Monday, June 10, 2013
Judges Gone Wild?
I couldn't help but think that this judge's behavior, earlier today, is an example of imperious official action. The judge was all set to accept the defendant's plea bargain, but because the offender, footballer Chad Johnson, gave a playful slap on the backside to his lawyer during the hearing, in response to a question asked by the judge regarding whether he was satisfied with his counsel, she rejected the bargain, which called for no jail time, and gave him 30 days in jail. You can read more about it here and see the footage from the court. (H/t: atl). Stephen A. Smith's apt albeit volcanic reaction on ESPN emphasizes the socio-legal realities of why Johnson was an idiot here. It's true that Johnson is a criminal wife-beating a**hole, and, in this context, acted imprudently, but is the bum-slap really the kind of thing that warrants jail when it was not otherwise about to happen? It doesn't warrant the judge's behavior in my mind, and instead strikes me as the kind of official tyranny and hot-headed hubris that rule of law constraints are meant to prevent. The quickness of the decision also suggests the need for courts to impose a mandatory cooling-off period between the time they reach a decision re: liability and the time they impose a sentence.
Cf. some of the problems of judicial discretion more generally. And of course, this seems right in the same vein as Judge Marvin Frankel's famous story in Criminal Sentences: Law Without Order about the judge who, over cocktails, acknowledged elevating a defendant's sentence by a year simply because the offender had been disrespectful to the judge that day.
Thursday, June 06, 2013
If You Don't Like Prisons That Much, Then Why "Let Judges Be Judges?"
One of my ongoing concerns about many in the academy's infatuation with individualized sentencing and the preservation of substantial judicial discretion when it comes to sentencing is that there is a tendency to obscure what judicial discretion will do. Lots of folks complain about how structured sentencing (particularly in the Fed system) means that prosecutors now run the show and that judges are less powerful than they were (or would be) in indeterminate (fully discretionary) sentencing regimes. Lots of these academic voices, however, are pretty lefty/libertarian/pro-defendant/anti-mass incarceration (pick one or more of these). The problem as I see it is that the presence of substantial judicial sentencing power will often lead to stiffer sentences, not more lenient ones. That's because prosecutors and defense lawyers often bargain away charges, facts, etc, and by not sharing the existence of those facts/charges, the sentencing judges are left to defer to the deals struck by the insider repeat players. But when judges have concerns that these deals are being struck in a way that's anti-retributive or bad for public safety, they often want to have the information that would allow them to impose LONGER sentences. In sum, I bet that the more judicial discretion there is, and the more information judges have, the longer the sentences will be.
This is, of course, an empirical hypothesis, and happily, there is some good empirical support for the proposition I'm noting. Kevin Reitz wrote a fantastically important and understudied piece in the Texas Law Review showing, among other things, that states with indeterminate sentencing have among the highest rates of incarceration.
But anecdotally, you need a good story to see this dynamic, and Doug Berman's Sentencing blog has the story you need to see this. As the story goes, Judge Stephanie Rose on the fed bench in Iowa is excoriating the federal prosecutor's office for not disclosing more information about defendants that would lead to stiffer sentences. To my mind, this is an illuminating example of a much larger problem. Normatively, of course, indeterminate/discretionary sentencing doesn't have to lead to higher punishment levels necessarily, but it shouldn't be suprising that the contingent forces tend to work in that way.
--One last note. I've been watching The West Wing on Netflix while working out for the last few weeks, and I noticed that, at one point in one of the episodes, late Season 1 or early Season 2, Aaron Sorkin/Jed Bartlet seemed to think that empowering judges with substantial sentencing discretion was an obviously attractive thing to do from the liberal political perspective of the Bartlet presidency. I found this, um, unconvincing, notwithstanding my general intoxication with the show.
Wednesday, June 05, 2013
Some Reactions to Maryland v. King, and a Question for Barry Friedman and other 4A Friends
I have done only a bit more than skim Maryland v. King, and because I'm not really a Fourth Amendment guy, I'm preserving my strategic ambivalence about the outcome as a matter of doctrine. But I have a policy question for NYU's Barry Friedman along with a few other hasty reactions.
First, Barry writes the following in Slate, :
"Did the fact that Alonzo King was accused (not convicted) of pulling a shotgun on some folks provide a better reason to believe he’d committed an unrelated rape than that anyone else walking the streets had done so? Hardly."
It seems to me that Barry's posing either a specific or a general empirical question, neither of which I possess excellent knowledge about, although I bet there are good proxies out there for saying we know more than nothing. In fact, I bet the reason law enforcement wants access to DNA of arrestees is because of their view that arrestees provide, on the margin, a better pool to capture DNA from than a random selection of the population at large. Law enforcement interests here are driven by Big Data patterns that suggest that felony arrestees are likelier to be tied to other crimes than non-felony arrestees. That's an empirical claim and Barry doesn't provide any links or data to suggest that we should doubt that claim's truth.
From a crime control perspective, would it be better if we had a DNA swab of every person and new baby? Sure, assuming the integrity of the collection. Indeed, Friedman thinks this would be permissible under the 4A (were Congress to pass it) but it's not likely to be authorized by Congress anytime soon. (Btw, would a nation-wide DNA registry itself be unconstitutional under the 4A? Distributed benefits and costs might save it from the suspicionless problem. Curious for thoughts.)
But as long as a) we are not swabbing every new baby and all existing persons to create a national DNA database, and b) we are taking the time to inventory and identify felony arrestees, can anyone doubt that someone arrested for a felony is, on the margin, more likely to be guilty of some other offense that's out there?
I'm not saying there aren't doctrinal or other reasons that should restrain the DNA swabs. But simply as a matter of statistics or common experience, I'm left wondering what supports the pretty heterodox view Barry offers that felony arrestees are not in fact more likely to have ties to other crimes than a randomly selected individual? Yes, I recognize that the value of the signal of a felony arrest is not the same as the signal of a felony conviction, but ... if we were going to block the swabs for crime-control purposes on constitutional grounds, let's at least be aware of what's being traded off in the name of constitutional fidelity. And while we're at it, let's not forget that wide DNA access has the capacity not only to reduce Type II errors, but also to exonerate and thus redress Type I errors too. Fixing false positives is a constitutional value as well as a moral imperative for state officials. I'm not sure the 4th amendment claims advanced by the dissenters and their supporters are adequately sensitive to that, even if the majority implies this is happening already as a matter of fact.*
2. I agree with Scalia's dissent that the "identification" arguments on behalf of the DNA swabs are more make-weight than the straightforward though constitutionally more tricky arguments in favor of clearing cases and fixing mistakes. That's because the police could always use the DNA swab to promote their administrative needs (e.g., ensuring that the offender doesn't have a record of violence toward prison officials or communicable diseases that would have to be taken into account for housing him) without using the DNA swab to scope out possible relevance to other crimes.
3. The Court's special needs doctrine allows for suspicionless searches of the public in order to regulate safety or achieve other non-crime detection goals of certain policy weight. Here are two reasons for thinking that the majority's result is correct even if not its reasoning.
a) It's not that far a stretch to say that given the criminal justice system's interests in ensuring that the institutions of punishment are taking adequate care and precaution for the wellbeing of inmates and officials, that the population of felony arrestees is distinct from the population at large, and thus the goal of using DNA to ferret out possible dangerousness or illness is one that should pass muster on special needs grounds. But the reason I don't love this argument is because if taken on good faith, it would not permit allowing the DNA information to be used to exonerate previously convicted offenders. That would probably be too close to the crime-detection purposes that the special needs doctrine is supposed to be attentive to. However, one might slice the constitutional baloney very thinly and say: DNA swabs are constitutional for administrative purposes pre-conviction, and they are also constitutional for purposes of exonerating others, but they can't be used as the basis to clear other cases against the defendant whose cheek is being swabbed.
b) Speaking of slicing constitutional baloney thinly, I didn't see this argument and it seems worth consideration too--though I detest it because I'm doubtful of the constitutionality and morality of the underlying practices. Here goes: Crime detection is distinct from calibrating punishment. In indeterminate sentencing regimes as well as structured sentencing that allows for "real offense" sentencing instead of (my preferred) charge offense sentencing, the admission of the DNA evidence as a tie to other crimes should be permitted for purposes of sentencing offenders on an individualized basis on the basis of conduct not proven to the jury beyond a reasonable doubt. So, say King is in Texas and convicted of aggravated assault, which leaves him open to a 5-99 year spread under the statute for first degree felonies. The sentencing judge/jury/parole folks can all take into account that he's been tied via DNA to other rapes, even though not convicted of those rapes. Poof. The sentence for the assault goes up, we don't bother with charging and convicting King for the rapes, and we rest our heads on the pillow of Williams v. New York. Sentencing is distinct from crime-detection. Right? How awesome is that. Ick.
*Scalia notes in his dissent (fn.2) that the Type I error redress option is not currently available b/c of the way the FBI runs its DNA databases. That could be fixed of course, and should be.
Friday, May 31, 2013
JOTWELL: Campos on Jones on the Council of RevisionThe latest essay on JOTWELL's Courts Law is by Sergio Campos (Miami), reviewing Robert Jones' Lessons from a Lost Constitution (published in the Journal of Law & Politics), which considers the history and normative lessons from James Madison's support for a Council of Revision at the Philadelphia Convention.
The title of the post is a moniker Marc DeGirolami kindly gave some of my recent work on the church autonomy doctrine. While I've previously posted a bit on Prawfs about implied-consent institutionalism (although I didn't have the phrase yet), I couldn't help but mention that those thoughts have just been published in two separate articles: (1) Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. 1891 (2013); (2) Litigating Religion, 93 B.U. L. Rev. 493 (2013).
On the plus side, I'm excited to see the articles in print. On the minus side, there's nothing I can do to change them when I inevitably receive some devastating criticism of my theory.
Thanks to the many in the Prawfs community that gave me some really great comments while I was working on these two articles!
Friday, May 24, 2013
"Sport as Speech" and Non-sport as Speech
I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.
Two further thoughts on the paper.
1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is another reason to bother defining what qualifies as sport.
2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?
Tuesday, May 21, 2013
Sperm Donation, Anonymity, and Compensation: An Empirical Legal Study
In the United States, most sperm donations* are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once they reach the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea.
In a series of prior papers I have explained why I believe the arguments offered by advocates of these registries fail. Nevertheless, I like to think of myself as somewhat open-minded, so in another set of projects I have undertaken to empirically test what might happen if the U.S. adopted such a system. In particular, I wanted to look at the intersection of anonymity and compensation, something that cannot be done in many of these other countries where compensation for sperm and egg donors is prohibited.
Today I posted online (downloadable here) the first published paper from this project,Can You Buy Sperm Donor Identification? An Experiment, co-authored with Travis Coan, and forthcoming in December 2013 in Vol. 10, Issue 4, of the Journal of Empirical Legal Studies.
This study relies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the U.S. Our results support the hypothesis that subjects in the treatment (non-anonymity) condition need to be paid significantly more, on average, to donate their sperm. When restricting our attention to only those subjects that would ever actually consider donating sperm, we find that individuals in the control condition are willing-to-accept an average of $$43 to donate, while individuals in the treatment group are willing-to-accept an aver-age of $74. These estimates suggest that it would cost roughly $31 per sperm donation, at least in our sample, to require donors to be identified. This price differential roughly corresponds to that of a major U.S. sperm bank that operates both an anonymous and identify release programs in terms of what they pay donors.
We are currently running a companion study on actual U.S. sperm donors and hope soon to expand our research to egg donors, so comments and ideas are very welcome online or offline.
* I will follow the common parlance of using the term "donation" here, while recognizing that the fact that compensation is offered in most cases gives a good reason to think the term is a misnomer.
- I. Glenn Cohen
Wednesday, May 15, 2013
Rationing Legal Services
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.
To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?
I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.
I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.
The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.
While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.
- I. Glenn Cohen
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack
JOTWELL: Coleman on Hoffman on federal rulemakingThe latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).
Wednesday, May 08, 2013
“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case
At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:
“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”
The exchange is all the more curious because, despite
her scepticism, Kagan signed on to the Court’s holding that the Medicaid
expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.
First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.
In Sebelius, for the first time in its history, the Court found such unconstitutional ‘compulsion’ in the deal offered to States in order to expand Medicaid under the ACA. In finding the Medicaid expansion unconstitutional, the Court contrasted the ACA case with the facts of the Dole case, wherein Congress “had threatened to withhold five percent of a State’s federal highway funds if the State did not raise its drinking age to 21.”In discussing Dole, the Sebelius Court determined that “that the inducement was not impermissibly coercive, because Congress was offering only ‘relatively mild encouragement to the States’,” and the Court noted that it was “less than half of one percent of South Dakota’s budget at the time” such that “[w]hether to accept the drinking age change ‘remain[ed] the prerogative of the States not merely in theory but in fact’.”
By contrast, when evaluating the Medicare expansion under the ACA, the Sebelius Court held that the
financial “inducement” Congress has chosen is much more than “rela- tively mild encouragement” – it is a gun to the head [...] A State that opts out of the Affordable Care Act’s expansion in health care cover- age thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs [...] The threatened loss of over 10 percent of a State’s overall budget, in contrast [to Dole], is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.
I argue that this analysis is fundamentally misguided, and (if I may say so) I have some fun doing it! As I summarize the argument structure: If the new terms offered by the Medicaid expansion were not coercive, the old terms were not coercive, and the change in terms was not coercive, I find it hard to understand how seven Supreme Court Justices could have concluded that coercion was afoot; the only plausible explanation is that these seven Justices in Sebelius fundamentally misunderstood coercion. This misunderstanding becomes only more manifest when we ask exactly ‘who’ has been coerced, and see the way in which personifying the States as answer obfuscates rather than clarifies matters.
The paper is out, but I will be doing a book chapter adapting it so comments still very much approeciated.
- I. Glenn Cohen
Wednesday, May 01, 2013
Sleep No More: Sleep Deprivation, Doctors, and Error or Is Sleep the Next Frontier for Public Health?
How often do you hear your students or friends or colleagues talk about operating on very little sleep for work or family reasons? In my case it is often, and depending on the setting it is sometimes stated as a complaint and sometimes as a brag (the latter especially among my friends who work for large law firms or consulting firms). To sleep 7-8 hours is becoming a “luxury” or perhaps in some eyes a waste – here I think of the adage “I will sleep when I am dead” expresses that those who need sleep are “missing out” or “wusses.” My impression, anecdotal to be sure, is that our sleep patterns are getting worse not better and that many of these bad habits (among lawyers) are learned during law school.
One profession that has dealt with these issues at the regulatory level is medicine. In July 2011, the Accreditation Council for Graduate Medical Education (ACGME) – the entity Responsible for the accreditation of post-MD medical training programs within the United States – implemented new rules that limit interns to 16 hours of work in a row, but continue to allow 2nd-year and higher resident physicians to work for up to 28 consecutive hours. In a new article with sleep medicine expert doctors Charles A. Czeisler and Christopher P. Landrigan that just came out in the Journal of Law, Medicine, and Ethics, we examine how to make these work hour rules actually work.
As we discuss in the introduction to the article
Over the past decade, a series of studies have found that physicians-in-training who work extended shifts (>16 hours) are at increased risk of experiencing motor vehicle crashes, needlestick injuries, and medical errors. In response to public concerns and a request from Congress, the Institute of Medicine (IOM) conducted an inquiry into the issue and concluded in 2009 that resident physicians should not work for more than 16 consecutive hours without sleep. They further recommended that the Centers for Medicare & Medicaid Services (CMS) and the Joint Commission work with the Accreditation Council for Graduate Medical Education (ACGME) to ensure effective enforcement of new work hour standards. The IOM’s concerns with enforcement stem from well-documented non-compliance with the ACGME’s 2003 work hour rules, and the ACGME’s history of non-enforcement. In a nationwide cohort study, 84% of interns were found to violate the ACGME’s 2003 standards in the year following their introduction.
Whether the ACGME's 2011 work hour limits went too far or did not go far enough has been hotly debated. In this article, we do not seek to re-open the debate about whether these standards get matters exactly right. Instead, we wish to address the issue of effective enforcement. That is, now that new work hour limits have been established, and given that the ACGME has been unable to enforce work hour limits effectively on its own, what is the best way to make sure the new limits are followed in order to reduce harm to residents, patients, and others due to sleep-deprived residents? We focus on three possible national approaches to the problem, one rooted in funding, one rooted in disclosure, and one rooted in tort law. I would love reactions to our proposals in the paper, but wanted to float the more general idea in this space.
Obesity is a good example of something that through concerted action moved from the periphery to safely within the confines of public health thinking and even public health law. Is it time to do the same for sleep? Should we stop valorizing sleeping very little in our society? Should we be thinking about corporate and public policies directed to improving sleep pattern? What might that look like? One thought I have is about encouraging telecommuting to reduce commuting time, sleep rooms in offices? Of course, on the parenting sleeplessness sides many of the solutions are social support. What about what we tell and model for our students? I try to impart to my students that extra hours spent studying well into the night will have diminishing marginal returns, but who knows if that message is imparted. I also worry that with the number of journals, moot courts, clubs, etc, we encourage our students to join at law school that we are enablers of sleeping too little and perpetuating the “superman” myth (and I do wonder about the gendered component here)... Real men don’t sleep. And then they perform badly at their jobs and get into car crashes….
- I. Glenn Cohen
JOTWELL: Tidmarsh on Lemos (and Hensler) on parens patriaeThe new essay in JOTWELL's Courts Law has been published: Jay Tidmarsh (Notre Dame) reviews Margaret Lemos, Aggregate Litigation Goes Public: Representative Suits by the Attorney General (Harvard Law Review) and Deborah Hensler's response essay (Harvard Law Review Forum) on the possibility of attorney general-initiated parens patriae actions as an alternative to class actions.
Wednesday, April 24, 2013
Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys
The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.
Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.
I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.
I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.
Tuesday, April 23, 2013
Some Must Reads from the Mich LR Books Issue
I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more.
Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.
The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.
And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course. For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.
Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.
In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces.
Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?). Enjoy!
Monday, April 15, 2013
JOTWELL: Mullenix on Sachs on personal jurisdictionThe new essay for JOTWELL's Courts Law has been posted: Linda Mullenix (Texas) reviews Stephen Sachs How Congress Should Fix Personal Jurisdiction, which argues that personal jurisdiction is a mess and only Congress can fix it.
Wednesday, March 27, 2013
FSU Law Review Announces its Exclusive Submission Window
The Florida State University Law Review will be conducting exclusive spring cycle article reviews. Any article submitted to this exclusive review between now and April 3d will be evaluated by April 11th. By submitting the article you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in Issue 3 or Issue 4 , both of which are slated for publication in summer of 2014.If you have an article which you would like to submit, please e-mail an attached copy of the article and your cv and cover letter to email@example.com with the subject line "Exclusive Spring 2013 Article Review." Feel free to cc' me.
Wednesday, March 13, 2013
JOTWELL: Erbsen on Cheng on trial sampling
The latest review essay for JOTWELL's Courts Law has been published: Allen Erbsen (Minnesota) reviews Edward Cheng's When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling (U. Pa. L. Rev. 2012). Cheng argues that non-traditional procedures, such as trial sampling, may produce more accurate results in certain circumstances than individual claim-by-claim procedures.
Tuesday, March 05, 2013
The iPhone, not the eye, is the window into the soul
It is great to be back at Prawfsblawg this year. Thanks to Dan and the gang for having me back. For my first post this month, I wanted to point everyone to the most important privacy research of 2012. The same paper qualifies as the most ignored privacy research of 2012, at least within legal circles. It is a short paper that everyone should read.
The paper in question,Mining Large Scale Smart-Phone Data for Personality Studies, is by Gokul Chittaranjan, Jan Blom, and Daniel Gatica-Perez. Chittaranjan and co-authors brilliantly show that it is straightforward to mine data from smart-phones in an automated way so as to identify particular "Five Factor" personality types in a large population of users. They did so by administering personality tests to 117 smartphone users, and then following the smartphone activities of those users for seventeen months, identifying the patterns that emerged. The result was that each of the "Big Five" personality dimensions was associated with particular patterns of phone usage. For example, extraverts communicated with more people and spent more time on the phone, highly conscientious people sent more email messages from their smartphones, and users of non-standard ring-tones tended to be those who psychologists would categorize as open to new experiences.
There is a voluminous psychology literature linking scores on particular Big Five factors to observed behavior in the real world, like voting, excelling in workplaces, and charitable giving. Some of the literature is discussed in much more detail here. But the Chittaranjan et al. study provides a powerful indication of precisely why data-mining can be so powerful. Data mining concerning individuals' use of machines is picking up personality traits, and personality predicts future behavior.
The regularities observed via the analysis of Big Data demonstrate that you can aggregate something seemingly banal like smartphone data to administer surreptitious personality tests to very large numbers of people. Indeed, it is plausible that studying observed behavior from smartphones is a more reliable way of identifying particular personality traits than existing personality tests themselves. After all, it is basically costless for an individual to give false answers to a personality questionnaire. It is costly for an extravert to stop calling friends.
Privacy law has focused its attention on protecting the contents of communications or the identities of the people with whom an individual is communicating. The new research suggests that -- to the extent that individuals have a privacy interest in the nature of their personalities -- an enormous gap exists in the present privacy framework, and cell phone providers and manufacturers are sitting on (or perhaps already using) an information gold mine.
It's very unlikely that the phenomenon that Chittaranjan et al. identify is limited to phones. I expect that similar patterns could be identified from analyzing peoples' use of their computers, their automobiles, and their television sets. The Chittaranjan et al. study is a fascinating, tantalizing, and perhaps horrifying early peek at life in a Big Data world.
Tuesday, February 26, 2013
Symposium on the gender gap in the workplace
FIU Law Review will host Minding the Gap: Reflections on the Achievement Gap between Men and Women in the Workplace in 2013, this Friday, March 1. The conference is organized by my FIU colleague (and alumna Guest Prawf) Kerri Stone. Presenters include former guests Nancy Leong (Denver) and Marcia McCormick (Saint Louis), along with several top employment/employment discrimination scholars.
The symposium will be published in June 2013.
Sunday, February 24, 2013
The Economics of the Infield Fly RuleMy longer treatment of the infield fly rule, The Economics of the Infield Fly Rule, is now available on SSRN and forthcoming in Utah Law Review. The abstract is after the jump. Comments welcome.
No rule in all of sports has generated as much legal scholarship as baseball’s Infield Fly Rule. Interestingly, however, no one has explained or defended that rule on its own terms as an internal part of the rules and institutional structure of baseball as a game. This paper takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations. The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other baseball game situations.
The infield fly is defined by three relevant features: 1) it contains an extreme disparity of costs and benefits inherent in that play that overwhelmingly favors one team and disfavors the other team; 2) the favored team has total control over the play and the other side is powerless to stop or counter the play; and 3) the cost-benefit disparity arises because one team has intentionally failed (or declined) to do what tordinary rules and strategies expect it to do and the extreme cost-benefit disparity incentivizes that negative behavior every time the play arises. When all three features are present on a play, a unique, situation-specific limiting rule becomes necessary; such a rule restricts one team’s opportunities to create or take advantage of a dramatic cost-benefit imbalance, instead imposing a set outcome on the play, one that levels the playing field. The Infield Fly Rule is baseball’s prime example of this type of limiting rule. By contrast, no other baseball situation shares all three defining features, particularly in having a cost-benefit disparity so strongly tilted toward one side. The cost-benefit balance in these other game situations is more even; these other situations can and should be left to ordinary rules and strategies.
Monday, February 11, 2013
JOTWELL: Walsh on Crowe on the federal judiciaryThe latest review essay for JOTWELL's Courts Law is now available: Kevin Walsh (Richmond) reviews Justin Crowe's Building the Judiciary (Princeton University Press 2012). Crowe's book provides a historical narative exploring the events and forces that made the federal judiciary powerful--particularly those that at work before the rise of Federal Courts as a field sixty years ago.
Eppur si muove
There is a good story by Adam Gopnik in the current New Yorker about Galileo--next year marks the 450th anniversary of his birth and there are several new books about him. This got me thinking about Galileo's status as a hero (or martyr) for free expression and about the free-speech ideals in play in his story.
On one hand, Milton mentioned the aging and imprisoned Galileo in Areopagitica (Gopnik says Milton visited Galileo during the latter's house arrest) as an example of the evils of official licensure. We often point to Galileo and his punishment by the Inquisition as Exhibit A in the need for epistemological (or epistemic) humility--that we cannot know what is true, what we hold as true may come to be shown false, and that the authorities should not enforce one version of scientific, political, or other truth. He represents the man proven right by history, thus the paradigmatic example of why government should not have the power to declare facts and ideas wrong.
On the other hand, as Gopnik describes, some (notably Bertolt Brecht) have taken the position that Galileo was not a hero because he recanted rather than subject himself to torture or death for his beliefs. Others (including historian Thomas Mayer, who has written two new books about Galileo's trial and the Italian Inquisition) insist that Galileo contributed to his own problems through hubris and pugnacity. He migh have avoided trouble by not taunting Pope Urban VIII or by presenting heliocentrism as a theory, on par with the Church's view, rather than as the one correct position that he himself believed. And several scholars argue that the trial, and its status as an illustration of the worst type of censorship, "is shrouded in myth and misunderstanding."This leaves several interesting questions. Is Gopnik right that the myth of the trial in fact "seems pretty much right: Galileo wrote a book about the world saying that the earth goes around the sun, and the Church threatened to have him tortured or killed if he didn’t stop saying it, so he stopped saying it"? Or is that too simple? Should we accept a free speech regime that draws distinctions between what can be said generally and what can be advocated for as reflective of the speaker's true beliefs? Can a free-speech regime impose epistemological humility on individual speakers themselves (i.e., if the authorities must be humble as to what they know, must all speakers)?
Finally, is punishment and martyrdom the only way for someone to stand up for their free speech rights? Or does truth advance sufficiently simply because truth (particularly scientific truth) establishes something as reality, no matter that the government may insist the scientist must say about it. As Gopnik puts it, "the scientist can shrug at the torturer and say, Any way you want me to tell it, I will. You’ve got the waterboard. The stars are still there."
Monday, February 04, 2013
Reforming the Pardon Attorney Office: Some Preliminary Thoughts
I'm home now, after a few days in NYC last week, where Eric Johnson (Illinois) and Rachel Barkow (NYU) presented drafts at the crim law theory colloquium. Rachel's cool paper lays out the case for moving control over federal prison, foresenics and clemency policy outside of the DOJ. You can find an early draft on SSRN and I think it's coming out later this year in Va L Rev. The discussion with others about Rachel's paper got me thinking again about the federal pardon office in particular and whether (or how) governments should dispense mercy. Because of the recent NYT editorial on clemency reform, there are a number of folks and organizations urgently interested in reform of the Office of the Pardon Attorney. This is in part because Obama's record on distributing pardons is especially low when compared to other recent presidents. (Rachel's paper provides data on that; former pardon attorney Margy Love has been a one-woman crusader on that front too.) Unlike Rachel or Margy, I won't say Obama's record low number of pardons is necessarily stingy. That conclusion presupposes too much to reach that assessment, though I can imagine I might reach the same conclusion if I had the time to review all the petitions myself.
And that goes to my main point. It seems to me that if we're going to have reform of the Pardon Attorney's office, one thing we should try to do is unpack the reasons for clemency to better facilitate understanding and democratic accountability. Often the word clemency is used in broad-brushed ways, and by using it without care or precision, we lose the opportunity to move the conversation forward in useful ways. Accordingly, if we are going to reform the Pardon Attorney's office, and if states are interested in similar developments, then we should at least do our best to shape sites for clemency in ways that are honest even if they are not meant to do (only) justice.
Specifically, clemency sites like the executive pardon can be used to advance justice in its retributive texture. These are the easier cases for clemency and they arise when executive branch officials have substantial doubts about the accuracy of the conviction now, or perhaps because they believe the punishment is too severe (in relation to the offender's moral or legal desert). When officials are faced with classic Type I errors, these clemency sites are attractive and necessary because of the way in which they can be used to reduce or correct such errors--and they are especially attractive when decisions are subjected to some kind of deferential review--as I have argued.
In addition to promoting justice and correcting injustices, clemency sites like the Pardon Attorney could also be used to advance mercy, understood as I roughly defined it once (somewhat controversially), as leniency motivated by compassion, redemption, grace, caprice or bias. Thus, when pardons are bestowed because of a person's post-conviction heroic deeds, or because Christmas is coming, or because the offender has come to Jesus, or because the person's family is close to the President, then such dispensations of leniency should be identified as mercy with particular explanations offered for the leniency.* Here, the decision is made to extend leniency independent of its putative benefits toward crime control.
Finally, clemency sites such as the Pardon Power could also be used to advance straightforward policy goals regarding individual prevention and crime control. On this view, pardons are a way to address and scale back punishments that are unnecessary with respect to the threats posed by particular offenders. Perhaps this offender is no longer a sex offender threat because he has voluntarily sought chemical castration and otherwise completed all treatments; perhaps that violent offender has become an invalid through an accident he suffered while in prison. With this goal of individual prevention in mind, the Pardon Attorney could be used as a space (especially in a world without parole) to re-assess threats of dangerousness that earlier motivated officials to apply a custodial or otherwise onerous sanction that is no longer required from a social self-defense perspective.
Again, I'm not saying I necessarily endorse or oppose all pardons that are merciful or prospectively utilitarian from an individual prevention perspective, but I know that others are attracted to those kinds of pardons. It seems to me that if we're going to have a pardon attorney perform any role related to remitting punishments, it would be a good idea if we could determine which box the President thought a particular offender's petition for clemency belonged in, and why. I doubt that too many people make their ultimate decisions about who to support politically based on who receives clemency and why, but if we do think the Office of the Pardon Attorney has fallen into unjustified dis-use, it might be because such decision-making has in the past been inadequately sorted and scrutinized. Justice, mercy, and prospective utility would be a first pass attempt at trying to get the Pardon attorney, and offices like it at the state level, to think more sure-footedly about what they are doing and why.*My published and probably still current view is that leniency motivated by any of these mercy reasons are all problematic even if not equally so from the perspective of retributive justice or liberalism properly understood. But my own view on this doesn't matter for the limited purposes of trying to come up with reforms of the Pardon attorney. I understand that not everyone is a retributivist or even a liberal and that some folks want the law to have spaces for interstitial discretion that redounds to the benefit of defendants--even if those benefits cannot be justified on their own feet but rather in service to some other good such as the desire to simply have less punishment.
Monday, January 28, 2013
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.
Monday, January 21, 2013
JOTWELL: Lahav on Klerman on Personal JurisdictionThe latest from JOTWELL's Courts Law Section: Alexandra Lahav (U Conn.) reviews Daniel Klerman's Personal Jurisdiction and Products Liabiity, which considers the law-and-economics issues ex ante and argues for a simplified rule allowing a manufacturer to be sued in the state where the product is sold to the consumer.
Tuesday, January 08, 2013
Pendent Appellate Jurisdiction and the Collateral Order Doctrine
Although it has become a settled feature of federal courts jurisprudence, the “collateral order doctrine” first articulated by the Supreme Court in 1949 continues to provoke judicial and academic criticism. "Accordingly," as a unanimous Court stressed in 2006, "we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope," lest it come to "overpower the substantial finality interests [the final judgment rule] is meant to further."
Notwithstanding the strong policy judgment enmeshed within the final judgment rule and the consistent rhetoric of the Court's collateral order opinions, I have a new essay up on SSRN in which I aim to demonstrate that the Justices have in fact effected a dramatic (if largely unnoticed) expansion of the collateral order doctrine in recent years — one that, by its nature, applies specifically to private suits seeking damages against government officers in their personal capacity. Starting from the now-settled holding that a government officer’s official immunity is an immediately appealable collateral order (at least as to the relevant legal questions), the Court has used the obscure and obtuse doctrine of “pendent appellate jurisdiction” to sub silentio shoehorn into interlocutory appellate review of a trial court’s contested denial of official immunity (1) whether the plaintiff’s complaint satisfies the applicable pleading standards; (2) the elements of the plaintiff’s cause of action; and (3) the very existence of such a cause of action. More to the point, these expansions have come with exceptionally little analysis, with two of these three jurisdictional holdings buried in footnotes.
In addition to flying in the face of longstanding precedent, the more troubling analytical implication of this trend is to both formally and functionally vitiate the longstanding distinction between litigation immunities and defenses to liability. To the extent that officer defendants might now be able to press most potential legal defenses on interlocutory appeal of a denial of a motion to dismiss even where they are not entitled to official immunity, such defenses will necessarily become functional immunities from suit in any case in which they are validly invoked — and will make it that much harder (and more expensive) for plaintiffs to recover even in cases in which they are not. If the Justices truly intended such a result, even if only in officer suits, one could at least have expected them to say more about it than the cryptic discussions that have sufficed to date. As the essay concludes, had they done so, they might have realized that such a result is incredibly difficult to defend as a matter of law, policy, precedent, or prudence.
Needless to say, I'd welcome comments, criticisms, objections, etc.!
Monday, January 07, 2013
Thomas on Solomon on civil juries
Suja Thomas (Illinois) has the newest essay on JOTWELL's Courts Law Section, reviewing Jason Solomon's The Political Puzzle of the Civil Jury, which examines the role of the civil jury as a political institution.
Thursday, December 27, 2012
The Majoritarian Senate
Many thanks to Dan Markel for allowing me to make a one-time appearance on this blog. Recently my co-author, Gregory Koger, and I completed a draft of a paper on the filibuster entitled "The Majoritarian Senate," which is now up on SSRN.
In the paper we demostrate that the a majority of senators can reform the filibuster at any time using ordinary Senate procedures. We show that reforming the filibuster does not require a supermajority of senators, the beginning of a new Congress, or any appeals to the Constitution (let alone judicial review). The argument is simple, and one that a lawyer would certainly appreciate. Just as one can change the meaning of the Constitution through interpretation, a majority of senators can change the rules that constitute the modern Senate filibuster by reinterpreting them.
Oddly enough, and this came as a surprise to me, the procedures for Senate rule interpretation cannot be filibustered, can be used at any time, and historically have been used by both the House of Representatives and the Senate to limit filibustering. In fact, the paper shows that the House abolished the filibuster by essentially using the same procedures for rule interpretation as the ones we describe in the paper.
The paper is still a draft, so I would welcome any comments you may have. Part of why we posted the draft now is hopefully to reach policymakers as they negotiate possible filibuster reform proposals. Even if filibuster does not happen in January, we hope that supporters of reform will recognize that they do not have to wait for a new Congress to try again. More broadly, the goal of the paper is to show that Senate rules and procedures are no obstacle to reform. All that is needed is the will of a determined majority of senators. In other words, when it comes to filibuster reform, don't hate the game, hate the players.
Tuesday, December 04, 2012
Empathy for the DevilI wanted to flag a significant new article by Thomas Colby (GW), titled In Defense of Empathy (forthcoming in Minn. L. Rev). Colby makes the first detailed defense of President Obama's conception of empathy--importantly by explaining what empathy actually is, how it is distinct from sympathy, and why empathy is, in fact, an important characteristic for judges to possess. He also explains how empathy is, in fact, the opposite of the umpire analogy, while being no less about the rule of law. I have touched on similar points before, but it is nice to see this get a full-fledged scholarly treatment. Definitely worth a look.
Friday, November 30, 2012
Expresso Makes Life Easier for Law Review Editors. How about for Writers?
I wonder if many of you got the same email I did earlier from Jean-Gabriel Bankier over at bepress. I've reprinted most of it below and after the jump. Please feel free to weigh in with comments on whether these are positive developments for everybody or just some of the players in the submission game.
Working with the editors, bepress came up with a host of improvements to ExpressO which will radically improve the submission management experience for editors and give editors confidence that the information about the status of articles in their submission queue is up-to-date.
Here are a just a few of the highlights that are coming for the next submission season:
Integrated Auto-withdraw—when an author accepts an offer to be published through ExpressO, editors of other law reviews will be notified immediately and the submission will be automatically withdrawn from each law review's priority submission queue. Outside of being published, when an author simply withdraws their paper, it will also trigger the automatic withdraw from the pending submissions queue as well as notify the assigned editor.
Expedite Preferences— editors will be able to set expedite preferences and share those preferences with submitting authors. For example, editors can inform authors that they will give priority to expedite requests from peer law reviews (editor creates list of peers but the list is not shared with the authors). They can also avoid wasting time on articles that have asked for a hundred or more expedite review requests: they do so by choosing a ceiling and then give priority to expedite requests that are distributed to no more than a ceiling number of law reviews simultaneously. Editors will be able to update their preferences at any time depending upon whether they are looking to slate lots of pieces or are pretty much full for the season.
Priority Submission Queue—ExpressO will be introducing many new features to help keep submission queues accurate and up-to-date. Editors will be notified (by email) only of expedite requests that meet their preferences based upon the criteria they have set and shared with authors. A priority submission queue will filter out articles that fail to meet the law review’s set expedite criteria. Also, authors and editors with expiring expedites will be reminded to take action. Authors will be reminded to expedite a new offer/offer extension or withdraw the article. Editors will be reminded to review the submission.
Certified Expedite Requests—editors will be able to easily confirm the legitimacy of an expedite request. If an author has an open offer from another law review using ExpressO, that offer will be reflected in the editors’ priority submission queue. This kind of transparency will save editors time since they will no longer have to follow up with authors on incomplete expedite requests or with other law reviews to confirm the offer.
Closed Communication After Rejections—when a law review rejects a submission the author will no longer be able to communicate with that review through ExpressO.
Fast—our submission management software for law reviews will be substantially faster.
Bepress is proud of the impact ExpressO has had on the legal publishing over the past 10 years, and is dedicated to providing new tools to increase efficiency in law review submission management. Please contact me if you have any questions. I would love to hear any suggestions for what we might do in the future to help law reviews.
Finally, these tools you will need to manage your submissions will be free in 2013.
Green Bag's Got a New Issue...
The latest issue of Green Bag is available with links below the fold. Bear in mind the symposium to which you might wish to contribute on Orin's latest opus.
Volume 16, Number 1 (Autumn 2012)
To the Bag
Edward L. Carter and Edward E. Adams, Misjoinder and the Mysterious Opinion
John L. Peschel, Enjoyed but not Enjoined
Julian Aiken, Femi Cadmus & Fred Shapiro, Not Your Parents’ Law Library: A Tale of Two Academic Law Libraries
Ira Brad Matetsky, The Harlan Fund
John V. Orth, Charles Dickens and the Sovereign Debt Crisis
Allen Rostron , Factoids
J. Harvie Wilkinson III, The Lost Arts of Judicial Restraint
From the Bag
Unknown, The Case of the Racket Witness
Orin S. Kerr, A Theory of Law
Tuesday, November 20, 2012
Article Spotlight: The Merger Agreement Myth
So I wouldn't describe myself as a corporate law enthusiast, but I wanted to highlight a recent and provocative article authored by my Pepperdine colleague Robert Anderson and his co-author Jeffrey Manns, titled The Merger Agreement Myth, 98 Cornell L. Rev. (forthcoming 2013). The article has gotten quite a lot attention and has been written up by Reuters, the ABA Journal, and Dealbreaker (full disclosure: some of the write-ups push the envelope on the somewhat more modest - and thoughtful - claims in the article). In any event, here's the abstract for the piece. Enjoy!
Practitioners and academics have long assumed that financial markets value the deal-specific legal terms of public company acquisition agreements, yet legal scholarship has failed to subject this premise to empirical scrutiny. The conventional wisdom is that markets must value the tremendous amount of time and money invested in negotiating and tailoring the legal provisions of acquisition agreements to address the distinctive risks facing each merger. But the empirical question remains of whether markets actually price the legal terms of acquisition agreements or whether they solely value the financial terms of mergers. To investigate this question, we designed a modified event study to test whether markets respond to the details of the legal terms of acquisition agreements. Our approach leverages the fact that merger announcements (which lay out the financial terms) are generally disclosed one to four trading days before the disclosure of acquisition agreements (which delineate the legal terms). We focused on a data set of cash-only public company mergers spanning the decade from 2002 to 2011 to ensure that the primary influence on target company stock prices is the expected value of whether a legal condition will prevent the deal from closing. Our analysis shows that there is no economically consequential market reaction to the disclosure of the details of the acquisition agreement. Markets appear to recognize that parties publicly committed to a merger have strong incentives to complete the deal regardless of what legal contingencies are triggered. We argue that the results suggest that dealmakers and lawyers focus too much on negotiating “contingent closings” that allow clients to call off a deal, rather than on “contingent consideration” that compensates clients for closing deals that are less advantageous than expected. Our analysis suggests drafting recommendations that could enable counsel to protect clients against the effects of the clients’ own managerial hubris in pursuing mergers that may (and often do) fall short of expectations.
Monday, November 19, 2012
JOTWELL: Pfander on Burbank, Plager, and Ablavsky on judicial departure
The latest essay in the Courts Law section of JOTWELL is by Jim Pfander (Northwestern), reviewing Leaving the Bench (forthcoming in U. Pa. L. Rev.), by Stephen Burbank, S. Jay Plager, and Greg Ablavsky. Burbank, et al. with an empirical and qualitiative analysis of why federal judges retire or take senior status, countering the prevailing political science narrative of political motivations and, Pfander argues, reminding us that judicial behavior "resists simplistic modeling and one-dimensional explanation."
Have a look at Jim's review, as well as the original article which is a great read and potentially timely, especially if SCOTUS decides to hear the judicial pay challenge this term.
Thursday, November 15, 2012
2013 CrimProf Shadow Conference at LSA in Boston
This is a note that Carissa Hessick (ASU) and I sent out recently to the crimprof listserv, which we reproduce in case there are readers who are prawfs that would like to participate. Please email me and Carissa if you're interested in participating. We usually have about 10 panels and 40-50 people involved, so it makes for a very stimulating and rewarding mini-conference within LSA.
Greetings! The 2013 Law and Society Annual Conference will be taking place from May 30 to June 2 at the Boston Sheraton in Boston, MA. Some background and the call for participation can be found here: http://www.lawandsociety.org/boston2013.html
For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.
The paper panels will cover a range of subjects. Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes.
We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area.
In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.
We would also like to identify people who are interested in serving as moderators or discussants for our various panels. So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.
In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.
If you would like to participate in the Shadow Conference in Boston:
By November 19th, please send an email to me and Dan with the subject line “LSA 2013 CrimProf Shadow Conference.” That email should include:
(a) an expression of interest
(b) an indication of whether you would like to participate in a book or paper panel
(c) a description of your topic (an abstract would be preferable)
(d) whether you are also available to serve as a moderator or discussant
(e) any limitations on the dates of your availability during the LSA. If we don't hear otherwise, we will assume you are indifferent to the timing and day of the panel
(f) if necessary, a heads up if you are contemplating participation on another LSA panel
Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.
Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference. (The LSA folks get kind of annoyed with us if our participants drop out. And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)
Feel free to contact me and Dan with any questions. And please make sure all your criminal law and criminal procedure colleagues know about this email; not all of them are necessarily on this listserv.
Thank you, and we look forward to seeing many of you in Boston.
Carissa (& Danny)
Tuesday, November 13, 2012
Steven Lubet on "John Brown's Spy"
A new book worth checking out: Steven Lubet, a regular reader and commenter here on Prawfs and my former trial advocacy professor and , has published John Brown's Spy: The Adventurous Life and Tragic Confession of John E. Cook. From the Yale University Press website:
John Brown's Spy tells the nearly unknown story of John E. Cook, the person John Brown trusted most with the details of his plans to capture the Harper's Ferry armory in 1859. Cook was a poet, a marksman, a boaster, a dandy, a fighter, and a womanizer—as well as a spy. In a life of only thirty years, he studied law in Connecticut, fought border ruffians in Kansas, served as an abolitionist mole in Virginia, took white hostages during the Harper's Ferry raid, and almost escaped to freedom. For ten days after the infamous raid, he was the most hunted man in America with a staggering $1,000 bounty on his head.
Tracking down the unexplored circumstances of John Cook's life and disastrous end, Steven Lubet is the first to uncover the full extent of Cook's contributions to Brown's scheme. Without Cook's participation, Brown might never have been able to launch the insurrection that sparked the Civil War. Had Cook remained true to the cause, history would have remembered him as a hero. Instead, when Cook was captured and brought to trial, he betrayed John Brown and named fellow abolitionists in a full confession that earned him a place in history's tragic pantheon of disgraced turncoats.
Sunday, November 11, 2012
Catalyzing Sports Fans (and the Rest of Us)--early draft now available
I'm happy to say that my co-authors Howard Wasserman, Michael McCann, and I have a short shitty first draft to read -- Catalyzing Sports Fans (and the Rest of Us) -- if anyone's interested. The paper is *not* about retributive justice in any dimension. It's about sports, free speech, contracts, taxes, crowds, opera, charity, and jurisdictional competition, etc. In short, it's about nothing I know anything about. So I hope you'll see fit to set me straight. Let me know via email if you'd like to read an early version please. I've pasted our working abstract below.
In most major professional sports, the desires of fans are of secondary significance. We think this could be different, and we offer two variations on a theme in which fans can be more influential stakeholders, particularly with respect to player trades or retention deals. We propose the development of Fan Action Committees (FACs).
Whether through enriching players directly, or through contributions to a player’s foundation or favorite charitable cause (our preferred approach), we examine the uneasy case for FACs. After anticipating objections and obstacles under current rules to their development, we offer some reflections about how the FAC model can transform, well, just about all other realms of human endeavor where third parties are benefited or harmed by agreements between two other parties.
Friday, October 26, 2012
JOTWELL: Vladeck on Collins & Nash on federal crime in state courtThe new review essay in the Courts Law Section of JOTWELL is by our own Steve Vladeck, reviewing Michael G. Collins and Jonathan Remy Nash's Prosecuting Federal Crimes in State Courts, published last year in Virginia Law Review. Steve argues that their detailed historical analysis has broader implications for the ability of Congress to authorize any type of adjudication in non-Article III tribunals.
Friday, October 19, 2012
Swing Staters Have All the Fun
As we march forward towards election day I must admit I'm starting to have a bit of "swing state" envy. I mean, let's face it, it's not as if you East Coasters will tuck in the kiddies and stay up all night, biting your nails until the California results are in. Everyone knows how our story ends. Besides reducing polling costs, the certitude of the California vote means that presidential candidates only need visit us in Los Angeles to make a withdrawal at "Bank Hollywood"--and that makes me a bit cranky and, yes, jealous of you in electorally glamorous states like Ohio et al.
Admittedly, the only election law nuances that I know are that (i) the "swing state" phenomena is a consequence of our Electoral College system and (ii) most states, including California, cast their electoral votes in "all or nothing" fashion, rendering the minority vote irrelevant to the national result. I also know that not all are fans of the Electoral College and a recent proposal, called the National Popular Vote, would basically abolish it and turn presidential elections into a single national election. A number of states (California included, of course) have signed on.
That pretty much exhausts my knowledge of election law. Fortunately, my colleague, Derek Muller, knows much more. Derek has written a fascinating piece titled Invisible Federalism and the Electoral College that will be coming out soon in the Arizona State Law Journal. In his article, Derek argues that proponents of the National Popular Vote undervalue the importance of the Electoral College's support of "invisible federalism" principles. Derek sets forth a strong argument that election law should be left to the mandate of individual states and that state-run elections should continue to operate intra-state, rather than be dumped into a national bucket of votes. For instance, felons can vote in some states but don't have a right to vote in others. In that regard (paraphased through my own naive lens of the subject), the Electoral College may not help California get noticed by candidates, but it may better support Federalist ideals if we continue to let states decide issues like voter eligiblity rather than homogenize the process in a national vote. Hmm, felon voting--not sure that would change the California results either. So for now, it looks like you on the East Coast can still get your beauty sleep and I'll still be cranky.
Monday, October 15, 2012
A New Essay on the Roberts Court and the Press: Not a Free Press Court?
The abstract for my new essay , Not a Free Press Court?, is as follows:
The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations,perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues.
I wrote this small essay, which is now available on ssrn, for a wonderful symposium at BYU Law School on the Roberts Court and the Press. The essay is forthcoming in 2012 BYU L. Rev. __ (2012).
Friday, October 12, 2012
A Job Talk Flashback
This week I had the interesting--and by interesting I mean slightly terrifying yet highly productive--opportunity to present my most recent article to my own faculty. It was my first such formal, colleague workshop since my original job talk. The article I presented will be published in Fordham Law Review this spring and is titled, Agencies in Crisis?: An Examination of State and Federal Agency Emergency Powers. In it I make both a quantitative and a normative analysis of agency emergency powers with some surprising and intriguing results. If you are interested, you can read the full abstract after the jump.
I will note, despite how oddly disconcerting it is to present a paper to colleagues I both admire and know well, in the end I found the resulting mentorship invigorating--I recommend the process to all you pre-tenureds out there. And now that I'm done, I'm going to Disneyland! (No, really, I am).
Agencies in Crisis?: An Examination of State and Federal Agency Emergency Powers
Fordham Law Review (forthcoming)
That state and federal agencies have emergency powers, is well known. Much less is known about the process and circumstances under which these powers are exercised--subjects that divide scholars into two theoretical camps. Scholars on one side assert that ample agency discretion in time of need is not only desirable, but it is laudable in the pursuit of efficiency and "deossification" of regulatory action. Scholars on the other side contend that emergency powers are so broadly granted, and representative procedure is so easily abandoned, that the inevitable result is agency unaccountability and aggrandizement. In response, this article presents new empirical research that shows a starling rise in the actual use of federal emergency power (the "good cause" exemption) and extensive use by certain state agencies of their comparable emergency rulemaking powers. After conducting a novel and comprehensive normative analysis, this article concludes by offering an approach to reharmonize the efficiency/public participation trade-off for emergency rulemaking at both the state and federal level: (i) to restrict federal agency emergency powers in language and structure and (ii) to increase agency flexibility at the state level. Discussion of these proposals is particularly timely, as not only has the general level of emergency rulemaking increased, but federal and state administrative agencies must now gird themselves for an increased burden on agencies that regulate health insurance programs. In this arena in particular, the empirical evidence reveals intense tension between administrative efficiency and public participation and a compelling need for an immediate rebalancing of these competing interests.
Thursday, October 11, 2012
10 Works that Mattered Most (to you!)
Via SSRN, I just stumbled across Rick Pildes' little essay for the Int'l Journal of Constitutional Law, which is celebrating its 10th Anniversary by asking a gaggle of distinguished prawfs what 10 works have most influenced them and their academic work. Check it out and keep a watch for the contributions from the others: Justice Stephen Breyer, Catherine MacKinnon, Philip Bobbitt, Jeremy Waldron, Seyla Benhabib, Sam Issacharoff, Martin Shapiro, and Michel Rosenfeld.
Feel free to add your own voices in the comments.
Tuesday, October 02, 2012
FSU Law Review Announces its Exclusive Fall Submission Window for Volume 40Adam Kramarow, the Senior Article Selection Editor at the FSU Law Review, has asked me to pass this along. (Feel free to cc me on your submissions.)
The Florida State University Law Review is now conducting exclusive spring article reviews. Any article submitted to this exclusive review between now and October 15, 2012 will be evaluated and responded to by October 26, 2012. By submitting the article during this window you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in Volume 40, which is slated for publication in 2013.
If you have an article which you would like to submit, please e-mail an attached copy of the article and your CV and cover letter to firstname.lastname@example.org with the subject line "Exclusive Fall Article Review." (The character after the k in Adam's email address is a zero, not an "o".) This opportunity also applies to articles you may have submitted to FSU LR earlier this season but you need to resend the piece under the appropriate subject line. If you have submitted an article for review through ExpressO, you will have to resubmit it through this process to be considered under the exclusive review process. We look forward to reading your articles.
Friday, September 28, 2012
JOTWELL: Epstein on Greenhouse on the Supreme CourtThe new essay for JOTWELL's Courts Law is by Lee Epstein, reviewing Linda Greenhouse's The U.S. Supreme Court: A Very Short Introduction.
Thursday, September 27, 2012
Over the summer, Dan and I wrote a short piece for The Atlantic arguing for the creation of "Fan Action Committees," through which fans could collect and give money to free agent players to lure them to join fans' favorite team. We currently are working, along with Michael McCann, on a longer version of the piece.
As even non sports fans probably know, this week's Monday Night Football game between Green Bay and Seattle ended on a touchdown on the final play of the game, in what most people outside Seattle believe was one of the worst calls, and worst-handled calls, in NFL history.* Several Green Bay players took to Twitter to express their dispelasure, notably offensive linement T.J. Lang, who tweeted ""Fine me and use the money to pay the regular refs." Shortly after that, a fan posted on the site Indiegogo (the page has been taken down, unfortunately) encouraging fans to send money to Lang to help him pay the fine that most believed was inevitable, as the NFL routinely fines players, coaches, and executives who criticize officiating. As it turned out, the league announced it would not impose fines for any comments related to Monday's game, no doubt a concession to the egregiousness of the mistake.
Still, this is our FAC idea in action--fans paying money as a show of fandom and of support for their favorite players. Although we primarily discussed the idea only in the context of free agency, this shows that fans may support players through money for a number of difference reasons in a number of different contexts. And it shows that fans instinctively understand this as a legitimate way to express support for their favorite players and teams.
See, scholarship can have a practical effect.
* Which, it turns out, will be the last call ever by the replacement referees, at least in this labor dispute.
Friday, August 31, 2012
More free speech and ideology
Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.
I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?
Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.
Thursday, August 30, 2012
Feel free to discuss in the comments.
Tuesday, August 21, 2012
A couple reading suggestions and the schedule for the NYU Crim Theory Colloquium
N.B. This post is basically for crimprofs and those interested in crim theory.
Apropos Rick's recent mention that he assigned an old favorite of mine, the Speluncean Explorers, for his first crim law class, I thought I'd share some (self-serving) recommendations, since this week marks the onset for many law schools across the country, and that means the first criminal law class is here or around the corner for some 1L's. (After the jump, I also share the schedule for the crim law theory colloquium at NYU this coming year.)
As many crim law profs lament, first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and for a contemporary flourish, a nod to Jeff Murphy or Michael Moore or Herb Morris. Murphy, Morris, and Moore deserve huge kudos for revivifying the field in the 1970's and since. Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.
For those of you looking to give your students something more meaty and nourishing than Kantian references to fiat iustitia, et pereat mundus, you might want to check out either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism. Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication. Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.
Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. The goal for this coming year is to workshop papers on and by:
September 10: Re'em Segev (Hebrew U, visiting fellow at NYU); James Stewart (UBC, visiting fellow at NYU)
October 29: Amanda Pustilnik (U Maryland); Joshua Kleinfeld (Northwestern)
November 26: Dan Markel (FSU); Rick Bierschbach and Stephanos Bibas (Cardozo/Penn)
January 28: Rachel Barkow (NYU) and Eric Johnson (Illinois)
February 25: Miriam Baer (BLS) and Michael Cahill (BLS)
March 18: Josh Bowers (UVA) and Michelle Dempsey (Villanova)
April 29: Daryl Brown (UVA) and Larry Alexander (USanDiego)
As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is going to be the fourth and fifth semesters of these colloquia. Let me know if you'd like to be on our email list for the papers.
Monday, August 20, 2012
Working in Haircurlers and Bathrobes at 1 First St., NE
In a fit of dubious restraint, Jay Wexler has omitted to share with you this recent funny essay on Salon.com.
I now understand why he makes hair jokes for an outfit like Salon.
JOTWELL: Wasserman on several takes on cameras in the courts
I wrote the newest essay in JOTWELL's Courts Law Section, reviewing two new discusssions of video cameras in the Supreme Court--one by Nancy Marder in Arizona State and one by Lisa McElroy in BYU. Both are good articles presenting different takes from distinct perspectives.
Tuesday, August 07, 2012
The New Green Bag is Out
Our friends at Green Bag have a new issue.
Table of contents with links appears after the jump.
Summer 2012 (vol. 15, no. 4)
To the Bag
Justice Owen J. Roberts on 1937, by Edward L. Carter & Edward E. Adams
It’s Now the John Roberts Court, by Erwin Chemerinsky
What Were They Thinking: The Supreme Court in Revue, October Term 2011, by John P. Elwood & Eric A. White
Who Shot Charles Summers?, by Kyle Graham
A Pronouncing Dictionary of the Supreme Court of the United States, by Sally Pei et al. (with the Pronouncing Dictionaryspreadsheet)
From the Bag
Multivariate Analysis Through Narrative History, by Alfred L. Brophy
The Supreme Court of Canada, Brick by Brick, by Andrew Frape & Cattleya Concepcion
Front & Back Matter