Saturday, September 20, 2014
Intellectual Property Infringement as Vandalism (Part 3)
The problems that have arisen in the discussion over whether intellectual property infringement is theft have a number of causes. Content owners know that the message “intellectual property infringement is [a property offense lesser than theft]” does not pack the same rhetorical punch as their current statements. Opponents of the present rhetoric, however, are right to argue that infringement rarely removes all value, which distinguishes it from theft. Meanwhile, there are other types of offenses against physical property that characterize actions whose effect is to partly reduce the value of goods. The most prominent of these is likely vandalism. Vandalism involves the destruction rather than removal of property. The concept of vandalism does not suffer from the majority of flaws that open up to attack the analogy to theft. Vandalism, by definition, does not require a complete removal of the good or of its value. The owner may still retain the ability to sell or license the good. And, in some cases, both intellectual property infringement and vandalism have the potential to enhance rather than reduce the value of goods.
Friday, September 19, 2014
Who Is Justice Ginsburg Talking To?
Justice Ginsburg recently offered some surprising public remarks on the pending same-sex marriage petitions currently before the Supreme Court. (H/t Dale Carpenter at VC.) In particular, Justice Ginsburg suggested that the Court should not (would not?) grant the currently pending petitions at the end of the month because, in her view, there is no post-Windsor circuit split. As Lyle Denniston has noted, discussing pending cases in this way is highly unusual. Why would Justice Ginsburg take this unusual step?
Thursday, September 18, 2014
Ratification of the Canada-China BIT
It was announced last week that Canada ratified its bilateral investment treaty (BIT) with China that was signed about two years ago. The treaty will take effect on October 1, 2014. At the time of the signing, a Canadian international investment law scholar named Gus Van Harten wrote an editorial warning of dire consequences if Canada ratified the BIT. In particular, he expressed concern that the BIT would impose constraints on Canada's sovereignty and put important policy questions in the hands of foreign arbitrators.
In an earlier phase of international investment, when capital flowed primarily from developed to developing nations, only the latter had to worry about constraints on their sovereignty. But as more capital has begun to travel in the opposite direction, established democracies like Canada will increasingly have to respond to claims brought against them by foreign investors. The Canada-China BIT, like other recent BITs that both Canada and the United States have entered into, adopts a narrower definition of fair and equitable treatment that should in theory avoid the most serious sovereignty concerns described in my prior posts. But as other commentators have observed, some tribunals have proceeded to apply the same broad standard used in arbitral precedent as if the limiting language were not there.
The United States has not yet signed a BIT with China, but the countries did agree recently to restart negotiations. It will be interesting to see whether the United States tries a different approach to fair and equitable treatment or otherwise departs from its model BIT in anticipation of the possibility that the protections of a China-U.S. BIT will be invoked as much by Chinese investors against the U.S. government as by U.S. investors against the Chinese government.
Cameras and unintended consequences
In the rush to video record everything so we always know for sure "what happened," it is important not to lose sight of the risk of unintended consequences. Two studies, not directly involving police and body cams, illustrate the point.
In The Atlantic, Derek Thompson argues that one major cause of the drop in offense and scoring over the past 5+ years is introduction in 2006 of video systems to review and evaluate umpire performance in calling balls and strikes. The intended effect was to teach umpires the "correct" strike zone and produce more accurate umpiring (indeed, several umpires were fired when video showed their ball/strike calls to be inadequate). But that accurate strike zone was a lower strike zone, with more pitches around the batter's knees now being called strikes, causing pitchers to learn to throw low in the strike zone. Low pitches are harder to hit, especially with power, so they produce more ground balls and more strikeouts (Thompson says the increase in strikeouts since 2008--called and swinging--is entirely on pitches lower in the zone). As a result, this more-accurate zone produces less scoring. The problem is that this lower-scoring game is not as popular nationally (based on game-of-the-week ratings and national fan recognition of star players) as the power-driven game of the late '90s and early '00s. And there is your unintended consequence--MLB used video to successfully increase accuracy, but accuracy fundamentally changed the game. And arguably made it less popular.
On the Harvard Business Review Blog, Ethan Bernstein (a professor in the B-school) argues that the increase in transparency that video brings may stifle worker creativity. He explains that "[k]nowing that their managers and others will closely evaluate and penalize any questionable recorded behavior, workers are likely to do only what is expected of them, slavishly adhering to even the most picayune protocols." In an article, Bernstein found such lack of creativity in assembly-line workers, who avoid potentially useful time-saving methods in favor of doing everything precisely by the book. And while supportive of body cams, Bernstein is concerned that they will have a similar effect on law enforcement.
Wednesday, September 17, 2014
Fan speech, once again
The ejection of a fan from the park (at the insistence of the umpire) from Atlanta's Turner Field, apparently for profanely heckling an opposing player (the link contains video), could raise some First Amendment problems. The park is apparently owned by the Atlanta Fulton County Recreational Authority, a public entity, and leased to the Braves (no doubt on very favorable terms). Just like in the one case to directly address free speech at a publicly owned ballpark, involving old Yankee Stadium, which was owned by New York City and leased to the team. And as I have written previously, if "Fuck the Draft" is ok in a courthouse, then "You fucking suck" is ok at a publicly owned or operated ballpark. And it does not matter whether the order to remove the fan came from team officials or the umpire.
I hope a lawsuit is coming.
Happy Constitution Day--Some Thoughts on Constitutional Issues in Health Law
As readers of this blog already know, today is Constitution Day. An occasion mandated by Congress that requires every institution of education receiving federal funding (which includes nearly all colleges and universities) to present some sort of "programming" related to the Constitution. In the context of suggesting that it may be an Unconstitutional mandate in regard to k-12 schools, Slate offered a history of where this idea came from and how it became law.
Since our TTU Health Sciences Center is a separate entity from TTU University, it is required to have its own, separate Constitution day event and it's been my honor as an adjunct faculty member to give the "Constitution Day Address" since the law took effect in 2004. At the beginning, it was an interesting challenge because, of course, the word "Health" appears nowhere in the Constitution. But what started as a service project turned into more as I developed a course for the law school based on one taught first by Maryann Boblinski at the University of Houston (now dean at the University of British Columbia) on Constitutional Issues in Health Law (and yes, this extends far beyond Obama care) to capture topics like First Amendment Issues in Prescription Drug Off-Label marketing, Entitlements, and, of course, the Right to Refuse Treatment, Non-Right to Physician suicide issues that get covered in a traditional bioethics class. Last year we looked at (and re-enacted the oral argument from) Hobby Lobby and this spring will focus on Halbig v. Burwell.
There have always been Constitutional issues in health care and fine constitutional work done by health law academics [more name checks to come--but to make an incomplete list of some giants, Sandy Johnson, Marshall Kapp, Diane Hoffman, Karen Rothenberg, Judith Daar, Alan Meisel, Paul Lombardo, Fran Miller, Rebecca Dressler, Mark Rothstein, Lori Anderson, Tim Jost and Mark Hall(now I really need to stop--the danger always in starting to list names is to leave people out) but --but it was the intense attention brought by the Obamacare Constitutionality cases (that in my opinion had almost nothing to do with health care, but that's another post) that has attracted interest both locally (last year I had 11 students, this spring 30) and more broadly. I've been working with my research assistant to put the course material into a package that can be used by others interested teaching a similar course--and who knows, maybe someday a book.
Tuesday, September 16, 2014
For those interested in national security, Edward Snowden, and some such, Glenn Reynolds has a new, short (8 pages) essay up on SSRN entitled Don't Fear the Leaker: Thoughts on Bureaucracy and Ethical Whistleblowing. Here is the abstract:
"In this brief Essay, I argue that rather than trying to eliminate leaks entirely, which experience demonstrates is impossible, we should instead try to channel leaks so that they provide the maximum benefit to transparency while reducing risks to national security and other secrecy concerns. I also offer some preliminary suggestions about how to accomplish this goal."
Scientific misconduct and the First Amendment
This proposal to make scientific misconduct a crime would seem to raise serious First Amendment problems, certainly under the Kennedy plurality in United States v. Alvarez. If false statements are not categorically unprotected, regulations must survive strict scrutiny, and counter-speech is always available, it seems to me that any attempt to regulate false scientific results are as vulnerable as the ban on false statements about military service. Interestingly, such a criminal prohibition might fare better under the squishier balancing proposed by Breyer's Alvarez concurrence, given the more tangible harms from false scientific research (Andrew Wakefield, anyone?). But I do not think receipt of salary from the university should matter; we do not prosecute people for not doing their jobs well, even intentionally. And to the extent a scientist receives grant money requiring honest research and produces false results, charges of fraud or false monetary claims already should be available.
Monday, September 15, 2014
(Still) more on "The Freedom of the Church"
Over at the Law & Liberty blog, they ran a short essay of mine in which I set out the short-version of some claims I've been making in recent years about the freedom of religion and "the freedom of the church." They also solicited and posted some very thoughtful reactions to the piece by Paul Horwitz, Don Drakeman, and John Inazu. And now, here is my (grateful) reply. With respect to my friend and co-Prawf Paul, a bit:
Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance.
Horwitz underscores another point (one that I also tried to make in a short paper called, “Church, State, and the Practice of Love”: To endorse the “freedom of the church” or “church autonomy” “is hardly the same as insisting that these institutions can never err. Autonomy involves the right to make central choices, not the assurance that the right choices will always be made.” He continues: “[T]he committed institutionalist must be an active observer and critic of these institutions, urging them to do the right thing (as he or she understands it) whether or not they are legally obliged to do so.” Absolutely. The “freedom of the church” claim is that the state’s authority is limited, that other authorities exist and operate, and that – all things considered – pluralism is conducive to human flourishing. It is not the (easily falsifiable) claim that non-state authorities, or religious institutions specifically, never act badly.
A "Shell" Game in the Sixth Circuit?
In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note (h/t Sentencing Law & Policy). As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.
Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it—and, in doing so, the court relied on allegations and innuendo instead of judicial findings.
Spot the differences, if you possibly can
Atlanta Hawks GM Danny Ferry used racist stereotypes in evaluating and describing player Luol Deng. The comments were unquestionably tasteless and offensive; they might form the basis for an employment-discrimination action, although Deng did not suffer any harm (he signed with another team and there is no indication he was dying to sign with the Hawks) and courts are often quick to dismiss remarks like these as "stray comments" (as my colleague Kerri Stone has written) The remarks were audio-recorded and written in a report. Ferry has been placed on indefinite leave of absence, basically meaning he's on his way to being fired (likely as part of an ownership change). The team published a public apology to its fans, basically confessing to multiple incidents of racist comments and actions by the team "over a period of years" and its failure to stop or punish them. The league is holding off on punishment, probably because the team took the matter off its hands.
Isiah Thomas engaged in a pattern of sex- and gender-based harassment of a Knicks executive named Anucha Browne Sanders, for which he was found personally liable by a jury; the case settled, following a jury verdict awarding more than $ 10 million in punitive damages. Thomas never lost his job and suffered no team- or league-imposed penalties. The league expressly said it does not get involved with "civil matters," not even civil matters directly affecting the team. The Knicks never publicly apologized for anything or even acknowledged having been found liable.
A former executive with the New York Mets has sued the team and the COO (the principal owner's son) for harassing and then firing her over becoming pregnant and having a child without being married and complaining about the harassment. So far, silence from MLB. The Mets blandly insist that they have policies against harassment and discrimination (which obviously means nothing if those policies are ignored by the owner's son, general counsel, and other team officials, as the complaint alleges).
So can we find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices? One answer is that mere accusations are insufficient and teams must wait for the civil litigation process to play out. But then neither the non-action by the Knicks against Thomas nor the action by the Hawks against Ferry makes sense. Worse, accepting the facts alleged in each case as true, the Hawks case is probably the least likely of the three to produce legal liability, yet that is the only one in which the team responded. A more cynical answer is teams/leagues will jump to act when it comes to race discrimination involving players, but do not care about sex-based discrimination against non-players. An intermediate explanation is Ferry was captured on audio and the Mets COO wasn't, which just brings us back to the problem that audio and video are overtaking our ability to judge evidence and proof. But that, in turn, says some troubling things about our ability or willingness to rely on judicial processes, not just recordings, to resolve disputes and determine legal rights and wrongs.
Saturday, September 13, 2014
Investor-State Regulatory Disputes (Part 2)
In my previous post, I described the sovereignty concerns raised by investor-state regulatory disputes, the viewpoint that currently predominates in the literature known as the public law approach, and my criticisms of that proposed framework. In this post, I explain why investment tribunals should instead adapt concepts or tools from contract law and theory and describe in further depth one such proposal.
The basic argument for a contractual approach is that tribunals could do more to approximate how the contracting states themselves would want to resolve these disputes. No one would disagree that, if states actually addressed the issue in their bilateral investment treaties (BITs), their express intent would govern. The problem is that the BITs do not define “fair and equitable treatment” or otherwise provide guidance on how that standard should be applied to regulatory disputes. In contract law, when an agreement has a gap or otherwise contains an ambiguity, courts do not simply abandon the inquiry into the parties’ intent but instead apply other tools to form the best possible estimate. I believe a few of these tools could be usefully adapted for the present context to fill this gap in the BITs.
Privacy v. Justice
William Saletan at Slate argues that the benefits of having video and audio in evaluating legal disputes (in court or out) outweigh the privacy concerns raised by the possibility of everyone and everything being recorded. As he says, "privacy, broadly interpreted, can shield injustice."
Saletan's big mistake is assuming the absolute certainty of video--"with video, everyone knows." Only after everyone had seen the Ray Rice video did the NFL "know" what happened. And because everyone else "knew," the NFL lost deniability and Rice lost what Saletan calls the "presumption of innocence." But, as I have written repeatedly, video is not that certain and we do not necessarily know in every case or with every video. Some video is clearer or easier than others. Rice seems especially obvious (although the video is grainy and one looking to see mutual aggression might see her moving towards him for reasons that cannot be known from the video). But not every video will be so clear and thus not every video case will be so easy.
Which is not to say that Saletan is wrong about the privacy/justice balance; I think he has it right. But the reason is that this provides additional evidence with which to evaluate (in court and out) disputes controversies--and more evidence is better than less. But it still is a mistake to rely on the idea that video is unquestionably, always, and in all cases conclusive.
Friday, September 12, 2014
Kopald on health problems from WiFi
Deborah Kopald has a post at Public Citizen's Consumer Law and Policy Blog, discussing health problems associated with WiFi, namely showings of Microwave Sickness by people living/working/going to school too close to wireless hotspots. Worth a read, as she has been pushing this issue for some time.
Intellectual Property Infringement as Vandalism (Part 2)
We first explore in the paper why the theft label for IP infringement has become so sticky in many milieus. We believe that the main reason that content owners and their associates use the rhetoric of theft is that they want to emphasize the gravity of the conduct. The average downloader might tell herself that it makes little to no difference in the grand scheme of things if she illegally downloads music or movies, or if she shares such materials with friends and even a few strangers. Basically everybody, however, understands the concept of theft and has been raised to understand, often axiomatically, that stealing is wrong.
If one were to ask content owners and other proponents of the “IP infringement as theft” theory to explain their views in greater detail, they would cite to a number of factors that create parallels between the two types of violations. The IP owner, just like the property owner, generally mixes her labor with pre-existing materials to provide society with goods and help it to flourish. She will sometimes only do so, however, if provided with a critical mass of remuneration, or at least that remuneration will affect her level of productivity and of her efforts to distribute her work. To the intellectual property owner, large-scale illegitimate distribution of her works may economically create the same effect as a horde of potato thieves does for a farmer. In the farmer’s case, there will be nothing left to buy if all the potatoes are gone. In the infringer’s, even though the song will still “be” there at the end, few people may want to buy it if they can obtain it at zero cost elsewhere.
Federal control of all police prosecutions?
Having St. Louis County Prosecutor Robert McCulloch decide whether to prosecute Darren Wilson in the shooting death of Michael Brown raises several concerns, notably related to his comments and actions during the Ferguson protests/riots (depending on your perspective) and a generally poor track record with such cases. But McCulloch and the question of a Wilson prosecution illustrate a general problem for even the best-of-faith DAs having to prosecute local police officers. The relationship is too close and often too cozy. Alternatively, the decision to pursue charges against one officer may harm a prosecutor's relationship with the police going forward, with negative consequences to law enforcement.
But this seems like the wrong solution to the problem: Moving charging decisions exclusively into the hands of federal prosecutors, apparently even for state prosecutions in state court. The author extrapolates from the successful federal prosecution of Rodney King following his state-court acquittal; it "would have been more efficient and confidence-inspiring, however, if the federal lawyers had been in charge from the start."
Thursday, September 11, 2014
America’s Prison System is Broken
This news item reporting on the release after 30 years of two North Carolina brothers, described in news reports as both being “mentally disabled” after being declared innocent based on DNA evidence is a timely excuse to bring up a topic that no one likes to discuss—as John Oliver put it in song, dance and puppets a few weeks ago, American’s Prisons are Broken. And one of the primary reasons for this is, as I and others have written before, is that they have become de facto warehouses for those with mental illness, mental disability, and substance abuse conditions. 73% of female prisoners and 55% of male prisoners in state systems have mental health problems (unrelated to the fact that they are prisoners). A recent edition of Health Affairs had several very useful and interesting articles on the mental health issues of prisoners. Because prisoners are the only population in the United States with a Constitutional Right to health care, the cost of prisons, including the cost of health care, has become ruinously expensive- States spent 7.7 billion on prisoner health care in fiscal 2011 the cost of health care provided to prisoners—with the aging population a considerable source of expense.
And despite whatever care they receive in prison, they leave with medical needs as or more serious than when they come in. Study after study confirms that a high rate of prisoners don’t survive the first two weeks after release-often because of a fatal drug overdose. This problem is one we share with Europe and with Australia. And the expenses continue post release with ex-prisoners making high use of emergency services-see here and here. Those prisoners who survive the first two weeks after release, and have a look at how many don’t, find themselves umemployable due to a toxic combination of lack of marketable skills, pre-existing disabilities, and the chronic illnesses that they either acquired in prison or brought out with them. A few states including Kentucky and California have developed their own programs to address these post-release issues by coordinating the transition. But these efforts are uncoordinated and underfunded.
A public health perspective of the problems we face in regard to US Prisons, would ask one question: what could prevent them? What could prevent people from going to prison in the first place and what could prevent them from returning there when they get out? And a legal perspective has to be how this situation can be consistent with a system of laws the purport to protect those with mental disabilities from discrimination and on those lawfully convicted of criminal offenses from cruel and unusual punishment.
Is Hobby Lobby a Precedent on Jurisdiction?
Erin Morrow Hawley has written a fascinating short piece entitled “The Jurisdictional Question in Hobby Lobby.” Hawley’s basic claim is that all nine Justices in Hobby Lobby made “a serious mistake” in failing to address, much less mention, a jurisdictional problem. This incident calls to mind the Court’s controversial rule against ascribing precedential force to implicit jurisdictional findings.
Still (Unvaccinated) in Hollywood
This is off-topic for me, but I found this lengthy piece in the Hollywood Reporter, suggesting that LA's Westside is experiencing a significant increase in non-vaccinating (or departing from standard vaccination schedules) very interesting. Given its audience, one can understand why the story gives so very much time to vaccination skeptics in the piece, although I think it went overboard on this. Probably the most interesting and dispiriting quotes in the story are those from some of the school administrators, who, it is not hard to discern, would do anything but offend some of their clientele. (That's not universally true; a couple of administrators are fairly straightforward in their concern.) In any event, it's an interesting article.
The Video Effect?
A problem with the increasing ubiquitousness and (perceived) power and accuracy of video is that we (the public, judicial fact-finders, prosecutors making charging decisions, everyone) are no longer moved by testimony and descriptive evidence, by verbal descriptions of events. Only video will influence, persuade, or even trigger a response.
We got a sense of this during the Ferguson protests, where video, especially television reporting, was the topic of conversation. The Ray Rice story, as it has developed this week, is driving this point home.
The Ravens (who cut Rice) and the NFL (who suspended Rice indefinitely) did not act with any sense of seriousness (the original two-game suspension was a joke) until the video from inside the elevator was released on Monday. NFL Commissioner (for now) Roger Goodell said he felt compelled to act because"what we saw yesterday was extremely clear, it was extremely graphic, and it was sickening." But reports indicate that the story Rice told Ravens officials was consistent with what was shown on the video--he did not tell a story of self-defense or of her hitting him first or of both people throwing punches (Ravens officials seem very proud that Rice did not lie to them, although he apparently lied to his teammates). Goodell insists that Rice's story to them was more ambiguous, although we can ask why the NFL never compared notes with Ravens officials and draw conclusions from the inconsistency. [Update: According to this report, four people with knowledge of conversations state that Rice told Goodell in June that Rice had "hit"or "punched" his fiancee and that there was no "ambiguity" about what he said or what happened].
The point is that the video released Monday provided the Ravens with exactly no new information, and the NFL with little that it should not already have known. The "sickening" acts were known to everyone on the inside. Yet Goodell did not feel compelled to act until confronted with video images; a narrative would not do the trick. Of course, some of that can be blamed on the media and the public, which responded with renewed outrage only after seeing the video themselves, thus backing Goodell into a corner. Josh Lewin has a nice satirical take on this.
The old saw is that a picture is worth 1000 words and perhaps video is worth twice that. But the relative value of visual compared with verbal evidence should not be taken to render verbal evidence entirely worthless. I would be quite concerned if we begin to see--in court and in public debate--a video-evidence version of the CSI Effect.
Wednesday, September 10, 2014
Investor-State Regulatory Disputes (Part 1)
The project I am currently working on looks for new approaches to the problem of investor-state regulatory disputes. The problem is well-known among international investment law scholars, and a variety of solutions have been proposed, but none in my view has been satisfying.
The basic problem arises when a foreign investor challenges a generally applicable regulation that was enacted by the host state as a good-faith attempt to promote the public interest. Although any effect on the foreign investor’s business would have been incidental, the investor has at least a viable claim under the fair and equitable treatment obligation contained in the bilateral investment treaty between the host state and the investor’s home state. Such claims do not need to show bad faith or other opportunistic conduct by the host state, as the fair and equitable treatment standard has been construed to require a degree of stability in the regulatory framework irrespective of the host state’s motives. To give one particularly controversial example of this increasingly common form of dispute, tobacco companies have challenged regulations on cigarette marketing in a few different countries as violating their rights as foreign investors, even though the regulations are clearly designed to promote public health and not to extract value from them.
Boston University Law Review Symposium on Dworkin's "Religion Without God"
The Boston University Law Review in recent years has done a superb job of running symposia on new and important legal books. Many of us have lamented the decline in the number of book reviews in legal periodicals, a decline that has corresponded to a rise in the number of books published by law professors in the last decade or so. BU has filled that gap admirably, and sparked some terrific conversations as a result.
The new issue of the Boston University Law Review has two such symposia, on three different books. I was delighted to be rather distantly involved in one of those, a print symposium on the late Ronald Dworkin's book Religion Without God. The symposium can be found here. Notwithstanding my own contribution, it's really a stellar gathering, thanks to the work of Professor Jim Fleming, and I found the pieces well worth reading. The table of contents follows:
Volume 94, Number 4 – July 2014
A SYMPOSIUM ON RONALD DWORKIN’S RELIGION WITHOUT GOD
Introduction to the Symposium on Ronald Dworkin’s Religion Without God James E. Fleming Page 1201
Religion Without God by Ronald Dworkin – Review Jeremy Waldron Page 1207
The Challenge of Belief Stephen L. Carter Page 1213
“A Troublesome Right”: The “Law” in Dworkin’s Treatment of Law and Religion Paul Horwitz Page 1225
Ronald Dworkin, Religion, and Neutrality Andrew Koppelman Page 1241
Dworkin’s Freedom of Religion Without God Cécile Laborde Page 1255
Can Religion Without God Lead to Religious Liberty Without Conflict? Linda C. McClain Page 1273
Religion, Equality, and Public Reason Micah Schwartzman Page 1321
Is God Irrelevant? Steven D. Smith Page 1339
Tuesday, September 09, 2014
Remembering Danny has been set-up by Dan's family and loved ones as a place to collect stories, videos, photos, memories, and more, to share with Ben and Lincoln and let them know who their father was and the many lives he touched. Please click over and share.
Also, a reminder that Florida State College of Law will host a memorial service for Dan at 3 p.m. next Tuesday, September 16, 2014, at the College of Law.
Call for Papers: AALS Program of the Business Associations Section
You may have seen this elsewhere on the web, or on the listserv, but if not -- you have until Friday! You can submit a paper or an abstract.
CFP: AALS Program of the Business Associations Section
AALS Program of the Business Associations Section
The Future of the Corporate Board
AALS Annual Meeting, January 4, 2015
The AALS Section on Business Associations is pleased to announce that it is sponsoring a Call for Papers for its program on Sunday, January 4th at the AALS 2015 Annual Meeting in Washington, DC.
The topic of the program and call for papers is “The Future of the Corporate Board.”
Monday, September 08, 2014
No Grants From the Long Conference?
The Court’s new policy of automatically re-listing cert petitions before granting them raises an interesting question: will the Court’s first conference of the new term (the “long conference”) generate any cert grants? This question has some practical importance and also draws attention to the Court’s frequently opaque operating procedures.
Straw Gods and Puny Gods
I was the surprised and grateful recipient of a public attribution from someone far more acclaimed than I, and was taken by the thoughtfulness and integrity of it.
Last spring, I attended a session of the Cambridge Roundtable at which the philosopher and novelist Rebecca Newberger Goldstein was the speaker. Her topic, taken from her recent book, Plato at the Googleplex, touched on "mattering," and specifically the not-so-pleasant consequences of privileging what matters to me or to us, and forgetting or not recognizing that if something matters to me or us, then things (although possibly not the same things) must also matter to others. If what matters to us is meaningful, then to recognize that things matter to others is to acknowledge their personhood.
In an email to her after the session, I suggested that if, per Wittgenstein, there are no private languages, there is no private mattering. What was surprising was not just that she responded graciously to my email, or that she adopted the idea in an interview with The Humanist just a week or so ago, but that she bothered to give me, a relative nobody, credit for the idea. If she hadn't, only she and I would have known.
But intellectual integrity is not the only reason to heap praise on Ms. Goldstein. Even though, as I'll describe after the break, she and I appear to disagree about how to define the playing field when we talk about belief, and particularly the beliefs we often refer to as atheism and agnosticism, I love her work. She is a public intellectual with full philosopher chops, including a Ph.D. from Princeton and a Tanner Lecture at Yale in 2011. What she writes isn't for everybody - she's drawing on ideas that cause you to have to exert some brainpower - but even her novels, like The Mind-Body Problem and 36 Arguments for the Existence of God: A Work of Fiction, draw you into issues like the hard question of consciousness or theodicy.
So, after the break, a comment on straw gods and puny gods.
Friday, September 05, 2014
NYU Memorial Service for Dan Markel, Tuesday, September 9th
For the benefit of Dan's many friends in New York City, we are holding a memorial service at NYU in the Greenberg lounge from 7-9 pm next Tuesday, September 9th. You can register to attend at this eventbrite webpage.
Destroying marriage to save it
Have efforts to defend marriage-equality bans crossed over into Ben Tre territory, where they are destroying the town to save it? States' legal efforts to "preserve" marriage as a heterosexual institution have denuded that institution. They no longer defend it as a sancrosanct and powerful institution reflecting long-term intimate arrangements by committed adults who love and care about one another; instead, it has become a metaphorical prison to place fornicators who unintentionally produce a pregnancy. As Posner put it: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure." Opponents of marriage equality insist, without evidence (a point Posner nailed Wisconsin on), that allowing same-sex couples to marry would cause heterosexuals not to marry. But speaking as a heterosexual, I am not sure I would really want to join the marriage club that most states claim to have established.
Intellectual Property Infringement as Vandalism (Part 1)
In addition to empirical work in intellectual property, another area that has been keeping me occupied is the intersection between IP and criminal law. A few years ago, I wrote an article entitled The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harvard Journal of Law and Technology 469 (2011), in which I explored why we have criminal sanctions for copyright and trademark infringement but not for patent violations. Earlier this year, I published a paper called The High Cost of Low Sanctions, 66 Florida Law Review 157 (2014), that examined how low sanctions can lead undesirable laws to be passed and can eventually morph into high sanctions, an analysis whose focus was partly on copyright law. I then moved on to study, in an article called Intellectual Property and the Presumption of Innocence that is forthcoming in the William & Mary Law Review next year, the constitutional dimension of intellectual property criminal cases. I argued that prosecutors should have to prove that every element of such crimes, including the jurisdictional element, has been met beyond a reasonable doubt before convictions can occur. Most recently, I turned my attention to the relationship between the criminal (and civil) sanctions in intellectual property and those that we observe in property. This project, co-authored with Robert E. Wagner, is entitled Intellectual Property Infringement as Vandalism, and I would like to take the opportunity to describe it further here.
One of the recurring questions in scholarship is whether intellectual property qualifies as property and, as a correlative matter, whether IP infringement is theft. Content owners significantly push this analogy, including in heavy-handed ads that seek to remind people not to “steal” songs or movies. Meanwhile, critics have chipped away at the theft label. They have argued that when an object is stolen, the owner is entirely deprived of it, whereas IP owners maintain integral copies of their works when infringement takes place. Unlike in the case of theft, the intellectual property owner can also continue to sell copies of said work to willing buyers, if the market will bear it. Furthermore, to the extent the owner suffers a loss at the hands of the IP infringer, that loss is difficult to calculate. Not every infringer would have bought the work had he lacked the opportunity to infringe. At the same time, nobody can say with certainty about herself—even assuming perfect honesty—which works she would have bought in a zero-infringement world because the impulse to rationalize one’s actions in this setting is strong.
Thursday, September 04, 2014
Law and Law Breaking in the Game of Thrones Law
If you need a fun break from your more serious writing, and you happen to be a Game of Thrones fan, here is a call for papers from the editors of the Media and Arts Law Review in Australia. What angle would you take?
Using GoFundMe for Litigation
Here is a creative way this local news anchor is trying to raise public awareness and money for defending his case against a non-compete he had signed with his former employer. Watch him and his litigation team explain their woes.
In a Different Voice
Just a quick, basically neutral observation about the language of Judge Posner's opinion in Baskin v. Bogan: Unlike the language of many of the SSM opinions so far, it is virtually stripped of the kinds of terms and effects that crop up elsewhere. The word "dignity" appears exactly once, on page 38 of a 40-page opinion. At that, it appears in a quotation of another court, and only in passing. Similarly, the word "animus" appears just once, at page 27. Brown v. Board of Education, cited in at least three of the SSM cases so far, is absent; so is "segregation." If the opinion is forceful and effective, it nevertheless speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving.
A New Vision For Legal Education—Starting From Day One
Under the theory that change brings opportunity, here begins a series of posts with some examples of what others are doing and some ideas of how we could adapt them to our own use. And what better place to start than at the beginning.
Plato tells us that ““You know that the beginning is the most important part of any work, especially in the case of a young and tender thing; for that is the time at which the character is being formed and the desired impression is more readily taken....” yet it has taken a long time for professional education in the United States to take these words seriously. In our own field of legal education, “Day One” ( which I appreciate is pretty much over for this year in the United States) in just about every classroom in the country starts with students reading a case they don’t understand, being called on by an authority figure and often being humiliated. Not surprisingly, after three years of this we see evidence that while students are energized and invigorated, others suffer actual harm. Larry Krieger and his team have been telling us that for years. Here are some very thoughtful comments by Susannah Pollvogt about the effect of the “curve.” And an important study by Ruth Ann McKinney.
Moreover, there is no evidence that starting like this is beneficial, because there is no counter example. Every lawyer alive was trained in more or less the same way, as were the two generations before them.
Clerkship Letters of Recommendation
In the coming weeks, I look forward to discussing some of my research, which currently focuses on international investment law and other legal frameworks that govern the conduct of international business. But for my first post, I thought I'd share some thoughts on a different aspect of our job that I haven't seen much discussion of in the blogosphere: writing letters of recommendation for clerkship applicants. With the collapse of the hiring plan, students are now applying as early as their post-1L summer. I imagine many professors have already gotten requests for letters or are starting to now.
I have a relatively informed perspective on the topic because I've continued to help one of the judges I clerked for with screening applications since my clerkship ended. So at this point I have seen applications over the course of six hiring cycles and have formed some observations on what makes letters useful. But now that I'm on the other side and facing the task of writing letters myself, I'd also love to get the reactions of others to see if any of my views are idiosyncratic or if I'm missing any opportunities to increase my letters' effectiveness.
The Role of Race in Juries--and Jury Pools
A friend recently pointed me to a fascinating 2012 study of the role of race in criminal juries (h/t Marginal Revolution). The study is entitled "The Impact of Jury Race in Criminal Trials" and was authored by Shamena Anwar, Patrick Bayer and Randi Hjalmarsson. The study looked at the connection between verdicts in two Florida counties and the racial composition of jury pools--that is, the groups of about 27 from which actual juries of 6 to 7 are chosen. In short, all-white jury pools convicted black defendants at a higher rate, but the study found that that disparity evaporated if the jury pool--not the jury itself--included at least one black member.
Wednesday, September 03, 2014
Personality of An Entrepreneur
I am conferencing in Tokyo at an international conference on Intellectual Property and Venture Capital: The Secrets of Building Innovation Ecosystems. You can see the program here. The morning session began with a keynote by Professor Hiro Higashide, who teaches at Waseda University Business School in Japan. Professor Higashide's first argument based on his broad multi-industry research was that the predictors of success are far more tied to the personality of the entrepreneurs in which VC invest than the technology or IP involved. He described the entrepreneurial spirit as developing very early in life and Japan's goals of identifying potential entrepreneurs in their 20s. At the same time, in Japan the entrepreneurial gap is quite low, that is, there is, relative to other cultures, a low percentage of individuals interested in becoming entrepreneurs. Other cultural differences between Japanese and western entrepreneurial ecosystems were emphasized, namely the difficulty in Japan to replace management, not just legally but as part of the social norms. This means that the selection of the initial entrepreneur in which to invest is even more crucial. Professor Higashide harshly described most entrepreneurs as "Living Dead" - they will never make a significant exit; the start-up, despite the investment, is doomed to fail. This, circling back to the relative significance of IP/tech versus leadership/personality, is far more dependent according to Higashide's research on the entrepreneur's qualities than the venture itself. Higashide spoke of "Founder's Diseases", the worse one being the tendency to stick to what one had originally planned without flexibility to change and make use of opportunities along the way.
First, by way of introduction, I am an associate professor at Barry University Dwayne O. Andreas School of Law in Orlando, and I teach Torts, Business Organizations, Health Care Law, and several Health Care Law Related Seminars. I write about topics at the intersection of science and the law, most recently in areas related to contraception in the Affordable Care Act, egg freezing, surrogacy, and prenatal testing ( SSRN author link here). I hope to write about some of the new issues cropping up in these areas over the next few weeks.
As most you can empathize, the beginning of the semester is extremely busy. I am chairing our Appointments Committee again this year--but the other reason for the hecticness is because I decided to switch my Torts and Business Organizations books this fall. This is my sixth year of teaching Torts and this is the third Torts book I have used (I switched to Farnsworth and Grady). This is my fifth year of teaching Business Organizations and this is the first time I have switched books (I am now using Smith and Williams). Of course, my grand plan was to prep the entire semester for both courses over the summer--and big shocker, that did not happen.
The myth of body cams
This Slate piece by two criminology professors who have studied the issues. They doubt cameras will prevent another Ferguson shooting, which is almost certainly true. But they also found (from studies of police in Mesa, AZ) found changes in police behavior--officers with cameras conducted fewer stop-and-frisks and arrests, although they wrote more citations. They also initiated more contacts with citizens, perhaps after observing behavior for longer to ensure themselves they were seeing wrongdoing before initiating contact.
Tuesday, September 02, 2014
A jurisdictional tragedy
Forget taxes. What is really important about Burger King's deal with Tim Horton's are the jurisdictional implications. Has Florida (and Miami in particular) lost its greatest contribution to the civil procedure canon? Might this set-up a final exam question in which a plaintiff tries to use BK's "home" in Florida to get general jurisdiction over the Canada-based parent company in Florida that will be birthed by the deal? Would BK now prefer to litigate in eastern Michigan (where Rudziewicz wanted to be), which is closer to Ontario?
Introduction: Richard Chen
The following is by September GuestPrawf Richard Chen.
As a first-time guest blogger, I thought I’d write a short post to introduce myself. I am a visiting assistant professor at Pepperdine University School of Law, where I teach Contracts and International Business Transactions. I am also one of the 492 brave (or foolhardy) people testing the entry-level hiring market, so blogging will provide a much-needed distraction this month while I wait for schools to call.
I want to thank the team running Prawfsblawg for giving me this opportunity to participate. I was originally invited by Dan, whom I did not know but was introduced to by one of my Pepperdine colleagues. He was very gracious in our brief interaction and made me feel welcome. I wish I’d had the opportunity to get to know him, but I do feel privileged now to be joining this community that he created and that he continues to inspire.
As we indicated, one of our big goals in keeping Prawfs going is to continue Dan's tradition of having a wide range of guests from a wide range of schools and disciplines pass through this forum.
As September rolls in, Irina Manta (Hofstra) will continue with her visit from August. We welcome returning visitor Jennifer Bard (Texas Tech) and first-timers Richard Chen (Pepperdine) and Seema Mohapatra (Barry). In addition, Richard Re (UCLA) continues his extended guest stint.
And, again, we are always looking for visitors, new and old. So email Paul or me if you are interested in joining the conversation.
Friday, August 29, 2014
Video Chutzpah, defined
Stories have begun circulating about an incident in Minneapolis in January, in which officers seemed to escalate a situation in which a man was sitting in a restricted area near a public space, then used a TASER when he refused to give his name and attempted to walk away. Charges (trespass and "obstruction of the legal process") were dropped in July. Yesterday, the chief of the St. Paul Police defended the officers, beginning with: "As is often the case, the video does not show the totality of the circumstances."
He is right, of course. But that is certainly not going to be his line or the officers' line when they inevitably move for summary judgment in the inevitable § 1983 action.
Substantial Similarity and Music
From Guest Irina Manta.
For those interested in more scholarship on the topic of substantial similarity in copyright law, Carys J. Craig and Guillaume Laroche (York University-Osgoode Hall Law School) recently posted a piece entitled Out of Tune: Why Copyright Law Needs Music Lessons. Here is the abstract:
This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors illustrate how and why this test may fail to perform its necessary role in the infringement analysis. The authors conclude by identifying some ways in which the legal analysis could be improved, including a more extensive use of both expert and survey evidence, and greater consideration of the accepted norms and practices of the relevant creative community. The overarching aim of this chapter is to demonstrate the importance of bringing the insights from musical and other creative disciplines to bear on the law of copyright, so that it might more accurately reflect the very practices it is meant to encourage.
Rebecca Tushnet has posted some of the key excerpts here. The authors give an interesting overview of the special problems entailed in similarity determinations for musical works and show that Canadian law largely suffers from the same problems as U.S. law in that area. They are also open to the possibility of introducing surveys in copyright litigation (similar to the ones we use in trademarks cases), as I suggested in previous work.
Another SCOTUS counter-factual: Justice Posner?
Many sites are talking about Wednesday's Seventh Circuit arguments in challenges to same-sex marriage bans in Indiana and Wisconsin. Judge Posner was in rare form in shredding the states' arguments in support of the bans, particularly in the Wisconsin case (several of the links have either the full audio or audio clips). As usual, there is the debate about whether this is Posner being a bully (Josh Blackman says yes) or Posner being Posner and attacking bad legal arguments and bad lawyering (in fairness to Josh's viewpoint, Posner does not give the lawyers room to answer in real detail).
But the argument highlights Posner's uniqueness as a conservative-but-iconoclastic judge. And sparks this question: What if Posner had been the nominee for the late Reagan/Bush I openings--Scalia, Kennedy (after Bork and Ginsburg both went down), or Souter (replacing Brennan, a fitting seat, since Posner famously clerked for Brennan)? Was he ever truly in the running for any of those seats? Would his academic writings have done him in (thus, making the term "Posnered")? Alternatively, assuming Posner has become more iconoclastic over the years, would he have gone the other direction had he reached the pinnacle (as some say Scalia has gone)?
More importantly, would things be different? And, if so, how? Replace Scalia or Kennedy with Posner and Carhart (upholding Nebraska's ban on D&X abortions) Gonzales v. Carhart (upholding the federal ban on D&X abortions) comes out the other way. In spring/summer 1998, while still living in Chicago, I attended arguments in the challenge to Wisconsin's D&X ban; it sounded an awful lot lot like Wednesday's arguments. Not sure what Posner would have done on Bush v. Gore had he actually been there on the ground and not writing about it ex post. On the other hand, replace the speech-protective Kennedy with Posner and the First Amendment might look somewhat different.
Thursday, August 28, 2014
Learning Outcomes Are Coming, Learning Outcomes Are Coming--What They Are and How to Draft Them
[From our guest Jennifer Bard]
My last correspondence with Dan was in May when he asked if I would do another month as a guest in the fall, I said “yes” and “Thank you” and we agreed to September. Although I didn’t yet know him as well as many of you, and that is clearly my loss, I’m honored to be part of the continuation process and without further ado—I did get the be concise vibe—let’s go.
The ABA dropped something of a bombshell last week when it sent out a letter to the Deans of ABA approved law schools with an advanced copy of a document now on their website, letting the Deans know that not only were going to adopt Standard 302 to require learning outcomes, but they expected Law Schools to implement the change immediately.
The topic of today’s Post is Standard 302.
A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:
(a) Knowledge and understanding of substantive and procedural law;
(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;
(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and
(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.
Learning outcomes are already required of schools accredited by the Southeastern Associations of Colleges and Schools, as well as other regional accreditors, Indeed, quite a few law schools and law professors are way ahead of the curve on this—here are some examples from Hastings, Belmont Law School, Thurgood Marshall, and a book by Gregory Munro.
But as we know, the temptation within law schools is to address anything new as “yet another administrative burden” and, always, that “just doesn’t fit with a law school education.” We can’t do that anymore. And I don’t think it’s going to be terrible. In fact, I’d suggest that the way we teach now is unduly Procrustean--and these latest requirements are a path to measuring what’s going on the classroom and a method of identifying students who are struggling as well as those who may be bored. Here is a very thoughtful article by Mary Lynch at Albany that addresses concerns specific to legal education. Anyway, as the saying goes, this is not a situation that requires our belief—it’s something we have to do.
So—to dive in. The big concept here comes from Bloom’s taxonomy of learning in which he argues that there are “levels” of expertise that everyone goes through in learning new material. People start at “knowledge” and end up moving through comprehension, application, analysis, synthesis, and evaluation. Our job is to evaluate the level of student learning within our own classes along that continuum—and the way to do that within the Bloom framework is by using "measurable verbs." And, Good News! There is lots of help available. I close today with some resources—and will go into more detail later. This overview from the learning center at UNC Charlotte is helpful. Here’s another from Tulane, a youtube video from a doctoral candidate, a lot of detail from Rutgers, and one we use at TTU. Another interesting practice is to have students draft their own learning objectives—here’s one for an experiential learning program from the University of Central Florida.
Welcoming Back Jennifer Bard, and a Note
We're happy to welcome Jennifer Bard back to Prawfs. She is the Alvin R. Allison Professor of Law at Texas Tech University School of Law and an adjunct associate professor at the TTU School of Medicine.
Let me say as an aside that in the wake of our loss of our friend Dan, many old and new friends have stepped forward to serve as guest bloggers over the coming year. We're eager to keep what I think of as The House That Dan Built going and grateful that so many people are helping to maintain a fraction of the energy that Dan brought to this blog, along with everything else. And we are grateful to our readers as well.
A Clearinghouse for Questions, 2014-2015
In this comment thread to this post, you can ask questions about the law teaching market, and prawfs or others can weigh in.
Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, slawsky*at*law*dot*uci*dot*edu.
We have a different thread in which candidates or prawfs can report callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.
Here is a link to the last page of comments.
First posted 8/28/14.
Law School Hiring, 2014-2015, Thread One
Those on the market are invited to leave comments on this thread regarding whether they have received:
(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);
(b) a callback from a law school and/or accepted it; or
(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Law professors may also choose to provide information that is relevant to the entry-level market.
Four miscellaneous things:
1. If you don't want your contact information displayed, enter email@example.com or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. Finally, in each of the last five years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.
We now have an aggregator, and we will thus continue our spreadsheet approach: All information should come in through the comments. Our aggregator will use a spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.
Here is the spreadsheet, which is downloadable.
Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.
First posted 8/28/14.
Wednesday, August 27, 2014
The Doctrine Formerly Known as "Statutory Standing"
Last week, I posted on Hobby Lobby and its effort to grapple with older cases that had assumed federal jurisdiction, contrary to the now-settled rule established in Steel Co. Some comments about the post reminded me that Hobby Lobby wasn't the only decision last year that dealt with assumed jurisdiction: Lexmark did as well--but you wouldn't know it from reading the Court's unanimous decision. On its face, Lexmark simply re-characterized the doctrine of "statutory standing" as a form of merits inquiry. But, in doing so, Lexmark silently demolished one of the foundations underlying Steel Co.
This episode offers a rich example of how legal revolutions can be achieved, not through grand decisions overruling precedent, but rather through gradual re-characterizations. This episode also has a discrete doctrinal payout: after Lexmark, it appears that federal courts must now assure themselves of jurisdiction before turning to the doctrine formerly known as statutory standing.
Two from Dorf on policing and body cameras
Two posts from Mike Dorf--one supporting use of body cams and one considering the effect and future of broken-windows policing, which necessarily increases the number of police-citizen law-enforcement encounters, which necessarily means increasing recording of those encounters. Mike share my view that cameras are a good idea but not a panacea.