Thursday, July 23, 2015

God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate

Canstockphoto12155245This is a reflection about disciplines and theory, in particular, law and economics.  I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well.  What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer.  Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)

I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion.  To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."

It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change.  The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").

I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I  respect beyond question are going to get me to believe in the divinity of Jesus Christ.

I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point.  That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)

How this ties back to something as mundane as contract law after the break.

First, I owe it to Bob to plug his forthcoming Marquette Law Review article, Contract Design and the Shading Problem, the abstract of which is as follows:

Despite recent advances in our understanding of contracting behavior, economic contract theory has yet to identify the principal causes and effects of contract breach. In this Essay, I argue that opportunism is a primary explanation for why commercial parties deliberately breach their contracts. I develop a novel variation on opportunism that I identify as “shading;” a behavior that more accurately describes the vexing problems courts face in rooting out strategic behavior in contract litigation. I provide some empirical support for the claim that shading behavior is both pervasive in litigation over contract breach and extremely difficult for generalist courts to detect, and I offer an explanation for why this is so. In contrast to courts of equity in pre-industrial England, generalist courts today are tasked with the challenge of interpreting contracts in a heterogeneous global economy. This has left generalist courts incapable of identifying with any degree of accuracy which of the litigants is behaving strategically. I advance the claim that ex ante design by commercial parties is more effective in deterring opportunism in litigation than ex post evaluation of the contractual context by generalist courts. I illustrate this claim by focusing on the critical roles of uncertainty and scale in determining how legally sophisticated parties, both individually and collectively, design their contracts. By deploying sophisticated design strategies tailored to particular environments, parties are able both to reduce the risk of shading and to cabin the role of the decision maker tasked with policing this difficult to verify behavior. I conclude that judges and contract theorists must attend to the unique characteristics of the contracts currently being designed by sophisticated parties because it is the parties, and not the courts, that reduce the risks of opportunistic shading in contract adjudication. 
What Bob is wrestling with is how to fit the problem of contract language into the law and economics of contracts.  "Theory" would predict that contracts are a check on opportunism, and therefore we ought to see a reduction in opportunistic behavior, particularly as between sophisticated parties who write complex agreements. But we see LOTS of opportunistic behavior and so how do we explain it? Well, it must be because somebody is acting opportunistically, and pushing an ex post interpretation of the language that couldn't realistically have been what it meant when the parties agreed to it ex ante.
 
Economic theory of contract law - i.e., the relationship of contracting behavior to the reduction of opportunism - demands a causal relationship between the act of making a contract and the application of that contract to resolve a dispute that occurs later in time.  Moreover, if the contracting parties are rational, they ought to trying to make their contracts as "complete" as possible, that is, to anticipate as many "state contingencies" as they can. To quote Bob Scott: "Faced with this wide gap between theory and reality, the answers to a critical empirical question remain elusive: how do sophisticated parties adjust ex ante to the prospect of breach ex post?"
 
Bob and I don't disagree that the world is rife with opportunistic behavior, and it occurs as much in the case of sophisticated market actors as with anybody else.  Why we are ships passing in the night has to do with our respective orientation to theory and causation. I'm being presumptuous here, but I think for an economist to delink the ex ante contracting behavior from the ex post opportunism is, like Einstein, to accept spooky action at a distance. The theory is the hammer and, if you have it, the problem looks like a nail.
 
As I've written (ad nauseam, but at least here and here), I have a completely different view of the causal connection (or, to put it more bluntly, the lack of one) between the creation of ex ante contract text and ex post contract opportunism.  All law and economics scholars would (I think) agree that "complete contracts" - i.e. contracts that can in theory anticipate every state contingency - don't and will never exist in the real world. I think the concept, as a matter of fundamental belief, is so ephemeral and fantastical that I can't accept it even as the basis from which to begin an argument. Similarly, I believe the phrase "mutual intention of the parties" is right up there with "the present King of France" in terms of nominally coherent descriptions of non-existent things.  On the other hand, I can understand if an economist would look at my view as saying, in essence, God plays dice with the world, or as contending that I've reduced the behavior to something like spooky action at a distance.
 
What's interesting about all of this is my suspicion (confirmed by my exchanges with Bob offline) that we'd probably face practical problems as pragmatic lawyers in very similar ways. The dialogue is really about fundamental orientations to making sense of the world.

Posted by Jeff Lipshaw on July 23, 2015 at 10:21 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (2)

Wednesday, July 15, 2015

"We Begin with the Assumption that Contracts Matter...."

GULATI 0375292One of my reads this summer, because it's relevant to my piece on "lexical opportunism," has been a fascinating little book by Mitu Gulati (Duke, left) and Robert Scott (Columbia, right), The 3 1/2 Minute Transaction: Boilerplate and the Limits of Contract Design (Chicago, 2012). The subject matter is a puzzler: why did sophisticated law firms keep including a particular contract provision (the "pari passu" clause) in sovereign debt agreements when (a) almost nobody could present a credible explanation of its purpose, and (b) a highly publicized case affirmed an interpretation of the clause that threatened to undermine all attempts to restructure sovereign debt? Scott new 9-09

Let me start with words of praise. This is a good read and good work. Anybody seriously looking at issues in contract theory ought to be reading it. But it's refreshing to read the results of an academic, empirical piece where the authors are so frank about their bemusement and their inability to come up with a satisfying explanatory theory. Professors Gulati and Scott come at the problem with a neoclassical economic perspective, and find that "these hard-nosed Wall Street lawyers told us stores about rituals, talismans, alchemy, the search for the Holy Grail, and Zeus." (5)  It's pretty clear 173 pages later they'd agree that the conclusion - sticky boilerplate and herd behavior - is a whimper rather than a bang.

I confess that Ayn Rand's The Fountainhead and Atlas Shrugged were staples of my intellectual youth. I've since come to terms with some of the hokum and inherent contradictions in the philosophy (she hated Kant, and I kind of know why - her response to the limits of reason was to opt for an orthodoxy of logic, including the foundational posits that logic requires), but many of her bon mots come back to me at opportune times.  The apropos quote here is from Francisco d'Anconia to Dagny Taggart: "Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong."

So.... One of the fundamental puzzles for Gulati and Scott is why sovereigns incur any costs toward lowering the cost of capital by way of contract design, and yet economists seem to think that contract design is irrelevant. The bridge from that to their assessment begins as follows: "In any case, as contracts scholars, we begin with the assumption that contracts matter." (23)

That bothers me.  Let's try these variants.  "As philosophers, we begin with the assumption that metaphysics matter." "As human anatomy scholars, we begin with the assumption that appendixes matter." "As physicists, we begin with the assumption that phlogiston matters." What's going on is a demonstration of the subtle ways in which descriptive theory has a normative component, even if the normative element is as basic as something like "this activity should be amenable to explanation by way of theory." If you start with neo-classical welfare-maximizing as the default in human decision-making - i.e., ceteris paribus, that's how the world ought to operate - no wonder it's a puzzle when it doesn't turn out to work that way. (I'm not sure if old Ayn ever got to the part of the Critique of Pure Reason that works through this - it's buried in an Appendix to the Transcendental Dialectic, beginning at pages A643/B671.)

If we check our premises, maybe contracts don't matter.

Posted by Jeff Lipshaw on July 15, 2015 at 07:44 AM in Article Spotlight, Books, Lipshaw, Science | Permalink | Comments (1)

Tuesday, July 14, 2015

Catalyzing Fans

Just in time for Dan's Yahrzeit (last week on the Hebrew calendar, this weekend on the English), Catalyzing Fans has finally been published in the Harvard Journal of Sports & Entertainment Law (co-authored with Michael McCann and me). The article appears alongside comments by Andrew Schwartz, David FagundesMitchell Berman, and Adam Chodorow.

Given how Dan felt about sports, it is ironic that his final academic word has its greatest application in that arena (Dan was always trying to pull the project into broader applications, where Mike and I saw sports as likely the exclusive province for this idea). The comments fit well together and with the original piece and I think Dan would have been happy with how our article and the whole thing came out. It is a fitting tribute.

Posted by Howard Wasserman on July 14, 2015 at 06:42 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (4)

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality

My essay Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace has been published at Northwestern University Law Review Online.

This puts together much of what I have been writing here about the mess in Alabama between January and the Court's decision in Obergefell. I reach the same basic conclusion--obnoxious Roy Moore rhetoric aside, everything that happened in Alabama in those six months was consistent with the judicial process and with the traditional scope of injunctions and district court precedent.

Posted by Howard Wasserman on July 14, 2015 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, July 12, 2015

"No Contracts"

For all that lawyers and law professors traffic in language, sometimes I think language is to lawyers as water must be to fish. That is, if you live in it, it's kind of hard to step back and realize the universe could be constituted out of some other medium.

Cutie-fish-in-waterUp here, the cable provider is Charter, and it runs a lot of commercials. The actor in the commercial for its business services trumpeted yesterday that one of the benefits of subscribing was "no contracts!"  Well, you and I both know that there HAS to be a contract. God knows Charter will be disclaiming SOMETHING - like, for example, the potential for consequential damages to a business if the internet connection goes down.  

What we all know is that "no contracts" actually means something other than its literal meaning.  "No contracts" means only that the subscriber won't be held to a fixed term, and will be able to cancel its service without much notice to Charter. OMG, the plain meaning is precisely the opposite of the plain meaning!

The particular conceit of the smartest people in our profession - and I mean both practitioners and professors - is that words and sentences are capable, with the right skills, of exactitude that approaches an asymptotic limit. Within a certain school of contract law theorists, this gets expressed as the idea of an "incomplete contract," as though the idea of a complete contract, one that contemplates EVERY possible state contingency, is something any more conceivable than the Kabbalists' notion of God (the Ayn Sof - "there is no end"). I put the term "complete contract" in the same conceptual category as I do non-words like "gruntled," "dain," and "combobulated." 

Below the break, I fulminate on this idea - that plain meaning is like Schrödinger's cat, existing and not existing at the same time - in the context of statutes (i.e. King v. Burwell) and contracts. (Full disclosure: I'm the guy who, when any student in my contracts class says the words "mutual intention of the parties," starts making "woo-woo" noises and acting out the Vulcan mind-meld.)

I don't usually wade into the great issues of the day, but I thought I ought to read the King v. Burwell opinions.  If you put aside the politics, Chief Justice Roberts's opinion is a pretty well-trod exercise in the interpretation of a text: what does it mean for a health care exchange to be "established by the state"? Does that mean state itself  has to put the exchange in place under its law, or does it also mean an exchange that the federal government has established for the state as the default?  

For contracts professors, it's not too surprising.  If you read Justice Traynor's opinion in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., a seminal case in the law of interpretation, it's the same "literal reading" versus "contextual reading" of an indemnity clause. Indeed, if you look at the language in PG&E, it's the equivalent of Charter's "no contracts," and the court says, "Oh no, it can't possibly mean that!"

Two implications come to mind.

First, whether language ever really maps even an individual purpose or intention, much less the elusive "mutual intention of the parties" in a contract or "congressional intent" is the subject of the piece I posted on SSRN several weeks ago: Lexical Opportunism and the Limits of Contract Theory. My point there is that the elusiveness of language as map undercuts attempts to make broad economic or moral theoretical statements about contract law; I suspect it's the same for statutory interpretation. The text is the text and, in any hard case about its application, we are all opportunists.

Second, it's also almost impossible to state a rule for when you ought to abide by the plain textual meaning or look at the context. Sometimes "no contracts" could really mean "no contracts." There are some documents whose very value is in their formalism - letters of credit, negotiable instruments, promissory notes - and you really do do a disservice by allowing a contextual reading of the language.  Hence, Judge Kosinski's criticism of the PG&E rule in the Trident case: it "casts a long shadow of uncertainty over all transactions negotiated and executed under the law."

Personally, I don't know what the hell "established by the State" was supposed to mean, and was relieved to have the ACA once again upheld because I think it's good policy (or better than the non-policy that existed  before). 

But in terms of the language issue, I can't help hearing the debate as though I'm listening to two fish argue how wet the water is.

Posted by Jeff Lipshaw on July 12, 2015 at 08:04 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (1)

Wednesday, July 08, 2015

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The following comes from Tara Leigh Grove, on behalf of the AALS Section on Federal Courts.

The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY. 


The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
 
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (tlgrove@wm.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.

Posted by Howard Wasserman on July 8, 2015 at 04:15 PM in Article Spotlight, Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

JOTWELL: Levy on Huq on constitutional justice

The new Courts Law essay comes from Marin Levy (Duke), reviewing Aziz Huq's Judicial Independence and the Rationing of Constitutional Remedies (Duke L.J.) (forthcoming), which links the use of fault rules limiting constitutional remedies to the judiciary's efforts to protect its institutional interests. Have a look.

Posted by Howard Wasserman on July 8, 2015 at 09:43 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 07, 2015

John Yoo and Me on the Supreme Court and the Separation of Powers

As part of "Celebrate Liberty" month (a joint project of the Federalist Society and the Washington Times), today's Times includes dueling op-eds by John Yoo and me on the separation of powers after and in light of the most recent Supreme Court Term. Here's John's piece; here's mine.

Perhaps not surprisingly, both pieces focus on the marriage cases. John's starts from the premise that "the Supreme Court cannot finally determine any fundamental constitutional dispute," and goes from there to urge popular resistance to the decision from those who disagree--not through disobedience or defiance, but rather "by seeking judicial nominees who will restore primary control over family law and marriage to the states." Thus, as John concludes, "Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not." 

My piece takes somewhat of a different view. Seizing upon the Obergefell dissenters' claims about the anti-democratic nature of the decision, I argue that an ambitious Supreme Court is actually a healthy thing for the separation of powers (as Madison argued in the Federalist No. 51), so long as the Court is properly exercising judicial power in the formal sense--by deciding cases and controversies within its jurisdiction. Thus, as I conclude, "it’s long-past time that we learned the difference between rulings that exercise judicial power that doesn’t exist, and those that exercise established judicial power to reach a result with which we disagree." It's one thing to criticize Obergefell for reaching the wrong answer to the constitutional question; it's quite another to criticize it for answering that question in the first place. (And the same works in reverse--progressives might critique HellerCitizens United, and Shelby County on the merits, but it's hard to dispute the claim that the constitutional questions in those cases were properly before the Court, but cf. Fisher.)

Even though we didn't have a chance to see each other's drafts in advance (or, as such, to respond to each otther), I actually think these pieces fit quite nicely--and help to illuminate the ever-ongoing debate over the proper judicial role.

Posted by Steve Vladeck on July 7, 2015 at 10:08 AM in Article Spotlight, Steve Vladeck | Permalink | Comments (15)

Saturday, July 04, 2015

Wine, Soda Pop, and Law Schools - More on "Law Review Lift (Drag)"

Some time this month I will get to a relatively more serious topic, like textual opportunism, but for right now I'm still fiddling around with Al Brophy's ranking system.  

So 10+ that I don't bury the lead, let me say up front that I have played some simple-minded statistical games with Al's data.  What I come up with is that, among academics, "brand," as with soda pop, means a lot, and it is relatively sticky and independent of what is going on with the students.

I also think it's pretty obvious that there is a relationship between the "brand" and student data (i.e. high correlations between any ranking system and LSAT scores, for example). What got me interested, however, as I noted a few days ago, was the differential when Al included or didn't include a different and interesting stat: how often the school's main law review (not its faculty) got cited. My intuition is that what other profs think about placing articles in a school's review (based on my own experience) is a lot like the peer reputation score, except that it does measure a revealed preference (i.e., when you rank "peer reputation" as a participant in USNWR, it doesn't cash out to anything; placing an article does!)

The problem with all of these systems, in which we are "ranking" something with many complex factors (like wine) is that the judgment is qualitative, even if it looks quantitative. Often it's qualitative simply because it's qualitative (e.g., "peer reputation"), but even when it's fully quantitative it's qualitative because of the judgments one makes in weighting the quantitative factors.  I was once a partner in a big law firm. Our partnership agreement called for compensation to be determined by a committee, which in turn used a list of factors like "billable hours," "service to the firm," "client responsibility," etc. Every two years the committee turned out a ranking that set your compensation relative to all the other partners. Similarly, if you aren't a hermit during early March of each year, you hear about a double ultra secret committee in Indianapolis deciding which of the "bubble teams" gets into the NCAA basketball tournament. Same thing.  Recent results? Body of work? Bad losses? Good wins?

In any event, I played with Al's data and made some scatter plots and regressions in Excel, all of which follow the break.

20+I should note that I ran my little exercise by one of the toughest critics of empirical work I know, not for an endorsement, but to see if it was okay to "bin" the data into that 10+, 20+, and 30+ differentials between Al's 2 variable and 3 variable results. My interlocutor (who will remain nameless to protect the innocent) said that binning was okay if there was some theory behind it, but his or her very, very fulsome and thoughtful reply to my question reaffirmed my belief that data without judgment is blind (and judgment without data is empty, to be fair, in each case paraphrasing Kant). The big issue is whether just a few outliers are responsible for the outcomes (which you can see by eyeballing the scatter plots). That may be true here. So with that disclaimer, and recognizing this is a blog post, for God's sake, and not a peer reviewed research paper, here's what I came up with.


If you plot law review "lift (drag)" of 10+, you come up with a positive correlation to law review volume number (.339).  See chart above the break. 30+

If you do the same for "lift (drag)" of 20+ and 30+, you come up with even higher correlations, .42 and .55, respectively.  (See above left and right.)

What do I conclude? Probably nothing more than common sense would tell me: "brand" makes a difference; it takes a long time to develop one; and once you have it established, it sticks around enough to bias other data.

Posted by Jeff Lipshaw on July 4, 2015 at 03:39 PM in Article Spotlight, Life of Law Schools, Lipshaw | Permalink | Comments (1)

Thursday, July 02, 2015

Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results

I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.

Image.ashxYesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations.  He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review.  That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.  

Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank").  His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR.  I was interested in "law review lift" versus "law review drag."   So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.

After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag).  I'll leave it to you to theorize about meaning, if any.

Law review stats enhance student stats ten spots or more
Illinois
Indiana
Florida State
Houston
Utah
George Mason
Cardozo
Cincinnati
Lewis & Clark
Pepperdine
Hastings
Connecticut
San Diego
Brooklyn
Chicago-Kent
Albany
Indiana - Indianapolis
Hofstra
Oregon
DePaul
William Mitchell
American
Catholic
Howard
Akron
Michigan State
Marquette
Seattle
Cleveland State
Vermont
Santa Clara
New York Law School
Ohio Northern
Widener (Delaware Journal of Corporate Law)
McGeorge
Toledo
San Francisco
Suffolk
 
Law review stats drag student stats ten spots or more
 
Georgia
Arizona State
UC-Irvine
Kentucky
Baylor
Georgia State
New Mexico
Oklahoma
Montana
Tulsa 
New Hampshire
Florida International
Rutgers-Camden
Drexel
Syracuse
Hawaii
Idaho
Stetson
South Dakota
Campbell
Duquesne
Chapman
Northern Illinois
North Dakota
Samford (Cumberland)
CUNY
Wyoming
Nova Southeastern
Texas A&M
Oklahoma City
Arkansas-Little Rock
Dayton
Liberty
Elon
Faulkner
Florida A&M

Posted by Jeff Lipshaw on July 2, 2015 at 08:11 AM in Article Spotlight, Law Review Review, Life of Law Schools, Lipshaw | Permalink | Comments (0)

Tuesday, June 09, 2015

JOTWELL: Thornburg on Schwartz on the information benefits of discovery

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Joanna C. Schwartz, Introspection Through Litigation (Notre Dame Law Review), which explores the ways that discovery enables and incentivizes institutional litigants to examine and change their own actions and processes. I was particularly intrigued in how the substantive rules surrounding § 1983 litigation (notably Monell) actually undermine those information-gathering and "introspection" incentives.

Posted by Howard Wasserman on June 9, 2015 at 08:51 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 26, 2015

LSA Panel in Memory of Dan Markel

At 11:30 a.m. this Friday at the Law & Society Association Annual Meeting in Seattle, there will be a Service Panel, entitled Combining Academic Work and Social Media Presence, held in Memory of Dan Markel. Panelists include former GuestPrawf Hadar Aviram. We hope any Prawfs authors and readers who are in Seattle can attend.

Posted by Howard Wasserman on May 26, 2015 at 12:25 AM in Article Spotlight, Blogging, Howard Wasserman | Permalink | Comments (1)

Wednesday, May 13, 2015

JOTWELL: Coleman on Carroll on class action reform

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Maureen Carroll's  Class Action Mypoia (forthcoming Duke L.J.), which argues that efforts at class-action reform must recognize the differences among types and forms of class actions.

Posted by Howard Wasserman on May 13, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, April 29, 2015

Fontana and Braman empirically test the countermajoritarian difficulty

David Fontana and Donald Braman (both of GW) discuss their study showing that, on the question of marriage equality, people do not [ed: oops] care whether marriage equality is established by SCOTUS or by Congress. Opinions on same-sex marriage were unchanged by the institution that established it.

Posted by Howard Wasserman on April 29, 2015 at 10:58 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Sunday, April 19, 2015

Deferred Prosecution Agreements: Right Problem, Wrong Fix

Yglesias has a good write-up of the problems with regulating big financial firms, but he (and Elizabeth Warren) get to the wrong solutions. 

To paraphrase, the problem is that many regulated firms are effectively judgment proof.  We may threaten sanctions against accounting firms that commit fraud, or chemical firms that dump waste into the river, or banks that swindle their counter-parties.  The problem is that the typical criminal sanction is too big, since indictment triggers a run on the firm by its employees, trading partners, and (eventually) creditors.  Prosecutors have therefore basically stopped indicting, leading to the rise of deferred-prosecution agreements, as nicely chronicled by my law school classmate Brandon Garrett. 

For Yglesias, and to lesser degree Garrett, the deferred prosecution agreement is too wimpy.  Since firms know that the government won’t indict, they have no reason to cave, leading to quite defendant-friendly deals.  This leads to under-deterrence.  Yglesias endorses Sen. Warren’s proposed solution, which is to credibly put the threat of indictment back on the table.

But prosecutors are not wrong to avoid indictment, since that leads to over-deterrence.  Over-deterrence is bad not only for firms that sink too much money into compliance, but also for society.  It’s like the problem of medieval justice: if the sentence for every crime is hanging, bandits have no marginal incentive to avoid killing their victims.

My own view, as I sketch in this new draft, is that the problem is caused by the choice of ex post remedies.  When regulators are facing defendants who are, in effect, judgment proof, the better solution is to switch to other incentives.  So, for example, we might impose a tariff on chemicals that would be hazardous if dumped, or use anti-trust to keep banks too small to impose systemic risks.  Obviously, there’s a tradeoff: not all firms will dump the chemical.  A key part of my argument is that regulators can adjust their ex ante prices to account for expected variations in ex post behavior; firms that are at higher risk of dumping pay more for the chemical.  

(Cross-posted at the Law & Economics Prof Blog)

Posted by BDG on April 19, 2015 at 05:28 PM in Article Spotlight, Criminal Law | Permalink | Comments (7)

Tuesday, April 14, 2015

The Moral Psychology of the Fair Play, Fair Pay Act

Yesterday, four members of Congress introduced the “Fair Pay, Fair Play Act,” a bill that would entitle owners of copyrights in sound recordings to recover royalties for radio airplay of those tracks on terrestrial radio stations. That performers don’t receive such royalties may seem surprising, but it’s just one of many strange outcomes generated by the statutory labyrinth that is the Copyright Act.

At first blush, the rationale for such a revision seems simple and appealing. Performers work hard to create sound recordings, so when radio stations broadcast those recordings, why shouldn’t they get paid? After all, the songwriters who wrote those tunes get a royalty each time they are played. But upon closer examination, this rationale is more puzzling. The purpose of copyright law, expressed in the Constitution, is to promote the progress of science and the useful arts (including creative innovation) by means of financial incentives secured by exclusive rights in authors’ works of authorship.

Copyright’s incentives story may explain the FPFPA going forward (performers may be more likely to create future sound recordings if they can expect more remuneration via performance rights), but this account cannot make sense of the retroactive application of the law to already-created songs. And much of the industry force behind the act comes from performers who recorded older, classic tracks who feel aggrieved that they have not gotten royalties from their hit recordings for decades.

So if incentives cannot explain this sense of entitlement to recover additional royalties for past creation, what does? One account may lie in Mark Lemley’s snappy new essay, Faith-Based IP, discussed by Amy Landers in her earlier post on this site. The musicians and Congresspeople behind FPFPA may simply be relying on the notion that copyright owners have pre-political rights that should be recognized regardless of whether the existence of those rights would drive innovation, or even regardless of whether those rights would generate social welfare. At the surface, this may be a plausible account, but I want to propound a different account, one that draws on a forthcoming paper I co-authored with Chris Buccafusco, The Moral Foundations of Copyright Infringement. I elaborate this alternative theory below the fold.

In our paper, Chris and I show that the FPFPA is hardly unique. There are countless examples in which owners of copyrighted works express outrage over unauthorized use in ways that bear no relationship to the classic IP incentives account, and that may even bear no relationship to their economic interests at all. Sometimes people even seek suppression of unauthorized use that might help them economically, such as when fashion designers sought stronger IP protection despite evidence that design piracy may actually help their brands.

This only shows the depth of the puzzle, though, not its solution. And while some have argued that authors deserve non-economically based rights in their works of authorship for reasons divorced from welfare considerations, Chris and I look instead to contemporary cognitive science for an explanation. In particular, our account invokes moral foundations theory, which posits the existence of at least five different heuristic dyads—harm/care, fairness/cheating, loyalty/subversion, purity/degradation, and authority/subversion—that describe the mental architecture of our experience of transgression.

It’s easy to explain why authors of extant sound recordings would root for the FPFPA. Everyone wants more money. But why would the situation of such authors case strike a chord with unaffected third parties such as the bill’s congressional sponsors, and even the public more broadly? Our moral-psychological account indicates that what is afoot here is instead the intuitive sense shared by many people that formal inequities (such as compensating songwriters but not performers for radio play of the same track) grate on our moral sensibilities, regardless of welfare considerations. Unlike the incentives theory, our account explains the FPFPA in its prospective and retrospective applications, since in both instances performers are equally aggrieved by the fact that songwriters get performance royalties but they do not.

This is different than a mere “rights” account because such accounts often (though not always or necessarily) descend into conclusory circularity. The idea of a right is a legal conclusion about relative entitlements, but is often used instead (and especially in some of the high-flown rhetoric about the FPFPA) as an argument for that conclusion instead (or as well). Hence the dismissals, like Lemley’s, of rights-based arguments about IP as rootless and “faith-based.”

But while Chris and I argue that the moral-psychological account provides a richer sense of non-welfarist approaches to IP (especially the instinctive responses of laypeople, including creators and owners of works of authorship, to unauthorized use) than simply dismissing them as rights-voodoo, this does not mean that copyright law should be determined by moral-psychological considerations. Our moral intuitions may feel righteous but that does not at all mean that acting on those intuitions serves the social good. After all, some of the great evil done in human history has likely been animated by a sense (however wrong) of moral righteousness.

What we end up suggesting is a moral-psychological realist approach to IP law. You can still be committed to the incentivist story of copyright while acknowledging that our moral intuitions operate in tension with those welfarist aims. In fact, you might get better outcomes from the incentivist perspective by basing copyright law on a vision of actors that acknowledges their complex moral psychology rather than assuming that they are simple utility-maximizing homines economici. How to do this, of course, is a harder question, but one suggestion we make in the paper is that copyright law should respect only lawsuits motivated by copyright-relevant harm (i.e., attempts to protect a copyright monopoly, not to seek revenge or vindicate a sense of injustice or grab extra rents).

The Moral Psychology of Copyright Infringement (available on SSRN) is forthcoming later this year in the Minnesota Law Review, but we are still making revisions, so comments are most welcome.

Posted by Dave_Fagundes on April 14, 2015 at 04:46 PM in Article Spotlight, Information and Technology, Intellectual Property, Music | Permalink | Comments (0)

JOTWELL: Campos on Davis on standing for states

The new Courts Law essay comes from Sergio Campos (Miami, visiting at Harvard), reviewing Standing Doctrine's State Action Problem (forthcoming, Notre Dame L. Rev.) by Seth Davis (UC-Irvine) on who and when people have standing to assert governmental interests.

Posted by Howard Wasserman on April 14, 2015 at 11:21 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 31, 2015

JOTWELL: Mullenix on Robreno and asbestos settlements

The new Courts Law Essay comes from Linda Mullenix (Texas), reviewing The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm? (Widener Law Review) by Judge Eduardo Robreno of the Eastern District of Pennsylvania. Judge Robreno discusses the resolution of the asbestos MDL (feared as a "litigation black hole"), over which he presided.

Posted by Howard Wasserman on March 31, 2015 at 10:29 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 17, 2015

JOTWELL: Tidmarsh on Zimmerman on presidential settlements

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing Adam Zimmerman's Presidential Settlements, which explores the power of the President to resolve large-scale disputes, even at the expense of the rights of individual claimants.

Posted by Howard Wasserman on March 17, 2015 at 10:58 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, March 06, 2015

Erwin Chemerinsky at FIU

I am delighted that Dean Erwin Chemerinsky of UC-Irvine was at FIU this week for the Second Decanal Lecture on Legal Education. After the jump is the video of his talk to the students (it begins around the 1:30 mark), titled The Future of Legal Education.

 

 

Posted by Howard Wasserman on March 6, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (2)

Wednesday, February 25, 2015

JOTWELL: Erbsen on Klerman & Reilly on forum selling

The new Courts Law essay comes from Allen Erbsen (Minnesota), reviewing Daniel Klerman & Greg Reilly's Forum Selling, which discusses how particular courts make themselves attractive places for parties to forum shop. The article and the review essay are worth a read.

Posted by Howard Wasserman on February 25, 2015 at 11:23 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, February 20, 2015

Holmes and Brennan

My new article, Holmes and Brennan, is now on SSRN. This is an article-length joint book review of two terrific legal biographies--Thomas Healy's The Great Dissent and Lee Levine and Stephen Wermiel's The Progeny. I use the books explore the connections between Abrams and Sullivan as First Amendment landmarks and between the justices who authored them and who are widely regarded as two leaders in the creation of a speech-protective First Amendment vision.

The abstract is after the jump.

This article-length book review jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The review then explores three ideas: 1) the connections and intersections between these watershed opinions and their revered authors, including how New York Times and its progeny brought to fruit the First Amendment seeds that Holmes planted in Abrams; 2) three recent Supreme Court decisions that show how deeply both cases are engrained into the First Amendment fabric; and 3) how Brennan took the speech-protective lead in many other areas of First Amendment jurisprudence.

Posted by Howard Wasserman on February 20, 2015 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 11, 2015

JOTWELL: Walsh on Re on Narrowing Precedent

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing new PermaPrawf Richard Re's Narrowing Precedent in the Supreme Court (Colum. L. Rev.). As always, both are worth a read.

Posted by Howard Wasserman on February 11, 2015 at 01:44 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, February 02, 2015

The Legacy of Ruth Bader Ginsburg

Congratulations to occasional-guest Prawf Scott Dodson (Hastings) on publication of his edited volume, The Legacy of Ruth Bader Ginsburg (Cambridge), featuring a great line-up of contributors. Al Brophy has a full write-up on the book.

Posted by Howard Wasserman on February 2, 2015 at 09:31 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Monday, January 26, 2015

Epilogue: Moral Panics and Body Cameras

Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that. The editors were kind enough to publish an Epilogue, now available on Commentaries, discussing those subsequent events and how they further illustrate my points about video, body cameras, and moral panics.

Posted by Howard Wasserman on January 26, 2015 at 01:24 PM in Article Spotlight, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, January 23, 2015

JOTWELL: Leong on Rush on geographic diversity

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Sharon E. Rush's Federalism, Diversity, Bias, and Article III (Missouri L. Rev.), which explores the role of geographic diversity in the federal judiciary.

Posted by Howard Wasserman on January 23, 2015 at 09:41 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 14, 2015

JOTWELL: Tushnet on the Junior Fed Courts Workshop

The new essay on JOTWELL's Courts Law is a guest piece from Mark Tushnet (Harvard) on the Federal Courts Junior Scholars Workshop. Mark presented his comments at JOTWELL's Fifth Anniversary Conference back in the fall. He offers some interesting thoughts about that conference and about the proliferation of junior scholars conferences.

Our own Steve Vladeck began this program all the way back in 2008 and I had the privilege and pleasure of hosting back in 2011. It really is a great program that has taken on an amazing life of its own.

Posted by Howard Wasserman on January 14, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Friday, January 02, 2015

It's Been Real!

I think they're going to take away the keys soon, so while I still have access I wanted to say thanks for a great month on Prawfs.  I touted my current scholarship, talked about teaching, wrote a post that generated over 35 comments, and even seemed to annoy some of the so-called "scambloggers" in the process!  That sounds like a success!

I plan to head to the Markelfest tomorrow night at AALS, so I hope you'll stop by and say hello.

Posted by Josh Douglas on January 2, 2015 at 04:30 PM in Article Spotlight, Blogging, Civil Procedure, Law and Politics | Permalink | Comments (0)

Wednesday, December 31, 2014

A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls

About a year and a half ago, during my last guest stint on Prawfs, I blogged about Atul Gawande's book "A Checklist Manifesto," which I had just finished.  During those 18 months, in addition to my two other projects, I've drafted a new article, titled A Checklist Manifesto for Election Day:  How to Prevent Mistakes at the Polls.  It's not quite ready for the primetime of SSRN, but it will be soon, and I am targeting it for law review submission this February.  If you'd like to take a look before I post it (especially if you're an Articles Editor at a highly-ranked journal!) just send me an email (joshuadouglas [at] uky [dot] edu) and I'll be happy to pass it along.

Here is the abstract:

Sometimes the simplest solutions are the best, even for complex problems.  This certainly rings true for Election Day.  The voting process involves a complicated web of rules and regulations, run largely by poll workers who are not professional election administrators.  Poll workers are faced with myriad situations in which voting can go awry, and voters must comply with various requirements to ensure their votes count.  But poll workers and voters generally are not given simple tools to help them through the process.  Instead, the training guides poll workers receive from states and localities are lengthy, wordy, overly comprehensive, and difficult to use.  They include anything and everything that might happen on Election Day, thereby making them essentially unusable as a reference in the heat of the moment when an issue actually arises.  Instructions for voters are also often too complex.  It is no wonder that poll workers and voters make mistakes in every election, which results in long lines, lost votes, and even post-election litigation.  A simple and well-designed checklist can supplement these materials and help to avoid the humor errors that occur in many elections.  This article shows how -- in a time in which policymakers are searching for how to remedy the voting woes in our country -- checklists provide a simple, non-partisan, and low-cost idea to improve election administration.   

As always, comments are welcome!

Posted by Josh Douglas on December 31, 2014 at 12:53 AM in Article Spotlight, Law and Politics | Permalink | Comments (0)

Monday, December 15, 2014

(Mis)trusting States To Run Elections

The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law.  I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews.  But that is unfortunate, because it is both doctrinally wrong and practically dangerous. 

As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice.  Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny.  Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest.  But often the state is not really trying to achieve election integrity, at least not principally.  There are often partisan motivations behind an election regulation.  How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters?  Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.

Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face.  Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.

After the jump I explain the problems with this approach. 

Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner.  This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules.  In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.

The deference is also dangerous.  States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong).  This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra.  But partisan motiviations should play no role in how we structure our elections.

The Court should not defer so readily to a state's election process.  Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.

Here is the abstract of the article, for those who want more on this argument:

Current Supreme Court doctrine defers too readily to states’ voting systems. In the process, the Court has removed Congress from the elections business. The Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law. This Article uncovers this approach to constitutional challenges to voting regulations. It also explains why this current jurisprudence is both wrong and dangerous. It is wrong because the U.S. Constitution gives the federal government significant scope to promulgate election regulations, and states are subordinate to Congress under our constitutional structure. It is dangerous because the current deferential approach emboldens states to pass partisan-based laws with an eye toward affecting elections, and all a state needs to say to justify a new law is that it is seeking to ensure “election integrity.” The Court should reverse this current jurisprudence by requiring states to provide a more detailed justification for an election law and by allowing broader use of facial challenges to invalidate state voting laws, when necessary, before they are implemented. Voting, as a fundamental right, deserves robust protection from the courts. Scrutinizing state election laws more closely will help to achieve this worthy goal.

Comments are welcome! 

Posted by Josh Douglas on December 15, 2014 at 02:10 PM in Article Spotlight, Constitutional thoughts, Law and Politics | Permalink | Comments (1)

Thursday, December 11, 2014

JOTWELL: Mulligan on Preis on causes of action

The new Courts Law essay comes from Lou Mulligan (Kansas), reviewing Jack Preis, How Federal Causes of Action Relate to Rights, Remedies, and Jurisdiction (Fla. L. Rev.) (forthcoming). Jack's article is terrific (it will be an essential piece if/when I return to writing about jurisdictionality) and so is Lou's review.

Posted by Howard Wasserman on December 11, 2014 at 05:04 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 09, 2014

The New Cognitive Property & Human Capital Law

Intellectual property is all about the bargain, no absolutes. But below the radar, a patchwork of law and contract is operating to expand the types of knowledge and information that become propertized. My new article, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, forthcoming Texas Law Review 2015 is now up on ssrn. Here is the abstract and as always, I would love to get your thoughts and comments:

Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.

Posted by Orly Lobel on December 9, 2014 at 10:45 AM in Article Spotlight, Employment and Labor Law, Information and Technology, Intellectual Property, Orly Lobel, Property, Workplace Law | Permalink | Comments (0)

Monday, December 08, 2014

Body cameras and and predictive analysis

Andrew Ferguson (UDC) argues at HuffPost that police body cameras can be used to track smaller, more routine police-citizen interactions that might be predictive of future, more severe wrongdoing by some officers. Worth a read.

Posted by Howard Wasserman on December 8, 2014 at 06:43 PM in Article Spotlight, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (0)

State Judges and the Right to Vote

If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election.  But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.

But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote.  Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections.  Below the fold I provide some details of my study of state judges and the right to vote.

This inquiry reveals some interesting trends.  

First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others.  State court activity on voting rights is much more robust than federal court decision making in this area.  Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions.  Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges.  Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.

These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote.  I'd be delighted for comments and thoughts on the piece.  Here is the abstract:

State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.

Posted by Josh Douglas on December 8, 2014 at 09:51 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (0)

Friday, November 28, 2014

JOTWELL: Steinman on Larson on factual precedent

The latest JOTWELL Courts Law essay comes from co-Section Editor Adam Steinman (now at Alabama), reviewing Allison Orr Larson Factual Precedents (U. Pa. L. Rev. 2013), which explores the extent to which factual conclusions in SCOTUS decisions should be binding on lower courts.

Posted by Howard Wasserman on November 28, 2014 at 03:09 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, November 24, 2014

Final Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

Final Repost: The deadline is next Monday, December 1.

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015. 

The conference seeks to address the following topics:
  • Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
  • The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
  • Legal obligations and accommodations of religious health care organizations
  • Protection (or not) of health professional conscience
  • Health care decision-making for minors with religious parents
  • Religious objection v. discriminatory behavior
  • Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
  • “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
  • Abortion policy, including clinic protests and protections, and its relationship to religion
  • Embryonic stem cell policy and its relationship to religion
  • End-of-life care, including assisted suicide, and its relationship to religion
  • Complicity as both a legal and religious concept
  • Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Posted by Howard Wasserman on November 24, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Tuesday, November 18, 2014

Moral Panics and Body Cameras

That is the title of my new essay in Wash. U. L. Rev. Commentaries (and forthcoming in Wash. U. L. Rev.). The abstract is after the jump.

Obviously, I have been thinking about Ferguson quite a bit of late.

This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing any body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics. 

Posted by Howard Wasserman on November 18, 2014 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, November 15, 2014

JOTWELL: Pfander on Bruhl on lower-court precedent

The latest Courts Law essay comes from Jim Pfander (Northwestern), reviewing Aaron-Andrew Bruhl's Following Lower-Court Precedent (U. Chi. L. Rev. 2014), which considers how and when SCOTUS cites to lower-court authority.

Posted by Howard Wasserman on November 15, 2014 at 10:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, November 03, 2014

Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.  

The conference seeks to address the following topics:

  • Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
  • The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
  • Legal obligations and accommodations of religious health care organizations
  • Protection (or not) of health professional conscience
  • Health care decision-making for minors with religious parents
  • Religious objection v. discriminatory behavior
  • Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
  • “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
  • Abortion policy, including clinic protests and protections, and its relationship to religion
  • Embryonic stem cell policy and its relationship to religion
  • End-of-life care, including assisted suicide, and its relationship to religion
  • Complicity as both a legal and religious concept
  • Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Posted by Howard Wasserman on November 3, 2014 at 03:41 PM in Article Spotlight, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Wednesday, October 29, 2014

Kentucky Law Journal: Exclusive Submission Window

The following was forwarded by Josh Douglas at Kentucky. If you have an August piece that did not place or you want to get a head start on February:
 
The Kentucky Law Journal is opening an exclusive submission window for articles until November 14, 2014, at 5:00 PM EDT. All papers submitted during this window will be reviewed for publication in Volume 103, Issue 4, set for publication in Spring 2015. By submitting your article during this window, you agree to accept a publication offer, should one be extended. This window is available for articles on all topics, including articles previously submitted to the Kentucky Law Journal, though resubmission will be required. Submissions should be between 15,000 and 25,000 words with citations meeting the requirements of The Bluebook.
 
Submissions should be sent via email to chrisheld.klj@gmail.com. Please include your article, a copy of your C.V. and a short abstract or cover letter.

Posted by Howard Wasserman on October 29, 2014 at 01:03 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Photo ID Laws and Voter Suppression

My colleague, Mike Pitts, has posted his latest analysis in a series on the impact of Indiana’s photo ID law, the law that was upheld by the U.S. Supreme Court in 2008. (The earlier papers also are posted on SSRN.) Pitts draws three major conclusions:

First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.

Of course, photo ID laws in some states have more stringent provisions, so may have a greater disenfranchising impact.

Posted by David Orentlicher on October 29, 2014 at 11:35 AM in Article Spotlight, Law and Politics | Permalink | Comments (0)

Tuesday, October 28, 2014

JOTWELL: Vladeck on Richman & Reynolds on the appellate court crisis

The new JOTWELL Courts Law essay comes from our own Steven Vladeck, reviewing William M. Richman & Willliam L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford 2013).

Posted by Howard Wasserman on October 28, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, October 20, 2014

Parents and the Privacy of Their Children

In a fascinating article about her son’s relationship with Siri in yesterday’s New York Times, Judith Newman does a terrific job illustrating some key benefits of artificial intelligence. Newman observes how Siri has infinite patience for lengthy and detailed discussions of her autistic son’s obsessions, how it forces him to enunciate clearly if he wants to elicit an answer, and how their interactions improve his communication and social skills. Very exciting stuff.

While I enjoyed learning about Siri's impact on Newman's son, the article also reminded me that when writers take us into the privacy of their families’ lives, we may learn more than we should. Millions of other readers and I now know very intimate details about Newman’s son. We know what he likes to discuss.  We know which social skills he lacks.  We learn about his speech skills.

In this case, Newman may have drawn the right balance. From her description of her son, it sounds like his autism is obvious to people who meet him, so it’s not as if she disclosed a medical condition, such as HIV infection or diabetes, that otherwise would not be detected by others. And her son may be very proud of his role in teaching so many people how technology can influence the lives of people with autism.

But other revelations about children are more problematic. In many cases, it seems difficult to justify the intrusions into the privacy of their children’s lives by author-parents. Often, the writings may serve many purposes but not the interests of the children they depict. At a time when government, corporations, and other outsiders are too quick to invade the privacy of children, one would expect parents to be more careful about doing so themselves.

Posted by David Orentlicher on October 20, 2014 at 12:58 PM in Article Spotlight, Information and Technology | Permalink | Comments (0)

Wednesday, October 15, 2014

Justice Clarence Thomas and Korematsu

Recently, there was a discussion on the lawcourt listserv about the worst U.S. Supreme Court decisions ever.  On a related note, this past summer, my short article titled "Justice Clarence Thomas's Korematsu Problem" was published in the Harvard Journal of Racial & Ethnic Justice, and posted on SSRN.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868   Ironically, the issue of whether the Court should formally repudiate Korematsu was also raised in a separate cert. petition during the period I worked on the piece.  Further, Ilya Somin had a post or two on the issue of repudiation, if I recall correctly.  Looking back on the article, I confess that I'm still stunned that Justice Thomas's view of war related executive power, as taken from his judicial opinions, would seem to support Korematsu.  The abstract is below.  Contrary thoughts or arguments are welcome.  Or perhaps I should not be stunned.

ABSTRACT

The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision.  This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case.  Two cases provide the major evidence.  First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights. 

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process.  California argued this minimized racial violence.  Thomas therefore abandoned his well-known position of racial color-blindness in the case.  The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu.  The essay also addresses several counter-arguments.  While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.

Posted by Mark kende on October 15, 2014 at 04:39 PM in Article Spotlight, Constitutional thoughts | Permalink | Comments (7)

Tuesday, October 14, 2014

JOTWELL: Epstein on Black & Spriggs on precedent

The new JOTWELL Courts Law essay comes from Lee Epstein (Wash. U.), reviewing Ryan C. Black & James F. Spriggs II, The Citation and Depreciation of U.S. Supreme Court Precedent (J. Empirical Legal Stud.), which examines how the use of precedent changes and depreciates over time.

Posted by Howard Wasserman on October 14, 2014 at 10:11 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 08, 2014

More fan crowd-funding

Fans of Ole Miss stormed the field following the team's win over Alabama (sorry, Paul) last weekend; the acts cost the school about $ 75,000--a $50,000 fine by the conference and about $ 25,000 to replace the goalposts and other damage to the field. Fans crowd-funded the total amount and more in a matter of hours. In our Catalyzing Fans paper, we considered fans raising money to pay an athlete's fine. 

This is an interesting move, although with two important distinctions. First, the fines/costs were the result of the fans' own conduct, so it makes sense for them to pay it. It does not raise the moral hazard problem of fans essentially indemnifying player misconduct; here, they were paying for their own misconduct. Second, the school was involved--fans contacted the athletic department about contributing and the school set-up a special site. But since Ole Miss (as opposed to the Cleveland Cavaliers) is a not-for-profit entity, the direct giving makes sense.

Posted by Howard Wasserman on October 8, 2014 at 03:04 PM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, October 01, 2014

Tips on Placing Law Review Articles

I've come back to guest-blog this month at Prawfs in memory of my friend Dan Markel.  Dan started Prawfs as a forum for junior law professors.  (The strange blog name, for those who don't know, is a Markelism for "raw law professor blog.")  I thought it would be fitting to focus my guest-blogging on the topic that originally formed the core of Dan's vision.   In particular, I'm going to blog about topics of special interest to junior law professors and those currently on the teaching market. I'll start with a topic that a lot of junior profs worry a lot about: How to place a law review article in a good journal.  Here are five tips to consider.

1) Submit in the spring.   The best time to submit an article is in the spring submission window, after the new Articles Editors take over and are looking to fill their volume.   Other times can work, certainly, but they tend to be more hit or miss than the spring.  So unless you have a very time-sensitive article, or you need a placement on your CV (such as for a FAR form you plan to submit), it's best to wait for the spring.  The spring season varies journal to journal, but a good ballpark is somewhere in the mid-February to mid-March window.

2)  Make your abstract and introduction clear and easy to read.  For placement purposes, the abstract and introduction are the most important part of the article.  Articles editors will skim them to see if the rest of the article is worth reading, so you need to make the best possible impression.   Think of this as your elevator pitch. The abstract is the 1-minute version of your pitch, and the introduction is the 5-10 minute version. Your abstract and introduction should be as clear and straightforward as you can possibly make them.  Assume your reader is a generalist, and speak plainly and without jargon about what you are saying and why it matters.  For example, if you're making a normative argument, don't just say that your article "explores" a topic or "contemplates" an issue.  Instead, tell them your  precise claim at the outset.  Have a prominent paragraph in both the abstract and introduction that begins, "This Article argues that . . . ." 

3) Proof-read and Blue Book properly.  This recommendation may sound obvious, but it's still really important.  Articles editors will make judgements about your submission based on whether it is bluebooked properly and has any typos or grammar problems.  I once had an article rejected by a single vote in a full board read at a Top-10 journal because the "swing vote" on the committee found some typos in my submission.  According to the articles editor who later filled me in, the "swing vote" editor rejected the piece on the thinking that shoddiness in proofreading might correlate with shoddiness in argument.  Don't let that happen to you.  

4)  If you have relevant experience, consider saying so in an "About the Author" blurb.  If you're a relative unknown or not-yet-established scholar, the articles editors may wonder whether you are enough of a subject matter expert to speak authoritatively about your subject.  Including a CV along with your submission is one way to show them that you are.  Another way is to add a title page that has your contact information and an "about the author" paragraph that summarizes your background.  The "about the author" paragraph is basically your opportunity to tell the articles editors that you know what you're talking about.  For example, if you've submitted an article on patent law, the paragraph might say something like this:  "Jane Smith is a Visiting Assistant Professor at Another Law School, where she teaches and writes in the area of patent law.  She worked for three years as an associate in the patent practice of A, B, and C.  Professor Smith graduated magna cum laude from Snooty Law School, where she published an article on Patent Act reform. She is also registered to practice before the United States Patent and Trademark Office."  

5) Shorter titles are usually better than longer titles.  Titles are much less important than the abstract and introduction, of course, but they're also the first thing articles editors will see.  A lot of law review authors go with really long titles.  They often use the "Cute Phrase That Hints at the Argument You're Making: What the Article is Really About" format that is popular among student notes.   When it comes to titles, though, shorter is usually better.  It's more professional.   That means avoid the colon-bifurcated title if you can.  If you have use it, make it short.  

I'll try to answer any follow-up questions in the comment thread.   Otherwise, best of luck with your submissions.

Posted by Orin Kerr on October 1, 2014 at 12:24 AM in Article Spotlight | Permalink | Comments (16)

Monday, September 29, 2014

JOTWELL: Wasserman on Redish & Aronoff on judicial retention

I have the new Courts Law essay, reviewing Martin Redish (Northwestern) and Jennifer Aronoff's The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism. They argue that judicial life tenure is required as a matter of Due Process, where any other form of retention risks judges being influenced in their decisionmaking by concerns of how to keep their seats on the bench. I have taught for years that retention is the bigger deal than selection in terms of judicial independence (something my daughter also decided to ask about at dinner last night); they finally made the argument.

Posted by Howard Wasserman on September 29, 2014 at 10:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, September 12, 2014

Kopald on health problems from WiFi

Deborah Kopald has a post at Public Citizen's Consumer Law and Policy Blog, discussing health problems associated with WiFi, namely showings of Microwave Sickness by people living/working/going to school too close to wireless hotspots. Worth a read, as she has been pushing this issue for some time.

Posted by Howard Wasserman on September 12, 2014 at 04:00 PM in Article Spotlight, Blogging, Howard Wasserman | Permalink | Comments (14)

Monday, August 25, 2014

Judging Similarity (Part 3)

This post is by guest Irina Manta

Now that I have discussed the background and methodology of the studies in “Judging Similarity”, it is time to turn to a fuller discussion of the implications of our results for the third and last part of this post.

We had three key findings:

1)   Knowledge of copying significantly raises the similarity rating.

2)   Knowledge that a high level of labor went into creating the original work significantly raises the similarity rating.

3)   Knowledge that market substitution occurred does not appear to significantly raise the similarity rating.

As discussed in Part 2, we have reason to believe that the first finding is the result of confirmation bias. This finding is troubling in that it suggests that, at the most basic level, decision-makers may be unable to separate the two prongs of the substantial similarity test and that the copying prong (to borrow rhetoric from Barton Beebe’s work on the trademark multi-factor test) is “stampeding” the similarity prong.

Unlike in a trial setting, where the facts in copyright cases greatly differ from one situation to another, our first study enabled us to isolate the copying element. Nothing changed between the two conditions aside from the statement that the creator of the junior work copied from the original. Given our research design and the fact that we purposefully picked work pairings that are the type likely to go to court, there is reason to believe that the powerful effect of the knowledge of copying may sway decisions on infringement at the margin.

The second finding raises its own problems. We believe that knowledge of a high versus low expenditure of labor played a role in two possible ways. First, it might have triggered the intuition that the greater expenditure of labor ought to correlate to a stronger property right or ownership interest. Generally associated with Lockean ideals, this intuition is thought to map onto people’s beliefs about owning the products and fruits of their labor-intensive activities. The association with “stronger protection” for the work may have translated into a looser standard for similarity. Second, the expenditure of labor may not have triggered subjects’ beliefs about the strength of the property right, but instead directly affected their intuitions about the wrongfulness of the copying. Copying is commonly perceived as a form of free riding and is often associated with plagiarism or cheating. It is therefore conceivable that the creator’s expenditure of labor led subjects to view the copying involved as entailing greater (and more morally outrageous) free riding, which they treated as wrongful.

If our interpretation of subjects’ reasoning is correct, it suggests that copyright law and policy have done a poor job of cabining labor-based considerations. In its now notorious decision in Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340 (1991), the Supreme Court categorically concluded that “sweat of the brow” considerations—i.e., that copyright should be used as a reward for hard work—are largely irrelevant to copyright law, especially in determining whether and how much protection works obtain. While this may be true as a formal matter, our study shows that decision-makers have a tendency to re-introduce these labor-based considerations during their assessments of similarity as part of the copyright infringement analysis. Interestingly, while scholars usually try to adjust copyright law based on utilitarian considerations, subjects were swayed in their similarity ratings at a statistically significant level by labor considerations (finding 2) but not by market substitution ones (finding 3).

Our study suggests that instead of claiming to have labor-based considerations play no part whatsoever in its working, copyright law should do one of two things. First, it could make a more concerted effort to eliminate labor-based considerations from the different elements of the analysis. Alternatively, it could embrace the reality that moral intuitions relating to labor and free riding directly influence the assessment of similarity, which in turn serves as a simple proxy for wrongfulness. I have written previously about how we might work toward the first goal, but much research remains to be done in this area.

Posted by Howard Wasserman on August 25, 2014 at 10:00 AM in Article Spotlight, Intellectual Property | Permalink | Comments (0)