Friday, September 26, 2014

Ah, censorship

Shudder to think how different Western Civilization would have been. (H/T: The Big Lead).

 

Python-Letter

Posted by Howard Wasserman on September 26, 2014 at 10:18 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Thursday, September 25, 2014

"Conscience and Community: Understanding the Freedom of Religion"

Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project.  A taste:

 “Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .

The piece is consonant, in places, with Paul's book, which -- as was noted here -- John Inazu has recently and very thoughtfully reviewed.

Posted by Rick Garnett on September 25, 2014 at 04:20 PM in Rick Garnett | Permalink | Comments (0)

Karima Bennoune Wins Dayton Prize

Congratulations to UC Davis Prof Karima Bennoune whose book Your Fatwa Does Not Apply Here: Untold Stories from the Fight Against Muslim Extremism (Norton) won the Dayton Literary Peace Prize.  As one of the judges put it: 

In Your Fatwa Does Not Apply Here, Karima Bennoune walks a tightrope between, on the one hand, the tragic  consequences of Islamist fundamentalism and, on the other, the West’s inability to imagine Muslims as anything more  than terrorists or passive victims. Her solution is to tell us the stories that disturb both of these stereotypes,  vividly presenting us the experiences of individuals from a vast array of identities and social positions — as women,  as journalists, as educators, as makers of and keepers of cultural tradition. She conjures what those of us living  inside the Western media bubble have never seen before: a dizzingly diverse Muslim culture (that is no more cohesive  than, say, that global cohort labeled “Christians”) represented by a bevy of activists from across the globe determined  to realize their personal and communal desire beyond fundamentalist strictures.

Her TED talk When People of Muslim Heritage Challenge Fundamentalism  has had more than a million views.

 

Posted by Jack Chin on September 25, 2014 at 02:14 PM | Permalink | Comments (0)

Suboptimal Human Rights Decisionmaking

In a forthcoming paper, I explore ways in which human rights violations may result from suboptimal decisionmaking rather than utility-maximizing conduct by state leaders.  Most strategies to influence the human rights practices of a country involve efforts to alter its expected utility calculation, either by introducing material incentives so that compliance is more attractive or by changing underlying preferences so that human rights concerns are seen as more intrinsically valuable.  These are known in the literature as coercion and persuasion respectively.  Drawing on social science research that demonstrates how individuals often fail to maximize their expected utility, my paper argues that at least some human rights violations likely result from such suboptimal decisionmaking.  And if that is correct, then the human rights community may be missing out on opportunities to improve compliance that do not require altering a state’s expected utility calculation through coercion or persuasion, but instead work within a state’s existing incentive structure.

For this blog post, I thought I’d describe the three specific causes of suboptimal decisionmaking that I discuss in the paper and invite suggestions on other lines of research to explore.  As I discuss in the paper, there are methodological obstacles to applying behavioral research, which is generally based on studies of individuals in laboratories, to real-world state conduct, which involves decisionmaking by groups consisting of experienced elites who might not make the same mistakes that participants in artificial experiments do.  I chose the three causes of suboptimality that I did in part because there is a substantial international relations literature that has already attempted to make that translation, and in part because they seemed likely to contribute to the types of flawed decisions that would result in human rights violations.  But of course the behavioral literature is quite vast, and I may have missed some other promising avenue.

Continue reading "Suboptimal Human Rights Decisionmaking"

Posted by Richard Chen on September 25, 2014 at 11:54 AM in International Law | Permalink | Comments (0)

Self-Defense Against Firearm Suicide

If you're interested in mental illness, guns, or suicide prevention, check out my new article on SSRN:

Putting Arms at Arm's Length: Precommitment Against Suicide  

Here's the abstract and link: "Nearly 20,000 Americans each year commit suicide using a gun. Many would survive if it were more difficult to obtain the gun. The proposal here is not gun control, but self control. Specifically, this article proposes allowing individuals to confidentially put their names into the existing federal background check system and thereby to prevent their own future firearm purchases. Empowering people to restrict their own access to guns has the potential to save many lives, is supported by other self-binding regimes, and poses no serious constitutional concerns."   http://ssrn.com/abstract=2500291

Posted by Fredrick Vars on September 25, 2014 at 10:37 AM | Permalink | Comments (6)

How to Save the World Without Being Happy or Virtuous?

It was not surprising that an op-ed in the Harvard Law Record recommending that fledgling graduates of schools like Harvard "save the world by working in biglaw" would provoke some attention and reactions. Paul Caron has links to that op-ed and some responses that ran in the Crimson. At Above the Law, the more or less inimitable Elie Mystal has a forceful if not especially cogent response as well. I am somewhat more sympathetic to the initial piece, although that does not constitute a complete endorsement. 

Mystal's response is somewhat illustrative of what I think is the rather confused reaction that met the piece. That piece argued--without factoring in whatever social utility is provided directly by working in a big law firm itself--that working in BigLaw is the "greatest utility maximizing option" these students have, because they could simply donate 25 percent of their income to worthy causes, and that the good done by this would outweigh the good done by working directly and less remuneratively in lower-paying public service jobs.

Mystal made two arguments. First, and quite rightly, he pointed out that is is unlikely in the extreme that "any Biglaw associate, anywhere, who is going to give away 25% of their post-tax salary." True enough! But he makes his first error here, writing style aside. The question posed by the op-ed writer is not whether current BigLaw types would donate a quarter of their income to worthy causes; it is whether the kinds of people who normally work in public interest law would donate a quarter of their suddenly vastly expanded salary to such causes. There are perfectly good reasons to think that this too is unlikely. Just because you want to do public interest work and are sufficiently dedicated to doing so to take a lower-paying job, that doesn't mean you are going to give away a quarter of a large salary if you actually get that salary. I assume at least some of those people would, naturally enough, buy condos, pay down their debt faster, take vacations and/or gather the beginnings of a nice wine cellar, lease high-end luxury hybrid SUVs, and so on. Nevertheless, one would think on Mystal's logic, or that offered by other critics of the op-ed, that if the kinds of people who do public interest law took BigLaw jobs for the express purpose of dedicating more of their income to charitable giving, those people would be more likely to do so.

Ah, but would they be happy? Would they be fulfilled? Would they be decent people? That's the second point of Mystal's rebuttal, more or less, and it is a theme that runs through the Law Record rebuttals as well. Thus, one writer acknowledges, "I love my work and being engaged with causes I care about makes me happier. This does not reduce or demean the impact of the work I am involved in. For those who have the all the choices of employment at their fingertips, we should all graduate into employments we love. With all the choices in the world, I also hope we’ll choose well – taking seriously the power society has handed us because of our degrees and profession." And Mystal, presumably having done some research or reporting on this question, talks a bunch about how "people who actually care about the public interest...think." One friend made what I thought was a better, more subtle version of this argument, suggesting that it matters that people do intrinsically virtuous things, regardless of the net social benefit to others.

My reading of the initial op-ed is that its basic answer to these lawyers is, "But why should I care about you?"...

Continue reading "How to Save the World Without Being Happy or Virtuous? "

Posted by Paul Horwitz on September 25, 2014 at 10:10 AM in Paul Horwitz | Permalink | Comments (6)

Inazu, "Institutions in Context"

John Inazu has a new review up on SSRN of my book First Amendment Institutions. (Incidentally, it makes a fine Rosh Hashanah present.) It is supportive of the general institutional project but carefully critical of some important aspects of its implementation in the book. I am grateful to John for reading it, which places him in a small select club, and for his thoughtful remarks. Here's the abstract:

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously.  Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities.  He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries.  These chapters bring to life our diverse institutions and their differences.  It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates.  In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them?  I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches.  I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges.  I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.

Posted by Paul Horwitz on September 25, 2014 at 09:21 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, September 24, 2014

The Reluctant Dissenter

On Monday, the Ninth Circuit issued a 6-5 en banc decision granting habeas relief for a Miranda violation. The case, Sessoms v. Grounds, has garnered attention in part because Chief Judge Kozinski wrote an opinion “regretfully dissenting” from the court’s judgment. Remarkably, Kozinski voted to deny habeas relief, even though he was “glad” that his own view of the law lost. Kozinski's reluctant dissent provides a window into how judges struggle with the sometimes conflicting demands of law and justice.

Continue reading "The Reluctant Dissenter"

Posted by Richard M. Re on September 24, 2014 at 12:41 AM | Permalink | Comments (7)

Tuesday, September 23, 2014

The Washington Redskins, the Lanham Act, and Article III

As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.

Continue reading "The Washington Redskins, the Lanham Act, and Article III"

Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)

Teaching current events

Interesting piece in the Chronicle of Higher Ed. At my school, one of the categories on student evals is how we work current events into the discussion. I have used things from Ferguson in Evidence, notably in discussing character evidence and other acts. And I think the controversy around the non-hiring of Steven Salaita at Illinois may lend itself to some discussions of promissory estoppel (there have been some interesting on-line debates about whether he might have a good P/E/ claim). But I think that is as far as a law school class can go with current events, at least before things play out legally and outside of a small, niche seminar.

On a related note, we are working to start a program of monthly faculty talks/panels to discuss ongoing and current events with students and student organizations. Something different than a series of "teach-ins," it will be more a chance for faculty to share their work and to engage with students on hot topics.

Posted by Howard Wasserman on September 23, 2014 at 04:40 PM in Current Affairs, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Relative Standing in the Seventh Circuit

In Association of American Physicians and Surgeons, Inc. v. Koskinan, the Seventh Circuit recently found no standing where plaintiffs challenged the IRS’s failure to collect an Affordable Care Act tax. Koskinen may prove to be a bellwether for future cases involving challenges to executive inaction. But what's most interesting about Koskinen is that it cited last year's Supreme Court decision in Lexmark as a reason to argue in terms of relativity—that is, in terms of whether the plaintiffs before the Court were the best ones available--even though that inquiry seemed irrelevant as a doctrinal matter. The takeaway is that relativistic reasoning often lies just under the surface of current standing doctrine.

Continue reading "Relative Standing in the Seventh Circuit"

Posted by Richard M. Re on September 23, 2014 at 01:26 AM | Permalink | Comments (0)

Monday, September 22, 2014

Markel Memorial

Last Tuesday, Florida State University College of Law hosted a memorial service for Dan. Here is the program from the event, which included some very touching remarks from several colleagues from FSU and elsewhere, as well as one former and one current student. There is video of the event; I will provide the link as soon as I can.

Posted by Howard Wasserman on September 22, 2014 at 11:18 PM in Howard Wasserman | Permalink | Comments (0)

Addressing the Unmet Need for Civil Legal Representation--and the Legal Employment Market

It’s my privilege to hang out with present and future health care providers almost every day through teaching at the Texas Tech University Health Sciences Center's  brand new Public Health School and being an adjunct faculty member at our terrific medical school and on the advisory board of our awesome nursing school.  One of the issues that always surprises them is how little access most individuals have to legal services as compared to medical services.  We are used to hearing the bad about access to health care—and there is still plenty of bad—but unless a person faces criminal charges, brought by the government, there is no right to legal representation for those who cannot afford it and very few public or private sources of insurance. 

   The primary source of federal funding for individuals involved with a civil dispute—child custody, divorce, land-lord tenant, employment, the  Legal Services Corporation (LSC), estimates that 80% of “low income Americans who need civil legal assistance to do not receive any, in part because legal aid offices in this country are so stretched that they routinely turn away qualified prospective clients.”  See report, Documenting the Justice Gap in America.   Individual states also have some subsidized civil aid programs.  Although the current president is about as sympathetic to LSC as any in recent history, demands for help still far outstrip demand

Risa Kauffman of Columbia Law School reported to a U.N. Human Rights Committee examining how the U.S. complies with the an international covenant on civil and political rights reported that:  "In the United States, millions of people are forced to go it alone when they're facing a crisis….It's a human rights crisis, and the United States is really losing ground with the rest of the world."

And if anyone is wondering why, given this size of this unmet need and given the existing federal investment in student loans for legal education and the downturn in legal employment opportunities, there hasn’t been federal action to increase staffing at LSC and other organizations—that’s a good question. 

If, however, your first reaction here is to laugh and tell a lawyer joke, browse through these state reports, complied by the National Legal Aid & Defender Association and usually commissioned by state courts and chief judges, documenting the unmet need for civil representation in our 50 states. The National Legal Aid and Defender Association has helpfully put together a 50 state survey of reports. The ABA has a Standing Committee on the Delivery of Legal Services that considers access as well as other issues. 

Continue reading "Addressing the Unmet Need for Civil Legal Representation--and the Legal Employment Market"

Posted by Jennifer Bard on September 22, 2014 at 03:46 PM in Current Affairs, Law and Politics | Permalink | Comments (0)

Stone on sex discrimination and professional sports

The following is by my colleague (and past GuestPrawf) Kerri Stone, responding to my post on how professional sports teams and leagues respond to sex discrimination.

The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.

Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.

Continue reading "Stone on sex discrimination and professional sports"

Posted by Howard Wasserman on September 22, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Saturday, September 20, 2014

Intellectual Property Infringement as Vandalism (Part 3)

This is the third installment of my post on my new co-authored piece Intellectual Property Infringement as Vandalism (the first part is here and the second here).

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.

Continue reading "Intellectual Property Infringement as Vandalism (Part 3)"

Posted by Irina Manta on September 20, 2014 at 02:15 AM | Permalink | Comments (0)

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?

Continue reading "Who Is Justice Ginsburg Talking To?"

Posted by Richard M. Re on September 19, 2014 at 12:23 AM | Permalink | Comments (5)

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.

Posted by Richard Chen on September 18, 2014 at 12:27 PM in International Law | Permalink | Comments (0)

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.

Continue reading "Cameras and unintended consequences"

Posted by Howard Wasserman on September 18, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

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.

Posted by Howard Wasserman on September 17, 2014 at 04:59 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (11)

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.

Continue reading "Happy Constitution Day--Some Thoughts on Constitutional Issues in Health Law"

Posted by Jennifer Bard on September 17, 2014 at 12:11 PM in Constitutional thoughts | Permalink | Comments (2)

Tuesday, September 16, 2014

Channeling Whistleblowers

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."

Some of my own previous thoughts on related issues are here and here.

Posted by Irina Manta on September 16, 2014 at 09:37 AM | Permalink | Comments (0)

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.

Posted by Howard Wasserman on September 16, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

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.

Posted by Rick Garnett on September 15, 2014 at 12:01 PM in First Amendment, Religion, Rick Garnett | Permalink | Comments (0)

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.

Continue reading "A "Shell" Game in the Sixth Circuit?"

Posted by Richard M. Re on September 15, 2014 at 11:15 AM | Permalink | Comments (0)

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.

Posted by Howard Wasserman on September 15, 2014 at 09:31 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

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.

Continue reading "Investor-State Regulatory Disputes (Part 2)"

Posted by Richard Chen on September 13, 2014 at 11:20 AM in International Law | Permalink | Comments (0)

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.

Posted by Howard Wasserman on September 13, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 12, 2014

Kopald on health problems from WiFi

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

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

Intellectual Property Infringement as Vandalism (Part 2)

I would like to continue the discussion I began in Part 1 about my co-authored paper Intellectual Property Infringement as Vandalism, which is forthcoming in the Stanford Technology Law Review.

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.

Continue reading "Intellectual Property Infringement as Vandalism (Part 2)"

Posted by Irina Manta on September 12, 2014 at 10:15 AM in Intellectual Property | Permalink | Comments (0)

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."

Continue reading "Federal control of all police prosecutions?"

Posted by Howard Wasserman on September 12, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

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.

Posted by Jennifer Bard on September 11, 2014 at 03:32 PM in Current Affairs | Permalink | Comments (2)

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.

Continue reading "Is Hobby Lobby a Precedent on Jurisdiction?"

Posted by Richard M. Re on September 11, 2014 at 03:11 PM in Constitutional thoughts | Permalink | Comments (0)

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.  

Posted by Paul Horwitz on September 11, 2014 at 09:54 AM in Paul Horwitz | Permalink | Comments (0)

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.

Posted by Howard Wasserman on September 11, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

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. 

Continue reading "Investor-State Regulatory Disputes (Part 1)"

Posted by Richard Chen on September 10, 2014 at 06:26 PM in International Law | Permalink | Comments (0)

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

CONTENTS

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

 

Posted by Paul Horwitz on September 10, 2014 at 04:57 PM in Paul Horwitz | Permalink | Comments (2)

Tuesday, September 09, 2014

Remembering Danny

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.

Posted by Howard Wasserman on September 9, 2014 at 01:58 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

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.” 

Continue reading "Call for Papers: AALS Program of the Business Associations Section"

Posted by Matt Bodie on September 9, 2014 at 09:12 AM in Corporate, Life of Law Schools | Permalink | Comments (0)

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.

Continue reading "No Grants From the Long Conference?"

Posted by Richard M. Re on September 8, 2014 at 01:46 PM in Judicial Process | Permalink | Comments (0)

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.  

GoldsteinLast 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.

Continue reading "Straw Gods and Puny Gods"

Posted by Jeff Lipshaw on September 8, 2014 at 01:37 PM | Permalink | Comments (0)

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.

Posted by Rick Hills on September 5, 2014 at 04:43 PM | Permalink | Comments (0)

Destroying marriage to save it

A thought, brought into relief by Judge Posner's opinion for the Seventh Circuit (go here for highlights):

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.

Posted by Howard Wasserman on September 5, 2014 at 03:30 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

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.

Continue reading "Intellectual Property Infringement as Vandalism (Part 1)"

Posted by Irina Manta on September 5, 2014 at 10:05 AM in Criminal Law, Intellectual Property, Property | Permalink | Comments (3)

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?

Posted by Orly Lobel on September 4, 2014 at 09:09 PM | Permalink | Comments (8)

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. 

 

Posted by Orly Lobel on September 4, 2014 at 08:59 PM in Information and Technology, Intellectual Property, Web/Tech, Workplace Law | Permalink | Comments (0)

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.    

Posted by Paul Horwitz on September 4, 2014 at 05:08 PM in Paul Horwitz | Permalink | Comments (11)

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.

Continue reading "A New Vision For Legal Education—Starting From Day One"

Posted by Jennifer Bard on September 4, 2014 at 03:12 PM | Permalink | Comments (0)

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.

Continue reading "Clerkship Letters of Recommendation"

Posted by Richard Chen on September 4, 2014 at 01:54 PM in Life of Law Schools | Permalink | Comments (4)

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. 

Continue reading "The Role of Race in Juries--and Jury Pools"

Posted by Richard M. Re on September 4, 2014 at 12:01 AM | Permalink | Comments (0)

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.

Posted by Orly Lobel on September 3, 2014 at 10:26 PM | Permalink | Comments (2)