courts to use (although maybe it follows from CAFA that even such state law should be preempted by federal common law). The question is whether the federal procedural common law used by a federal court should borrow from the law that would be used by a forum state court, even if the relevant state supreme court does not care whether its law is used in federal court. Congress can free federal courts of the twin aims if it wants. Has it done so in CAFA?
There is some discussion about whether Klaxon applies when a federal court sits under CAFA. (Klaxon said that a federal court sitting in diversity should use the choice-of-law rules that would be used by a forum state court.) But what about other federal procedural common law issues? Say the question is the method of calculating attorney's fees, exchange rates, or prejudgment interest. Concerning all three federal courts sitting in diversity have borrowed from forum state law. Should they do so when entertaining state law actions under CAFA? If we don't know where the twin aims come from, how can we answer this question?
(Parallel posted on Michael Green's Civ Pro Blog.)
Why the Movie "Big Fan" Starring Patton Oswalt is Great for Teaching the Free Exercise Clause
If you haven't seen Robert Siegel's 2009 film "Big Fan," starring the hilarious Patton Oswalt as "Paul from Staten Island," a 36 year old bachelor who lives with his mother and whose life revolves around his fanatical devotion to the New York football Giants, then you should go see it as soon as possible. (Here is the trailer). I say this even if you're not a law professor who teaches church/state law. If you are a law professor who teaches church/state law, then consider your obligation to see the movie doubled.
In almost every law and religion class, at some point somebody raises the question of why religion and not other types of belief should be constitutionally protected. This sometimes transitions into a discussion of the various definitions that scholars and courts have given for "religion," including so-called "content based" definitions, which define belief systems as religious or not religious based on their content, e.g, only a belief in a god or an extra-human source of authority counts as religious. Many find these content-based definitions unsatisfactory because they exclude belief systems (maybe Taoism, for example) that we generally think of as religious.
So then we talk about so-called functional defintions of religion--those definitions that define what counts as religion w/r/t what role or function the system plays in the person's life. Maybe each person's "ultimate concern" (as Tillich says) is that person's religion--whether that's Christianity or environmentalism or atheism or their family or whatever. At this point, someone will generally point out, hey wait, does that mean that someone whose whole life revolves around baseball should be constitutionally protected?? Everyone in the class laughs heartily, although also somewhat uncomfortably, because, let's face it, it's not that easy to identify why precisely someone whose life revolves around environmentalism deserves protection but not someone whose life revolves around the Boston Red Sox.
Or the New York Giants, for that matter. Under any fuctionalist definition of religion, Paul's maniacal devotion to his favorite football team qualifies. His fandom is the one thing that gives his life meaning. He dresses in Giants clothes, thinks and talks incessantly about the Giants, adorns the room of his boyhood home where he still lives in Giants paraphernalia, has only one friend, with whom he talks almost exclusively about the Giants, and works as a parking lot attentdant so he has the time and opportunity to draft the passionate pro-Giant, anti-Eagle speeches he gives in the middle of the night on sports talk radio. The religious intensity of Paul's devotion becomes evident in all sorts of ways throughout the movie (I won't ruin it for you)--even the trailer explicitly states that for Paul and his buddy (and lots of other fans as well), football is their religion, and the stadium their church.
I show the trailer at the beginning of my law and religion class and use it to explore the "specialness" (or non-specialness) of religion as compared to other types of belief systems. The Supreme Court famously said that Adele Sherbert, a Seventh Day Adventist, could not be denied unemployment benefits when she refused to work on Saturday. What if Paul refused to work on Sunday? Should he get an exemption from generally applicable laws so that he can worship at his church of choice, even if that "church" is a parking lot outside the stadium where the Giants play (he and his buddy are too poor to buy tickets so they tailgate outside and watch the game on TV from there)? I find that having a real character to refer to when having this discussion of what, if anything, makes religion unique (and/or how we should define "religion") which tends to extend throughout the semester, makes the discussion richer, more grounded in specifics, and definitely more fun.
Do others use film in this way, or related ways, in their courses?
On Hatred--and Radical Love
I haven't been blogging much lately, for the usual reasons--ie., despair at the whole enterprise, with a smidgeon of being too busy with other things. (Happily, we've got you covered here with our series on Erie.) But I am moved to write by a post by Eugene Volokh yesterday (Martin Luther King Day, not incidentally) in which he writes to
state for the record that I think it’s eminently fitting for us — and for anyone else — to feel and express hatred for those who are evil, and in particular to think that they eminently merited death and indeed would have merited an earlier one. Hatred is the normal and proper reaction to those who murder, those who enslave, and the like, both on Martin Luther King Day and on other days.
You can read my comments on that post for the reasons why I found the post distressing, a feeling that has not abated with the passage of a day. So I thought, by way of antidote, that I'd post a link to a moving piece I read yesterday, a review in The New Yorker of a couple of recent biographies of Francis of Assisi. He does not provide an easy model for any of us to emulate, and most of us (of whatever faith) don't, really. But I can't help but find his example a more inspiring one. Enjoy.
Is anything jurisdictional anymore?
Today's SCOTUS decision in Sebelius v. Auburn Regional Med. Cen. (good summary of the main issue--equitable tolling--at SCOTUSBlog) required a brief detour into the jurisdictionality of the 180-day statutory period for filing an administrative review of Medicare reimbursement. And once again, the Court unanimously held that a filing period is not jurisdictional, again applying Arbaugh's plain statement rule.the The provision lacks any jurisdictional language or words with "jurisdictional import." Plus, filing periods typically are non-jurisdictional. That this provision was surrounded by other provisions that were jurisdictional does not change the conclusion. Nor does the fact that Congress expressly made other provisions non-jurisdictional; the Court would not accept that as anything more than a canon of construction that need not apply in all cases, in light of the text of the statute at issue.
We are on a roll in terms of non-jurisdictionality. The Court now seems to be going out of its way to find provisions (properly) non-jurisdictional. In fact, neither the government nor the medical providers wanted to argue that the provision is jurisdictional--recognizing the overwhelming direction of the doctrine; the Court appointed John Manning of Harvard as amicus to make the argument. Indeed, I am beginning to wonder whether anything, other than an outright jurisdictional grant, ever will be treated as jurisdictional again.
Roe v. Wade at 40
Today is the 40th anniversary of Roe v. Wade. For me (but not, I realize, for most of my friends and colleagues in the legal academy), it is a sad day and the fact that it follows on the heels of our celebration of the life and work of Dr. King is dissonance-creating. I realize that many regard the ruling as a welcome step in the direction of equality-under-law-and-in-fact for women (and perhaps also as a needed correction to an excessive influence on law of religious morality), and I'm not (I promise!) looking for a fight but, for me, the decision was a badly reasoned overreach, marked a set-back for human equality, and has had negative effects on our politics, on the judicial-nominations process, and on our constitutional doctrine. We could have done, and can do, better.
In any event, several hundred students from Notre Dame are leaving this afternoon (snowstorm notwithstanding) for the March for Life in Washington, D.C. They'll be joined by tens of thousands of others and, I imagine, ignored by the national media. But, I wish them the best. And, I still think John Hart Ely was right.
The Competing Claims of Law and Religion: Who Should Influence Whom?
We attract some extraordinary scholars for symposia here at Pepperdine. In case you hadn’t heard, Malibu is a fantastic place for law professors to spend a weekend in January or February. (The forecast for today, January 22, is mostly sunny, 77 degrees. How’re you feeling?)
But it’s also distinct aspects of the law school that attract great symposia. The school’s religious affiliation, for instance, helped prompt an extraordinary conference last winter, “The Competing Claims of Law and Religions: Who Should Influence Whom?” The Pepperdine Law Review has just published the fruit of that conference. (And, as faculty advisor to the Law Review, I’m fond of reading the products of the students’ diligence.)
If you’re interested, check out the work from Abdullahi A. An-Na'im (Emory), Patrick McKinley Brennan (Villanova), Zachary R. Calo (Valparaiso), Sherman J. Clark (Michigan), Robert F. Cochran Jr. & Michael A. Helfand (Pepperdine), Mohammad H. Fadel (Toronto), Chad Flanders (St. Louis), Richard W. Garnett (Notre Dame), John Lawrence Hill (Indiana McKinley), James Davison Hunter (Virginia), Andrew Koppelman (Northwestern), Michael Stokes Paulsen (St. Thomas), Barak D. Richman (Duke), Susan J. Stabile (St. Thomas), Mark Strasser (Capital), and Eugene Volokh (UCLA). (Whew!) You can browse the entire special issue here.