PrawfsBlawg

Prawfs Guest Tim Lytton Has a New Book: Check It Out!

Professor Tim Lytton, who has previously guested in this space, has a new book that I'm happy to share with our readers. It's called Kosher: Private Regulation in the Age of Industrial Food.  

Timothy D. Lytton is the Albert & Angela Farone Distinguished Professor of Law at Albany Law School. To read an interview with the author, click here.

Generating over $12 billion in annual sales, kosher food is big business. It is also an unheralded story of private-sector regulation in an era of growing public concern over the government’s ability to regulate the food industry. Kosheruncovers how independent certification agencies rescued American kosher supervision from corruption and turned it into a model of nongovernmental administration.

 “Kosher is one terrific book. It’s a wonderfully entertaining account of the squabbles, finger-pointing, and cutthroat competition that turned kosher certification from scandalous corruption to a respectable—and highly profitable—business. Today, if a food is labeled kosher, it is kosher, which is more than can be said of most claims on food labels. You don’t have to be Jewish to appreciate the fun in Timothy Lytton’s presentation of an unusually successful case study.”

— Marion Nestle, New York University, and author of Food Politics

In overcoming many of the problems of insufficient resources and weak enforcement that hamper the government, private kosher certification holds important lessons for improving food regulation. The growing popularity of kosher food is a response to a more general cultural anxiety about industrialization of the food supply. Like the organic and locavore movements, a growing number of consumers see rabbinic supervision as a way to personalize today’s complex, globalized system of food production.

CLICK HERE TO PURCHASE

Wrap-Up for Book Club on "Justifying Intellectual Property"

Many thanks for a really engaging book club to our terrific set of participants: Oren Bracha, John Duffy, Wendy Gordon, Justin Hughes, Jonathan Masur, and of course our author, Robert Merges.  Rob had a pretty busy day providing responses to the other participants, and the result is a club that dives deep down into the book.  In case you missed some of the posts, or just want a handy guide for future reference, here's a chronological list:

• Introductory Post
• Gordon: Thoughts on Justifying Intellectual Property
• Masur: The New Institutional Philosophy of Rob Merges
• Merges: Merges on Gordon on Rawls and IP
• Gordon: Replying to Rob Merges, Justifying Intellectual Property
• Bracha: What Good are Midlevel Principles in IP?  [Thoughts on Justifying IP]
• Merges: Midlevel Principles: Response to Jonathan Masur
• Merges: Even More on Midlevel Principles in IP Law - Response to Bracha
• Duffy: Merges and Descartes
• Hughes: More on Rawls and Intellectual Property
• Bracha: Still on Midlevel Principles in IP: A Reply to Rob Merges
• Masur: Masur on Merges on Masur on Merges
• Merges: Justifying IP: Putting the Horse Before Descartes (Response to Duffy)

I have a feeling some of these discussions could continue on into the future.  If you haven't gotten the book, you can find it at Amazon, Barnes & Noble, and HUP, or get Chapter 1 at SSRN. .

ost Book Club: Justifying IP -- Putting the Horse Before Descartes (Response to Duffy)

In this, my final response to the many interesting posts in my book, I want to traverse some comments that John Duffy made. To the other authors of posts, especially those who wrote reactions to my responses -- we will have to continue offline. I have taken too much space already. And the many readers of Prawfsblawg who care nothing for IP are I am sure tired of all this.

I am going to skip over the blush-inducing praise in John's post, and get right to his main point. He says:

" [I]f we are frustrated with the complexities of economic theories and are searching for a more solid foundation for justifying the rules of intellectual property, is Kant (or Locke or Rawls or Nozick) really going to help lead us out of the wilderness?"

John says no. He says further that just as Descartes' doubts drove him to embrace foundations that were thoroughly unhelpful when it came to elucidating actual physical reality, such as planetary motion, so my doubt-induced search for solid foundations will lead nowhere (at best), and maybe to some very bad places (at worst).

This argument may be seen to resolve to a simple point, one often made in legal theory circles: "It takes a theory to beat a theory." (Lawrence Solum has an excellent entry on this topic in his Legal Theory Lexicon, posted on his Legal Theory Blog some time back.) The idea here is that utilitarian theory is a true theory, because it is capable of proof or refutation and because it guides inquiry in ways that could lead to better predictions about the real world. By this criterion, deontic theories are not real theories because they cannot be either proven or refuted. Einstein's famous quip comes to mind; after a presentation by another scientist, Einstein supposedly said "Well, he wasn't right. But what's worse is, he wasn't even wrong."

My response starts with some stark facts. We do not know whether IP law is net social welfare positive. Yet many of us feel strongly that this body of law, this social and legal institution, has a place in a well-functioning society. Now ,we can say the data are not all in yet, but we nevertheless should maintain our IP system on the hope that someday we will have adequate data to justify it. The problem with this approach is, where does that leave us in the interim? We could say that we will adhere to utilitarian theory because it stands the best chance of justifying our field at some future date -- when adequate data are in hand. But meanwhile, what is our status? We are adhering, we say, to a theory that may someday prove true. By its own criteria it is not true today, not to the level of certainty we require of it (and that it in some sense requires of itself.) But because it will be "more true" than other theories on that magic day when convincing data finally arrive, we should stick to it.

My approach was to turn this all upside-down, I started with the fact that the data are not adequate at this time. And I admitted that I nevertheless felt strongly that IP makes sense as a field; that it seems warranted and even necessary as a social institition. So it was on account of these facts that I began my search for a better theoretical foundation for IP law.

If you have followed me so far, you will not be surprised when I say that for me, Locke, Kant and Rawls better account for the facts as I find them than other theries -- including utilitarianism. Deontic considerations explain, to me at least, why we have an IP system in the absence of convincing empirical evidence regarding net social welfare. Put simply: We have IP, regardless of its (proven) effect on social welfare -- so maybe (I said to myself) *it's not ultimately about social welfare*.

This is the sense in which, to me, deontic theory provides a "better" theory of IP law. It fits the facts in hand today, including the inconvenient fact of the absence of facts. Of course, we may learn in years to come that the utilitarian case can be made convincingly. I explicitly provide for this in JIP, when I say that there is "room at the bottom," at the foundational level, for different ultimate foundations and even new ultimate foundations. It's just that for me, given the current data, I cannot today make that case convincingly. And it would be a strange empirically-based theory that asks me to ignore this key piece of factual information in adopting foundations for the field. To those who say deontic theories cannot be either proven or disproven, I offer the aforementioned facts, and say in effect that an amalgam of deontic theory does a better job explaining why we have IP law than other theories. And therefore that it is in this sense "more true" than utilitarian theory. Again, it fits the facts that (1) we do not have adequate data about net social welfare; and (2) we nevertheless feel IP is an important social institution in our society and perhaps any society that claims to believe in individual autonomy, rewards for deserving effort, and basic fairness.

One final point: to connect Kant with Hegel with Marx, as John does, is a legitimate move philosophically. But I have to add that for many interpreters of Marx, he is the ultimate utilitarian. What is materialism, as in Marxist historical materialism, but a system that makes radically egalitarian economic outcomes the paramount concern of the state? The famous suppression of individual differences and individual rights under much of applied Marxist theory represents the full working out of the utilitarian program under which all individuals can be reduced to their economic needs, and all government can be reduced to a mechanistic system for meeting those needs (as equally as possible)? If we are going to worry about where our preferred theories might lead if they get into the wrong hands, I'll take Locke and Kant and Rawls any day. In at least one form, radical utilitarian-materialism has already caused enough trouble.

This is hardly all there is to say, but it is all I have time to say. So I will keep plodding along, like a steady plow horse, trying not only to sort out the foundational issues, but also to engage in policy discussion and doctrinal analysis. And with this image I close, having once again put the (plow) horse before Descartes in the world of IP theory.

 

 

Masur on Merges on Masur on Mergers

I greatly appreciate Rob Merges' generosity in taking the time to respond to my original post.  His response is, characteristically for Rob, incisive and thoughtful.  I am not sure, in the end, how much we really disagree.  But I will take a shot at briefly disentangling and clarifying a few points with the goal of identifying whether or not disagreement actually exists.

Rob is absolutely correct that there are two separate questions: 1) whether an IP system can be justified at all; and 2) how well a particular system is performing.  Rob argues that, with respect to question #1, the IP system cannot be justified on economic (by which we mean utilitarian or welfarist) grounds.  Why would this be?  One possibility is that utilitarianism or welfarism or consequentialism (which is what we mean when we talk about an "economic" foundation) cannot provide a morally satisfactory basis for intellectual property rights.  There is a short section in the book (pages 151-153) that coulud be read as developing this argument, but that section is better understood as a critique of a completely unfettered free market, a point with which few economists would disagree.  As a general matter, the book does not appear to be making this point, and indeed it would be a mammoth undertaking to do so (even for Rob Merges and this book) given the extensive arguments that scholars have been making for centuries about welfarism as a moral foundation.  Rob will correct me if I am wrong, but I do not understand this to be his main argument.

A second possibility is that economics (read: utilitarianism or welfarism) cannot generate the midlevel principles that operate in intellectual property.  But as I pointed out in my previous post, it can generate them -- or at least the ones that are really central to the American IP system.

The third possibility, and the one I understand Rob to be advancing, is that the IP system, as it is currently constituted, does not actually promote the utilitarian ends that an economic approach would demand.  That is: as an empirical matter, IP doctrines as they operate today do not actually increase social welfare.  As Rob wrote in his post:

"The data required by a comprehensive utilitarian perspective are simply not in evidence in this field -- at least not yet. Put simply, I do not think we can say with the requisite degree of certainty that IP systems create net positive social welfare."

That seems exactly right to me, and this is why I believe that Rob and I are actually in violent agreement as to most of the important issues.  But this means that economics fails in response to Rob's question #2 -- how well is the system actually performing? -- rather than question #1, which is how the IP system can be justified on a theoretical basis.  That is why I wrote that economics has failed an empirical test, while Rob's deontic theory has passed a theoretical test.  This touches upon an excellent point made by a commenter to my first post.  This is not a reason to abandon deontic theory; rather, the point is simply that when we evaluate different types of theories, we should do on comparable grounds.

Nor do I mean at all to say that Rob's deontic theory is not correct, or compelling, or even superior to economics.  It is certainly the first two and maybe the third as well.  It is just that I do not believe a utilitarian economic theory can be ruled out on the theoretical grounds used to evaluate Lockean and Kantian deontic theories.  Economics is part of the overlapping consensus as well. 

The New Institutional Philosophy of Rob Merges

In Justifying Intellectual Property, Rob Merges has written one of the most sweeping, significant, and brilliant books about intellectual property to be published in years.  The importance of the book is only accentuated by the identity of the author.  Merges is, of course, one of the godfathers of the institutional economics approach to intellectual property law, so this book conjures up the image of Richard Posner arguing that contract and tort law are fundamentally grounded in theories of fairness and distributive justice.  Merges’ book is an ideal candidate for a book club such as this one because it covers so much ground and does so with a great deal of nuance and careful detail.  This post will only scratch at one corner of Merges’ masterpiece, and I look forward to reading the perspectives of others as well.  Many thanks to Matt Bodie for organizing this club and to Prawfsblawg for hosting it.

Justifying Intellectual Property is a tremendous achievement in large part because it succeeds in adducing a fully compelling non-economic justification for intellectual property rights.  When Merges argues that he can arrive at the midlevel principles that animate central IP doctrines using Locke, Kant, and Rawls, he is highly persuasive.  The antecedent question, which I hope to explore, is what has catalyzed this approach.  Merges notes throughout the book that for an economic justification for intellectual property, the evidence is not there:  based on existing empirical findings, there is at least as much reason to believe that intellectual property has hampered innovation as that it has advanced it.  That is a fair characterization.  But note the type of argument being made.  It is not the case, and Merges correctly does not assert, that IP’s midlevel principles cannot be justified with economic theory.  Such a justification would not be difficult: nonremoval, proportionality, and efficiency are core ideas of an economic theory of intellectual property—efficiency, as Merges notes, might be the foundational principle, with nonremoval and proportionality two of the crucial midlevel principles.  The only principle that is missing from standard economic accounts is dignity, unless it is thought of in human welfare terms (which perhaps it should be).  But dignity plays a much smaller role in IP doctrine than the other three midlevel principles.  This is particularly true in the United States, where artists and creators have fewer moral rights than they do in European jurisdictions.  And it is true as well for patent law, where one will struggle to locate an important doctrine that appears to be grounded primarily in a concern for human dignity.  When it comes to dignity considerations in IP, it is not clear how great the need for justification really is.

Nor is it the case that IP doctrine is inconsistent with economic theory.  To be sure, there are some (perhaps many) doctrines that seem misguided from the position of economic theory.  But this will be true for all legal fields, including those, like antitrust, that are indisputably guided by economic thinking and economic thinking alone.  If there were not such holes and inconsistencies in the doctrine, there would be little for legal scholars to write about!  More importantly, if IP’s midlevel principles could be understood equally well as stemming from economic theory, then any doctrinal failings are attributable to errors in translating midlevel principles into doctrine, not a problem with economics as a fundamental IP precept.  So the issue is not doctrine, either.

The problem, as Merges correctly describes it, is that IP doctrine, as implemented by courts and other parties, has failed to advance the economic aims that it set out.  This is an empirical judgment, and quite possibly a correct one.  But what is the comparable standard by which a deontic conception of IP is to be judged?  What would it mean for IP doctrine in practice not to have properly advanced Lockean or Kantian ethics?  How could anyone tell?  The problem—or, more accurately, the advantage for Kant and Locke—is that those approaches are purely theoretical and do not generate testable predictions.  Economic theory has foundered on a set of tests that cannot be applied to the alternatives Merges proposes.

Rob Merges is absolutely right that an economic approach to intellectual property law has failed to deliver on its promise and should be rethought.  To take its place, he has accomplished something monumental, elevating deontic theory to a sustainable position as the foundation for intellectual property law.  But the terms on which he has lifted Kant and Locke do not entomb economic theory.  In the end this may be just as well.  It would be a shame if future scholars were to cease reading the terrific institutional economics articles that Merges wrote earlier in his career.

Thoughts on "Justifying Intellectual Property" from Wendy Gordon

Here is an initial post for the book club from Wendy Gordon, William Fairfield Warren Distinguished Professor, Boston University, and Professor of Law, BU School of Law:

Rob Merges’s new book book is an immense achievement.  Intellectually it is stunning, plus Rob is an amazing and appealing writer.

Not since Peter Drahos’s 1996 book, A Philosophy of IntellectualProperty, has someone attempted to bring together a plethora of philosophic perspectives on IP.  Rob adds to this panoptic philosophic view a sharp knowledge of economics, and he puts at the center an acute recognition of how much we need – and lack—crucial empirical evidence about the effects of IP.

Ironically, it’s Rob’s valuable focus on the need for better facts that fails him in the chapter on Rawls.  Rob argues that broad IP rights are consistent with giving Rawlsian priority to the worst off in society.  But the Rawls chapter is riddled with factual assumptions which, if empirically investigated, might well prove the opposite.

One could quibble on philosophic grounds with Rob’s interpretation of Rawls (details of quibble available on request), but even on Rob’s own terms it’s far from clear that the worst-off  benefit from the restraints that patent and copyright  impose on the use of inventions and works of authorship.

Book Club on "Justifying Intellectual Property"

Welcome to the Book Club on Robert Merges' Justifying Intellectual Property.  Joining us for the club will be:

• Oren Bracha, University of Texas School of Law
• John Duffy, University of Virginia School of Law
• Wendy Gordon, Boston University School of Law
• Justin Hughes, Benjamin N. Cardozo School of Law
• Jonathan Masur, University of Chicago Law School
• and our author, Robert Merges, University of California Berkeley School of Law

You can find the book at the usual places (Amazon, Barnes & Noble, Powell's Books), or get Chapter 1 instantly at SSRN. Thanks to our participants!

In praise of "American Girl"

My daughter turned seven last month and is in the deepest throes of an American Girl phase. This is not unexpected, since my niece went through the same thing five years ago, as have daughters of friends. What  admittedly has been unexpected is that this has not been a bad thing. The whole product line presents some very positive, intellectually engaging messages for young girls.

I have been especially surprised by the books, which we have been plowing through for the past several months (several of them lent to use by a friend who saved her now-grown daughter's collection). These essentially are works of historical fiction, focusing on a particular character living in a particular time and providing seven-year-old-level historical context and information. They are fairly well written by accomplished children's book authors (as opposed to the assembly line of underpaid people trapped in a basement who we are convinced write the Disney princess books). The young girls are smart, curious, engaged, and strong, without being too perfect. And the books take pains to be historically accurate (albeit at a seven-year-old level); for example, the books about a Nez Perce girl in the mid-19th century were written in consultation with an advisory board of academics and tribe leaders. Each book also includes a short "Looking Back" chapter at the end that discusses real life in that time; and some of these were unflinching about things like slavery, the treatment of Indians, and the Great Depression (again, at a seven-year-old level). They are pretty clearly liberal in orientation, although I obviously have less of a problem with that.

Most importantly, the whole thing has fed my daughter's historical and political curiosity, which is fun for me to watch and to talk about. Last night was Title IX and Watergate; two nights ago was Reconstruction. I may be enjoying it as much as she is.

Continuing the discussion: Koppelman's "Defending American Religious Neutrality"

A few weeks ago, Paul kicked off a discussion about Andy Koppelman's new book, Defending American Religious Neutrality, and posted Andy's introduction.  (Readers might also be interested in this short essay, The Many Paths to Neutrality, which Andy and I wrote, and which serves as the Introduction to our First Amendment Stories.)

I had a chance to "workshop" Andy's book when it was in draft, and have re-read it after its publication.  I admire it, and Andy, a lot.   

For starters, I appreciate his reminder that, maybe, things are not so bad.  Yes, it is true that the Court often makes a mess of things, certain Justices are prone to cringe-inducing displays of unwarranted self-confidence, and the threats to religious freedom, at home and abroad, are real.  Still, we have, as Koppelman notes, “been unusually successful in dealing with religious diversity” and, despite the fair and ample criticism directed at our First Amendment caselaw, it strikes me that our courts are “muddling through” reasonably well.

In addition, there are many points, claims, and observations in Andy’s book that strike me as sound and welcome.  He correctly criticizes and refutes those “radical secularists” who regard religion as “toxic and valueless” and who seem bent on its “eradication . . . from public life.”  He is right that the Constitution does permit – indeed, it invites – the accommodation of religion.  He helpfully amends John Rawls’s call for “civic friendship” with the reminder that the “path to actual civic friendship”
is not, in the real world, aided by rules-of-engagement that require the bracketing or translating of “comprehensive views”; the better way, instead, is to “tell each other what we [really] think and talk about it.”  He is wise to urge readers not to overstate
or obsess the difficulties involved in “defining” religion, because there is no single definition.  And, I think he is right that First Amendment doctrine, to the extent it contains a judicially enforceable “secular purpose” requirement, should focus on legislative outputs – that is, on what officials actually do and say – rather than on inputs, or on the supposed motives of legislators or religious commitments of voters.

Koppelman’s primary thesis is that “American religious neutrality is coherent and attractive.”  One question we might ask is whether the regime he describes is actually “neutral,” or is actually either the American regime or the “American ideal.”  My own impression is that the coherence and attractiveness of the regime Koppelman proposes and defends depends substantially on its not being – at least, not entirely – “neutral.”  This regime is one of neutrality “properly understood” or, it turns out, of non-neutrality.  The government is not required, by Koppelman’s “proper[]” understanding of neutrality to be religion-blind or indifferent to religion, and it is certainly not required to be leery of or hostile to it.  Instead, “American religious neutrality” permits governments and officials to regard religion – at a high level of generality – as a good thing, and to act accordingly.  The state is to be “silent about religious truth” but this silence may be accompanied or complemented by policies – like religion-based accommodations from generally applicable laws – that both reflect and communicate the view that “religion as such . . . [is] valuable”.

Maybe one way to put the matter is to say that the American religious-liberty regime aims to be “neutral” with respect to the truth of (most) religious claims precisely because it is not “neutral” – it does not aim to be neutral, it should not be neutral – regarding the good of religious freedom.  Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion.  It is not (only) what results from a program of conflict-avoidance or division-dampening.  It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution.  It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. 

So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.

Introduction to a Discussion: Koppelman on "Defending American Religious Neutrality"

Here's another piece of weekend reading. As Rick noted on this page a while back, our friend and colleague Andrew Koppelman has just published an excellent book on law and religion, Defending American Religious Neutrality. (Note that the Amazon page offers an excellent deal when you buy it with another particular book.) Here's what Steve Smith of San Diego has to say about it: "Neutrality has been the central but embattled ideal in the modern jurisprudence of religious freedom. Andrew Koppelman offers the most serious and sophisticated defense of that ideal now available. For anyone interested in these important debates, this book is not recommended reading: it is required." That seems right to me. It offers a wide-ranging and sophisticated explanation and defense of the role of neutrality in the American law of religious liberty, and even those of us who do not share all his views (and I think Andy has convinced me that he and I actually have a good deal of common ground) will find it a book to be reckoned with.

Andy has kindly offered an introduction to his book below and, God (or not God) willing and the creek don't rise, Rick and I should be posting some responses to the book in the next week or two, hopefully with some replies by Andy. We're grateful to have him. His post begins below and continues after the fold.

* * * 

The American law of freedom of religion is in trouble, because growing numbers of critics, including a near-majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality.  My new book, Defending American Religious Neutrality (Harvard, 2013), defends the claim, which unfortunately has become an audacious one, that American religious neutrality is coherent and attractive.

Two factions dominate contemporary discussion of these issues in American law.  One, whom I’ll call the radical secularists, tend to regard the law of the religion clauses as a flawed attempt to achieve neutrality across all controversial conceptions of the good – flawed because it is satisfied with something less than the complete eradication of religion from public life.  The other, whom I’ll call the religious traditionalists, think that any claim of neutrality is a fraud, and that law necessarily involves some substantive commitments.  They claim that there is thus nothing wrong with frank state endorsement of religious propositions: if the state is inevitably going to take sides, why not this one?  One side regards religion as toxic and valueless; the other is untroubled by the state’s embrace of an official religion.  Neither sees much value in the way American law actually functions.

Yet America has been unusually successful in dealing with religious diversity.  The civil peace that the United States has almost effortlessly achieved has been beyond the capacities of many other generally well-functioning democracies, such as France and Germany.  Even if the American law of religious liberty were entirely incoherent, it might still be an attractive approach to this perennial human problem.  There is, however, a deep logic to the law that its critics have not understood.

Prominent scholars of religion have ridiculed President-elect Dwight Eisenhower’s 1952 declaration:  “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.”  Eisenhower nonetheless revealed a deep insight into the character of American neutrality.  This book aims to recover that insight.

 

Contrary to the radical secularists, First Amendment doctrine treats religion as a good thing.  It insists, however – and here it parts company with the religious traditionalists - that religion’s goodness be understood at a high enough level of abstraction that the state takes no position on any live religious dispute.  It holds that religion’s value is best honored by prohibiting the state from trying to answer religious questions.

American religious neutrality has over time become more vague as America has become more religiously diverse, so that today (with the exception of a few grandfathered practices) the state may not even affirm the existence of God.  This kind of neutrality is not the kind of neutrality toward all conceptions of the good that many liberal political theorists have advocated, but it is the best response to the enormous variety of religious views in modern America.  It is faithful to the belief, held by the leading framers of the First Amendment, that religion can be corrupted by state support.

Defending American Religious Neutrality offers new answers to three questions:  What conception of neutrality is relied on in the interpretation of the Establishment Clause of the First Amendment?  Is it coherent?  Is it defensible?

     The First Amendment of the United States Constitution says “Congress shall make no law respecting an establishment of religion, or abridging the free exercise thereof.”  The interpretation of this provision has been controversial for a long time, and indeed may be ripe for revolution.  A growing number of writers, including several Supreme Court Justices, have argued that religion clause doctrine is both incoherent and substantively unattractive.  They propose to replace it with a new set of rules that are far friendlier to official endorsement of religion.

     If these proposals are adopted, the result would be heightened civil strife, corruption of religion, and oppression of religious minorities.  One proposal, for example, is to permit states to endorse general principles of Abrahamic monotheism.  Official religious pronouncements not only brand as outsiders anyone whose beliefs do not conform to the official line; they tend to produce religion of a peculiarly degraded sort.  If the state gets to discern God’s will, we will be told that God wants the reelection of the incumbent administration.  Another proposal is that religious activities should be eligible for direct funding so long as there is a plausible secular reason for doing so.  Such funding for religious entities, particularly when those entities are relied on to provide public services such as education, aid to the homeless, prison rehabilitation, or drug treatment, can easily lead to a situation where the only option is a religious one, and people are bullied into religious activities.  The most radical proposal would discard the requirement that every law have a secular purpose.  Some religious justification is available for nearly anything that the state wants to do to anyone.  Permitting such justifications would devastate many constitutional protections that have nothing to do with religion.

And this exorbitant price will have been paid for nothing. Present doctrine already allows for what the doctrine’s critics most value: state recognition of the distinctive value of religion. The law treats religion as something special in a broad range of legislative and judicial actions. What the state may not do—what the doctrine properly forbids it to do—is declare any particular religious doctrine to be the true one, or enact laws that clearly imply such a declaration of religious truth.

     There is, indisputably, a deep coherence problem in First Amendment law.  The Court has interpreted the First Amendment to mean that “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”  But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.”

          Accommodation of religion as such is permissible.  Quakers’ and Mennonites’ objections to participation in war have been accommodated since Colonial times.  Other such claims are legion.  Persons whose religions place special value on the ritual consumption of peyote or marijuana (or wine, during Prohibition) seek exemption from drug laws.  Landlords who have religious objections to renting to unmarried or homosexual couples want to be excused from antidiscrimination laws.  Churches seeking to expand sometimes want exemption from zoning or landmark laws.  The Catholic church wants to discriminate against women when ordaining priests.  Jewish and Muslim prisoners ask for Kosher or halal food.  These scruples have often been deferred to, and religious objectors have frequently been exempted from obligations that the law imposes on all others.

          There is considerable dispute about whether the decision when to accommodate ought to be one for legislatures or courts, but that debate rests on the assumption, common to both sides, that someone should make such accommodations.The sentiment in favor of such accommodations is nearly unanimous in the United States.  When Congress enacted the Religious Freedom Restoration Act (RFRA), which attempted to require states to grant such exemptions, the bill passed unanimously in the House and drew only three opposing votes in the Senate.  After the Supreme Court struck down the Act as exceeding Congress’s powers, many states passed their own laws to the same effect.  Many of those opposed to judicially administered accommodations, such as Supreme Court Justice Antonin Scalia, think that it is appropriate for such accommodations to be crafted by legislatures. 

   Each of these measures raises the same dilemma.  If government must be neutral toward religion, then how can this kind of special treatment be permissible? 

It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself.  Call this the free exercise/establishment dilemma.

This apparent tension can be resolved in the following way.  Begin with an axiom: The Establishment Clause forbids the state from declaring religious truth.  A number of considerations support this requirement that the government keep its hands off religious doctrine.  One reason why it is so forbidden is because the state is incompetent to determine the nature of this truth.  Another, a bitter lesson of the history that produced the Establishment Clause, is that the use of state power to resolve religious controversies is terribly divisive and does not really resolve anything.  State involvement in religious matters has tended to oppress religious minorities.  Finally, there is a consideration that is now frequently overlooked, but which powerfully influenced both the framers and the Justices who shaped modern Establishment Clause doctrine:  the idea that establishment tends to corrupt religion.

These considerations mandate a kind of neutrality.  The state may not favor one religion over another.  It also may not take a position on contested theological propositions.

     It is, however, possible, without declaring religious truth, for the state to favor religion at a very abstract level.  The key to understanding the coherence of First Amendment religion doctrine is to grasp the specific, vaguely delimited level of abstraction at which “religion” is understood.

     What in fact unites such disparate worldviews as Christianity, Buddhism, and Hinduism is a well-established and well-understood semantic practice of using the term “religion” to signify them and relevantly analogous beliefs and practices.  Efforts to distill this practice into a definition have been unavailing.  But the common understanding of how to use the word has turned out to be all that is needed.  Courts almost never have any difficulty in determining whether something is a religion or not. 

The list of reported cases that have had to determine a definition of “religion” is a remarkably short one.  The reference I rely on here, Words and Phrases, is one of the standard works of American legal research, a 132 volume set collecting brief annotations of cases from 1658 to the present.  Each case discusses the contested definition of a word whose meaning determines rights, duties, obligations, and liabilities of the parties.  Some words have received an enormous amount of attention from the courts.  Two examples, Abandonment and Abuse of Discretion, drawn at random from the first volume of this immense compilation, each exceed 100 pages.  Religion, on the other hand, takes up less than five pages.  The question of what “religion” means is theoretically intractable but, as a practical matter, barely relevant.  We know it when we see it.  And when we see it, we treat it as something good.

     American religious neutrality is studiedly vague about the good that it is promoting, and this may be a source of frustration to its admirers.  But there is wisdom in this vagueness.  Citizens do need to share an understanding of what is valuable. But when the details of this particular Valuable Something are so hotly disputed, the most effective way for the government to pay it reverence is just to shut up about it.

 

That's it, I'm done!?

Sad news: Philip Roth has announced his abandonment of writing and reading. I feel like this is like giving up breathing. I often think I'll have to be pulled out of the prawf job feet first, but I wonder if there's a point at which, like Roth, you just announce: Basta! 

Maybe Bill Miller's book, Losing It, will provide some solace.

The Lost Posner Book Reviews...

I'm a big fan, in the main, of both Richard and Eric Posner's book reviews in the New Republic, among other places.  Thanks to a pointer from Dave Lat on FB, I stumbled upon this selection of excerpts from the Elder's book reviews over at Kyle Graham's blog. Check it out :-)  Here's a funny send-up of what RAP would say about Moby Dick:

Fairly early in the text, it becomes clear that Ahab could maximize his returns by pursuing other whales, instead of Moby-Dick.  True, Ahab lost his leg to the creature, but that is a classic sunk cost. (Can you see why?) That Ahab foregoes other, better opportunities for oil and ambergris in his hunt for the white whale represents a mystery that the author never satisfactorily explains...

F-Words: Fairness and Freedom in Contract Law

I am participating in a online symposium on Concurring Opinions, where we are discussing Larry Cunningham's fantastic new book, Contracts in the Real World, and where you should check out the rest of the commentary.

As I read "Facing Limits," Larry's chapter on unenforceable bargains, I had to pause and smile at the following line:

People often think that fairness is a court's chief concern, but that is not always true in contract cases (p. 57).

I still remember the first time someone used the word "fair" in Douglas Baird's Contracts class. "Wait, wait," he cried, with an impish grin. "This is Contracts! We can't use 'the f-word' in here!"¹ Of course, Larry also correctly recognizes the flip side of the coin. If courts are not adjudicating contracts disputes based on what is "fair," we might think that "all contracts are enforced as made," but as Larry points out, "that is not quite right, either" (p. 57).

Pedagogically, Contracts in the Real World is effective due to its pairings of contrasting casebook classics, juxtaposed against relevant modern disputes. In nearly every instance, Larry does an excellent job of matching pairs of cases that present both sides of the argument. I don't mean to damn with faint praise, because I love the project overall, but I feel like Larry may have missed the boat with one pairing of cases.

As I mentioned, the chapter on Facing Limits is in part about the difficulty of balancing fairness, or equitable intuitions, against freedom of parties to be bound by their agreements. Larry pairs In re Baby M, a case where the New Jersey's highest court invalidated a surrogacy agreement with Johnson v. Calvert, a case where the California Supreme Court upholds such an agreement. As I discuss after the break, I'm troubled that the Court in Baby M could be on the wrong side of both fairness and freedom. 

Facing Limits on Surrogacy Agreements

In re Baby M was arguably the first case on surrogacy agreements to reach national prominence. The court found unenforceable a surrogacy agreement between William and Elizabeth Stern, who hoped to raise a child that Elizabeth could not bear, and Mary Beth Whitehead, who wanted to give another couple "the gift of life" and agreed to bring William's child, Baby M, to term. Mrs. Whitehead and her then-husband Richard were in tight financial straits, and the surrogacy deal promised $10,000, "on surrender of custody of the child" to the Sterns.

Once she gave birth, Mrs. Whitehead found it difficult to part with the baby girl she called Sara Elizabeth, but the Sterns planned to name Melissa. To avoid relinquishing the child, the Whiteheads fled to Florida with the baby. When Baby M was returned to the Sterns and everyone made it to court, the trial judge determined that the interests of the baby were best served by granting custody to the Sterns. The Supreme Court of New Jersey agreed with that assessment, but on its way to that conclusion, rejected the validity of the surrogacy contract itself, in which all parties stipulated, prior to the birth of Baby M, that it was in the child's best interest to live with the Sterns.

Unenforceability

The Supreme Court's decision ostensibly turned on the unenforceability of the contract because, even in America, "there are, in a civilized society, some things that money cannot buy" (p. 55). But the decision is full of language suggesting that, in the Court's opinion, Mrs. Whitehead didn't know what she was doing. In the very paragraph that the Court assumed that she could consent to the contract, the Court marginalized her capacity to consent. 

The Court bought into two tropes often trotted out by those who aspire to protect the poor from themselves: the coercive effects of money, and the inability of the poor to fully understand the consequences of their decisions. The Court was troubled that Mrs. Whitehead, "[t]he natural mother," did not "receive the benefit of counseling and guidance to assist her in making a decision that may affect her for a lifetime." The Court was perhaps suspicious she could not. After noting the distressing state of her financial circumstances, the Court posited that "the monetary incentive to sell her child may, depending on her financial circumstances, make her decision less voluntary."

Fairness and Freedom

It strikes me as unfair to conclude that a mother of two is incapable of considering what it might mean to give birth to a third. Holding the surrogate to the bargain can seem unfair at the difficult moment where she hands over the baby, but I struggle to see how it is any less unfair to allow the parents to invest their hearts and energy into planning for a baby that will come, but will not become theirs. 

Turning to the question of the coercive effect of money, the problem with paternalistic protections is they often protect the neediest from the thing they ostensibly need the most. Many interested parties find ways to make money on adoption and surrogacy. It's puzzling, if we are truly serious about protecting the needy, that we would protect them from also acquiring some of the money that we seem to assume they so desparately need.

Here's another way to make the same point: in the wake of Baby M, some states allow surrogacy contracts, and some don't. Hopeful parents who can afford to enter into surrogacy contracts will go to states, like California, where those contracts are enforced. Surrogacy providers who hope to make their money as an intermediary will focus on markets where their contracts will survive judicial scrutiny. Our potential surrogates, however, are more likely to be tied to the jurisdictions in which they reside, at least if the assumptions about poverty in the Baby M opinion are generalizable. So altruistic surrogates will be able to carry a child to term in every state, but those who desire to make a bargain can do so only in those states willing to recognize them. To me, that sounds neither free nor fair. 

Larry takes some comfort in the common law inquiry into the best interests of the child, and with that I take no issue. In a case where the contract and the child's interests are at loggerheads, it seems appropriate in the abstract for the best interests to be a heavy thumb on the scale, or even to trump the prior agreement. I'm just not sure that In re Baby M -- a case where the Court knocked out the contract even though the contract terms and best interests were essentially in line -- is a case where the value of the best interest test are best brought to light.

Cross-posted at Concurring Opinions and ContractsProf Blog.

1 I may have slightly dramatized this exchange, although my classmates assure me I did not invent it from whole cloth.

 

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.

Postcards from the Front

I've been reading Paul Fussell's The Great War and Modern Memory.  (Fussell died earlier this year.  The Great War is the book that made his academic reputation.  Here's Slate on it and Fussell).

It's one of the most amazingly original academic books I've read--a terrific blend of literary criticism, cultural history, and military history that traces how World War I transformed the way we think, evidenced through the evolution of language and letters from 1914 to the 1920s.

It also has some darkly telling vignettes, like this one, from a section on the World War I-era growth of impersonal "form rhetoric":

If a man was too tired to transcribe the cliches of the conventional phlegmatic letter, he could always turn to the famous Field Service Post Card. 

The Card read:

NOTHING is to be written on this side except the date and signature of the sender.  Sentences not required may be erased.  If anything else is added the post card will be destroyed.

--------------------

I am quite well

I have been admitted into hospital

    {sick / wounded} and {am going on well / and hope to be discharged soon}

I am being sent down to the base

. . .

I have received no letter from you {lately / for a long time}

{Signature}

The Field Service Post Card was most commonly . . . sent--with everything crossed out except "I am quite well"--immediately after a battle which relatives might suspect their soldiers had been in.  . . . 

The implicit optimisim of the post card is worth noting--the way it offers no provision for transmitting news like "I have lost my leg" or "I have been admitted into hospital wounded and do not expect to recover" . . . .  One paid for the convenience of using the post card by adopting its cheerful view of things, by pretending to be in a world where belated mail and a rapidly healing wound are the worst that can happen, and where there is only one thinkable direction one can go--to the rear.

 

Legal Education in the Digital Age

With the latest news of U-Va. joining a consortium of schools  promoting online education, it seems only a matter of time before law schools will have to confront the possibility of much larger chunks of the educational experience moving into the virtual world.  Along with Law 2.0 by David I.C. Thomson, there is now Legal Education in the Digital Age, edited by Ed Rubin at Vanderbilt.  The book is primarily about the development of digital course materials for law school classes, with chapters by Ed Rubin, John Palfrey, Peggy Cooper Davis, and Larry Cunningham, among others.  The book comes out of a conference hosted by Ron Collins and David Skover at Seattle U.  My contribution follows up on my thoughts about the open source production of course materials, which I have previously written about here and here.  You can get the book from Cambridge UP here, or at Amazon in hardcover or on Kindle.

One question from the conference was: innovation is coming, but where will it come from?  Some possibilities:

• Law professors
• Law schools and universities
• Legal publishers
• Outside publishers
• Tech companies such as Amazon or Apple
• SSRN and BePress
• Some combination(s) of these

I think we all agree that significant change is coming down the pike.  But what it ultimately will look like is still very much up in the air.  What role will law professors play?

Two Resources on Corporate Law

In advertising, repetition is often critical to success.*  That's why I'll repeat what Stephen Bainbridge and Gordon Smith have already told you -- check out the new Research Handbook on the Law and Economics of Corporate Law, edited by Claire Hill and Brett McDonnell.  You can find an introduction from the editors here.  Interestingly, the Amazon price is $10 more than the publisher's price, so this is one instance where buying directly from the publisher pays off.

If you're looking for some nice free downloads, consider Seattle University Law Review's symposium issue for the Berle III conference.  (The image above is from the first Berle conference, which can be found here; Berle II is here.  Berle IV was held in London last month.)  Chuck O'Kelley has organized the ongoing set of Berle conferences, and Berle III centered around the theory of the firm in the corporate law context.  There are sixteen papers to choose from, and I very much enjoyed hearing from the terrific group of folks that Chuck had on hand.

* Note: apparently, repetition is useful in the "wearin" phase, but actually becomes harmful to the message when the "wearout" phase is reached.  See Campbell & Keller (2003), Brand Familiarity and Advertising Repetition Effects.  I'm hopeful that we're still in the "wearin" phase.

The Virtual Honesty Box

As a fan of comic book art, I'm often thrilled to encounter areas where copyright or trademark law and comic books intersect. As is the case in other media, the current business models of comic book publishers and creators has been threatened by the ability of consumers to access their work online without paying for it. Many comic publishers are worried about easy migration of content from paying digital consumers to non-paying digital consumers. Of course, scans of comics have been making their way around the internet on, or sometimes before, a given comic's onsale date for some time now. As in other industries, publishers have dabbled with DRM, and publishers have enbraced different (and somewhat incompatible) methods for providing consumers with authorized content. Publishers' choices sometimes lead to problems with vendors and customers, as I discuss a bit below.

While services like Comixology offer a wide selection of content from most major comics publishers, they are missing chunks of both the DC Comics and Marvel Comics catalogues. DC entered a deal to distribute 100 of its graphic novels (think multi-issue collections of comic books) exclusively via Kindle. Marvel Comics subsequently struck a deal to offer "the largest selection of Marvel graphic novels on any device" to users of the Nook. 

Sometimes exclusive deals leave a bad taste in the mouths of other intermediaries. DCs graphic novels were pulled from Barnes & Noble shelves because the purveyor of the Nook was miffed. Independent publisher Top Shelf is an outlier, offering its books through every interface and intermediary it can. But to date, most publishers are trying to make digital work as a complement to, and not a replacement for, print.

Consumers are sometimes frustrated by a content-owner's choice to restrict access, so much so that they feel justified engaging in "piracy." (Here I define "piracy" as acquiring content through unauthorized channels, which will almost always mean without paying the content owner.) Some comics providers respond with completely open access. Mark Waid, for example, started Thrillbent Comics with the idea of embracing digital as digital, and in a manner similar to Cory Doctorow, embracing "piracy" as something that could drive consumers back to his authorized site, even if they didn't pay for the content originally.

I recently ran across another approach from comic creators Leah Moore and John Reppion. Like Mark Waid, Moore and Reppion have accepted, if not embraced, the fact that they cannot control the flow of their work through unauthorized channels, but they still assert a hope, if not a right, that they can make money from the sales of their work. To that end, they introduced a virtual "honesty box," named after the clever means of collecting cash from customers without monitoring the transaction. In essence, Moore and Reppion invite fans who may have consumed their work without paying for it to even up the karmic scales. This response strikes me as both clever and disheartening.

I'll admit my attraction to perhaps outmoded content-delivery systems -- I also have unduly fond memories of the 8-track cassette -- but I'm disheartened to hear that Moore and Reppion could have made roughly $5,500 more working minimum wage jobs last year. Perhaps this means that they should be doing something else, if they can't figure out a better way to monetize their creativity in this new environment. Eric Johnson, for one, has argued that we likely don't need legal or technological interventions for authors like Moore and Reppion in part because there are enough creative amateurs to fill the gap. The money in comics today may not be in comics at all, but in licensing movies derived from those comics. See, e.g., Avengers, the.

I hope Mark Waid is right, and that "piracy" is simply another form of marketing that will eventually pay greater dividends for authors than fighting piracy. And perhaps Moore and Reppion should embrace "piracy" and hope that the popularity of their work leads to a development deal from a major film studio. Personally, I might miss the days when comics were something other than a transparent attempt to land a movie deal.

As for the honesty box itself? Radiohead abandoned the idea with its most recent release, King of Limbs, after the name-your-price model adopted for the release of In Rainbows had arguably disappointing results: according to one report, 60% of consumers paid nothing for the album. I can't seen Moore and Reppion doing much better, but maybe if 40% of "pirates" kick in a little something into the virtual honesty box, that will be enough to keep Moore and Reppion from taking some minimum wage job where their talents may go to waste.

Keeping Tact ... Intact

I’m delighted to return to PrawfsBlawg. During this month’s visit, I plan to focus on topics that are included in my second book, Advocacy to Zealousness: Learning Lawyering Skills from Classic Films (Carolina Academic Press, 2012). I thought I’d start with something about the skill of tact, and how its presence or absence impacts the teaching, study, and practice of law. In the not-too-distant past, when communication methods were limited to in-person meetings, telephone calls, and written correspondence, there were still myriad minefields to maneuver around to avoid the commission of communication faux pas. Rude or terse statements (made intentionally or unintentionally) could lead to hurt feelings or heated arguments, but, absent national print or television coverage, the unfortunate words and misunderstandings were limited to condensed areas, and relationships could be mended much quicker. Today, words can spread around the world in a split second, and private resolutions are harder to come by. What we say, and how we say it, has permanence, presence, and persistence. And, sadly, the least tactful statements tend to last the longest. It’s this new sense of permanence of words and statements that makes it crucial to learn to exercise great care in their use and delivery. Law professors are charged with preparing students for the practice of law, and tact is an essential skill for any lawyer. However, times have changed, and people are generally less tactful, which can pose challenges in guiding students in this delicate area. How do you address tact in the classroom and among colleagues? How do we keep tact … intact?

In the mail

I don't get to read books as much as I'd like, even in the summertime, but I wanted to bring a few new books to your attention, since I think they will be of wider interest, and perhaps you'll have good fortune to get them to the front of your reading queue.

First, Jeremy Waldron has reworked his Holmes Lectures and published them as a book entitled, "The Harm of Hate Speech." Waldron is one of my favorite legal philosophers and in this book, he takes on American exceptionalism having to do with free speech laws that protect bigots from censure, tort liability or punishment. I'm looking forward to seeing what he has to say.

Second, Eduardo Penalver, who regularly guestblogs here, has a new book on property theory that he has written with his colleague Gregory Alexander. It's called, suitably enough, An Introduction to Property Theory, and you can download the introduction here on SSRN and buy it here.

Last, for now, is a book by Princeton historian, Hendrick Hartog, called Someday All This Will Be Yours. Appropriately enough for a post-Mother's Day blog post, it's a modern history of inheritance and old age! If you have Prufrock on the brain, or are simply interested in the construction of contemporary familial mores, you will want to read this book. In the meantime: I grow old, I grow old, I shall wear the bottoms of my trousers rolled.

Happy reading!

In Case You Missed It: Michelle Alexander on the Colbert Report

Michelle Alexander (Ohio State) discussed her compelling new book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness" (New Press), on last night's edition of the Colbert Report.

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Michelle Alexander
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive

One of my favorite parts of the interview: Colbert asking, if people of color do not use drugs at higher rates than whites, "why didn't David Simon set The Wire in Greenwich, Connecticut?" Congratulations to Michelle on her wonderful appearance and on her groundbreaking work.

Upcoming Conference: Implicit Racial Bias Across the Law

Having browsed through the 2012 Entry Level Hiring Report, I am delighted that so many talented individuals will be joining our ranks as tenure-track law professors.  I look forward to meeting, learning from, and collaborating with the newest members of our community.  I am particularly pleased to see several names on the list, including that of Robert J. Smith.  Rob -- who worked under Charles Ogletree at Harvard's Charles Hamilton Houston Institute for Race and Justice before serving as a DePaul VAP this academic year -- will be heading to UNC School of Law this fall.

When I went on the market last year, I talked to a number of people who were instrumental in helping me secure a tenure-track faculty position.  Rob was one of them.  In addition to providing me with guidance and support, he introduced me to Justin Levinson (Hawaii).  Justin single-handedly put me in the right frame of mine to succeed at the AALS Conference.  Having completed my first year at New Mexico, I very much appreciate, and am honored by, the opportunity to be a law professor.  I can honestly say that I may not have had this position were it not for Rob and Justin's generous help. 

While some first-year law professors, myself included, hope to escape their first year on the job without asking anyone where the bathroom is and without setting their law school on fire, Rob, by contrast, is already doing amazing things.  Specifically, Rob and Justin co-edited a book, "Implicit Racial Bias Across the Law" (just published by Cambridge University Press), that explores implicit racial bias in a number of major legal contexts, such as capital punishment, education, and intellectual property.  Next month, the Charles Hamilton Houston Institute will be hosting a conference centered around the book.  I encourage readers to consider attending.  Details are below the fold:

Implicit Racial Bias Across the Law: A Book Conference

Date: Thursday, June 14, 2012, 9:00 AM
Location: Austin Hall, Ames Courtroom, Harvard Law School
Address: 1515 Massachusetts Ave., Cambridge, MA

Speakers include: Michele Goodwin (Minnesota), Melissa Hart (Colorado), Jerry Kang (UCLA), Ogletree (Harvard), Song Richardson (American), Eli Wald (Denver), Eric Yamamoto (Hawaii), and current and former federal judges.

From the conference web page:

"Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This conference considers what emerging social science can contribute to the discussion of race in American law, policy, and society. The conference will explore how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, the conference, designed to coincide with the launch of the book “Implicit Racial Bias Across the Law”, examines both the continued subordination of historically disadvantaged groups and the legal system's complicity in the subordination.

"The conference will bring together scholars, judges, practitioners, and community leaders to explore the issues surrounding implicit racial bias in law and policy. It will begin with a compelling overview of the social science. What does science teach us about automatic biases? And what do we still not know? Leaders in the areas of criminal justice, housing law and policy, education, and health care will then present overviews of the impact of implicit bias in their fields. Attendees will hear federal judges’ and leading scholars’ perspective on implicit bias claims in the courtroom and hear experts’ assessment of the future of implicit bias in the law. A lively afternoon session will include simultaneous break-out sessions and roundtable discussions of specific implicit bias related topics. Audience participation will be welcomed and encouraged. The conference will close with a discussion of setting a forward looking and collaborative implicit bias agenda."

Those interested may RSVP for the conference here:

Interactive Casebooks

Recently I learned that I'll be teaching Copyright law for the first time, a circumstance that launched my search for casebook. One of the ones that I considered was Brauneis and Schechter's Copyright: A Contemporary Approach, which is an interactive casebook just published by West.  The book is released in a paper format, along with a one-year subscription to an electronic version of the book. Prawfs using a West/Westlaw password can obtain access to the electronic version.

The authors used the electronic format of the book nicely. I liked the links to the subject matter of the cases, such as clips of songs, images and the like. For example, one link which allowed me to play the video game that was the subject of Williams Electronics v. Artic Int'l.  The links to the statutory text were particularly useful.

Although I ultimatley didn't end up going with this one (at least this year), I found the format helpful and intriguing, particularly for courses where there are strong visual components.  If you've used any of the interactive casebooks in your courses, your feedback about your experience would be very helpful.

"In the Whirlwind"

I received from the library today my hot-off-the-presses copy of my teacher Robert Burt's new book, In the Whirlwind.   I'm really looking forward to it.  Here's some blurb-age:

God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.

In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.

Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.

Trayvon Martin and Florida's "Stand Your Ground" Law

In the wake of the tragic killing of Trayvon Martin in Florida, there seems to be a lot of misinformation about Florida's so-called "Stand Your Ground" law which critics are pointing to as evidence that such laws allows killing with impunity.

Some say that the "Stand Your Ground" law makes it exceptionally hard to win a conviction. First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. Moreover, the prosecution often has a really good witness in a homicide case: the defendant himself, if the police have arrested and interrogated him, and whose statement often will have material discrepancies with his trial testimony, assuming he testifies (and if a defendant claims self-defense and doesn't testify, the jury will hold it against him, no matter how much we tell them not to).

So what are we left with that distinguishes Florida's law? Well, obviously there is the "stand your ground" provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. That is why Anthony Sebok wrote in 2005 that it is "unlikely . . . that this change will change outcomes in particular cases."

So what is truly distinctive about Florida's "Stand Your Ground" law? It is this: while self-defense conventionally is just that -- a defense, to be raised at trial -- self-defense under the Florida law acts as an immunity from prosecution or even arrest. Section 776.032 of the Florida Statutes provides that a person who uses deadly force in self-defense "is immune from criminal prosecution." This odd provision means that a person who uses deadly force in self-defense cannot be tried, even though the highly fact-intensive question of whether the person acted in self-defense is usually hashed out at trial. The law thus creates a paradox: the State must make a highly complex factual determination before being permitted to avail itself of the forum necessary to make such a determination.

Not only that, Section 776.032 provides immunity from arrest unless the police have "probable cause that the force that was used was unlawful." Again, the law creates a Catch-22: police cannot arrest the suspect unless they have probable cause, not just to believe there was a killing, but also that the killing was not in self-defense; and where, as is often the case, the defendant is the only living witness to the alleged crime, the police likely will not be able to form probable cause without interrogating the suspect.

The Trayvon Martin case demonstrates the flaws in Florida's "Stand Your Ground" law. But let's not lose focus over what exactly those defects are, and they are not in the decision to abrogate the common-law duty to retreat, over which reasonable people can disagree and have for decades. No, the defect in the law is in the odd provisions that grant immunity from prosecution and even arrest, preventing the machinery of criminal justice from resolving whether the self-defense claim is a valid one.

Book Club on "Cultivating Conscience": Wrap-Up

Many thanks to Adam Benforado, Chad Flanders, Brett McDonnell, Tom Ulen, Molly Wilson, and especially our author Lynn Stout for an engaging and thoughtful book club on Cultivating Conscience.  I hope the club will be a resource for folks in the future who are reading the book for research, for class, or for general enlightenment.

Here's a wrap-up of all the posts for the club:

• Adam Benforado: Might Cultivating Conscience Perpetuate Injustice?
• Brett McDonnell: The Ambiguity of Conscience and the Prisoners' Dilemma
• Chad Flanders: Sympathy for the Devil?
• Matt Bodie: "Cultivating Conscience" for Contracts
• Lynn Stout: Whether good or not, conscience exists and can be used as tool or weapon
• Molly Wilson: Some Thoughts on Lynn Stout's "Cultivating Conscience"
• Lynn Stout: Matt and Molly on Conscience
• Tom Ulen: Yes to "Cultivating Conscience" But More, Please

And here are some places you can pick up the book:

• Princeton University Press
• Amazon
• Amazon Kindle
• Barnes & Noble
• B&N Nook

Thanks again to all our participants!

"Cultivating Conscience" for Contracts

One of the biggest questions for me coming out of "Cultivating Conscience" is whether or not legal scholars can adapt the existing law & economics "utility-maximizing" framework to our new understandings of human behavior.  Jolls, Sunstein & Thaler imported the psychological work on heuritics and biases into the existing L&E framework through the nomenclature of "behavioral law and economics."  They sought to adapt, rather than replace.  But it seems to me that other strains of law & psychology research, such as the scholarship on procedural justice by Tom Tyler and others, call the entire framework into question.  If we are actually motivated by fairness, rather than utility, can we just label the taste for fairness as a type of utility?  Or do we have start over?

Stout states in her conclusion: "It would be a grave mistake to put down this book thinking . . . that the homo economicus model should not be taught in our schools and universities . . . . Rather, the message is that the homo economicus model is not the only model of of human behavior that should be taught."  (P. 252).  This statement seems at first a conciliatory gesture -- a recognition of the value of the law & economics framework.  At the same time, however, I think it is a rather audacious move, because it heralds the creation of another model of human behavior.  What is this other model?  Is there only one, or more?  Stout gets us started by focusing on the role of conscience in our behavior and demanding that conscience get accorded its proper role.  But if we are truly creating a new paradigm, much work remains to be done.

Of course, the immediate L&E move is to incorporate conscience -- or, perhaps, a utilitarian taste for fairness -- into the existing L&E model.  And so we see this in the realm of contract.  Stout's chapter on contract law focuses on incomplete contracts and the role that conscience plays in filling out their terms.  As Stout acknowledges throughout her chapter, there has been a lot of economics/law & economics research about how to avoid opportunism in incomplete contracts.  Stout suggests a greater role for conscience in these contracts by prompting contractual partners to reveal their prosocial preferences ahead of time, making room for prosocial behavior in courts' enforcement of these contracts, and even giving"spite" its due.

It is not clear, however, whether Stout's reforms fall outside the traditional L&E model.  Consider, for example, Judge Posner's law and economics defense of a rather robust version of contractual good faith in Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 593-95 (7th Cir. 1991):

So we must consider the meaning of the contract duty of “good faith.” . . . The duty of honesty, of good faith even expansively conceived, is not a duty of candor. . . . But it is one thing to say that you can exploit your superior knowledge of the market . . . . It is another thing to say that you can take deliberate advantage of an oversight by your contract partner concerning his rights under the contract. Such taking advantage is not the exploitation of superior knowledge or the avoidance of unbargained-for expense; it is sharp dealing.

. . .[C]onduct that might not rise to the level of fraud may nonetheless violate the duty of good faith in dealing with one's contractual partners and thereby give rise to a remedy under contract law. . . .This duty is, as it were, halfway between a fiduciary duty (the duty of utmost good faith) and the duty merely to refrain from active fraud. Despite its moralistic overtones it is no more the injection of moral principles into contract law than the fiduciary concept itself is. It would be quixotic as well as presumptuous for judges to undertake through contract law to raise the ethical standards of the nation's business people. The concept of the duty of good faith like the concept of fiduciary duty is a stab at approximating the terms the parties would have negotiated had they foreseen the circumstances that have given rise to their dispute. The parties want to minimize the costs of performance. To the extent that a doctrine of good faith designed to do this by reducing defensive expenditures is a reasonable measure to this end, interpolating it into the contract advances the parties' joint goal.

 The contractual duty of good faith is thus not some newfangled bit of welfare-state paternalism or (pace Duncan Kennedy, “Form and Substance in Private Law Adjudication,” 89 Harv. L. Rev. 1685, 1721 (1976)) the sediment of an altruistic strain in contract law . . . .

Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 593-95 (7th Cir. 1991).  Judge Posner's defense of good faith might seem less remarkable if his vision for it were not so strong.  But in Market Street, the Court essentially requires a contractual party (A) to inform the other party (B) about a particular contractual clause if A thinks B has forgotten about it.  Intent is key; if A knows B is taking an action that B would not take if B remembered the clause, A has an obligation to tell B.  If A doesn't know, then there's no obligation.

That's a rather surprising result to me, especially given that in the actual case, A is a relatively small investing group and B is a huge pension fund which should be able to take care of itself.  And it raises the question: does prosocial behavior have a role in law & economics?  I think Judge Posner would certainly think so, and he would justify it as what the parties would have negotiated for, had they had the foresight/ability to do so.  If that's the case, then maybe "Cultivating Conscience" will simply fill out our existing understandings of the rational actor, rather than challenging that framework itself.  But then how far can homo economicus take us, if he ultimately has a conscience?

Might Cultivating Conscience Perpetuate Injustice?

Was this book written especially for me? 

I’ve had that thought before: reading, say, The Catcher in the Rye at age 14 and sensing something very familiar in Holden Caulfield’s voice, almost feeling it in my own throat.  But it is rare these days—especially when I’m flipping pages in my capacity as a law professor.  The type of research I do (at the intersection of law and psychology) and the way I teach courses like business organizations (offering up and then tearing down a neoclassical economic perspective) leave me sometimes feeling a bit out on my own.

Lynn Stout’s new book, Cultivating Conscience, however, suggests that I’m not as alone (or crazy) as I might sometimes fear.

On nearly every page of the book, I came across something that I have taught in one of my classes, written about, or pondered in a quiet moment.  I, too, have drawn insights from the work of Stanley Milgram in my scholarship, delved into research on why people “cheat” with my students, and wandered into the worlds of game theory and evolutionary psychology.  I share many of the conclusions that Stout draws, from those at the core of the book’s message (e.g., “Outside anonymous markets . . . the assumption of rational selfishness may be of questionable value in helping us address social problems like failing schools, rising crime, poor medical care, political corruption, or CEO malfeasance.” (246)) to those that are slightly more peripheral (“[W]e should have different legal rules for natural persons and for corporations.” (171)). 

Yes, I am somewhat biased, but I feel confident that even with a truly objective pair of eyes, I would have reached the same ultimate judgment: this is an important book of significant and lasting value.  It is thought-provoking, nimble, and engaging.  The writing is sharp and the examples are lively (e.g., I particularly liked the notion that “litigation in relational contract cases” can resemble “the medieval practice of trial by combat” (182)).  I suspect that even those who come to Cultivating Conscience as deep skeptics will find it to be a rewarding read.  It’s worth us all spending more time to consider the incongruity between the rational actor model and how real humans behave, the incredible power of conscience on our actions, and the ways in which “unselfish prosocial behavior” may be encouraged in society.

Perhaps because I feel so close to a lot of the material, I did occasionally disagree with Stout on small matters.  For instance, I think at points, the law and economics movement is portrayed as more homogeneous than it actually is (e.g., as I’ve suggested with Jon Hanson, even at its origin, Guido Calabresi and Richard Posner offered quite different paths forward) and occasionally the economic arguments are depicted as more flimsy than they actually are (e.g., I don’t think that punitive damages pose as significant a challenge to deterrence theory as Stout implies when one factors in the probability of a harm being detected).  At other points, I think Stout might have pushed harder on why law and economics has been so dominant in legal academia over the last few decades.  She is right to focus on its “appealing scientific patina” (44) and the fact that people “tend not to notice unselfish prosocial behavior” (44) (which might undermine the rational actor model), but it might have been worth also emphasizing more directly that law and economics provides a vision of ourselves that is both intuitive and affirming, that it is a model that benefits those at the top of society, and that it has been actively promoted by those both outside academia (e.g., think tanks like the American Enterprise Institute) and within (e.g., through the Olin Foundation, which has donated millions of dollars to top law schools to support scholars in this area).

These minor points to the side, I think that Stout’s overall message is compelling: “the homo economicus model is not the only model of human behavior that should be taught. . . . [and] material incentives are not the only tools we should use to change behavior . . . .” (252)  I could not agree more. 

Given my strong affinity for Cultivating Conscience, it is, thus, rather difficult to provide the grist for a good blog discussion.  I think Stout has hit the nail squarely on the head and I don’t want to distract from my overall message: this is a great book.

That said, if I were to choose one area where I think Stout and I might diverge on a more fundamental level, it’s my concern that cultivating conscience might not actually promote fairness and justice.  My worry is that encouraging “unselfish prosocial behavior” may merely reinforce the status quo and protect the most privileged in society.

Take the story of Franco Gonzales, the man who returned $203,000 that he found in a bag that fell out of an armored truck.  Stout uses the example to open the book and returns to it at several points as an example of the marvelous nature of conscience.  She also uses Franco to show that a person can be moral and virtuous in one area of his life, and not in another: Franco, it turns out, is an immigrant, who is living illegally in the United States.  My initial reaction was to feel very heartened by Franco’s “moral” decision to return the money, but as I thought about it more I became unsure.  Does the moral dictate that Franco call the police and turn over the cash he found actually promote justice?  How about the moral dictate that he not enter the United States illegally or that, once there, he turn himself in to the authorities for deportation?  

It may have been conscience that prevented Franco from keeping the $203,000, but why was that the optimal or fair outcome for anyone other than the owner of the $203,000?  Franco was extremely poor (he was a dishwasher in a Chinese restaurant, with “little or no formal education or savings” (234)) and, if he had kept the money, we learn from Stout’s description, he would have sent a large chunk of the money to his “mother, who lived in a farming village in Mexico” (3) and worked as a house cleaner (234).  Given that the money fell out of an armored truck, it seems reasonable to assume that it belonged to a large bank, which was insured by a large insurance company.  A $203,000 loss to the bank or insurance company would have been nothing—a rounding error on the CEO’s salary—but for Franco and his relatives, it might have made all the difference in the world. 

Similarly, in Stout’s account, it should have been conscience that prevented Franco from illegally entering (and remaining) in the United States.  Indeed, if his conscience had been properly cultivated in this regard he wouldn’t have broken the law.  But would this be the just outcome? 

The definition of “unselfish prosocial behavior” is extremely malleably and, to a large extent, is set by those with power, wealth, and influence.  In a society with slavery, it can be “selfish antisocial behavior” to run away from your slave owner, depriving him of his property.  In a society in which women are second class citizens, it can be “selfish antisocial behavior” for a woman to drive a car, show her ankles, or go to college.  I don’t dispute Stout’s claim that “[j]ust as thin and fragile reeds can be woven together to make a basket that is strong enough to carry a heavy load, when many small acts of restraint and consideration on the part of many individuals are woven together, they form a peaceful and prosperous society.” (61)  The problem is that such a society may be deeply unjust and the basket weave itself may make it very hard for those born without rights, property, and respect to gain any of those things.  Indeed, it may be their own consciences that prevent those at the bottom from gaining equal footing.

Book Club on "Cultivating Conscience" Begins Today

Our book club on Lynn Stout's "Cultivating Conscience: How Good Laws Make Good People" begins today.  You can find an introduction to the book, author, and club participants here.  We are looking forward to the posts from our participants and your comments.

Reading list suggestions for Crim Students

A student of mine asked me recently about books that give an inside feel of what it's like to be a lawyer in the criminal justice system. I thought I'd crowdsource and invite you to weigh in. 

Off the top of my head, I could think of a few. I haven't read them all or even many of them, so perhaps I should add them to my Amazon wish list...feel free to add more suggestions in the comments.  

David Feige, Indefensible

John Kroger, Convictions

Dershowitz, The Best Defense

Abbe Smith, Case of a Lifetime: A Criminal Defense Lawyer's Story

Kevin Davis, Defending the Damned 

Stephen Bogira, Courtroom 302

 

Book Club on "Cultivating Conscience"

I'm happy to announce that on January 30 & 31, Prawfs will be hosting a book club for Lynn Stout's "Cultivating Conscience: How Good Laws Make Good People."  Lynn is the Paul Hastings Professor of Corporate and Securities Law at the UCLA School of Law, and she is internationally respected for her work on corporate governance, securities law, and financial products.  In "Cultivating Conscience," she applies the principles from many of her works in business law to a broader spectrum of human behavior.

Joining us for the club will be, along with Lynn and myself:

• Adam Benforado, Assistant Professor, Earle Mack School of Law, Drexel University
• Chad Flanders, Assistant Professor, Saint Louis University School of Law
• Brett McDonnell, Professor of Law and Solly Robins Distinguished Research Fellow, University of Minnesota Law School
• Tom R. Tyler, Professor of Law and Psychology, Yale Law School
• Thomas S. Ulen, Swanlund Chair Emeritus, University of Illinois at Urbana-Champaign, and  Professor Emeritus, University of Illinois College of Law
• Molly J. Walker Wilson, Associate Professor, Saint Louis University School of Law

I'm very excited to have such a great set of participants.  Hope you can join us for the Club.

Holiday Gift List for Your Favorite Criminal Law Theorist

Not long ago, the philosophy of criminal law and punishment was thought to be a bit of a dead end. Happily, that has not been true for at least the last 25 years, and indeed, now the problem might be that there is too much to read in this area.

Oxford University Press continues to exacerbate that problem. Indeed, in just the last few months, I have received the following three volumes, all just recently published:

Retributivism Has a Past: Has It a Future? (Ed. by Michael Tonry)

The Oxford Handbook of Philosophy of Criminal Law (edited by Deigh and Dolinko)

Philosophical Foundations of Criminal Law (edited by Duff and Green)

These are in addition to the volume that we just celebrated at St. Johns' earlier this month, Mark D. White's edited collection on Retributivism: Essays on Theory and Policy (OUP 2011 also).

I hope to dip into or even immerse myself in these waters over the coming months. I suspect all these volumes will provoke thought and move the discussions forward. But if I'm wrong about that, you'll read about those reactions here :-) In the meantime, I invite OUP to lower the price tags. All of these volumes are priced well above what normal people would be willing to spend on books, making these the preserve of law and philosophy libraries. Alas.

 

 

Kahneman Profile/Review

If you are at all interested in behavioral law and economics, you will be interested in Michael Lewis's profile of Daniel Kahneman, which includes a review of his new book, Thinking, Fast and Slow.

Humanity's Law

Just wanted to put a quick link to the cool book club recently held over at Opinio Juris regarding Ruti Teitel's new book, Humanity's Law. Participants include Joanne Mariner; Bill Burke-White; and Ralph Wilde. Here's how Ruti explained the origins and argument of the book:

I have been following the relationship of law to post conflict and political transition for many years now.  The puzzle that occasioned this book was the apparently expanding role of law in periods of conflict, and the way the law at issue departed from traditional international law and its traditional distinctions between war and peace, international and domestic law, and focus on state security, to a shift in focus and  new emphasis on the  protection of human  security.

In this book, I trace this development historically and through illustrations involving conflicts in diverse regions, showing that the overarching legal framework which governs this new normativity draws from international human rights law, the law of war (its two strands) and international criminal law.

I argue that just as the human has become the subject of protection, so too it is the subject of enforcement, although this understanding can also result in greater duties for the state regarding as we have seen in recent legal judgments in number of areas, from awards of reparations for abuses committed in and out of conflict and often after the passage of time to identifying responsibility in the counter terror campaign.

A host of controversies ensue  from the normative, what principles ought guide the new responsibility to protect? 

To the question of how largely our state based institutions can operationalize  global engagement? The emergence of humanity law and its domination in many contexts of conflict lead to a number of hard questions that need to be tackled directly.  For example:  Have criminal trials far from the scene of conflict made it more not less difficult to heal old grievances, for example in the Balkans? How about the intervention in Libya?  Did the international legal community jump the gun in threatening Ghadaffi and his family with criminal indictments, taking off the table options such as amnesties or exile that might have led to an earlier and less bloody regime change in Libya?   Have the competing allegations of war crimes and humanitarian violations made in harder rather than easier to have meaningful peace talks between Israel and Palestine, distracting from the underlying political claims at issue?  I look forward to hearing your views.

Global Justice and Medical Tourism

Over the last few years, when I have not been working on bioethical issues relating to reproduction and reproductive technologies, I have been working on a different project relating to medical tourism – the travel of patients from one country (the “home country”) to a foreign country (the “destination country”) for the primary purpose of getting health care.  I have done three major law review articles on the subject (and a few other bioethics and medical journal articles). The first law review article focued on quality of care and medical malpractice recovery.  The third, which is forthcoming in the Cornell L. Rev, focuses on circumvention tourism -- patients who travel abroad for the purpose of circumventing a home country restriction on access, such as in the case of abortion, assisted suicide, female genital cutting, and reproductive technology use in some contexts.  The second law review article is coming out this week in print, but I have already posted it online here. This piece of the project, I hope, will be useful beyond medical tourism to those interested in globalization and global justice theory more generally.

A good way to frame my subject of inquiry is by way of a recent New York Times article  by Somini Sengupta, entitled “Royal Care for Some of India’s Patients, Neglect for Others,” which captures a particular global justice critique well: She begins by describing the care given at Wockhardt Hospital in India to “Mr. Steeles, 60, a car dealer from Daphne, Ala., [who] had flown halfway around the world last month to save his heart [through a mitral valve repair] at a price he could pay.” The article describes in great detail the dietician who selects Mr. Steele’s meals, the dermatologist who comes as soon as he mentions an itch, and Mr. Steeles’s “Royal Suite” with “cable TV, a computer, [and] a mini-refrigerator, where an attendant that afternoon stashed some ice cream, for when he felt hungry later.” This treatment contrasts with the care given to a group of “day laborers who laid bricks and mixed cement for Bangalore’s construction boom,” many of whom “fell ill after drinking illegally brewed whisky; 150 died that day.” “Not for them [was] the care of India’s best private hospitals,” writes the article’s author; “[t]hey had been wheeled in by wives and brothers to the overstretched government-run Bowring Hospital, on the other side of town,” a hospital with “no intensive care unit, no ventilators, no dialysis machine,” where “[d]inner was a stack of white bread, on which a healthy cockroach crawled.”

There is also a more academic or policy strain of critiques among those who write about global health and/or globalization.

The goal of this paper is to examine this kind of critique.  Here is my take...

As I argue in the paper these kinds of critiques should be understood as raising there kinds of questions: (1) An empirical question: Does medical tourism have negative effects on health care access for the poor in the destination country? (2)  The normative question: If so, do home countries or international bodies face obligations to prevent or correct those negative effects, and under what circumstances? (3) The regulatory question: If so, how might they do so?

I discuss some of the development economics and health system design pertaining to the first question and regulatory options as to the third question, but most of the paper is focused on the second normative question. This gives me an opportunity to engage ongoing debates in normative and applied ethics between theories of global justice, cosmopolitan, statist, and intermediate. I discuss the ways in which these theories suggest we may owe different things to those inside versus outside the nation state, or the ways in which the obligations may be activated under different circumstances depending whether those who suffer are our fellow nationals or foreign.  While my focus is on medical tourism, I also show how some of the ideas I develop are applicable to other instances of the globalization of health care such as medical migration (the brain drain).  The goal (you, dear reader, can judge if it is successful) is to have a dialogue between these theories and the concrete medical tourism cases, to see ways in which the theories speak to the cases but also the ways in which the cases identify gaps, ambiguities, and possible divergeny ways of filling the blanks.

 I am currently editing a book for Oxford on legal and ethical issues in health care globalization and starting a new book project on medical tourism specifically. While I have found the global justice literature useful as to these project, I actually think it has many more applications to the work done by law prawfs – for example in immigration law and labor and employment law, among other areas.  Since this law review article represents a part of an ongoing project, I am definitely eager for your thoughts.

This Is Our Story

I'm excited to announce that later tonight, my wife, the incomparable Wendi Adelson, will be doing a book signing for her new novel, entitled, This Is Our Story. If you're in Tallahassee, I hope you'll stop by.

Where: Student Life Cinema, 942 Learning Way (FSU main campus)
When: Monday, November 7th, at 7:00 p.m.
Admission is free and open to the public. Download her e-book here or buy a copy in person! 

And if you're curious about the novel, here are some reader reviews and a description:

This is Our Story follows the lives of Rosa and Mila, two young women from different countries who become victims of human trafficking when unwittingly duped into domestic servitude and commercial sexual exploitation in the American Southeast. Their experiences with the underbelly of globalization here in our own backyard, and the legal battles they wage against their traffickers with their immigration attorney, Lily, are told in their own voices, and hers, in vivid and compelling detail.

Finally, Wendi has been teaming up with some others to blog on issues related to human trafficking and the law, and you can find that great resource over here.

If you are in or about New York City on November 4, please consider attending The Retributivist Tradition And Its Future at St. John's University School of Law. The conference will take up many of the chapters in Retributivism: Essays on Theory and Policy (Mark D. White, ed., 2011). My own contribution to the conference will have to do with an essay I wrote called, What Might Retributive Justice Be?

The conference description follows and the program is after the jump.  Hope you can make it. 

Retributivism as a justification of punishment is a very old idea, with sources in ancient codes of religious law and morality. After a period of dormancy in the 20th century, retributivism is now ascendant again as a theory of punishment, as scholars have reinterpreted the commitment to just desert in novel and provocative ways.

This conference, The Retributivist Tradition and Its Future, brings together leading thinkers in punishment theory to reflect on retributivism's past and present, with an eye toward what retributivism and punishment theory generally might become. Many of the speakers are also contributors to the recently published volume, Retributivism: Essays on Theory and Policy (Mark D. White, ed., OUP 2011), which will also be considered at the conference.

8:30-9:00         Registration/Breakfast

9:00-9:15         Welcome: Dean Michael Simons (St. John’s University School of Law)

9:15-10:45       Panel I: Conceptualizing Retributivism

    Panelists: Michael Cahill (Brooklyn Law School)

    Dan Markel (Florida State University School of Law)

    Kyron Huigens (Cardozo Law School)

    Discussant: Youngjae Lee (Fordham University School of Law)

     Moderator: Matt Lister (Villanova Law School)

10:45-11:00     Break

11:00-12:30     Panel II: Philosophical Perspectives on Retributivism

    Panelists: Sarah Holtman (University of Minnesota, Philosophy)

    Jane Johnson (Macquarie University, Philosophy)

    Mark White (CUNY, Political Science, Economics, Philosophy)

    Discussant: Ekow Yankah (Cardozo Law School)

    Moderator: Larry Cunningham (St. John’s University School of Law)

 12:30-1:30       Lunch

 1:30-3:00         Panel III: Retributivism and Policy

     Panelists: Mark Tunick (Florida Atlantic University, Political Science)

    Luis Chiesa (Pace Law School)

    Marc DeGirolami (St. John’s University School of Law)

    Discussant: Adil Haque (Rutgers School of Law – Newark)

    Moderator: Elaine Chiu (St. John’s University School of Law)

 

Transfer of "Legal Technology"

I just heard a talk about technology transfer (a piece by Jennifer Carter-Johnson).  Roughly speaking, the inventors are scientists with academic positions and the technology transfer process enables inventions originating in universities to be licensed to industry.  I don’t think an equivalent exists in law schools, although maybe this model will be – or has been - explored as law schools search out new funding sources. 

Why no transfer of "legal technology"?  The broad answer might be that it just doesn’t fit with the academic mission of law schools, and raises concerns about academic freedom and how monetary incentives might influence research.  The narrow answer probably lies in what is patentable – do law professors generate anything patentable? 

But my suspicion is that some information generated in law schools is worth good money.  For example, sometimes law professors are like analysts.  A passage from Michael Lewis’s new book, Boomerang: Travels in the New Third World, described Meredith Whitney’s prediction of municipal defaults.  She’s a Wall Street analyst, but the description of what she did to identify this risk rang a bell.  She needed the answer to some question.  When she did the research, she discovered another pattern.  This led to more research and ultimately to a conclusion that challenged common wisdom.  It sounds like what law professors do at least some of the time.

Justice Stevens and State Sovereign Immunity

Lots of folks have been writing about Justice Stevens' new memoir, Five Chiefs, and the various interesting tidbits and/or omissions in/from the book.  One point I haven't seen addressed yet, though, is the book's near-obsession with the topic of state sovereign immunity, especially in its summary of the Rehnquist Court and the Epilogue.  It's quite striking to me, for example, that in a Term that included Wal-Mart, Concepcion, al-Kidd, Bennett, Winn, and a host of other cases (i.e., the October 2010 Term), Justice Stevens singled out VOPA v. Stewart in the book's Epilogue as perhaps the most significant decision the Court handed down last year. 

Don't get me wrong--I've written quite a bit on why Stewart was and is such an important case; I just never thought anyone else agreed with me! More to the point, I wonder if others reading the book had the same reaction that I did--and have any explanation for why, of all the cases with which to end such a story, Justice Stevens decided to go with a little tiny case about the ability of state-created agencies to pursue relief under Ex parte Young? I have my own thoughts, including that, from Justice Stevens' perspective, state sovereign immunity might be one of the more vulnerable bodies of Rehnquist Court jurisprudence going forward (see, e.g., his majority opinion in Central Virginia Community College v. Katz), but am curious if I'm alone on this one...

Greetings.

I'm grateful to Dan Markel for inviting me to be an October guest blogger on PrawsBlawg. I am primarily interested in talking about my new book, BREAKING THE DEVIL'S PACT (NYU Press 2011), but your responses and breaking news may well take me in other directions as well.

Breaking the Devil's Pact is a case study of DOJ's effort, by means of Civil RICO, to purge the International Brotherhood of Teamsters (IBT) of organized crime's presence and influence in the union. U.S. Attorney Rudy Giuliani brought the lawsuit in 1988 against the president (Jackie Presser) and general executive board (GEB) memberts of the IBT and some two dozen Cosa Nostra bosses. The complaint alleged a "devil's pact" between the union and organized crime defendants to exploit the union and its pension and welfare funds and to violate the rights of rank and file members. The massive complaint cited scores of past criminal prosecutions for theft, embezzlement, fraud and violence. None of these allegations came as a shock.

Labor racketeering in the IBT had been notorious for decades. Indeed, in 1957 the AFL-CIO expelled the IBT from the labor federation on account of corruption and racketeering. However, there was no positive change in the next 30 years. In 1986, the President's Commission on Organized Crime (PCOC) called the Teamsters (then the nation's most populous labor union) the most "mobbed-up" union in the country and called for a civil RICO lawsuit to impose court monitorship.

You'll recall that in 1988, Ronald Reagan was president. You may not recall that the IBT was the only major labor union that had endorsed his presidential candidacy (twice). Shortly before the lawsuit was filed, 300 members of Congress delivered a petition to Attorney Gneral Meese, exhorting the DOJ not to file the rumored civil RICO lawsuit because it would be harmful to a "free and independent labor movement." (How's that for cynicism?) All the candidates, Democrats and Republicans, except George H.W. Bush, promised not to file the lawsuit. Nevertheless, the DOJ (via Giuliani) did file it, an impressive statement about DOJ's political independence at that time.

U.S. v. IBT was settled in 1989 on the eve of trial. The consent decree stated that there should be no organized crime presence in the union, that association with organized crime would constitute a disciplinary offense, that for the next 5 IBT elections, the president and GEB members would be selected via one person one vote secret balloting by the rank and file supervised by a court appointed elections officer, and that the IBT disciplinary machinery would be wielded by court appointed investigators and adjudicators. The lawsuit in its remedial phase is now in its 22nd year, with no end in sight. The disciplinary prong of the remediation has expelled 500 IBT officers, including some of the most powerful figures in the union. The election prong has produced the most democratic union elections in American history. I argue that by any standard of assessment, U.S. v. IBT must be regarded as one of, if not, the most important organized crime case in American history. A case could also be made that it is the most important labor litigation of the last 50 years. Nevertheless, it has attracted little if any attention from criminal law or labor law scholars. Students are likely to finish a course in federal criminal law without having heard about the case. Similarly, labor law casebook authors apparently do not see it worthy of much, if any attention. Perhaps you have some thoughts about why this is the case?

James B. Jacobs
NYU School of Law

 

Weekend reading in criminal justice and an idea for other areas

My crim law friends at Rutgers have embarked on a very neat new project that I hope will be replicated across fields so as to address the vanishing book review problem.  Here's the announcement:

We are delighted to announce the launch of our new free website, Criminal Law and Criminal Justice Books, which features high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 

The website can be found at: clcjbooks.rutgers.edu 

Please peruse it at your convenience.  We welcome your comments and suggestions.  Please subscribe to the site to receive notice of all new postings, and feel free to forward the link to anyone you think would be interested. Our hope is that, before long, CLCJ Books will become an indispensable resource for scholars, students, and others interested in the field. 

With all best wishes,
Jim Finckenauer and Stuart Green 

Co-editors of Criminal Law and Criminal Justice Books

Check out in particular George Thomas' review of Brandon Garrett's new book and Adil Haque's review of the volume on Retributivism (and don't forget about the upcoming conference tied to that book at St. John's.)

Bedtime Reading

If you are in that window of parenting where your kid is too old to have picture books read to them at bedtime, but too young to be able to read chapter books for themselves, I can recommend Lemony Snicket's A Series of Unfortunate Events, in particular Volume One, The Bad Beginning, which has legal maneuverings as one of its principal plot devices. It contains this charming passage, which, if you are a law professor, will allow you to open up a dialog with your little one about what exactly it is that you do for a living:

There are many, many types of books in the world, which makes good sense, because there are many, many types of people, and everybody wants to read something different. … But one type of book that practically no one likes to read is a book about the law. Books about the law are notorious for being very long, very dull, and very difficult to read.

It also records a short judicial opinion, uttered by the fictitious but insightful jurist, Justice Strauss:

"I'm afraid this dreadful nonsense is the law."

And my son still wants to be an veterinarian. What gives?

The Space Shuttle's Lying, Derelict Astronaut

As Atlantis is somewhere overhead tracing the last orbits of the Space Shuttle program, I'm thinking about my recent nightstand book, Riding Rockets by former astronaut Mike Mullane. In the autobiography, the three-time mission specialist reveals how the military and NASA tolerated a culture of chronic lying and fraud among its flyer corps. For example, here's how Mullane describes some of his blithe criminal conduct aimed at bolstering his chances in the astronaut-selection process.

In an act of incredible naïveté, the docs at NASA had asked us to hand-carry our medical records from our home bases. ... As the miles passed, I pulled out pages I felt could generate questions I didn't want to answer. In particular I pulled out references to the severe whiplash I had during an ejection from an F-111 fighter-bomber a year earlier. ... I liberated the offending pages from my files, planning to reinsert them on the return flight. I had one very slim chance of getting selected as an astronaut. I wasn't going to let a little thing like a felony get in the way. (p. 2)

I realize that the job of astronaut doesn't have the same need for a moral character requirement as that of lawyer. But it's such a coveted job, you'd think NASA could insist on a modicum of rectitude. After all, unmanned rockets can put up satellites. Half the reason to send real people up into orbit is to have heroes.

Mullane goes on to talk of how he lied, lied, and lied some more to an interviewing psychiatrist:

What would [the true stories of my childhood] have said about Mike Mullane? ... That I was an out of control risk taker? That I scorned rules? There was no way I was going to reveal that history. So I lied. (p. 23)

And did he turn out to be an out-of-control risk taker who was a liability to the astronaut corps? That's the conclusion I have to draw from the description of the re-entry on his second mission into space, aboard Atlantis for STS-27.

According to the checklist I should have been strapped into the mid-deck seat, but there was nothing to do or see down there, so I had asked [Commander Robert "Hoot" Gibson] if I could hang out on the flight deck and shoot some video of the early part of reentry. I would get into my seat before the Gs got too high. (p. 285)

But he didn't keep his deal with the commander:

The clouds appeared to skim by at science-fiction speeds. The sight was a narcotic and I watched it until my zero-G weakened legs couldn't take my weight any longer and I collapsed to the floor. It was beyond time to get to my seat. I pulled myself to the port-side interdeck-access opening and looked down. Uh-oh. I had waited too long. ... I was stuck on the flight deck, its steel floor now my seat, a situation I didn't altogether regret. (p. 287)

Mullane rode the shuttle back to Earth like this, sitting on the floor of the upper deck and unable to stand up, even though he was the person designated in an emergency to operate the lower-deck escape hatch and deploy the slide pole if the crew needed to bail out. Nice, huh? He exposed the whole crew to elevated risk because he wanted to be able to look out the windows.

I might of thought this kind of nonsense would get Gibson and Mullane into trouble at NASA. It sounds like dereliction of duty to me. And you and I both know that doing the equivalent as a passenger on an airliner would get you arrested by the sky marshal and facing jail time. But apparently there were no repercussions for the astronauts. Mullane flew again into space aboard Atlantis and eventually retired to become a motivational speaker. And Hoot Gibson went on to two more shuttle flights and a post-NASA career as a Southwest Airlines pilot. At Southwest, he presumably insisted that all passengers, including those in the exit-row, actually sit in their seats during landing.

All in all, I appreciate what Mullane has done for the historical record by writing his candid book. But reading about Mullane's dubious service has tempered my sadness about the end of the Space Shuttle program. What's more, you know that Mullane is nowhere near to being on the leading edge of deviance in the astronaut corps. Obviously, you'll remember astronaut and convicted felon Lisa Nowak, who drove all night from Houston to Orlando to try to kidnap her romantic rival for the affection of philandering NASA astronaut William Oefelein.

At the end of the day, I am happy to give an increased role to adorable robots that look like Johnny 5 from Short Circuit.

This rover would never tamper with its medical records, and it looks like Ally Sheedy's friend. (Image: NASA/JPL)

The Ikea Effect and Locke's Theory of Property

I'm reading Predictably Irrational a behavioral economics popularization by Dan Ariely. I was struck by how much Ariely's exposition of irrational human attitudes toward ownership tracks John Locke's theoretical justification for private ownership of property. Ariely writes:

[T]he more work you put into something, the more ownership you begin to feel for it. Think about the last time you assembled some furniture. Figuring out which piece goes where and which screw fits into which hole boosts the feeling of ownership. ... I can say with a fair amount of certainty that pride of ownership is inversely proportionally to the ease with which one assembles the furniture ...
(Predictably Irrational, p. 175)

Ariely calls this the "Ikea effect." For me, living with a bunch of furniture I got from Ikea about 10 years ago, I would say the Ikea effect is that the more time I wasted assembling the furniture back then, the greater is my present-day desire to destroy it with an aluminum baseball bat. But anyway, check out what Locke says:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.
(Second Treatise of Civil Government, ch. 5)

Perhaps this suggests that Locke's theoretical justification may have been driven less by detached logic and more by intuition springing from irrational impulse.

(Photo and composite by me; Locke engraving from public domain.)

"In Defense of Judicial Elections" - author Q&A

In their book “In Defense of Judicial Elections” authors Melinda Gann Hall and Chris Bonneau do just that – they provide a defense of judicial elections. Their work has been somewhat controversial and so I decided to spice up our Prawfs summer by conducting a very brief “E-Interview” with them on the subject. My understanding is that they are generally willing to engage in some ‘give and take’ in the comments section of the blog. This does not necessarily mean that they will answer every question – it’s their call.

JY - Judicial elections have gotten a lot of media attention in recent years and a number of groups and even former SCOTUS justice Sandra Day O'Connor have voiced their opposition to them. In your book "In Defense of Judicial Elections" you obviously takes a different view - please elaborate.

CB - I think the main difference is that our research and analysis begins from a place of agnosticism and we only make conclusions based on the empirical data.  Moreover, our position is subject to being revised in the future if the evidence warrants.  The vast majority of the opponents of judicial elections are not interested in how they actually work.  They aren't interested in empirically verifying their claims.  And, when people dare to question their assumptions (whether it be us or Jim Gibson or Matt Streb or Eric Posner or anyone else), they simply ignore the evidence and shift their argument.  

MGH: The most significant difference between our book and much of the advocacy taking place on this topic is that we rely on empirics rather than outdated normative theories or unsubstantiated assumptions. Elections certainly have limitations but of the case against them rests on hyperbolic rhetoric or unverified hypotheses.

JY - Aren't you concerned that some of the less desirable aspects of political elections will influence judicial decision making? Won't powerful interests cast undue influence on case outcomes, given that they might have helped finance a judge’s reelection or might do so in the future?

MGH - Recusal standards and disclosure requirements will go a long way toward remedying this problem. However, there is no reason to expect a quid pro quo relationship between donors and judges. Money tends to support candidates who share a group's interests. There is no evidence at all that judges are "bought. We also should acknowledge that there is no way to remove politics from the judicial selection process. Appointment systems, including the “merit” plan, have their own shortcomings.

CB - No more so than some of the less desirable aspects of appointments will influence such decisionmaking.  This is a point we have made numerous times, but bears repeating:  there is simply no evidence--NONE--of justice being for sale.  Moreover, do we really think that "powerful interests" don't have undue influence on case outcomes as, say, the US Supreme Court?  Of course they do.  At least with elections, voters have a choice and can oust rogue judges.  

JY - In recent decades it has become quite clear that judicial elections can be ugly affairs with lots of negative campaigning - doesn't this hurt the judiciary's image - making people see them less as esteemed decision makers and  more as politicians in robes?

MGH - Judges are politicians in robes in some sense, and voters are smart enough to recognize this. Judges have a great deal of discretion,  and their values influence what they do. Also keep in mind that state supreme court elections have been heated for decades, with defeat rates that surpass many other elected offices. If competitive elections, or elections at all, harm judicial legitimacy, there would be obvious evidence of this by now. 

CB: This is a great question and it is a legitimate concern.  However, in a series of survey experiments--in KY as well as nationwide--Jim Gibson has found that negative ads and candidates talking about policy have no consequences for legitimacy.  He did find a negative effect for campaign contributions, finding that campaign contributions do lead to a loss of legitimacy (this is also true for state legislatures).  But, and this is a crucial point, the net effects of elections is still positive. That is, even with the costs incurred by campaign contributions, judicial elections are legitimacy-ENHANCING institutions.  This is a really important finding and undermines the arguments of folks like Justice O'Connor and Justice at Stake. 

 

Coming soon to a theatre near you ...

"Moneyball" the movie. The moneyball concept gets a lot of play in the realm of academic hiring and performance analysis. Of course, that get's no play in this movie - but if Brad Pitt plays moneyball general manager Billy Beane, then who is Billy Beane in law and what actor plays him in Moneylaw the  movie?

 

Summer Reading Lists for Rising 1Ls

Someone recently asked me for help generating some thoughts about reading lists for entering 1Ls. I'd love to crowdsource some serious thoughts about this, particularly with an aim toward bolstering the sections on Current Issues, Supreme Court, and Legal History. If you have access to what your school recommends to rising 1L's please share.  I've listed some thoughts (not of my own) below, but I would love to give this person some more suggestions, so have at it!

1L RECOMMENDED READING LIST

Current Issues in the Legal Profession

• Paul Carrington, Stewards of Democracy: Law as a Public Profession (1999) (Westview Press).
• Mona Harrington, Women Lawyers: Rewriting the Rules (1995) (Plume).
• Larry Krieger, The Hidden Sources of Law School Stress
• Anthony T. Kronman, The Lost Lawyer: Failing Ideals in the Legal Profession (1995) (Belknap Press/Harvard).

Legal Figures

• G. Edward White, Oliver Wendell Holmes: Sage of the Supreme Court (2000) (Oxford University Press).
• Gerald Gunther, Learned Hand: The Man and the Judge (1994) (Knopf).
• Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (2005) (Times Books).
• Andrew Kaufman, Cardozo (1998) (Harvard University Press).

The Supreme Court

• William H. Rehnquist, The Supreme Court (2002) (Vintage Books).
• Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (1998) (Times Books).
• Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007) (Random House, Inc.).
• Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court (1979) (Simon & Schuster).

Legal History

• Anthony Lewis, Gideon’s Trumpet (1966) (Vintage Books).
• Lawrence Friedman, A History of American Law (2005) (Touchstone).
• Kermit Hall, The Magic Mirror:  Law In American History (2008) (Oxford University Press).
• Peter Irons, The Courage of their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court (1990) (Penguin).
• Randall Kennedy, Race, Crime and the Law (1997) (Pantheon Books/Vintage Books).
• Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (1976) (Knopf).
• Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction (2008) (Henry Holt).
• Richard Lazurus, The Making of Environmental Law (2004) (University of Chicago Press).

Jurisprudence

• Randy Barnett, The Structure of Liberty: Justice and the Rule of Law (1998) (Oxford University Press).
• Richard Epstein, Simple Rules for a Complex World (1995) (Harvard University Press).
• Ronald Dworkin, Taking Rights Seriously (1978) (Harvard University Press).
• James Boyd White, The Legal Imagination, Abridged Edition (1985) (University of Chicago Press).
• Edward H. Levi, An Introduction to Legal Reasoning (1962) (University of Chicago Press).
• K.N. Llewellyn, The Bramble Bush: Classic Lectures on Law and Law School (2008) (Oxford University Press).
• Cardozo, The Nature of the Judicial Process (1921) (Yale University Press).
• Grant Gilmore, The Ages of American Law (1979) (Yale University Press).

Legal Nonfiction

• Jonathan Harr, A Civil Action (1996) (Vintage Books).
• Edward Larson, Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion (2006) (Basic Books).

Classic Novels

• Gerald M. Stern, The Buffalo Creek Disaster: How the Survivors of One of the Worst Disasters in Coal-Mining History Brought Suit Against the Coal Company—and Won (1977) (Vintage Books).
• Harper Lee, To Kill a Mockingbird (2006) (Harper Perennial Modern Classics).
• Herman Melville, Billy Budd, Sailor (2006) (Simon & Schuster).

Legal Composition

• William Strunk, Jr., The Elements of Style (2007) (Filiquarian Publishing, LLC).
• Richard Wydick, Plain English for Lawyers (2005) (Carolina Academic Press).

 

One book?

A recently graduated student of mine sent me a note the other day, asking for a suggestion for one (broadly speaking) law-and-lawyering-related book to read during the few days off he has before starting his bar-exam preparation.  I recommended Kazuo Ishiguro's "The Remains of the Day", which my own teacher -- David Luban -- once recommended to me.  Other suggestions? 

Summer Re-reading

I love my Kindle.  (That was an uncompensated endorsement, but Amazon, if you're listening I'd be happy to provide you my taxpayer ID for a 1099.)  One of the things I like I about it is that it makes buying a book seem less momentous -- you get an idea, you search for it on the Kindle Store, and boom, in a minute you're reading the first page.  This has led me to buy books that I otherwise would not have bought, in particular, books I've already read.  Right now I'm re-reading 1984, a book I haven't read since high school.  It's such a rich book, and with thirty more years of life experience since the first time I read it I feel like it's a brand new read.

So here's a fun question to kick off summer pleasure-reading season: what's been your best re-reading experience?   What have you come back to after a period of time that struck you as significantly different, more meaningful, whatever, as compared with the first time you read it?

The Anti-Entry Level Hiring Report

As an excellent counterpoint to the entry-level hiring report, I strongly recommend Samuel Buell, Becoming a Legal Scholar, 110 Mich. L. Rev. (forthcoming 2012), and would  be very curious to hear what folks think about it. I looked for excerpts to pull, but I would have ended up excerpting the whole thing, so here's the abstract:

There is now a literature on how to become a law professor. The first book-length treatment of the subject, Becoming A Law Professor, displays a common fault of this literature in directing candidates’ focus on process at the expense of substance. The present body of material on the market for new legal academics does not persuade candidates of the necessity of locating their agendas and voices as scholars, much less does it show them how to go about that vital search. It also risks contributing to a tendency of credentialing processes to standardize resumes without improving outcomes. A second-generation literature is needed: on how to become a legal scholar. This Review explains the need for that literature and suggests some directions for it.

This article captures a lot of what makes me uncomfortable about the hiring report, notwithstanding how fun it was to put together. Although do note this excerpt from Buell's article:

I admit to a full share of responsibility in this process of standardizing teaching candidates. Few things irritate me more in the hiring process than candidates who evidence a failure to have consulted the resources on preparing for the law teaching market. If you can’t be bothered to do the basic legwork of using the internet to find out the fundamentals of the market in which you hope to compete, how serious can you be about doing the job you are trying to get? (Watch what I do, not what I say: Read the literature on how to handle the job market in spite of my criticisms of it.)