PrawfsBlawg

Imagine a world with AALS Injury Reports

Rob Gronkowski is officially "questionable" for the Big Game today, though he walked without a limp yesterday.

Under the NFL system of mandatory injury reporting, players are listed based on the likelihood that they will play: out, doubtful (25%), questionable (50-50), or probable (75%). The report also must list the area of the injury (e.g., "ankle"). The system was created in 1947 in response to allegations that players had provided gamblers with secret "insider" information about injuries that were likely to influence the game.

Though coaches are notorious for the gamesmanship involved in using the injury reports - e.g., Tom Brady was listed on the injury report every week for over two years without ever missing a start - the NFL Injury Report survives today, defended by the League as necessary for the integrity of the game and claiming that such data is in the public interest.

Who needs to know whether Rob Gronkowski's injury is really a high ankle sprain or whether he walked with a limp or not?

People betting on football. People playing fantasy football (though most fantasy football seasons end before the Super Bowl). The media. Sport fans. In our football-obsessed run up to the Biggest Game of the Year, who doesn't need to know?

What about the athletes? Are they better off in a system that requires mandatory reporting - and public sharing - of injury information? Sports betting, fantasy football, greater media attention all increase the NFL's revenue, from which athletes will be paid. At the same time, athletes may have good reason to NOT want to share their personal medical information. They may wish to avoid being a target for other athletes (e.g., Kyle Williams having a history of concussions). The injury may be embarrassing in nature (e.g., George Brett having hemorrhoids years ago) or may have occurred in an embarrassing manner (e.g., Dustin Penner injuring his back while eating pancakes).

I don't think the discourse or expectation that athletes are not entitled to privacy about their own bodies or medical information stems from the NFL Injury Reports. I think the continued existence of the reporting requirement (albeit with wink/nod strategic non-compliance) and the lack of athlete interest in bargaining to change the rules is all due to the norm that athletes should be viewed as the sports industry's performance machines, viewed as a collective of body parts rather than people with privacy rights.

What other industries force this bargain on its employees where personal health or medical information is deemed public interest? Top ranking government officials (the President, SCOTUS Justices, etc.)? Actors when their injuries affect filming? Other celebrities? Am I missing any others? Can you imagine if law professors had the equivalent injury reporting requirement?

Ironic, crass, stark reminder, reclaiming imagery? You decide

Courtesy of Eric Muller, who has thought (and written about) the experience of the Holocaust, is this web site selling this shirt (and others) to mark Yom Ha'Shoah. The shirts purport to be a statement of memory and solidarity.

Ironic? Crass? Offensive? Stark and meaningful reminder? Show of solidarity? Reclaiming of hateful imagery? Something else?

Six Things Wrong with SOPA

America is moving to censor the Internet. The PROTECT IP and Stop Online Piracy Acts have received considerable attention in the legal and tech world; SOPA's markup in the House occurs tomorrow. I'm not opposed to blacklisting Internet sites on principle; however, I think that thoughtful procedural protections are vital to doing so in a legitimate way. Let me offer six things that are wrong with SOPA and PROTECT IP: they harm cybersecurity, are wildly overbroad and vague, enable unconstitutional prior restraint, undercut American credibility on Internet freedom, damage a well-working system for online infringement, and lack any empirical justification whatsoever. And, let me address briefly Floyd Abrams's letter in support of PROTECT IP, as it is frequently adverted to by supporters of the legislation. (The one-word summary: "sellout." The longer summary: The PROTECT IP letter will be to Abrams' career what the Transformersmovie was to that of Orson Welles.)

1. Cybersecurity - the bills make cybersecurity worse. The most significant risk is that they impede - in fact, they'd prevent - the deployment of DNSSEC, which is vitally important to reducing phishing, man-in-the-middle attacks, and similar threats. Technical experts are unanimous on this - see, for example, Sandia National Laboratories, or Steve Crocker / Paul Vixie / Dan Kaminsky et al. Idiots, like the MPAA's Michael O'Leary, disagree, and simply assert that "the codes change." (This is what I call "magic elf" thinking: we can just get magic elves to change the Internet to solve all of our problems. Congress does this, too, as when it includes imaginary age-verifying technologies in Internet legislation.) Both bills would mandate that ISPs redirect users away from targeted sites, to government warning notices such as those employed in domain name seizure cases. But, this is exactly what DNSSEC seeks to prevent - it ensures that the only content returned in response to a request for a Web site is that authorized by the site's owner. There are similar problems with IP-based redirection, as Pakistan's inadvertent hijacking of YouTube demonstrated. It is ironic that at a time when the Obama administration has designated cybersecurity as a major priority, Congress is prepared to adopt legislation that makes the Net markedly less secure.
2. Wildly overbroad and vague- the legislation (particularly SOPA) is a blunderbuss, not a scalpel. Sites eligible for censoring include those:
   •  
     • primarily designed or operated for copyright infringement, trademark infringement, or DMCA § 1201 infringement
     • with a limited purpose or use other than such infringement
     • that facilitate or enable such infringement
     • that promote their use to engage in infringement
     • that take deliberate actions to avoid confirming high probability of such use

   If Flickr, Dropbox, and YouTube were located overseas, they would plainly qualify. Targeting sites that "facilitate or enable" infringement is particularly worrisome - this charge can be brought against a huge range of sites, such as proxy services or anonymizers. User-generated content sites are clearly dead. And the vagueness inherent in these terms means two things: a wave of litigation as courts try to sort out what the terminology means, and a chilling of innovation by tech startups.

3. Unconstitutional prior restraint - the legislation engages in unconstitutional prior restraint. On filing an action, the Attorney General can obtain an injunction that mandates blocking of a site, or the cutoff of advertising and financial services to it - before the site's owner has had a chance to answer, or even appear. This is exactly backwards: the Constitution teaches that the government cannot censor speech until it has made the necessary showing, in an adversarial proceeding - typically under strict scrutiny. Even under the more relaxed, intermediate scrutiny that characterizes review of IP law, censorship based solely on the government's say-so is forbidden. The prior restraint problem is worsened as the bills target the entire site via its domain name, rather than focusing on individualized infringing content, as the DMCA does. Finally, SOPA's mandatory notice-and-takedown procedure is entirely one-sided: it requires intermediaries to cease doing business with alleged infringers, but does not create any counter-notification akin to Section 512(g) of the DMCA. The bills tilt the table towards censorship. They're unconstitutional, although it may well take long and expensive litigation to demonstrate that.
4. Undercuts America's moral legitimacy - there is an irreconciliable tension between these bills and the position of the Obama administration - especially Secretary of State Hillary Clinton - on Internet freedom. States such as Iran also mandate blocking of unlawful content; that's why Iran blocked our "virtual embassy" there. America surrenders the rhetorical and moral advantage when it, too, censors on-line content with minimal process. SOPA goes one step farther: it permits injunctions against technologies that circumvent blocking - such as those funded by the State Department. This is fine with SOPA adherents; the MPAA's Chris Dodd is a fan of Chinese-style censorship. But it ought to worry the rest of us, who have a stake in uncensored Internet communication.
5. Undercuts DMCA - the notice-and-takedown provisions of the DMCA are reasonably well-working. They're predictable, they scale for both discovering infringing content and removing it, and they enable innovation, such as both YouTube itself and YouTube's system of monetizing potentially infringing content. The bills shift the burden of enforcement from IP owners - which is where it has traditionally rested, and where it belongs - onto intermediaries. SOPA in particular increases the burden, since sites must respond within 5 days of a notification of claimed infringement, with no exception for holidays or weekends. The content industries do not like the DMCA. That is no evidence at all that it is not functioning well.
6. No empirical evidence - put simply, there is no empirical data suggesting these bills are necessary. The content industries routinely throw around made-up numbers, but they have been frequently debunked. How important are losses from foreign sites that are beyond the reach of standard infringement litigation, versus losses from domestic P2P networks, physical infringement, and the like? Data from places like Switzerland suggests that losses are, at best, minimal. If Hollywood wants America to censor the Internet, it needs to make a convincing case based on actual data, and not moronic analogies to stealing things off trucks. The bills, at their core, are rent-seeking: they would rewrite the law and alter fundamentally Internet free expression to benefit relatively small yet politically powerful industries. (It's no shock two key Congressional aides who worked on the legislation have taken jobs in Hollywood - they're just following Mitch Glazier, Dan Glickman, and Chris Dodd through the revolving door.) The bills are likely to impede innovation by the far larger information technology industry, and indeed to drive some economic activity in IT offshore.

The bills are bad policy and bad law. And yet I expect one of them to pass and be signed into law. Lastly, the Abrams letter: Noted First Amendment attorney Floyd Abrams wrote a letter in favor of PROTECT IP. Abrams's letter is long, but surprisingly thin on substantive legal analysis of PROTECT IP's provisions. It looks like advocacy, but in reality, it is Abrams selling his (fading) reputation as a First Amendment defender to Hollywood. The letter rehearses standard copyright and First Amendment doctrine, and then tries to portray PROTECT IP as a bill firmly in line with First Amendment jurisprudence. It isn't, as Marvin Ammori and Larry Tribe note, and Abrams embarrasses himself by pretending otherwise. Having the government target Internet sites for pre-emptive censorship, and permitting them to do so before a hearing on the merits, is extraordinary. It is error-prone - look at Dajaz1 and mooo.com. And it runs afoul of not only traditional First Amendment doctrine, but in particular the current Court's heightened protection of speech in a wave of cases last term. Injunctions affecting speech are different in character than injunctions affecting other things, such as conduct, and even the cases that Abrams cites (such as Universal City Studios v. Corley) acknowledge this. According to Abrams, the constitutionality of PROTECT IP is an easy call. That's only true if you're Hollywood's sockpuppet. Thoughtful analysis is far harder.

Cross-posted at Info/Law.

Interesting Questions About Shaming and Accountability

I recently returned from a wonderful visit at the IDC in Herzliya, where I taught a mini-course on punishment theory; it was a good opportunity for me to test out some materials from Criminal Law Conversations (which I now highly recommend, by the way). All that is background to a question I just received from a student of mine there who asked, on behalf of her friend, of a possible campaign to hold deadbeats responsible for their delinquency. 

 

"Here is the rundown: My organization wants to come up with an innovative project that furthers women's rights in some way.  My boss came up with the idea for a website that would allow women who have gone to court and won a judgment against their ex-husbands for child support or whatnot (which the ex-husband is not paying or complying with) and post their picture and a summary of the judgment on the internet. The point being to hold these men publicly accountable and maybe shame them into paying up. This sounds like it has a potential of being illegal and crossing some confidentiality boundaries. In the U.S. are family court decisions open record?"

 

My student raised another question regarding shaming for child support issues. She said she thought that in Seattle one can be held in contempt of court and incarcerated for failing to pay child support. If contempt of court is a crime, then would it become part of the public record or would that be a private family court decision? 

Although I've written on public shaming sanctions, I don't know the specific governing law as to this issue in Washington or Israel for that matter. But the issue here is private shaming, not public shaming. It makes me think of the story about the South African radio station trying to stigmatize men who, on account of their philandering, were introducing HIV to their spouses; the radio djs called out the men for bad behavior on the radio station. My intuition would be that free speech principles coupled with private actors and public records would be sufficient to prevent legal recourse by these "shamed" men both in the US and in Israel, but I'd be curious to hear if others disagree as a practical matter, putting aside the normative issues of whether such men should be shamed. For what it's worth, I have reasonably strong views against public (state-sponsored) shaming, but privately initiated exposure of wrongdoing, especially when it is intermediated by the internet and it reflects wrongdoing that has already been adjudicated, is quite different and doesn't raise a lot of the same concerns I have elaborated elsewhere.

(Only signed, verifiably addressed, and substantive comments are invited.)

 

Copyright and Your Face

The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook's much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.

Let's start with the idea's constitutional flaws. There are relatively few constitutional limits on Congressional power to regulate copyright: you cannot, for example, have perpetual copyright. And yet, this proposal runs afoul of two of them. First, imagine that I take a photo of you, and upload it to Facebook. Congress is free to establish a copyright system that protects that photo, with one key limitation: I am the only person who can obtain copyright initially. That's because the IP Clause of the Constitution says that Congress may "secur[e] for limited Times to Authors... the exclusive Right to their respective Writings." I'm the author: I took the photograph (copyright nerds would say that I "fixed" it in my camera's memory). The drafters of the Constitution had good reason to limit grants of copyright to authors: England spent almost 150 years operating under a copyright-like monopoly system that awarded entitlements to a distributor, the Stationer's Company. The British crown had an excellent reason for giving the Company a monopoly - the Stationer's Company implemented censorship. Having a single distributor with exclusive rights gives a government but one choke point to control. This is all to say that Congress can only give copyright to the author of a work, and the author is the person who creates / fixes it (here, the photographer). It's unconstitutional to award it to anyone else.

Second, Congress cannot permit facts to be copyrighted. That's partly for policy reasons - we don't want one person locking up facts for life plus seventy years (the duration of copyright) - and partly for definitional ones. Copyright applies only to works of creative expression, and facts don't qualify. They aren't created - they're already extant. Your face is a fact: it's naturally occurring, and you haven't created it. (A fun question, though, is whether a good plastic surgeon might be able to copyright the appearance of your surgically altered nose. Scholars disagree on this one.) So, attempting to work around the author problem by giving you copyright protection over the configuration of your face is also out. So, the proposal is unconstitutional.

It's also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer - subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine - it invites courts to inject their normative views into the analysis. It also creates extraordinarily high administrative costs. It's already expensive for filmmakers, for example, to clear all trademarked and copyrighted items from the zones they film (which is why they have errors and omissions insurance). Now, multiply that permissions problem by every single person captured in a film or photograph. It becomes costly even to do the right thing - and leads to strategic behavior by people who see a potential defendant with deep pockets.

Finally, we already have an IP doctrine that covers this area: the right of publicity (which is based in state tort law). The right of publicity at least has some built-in doctrinal elements that deal with the problems outlined above, such as exceptions when one's likeness is used in a newsworthy fashion. It's not as absolute as copyright, and it lacks the hammer of statutory damages, which is probably why advocates aren't turning to it. But those are features, not bugs.

Privacy problems on social networks are real. But we need to address them with thoughtful, tailored solutions, not by slapping copyright on the problem and calling it done.

Cross-posted at Info/Law.

The End of Hockey (Fighting)?

Unlike Wasserman, Vladeck, and Bodie, I'm just a nerd with little interest in and patience for following the sports pages these days. (Unfortunately, I still have tons of useless trivia stuck in my head from my days of fandom as a kid.)

Nonetheless, I've been drawn into John Branch's series of pieces on Derek Boogaard in the NYT this week. Boogaard died at the age of 28 not long ago, due to an overdose from painkillers. He was a brutal "enforcer" for his hockey teams, and the series by Branch effectively underscores the complicity of officials, owners, coaches and fans in the gladiatorial aspects of Boogaard's life and death. Notwithstanding too many links to videos of important fights in Boogaard's career, I highly recommend the series so far. (The links are too tempting and I feel like Leontius looking back at the executioner's carnage.) I'd be surprised if it's not a finalist for a Pulitzer. More importantly, I think it shows to a wide audience of NYT readers just how pervasive the senseless violence on the ice is; it might also spur some important changes to the game of hockey itself. 

Importantly, if Boogaard's family sought the chance to do something (and maybe without them too), the series could lay the foundation for the kind of tort litigation/media onslaught against the hockey industry that we've seen work (and not work so well) in other areas. Boogaard was a bruiser, and, from my criminal law perspective, I could see all sorts of reasons why local and enterprising DA's might try to make a case against him and the "enforcer" crew of which he was a critical part (consent as a defense be damned!). But he was, as the articles show, vulnerable to all sorts of social influences and financial incentives that others bear responsibility for as well. Not every social problem requires legal redress in the courts. But even (or especially) if the NHL won't fix itself -- and it seems to have resisted efforts to change the penalty structure for more than 90 years -- I hope it will be spurred to change by moral entrepreneurs in the courts and elsewhere inspired by Branch's series on Boogaard. There's no reason for thinking that brutal disabling fights are a necessary feature of hockey. And if they are, then I'm all in favor of a new sport of senseless violence-free shmockey.

Update: I've been alerted to Jeff Yates' paper on reducing violence in sports through criminal prosecutions. And you might want to check out the NYT's latest report: namely, that Boogaard's head was massively diseased from all the concussions he suffered.

{Signed, verifiably addressed, and substantive comments are invited.}

Should the U.S. Prohibit Anonymous Sperm Donation?

In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in the Georgetown Law Journal, The New Kinship (not yet up on SSRN), and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”

In my new Article, Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, forthcoming in the same issue of the Georgetown Law Review (out in print in Jan or Feb 2012 and up on SSRN now), I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.

I demonstrate four problems with the arguments Cahn offers for eliminating anonymous sperm donation:

(1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves.

(2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011) and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon).

(3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation.

(4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.

For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.

Choosing Censorship

Yesterday, the House of Representatives held hearings on the Stop Online Piracy Act (it's being called SOPA, but I like E-PARASITE tons better). There's been a lot of good coverage in the media and on the blogs. Jason Mazzone had a great piece in TorrentFreak about SOPA, and see also stories about how the bill would re-write the DMCA, about Google's perspective, and about the Global Network Initiative's perspective.

My interest is in the public choice aspect of the hearings, and indeed the legislation. The tech sector dwarfs the movie and music industries economically - heck, the video game industry is bigger. Why, then, do we propose to censor the Internet to protect Hollywood's business model? I think there are two answers. First, these particular content industries are politically astute. They've effectively lobbied Congress for decades; Larry Lessig and Bill Patry among others have documented Jack Valenti's persuasive powers. They have more lobbyists and donate more money than companies like Google, Yahoo, and Facebook, which are neophytes at this game. 

Second, they have a simpler story: property rights good, theft bad. The AFL-CIO representative who testified said that "the First Amendment does not protect stealing goods off trucks." That is perfectly true, and of course perfectly irrelevant. (More accurately: it is idiotic, but the AFL-CIO is a useful idiot for pro-SOPA forces.) The anti-SOPA forces can wheel to a simple argument themselves - censorship is bad - but that's somewhat misleading, too. The more complicated, and accurate, arguments are that SOPA lacks sufficient procedural safeguards; that it will break DNSSEC, one of the most important cybersecurity moves in a decade; that it fatally undermines our ability to advocate credibly for Internet freedom in countries like China and Burma; and that IP infringement is not always harmful and not always undesirable. But those arguments don't fit on a bumper sticker or the lede in a news story.

I am interested in how we decide on censorship because I'm not an absolutist: I believe that censorship - prior restraint - can have a legitimate role in a democracy. But everything depends on the processes by which we arrive at decisions about what to censor, and how. Jessica Litman powerfully documents the tilted table of IP legislation in Digital Copyright. Her story is being replayed now with the debates over SOPA and PROTECT IP: we're rushing into decisions about censoring the most important and innovative medium in history to protect a few small, politically powerful interest groups. That's unwise. And the irony is that a completely undemocratic move - Ron Wyden's hold, and threatened filibuster, in the Senate - is the only thing that may force us into more fulsome consideration of this measure. I am having to think hard about my confidence in process as legitimating censorship.

Cross-posted at Info/Law.

The Curricular Powder Room?

A female friend who teaches family law recently wryly suggested to me that family law had become "the curricular powder room," in that circa 2011 it is a subject whose teaching and scholarship is dominated by women in the American legal academy.  This was not always so. In her work on the development of family law textbooks out of domestic relations courses, my wonderful colleague Janet Halley's What Is Family Law? A Genealogy, Part I and II (the latter is forthcoming) shows that in its early days family law textbook writing was dominated by men, just like all other fields of law, and the female dominance is of fairly recent vintage.

I only dabble in family law with my reproductive technology work, but my experience with the various conferences I attend has led me to believe that the number of heterosexual men who primarily write and teach in the area and have joined the academy in the last 10 years or so is extremely small, and even when I teach family law topics I can feel myself performing my sexuality to some extent as if it were a ritual to get access or credibility.  The only other field that I know of which comes close in terms of gender splits, is health law, although here the split feels more like 50/50, which is striking more because of the gender disparity of almost all the other fields in law.

Of course, one reaction to all this is that it is the other legal fields that are the problem in terms of gender skew so far in favor of men, and I am sympathetic to that point, but in this post I am primarily curious about what the ramifications are of family law having become "the curricular powder room"?

Would family law scholarship and teaching be different if more men were involved? Does the female domination of it lead to a kind of reactive devaluation of its importance or seriousness by the rest of the legal academy? Are there methodological correlates to the gender skew – for example, again from my relative outsiders' perspective, there seems to have been less law and econ in family law than elsewhere, and I wonder if that is partially a function of gender (but worry that this hypothesis itself might be based on gender stereotypes)? What impact does all this have on our students' enrollment in these classes, experienc of them, and career choices in the area? Are any of these descriptive claims (if they obtain) actually problems, or at least things the field should be concerned with?

Originalism Owns the Eighteenth Century: An Essay with A Compulsory (Voting) Exercise

In the Sunday NYT, Reid Hoffman, chairman at LinkedIn, is quoted as saying “[e]ntrepreneurs ... often spend too much time creating products and too little figuring out how to get people to use them.” This probably applies as well to scholars. Even in the relatively open, interdisciplinary world of the law school, our scholarship can get specialized enough that many colleagues (never mind the public at large) may not follow the broad contours and insights of our subfields unless we give them a lever or two. Not that the value of accessibility should always trump the competing values. But some levers, sure.

These levers may be, partly about the marketing, partly about the design. On the marketing, many of us have heard the message to have at the ready a short ‘elevator ride’ pitch about our scholarship. This is advice I try to follow. But, at least for my late-eighteenth-century work on election law, I still run into a messaging problem--that many academics glean too much meaning when I identify my historical period. Late-eighteenth-century? Then of course the work is originalist in method and purpose. Some audiences go further with the historical cue, apparently assuming that eighteenth-century scholarship is not only originalist but also tied into a hidden conservative political agenda. Before I can get across that, well actually, my work approaches the founding more from the perspectives of social-science history and the history of political thought, the ‘elevator ride’ may be over.

I find the eighteenth-century-to-originalism-to-political-conservatism cascade of assumptions odd. After all, there are now originalists of all political stripes (a Jack Balkin or Akhil Amar for a Robert Bork or a Justice Scalia). And there are originalist scholars of integrity of various stripes who are quite serious about their primary sources and who are not narrowly results-oriented (not to deny there's also a stream of the cringe-worthy ‘forensic history’ in the journals). Then (like me) there are constitutional historians who write on the eighteenth-century but who are not (or not primarily) engaged with originalism or with any approach to contemporary constitutional interpretation (think, perhaps, of Mary Sarah Bilder, Dan Hulsebosch, Alison LaCroix).

However, I can’t say for sure that the cognitive short-cuts are non-adaptive for most purposes. The Legal History Blog (one of my favorite reads, by the way) even uses as one of its subject-matter labels: “Originalism & the founding period.” It has no labels such as “Originalism & the post-Civil War amendments”, “Cultural History & the founding,” or “Economic modeling & the founding.” Originalism & the founding are monogamously paired, while “Ancient law,” “Medieval law,” and “14th amendment” get to be stand-alones. I imagine this labeling practice responds to some reality that’s ‘out there.’

There may be other subjects of legal scholarship that elicit equally-tight audience expectations, but, if those of you working in other areas often encounter this sort of thing, I’m not aware of it. Maybe the simple information that a scholar has written on sexuality and gender will trigger in some audiences an expectation of political liberalism and identity politics? (Unless there’s also a mention of natural law? Then the opposite assumption?) If I meet an environmental law prof, maybe I suspect she’s a person who spends her weekends hiking and rafting, and maybe also, I have mild expectations she’s not strongly de-regulatory in her politics, but this is about as far I go with the cues based solely on subject-matter.

What to do if the cues mislead? I’ve been encouraged to preemptively incorporate criticism of originalism into my spiel. But this feels too much like: “I am not now, nor have I ever been X.” Anyway, my historical writing (to date) simply isn’t designed to take a stand on approaches to constitutional interpretation today. It’s geared more towards explanation and understanding of some political and legal features of our world, and the sometimes-patterned ways in which they’ve changed over time. Rather than continue with the corrections, though, I’m wondering if I should quit fighting the fact that ‘Originalism Owns the Eighteenth Century’. Maybe a user-friendly lever would leverage rather than resist expectations?

Marketing may not be a strong suit for scholars. Certainly, it’s not for me. Yet I’d like to think that, if we fashion the user-friendly marketing lever, maybe we can be more stubborn about not compromising on the deeper design choices.

My marketing practice for today is to imagine I’m sketching an essay in response to another piece from the Sunday Times, this one a thoughtful op-ed by William Galston in favor of compulsory voting.http://www.nytimes.com/2011/11/06/opinion/sunday/telling-americans-to-vote-or-else.html

After his policy argument, Galston winds down with a concession that:

"[T]he United States Constitution gives the states enormous power over voting procedures. Mandating voting nationwide would go counter to our traditions (and perhaps our Constitution) and would encounter strong state opposition."

What Galston doesn’t mention (something I don’t believe I’ve ever seen mentioned in a treatment of modern compulsory voting) is that several of the American colonies had a history of compulsory voting (including some laws that were enforceable by fines that could be levied either on individuals or on towns), and that a compulsory-voting tradition was sufficiently salient in Massachusetts during the U.S. ratification that a few ‘name-brand’ founders made reference to it in their argument for empowering Congress to regulate congressional elections under the Congressional Elections Clause (article I, section 4, clause 1). More generally, Galston’s emphasis on the states’ (not Congress’s) constitutional power over voting procedures is entirely conventional today, but is not an easy fit with the way the federal right to vote was often described during the U.S. ratification debates as, well, a federal right.

Playing to the ‘18th century = originalism’ audience expectations, I could work on developing my own views about constitutional authority and then take a stand on what role the early history should play in constitutional interpretation today. But I’m not sure I have to do that. User-friendly marketing might just mean an originalism-tease--that I raise the possibility that the early history should have sway. Then I use any attention garnered to divert audiences to some of my interpretive and explanatory concerns. (How and when did we change from a political culture when mandatory voting was plausible in some colonies/states to a libertarian world in which it is un-American? When and why was the federal understanding of the federal right to vote forgotten? What features of modern political parties suggest that Galston’s right to think that opposition to a congressional mandate for mandatory voting would be very dramatic?) Of course, by the time I’d get through one of these social-science-y or political theory questions, I’d be long past an elevator ride or even a blog post.

Sex and the Single Bathroom

I have a confession to make. I’ve recently used the women’s washroom.

Let me explain.  On the 5^th floor of Griswold Hall where I have my office, there are two single occupancy bathrooms with locks – one male and one female, not to be confused with the Ally McBeal style unisex bathroom.  Rather, this is a single occupancy bathroom that unlike George Constanza's is not limited to people with disabilities.

It turns out, though, that only the women’s single-occupancy bathroom has Palmolive with which I can wash my glasses before class (one of the assistants who is a woman mentioned this to me one day when I needed to clean them). It is unclear to me why only the women's bathroom has Palmolive,  but I have worried about disrupting something important if I moved it to the men’s. So I’ve started going into the women’s bathroom before class, locking the door, washing my glasses, and then leaving. I have received some funny stares from people who have caught me doing it…but it has caused me to re-examine my single-occupancy bathroom behavior and expand my gender subversive bathroom routine more generally:

If at a restaurant with single use bathrooms there is a line-up for the men’s but none for the women’s, I will walk over to the women’s. This too engenders funny looks, and I’ve noticed I am shyer about doing it when the men in line are more macho … no doubt a form of gender panic on my part.

So I am curious whether I am doing something wrong, and whether all single occupancy bathrooms should be neutered? The strongest argument I can fathom for gendering them is that women and men take different amounts of time in the bathroom, such that separate allocations are desirable. But, if anything, it seems to me that women get the short end of the stick on this one, and both more distributively fair and more efficient then to have both bathrooms be open to both sexes. But perhaps I am missing something?

De-lousing E-PARASITE

The House of Representatives is considering the disturbingly-named E-PARASITE Act. The bill, which is intended to curb copyright infringment on-line, is similar to the Senate's PROTECT IP Act, but much much worse. It's as though George Lucas came out with the director's cut of "The Phantom Menace," but added in another half-hour of Jar Jar Binks. 

As with PROTECT IP, the provisions allowing the Attorney General to obtain a court order to block sites that engage in criminal copyright violations are, in theory, less objectionable. But they're quite problematic in their particulars. Let me give three examples.

First, the orders not only block access through ISPs, but also require search engines to de-list objectionable sites. That not only places a burden on Google, Bing, and other search sites, but it "vaporizes" (to use George Orwell's term) the targeted sites until they can prove they're licit. That has things exactly backwards: the government must prove that material is unlawful before restraining it. This aspect of the order is likely constitutionally infirm.

Second, the bill attacks circumvention as well: MAFIAAFire and its ilk become unlawful immediately. Filtering creep is inevitable: you have to target circumvention, and the scope of circumvention targeted widens with time. Proxy services like Anonymizer are likely next.

Finally, commentators have noted that the bill relies on DNS blocking, but they're actually underestimating its impact. The legislation says ISPs must take "technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States" to Web sites targeted under the bill, "including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolvingto that domain name's Internet protocol address." The definitional section of the bill says that "including" does not mean "limited to." In other words, if an ISP can engage in technically feasible, reasonable IP address blocking or URL blocking - which is increasingly possible with providers who employ deep packet inspection - it must do so. The bill, in other words, targets more than the DNS.

On the plus side, the bill does provide notice to users (the AG must specify text to display when users try to access the site), and it allows for amended orders to deal with the whack-a-mole problem of illegal content evading restrictions by changing domain names or Web hosting providers.

The private action section of the bill is extremely problematic. Under its provisions, YouTube is clearly unlawful, and neither advertising or payment providers would be able to transact business with it. The content industry doesn't like YouTube - see the Viacom litigation - but it's plainly a powerful and important innovation. This part of E-PARASITE targets sites "dedicated to the theft of U.S. property." (Side note: sorry, it's not theft. This is a rhetorical trope in the IP wars, but IP infringement simply is not the same as theft. Theft deals with rivalrous goods. In addition, physical property rights do not expire with time. If this is theft, why aren't copyright and patent expirations a regulatory taking? Why not just call it "property terrorism"?)

So, what defines such a site? It is:

1. "primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates" violations of the Copyright Act, Title I of the Digital Millennium Copyright Act, or anti-counterfeiting laws; or,
2. "is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out the acts that constitute a violation" of those laws; or, 
3. the owner "operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation" of those laws.

That is an extraordinarily broad ambit. Would buying keywords, for example, that mention a popular brand constitute a violation? And how do we know what a site is "primarily designed for"? YouTube seems to have limited purpose or use other than facilitating copyright infringement. Heck, if the VCR were a Web site, it'd be unlawful, too. 

The bill purports to establish a DMCA-like regime for such sites: the IP owner provides notice, and the site's owner can challenge via counter-notification. But the defaults matter here, a lot: payment providers and advertisers must cease doing business with such sites unless the site owner counter-notifies, and even then, the IP owner can obtain an injunction to the same effect. Moreover, to counter-notify, a site owner must concede jurisdiction, which foreign sites will undoubtedly be reluctant to do. (Litigating in the U.S. is expensive, and the courts tend to be friendly towards local IP owners. See, for example, Judge Crotty's slipshod opinion in the Rojadirecta case.)

I've argued in a new paper that using direct, open, and transparent methods to censor the Internet is preferable to our current system of "soft" censorship via domain name seizures and backdoor arm-twisting of private firms, but E-PARASITE shows that it's entirely possible for hard censorship to be badly designed. The major problem is that it outsources censorship decisions to private companies. Prior restraint is an incredibly powerful tool, and we need the accountability that derives from having elected officials make these decisions. Private firms have one-sided incentives, as we've seen with DMCA take-downs. 

In short, the private action measures make it remarkably easy for IP owners to cut off funding for sites to which they object. These include Torrent tracker sites, on-line video sites, sites that host mash-ups, and so forth. The procedural provisions tilt the table strongly towards IP owners, including by establishing very short time periods by which advertisers and payment providers have to comply. Money matters: WikiLeaks is going under because of exactly these sort of tactics. 

America is getting into the Internet censorship business. We started down this path to deal with pornographic and obscene content; our focus has shifted to intellectual property. I've argued that this is because IP legislation draws lower First Amendment scrutiny than other speech restrictions, and interest groups are taking advantage of that loophole. It's strange to me that Congress would damage innovation on the Internet - only the most powerful communications medium since words on paper - to protect movies and music, which are relatively small-scale in the U.S. economy. But, as always with IP, the political economy matters. 

I predict that a bill like PROTECT IP or E-PARASITE will become law. Then, we'll fight out again what the First Amendment means on the Internet, and then the myth of America's free speech exceptionalism on-line will likely be dead.

Cross-posted at Info/Law.

Stem Cells, IVF, and Abortion: Is There a Right and Left Position?

This is my third post inspired by the Mississippi Personhood Amendment, and this one turns to the normative issues.

Many people who identify as pro-life as to abortion, oppose stem cell derivation involving the destruction of pre-embryos (or “embryos” simpliciter if you prefer, language is power), and often discard of embryos as part of IVF. Many people who are pro-choice by contrast oppose prohibitions on abortion, stem cell derivation, or IVF embryo discard.  What I try to show my students in the classes I teach, and I want to argue here, the three issues do not necessarily go together and the terrain is more complicated than the way it is usually presented.

First, for the left. As Judith Jarvis Thompson most famously tried to show in her (still quite controversial) work, support for an abortion right is not necessarily inconsistent with recognition of fetal personhood. That is, even if one believes fetuses are full persons, one can still support a right not to be a gestational parent (to use my terminology) for women that stems from bodily integrity or perhaps autonomy.  As I have argued, as a normative and as a constitutional matter recognition of a right not to be a gestational parent does not necessarily imply recognition of a right not to be a genetic parent, which suggests that the abortion right and the right to engage in IVF discard are quite severable because prohibiting the destruction of excess IVF embryos does not require forcing unwanted gestational duties on anyone. The disconnect is even stronger when it comes to stem cell derivation, where none of the “rights not to procreate” is involved. That means that one can very happily be pro-choice as to abortion, and prohibit embryo discard or destruction via stem cell derivation.

Second, as to the right....

Let us assume the pro-life position on abortion depends on the view that fetuses are persons or close enough to persons that their protection trumps the interests in avoiding gestational parenthood of pregnant mothers. That position does not imply that the destruction of embryos at all stages of development is also equally problematic. A lot depends on one’s theory of why fetuses should be given personhood or rights claims against destruction (on this issue I highly recommend Cynthia Cohen’s chapter on personhood in her book on stem cells). If your theory of personhood is about the actual possession of criteria X, on some ways to fill in “X” – such as fetal pain, which I have written about here – fetuses late in gestation may possess the criteria but not embryos as the stage they are discarded/destroyed as part of IVF or stem cell derivation.  Similarly, many have defended a 14-day or later view of personhood, where personhood begins on the 14^th day after fertilization where embryonic twinning – the potential for an embryo to become monozygotic twins – ends. This argument is usually premised on problems with numerical identity. If the embryo was a person before day 14, but twins into two people, which one was it – person A or person B? Many find this argument persuasive, although certainly there are objectors (for example, those who say that if a stick is broken into two that does not mean it wasn't originally one stick, though others doubt the analogy).  For present purposes all I want to suggest is someone who opposes abortion can thus fairly easily consistently oppose prohibition on destruction of early embryos.

None of that means that zealots on either side are capable of being nuanced here. The cultural cognition project, if anything, suggests the opposite.  Still I hope that judges and academics are better poised to see the nuances here.

How Baseball Made Me a Pirate

Major League Baseball has made me a pirate, with no regrets.

Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake.

Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number.

My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud.

Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not.

So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.

Cross-posted at Info/Law.

More federal jurisdiction on TV

I love when TV even indirectly or incidentally throws some law into the mix. Last night's episode of HBO's Boardwalk Empire actually turned on federal jurisdiction.

For those of you who don't watch the show, the main character is Enoch "Nucky" Thompson, an Atlantic City (N.J.) government official/political-machine boss/bootlegger/gangster in the early 1920s, loosely based on real-life Atlantic City boss/bootlegger Nucky Johnson). In early 1921, Thompson has been charged in state court with election fraud. His lawyer discovers that part of the fraud included bringing prostitutes from Philadelphia to Atlantic City to provide sexual favors for certain individuals in exchange for voting Republican. This violates the Mann Act of 1910, which generally prohibits the transportation of women across state lines for "immoral purposes." This means that Thompson now can be charged in federal court.

The lawyer arranges for the women to "report" Thompson to the New Jersey Attorney General, who is prosecuting the case. And while he  is initially thrilled about these new charges and the federalization of the case, the story makes clear that Thompson (and his attorney) welcome this development, since  U.S. Attorney General Harry Daugherty (Warren Harding's real AG) is one of Thompson's cronies and likely will make sure the charges are dismissed. Thompson later tells his mistress, with a smile, "I violated the Mann Act."

Hey, the federal government was overcharging even in 1921.

Behind the Scenes of Six Strikes

Wired has a story on the cozy relationship between content industries and the Obama administration, which resulted in the deployment of the new "six strikes" plan to combat on-line copyright infringement. Internet security and privacy researcher Chris Soghoian obtained e-mail communication between administration officials and industry via a Freedom of Information Act (FoIA) request. (Disclosure: Jonathan Askin and I represent Chris in his appeal regarding this FoIA request.) The e-mails demonstrate vividly what everyone suspected: Hollywood - in the form of the music and movie industries - has an administration eager to be helpful, including by pressuring ISPs. Stay tuned.

Have you ever been to a bar (or other entertainment establishment) named after some part of the Constitution?

I'd like to second Rick Garnett's endorsement of Daniel Okrent's book on Prohibition called Last Call.  It's a great read, and I relied on it a lot when writing the chapter of my forthcoming Odd Clauses book on section 2 of the Twenty-First Amendment, which says that "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."  As Larry Tribe once pointed out, this is one of only two instances where the Constitution directly regulates private individuals rather than the government, with the other instance being the Thirteenth Amendment's prohibition on slavery.

I should probably say that I enjoyed Okrent's book somewhat more than the Ken Burns special on Prohibition that's been airing over the past few days, but that might be the historical present tense, wildly overused in these kinds of documentaries, tends to make me vomit.

Unsurprisingly perhaps, there are a lot of bars around the country named after the Twenty-First Amendment.  We have one here in Boston, and there are also such places in San Francisco and Washington DC.  Not to mention Fayeteville, Arkansas.   I've been thinking of doing a tour of them to promote my book.  Not really. 

This makes me wonder whether there are other bars, restaurants, or different kinds of entertainment establishments named after parts of the Constitution, and if not, whether there should be, and what they would look like.  I've thought about opening up an Incompatibility Clause Theater here in Beantown next to my new Letters of Marque Clause teahouse, but frankly, I don't have any idea what would play there.   Thoughts?

 

What Commons Have in Common

Thanks to Dan and the Prawfs crew for having me! Blogging here is a nice distraction from the Red Sox late-season collapse.

I thought I'd start with a riddle: what do roller derby, windsurfing, SourceForge, and GalaxyZoo have in common?

Last week, NYU Law School hosted Convening Cultural Commons, a two-day workshop intended to accelerate the work on information commons begun by Carol Rose, Elinor Ostrom, and Mike Madison / Kathy Strandburg / Brett Frischmann. All four of the above were presented as case studies (by Dave Fagundes, Sonali Shah, Charles Schweik, and Mike Madison, respectively). Elinor Ostrom gave the keynote address, and sat in on most of the presentations. It's exciting stuff: Mike, Kathy, and Brett have worked hard to adapt Ostrom's Institutional Analysis and Development framework to analysis of information commons such as Wikipedia, the Associated Press, and jambands. Yet, there was one looming issue that the conferees couldn't resolve: what, exactly, is a commons?

The short answer is: no one knows. Ostrom's work counsels a bottom-up, accretive way to answer this question. Over time, with enough case studies, the boundaries of what constitutes a "commons" become clear. So, the conventional answer, and one supported by a lot of folks at the NYU conference, is to go forth and, in the spirit of Clifford Geertz, engage in collection and thick description of things that look like, or might be, commons.

As an outsider to the field, I think that's a mistake.

What commons research in law (and allied disciplines) needs is some theories of the middle range. There is no Platonic or canonical commons out there. Instead, there are a number of dimensions along which a particular set of information can be measured, and which make it more or less "commons-like." Let me suggest a few as food for thought:

1. Barriers to access - some information, like Wikipedia, is available to all comers; other data, like pooled patents, are only available to members of the club. The lower the barriers to access, the more commons-like a resource is. 
2. State role in management - government may be involved in managing resources directly (for example, data in the National Practitioner Data Bank), indirectly (for example, via intellectual property laws), or not at all. I think a resource is more commons-like as it is less managed by the state.
3. Ability to privatize - information resources are more and less subject to privatization. Information in the public domain, such as Shakespeare's plays, cannot be privatized - no one can assert rights over them (at least, not under American copyright law). Some information commons protected by IP law cannot be privatized, such as software developed under the GPL, and some can be, such as software developed under the Apache License. The greater the ability to privatize, I'd argue, the less commons-like.
4. Depletability - classic commons resources (such as fisheries or grazing land) are subject to depletion. Information resources can be depleted, though depletion here may come more in the form of congestion, as Yochai Benkler argues. Internet infrastructure is somewhat subject to depletion, while ideas or prices are not. The greater the risk of depletion,the less commons-like.

Finally, why do we care about the commons? I think that commons studies are a reaction to the IP wars: they are a form of resistance to IP maximalism. By showing that information commons are not only ubiquitous, but vital to innovation and even a market economy, legal scholars can offer a principled means of arguing against ever-increasing IP rights. That makes studying these resources - and, hopefully, putting forward testable theories about what are and are not attributes of a commons - vital to enlightened policymaking.

(Cross-posted to Info/Law.)

What's in an Acronym?

Last weekend, I had the honor of attending Lavender Law, the annual conference of the National LGBT Bar Association. I gave a few talks and chaired a wonderful panel on cyberbullying and the First Amendment, but, as with many conferences, it was the individual and informal conversations with colleagues that were particularly rewarding.

On Friday, I met Mason Davis, Executive Director of the Transgender Law Center in San Francisco, California, and asked him how he responds to members of the gay and lesbian community who feel that they face different issues than members of the transgendered community and that gay and lesbian interest groups should not be diverted to transgender issues when gay causes are so in need. They wonder why the L and the G should always be linked with the T.

The question might seem strange or even hateful, but it exists as a undercurrent in many minority groups. All groups fighting for their civil rights do so with allies, or, at a minimum, with different generations or different subgroups. But, not every group wants or needs the same things. Not everyone's direct personal interests are always aligned and, in fact, those interests could be so misaligned that affiliation could, some think, be a bad idea. It is not often openly discussed, but many gay men have approached me wondering why our leaders' time is spent on issues like health insurance for gender reassignment surgery, for example, or our lobbyists would oppose clearly pro-gay legislation if it did not include pro-transgender elements.

I do not write on or research transgender issues. Nor do I know any transgendered persons, and I regret that. I am concerned that my views on these issues may be colored by the uniformity of my social and professional circles. Therefore, I have always stayed on the sidelines of these debates, unsure of where I stand until I could understand transgendered persons' needs better. But it always struck me as very selfish to think that just because a gay person's personal interests are not the same as a transgendered person's, that means that should not be allies in the search for civil rights. After all, gay men and lesbians are not always concerned with the same issues. In the 1980s and early 1990s, HIV/AIDS was almost exclusively a gay male concern, not a lesbian one.

I asked Mr. Davis if he hears these objections and how he responds.

He said he hears it all the time, but in his experience, it's not selfishness. Some gay strategists find gay people more relateable to the average American voter, so inclusion of transgender issues makes a successful gay rights strategy more difficult. Other gay donors are concerned about this or that issue and would prefer that their money be used for their area of concern. But, while our goals are not always the same, Mr. Mason says that we are all part of the same project: we are all trying to be who we really are unencumbered by discrimination, but some of us need a little more help to be who we really are.

Gays and lesbians can be who they really are by coming out of the closet, by being out at home and in the workplace and by marrying their partners and starting families. They are concerned with tearing down barriers that stand in their way: Don't Ask, Don't Tell, employment discrimination, same-sex marriage bans, second-parent adoption bans, and so on. But, transgendered individuals need a little bit more to become who they really are. They have unique medical hurdles to cross in order to get there, but Mr. Mason believes that L's, G's and T's are all searching for the same thing. We all want a country where nothing stands in the way of our true self.

I have yet to field test this argument on some of my gay friends. What do you think?

Personalizing the national anthem

Patriotic and political rituals pervade our sporting events. And the performing of The Star-Spangled Banner, a part of just about every game, is heightened at major games and events (championships, Super Bowls, all-star games, event finals). And we expected that to even more so at today's Women's Final of the U.S. Open, played in New York on the tenth anniversary of 9/11.

What I find interesting is the way artists can and do try to personalize the anthem, changing the entire tune and musical style of the song (particularly in non-traditional styles), and the way our reactions to that have changed. What is widely regarded as the first attempt at restyling was Jose Felciano's acoustic slow Latin jazz rendition before Game 5 of the 1968 World Series in Detroit, which outraged fans (NBC stations were inundated with angry phone calls) and lead some radio stations to stop playing Feliciano's music for a time. On the other hand, the response was much more favorable to Marvin Gaye's rendition at the 1983 NBA All-Star Game. And in 2010, Feliciano was invited back to Detroit to perform his version of the anthem during a memorial ceremony for late Tigers announcer Ernie Harwell. Are there other recent examples of performers making stylistic changes to the song?

All of which is by way of saying that our reaction to Queen Latifah's gospel/soul rendition before today's match is a product of its time. It probably would have been a subject of controversy 40 years ago; it now becomes an instant classic. Enjoy.

 

Hogwarts College of Law

Ah, the things that come up over lunch with faculty colleagues. And now we can pose them to the blog community:

What are the law school equivalents to all of the different courses offered at Hogwarts (Defense Against the Dark Arts, Potions, Spells, etc.)?

For those recently hooked on Westeros

Dave Hoffman has a fascinating interview with George R.R. Martin from 2007.  You can find the interview, and the post about it, here. 

Victory for Pastafarians Everywhere!

I'm not one of the law and religion folks, so I'll refrain from legal commentary.  But, I couldn't resist using the Prawfs platform to pass this gem along: Austrian Man Wins Right To Wear Pasta Strainer in License Photo.

As NPR reports:

In Austria one of the strangest fights for religious freedom has come to an end: Niko Alm, a self-described "Pastafarian," fought for three years for the right to wear a pasta strainer on his head in his driver's license photo.

His argument? Alm claimed he belonged to the Church of the Flying Spaghetti Monster and wearing the strainer was part of his religion.

 

Enjoy.

A Constitutional Crisis for Liberals and Libertarians: The Declaration of Independence and the Mythologocial Side of American Constitutional Culture

Constitutional meaning is hotly contested in the United States today.  This is hardly an unprecedented state of affairs.  Questions of constitutional fidelity and constitutional restraints on policy making have figured prominently in each of the nation’s several epochs of heightened constitutional awareness, as Bruce Ackerman and many others have reflected.  Indeed, supposed periods of relative constitutional quiescence and consensus can be described as such only in comparative terms, by contrast to other periods such as the Civil War and Reconstruction or the early Neal Deal when constitutional politics were obviously especially freighted and enthused and indeed even dangerous.  Whether or not government under the Constitution has actually been imperiled in these phases of constitutional ferment, during each of them a great many people have gone on record as fearing the imminent demise of the Constitution they love.  Perhaps the phrase constitutional crisis is exaggerated or at least lifted infelicitously from British political usage where it was employed with reference to constitutional impasses surrounding the Parliament Act of 1911 and the Abdication of Edward VIII in 1936.  Crisis implies to me at least the possibility of the collapse of the existing system, and even during the American Civil War (surely the greatest of this country’s alleged constitutional crises) only the geographic scope of governmental operations under the United States Constitution was at stake, not government under the Constitution per se.  Still, the concept of constitutional crisis resonates with millions, and there seems to be a mounting sense in many quarters that this nation is sliding towards a renewed constitutional crisis of truly epic moment.

But what is it about the Constitution that appears under threat to so many vocal devotees of varying constitutional stripes?  What are the terms of the great constitutional contest just around the corner?  Is there truly more at stake than the choice between divergent political outcomes and policy options favored by rival votaries?  What parts of the Constitution as we know it will be annulled if either side wins the battle to repeal the Affordable Health Care and Patient Protection Act lovingly known as Obama Care?  Is text under threat?  Structure?   Whole Articles destined for the scrap heap if one or the other side prevails?  Or is it a favored strand of Supreme Court case law that is in jeopardy?  Or a cherished academic theory about the Constitution?   More than any of these fine things, I think, what those animated by contemporary constitutional politics fear is repudiation of a mythological vision that depends more on constitutional culture and iconography than on constitutional text and structure.  From Sarah Palin and Glen Beck on television and at camp meetings to Michelle Bachmann and Ron Paul in debate and on the campaign trail, those who warn that the Constitution as we know it faces imminent or ongoing attack are generally quick to invoke the founding fathers, the Spirit of 1776, and the full panoply of origination myths surrounding the creation of the American Republic.  They do so generally not just for the sake of rhetorical flourish, but rather to appeal to the highest authorities in their constitutional value system. 

Independence Day does not tend to focus the patriotic mind on high political theory so much as on celebration of the distinctive national character, and like all national characters that of the United States is as much artificial as it is organic, and as much fluid as it is stable.  For better or worse, nationalism anchored in backward looking myth is a human construct, and conscious effort is required to prop it up.  Some people openly acknowledge and cherish instability, laden as it is with potential for success or failure, and a plasticity that invites intervention by the shaping hand.  Change we can believe in as the slogan went.  Others chafe at their own rootlessness and the rootlessness about them, and yearn to see change fenced in and controlled.  I have oscillated fairly sharply between these opposite poles at different stages of my life, sometimes yearning for government empowered to facilitate radical change, sometimes for government constrained to do no more than stay the courses and maintain the policies adopted by its direct and distant predecessors.   My urges along these lines have generally been more visceral than theorized or philosophical, and on a very basic level, I think this bipolar tension between tendencies to embrace or shun activist government mirrors the tectonic clashes driving popular constitutional politics today.   Lawyers and legal academics tend to think constitutional law is a product of text and doctrine, but I strongly suspect a more common sense of the Constitution for someone who does not identify as a lawyer and legal academic takes roughly the following two part form:  (1) The Constitution mandates political outcomes I desire, and prohibits those I dislike.  (2) The legitimacy of those outcomes is measured by testing them against the political principles embodied in the foundation of the United States (which fortunately coincide with my own principles).

It’s natural enough perhaps for professional lawyers to scoff at this condensed short form version of constitutional essentialism on the grounds that it leaves out text, structure, and case law, but it has a powerful popular appeal, and a prestige pedigree, coming very near to the (admittedly more self-effacing, theoretically grounded, and historically rooted) positions Thomas Jefferson assumed during his struggles with Chief Justice John Marshall during the first three decades of the nineteenth century.   Marshall’s tactically shrewd maneuver in Marbury and McCulloch was to insist that the Constitution reduced to written form in a single instrument was particularly part of the realm of law, amenable to judicial supervision, interpretation, and enforcement.  As axiomatic as that postulate seems to us today, it was just as easy for members of his generation to view that same Constitution as something inherently political and contested, not chiefly or even at all within the province of the judiciary, and not wholly reduced or reducible to written form in a single instrument.  Jeffersonian departmentalism (under which each department of government is the supreme constitutional arbiter within its own sphere) and popular sovereignty (in which the political will of the living generation is the ultimate constitutional authority) seemed as self-evidently correct to many of his contemporaries in the Revolutionary and Early National scene as Marshall’s celebration of the distinctions between the American constitutional republic with judicial review from the British system of legislative omnipotence under natural law does to most inward looking American constitutionalists today.   There is nothing inherently right or wrong about constitutionalism in the styles of A.V. Dicey (legislative omnipotence), Thomas Jefferson (departmentalism and active popular sovereignty that does not go dormant in non-Ackermanian moments), James Madison (a system of checks and balances reduced to a short code), or John Marshall (judicial supremacy based on an instrument that did not say a word about judicial supremacy when he wrote Marbury and continued silent on that point when his successors affixed each of their signatures to Aaron v. Cooper some 150 years later).  One can coherently operate as a constitutionalist in the American tradition without obsessing over text and case law.   Jefferson’s retirement letters to Madison belabor the theme of constitutional threats and violations at the hands of Marshall, but the reader soon discovers that the constitutional touchstone Jefferson refers to in measuring Marshall’s constitutional infidelity is neither the seven articles written in 1787 nor Bill of Rights written in 1789, but rather a set of Whiggish principles and conventions respecting legislative supremacy that crystallized during the English constitutional crises of the seventeenth century.  Indeed Jefferson was not above getting misty eyed and mystical about seventeenth century English Whigs, in much the fashion that a great many popular constitutionalists today are prone to look with almost spiritual reverence towards the image of our founding fathers rather than to text and case law when extolling constitutional fidelity on the part of reprobate nation.    

What then is the source of those core foundational beliefs that comprise foundation mythology, those principles and stories associated with the text and its creation that resonate so deeply with those who fear that the Constitution is under assault by its deontological enemies?  For writers as diverse as Abraham Lincoln and Louis Henkin, the constitutionalism behind the constitution has been Jefferson’s Declaration of Independence.   I submit that it matters profoundly whether those of us who cleave to the Declaration in contemporary constitutional conflicts think principally in terms of the Declaration’s general part or special part, which is to say in the first place its description of the natural law principles according to which just government is practiced and self-determination fulfilled, and in the second place its list of grievances against British imperial authority.   Those who focus on the general part I view as my fellow travelers, internationalists in the tradition of the Enlightenment who cherish human progress and read their Declaration like Harvard historian David Armitage in his 2008 study The Declaration of Independence: A Global History.   In contrast, those who focus on the Bill of Particulars, the special part detailing perceived imperial wrongs, worry me profoundly, for I can’t help but think they cherish rebellion as a wonderful thing in its own right, a doorway to adolescent thrills, primitivism for primitivisms sake, imaginary conflict with parent figures, and war with Europe to purge the soul and get back to American-kind’s pure and violent essentials.  As suggested Saturday by E.J. Dionne in Washington Post editorial , some among this camp that worships the special part drift away even from the concrete character of the enumerated grievances in the Declaration towards a broader claim (wholly divorced from the Declaration’s text) that government is always a bad thing.  I sometimes wonder whether Clarence Thomas doesn’t come close to adding a special theoretical veneer to the radical school’s atomistic claims by proclaiming that the real constitutionalism behind the Constitution is not the Declaration of Independence but the Articles of Confederation, in the incoherent sense that the framers found the non-existent federal government under the Articles so terrifyingly strong that they assembled a new constitutional edifice featuring a federal government with very substantial enumerated powers in order to ensure that the states were better protected against federal over-reaching than they had been under the constitutional system of the Articles which featured no federal government at all.   Without having in mind or perhaps being aware of the Articles, Rick Perry and Ron Paul approach the same result in insisting that the Constitution was made by the states for the states, not by the people of one nation embracing one new national government.

Ever since my days as an at least slightly jingoistic high school nerd in the 1980s, my favorite part of Independence Day has been reading and reflecting on the Declaration of Independence.   The first two paragraphs explaining the Continental Congress’s theory of just government, natural rights, equality, and the right to self-determination have retained all their luster as I’ve aged, although I’ve grown to appreciate them differently since I began teaching comparative constitutional law and international law about five years ago.  I can no longer think of Jefferson’s general outline of legitimate grounds of secession of one nation from a larger empire without  comparing his criteria for justified secession with those outlined in the Canadian Supreme Court’s famous advisory opinion In. Re. the Secession of Quebec. More recently still, as I prepare to move to the University of South Carolina for the coming academic year, I find myself often mulling over the general theories of secession outlined in the Declaration in the broader context of recent scholarly efforts to offer a global theory of self-determination, such as those explored in Secession: An International Phenomenon, a series of provocative essays edited by University of South Carolina historian Don H. Doyle comparing the secession of the American South to other secession movements in modern history.  From the perspective of the global history sketched by David Armitage or the perspectives of law and philosophy developed by Don Doyle and his colleagues, the principles in those two opening paragraphs of the Declaration have help up very well indeed.  Whether the cause that Jefferson advocated was just or otherwise, the measures he described for judging its justice echo and endure.  In marked contrast, the Bill of Particulars, developed in the succeeding 27 paragraphs of the Declaration and reciting concrete grievances with British imperial authority, troubles me more with each Independence Day than it did the year before.   I am in no position to pass judgment, but I cannot say that I find all 27 paragraphs of charges convincing.

There are no official casualty figures on the imperial side of the Anglo-American civil war of 1775-1783, so estimating total deaths during the War of American Independence  is by its nature inexact, but it is no gross exaggeration to suggest that in the vicinity of 40,000 colonial rebels, loyalists, Native Americans, imperial forces from Britain and Europe, and others lost their lives in the eight year war, and that at least 100,000 loyalist were driven into exile in Canada.   The thirteen rebellious British North American colonies in 1775 had a non-Native American population of about three million compared to the U.S. population of some three hundred million today, so in relative terms the human toll of the War of Independence had an impact equivalent to that of an American war in our time costing four million lives on American soil and driving ten million compatriots into exile today.  What wrongs of 1763-1776 were vindicated at this enormous cost from 1775-1783?  Let us return to the list of grievances in the Declaration to help aid our memory.  

This essay has grown far too long already for this forum, so I will not recite each point laid out in the 27 paragraphs charging British authorities with alleged offenses warranting secession from the Empire and war to establish a new nation.  Rather, I will point out a few major themes among them, and focus on a few violations the singers of the Declaration considered particularly grievous.  On one basic level that only began to resonate widely with the population until the months immediately preceding the Declaration, colonial grievances reflected the simple insight put famously by Thomas Paine in Common Sense, namely that it was absurd for an island to rule a continent.   In 1763, the overwhelming majority of politically active residents who thought about such things supported the subject matter jurisdiction of the Westminster Parliament over the British North American colonies, in part because that jurisdiction was exercised rather lightly respecting internal matters of the mainland provinces.  Once jurisdictional conflict arose over taxation and tax enforcement issues, increasing numbers drifted gradually into the independence camp, with wide circulation of Paine’s manifesto in the winter and spring of 1776 dramatically quickening the pace and lending incipient self-determination sensibilities a strong anti-monarchical hue.  While Paine’s claims have their logic, it took the coming of civil war in British North America in 1775 to ripen the patriotic mind for their reception in 1776.   But given that imperial taxes were light – in fact far lighter in the colonies than in the home islands – it is fairly hard to move from the claim that their abolition demands self-determination to the claim that once self-determination was favored by a bare plurality of the politically empowered population its attainment without the consent of others affected (Native Americans, enslaved Africans, loyalists, pacifists, Canadians) justified a war costing 40,000 lives.  Apart from rejection of Parliamentary jurisdiction to tax and measures taken by the King’s government to enforce that jurisdiction, colonial grievances concerned imperial constraints on colonial efforts to appropriate lands for purposes of exploitation.  Here more than an absence of proportionality causes me to wonder about the legitimacy of the resort to arms to support what Armitage calls mere settler grievances.   Concrete charges in the Declaration of Independence justify the use of armed force to attain unilateral secession in order to nullify the Quebec Act and the Proclamation Line, and the sales pitch here is not just nationalist and racist, but what today would be considered at least border line genocidal. To speak plainly, principal grievances enumerated in the Declaration’s Bill of Particulars include imperial interference with Indian removal and imperial toleration of French speaking Catholics.   These are not grievances worth fighting for, worth 40,000 lives, worth driving at least 100,000 from their homes.  One cannot in good faith argue in retrospect that a self-determination movement by a political minority (or even plurality) and the defense of the movement by extreme violence is justified in order to repulse imperial efforts to partially protect racial and religious minority populations against settler aggression.  At least one cannot do so consistently with the universal and enlightened claims about equality and human rights invoked in the Declaration’s general part.

Over the past twenty years I have enjoyed a great many things, including reading nearly all of Jefferson’s surviving 19,000 letters while working on my PhD, learning about human rights from Louis Henkin and legal theory from George Fletcher while I was a student at Columbia Law School, teaching at Washburn Law School from 2005-2011, and for these last few weeks making a few longer than average entries on this first rate Blawg.   I have also enjoyed many wonderful and warm Fourth of July celebrations with friends in England, New York City, Baltimore, Arlington, Monticello, and Kansas.   I look forward to many more, with lots of spectacular explosions and grilled meat, and perhaps if Whiggish optimism is not yet wholly exhausted two hundred and more years after the Enlightenment has run its course, a little more celebration of universalism, human rights, and aspiration for happiness, and a little less celebration of collective violence among tribes and peoples.

Constitutional Tradition and the Individual Mandate

In my first post on the New Hampshire Republican Presidential Debate I took issue with claims raised by several of the candidates related to immigration and eligibility for office that could not be squared with constitutional text. More broadly, I questioned whether the “Imaginary Constitution” trope invoked by Ron Paul to critique liberal, activist judges ten years ago might not apply more tellingly to the constitutional visions and fantasies that underlay the candidates spoken and coded appeals to Tea Party voters watching the proceedings at their St. Anselm debate, where the Constitution took pride of place as the touchstone for assessing the orthodoxy of proposed answers to contemporary political problems. Richard Stengel’s thoughtful cover story in this week’s Time Magazine asks whether the Constitution still matters, and then suggests that as a nation “We the Parsers” obsessively query the Constitution for answers to particularized questions that the framers of the instrument never intended to answer. For Stengel, then, the Constitution matters, but not because it provides all the substantive answers. Stengel is correct to suggest a degree of clause-bound constitutional obsessiveness among the politically engaged population, and that is one theme I will revisit in passing today. But there are at least two other levels besides text on which the Constitution may well matter even more to the people out of doors, and those are symbolism and myth -- the principal subject of an upcoming post -- and constitutional tradition -- the principal focus of my post today. To elucidate the importance of constitutional tradition in contemporary popular constitutional politics, and its relation to constitutional text and constitutional myth, I suggest turning once again to the New Hampshire debates.

No perceived monstrosity of the Obama-state came in for more withering denunciation at St. Anselm than Obama-Care, and in particular the so-called individual mandate upon which some say the program depends (in the sense that universal access to bad insurance requires enforced universal participation in the bad insurance delivery mechanism, since bad insurance can’t very well be expected to sell itself.) The seven Republican candidates were in firm agreement that a federally enforced requirement to purchase insurance was wrongheaded. Some called it illegal, others unconstitutional. None suggested it was constitutionally permissible. There were very few claims that a federal individual mandate violated concrete constitutional guarantees apart from the nebulous Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) Even that cryptic provision lurked ethereally about the proceedings, seldom invoked by name, never enlisted directly into conversation, and never probed as to the telling change from “not expressly delegated” in parallel language in the Articles of Confederation to the sparser “not delegated” in Amendment Ten. (Debates in the First Congress on the proposed Tenth Amendment, by the way, make crystal clear that this alteration was deliberate, pointed, and aimed at protecting an expansive interpretation of federal power.) If no candidate explained how any clause of the Constitution including the Tenth Amendment enjoined the federal government from enforcing a mandate against individual persons, for principled libertarians this is hardly the point, since it is the absence a specific grant of authority to the federal government, not the absence of a particular prohibition against federal action, that should be outcome-determinative in assessing the constitutional validity of assertions of federal power. Hamilton in his Report of the Bank and Marshall in McColloch v. Maryland disagreed even as they articulated ambitious visions of a powerful federal government under the Constitution, but in Jeffersonian eyes they were wrong then and in libertarian eyes they continue wrong today. Some libertarians argue axiomatically that the federal government is one of limited, delegated authority, others reject the teachings of Oliver Wendell Holmes that the Tenth Amendment projects no invisible radiations annulling federal authority, but modern day states righters and individualists agree that unless a power to command individuals is expressly granted Congress in Article I Section 8 or elsewhere in the Constitutional text, it does not exist, New Deal Chief Justice Stone’s characterization of the Tenth Amendment as an insignificant “truism” notwithstanding.

The debate on broad construction and implied powers is as old as the Republic, and the precise question of whether a federal mandate to purchase insurance is compatible with the Constitution is as old as the New Deal. In Steward Machine and Helvering decided the same day in 1937, the Supreme Court upheld the Unemployment Insurance and Old Age Pension components of the Social Security Act, rejecting challenges under the Tenth Amendment and the Taxing and Spending Clauses that would have been successful not long before. So Supreme Court doctrine on the Tenth Amendment and the Taxing Powers (to say nothing of the Commerce Power), unless changed by subsequent decision, points towards the constitutionality of Obama Care including the lynchpin individual mandate. Of course for many Obama Care skeptics on the libertarian right, existing case law is also a symptom of the larger problem associated with the vestiges of the New Deal state these critics wish to sweep away. For present purposes, what intrigues me about increasing popular constitutional skepticism respecting the New Deal is not so much a popular revulsion against broad construction of the Taxing, Spending and Commerce Powers, or populist embrace of a reanimated Tenth Amendment that has teeth its designers never intended it to grow, but rather a firm faith that libertarianism rests at the heart of American soul and at the center of the American constitutional compact even when it cannot be proved by reference to constitutional text. Surely, the articulated argument and the unspoken assumption of Obama-care-skeptics hold, the federal government cannot make We the People buy things the government wishes us to buy, because that is not compatible with the American theory of limited governance. It is just not the sort of thing the Founding Fathers would have tolerated.

One of many ironies in the lived national experience that is frequently so much richer and more complex than nostalgic individualists assume is that the Founding Fathers actually endorsed and indeed required the mandatory acquisition of at least one item freighted with considerable ideological weight for libertarians and statists alike, namely guns. Those subject to the Federal Militia Act of 1792 (white men aged 18-45 and not otherwise exempted) were required to acquire a musket or rifle of designated specification for militia use, and for at least three decades, the federal government under both Federalist and Republican administrations attempted to ensure state enforcement of the federal requirement (rather presciently violating Justice Scalia’s anti-commandeering principle in the process). The Federal Government conducted Militia Censuses in 1802, 1806, and decennially from 1810, under which states adjutants general were required to send state officials door to door to make lists of militia eligible persons and ensure that they had come into possession of weapons compliant with the 1792 Act. The Jefferson Administration pushed the censuses hard, and made federal money available to the states to distribute to persons for the purpose of purchasing guns compliant with (and only guns compliant with) the terms of the Act. Now, I am neither a non-interpretivist, or an original intent originalist, or an original public meaning originalist. I do not have a general answer to the question of whether, why, and how founding era practice is relevant to constitutional interpretation today, except to suggest that if founding era understanding and practice is relevant, those who depend on the interpretive power of founding era understanding and practice are under a duty to accurately represent founding era understanding and practice, and to acknowledge that those understandings and practices seldom reflected unambiguous consensus. But while I personally lack a general theory of originalism, I think I am correct in suspecting that most libertarians and all seven candidates debating at New Hampshire would insist that founding era practice is profoundly relevant, at least in so far as it is consistent with contemporary libertarian impulses. That being said, back to my caveat about the duty on the part of those cleaving to originalist methods to accurately represent founding era practice and understanding for purposes of elucidating constitutional meaning: When it comes to individual mandates and founding era assumptions, as a factual matter, this much at least is true: Washington signed and Jefferson and Madison enforced a federal Act that required people to buy a particular item. And this, like a great many things regarding the constitutional history of the United States from the founding and early national periods is very difficult to square with Ron Paul’s 2008 claim that “The Constitution was written explicitly for one purpose – to restrain the federal government.” One might make that claim (with only partial accuracy, it turns out) about the Bill of Rights, but the claim is clearly frivolous respecting the original seven articles written in 1787-88 or the Reconstruction Amendments written in 1865-69. These were written not to restrain the federal government, but in the case of Articles I-VII to create a powerful national government were previously there had been none and in the case of Amendments XIII-XV to empower that government to crush the remnants of the slaveocracy that had imperiled the Union. The powerful appeal of Paul’s facially incorrect assertion that the framers at Philadelphia intended to restrain the federal government is the subject of my upcoming post on constitutional myth and constitutional covenant.

Feedback loops - applications?

A recent Wired article "Harnessing the Power of Feedback Loops" tells the story of how such mechanisms can be used in a variety of ways to affect human behavior - to essentially get us to 'do the right thing'. Here's an explanation of how they work from the article:

A feedback loop involves four distinct stages. First comes the data: A behavior must be measured, captured, and stored. This is the evidence stage. Second, the information must be relayed to the individual, not in the raw-data form in which it was captured but in a context that makes it emotionally resonant. This is the relevance stage. But even compelling information is useless if we don’t know what to make of it, so we need a third stage: consequence. The information must illuminate one or more paths ahead. And finally, the fourth stage: action. There must be a clear moment when the individual can recalibrate a behavior, make a choice, and act. Then that action is measured, and the feedback loop can run once more, every action stimulating new behaviors that inch us closer to our goals.

A number of examples are provided, the most prominent being feedback loop signs that tell you how fast you're driving next to the posted speed limit. This reminds me of theories of athletic coaching that I've read about - how good coaches use low-key constant correction advice to get their players to change their performance in real time (or close to it). Apparently, now is the time for feedback loop devices as a public policy method, as the costs of one of the primary means of providing feedback loops - sensor technology - continues to sink.

While not all feedback loop applications require sensors, the rise of such technology should perhaps give us pause to consider how such mechanisms might be used in a wide number of settings. For instance, can it be used effectively in teaching (perhaps, not too different from coaching)? I occasinally use real time quizzes via powerpoint, but I never really thought of it as a feedback loop although I imgaine that there are similarities.

But, what about legal applications? Can we use it for more than just speeding? Will such mechanisms make us more likely to obey the law? Why do they work in the first place? Well, here's what the article said on that point:

So feedback loops work. Why? Why does putting our own data in front of us somehow compel us to act? In part, it’s that feedback taps into something core to the human experience, even to our biological origins. Like any organism, humans are self-regulating creatures, with a multitude of systems working to achieve homeostasis. Evolution itself, after all, is a feedback loop, albeit one so elongated as to be imperceptible by an individual. Feedback loops are how we learn, whether we call it trial and error or course correction. In so many areas of life, we succeed when we have some sense of where we stand and some evaluation of our progress. Indeed, we tend to crave this sort of information; it’s something we viscerally want to know, good or bad. As Stanford’s Bandura put it, “People are proactive, aspiring organisms.” Feedback taps into those aspirations.

With all of this in mind, I invite readers to suggest potential applications :-)

[H/T Tim Ferriss]

Inside Job

 

Last night I finally got around to watching the academy award winning documentary "Inside Job." I had been planning to watch it for some time, but somehow ended up finding other things to watch instead. I enjoyed it and found it to be very interesting, but I imagine that readers of prawfs might be split on its merits. A good number of professors (primarily business/economics ) get skewered pretty well in the interviews.

Here are some of my favorite quotes from the movie:

Andrew Sheng: Why should a financial engineer be paid four times to 100 times more than a real engineer? A real engineer build bridges. A financial engineer build dreams. And, you know, when those dreams turn out to be nightmares, other people pay for it

Michael Capuano: You come to us today telling us "We're sorry. We won't do it again. Trust us". Well i have some people in my constituency that actually robbed some of your banks, and they say the same thing.

(My paraphrase) "As I recall I was revising a textbook." (You'll have to watch the movie for context on this one)

Len Bias and historical counterfactuals

Today marks the 25th anniversary of the death of former University of Maryland basketball star Len Bias from a cocaine-induced heart attack. For sports fans of my age group, this is a significant where-were-you-when moment (I was at home studying for my last high school final exams). It was the subject of one of the best of ESPN's 30-for-30 documentaries and Bill Simmons talks about it as the singular event that changed the course of the Boston Celtics and all of the NBA through the late '80s and '90s. And it was a major catalyst for Congress creating the crack/powder disparity that still plagues federal sentencing law.

The assumption always is that Bias would have been an NBA superstar. He was the immediate heir to Larry Bird and would have kept the Boston Celtics (who had just won the NBA title) at the top of the league. And he would have been the truly worthy and equal rival to Michael Jordan in the 1990s. But I always have wondered whether that assumption is correct.

We know (or really, really strongly suspect) two things: 1) June 19 likely was not the first time Bias had used cocaine and 2) Dozens of players drafted in the mid-'80s had problems with cocaine, with several being suspended or kicked out of the league for cocaine use, including some potential stars. So is it equally reasonable to imagine a counterfactual in which Bias' career is similarly undone (or at least fails to live up to its fullest potential) by the league's pervasive drug culture of the time? Especially given that Bias' death itself was one of the major wake-up calls against the drug culture in sports, the event that told leagues, teams, players, and fans in a more explicit and dramatic way that cocaine was something to worry about.

Update: Here is the Salon piece that Joseph mentions in his Comment; it is an interview with Eric Sterling, who was counsel to the House committee that drafted the 1986 drug law and now is president of the Criminal Justice Policy Foundation. The irony of the legislation that was produced is that, we now know, Bias was using powder, not crack, the night he did.

A Must-Read For Father's Day, and for Any Day

Here's a stunning little essay for Father's Day for you to read by Jeff Goldberg. It's one of the best short essays I've ever read. Period. It reveals two important insights: first, the banalities of modern life for most of us are such that most of us never get to demonstrate whether we're actually a coward under pressure. Second, there's a point about "real" happiness here that is all too often lost: "joy is best found not in the pursuit of pleasure, but in the execution of responsibility." Here's a brief intro to the essay:

The morning of Sept. 8, 2008, was like most mornings for Thomas S. Vander Woude, a former airline pilot who, in retirement, kept a farm in Nokesville, Virginia. He went to Mass, and then turned to the relentless demands of his 26 acres. By his side was his youngest son, Joseph, known as Josie, who was 20 at the time, and who had Down Syndrome. Josie’s six older brothers had long ago moved away from home, but Josie was his father’s inseparable companion.

While Thomas was working, Josie was off in a different part of the yard when a broken septic-tank cover gave way under his feet, and he slid in. Vander Woude, from a distance, saw his son fall. He understood right away that Josie was in mortal danger. The tank was 8 feet deep, and filled almost to the top with waste.

Read more here. Happy Father's Day to all. 

 

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?

 

The Imaginary Constitution and Last Night's Republican Presidential Debate

In 2003 Ron Paul posted a short piece on line charging the federal courts with enforcing an “imaginary constitution.”   An imaginary constitution was very much in evidence during last night’s Republican Presidential Debate in New Hampshire, but the fictive foundational law in question was hardly the same one that Paul once accused “activist” federal judges of visiting on the nation.  Judge-made constitutional law said Paul in 2003, shortly after publication of the Lawrence v. Texas decision, was illegitimate as soon as it departed from the constitutional text and original intent of the founders.   Not only was the constitutionalism behind liberal judicial activism illegitimate in Paul’s eyes, but worse still it was unsavory, in that it lead to results considered distasteful by libertarians and social conservatives.  The obvious and overdue remedy said Paul nearly a decade ago was popular reconsideration of lifetime tenure for federal judges.   He did not stop to mention that tenure upon good behavior for federal judges is expressly and unambiguously guaranteed in Article III Section 1 of the Constitution, and he gave no indication that he had the amending process as opposed to legislation in mind as a prescribed solution to the ills he diagnosed.   Textualism and original intent one must suppose have their limits even for so principled a strict constructionist as Paul, and those limits are discoverable at the boundaries between political outcomes social conservatives find desirable and those they find abhorrent.   But perhaps it is uncharitable for me to suggest hypocrisy. It may well be that Paul has simply never read the Constitution (i.e. the written one as opposed to those imagined into being by dreamers of various stripes).  In any case, whether the cause was failure to abide by principle, ignorance, or an active capacity to fantasize, constitutional imagination figured everywhere in last night’s debate.   Consider the following short and in-exhaustive typology of constitutional orthodoxies proffered by the candidates last night at St. Anselm that depart markedly from the constitutional text ratified by selective groups of long since dead people inhabiting some regions of the current United States in 1787-89, 1789-91, and 1865-68.  I have grouped my observations into three classes, which I call text, tradition, and covenant.   Each of them will form the topic of a Blawg entry.  This entry deals with Text, specifically the Citizenship Clause and the Test Clause.

Former Minnesota Governor Tim Pawlenty lambasted Congress and the activist federal judiciary for recognizing birth-right citizenship for children of illegal immigrants, and touted his record of appointing conservative judges in Minnesota as proof that he was committed to ensuring the federal judiciary would not in future be staffed with liberals unwilling to take the Constitution seriously.  Given the enormous amount of attention directed at nascent movement to amend the Constitution to purge the Citizenship Clause of the Fourteenth Amendment, Pawlenty’s belief that birth-right citizenship is a judicial creation is hard to fathom.   Section 1 clause 1 of the Fourteenth Amendment states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  There are those who argue that the children of non-citizens are not subject to the jurisdiction of the United States and therefore fall outside the Citizenship Clause, but the more natural reading is surely that all persons in the United States except those who enjoy diplomatic immunity are subject to the jurisdiction of the United States, and that their children are therefore entitled to birth right citizenship.  After all, nobody could seriously argue that a person lacking diplomatic immunity who was detained in the United States for a crime allegedly committed in the United States was not subject to the jurisdiction of the United States because his parents were foreigners.  To be sure, Pawlenty may not be out of the mainstream of Republican Party thinking on the question of birth-right citizenship, as the Birth Right Citizenship Act of 2011, currently in committee in the House, purports to eliminate birth-right citizenship for children both of whose parents are illegally in the country, constitutional text notwithstanding.  Whether it would amount to activism or plain meaning textualism for the judiciary to hold this Bill unconstitutional under the Citizenship Clause should it ever become law probably depends more on the intellectual honesty of the observer than nice semantic questions.   One can’t but wonder whether constitutional change as inelegant as the Eleventh Amendment might not offer a slightly (and only slightly) less disingenuous way out for those who wish to deport the children of illegal immigrants and still feign fidelity to the Constitution:  Nothing in the Constitution (such as perhaps the Birth Right Citizenship Clause) shall be construed to confer birth right citizenship on the children of illegal immigrants, or other classes transient legislative majorities may find objectionable, and hence ineligible for constitutional protections cast in otherwise universal terms.

Godfather Pizza magnate Herman Cain, who held out his chief qualification for presidential office as complete lack of political experience, likewise favored using a rubric of cultural purity to establish fitness for civic participation. Where Pawlenty failed to account for the Citizenship Clause of the Fourteenth Amendment in assessing the eligibility of native-born children for continued residence in the United States, Cain chose to consider fitness for political appointment in blissful ignorance of the Test Clause of Article VI, which commands that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  When moderator John King asked Cain to clarify recent remarks suggesting he would never appoint a Muslim to a cabinet position, neither Cain nor any other candidate on the stage gave any evidence of familiarity with or loyalty to the Test Clause.  Cain appeared to retreat somewhat from the ironclad rule he had earlier described, implying that in some instances it might be possible to survive the additional tier of vetting appropriate when nomination of a Muslim was under consideration.   The two-tiered process for Muslims and no others would be very difficult to reconcile to constitutional Equal Protection principles, a serious constitutional concern that equally escaped all the candidates’ attention.  Then again, for federal as opposed to state action outside the area of appointment to office, it is generally possible for a principled textualist to make a case that Equal Protection is irrelevant, which comes close to what Robert Bork did forty years ago in arguing that Brown v. Board of Education was rightly decided, but Bolling v. Sharpe (requiring desegregation of public schools in Washington D.C.) was not, since the Equal Protection Clause does not by its own terms target the federal government.   The Test Clause however applies squarely to federal appointment, so from a purely textual basis, religion-based exclusion from federal office is on even shakier ground than race-based discrimination in hiring by federal actors.

Last night’s debate was fascinating and engaging, and though constitutional text was celebrated with much fanfare, the particular positions developed by the various candidates discussed above did not evince on an individual or collective level a rock solid commitment to knowing and enforcing constitutional text.  Entries on the role of constitutional tradition and constitutional covenant in yesterday’s debate will follow shortly.

Who would be your graduation speaker ...

if you could have anyone do it? Here's Conan O'Brien giving the commencement address at Dartmouth:

 

Originalism, Foundation Mythology, and Paul Revere's Midnight Ride

I probably disagree with Sarah Palin on most political issues, and in the unlikely event I ever sat down to chat with that most conversational of former governors, she and I would probably find little ideological common ground. Beyond that, I am not quite sure I can trust anyone who appears as gifted as she surely is as a salesperson. My psychological intuitions are not keen enough to discern whether she fully believes in what she’s selling, or whether she simply believes that what she’s selling is highly saleable. I doubt very much that anyone else (not even Ronald Reagan) could have successfully packaged the American “foundation” as a family holiday bus tour, and offered it up for public consumption with apparent conviction and genuine aplomb.

The Paul Revere matter presents a more particular and more delicate case in point. Images of his midnight ride endure faintly for me as blended childhood memories of my parents reciting Longfellow and of me taking in Bicentennial Minutes broadcast on CBS just before bed time when I was nine. Objectively speaking, those sources can’t justify any firm faith on my part that Revere did not ride out ringing dem bells like a Christmas elf, aiming to warn the British not to seize American arms [I’ll leave commentary about conflicted and contested national identities during the British North American Civil War of 1775-1783 for a later post]. But when it comes to the question of whose arms the British were to refrain from seizing, my visceral response to Palin’s account becomes somewhat more cynical, and my suspicion that she departs from Longfellow’s narrative for calculated and designing reasons that much stronger. The arms, one learns when listening to her clarifying remarks offered the day after the visit to Boston, belonged to “private militia”. When reporting that the arms Revere rode forth to guard from the confiscating hands of the King’s men were held by private militia, Palin employs (quite deliberately in this instance I believe) coded speech signaling to fellow travelers her endorsement of a right to revolution even for light and transient causes. Her belief that the militia of the Second Amendment, or the Army of the Constitution, was no creature of provincial law but a spontaneous manifestation of pooled privatistic resistance to authority serves as a perfect synecdoche for her vision of a restored America in which there is very little in the way of governance and a great deal in the way of flag waving nationalism.

Now, it may well be that her vision is noble and principled, and that it holds out hope for redemption of the greatest possible number of residents of these shores. My question is why must it appeal to imagined history for authority? In 2011, why do people who know very little history debate the merits and demerits of gun control and the advantages and disadvantages of the regulatory state by reference to historical events they understand only on a mythical level, or that they willfully misconstrue? I do not agree with originalism of the original public meaning variety for many reasons (principally its demonstrated failure to lead to “neutral” judging), but I acknowledge the philosophy is at least coherent. If one believes that governance by judiciary is illegitimate, and that doubtful constitutional text admits of a single interpretation allegedly dominant at the time the text was ratified, then judicial recourse to original public understanding presents a possible answer to a pressing problem. Nor do I believe in the continuing viability of the constitutional compact-based justification for judicial review first offered up by Chief Justice Marshall in Marbury v. Madison, chiefly because I agree with Jefferson that past generations should not govern the living. But if in some abstract sense judges are not usurping the people’s will be merely checking the people’s legislative agents who would otherwise abuse the will of the people on fundamental questions reduced to written form in the constitutional compact, then judicial veto of legislation is less anti-democratic then it may appear.

What I cannot understand at all is how Sarah Palin’s implicit claim that cultural preferences that allegedly prevailed in 1775 or 1787-89 continue sacred and inviolable today acquires legitimacy. Quite apart from the former Governor’s lack of expertise on late eighteenth century North American cultural history, why does the assumption that Paul Revere’s rode for anti-statism in 1775 require right thinking Americans to be anti-statist today? Palin’s claim goes several levels beyond the distinct desires of Justice Scalia or Chief Justice Marshall to discipline judges or legislators by the express terms of a constitutional compact. Palin’s presumption enshrines principles alleged to dwell outside the constitutional text and makes of them un-amendable law. On an intuitive level, tens of millions agree with Palin that the United States was libertarian in its foundations and that loyalty to the American character requires continued faith in libertarianism in the here and now. Their beliefs, I suspect, are under-theorized, in the sense that their adherents can offer only circular explanations for their faith. Right-thinking Americans are duty bound to be libertarian today, the believers proclaim, because right-thinking Americans were libertarian in the beginning. I’d be intrigued to hear more compelling accounts for the continued relevance of Paul Revere. I submit one could argue as cogently for or against constitutional restraints on gun control if Paul Revere were left out of the picture entirely. Then again, when Longfellow commemorated the famous ride of ’75 the year was 1861, and instrumentally at least, the poet’s patriotic appeal served a very powerful and entirely legitimate purpose indeed. Unless of course one endorses a right to secede for purposes of perpetuating oppression, but that is another question for another post.

Mandatory service hypothetical

On the law and courts discussion email listserve Lief Carter just posted this hypothetical on mandatory service (I reprint it with his permission):

Would anyone care to comment on the following hypothetical?:  Congress passes a mandatory national service act in which, for the improvment of the economic and social infrastructure of the United States, all able-bodied Americans must, between the ages of 18 and 25, devote two continuous years of service in their choice of the U.S. Military or a National Service Corps or a comparable organization.  They will work for minimum wage.  Would this law not pass constitutional muster?  Would such a blanket requirement have any closer a connection to interstate commerce than mandatory health insurance?  [In this regard has anyone seen an estimate of how much $$s ought to be saved via the fewer inefficient emergency room treatments of the uninsured poor once the new system goes into effect?]  Are there significant quantitative differences in the degree of intrusion on personal liberty between requiring people to shell out some X dollars/month for health insurance (which a majority of Americans already do) and devoting two years of their lives to something they would not freely choose to do themselves?

It's an interesting question. Of course Lief is not the first to think on this issue - many have posited he basic idea of mandatory service in the US. However, I find the Constitutional issue less interesting than the potential social and policy implications of such a law. If we did have such a requirement what would be the limits - could you get out of service with a doctor's note? What would we do with people who refused to serve? Could the government, in times of need, recall servers to serve again at a much older age? Would this be analogous to the military draft or a very different proposition?

Fear and culture

My first purpose in this post is to direct readers to a fascinating research endeavor headed by Yale law professor Dan Kahan and George Washington University law school professor Donald Braman - the Cultural Cognition Project. Here is a brief description of the project from its website:

The Cultural Cognition Project is a group of scholars interested in studying how cultural values shape public risk perceptions and related policy beliefs. Cultural cognition refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. Project members are using the methods of various disciplines -- including social psychology, anthropology, communications, and political science -- to chart the impact of this phenomenon and to identify the mechanisms through which it operates. The Project also has an explicit normative objective: to identify processes of democratic decisionmaking by which society can resolve culturally grounded differences in belief in a manner that is both congenial to persons of diverse cultural outlooks and consistent with sound public policymaking.

I've been doing some reading in recent months on the topics of fear and risk and find the topic very compelling, especially with regard to how it plays out in our day to day lives (sometimes on rather mundane matters). My second purpose in this post is to pose to you, dear readers, a quick question: Can you think of any fears that could be described as distinct to a country you are familiar with - this doesn't mean that it only occurs in a given country, but rather that it is much more prevalent or pronounced in that country. Alternatively we might think in terms of regions within the United States. Sunstein offers the example of European nations taking a much more precautionary approach to genetically modified food than the United States. I'm thinking more along the lines of individual fears - are there things that you have seen people fear greatly in this country that are largely ignored in others? Or vice versa?

Kansas and the Mexican Question

In my last Prawfsblawg entry titled Feral Pigs, Communist Pigs, and Incitement to Genocide, I stressed the point that vocabulary matters enormously in the context of explaining and attempting to justify violence against human beings.  In a marginally well adjusted society, one might hope, it should be more or less axiomatic to most people that killing fellow humans cannot be justified by likening persons or groups to animals, and that killing explained by no more convincing rationale than the victim classes’ alleged pig-like or cockroach-like attributes is morally repugnant.   Yet international and inter-ethnic conflict and oppression today appear as closely intertwined with the false science of dehumanization as were their antecedents in the medieval and ancient worlds.   The rhetoric of extermination deployed in Rwanda or Nazi Germany seems as little touched by the sensibilities of the Age of Enlightenment as were the primitive impulses of hate and fear that shaped the deontological opposition of Muslims and Christians in the Middle Ages.   Barbaric sensibilities might be cabined or controlled in modern culture, but they awaken all too quickly in all too many people when summoned to support inhuman projects by evil or unthinking speakers.

Kansas state representative Virgil Peck, who Wikipedia lists as Chairman of the Republican Majority Caucus, recently suggested machine gunning illegal immigrants from helicopters as a useful public policy option, given the reported successes in thinning the state’s feral pig population by similar means.  A decade before champions and opponents of slavery’s expansion into Kansas fought the infamous prelude to the American Civil War known as Bleeding Kansas, the slaveholding United States fought free Mexico in a two year war leading to the annexation of one third of Mexico’s territory into the United States.   Some cultural imperialists justified the War principally by invocations of Manifest Destiny and articulated arguments that allegedly stronger races were destined to conquer allegedly weaker ones.   But for President James K. Polk and then Congressman Abraham Lincoln, at least as a matter of public discussion, the war’s justice or injustice hinged  not on the politics of race, but on decidedly U.N. Charter-era considerations that today would be cast in terms of illegal aggression and lawful self-defense.  In his speech in the United States House of Representatives on January 12, 1848, Lincoln characterized his dispute with Polk as follows: "The President [Polk], in his first war message of May, 1846, declares that the soil was ours on which hostilities were commenced by Mexico, and he repeats that declaration almost in the same language in each successive annual message, thus showing that he deems that point a highly essential one. In the importance of that point I entirely agree with the President. To my judgment it is the very point upon which he should be justified, or condemned.”

Lincoln and other war skeptics took it for granted that only self-defense could justify collective violence.

  Alleged animal attributes or racial inferiority did not figure in his calculus. Looking back on the Mexican War in his post-presidential Memoirs in 1885, Ulysses Grant offered a similar assessment.  By the standard that aggression was illegal and that only self-defense could justify violence, Grant measured the U.S. decision to wage war against Mexico in the balance, and found it wanting:  “[T]o this day [I] regard the war . . . as one of the most unjust ever waged by a stronger against a weaker nation. It was an instance of a republic following the bad example of European monarchies, in not considering justice in their desire to acquire additional territory. . . . The occupation, separation and annexation were, from the inception of the movement to its final consummation, a conspiracy to acquire territory out of which slave states might be formed for the American Union."

The first generations of G.O.P. leaders had a far sounder understanding of basic principles underlying the illegality of collective and individual killing than the leader of the Kansas Republican Caucus does today.  Lincoln and Grant’s Whig forbear Daniel Webster spelled out these fundamental principles memorably in the context of the Caroline Dispute from 1838-42, and Webster’s insistence that defensive force was justified only when necessary and proportionate to repulse an existing or imminent attack accurately represents both municipal and international law to this day.  Virgil Peck would have done well to internalize the basic maxims understood so clearly by Grant, Lincoln, and Webster and to disown forever the politics of racist incitement.   The fact that Peck has so far not resigned his position and his seat is troubling, for it signals to the world that a man willing to endorse profound evil can ascend to high office in the United States.   From this writer’s perspective, the fact that the people of Kansas and of the United States have not been adamant in demanding his resignation is more troubling still.

Of Feral Pigs, Communist Pigs, and Incitement to Genocide

Yesterday’s Lawrence (Kansas) Journal World featured a front page spread commemorating ten noteworthy and/or outrageous developments in the just concluded Kansas legislative session.  Coming in near the top of the list were remarks made by state representative Virgil Peck, who suggested back in March that shooting feral hogs might serve as a useful model for addressing a perceived problem of illegal immigration to the state.   Peck’s comments are disturbing on any number of levels, not least because their surreality and shock value; nonetheless, they have generated little national reflection about the central role of animal metaphors (particularly pig-centered metaphors) in propaganda and incitement to genocide.  In context, Peck’s remarks are stranger still, as the program he endorsed as a suitable model for immigration culls involved the Palinesque prospect of machine gunning feral hogs from helicopters. 

Peck’s precise language -- “It looks to me that if shooting these immigrating feral hogs works maybe we have found a problem to our illegal immigration problem” -- becomes truly gut-wrenching when one realizes that he obviously meant to use the freighted term “solution” in place of his first invocation of “problem.”   Wrestling seriously with genocide, crimes against humanity, and incitement as offenses that have been and can be perpetrated by Americans as well as alien peoples may not particularly burden the national attention span, but shooting feral pigs on grounds of racial purity has, it seems, become a minor obsession in a least some quarters of the country.  A few weeks ago I stumbled across a documentary (mockumentary?) on the Discovery Channel titled something like “Pig Bomb” and “Russian Boars” exploring the alleged explosion of the wild hog population in the Southeast.   The thesis of the show was that American farm pigs and their feral prodigy are well meaning and seldom uppity, but that in recent decades giant immigrant wild pigs from Russia and Ukraine have infested the native American population and made it dangerous by cross-breeding.   I suspect the show was meant to be taken seriously, but it might as well have been a Canadian or European spoof of overblown American xenophobia and anti-communism.  

Peck’s remarks tap into a long vein of nationalist discourse about the dangers of foreign pigs and commie pigs.   A half-hearted apology issued under pressure a day later does not dispel my sense that Peck is no mere unconscious racist (to borrow Charles Lawrence’s phrase).  When challenged on the obvious racist valance of his remarks, Peck was hardly in a position to feign outrage as Newt Gingrich recently did when called to account for labeling Barack Obama the Food Stamp President.   Peck’s approach is naked, direct, and dehumanizing.   It is the approach of Joseph Goebbels and Radio Mille Collines.  It is incitement to genocide.   The Rome Statute treats incitement purely as a modality of genocide, a means of attributing liability after the crime of genocide is completed.   The Genocide Convention, more soundly in my view, treats incitement as an independent offense that can be completed absent any actual killing.   Peck’s commentary goes well beyond group libel.   It is criminal and should be of grave concern to thinking citizens of the United States and the world.

Your favorite trial performance in a movie

I'd like to start by thanking Dan Markel and the rest of the Prawfs gang for inviting me to guest blog this month. I thought I'd start off with the fun post, although that implies that my remaining posts will be serious --  which is not something that I'm willing to commit to.

What is your favorite trial scene performance by an actor in a film? I imagine that certain iconic performances come to mind such as Gregory Peck as Atticus Finch in "To Kill A Mockingbird." I am hoping that people will rccall some not so famous performances as well as the well-known ones. One of my favorite trial scene performances is by a not-so-famous actor, Lane Smith. Smith appeared as a character actor in a good number of television shows and movies during his long career, including "Kojak," "The Rockford Files,"Dallas," "Red Dawn," "My Cousin Vinny," and "The Legend of Bagger Vance," among others. However, it was his role as Panama City, Florida criminal  defense attorney Fred Turner in The Hallmark Hall of Fame's "Gideon's Trumpet" that caught my attention.

In addition to its star, Henry Fonda (playing the title role), the made for TV film boasted a number of other good actors, including John Houseman (as Chief Justice Earl Warren), Jose Ferrer (as Abe Fortas), and Faye Wray in her last film role. I could be wrong, but I believe that Harry Dean Stanton also makes an (uncredited) appearance. The film can be a bit hard to find but I have a taped version that I use in class on occasion - I guess I'll be in trouble when they quit equipping classrooms with the old VCRs. I am a bit reluctant to post the scene, which is available on Youtube, as it is a bit long and comes in two parts. However, I think that it highlights very well the difference that a good lawyer can make in a trial outcome. But enough about my favorite trial performance in a movie - what's yours?

Can you copyright a nose job?

There’s been a lot of discussion in the blawgosphere recently about the Mike Tyson/Hangover 2 tattoo case, and the underlying question of the copyrightability of tattoos.  In the context of that discussion on an IP profs’ listserv, Lior Strahilevitz posed a related question:  If tattoos are copyrightable as works of authorship fixed on the human body, shouldn’t nose jobs also be copyrightable?  Is there a principled copyright distinction between the Mike Tyson face tattoo and, say, Bristol Palin’s recent rhinoplasty?

Before exploring this question, let me offer some quick background.  Not all products of the mind are copyrightable.  Works of authorship have to be original and fixed in a tangible medium of expression (TME) in order for federal copyright (though not necessarily state common-law copyright) to vest.  Most fixations of works of authorship are made in familiar media—canvas, a book, the memory of a computer—and as long as they last for more than a transitory duration, fulfill the fixation requirement. 

This raises three questions, each of which have been raised on the IP profs’ listserv.  First, is a nose job a work of authorship?  Second, is a nose job fixed in a tangible medium of expression?  And finally, is a nose job original?  I consider each of these points below the fold.

First, a few writers asserted that a nose job isn’t a work of authorship, full stop.  Works of authorship are listed in section 102(a) of the 1976 Copyright Act, and unsurprisingly, “nose job” isn’t among them.  One might conclude thus quickly that as a simple matter of statutory construction, the 76 Act excludes nose jobs.  This strikes me as far too hasty a conclusion, for two reasons.  First, section 102(a)’s list of works of authorship is inclusive, not exclusive.  The text says, “works of authorship include” the relevant categories, not that works of authorship include only the referenced categories.  It seems pretty clear from this (and other aspects of the 76 Act) that the framers wanted the statute to remain flexible in terms of what counted as a work of authorship.

In addition, there’s a category listed in section 102(a) that does seem to fit nose jobs reasonably well:  sculptural works.  Where artists fix their original ideas in three-dimensional form, whether via marble or clay, we have no problem calling the resulting work a sculpture.  Why should the human body be any different?  I can think of some prudential objections that I’ll elaborate below in discussing fixation, but as a textual matter I don’t see any basis for this distinction.

The final point some have raised with respect to whether nose jobs can be works of authorship is that surgeons are not “authors.”  They are more like craftspeople, because they don’t infuse their work with the sine qua non of copyright, originality.  This is a plausible argument, though I think also too hasty, but it really seems to belong in the discussion of originality, which I’ll get to below.

A second objection to the copyrightability of nose jobs may be that they are not valid fixations in TME.  The Second Circuit recently decided a case that nicely laid out a two-part test for what constitutes a valid fixation.  A fixation must persist in some physical form, such as a book or canvas.  A nose is clearly tangible, and easily meets this standard.  A fixation must also meet a duration requirement; that is to say, the fixation must persist for some minimum time in order to be valid.  Ephemeral fixations such as in skywriting or the very brief memory of a computer would not count.  Here, too, a nose seems clearly to meet the relevant standard, since rhinoplasty lasts until the face of the recipient turns to dust. 

Some writers have suggested that the human body is not a "medium of expression."  This doesn't strike me as valid.  We use our bodies to express ourselves all the time in ways too numerous to list.  And artists sometimes use others' bodies to express themselves, such as where photographers use models to acheive a certain aesthetic effect. 

Now let’s consider the final doctrinal hurdle for the copyrightability of nose jobs:  originality.  Copyright originality means that there must be a modicum of creativity in a work, so that if it is a slavish imitation of the outside world that reflects no input from the author, then it does not merit protection even if it is the product of considerable effort.  Exact digital images of cars, for example, have been held to lack the requisite originality to merit federal copyright protection.

Nose jobs, it seems to me, may well lack originality in the majority of cases.  The point of most nose jobs is not to create a creative or distinctive look, but rather to make the patient’s nose fit some preexisting (usually, smaller) archetype of what a nose should look like.  This is the antithesis of originality; it’s an attempt to make the patient’s nose less, not more, distinctive and original.

It is, however, not descriptively accurate as applied to all nose jobs.  Most nose jobs probably fit this category, but some patients actually do want a nose job to be distinctive and set them apart from the crowd.  Consider, for example, body modification.  This practice involves alterations to the body including piercings, tattoos, and plastic surgery in order to attain outrageous and undeniably distinctive (if often grotesque) results.  This presents a much harder case for the copyrightability of plastic surgery.  If a patient for whatever reason wants to have a nose job to look freakish rather than to fit in, then one might have to concede that there is originality there, and such body modifications may well be copyrightable.

Beyond these doctrinal points, though, lies a prudential consideration that’s well worth considering, and has already been gestured at by an eminent commentator who’s come out against the copyrightability of tattoos.  Even if some (though probably not most) nose jobs may be original, validly fixed works of authorship as a matter of statutory text, as a prudential matter the idea of allowing the human body to count as a site of fixed works of authorship may be disastrous.  It would open the door to, say, copyright in hairstyles or even ripped musculature.  In such a world, any picture or film that captured an image of any person could--perhaps even would--subject the photographer or videographer to infringement, with attendant financial risks (given the substantial statutory damages associated with even inadvertent copyright infringement).

And this, in turn, raises the specter of ceding rights in one’s body to another person, since it's the author of a work of authorship, not the object in which the work is fixed, in whom those rights vest.  If a plastic surgeon has the copyright in my nose, then am I constrained in my ability to go in public to display it?  Do I have to get permission to have photos of my face taken?  And since copyrights can be sold and re-sold, I may not even know the person who has rights that constrain the use of my own body. 

This point is all the more concerning to the extent that some works of visual art are also subject to the moral rights scheme of the Visual Artists Rights Act, which could mean that surgeons (or whoever owns the copyright in the relevant nose) have rights of integrity and attribution concerning the patient’s nose, so that they might have a cause of action should the patient want to alter their nose (with more rhinoplasty or a nose ring) or lie about its origin (and I suspect many patients indeed want to downplay having had a nose job).

At the end of all this, what’s the verdict on the copyrightability of nose jobs?  I think many, probably most, nose jobs would fail because they’re insufficiently original to merit copyright protection.  Those few that do possess sufficient originality, though, present a harder case.  While they do seem to meet the relevant statutory standards for copyrightability, the prudential considerations raised by accepting the idea of owning works of authorship fixed in the human body are concerning, and I think may counsel in favor of a categorical rule that fixations in the living human body are not valid fixations for copyright purposes.

And this final point, if persuasive, returns us to the subject matter from which this post originally grew:  the Mike Tyson tattoo case.  Most commentators (self included) readily assumed that tattoos are valid fixations, and if original, merit copyright protection.  But if there should be a bright-line rule precluding copyrighted works fixed in the human body, then this would seem to exclude tattoos from the realm of valid fixations as well.  This does not mean, of course, that tattoo artists could not copyright their designs, but only that unauthorized tattoos of those designs would not be actionable because they would not count as “copies” within the meaning of the Copyright Act.

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?

Fed Courts on TV?

Last night on AMC's The Killing, a character cites to and discusses Hunt v. Washington State Apple Advertising Comm'n, the leading Supreme Court case on associational standing, in arguing that a midnight basketball program has standing to challenge the city's withdrawal of its funding (in the story, this is a political ploy by the incumbent mayor to get at his opponent, who is a big supporter of the program). I am not sure Hunt actually is relevant here, since the organization would be suing on its own behalf, not on behalf of its members. And it is presented as this obscure case that the protagonist finds only through careful legal research that gives him the idea for a lawsuit--as if he never thought of a lawsuit until he found this one case. Part of me thinks the writers threw it in there only because the show takes place in Seattle.

Later, we find out the judge rejected the standing argument and denied the request for an injunction. But only because the judge assigned to the case was the mayor's old fraternity brother, thus furthering television's meme that judges are corrupt and craven political actors who ignore the law and protect their political cronies.

Still, Art. III standing on basic cable. Who'da thunk?

The Short Sharp Paper Series and a movie review too.

Since I would clearly never engage in icky acts of overt self-promotion, and I cringe :-) at the thought of others saying nice things about me or my work, that leaves it to me to sometimes use the blog responsibly and say nice things about the work of others. During this last semester when I had the privilege of a teaching release, I probably read more drafts than I usually do, sometimes to the consternation of those whose drafts I had read and commented on.  But I've also had the chance to continue reading lots of finished products and lately I've found all sorts of wonderful stuff worth sharing. Of course, I should be writing this up on JOTWELL, which was created with the smart idea that we should share our reactions about papers that we liked (lots)--it's a concept I love and I have even contributed, but, dammit Jerry, writing up a JOTWELL entry takes time. Fortunately, Facebook status updates don't take much time...and this post is sort of an agglomeration of some recent status updates--talk about synergy. 

Those of you on FB with me may have noticed that I have unwittingly started a series of touts or vouches for sharp and usually short papers that may be of broader interest. This has proven useful to a few of you, or so you say, Tamar and Sarah. In any event, I figured some of you may enjoy knowing what I've found really good or helpful to me recently, but I should note that I won't be offering explanations of why I think they're good. These will be like my occasional Ruth Franklin-inspired movie reviews. [Btw, I saw Win Win a couple weeks ago on a date night--worth watching, but for Netflix, not necessarily in the theater, at least if you triage your movie time as I do under the constraining presence of little monsters angels in your blessed and beleaguered life.]

So, without further adieu, here are a few disparate links in no particular order:

a) my Robin West brain crush continues unabated: here's some stuff of hers with which I recently slaked my thirst

b) a short YLJ student note by now prof Stuart P. Green on challenging prosecutorial inaction

c) an awesome YLJ essay by Jeremy Waldron from a few years back on democracy and judicial review--and Fallon's concise but cogent response, which I've now just read based on someone else's rec.

d) a nifty and short essay by Sasha Volokh addressing and critiquing the progressive case for cost-benefit analysis as propounded by Ricky Revesz and Michael Livermore

e) and finally for today, a recent piece by Sean Williams on self-altering injury and the hidden harms of hedonic adaptation, which just came out in the cornell lr.

Enjoy your reading time as summer beckons. And feel free to share similar positive reax to the work of others (non-anonymously) in the comments.

P.S. Did y'all hear FOP Alex Long on NPR the other day dishin' on his Bob Dylan and the Law stuff? You can find the link here. 

The Gaga Saga as a law-and-norms story

What little I observe of entertainment news has suggested that nothing titillates audiences and outlets more than a public spat (or, as the case may be, kerfuffle) between two celebrities.  Yesterday’s to-do du jour pitted Weird Al Yankovic against Lady Gaga in the court of pop-cultural opinion.  As Al described in a thorough blog post, he wanted to parody Gaga’s “Born This Way” with a knockoff titled “Perform This Way” that would poke fun at Gaga’s outrageousness (raising the question whether you can parody someone whose style borders on parody anyway).  Al, as is his custom, gave Gaga (through, it appears, her management company) copies of the lyrics, and asked for permission to make the parody.  Given that Gaga’s original song is “an earnest human rights anthem” (Al’s words and opinion, not mine), Weird Al also offered to give any profits from the song to charity.

Gaga’s management company responded that she’d have to hear the song before approving, so Al went to the considerable time and expense of creating a fully mastered sound recording, and submitted it to Gaga’s management company.  Gaga apparently finally formed an opinion:  No.  Al, peeved (in part because he seems to be aware that he probably does not even need to seek permission for parodies under federal copyright law’s fair use doctrine), went ahead and released the song on YouTube without the accompanying video that he’d been planning. 

The internets responded quickly, as they do, and the verdict was squarely on the side of Al.  The comments on Al’s blog post about the Gaga Saga were particularly malevolent toward Lady G, and in the midst of the bile-fest, a reversal occurred.  Now the word from her camp (pun fully intended) was that Gaga loved the song, and was thrilled to give permission and have Al parody the living hell out of it, video, album, and all.  The story is that Lady Gaga had never heard “Perform This Way,” and that her manager had wrongly reported that she wanted to deny permission for the parody (indeed, he appears never to have actually told her about the parody).

This ultimate outcome isn’t surprising.  Weird Al always asks for permission to do his parodies, and he almost always gets it (though there have been other testy misunderstandings, including one involving Coolio and Weird Al’s “Amish Paradise” parody of “Gangster’s Paradise”).  But how the Gaga saga unfolded is unusual, and, I think, interesting in what it tells us about how social norms interact with, and often push to the sideline, legal doctrines that formally mediate the rights of owners and users.  I say more about the interaction of copyright law and social norms, and what the Al/Gaga tiff says about it, below the fold.

Most law professionals, I’d wager, tend to be legal centralists.  That is, we assume that law is a, if not the, primary determinant of people’s conduct.  Criminal laws purportedly make would-be wrongdoers think twice before doing something awful like jaywalking or marrying someone of the same gender.  Economic actors are thought to bargain in the shadow of the baseline entitlements law creates.  But lots of evidence suggests that this legal centralist account often fails.  I just finished a paper analyzing an elaborate regulation scheme that arose, and persists, with little if any thought about available IP law.  And the Gaga saga provides an object lesson illustrating how disputes can arise and be resolved in ways that are unrelated to, and in some respects even inconsistent with, what law might predict.

Start with Weird Al’s practice of seeking permission for his signature parodies.  This move seems puzzling from a legalist perspective because Al’s works are pretty clearly the kinds of uses that are permitted pursuant to the fair use provisions of the Copyright Act.  They’re parodies (because they mock the original work directly), and while that’s not dispositive of the issue, parodies are a form of use that’s strongly favored as fair following Campbell v. Acuff-Rose and its progeny.

And yet despite his apparent entitlement to parody without permission, Weird Al goes about seeking it.  Why?  My guess is that this practice is driven by norms and practices distinctive to the music industry.  By asking artists whether he can parody their songs, Weird Al shows respect to his fellow musicians—a gesture whose effectiveness may be enhanced by the fact that it’s unnecessary.  (Consider by comparison the tradition of asking a bride’s father for permission to marry his daughter—everyone knows that it’s not necessary, but it’s a nice way of building goodwill by performing deference.)  And showing this kind of respect likely has long-term salutary effects for Al, by building a store of goodwill within the music  world, and by forestalling litigation that might otherwise ensue (if only out of spite).

The trick, of course, is:  what do you do when you ask for permission to do something you’re entitled to do anyway but get denied?  That was the conundrum in which Al found himself yesterday, and a legal centralist would likely predict that he’d go ahead and exercise his prerogative and parody away.  But he didn’t:  Instead, Al took a halfway measure, apparently conceding not to include the "I Perform this Way" in the forthcoming album, but blogging about the episode at length, and posting the song (sans video) on YouTube with notes about how Gaga had negged it.

The ensuing response was swift and conclusive:  the court of public opinion roundly rejected Lady G’s rejection of the parody, and delivered its verdict in terms ranging from tactful to the kind of unhinged-crazy that is so distinctive to internet threads.  I cannot explain why or how Gaga and her people reversed themselves, but I strongly suspect the outpouring of vitriol had something to do with it.  At the very least, the angry tweets and posts brought the issue to the attention of Gaga, who learned that her manager had negged the song without her knowing about it.  Law again appears to have played little role.  One can imagine a legalist narrative (Weird Al says, “I’m entitled to make this song anyway per fair use, so it’s going in the album, like it or not,” and in light of that admonition, Gaga capitulates), but instead we see social forces—mass outrage, directed shaming—doing the work.

It’s tempting to read too much into stories like this.  Legal debates (and non-legal debates, obv.) often get reified into their polar categories, with aficionados of each side claiming that an anecdote illustrates the truth of their preferred camp (“I told you law was ir/relevant!”).  I want to resist this temptation here, first by pointing out that (again, obv.) this single anecdote can’t do sweeping analytical work, but also by stressing that it shows at most that law is marginal, but not irrelevant.  Perhaps Weird Al’s success in gaining permission for his parodies is due in large part to the owners’ knowledge that he’s likely entitled to parody them anyway, so resistance would be futile (though it should be observed that Al was doing this well before Campbell adumbrated parody’s status as a favored category of use in 1994).  And perhaps the outrage about Gaga’s initial response was due to her denying Al what was perceived to be his entitlement at law.  So the players in the Gaga saga may not have been explicitly conducting themselves in the shadow of law, but law may have been lurking in the shadows in ways that are not obvious.

Finally, it’s also tempting to conclude that when a story like this works out for the best, that it’s more evidence that social norms tend to produce normatively attractive outcomes.  But this, too, would be premature, I think.  In this case, the screaming cacophony of the internet pushed in favor of, and may have helped achieve, what seems like the right result (under law certainly, and probably also normatively).  But this sanguine story shouldn’t lead us to be uncritically enthusiastic about the wisdom of cyber-crowds.  One sobering note is that the many posters who excoriated Lady Gaga got their facts exactly wrong.  If her official story is true (and I have no reason to think it's not), Gaga never actually denied permission for “I Perform This Way,” but you won’t see any retractions from the brave anonymous posters who were calling for her scalp before getting all the information. This isn’t to suggest that the collective voice of the internet is inevitably bad, either, but only that it has no intrinsic moral valence.  This voice is a powerful force, like gravity or desire, and like those other natural forces can be directed at bad as well as good ends.

Will Organ Donation "Save" Death Row?

I just came across this fascinating oped in today's NYT by Christian Longo. Longo is on death row in Oregon, and as, he says, he is guilty of killing his wife and children. As an ostensibly contrite murderer, he is trying to make the best of his situation: he has abandoned his appeals and is trying to persuade  prison officials in Oregon to allow him to donate his organs upon his execution. The officials, however, have said no.

The officials have invoked several rationales for denying his request so far. Among them: increased likelihood of diseased organs, safety, inability to give informed consent, etc. Longo, however, has an interesting website, and the site addresses these various concerns. Importantly, Longo is not the only person on death row who would like to volunteer his organs. Nonetheless, there are no protocols in place to allow this life-saving altruism to unfold. 

Notwithstanding the substantial attention it receives, the death penalty itself is slowly dying in the United States as an imposed punishment. (So sayeth Columbia's Jeff Fagan at least, and it is a demise I welcome as a retributivist against the death penalty.) Nonetheless, I wonder whether the institution of the American death penalty would be "healthier" if death row inmates were permitted to donate their organs. If they were, my suspicion is that death penalty advocates would find a whole cluster of new supporters. Conversely, I worry that opponents of the death penalty will oppose organ donation efforts simply because it will politically imperil the demise of the death penalty.  Perhaps these worries are misplaced, but I can't quite put them aside after reading Longo's eloquent oped and interesting website--which, by the way, raises its own many questions of how a death row inmate becomes a policy entrepreneur with a paypal account anyway, but that's a topic for another day.

Stuxnet and PsyOps

After reading this post by Jeff Goldberg on the risk of Iranian psyops, I was reminded of this indelible exchange involving Wallace Shawn as Vizzini in the Princess Bride. And this fun Gladwell article on spying in the New Yorker. Happy Sunday.

 

Good News from Paris

Following up on my post from last week, I'm happy to report that Joe Weiler's travails are more or less over. There's still an avenue of appeal open to the "plaintiff" but the court has ruled in favor of Weiler; moreover, Weiler has even won some ostensibly punitive damages from the plaintiff based on the abuse of process claim. Weiler's reaction is here. (H/t to Matt Kramer via FB.)

The Leo Strauss Tapes

I've blogged here before about my book project on Leo Strauss's ideas on war, peace, and law.  One of the steps forward in this project came when the literary executor of Strauss provided me with a transcript of Strauss's course on Hugo Grotius's Rights of War and Peace.   Strauss's lectures confirmed my view, based especially on a reading of his Thucydides essay, that he took international law very seriously.  

Now many of Strauss's courses and seminars are being made available on the website of the Leo Strauss Center at the University of Chicago.   A common misunderstanding of Strauss, based upon an inadequate reading of his idea of esoteric/exoteric teaching is that Strauss reserved the blunt expression of the inner meaning of his thought for oral instruction of disciples (often suspected to be a militantly anti-liberal ubermensch type philosophy).   In my first published work on Strauss, "Between the Lines," which appeared in Philosophy and Rhetoric over a decade ago, I sought to correct this misunderstanding through an interpretation of Strauss's introductory essay in Persecution and the Art of Writing, arguing that for Strauss writings are more authoritative articulations of philosophical truth than oral teachings.

Well, now it is possible to listen to a wide variety of Strauss's classes, and while I've only started to mine the tapes, those seeking to present Strauss as teacher of would-be tyrants (or at least Wolfowitzs) will have a lot to answer for. 

Strauss's manner of teaching is modest, straightforward, preoccupied by trying to understand for himself, and communicate his understanding to the students.  He is frequently tentative, often corrects himself, and allows himself to be corrected and improved by comments of the students.  He is probing and provocative in his confrontations with the texts he analyses but he is never preachy or polemical.  To borrow from Marx's famous line, one comes away from listening to these classes with the clear impression that Strauss was teaching students to interpret the world, not to change it (except perhaps only very indirectly, through thinking and arguing about the basic problems of the human condition). 

This isn't surprising to me, however, given Strauss's own written account of his ideal of  pedagogy:  "Always assume there is one silent student in your class who is by far superior to you in head and in heart....[D]o not have too high an opinion of your importance, and have the highest opinion of your duty, your responsibility."  These are words that I've tried to have in my head every time I've entered the class room for the last 20 years.   

The tapes can be found here. I know that there are some conspiracy theorists who will not be satisfied-maybe Strauss was prepping the neocons in midnight seances with the tape recorder shut off, or in office hours?  Also, those who hope that listening to these classes is a shortcut to grappling with the immense complexity of Strauss's written engagements with thinkers such as Machiavelli and Maimonides will probably be disappointed.   But there is much here of genuine philosophical value.  And all but the most close-minded will come away with a clearer portrait of the kind of teacher and human being that Strauss was. 

Finally, the Strauss Center is running a conference on April 22 and 23 to celebrate this project, focusing on Strauss as a teacher.  The link, with registration information is here.

 

 

 

 

 

 

 

Quality legal television, for once

Tomorrow night on HBO is the premiere (with many, many repeat showings to follow) of Thurgood, starring Laurence Fishburne, in a filmed performance of the one-man show at the Kennedy Center. The play is based around a fictional speech by Marshall at Howard Law School, in which he recounts his life and career as civil rights attorney and Supreme Court justice.

It's a good time for this, given that the last we heard of Justice Marshall, he was the focus of intense scrutiny by Republicans on the Senate Judiciary Committee.

Weiler in the Dock

As some of you know from reading Leiter's blog, NYU Law prof, Joe Weiler, has been accused in France of a criminal defamation charge because he refused to take down a negative book review that appeared in the journal that he edits (the EJIL). Weiler had nice things to say about the trial's fairness but one hopes nonetheless that he is being indemnified by all the parties (that's all of us) who would benefit from a ruling in his favor, soon may it arrive. The judges are supposed to issue a verdict in a fortnight. In the meantime, you might want to check out Adam Liptak's very interesting Sidebar column in today's NYT about the trial and Weiler's seemingly mellow mood about this all.   Adam, you might recall, has done some freelancing for NYU Law in the past, so it's not entirely surprising that he would take interest in the injustice to Weiler. And I'm glad he did. The alleged victim's amazon webpage hasn't exactly benefited from the attention Liptak has focused on it.

Perhaps somewhat oddly, I owe the appearance of my first scholarly publication to Prof. Weiler, who, before he set off to NYU from HLS, cheerfully encouraged me as a 1L to write a review essay of a book on ethics and authority in international law.  I just discovered that the link I had to that essay on my website is dead, and, that may all be for the better. Nonethless, I find it sad that more than technology is frustrating the European Journal of Int'l Law and its editors these days. We all owe Prof. Weiler a substantial debt of gratitude for his principled stand regarding the fate of academic book reviewing. Thanks for hangin' tough, Joe. (And a h/t to Al Brophy, for spotlighting the Sidebar for me today.)

Tough and Not-so-Tough Solutions

I was thinking yesterday morning as I was listening to NPR, how difficult it will be for Congress and the President to agree to a solution to our medicare/medicaid and social security problems.  With all of the vested interests involved (particularly the type who vote: ie, older people who rely on their medicare and social security), it will be extremely "tough" (Obama's word) to come to some sort of compromise on badly needed budget cuts--particularly as we approach an election year.  These types of compromises will also be difficult for states.

Some organizations working on reforms are targetting the budget-conscious policy maker.  A recent Wall Street Journal blogpost featured a group called, "Smart on Crime."  Smart on Crime is a nonpartisan coalition of 40 organizations and individuals composed of the "leading voices in criminal justice policy" and representing diverse perspectives including: the ACLU, the Heritage Foundation, Amnesty International, and the American Bar Association.

Smart on Crime recently released a very helpful and concise 318- page booklet with policy proposals in 16 areas for Congress.  These areas range from overcriminalization and grand juries to conviction of the innocent and indigent defense.  The goal of this book(let) is to recommend cost-effective, fair and evidence-based strategies to improve the U.S. criminal justice system.  Just to give you one example of an area ripe for reform--overcriminalization. Problem: addressing the 4,450 criminal offenses scattered through the federal criminal code that our reactionary Congres amends each year that fail to make us safer.  The solution: the report recommends that Congress "enact mandatory reporting legislation" for all new criminal laws requiring the government to produce a report that discusses the justification, costs, and benefits of this new criminal law.  Seems like a decent idea.  An even better idea in the report tackles one of the biggest criminal justice issues we face: mass incarceration.  It encourages Congress to cut recidivism and increase rehabilitation through drug treatment, alternatives to incarceration, access to education, and job training.  All great ideas.

My biggest critique of the Smart on Crime report and even the new Right on Crime campaign:  Zero mention of bail reform.  Increasing programs that allow people to be released on bail rather than detained (pretrial supervision, ankle bracelets, GPS trackers) would a huge step towards reducing our incarceration problem.  The majority of people in our nation's jails are pretrial detainees, not convicts.  This initial detention often leads to more detention: people who are detained pretrial more often get custodial sentences, those who are detained often get longer prison terms, and those detained have less leverage in plea bargaining--again resulting in longer detention periods.  So if we are going to seriously tackle mass incarceration, it only makes sense to release more people pretrial. And unlike the discussion over medicaid and medicare, it does not have to be costly or disproportionately impact any voting block.  We don't have to pay more for defendants to be released pretrial as it is obviously more expensive to detain them. But what's the argument against releasing more defendants pretrial?  Well, some would argue that there *is* a cost to releasing more defendants: more crime--which is obviously costly to society.  Plus, others would say that people accused of crimes are probably dangerous and most of us would rather have them safely locked up, thank you.  Admittedly, some of this is true.  But what if I was to tell you that we can actually release a lot more defendants and maintain our levels of pretrial crime?  Well, I can.  According to a recent empirical study that I conducted with Frank McIntyre, we can release up to 25% more defendants and still reduce violent crime levels and overall pretrial crime.  Obviously there should be some careful consideration at a local level to ensure this is done properly.  But--in my opinion--one not-so-tough solution to budget crises is releasing more defendants pretrial.