Thursday, May 09, 2013
Interview with Brian Dalton about Above the Law’s New Rankings
You’ve no doubt heard about the new Above the Law Top 50 Law School Rankings. But have we really had the chance to scrutinize them to death? ATL itself has done the job for us, to some extent, with self-criticism here and here. But perhaps you still have questions? We here at Prawfs did, and ATL’s rankings guru Brian Dalton was kind enough to answer them. Brian is a graduate of Middlebury College and Fordham Law. He joined ATL’s parent organization Breaking Media in October 2011 after spending seven years at Vault.com, most recently as Director of Research and Consulting. Before that, he was, among other things, an associate at a Manhattan law firm, a French teacher in Brooklyn, a Peace Corps volunteer in Mali, and a security guard at a waterslide park in Albuquerque, NM. Here is our discussion.
Spousal Hiring, Ethics, and the Theory of the Family
Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]. As part of her interview with several university presidents and academics, apparently spousal hiring is often credited with helping to improve the number of women on faculties and there is also some data suggesting that in universities with spousal hiring the "index spouse" if you will (the one the university has gone after) performs better than where there is no such policy. I am very interested in how the laudable goals of accomodation and family support intersect with general priors against nepotism.
For today's post, though, I wanted to examine the notion that spousal hiring rules or tendencies may reflect a certain theory of the family. To see this, imagine the following hypotheticals.
1. Brenda and Allen are married. Brenda is hired to teach physics, and the university finds a position for her husband Alan in its law school clinic.
2. Carl and Dan are same-sex partners in a state without legalized gay marriage. Dan is hired to teach physics, and the university finds a position for Carl in its law school clinic.
3. Evelyn is the daughter of Frank. Evelyn is hired to teach physics, and the university finds a position for her father Frank in its law school clinic.
4 Garret is the father of Jordi and a senior scholar in the field. Garret is hired to teach physics, and the university finds a position for Jordi in its law school clinic.
5. Hector and Ingrid are best friends and have been for life. Ingrid is hired to teach physics, and the university finds a position for Hector in its law school clinic.
So each of these is a potential family relation. My sense is that many schools would do or have done hiring in case 1, some would do it in case 2, but none would do it in case 3 through 5. 3 and 4 at least are what average people would call family relationships, so this is interesting.
By making a cut (whether between 1 and the rest or 1 and 2 and the rest) universities are essentially endorsing once conception of the family over others. I want to suggest this is contested terrain, and we may need a justification for why they do so.
One answer would be that everyone asks for 1, and no one asks for 4 or 5. That kind of conventional answer, though, might suggest no one asks for the others because universities have never offered them. A more essentialist answer is that 1 is endorsed because there is a particular value that familial hiring is meant to secure relating to child rearing. That would raise the question of why universities should support that particular goal -- after all closeness and ability to care for an aging parent is also important -- whether some of these other family structures might also facilitate that goal (case number 3 in particular -- and what to do about relationship hiring that has no child rearing involved (including possibly case number 2). Finally, one might suggest that universities are committed to romantic love, or at least believe potential people they might hire care more about romantic love, than parental love or friendship. Again, though, it seems to me highly contestable as to what relationships people value more, very culturally contingent, and also I wonder what it is about the Telos (if I can be Aristotelian for a moment) about the university that connects it to romantic love?
What do people thing about these cases?
Teaching and Testing Law Students
I'm glad to be back for another rotation here at PrawfsBlawg. Like many of you, I've just finished up spring semester, and I'm grading exams while I think about new projects, line up my research and writing for the summer, and think about what I'd like to do differently the next time I teach. In this post, and some future posts, I'll share some things I did differently this year, and my thoughts on whether or not they were a success. I hope you'll share your ideas in the comments: I'm always on the lookout for better ways to teach my students.
Sports, video, and procedural rules
1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call. Why? Because video review still involves judgments and inferences, depending on the angle and what each individual sees. Contra Justice Scalia, the video does not necessarily speak for itself; someone has to figure out what the video is saying and that is going to vary on the viewer. Video just gives sports fans another thing to argue and complain about with respect to umpires.
2) The manager for the losing team was thrown out after this happened. Baseball has specific rules on what and how you can argue with umpires. One rule is that if a manager requests video review, he cannot argue over the results of that review (much as he cannot argue balls and strikes). Nor can he protest the review decision to the league, which is a non-reviewable judgment call. So you can make a motion, but not a motion for reconsideration. And you cannot appeal.
Reflections on the Rhythm of Academic Life
Apologies for showing up a bit late to the Prawfs party, and many thanks to Dan for inviting me back again. Like many of you, no doubt, I am overwhelmed at the moment with grading and administrative responsibilities, so the most I can muster here today is a post about academic life. I hope to provide more substantive posts later in the month.
I often find myself reflecting about the rhythm of academic life at this time of year, when the day-to-teach teaching routine of the regular semester seemingly grinds to a halt and my day is suddenly filled with stacks of papers and exams, along with the accompanying tedium of assessing them with a grade.
I remember thinking long ago that an appealing part of becoming a professor would be the up-and-down rhythm of each academic year: first, the intensity of the semester with regular teaching, student and colleague interactions, meetings, and—squeezed in between those—some writing and conferences; then, the slow, lazy pace of summers, with lots of time for reading and reflection combined with intensive writing in large, uninterrupted chunks. Although the summers have not usually turned out quite as relaxed as I had imagined, and although other fields (litigation, for example), do offer a similar up-and-down rhythm, I have found that I appreciate this rhythm for more than just the intermittent respite and constant variety it provides.
Wednesday, May 08, 2013
Thinking Carefully About Statistics: Gun Suicides (Updated)
There has been a lot of press attention on the CDC's recent report that gun-related suicides have jumped 28% between 1999 and 2010 for middle-aged people (35-64). Over at Atlantic Cities, Richard Florida attempts to explain the geography of suicides, tying it to gun laws: more access to guns, greater increase in suicides.
It's quite possible that gun laws and suicide are correlated, and I don't intend to get into a debate about gun control laws in this post. Instead, I want to draw attention to the fact that we too often attempt to force causal explanations onto data without first thinking carefully about the extent to which the results are just an artifact of baserates, regressions to the mean, etc., etc. And we perhaps too-readily overlook the risk of colinear or spurious relationships. That may be the case here--at least the risk is great enough that it demands attention.
The problem should be clear as soon as we look at the states with the ten largest increases in suicide rates:
“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case
At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:
“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”
The exchange is all the more curious because, despite
her scepticism, Kagan signed on to the Court’s holding that the Medicaid
expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.
First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.
Continue reading "“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case"
Tuesday, May 07, 2013
Back in 2011, I attended a symposium on Legal Positivism in International Legal Theory: Hart’s Legacy. The conference was a bit outside the range of topics I usually write about (e.g. religion meets private law). But presenting at the symposium drove home the point to me that international law and religious law scholars are contending with similar inquiries, many of which flow from one core question: what does it means to be non-state law?
When I talk about non-state law, I'm thinking collectively of various forms of law - from religious law to transnational law to international law. Of course, thinking about these forms of law outside of the law of the nation-state has long been at the center of the legal pluralism project. But what is often missed is that lessons from international law are instructive for religious law - and vice versa.
This often overlooked opportunity was largely the motivation behind the "Rise of Non-State Law" symposium I organized last week. To my mind, the papers, presentations and discussion at the symposium were extremely productive and got me thinking even more about the overlap between various forms of non-state law. In my next couple of posts, I'm hope to say a little bit about non-state law, building on some of the insights from the symposium.
"Constitution USA" with Peter Sagal"Constitution USA" (more here) premieres tonight, on your local PBS station. It's hosted by Peter Sagal, of "Wait Wait . . . Don't Tell Me!", and includes bits with a number of law profs (including me, I'm afraid -- that's a whole lotta bald!) about speech, federalism, civil rights, religious liberty, and lots of other things. I've seen some clips, and the show looks to be a lot of fun! Check it out, tell your students, etc., etc.
Some More Thoughts on Stop and Frisk I: Comparative Baselines
In light of some of the comments on my previous post about stop and frisk, I thought I’d say a few more things about it. In this post I want to focus on Larry Rosenthal’s claim that because crime dropped at the same time that the NYPD adopted stop-and-frisk hotspot policing, we should be wary about dropping stop and frisk.
The core problem with this argument is that it treats stop-and-frisk-of-crime-hotspots as a single concept. But there are two distinct ideas here: hotspot policing does not require stop-and-frisk. Is it the hotspot part that matters, the stop-and-frisk part, or some combination of both? Admittedly, the simultaneous timing poses a serious problem for disentangling which matters more, but it may be possible to glean some rough conclusions.
Conveniently, David Weisbrud—recipient of the Stockholm Prize, criminology’s answer to the Nobel, for his work on (among other things) hot spot policing—has a recent article titled Could Innovations in Policing have Contributed to the New York City Crime Drop even in a Period of Declining Police Strength?: The Case of Stop, Question and Frisk [SQF] as a Hot Spots Policing Strategy (written with Cody Telep and Brian Lawton). Almost too on-point to be believable. The main conclusions are quite apt to the discussion in the comments. Ultimately, Weisbrud et al. come down in favor of the hotspotting, but not the stopping and frisking.
Monday, May 06, 2013
The truth about past relationships
NBA player Jason Collins famously came out as gay last week, the first active player in a major U.S. team sport to do so. The reaction was the expected mixed bag. One mini firestorm erupted over comments by media critic Howard Kurtz, who chastised Collins for not owning up to his having been engaged to a woman. Unfortunately for Kurtz, Collins actually mentions his engagement (along with the fact that he dated women) in the eighth paragraph of the Sports Illustrated cover story. Kurtz apologized--initially in a typically half-assed fashion, then more unequivocally--and was grilled about it on CNN, stating "I deserve the criticism, I accept it and I am determined to learn from this episode." He also was terminated from The Daily Beast, although he insists this was in the works for a while and the timing was a coincidence.
Criticisms of Kurtz, and his apology, all focus on the factual error of his criticism. But this suggests that had Kurtz been correct and Collins had not mentioned the engagement, Kurtz's criticism would have been justified. Is that right? hat bothered me about Kurtz's initial story (but that I did not see discussed) was the stupidity of his premise: Collins was not being completely honest or forthcoming in excluding the detail of his engagement from the SI story. When a public-figure comes out, does the story really have to be "complete" and does that completeness necessarily include details about past heterosexual sexual activity? And how deep does this run--what is it, exactly, that Kurtz believes the public is entitled to know? Is it only the engagement about which Collins was obligated to "come clean"? Is it all dating? Is it the number of heterosexual sexual partners? Collins is 34 years old and only recently (within the past several years) came to understand his sexuality. It stands to reason that in the decade-plus between puberty and his coming out, he dated and had relationships, perhaps even long-term and serious relationships, with women. But why is that fact remotely relevant to the story of his coming out? Does it make him less gay? Does it make his story less sympathetic that he behaved as many closeted (or unrealizing) GLBT people do and as people have been forced to do by society, particularly in the world of team sports?
Saturday, May 04, 2013
What Rational Basis Review Really Means
Thank you to Dan and the rest of the Prawfs regulars for having me back! I'll be blogging lightly for the next few days due to other commitments, but I hope to make up for it later in the month. Most of my posts will deal with individual constitutional rights.
Meanwhile, I came across a case the other day that I thought might interest my fellow constitutional law professors, particularly those who are, at this busy time of year, immersed in answering student questions or designing their final exams. It's not a new case, but it helps reveal exactly how little is required for the government to survive rational basis review.
Friday, May 03, 2013
Weekend Non-ReadingThis weekend, Yale Law School's Information Society Project will be holding a phenomenal conference on freedom of expression. The list of speakers and papers is here and it looks just great. I wish I could be there, but if you're in New Haven, stop by. (Why not, if you're in New Haven? You have someplace better to be?) Unfortunately, the papers are password protected, hence the "non-reading" in the title. Given that these are drafts I quite understand, but I hope the authors will be posting them on SSRN soon, or that the organizers will provide the password in a comment to this post. I hope everyone has a good time.
Kolber Signs Off
My thanks to Dan and the Prawfs family for the guest blogging stint. And special thanks to commenters for their very interesting and helpful thoughts. Here are some topics I'll have to save for a future round:
- Smooth and Bumpy Laws (forthcoming California Law Review, 2014)
- The Neurolaw Revolution (forthcoming Indiana Law Journal, 2014) (email me for current draft)
- Card Counting and Freedom of Thought (email me for current draft)
And here's a recap of what I did cover:
- Punishment at the Speed of Light
- The Mystery of Credit for Time Served
- Partial Credit for Punishment Look-Alikes and Less-Alikes
- A Challenge to Strict Proportional Punishment
- Measuring Generosity
- The Organ Conscription Trolley Problem
- Replies to the Organ Conscription Trolley Problem
- Blackjack and Cognitive Enhancement
- Lindsey Lohan and "Credit for Time Served"
Thursday, May 02, 2013
Statistical Shenanigans, NYPD Edition
The NYPD Commissioner, Ray Kelly, defended current stop-and-frisk practices today by noting two statistics:
1. 75% of all violent crimes are committed by African-Americans.
2. 53% of all those stopped are African-American.
The conclusion: "So really, African-Americans are being understopped in relation to the percentage of people being described as being the perpetrators of violent crime."
Put aside for a moment the dubious reliability of racial identification by eye-witnesses in general, and crime victims in particular. Evern putting that aside, and assuming this quote is not taken out of context or in any way mangled, Kelly compares apples and oranges in a very subtle, but very important, way.
Lindsey Lohan and "Credit for Time Served" (UPDATED)
I started out my blogging stint by discussing the mystery of credit for time served. I just saw most of today's Lindsey Lohan hearing, and it raises what is at least a related issue. Some time ago, Lohan's lawyer and the prosecution reached a plea deal for Lohan to spend 90 days in rehabiltation. There was also a set of conditions attached to the kind of rehabilitation facility that would be acceptable to the prosecution. At the last minute, Lohan decided to check into a different facility than the one the prosecution anticipated. (According to TMZ, she wanted a facility that permitted her to smoke.)
It is unclear whether or not the California facility where she is currently enrolled satisfies the requirements of the plea deal. Today the court simply acknowledged the potential dispute. If the prosecution is not satisfied with the facility, the court will hold a hearing to interpret the plea agreement. If the facility does not satisfy the plea agreement, will Lohan receive credit toward her 90 days for the time she is already spending in her current facility? Perhaps we'll find out, and maybe some California lawyers who have seen similar disputes will weigh in.
There is at least some evidence that Lohan was not taking her agreement with prosecutors very seriously. Perhaps that would bear on the outcome. And maybe it's important in rehab to stick with the same therapist for a sustained period of time. Otherwise, however, I have argued that courts and legislatures should be more open-minded about giving offenders partial credit for time served.
UPDATE: TMZ reports that Lohan was not at rehab when her lawyer said she was.
Great to be back and greetings from Washington!
It's great to be back at Prawfs for another guest-blogging stint. I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.
My growing interest in non-state law largely traces to my sense that conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.). To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law." The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.
I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate. For those who share the interest, here's the full schedule for the day:
8:30 a.m. Breakfast (Tillar House)
9:00 Panel 1—Global Legal Pluralism: Trends and Challenges
- Moderator: John Linarelli (Swansea)
11:00 Panel 2—Non-State Law and Non-State Institutions
- Moderator: Donald Earl Childress III (Pepperdine)
1:00 p.m. Lunch
2:00 Panel 3—The Role of Religion and Culture in Non-State Law
- Moderator: Mortimer Sellers (Baltimore)
4:00 Open Forum
5:00 Closing Comments
What is a Drug Crime? Part II
In my last post on drug offenses, I noted that the standard definition of a “drug incarceration”—someone convicted of a drug possession or drug distribution offense—may provide too narrow a view of how the war on drugs is driving prison populations. How, for example, should we count the person whose life is upended by a minor drug arrest and ultimately turns to crime as a result: isn’t his incarceration for, say, robbery in some ways tied to the war on drugs? Or how about drug-market related violence that arises in no small part because there is no legal market nor legal ways to handle business disputes?
It isn’t possible to address all these here. For example, it is almost impossible to determine which violent crimes were drug-market related from official statistics, except perhaps for homicide.1 But two datasets gathered by the BJS provide at least some indirect evidence on the extent to which prior drug arrests and convictions may be responsible for subsequent non-drug incarcerations.
To foreshadow my conclusions: both suggest that the effect of prior drug arrests is weak. The evidence is by no means clear-cut or dispositive, but neither is it wholly ambiguous.
Wednesday, May 01, 2013
Happy May Day all!
For our new month, I'm delighted to welcome a band of new but familiar voices to the conversation this month: Jack Chin (Davis), Nancy Leong (Denver), Jake Linford (FSU), Glenn Cohen (Harvard); Jessie Hill (Case Western); Michael Helfand (Pepperdine), and here for the first time, Lisa Tucker McElroy (Drexel).
Some of our April guests may still be lingering, but please join me in thanking them for all their contributions. We look forward to seeing you again soon, and we're glad you could celebrate our 8th Anniversary with us this month.
Mark your calendars for Law and Society, which is coming up in Boston at the end of May. We'll be having our annual Prawfs and friends Happy Hour on Saturday, June 1, at 9pm, location to be announced.
What subjects do students choose to write about?
In Fed Courts, a big chunk of the final grade is builty around a large writing assignment and oral arguments (arguing one case and judging one case). The arguments are on recent court of appeals and students are randomly assigned. For the writing portion, each student picked whatever third case she wanted (other than the ones assigned to argue or judge) and write the reviewing opinion. There were seven possible cases for 14 students--seven wrote on a Ninth Circuit case involving standing to bring a First Amendment challenge to a campus sexual-harassment policy and four wrote on a Fifth Circuit case involving ripeness of a challenge abortion-clinic regulations. Only one wrote about Hollingsworth. And no one wanted to write about the collateral order doctrine or mandamus to review pre-trial orders (imagine).
Do those selections surprise?
Tamanaha on Class and Law School Reform
Brian Tamanaha has posted on SSRN a short and enjoyable piece on my current favorite subject, apart from law and religion: social class and the legal academy. His paper, "The Failure of Crits and Leftist Law Professors to Defend Progressive Causes," is specifically about the failure of "progressive law professors" to do or say much about the problematic conditions Tamanaha explored in his book Failing Law Schools. From the abstract:
The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.
Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.
This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.
Without endorsing it in whole, it's a worthwhile and certainly entertaining (if that's the right word) read. A couple of points. I'm not sure what kinds of personal responses Tamanaha has received to his book and other writings on law school reform, but he has made his point about potential personal costs before, and I'm not sure it needs to be made in general terms anymore. That's just a quibble, however. More important, I'm not sure why he focuses on the Crits and SALT. He makes his points about them well enough. But I would have thought that plain-vanilla liberals, including those who insist on calling themselves progressives, constitute a much, much larger and more influential sector of the legal academy than genuine members of the left. If their failures are less glaring and entertaining, their attention, embarrassment, and commitment are probably more important for purposes of actual reform.
Finally, as noted above, Tamanaha writes that "[l]iberal law professors often express concerns about class in American society." I would say in response: Not that often! As far as I can tell, they much prefer to write about other kinds of inequality and identity issues than about class. Understandably, perhaps. "Write what you know," the old adage goes. This is not an issue that the legal professoriate, and especially the elite legal professoriate, is likely to know as much about. I read and enjoyed, more or less, Duncan Kennedy's book on legal education, but I learned more, and more viscerally, about class from this critical review of the book than from the book itself.
Sleep No More: Sleep Deprivation, Doctors, and Error or Is Sleep the Next Frontier for Public Health?
How often do you hear your students or friends or colleagues talk about operating on very little sleep for work or family reasons? In my case it is often, and depending on the setting it is sometimes stated as a complaint and sometimes as a brag (the latter especially among my friends who work for large law firms or consulting firms). To sleep 7-8 hours is becoming a “luxury” or perhaps in some eyes a waste – here I think of the adage “I will sleep when I am dead” expresses that those who need sleep are “missing out” or “wusses.” My impression, anecdotal to be sure, is that our sleep patterns are getting worse not better and that many of these bad habits (among lawyers) are learned during law school.
One profession that has dealt with these issues at the regulatory level is medicine. In July 2011, the Accreditation Council for Graduate Medical Education (ACGME) – the entity Responsible for the accreditation of post-MD medical training programs within the United States – implemented new rules that limit interns to 16 hours of work in a row, but continue to allow 2nd-year and higher resident physicians to work for up to 28 consecutive hours. In a new article with sleep medicine expert doctors Charles A. Czeisler and Christopher P. Landrigan that just came out in the Journal of Law, Medicine, and Ethics, we examine how to make these work hour rules actually work.
As we discuss in the introduction to the article
Over the past decade, a series of studies have found that physicians-in-training who work extended shifts (>16 hours) are at increased risk of experiencing motor vehicle crashes, needlestick injuries, and medical errors. In response to public concerns and a request from Congress, the Institute of Medicine (IOM) conducted an inquiry into the issue and concluded in 2009 that resident physicians should not work for more than 16 consecutive hours without sleep. They further recommended that the Centers for Medicare & Medicaid Services (CMS) and the Joint Commission work with the Accreditation Council for Graduate Medical Education (ACGME) to ensure effective enforcement of new work hour standards. The IOM’s concerns with enforcement stem from well-documented non-compliance with the ACGME’s 2003 work hour rules, and the ACGME’s history of non-enforcement. In a nationwide cohort study, 84% of interns were found to violate the ACGME’s 2003 standards in the year following their introduction.
Whether the ACGME's 2011 work hour limits went too far or did not go far enough has been hotly debated. In this article, we do not seek to re-open the debate about whether these standards get matters exactly right. Instead, we wish to address the issue of effective enforcement. That is, now that new work hour limits have been established, and given that the ACGME has been unable to enforce work hour limits effectively on its own, what is the best way to make sure the new limits are followed in order to reduce harm to residents, patients, and others due to sleep-deprived residents? We focus on three possible national approaches to the problem, one rooted in funding, one rooted in disclosure, and one rooted in tort law. I would love reactions to our proposals in the paper, but wanted to float the more general idea in this space.
JOTWELL: Tidmarsh on Lemos (and Hensler) on parens patriaeThe new essay in JOTWELL's Courts Law has been published: Jay Tidmarsh (Notre Dame) reviews Margaret Lemos, Aggregate Litigation Goes Public: Representative Suits by the Attorney General (Harvard Law Review) and Deborah Hensler's response essay (Harvard Law Review Forum) on the possibility of attorney general-initiated parens patriae actions as an alternative to class actions.
Tuesday, April 30, 2013
Are Your Students Cheating On Your Take-Home Exam? Would You Know? What Should You Do About It?
After the well-publicized cheating through collaboration scandal at Harvard College (not the law school to be clear) I have been thinking more about whether law students routinely cheat through collaboration, whether I would know if they did in my classes, and what fears about their doing so should cause me to do in terms of my exam format.
In Civil Procedure I give an 8-hour take-home, typically with one long multi-part issue spotter (worth most of the grade), a few true/false (and explain why if false statements), and a theory question.
When I asked some of my former students I trusted to be honest to me if they had encountered cheating at Harvard Law (and specifically on my exam) they told me emphatically no, and in a back-handed compliment told me my exam was hard enough to require so much of the eight hours they would think it would be very risky to try to do this.
I certainly do not want to help people with “how-to”s on cheating, but I told these former students that if one was worried about this drawback, I could imagine telephoning a friend mid-way through, comparing issues spotted on the issue-spotter and the true/falses, and then getting back to work.
I am curious whether others have thought about these issues and what it has or has not motivated them to do. Are your students cheating on take-homes? How would you know? Unlike other kinds of cheating (like copying) this form strikes me as hard to detect: among 82 students I suspect people often cluster on the issues they spot or do not spot) Should I be thinking about moving to an in-class exam (which, I think, is for this course pedagogically less good for my purposes) to avoid it?
-I. Glenn Cohen
ABA Committee Discusses Tenure Requirements and Law School Accreditation
An interesting article here. The gist: the ABA law school accreditation committee is looking at several alternatives to the current requirement that all ABA-accredited schools have a system of tenure or comparable security for full-time faculty.
I fail to see the point of the third alternative the committee is considering, which basically strikes me as a rent-seeking move by clinical faculty. But the second alternative seems like a reasonable move to me: "[T]o move away from any tenure requirement. Schools would afford all full-time faculty some form of security of position, but each would decide what system that would be. (The interpretation of the standard stipulates that schools at minimum must have a system of long-term renewable contracts of at least five years.) Schools could adopt different rules for different types of faculty."
Of course, the even shorter gist is probably accurately contained in the only comment currently posted on the NLJ story: "If you're betting on this question, bet on the ABA committee to avoid anything controversial. Really, bar association junkies, how often does any such committee do anything bold?"
Pennoyer = Lochner?
I just did my Civ Pro review and got several questions about what they need to know about or do with Pennoyer. Now I spend relatively little time (maybe 20 minutes) on Pennoyer, but everyone still seemed freaked out about what to do with this case that no longer is good law. After the session, I reminded one student that in Con Law (which is a fall course) they read and learned all the pre-New Deal cases, even though none really remains good law and even though they were not going to rely on it as the controlling law in their answers. But they learned it in order to understand how the law had changed and perhaps what some argue the law should return to being.
So, Pennoyer = Lochner? Discuss.
More On Counting: The Problem of Shady Statistics
The DC Fire Department seems to have come up with an innovative way to reduce the number of arsons and to improve its arson clearance rate (i.e., arsons that result in an arrest). No new technologies, no new investigative techniques, not even any additional investigators. It has simply redefined arson.
The old definition—which is apparently the one used by fire departments around the country—counted any fire that had been deliberately set as an arson, while the new definition requires “evidence of willful or malicious intent sufficient to support an arrest….” The effect of this shift? The number of arsons dropped from 154 in 2008 to 32 in 2012, and the clearance rate was nearly three times what it would have been under the older definition (34% vs. 10%).1
In this case, the nature of the change was so dramatic that it automatically calls attention to itself. DC’s arson rate was just one-third the national average for a city of its size. Maybe this was really the case—maybe the investigators were really good and deterred a lot of arsons, or the populace was uniquely disinclined to start fires—but it at least openly demands scrutiny.
Perhaps the most egregious example of such redefinitons took place in Chicago in 2010, when the police commissioner attempted to counter rising murder statistics by breaking murder into two categories, “indoor murders” and “outdoor murders,” arguing that the police could only be held accountable for the latter. How, he argued, could the police really prevent murders that take place away from the police?2 In one fell swoop, he cut the number of murders that his department was “responsible” for that year from 138 to 98.
Other problematic statistics, however, are harder to detect.
The FCPA Contra the ATS: in Conclusion
The best laid plans . . . I might have liked to get a couple more posts in this month, but alas. So let me conclude my series on the ATS vis-a-vis the FCPA with a few quick thoughts.
First, I suggested in prior posts that we should think of bribery (and corruption) as an inherent human rights violation. Definitely some pushback there. But you need not buy that claim to nonetheless see the FCPA as a rights tool. I think we can all agree that bribery is very closely related to rights already recognized in our international instruments: the right to equal protection, to political representation, to self-determination, to food, housing, and medical care, to education, to equal access to a country’s public services, to safe working conditions, to the control of natural resources, and indeed to the rule of law itself. If we want to keep corporations from violating these rights, the FCPA is a pretty good way to go about it.
Comparing the FCPA to the ATS, one may object that the former statute cannot really touch the egregious violations that we’ve used the ATS to address, such as torture or genocide. That’s probably true. But though the rights violations I listed above are less egregious, they are also more pervasive and systematic, touching the lives of the vast majority of the world’s population. I’d suggest that this is every bit as meritorious a focus of our federal human rights laws.
Finally, in terms of statutory drafting, the FCPA is so many things that the ATS never was. It provides a clear cause of action, supported by an accessible legislative history. It rests on well-established common law principles of corporate liability. Its claim to extraterritorial application is utterly uncontroversial, Congress having clearly expressed therein its intent. And as if this weren’t enough, FCPA enforcement has produced a robust transnational culture of corporate compliance, almost certainly altering the ways both US and foreign corporations conduct themselves overseas. Were we to redraft the ATS we might use the FCPA as a sort of template. But of course, that ain't gonna happen.
So instead, here's hoping that international law scholars might, in the post-Kiobel world, more fully appreciate the potential of anti-bribery law as a tool for deterring overseas corporate human rights violations. And with that, I'll bid you adieu. Thanks for listening.
Blackjack and Cognitive Enhancement
Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though many casinos eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits.
By contrast, if players use a device to count cards, like a smartphone, they have committed a serious crime. For example, several iPhone apps helps players count cards and at least one has a “stealth mode” that lets users surreptitiously enter data and receive feedback. In response, the Nevada Gaming Control Board issued an open letter reminding the public that using such an app when betting at blackjack violates the state’s antidevice statute which provides for up to 6 years imprisonment for a first offense. Somehow using a device to augment our abilities to remember and to calculate turns a perfectly legal activity into an offense with a very serious penalty.
The fact that we do not criminalize natural, unassisted card counting raises interesting questions of criminal and constitutional law: Could we criminalize natural card counting without violating fundamental principles that protect thought privacy? (Email me for a manuscript on that question.) In this recently published paper, however, I focus on a puzzle about technological enhancement. Namely, can we justify criminalizing device-assisted card counting but not unassisted card counting?
The importance of the question extends beyond the world of blackjack and casino gaming because it appears, at least superficially, that antidevice statutes criminalize a kind of technological enhancement. Some ethicists distinguish therapies that seek to return us to normal, healthy functioning from enhancements that promise to give us extraordinary abilities. People are often much more comfortable with therapies (e.g., drugs or devices to treat attention deficit disorder) than with enhancements (e.g., drugs or devices to give us better-than-normal concentration).
As a historical matter, casinos lobbied for antidevices statutes in the 1980s to protect their revenue as computers were becoming more popular and accessible. I focus on a deeper question: Is there any moral justification for permitting an activity, like card counting, when it uses only our natural abilities but severely punishing the activity when it is technologically enhanced? I consider a couple of possible justifications for the differential treatment and suggest that both are lacking.
[Adapted from Criminalizing Card Counting at the Blackjack Table]
Lose the Wig
"In hypermodern Hong Kong, a debate over 17th-century fashion is dividing the city's legal circles." Some say magical, some say colonial...here.
Monday, April 29, 2013
Graham and the Problem of Predicting Lifecourse Offenders
Adam Liptak has a depressing piece up in today's New York Times about how states are respodning to the Supreme Court's decision in Graham v Florida, which declared life without parole sentences for minors unconstitutional. As Liptak explains, there are two contradictory ways to interpret Graham: under what I will call the Literal interpretation, LWOP is impermissible, but sentences that act like LWOP sentences in everything but name are okay; while under the Spirit (of the ruling) interpretation, ultra-long sentences are impermissible, whether we call them "LWOP" or something else.
Liptak's point is that many states are following the literal interpretation, giving minors covered by Graham sentences such as 95 or 100 years. Technically these are not life sentences, since the defendants could live for a long time (putting aside the fact that lifespans are shortened in prison and the current life expectancy for a 15-year old male is only 76.3). I feel like I am back in my 1L property class, learning about the Rule Against Perpetuities and debating about fertile octegenarians.
The following graph--I love graphs--which I have stolen from Robert Sampson and John Laub, shows the problem with the Literal interpretation:
What is a Drug Crime? Part I
Before I continue on about the causes of prison growth, it is worth pausing to ask “what is a drug crime?” The official government statistics on which I’ve been relying use a simple taxonomy: an inmate is classified by his most serious offense. Violent crimes are classified as the most severe, followed by property crimes, then drug offenses, and finally "other" crimes. So a “drug inmate” is someone convicted of one or more drug offenses, and possibly some “other” offenses as well.
This is perhaps a narrow definition of "drug offense," particularly if we are trying to estimate the effect of the war on drugs on incarceration. Consider a few other alternatives:
- A murder resulting from a shootout between two drug-dealing gangs over territory or some other drug business issue. This will be classified as a violent offense, but it feels drug-related.
- Pushing further, a murder resulting from a shootout between two drug-gang members as part of a power struggle following the incarceration of a high-ranking member of the gang which resulted in a power vacuum.
- A robbery for drug money.
- A robbery for drug money that is needed only because the war on drugs has likely increased the prices of drugs above what they otherwise would have been.
- A robbery unmotivated by the need for drugs, but caused in part by the fact that prior low-level drug arrests, none of which led to incarceration themselves, led (or contributed) to a downward spiral—a harder time landing a job, maintaining a relationship, etc., etc.—that ultimately culminated in criminal behavior.
Should all these count as "drug incarcerations"?
A plausible argument can be made for each. But there are real costs to going down these routes as well.
Why I Decided to Construct a Free Online Casebook Available to Anyone for Civ Pro Using the H20 Platform
One of the nice things about tenure is that it frees you up to to do things you know are good for the world but may not be adequately valued in the tenure process. This summer I will embark on one such project, building a free online casebook for Civ Pro. I will be using the Harvard Berkman Center H20 "hack the casebook" platform. This great platform allows you to create "playlists" of cases and other materials that can be "remixed" by others, added to, etc. The initial goal of the project is to create a completely free H20 platform casebook for each of the firsy year classes, and I have stepped up to do Civ Pro.
Let me tell you a little bit about why I chose to do this because it may encourage others to join this great project or ones like it.
First, like others, I am shocked at how expensive textbooks have become for doctrinal 1L course. I realized that together my casebook and supplement (including the FRCP, major statutesm, etc) would cost my students $243 a piece and thus providing them with free materials would save at least $19,000 among my own students for next year. When multiplied over several years, as well as the possibility that other faculty would adopt this textbook and save their students money, this just seemed like a value creating proposition.In a time when students across the U.S. are struggling with the high price of legal education, I felt I should do what I could here.
Second, most of the materials I teach in my Civ Pro class are major Supreme Court cases (with a few Circuit and state court cases) that could be easily found and edited in public domain format, which the H20 platform makes easy. Just because of the way I teach my own course and the textbook I was using, I was already not assigning many of the notes that followed the cases and I was supplementing the book with additional materials (some written up by myself) so that the value the casebook was offering to my course that could not be found in the public domain was lessened. To be sure, I will still have to replace introductory sections of various parts of the book with my own write-ups as well as do editing of all the versions of the cases I will still use -- no small amount of effort -- but I might have felt differently about undertaking this if my casebook was doing more original work for me in the way I taught my course.
Third (and here I am purposefully not being specific and naming the casebook in question because, for all I know, all Casebooks in the field are similar in this regard): my casebook is more than 1200 pages long. I estimate that I use only about 300-450 of those pages in a 4 credit introductory course. It does have a compact addition for shorter courses, but unfortunately what it chooses to keep versus discard is not a good fit for what I use from the book. Before I decided to do the H20 version myself, I called the publisher of my casebook to see if I could "buy by the page" for the pages I actually use, a practice that some textbooks allow you to do. I was told I could not. Given that they have gone to the trouble of creating a "condensed" version I do not blame the authors/publishers, but this was the last straw for me in deciding to go it on my own.
This summer, along with my RAs, will be spent doing a beta version of the free H20 Casebook for Civ Pro that I will test out with my incoming 1Ls in the fall. I am incredibly grateful to Harvard Law School for allowing me to use my time (and RA time) for this project whose value will hopefully be externalized. I am particularly grateful to my dean, Martha Minow, since she is herself the co-author of a Civ Pro textbook (not the one I had been using), so she is basically authorizing the law school to fund a project that may cut into her own sales. She's just that kind of classy person! The beta version will be kept internal to my students for the fall, but if all goes well I hope to share it with the world in 2014 and perhaps others will want to adopt it.
- I. Glenn Cohen
The New York Times on Friday ran a long and detailed story about, to put it simply, political- and profit-driven laxity and fraud in the payout of the settlement fund in the Pigford litigation alleging discrimination against black farmers in federal lending. The story is well worth reading. Once nice anecdote, among many (and yes, the story also provides real data), involves a speech given at a Baptist church in Little Rock by the head of something called the "Black Farmers and Agriculturalists Association," in which he boasts "that he and his four siblings had all collected awards, and his sister had acquired another $50,000 on behalf of their dead father." He concludes: "Let’s get the judge to go to work writing them checks! They have just opened the bank vault."
Two observations. First, as the story notes, the political and moral pressure that led to the substantial and often nonsensical payouts in the black farmers' case is also influencing parallel litigation involving women, Hispanics, and Native Americans. Here's an excerpt about the latter category of litigation, in which the Obama administration began settlement negotations in 2009 despite the fair prospect of victory if it had proceeded to ligitation:
Only 4,400 people filed claims, with 3,600 winning compensation at a cost of roughly $300 million. That left $460 million unspent — of which roughly $400 million under the terms of the settlement must be given to nonprofit groups that aid Native American farmers.
Ross Racine, the director of the Intertribal Agricultural Council, based in Montana, said his organization, with an annual budget of just $1 million, is perhaps the biggest eligible group. But many others are lining up to share the windfall, he said.
“Everybody is looking at this money on the table and saying, ‘Give me some because I am a good guy,’ ” he said.
The remaining $60.8 million will go to the plaintiffs’ lawyers, led by the Washington firm Cohen, Milstein, Sellers & Toll. In court papers, the firm argued that the size of the payment was justified partly by the fact that the settlement nearly equaled the maximum estimate of economic damages. Joseph M. Sellers, the lead counsel, acknowledged the unspent amount was unexpectedly big. But “absent a court order,” he said, “we don’t intend to return it.”
Second, I was curious about how legal scholars had treated this settlement. It's not my area, but I would assume that problems with this litigation and the settlement fund were or should have been well-known by anyone working in the field. Certainly, given the vagueness of the proof requirements, the political pressure to settle generously, the incentives of plaintiffs' lawyers, and the common use of distributions of massive amounts of money to public-interest groups as part of the buyoff process, it would be no surprise to anyone that both individual fraud and what we might call public interest graft are possible side-effects of such settlements, and this should be especially interesting to those working on reparations issues. My search of the literature was less than scientific, but for the most part the discussions I found were either neutral or positive, with little or no acknowledgment made of these potential problems. Nor have I seen much on the legal blogs yet about this story. I trust that the Civil Procedure & Federal Courts Blog and the Native American Law Blog, among other obvious sites, will take note of the story.
First Amendment on campus
Here are a couple of stories about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.
The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.
Sunday, April 28, 2013
Akhil Amar and the Historical School
From David Rabban's very interesting book, Law's History: American Legal Thought and the Transatlantic Turn to History (2012):
Among the many late-nineteenth century scholars who stressed the role of evolving custom in constitutional law, only [Christopher] Tiedeman devoted an entire book to this subject. In The Unwritten Constitution of the United States, published in 1890, Tiedeman stressed that "the great body of American constitutional law cannot be found in the written instruments, which we call our constitutions." Rather, it is "unwritten" in the legal sense of that term, "to be found in the decisions of the courts and the acts of the National and State legislatures, constantly changing with the demands of the popular will." While maintaining that the constitutional understandings of the people are more important than those of the framers, Tiedeman stressed that these popular understandings change over time. "The present popular will," not the will of those who either framed or voted for the Constitution, "must indicate which shade of meaning must be given to the written word." . . . . Tiedeman emphasized throughout his book that "all political constitutions undergo a constant and gradual evolution, keeping pace with the development of civilization, whether there be a written constitution or not." He added that "these changes generally take place without formal amendments to the written constitution." Rather, they evolved through what he called the "unwritten constitution." (349)
Has anyone ever classed Professor Akhil Amar as a contemporary member of the historical jurisprudential school? I haven't seen this particular association made before, but perhaps others have. Amar's unwritten constitutional sources in the book are more numerous than Tiedeman's, to be sure (and they emphasize the popular will less), but the overarching structure of the arguments from unwritten constitutionalism seemed similar to me.
Friday, April 26, 2013
Replies to the Organ Conscription Trolley Problem
Yesterday, I argued for more aggressive efforts to boost the supply of cadaveric organs available for transplant: If an out-of-control trolley were heading toward a living person strapped to the tracks, we surely ought to divert it to another track, even if doing so will crush a corpse along the alternate path. If we are permitted to crush a corpse when it's the only way to save a life, even if the family of the deceased doesn't want us to, then we can recover organs from the deceased when the invasion is fairly minimal (it won't interfere with burial) and the gains are not one life but several. I emphasized an important qualification, however: we are not permitted to just take organs when we can obtain consent with less invasive approaches, like offering financial or priority incentives.
Commenter SG raised questions about whether trolley problems do a good job of testing our intuitions. There is certainly a lively debate about the reliability of trolley problem intuitions and the reliability of moral intuitions more generally. Despite pitfalls, I believe trolley problems can help us abstract away morally irrelevant considerations. A family considering donation, for example, doesn't know whose lives are in the balance. But we know that as a matter of policy, many lives end prematurely because lifesaving organs are wasted. Therefore, the trolley problem I posed helps us removes distractions and confront the loss of life more directly.
Commenter Mitch proposed a variation: Suppose the deceased on the alternate track is your recently-deceased loved one. I have two replies: First, we need not frame the problem that way in order to draw conclusions about organ donation policy. The destruction of the corpse will be very upsetting to the family, but when we decide public policy, we typically abstract away from who our particular loved ones are. It would bias my hypothetical to stipulate that the living person is your relative, and it would bias the opposite way to assume the deceased was.
Second, even if the trolley problem were posed in this fashion, you should still flip the switch if it's the only way to save a living human. (Perhaps families should be excused from blame given that they must decide under pressure while grieving, but that's another matter). Interestingly, medical examiners frequently conduct autopsies in which consent is irrelevant. Some of these investigations may save lives by preventing murders. But organ donation is plausibly much more lifesaving than medical investigation.
One last point: It's easy to think that our choices are to give up our organs or have them stay intact forever. Perhaps mandatory autopsies are viewed as different than conscripted donation because autopsies do not involve a prolonged "using" of someone's organs. But the "using" happens either way. Your organs can be taken over by bacteria and insects or they can go to save living people. If we were better able to come to terms with such unpleasant facts, we'd more effectively save and heal the living.
What Happened to Occupy?
The Financial Times has a well-done roundup review of several books about the Occupy Wall Street movement, mostly by people involved in it. The short version: "A sympathetic reader of these books will end up with the slightly exasperated feeling that Occupy wasted its chance as a political movement." A couple of observations:
1) Past Prawfs guest Bernard Harcourt of Chicago appears in the review, with a quote from his essay in one of these collections. This is just a guess, but when the dean at the University of Chicago Law School sent a memo to the faculty urging them to assist the efforts of its students and recent graduates to occupy Wall Street, I doubt this is what he had in mind.
2) I love this quote from Michael Taussig, a Columbia anthropology prof who also wrote an essay for a collection. As the review puts it, "Taussig hails the coming together [in Zucotti Park] of a 'community defining itself through a new language and sense of collective': this, he reflects, is a problem for politicians and experts who 'want to channel the messianic and transgressive impulse into their own need for pathological fame and power'." The use of "pathologicial" is especially nice here; why let people think for themsevles when you can just insert a pseudo-diagnostic adjective? But I would have thought that politicians and experts who wanted to pursue fame and power would have been delighted by the Occupy movement.
3) There are probably lessons in here for the popular front of the law school reform movement.
Thursday, April 25, 2013
Some More Evidence Against the War on Drugs Hypothesis
I started my previous post with a graph showing the steep rise in the total prison population. So I want to start this one with a graph showing the steep rise—and then the sudden plateau, and then the decline—in the share of prisoners in prison on drug charges.
Two things jump out on this graph. First, after a rapid rise the percent of drug offenders peaks at 21.8%, in 1990. Second, from 1990 forward the fraction steadily declines, with only a few upticks here and there, to 18.4% in 2008; by 2009, it was down to 17.8%. In other words, in 1990, nearly 80% of all prisoners were non-drug offenders, and by 2009 that percent had risen to more than 84%. And almost all of these other inmates are serving time for violent or property offenses.
On Corporations and Pine Cones
I can vividly recall first reading John Locke as a freshman undergrad. His state of nature conjured up images in my mind of people running around in the forest, trying to steal each other’s stuff. I should be embarrassed to admit it, except that my professor’s understanding was not much better. He criticized Locke and his followers on the grounds that the state of nature “never existed;” turns out, we were both wrong.
One realizes that the state of nature exists wherever governments wield illegitimate power. Civil society exists only where government rules in accordance with standing laws, duly promulgated and known to the people, and directed to their good. Where officials rule otherwise, we become subject to what Locke called “the inconstant, uncertain, arbitrary will of another” and the social contract is destroyed. Our right to that liberty which can only be known in civil society is violated, and humankind returns to the state of nature.
The bribing of government officials does precisely that. And so I want to argue that corporate bribery is a rights issue. Where corporations bribe officials to win contracts over more competitive bidders, or to import goods in violation of customs laws, or to circumvent environmental or safety regulations, they have violated (or aided and abetted in the violation of) human rights.
Still with me? If you are, then you believe that the Foreign Corrupt Practices Act is a rights statute -- it criminalizes conduct that violates (or aids and abets in the violation of, if you prefer) human rights. We don't generally think of it that way (or enforce it that way), but we should.
And if you’ve come with me this far, then you’re ready for my next question: has the FCPA done more to deter overseas rights violations by corporations than the ATS ever did or could? We'll explore that outlandish notion next post.
The Organ Conscription Trolley Problem
Yesterday, Glenn discussed paying people to donate nonessential organs while they are alive. I will argue that we ought to more aggressively incentivize organ donations from the recently deceased.
Imagine that an out-of-control trolley is heading toward an innocent person who is for some reason strapped to the trolley tracks. You happen to be standing near a switch that can divert the trolley to a different track and represents the only available means of saving the person. Here's where this trolley problem gets much easier than others you've seen: If you divert the trolley, it will unavoidably crush the body of an already-deceased person who is strapped for some reason to the diversion track. Are you morally permitted to flip the switch to save a life when doing so will crush a deceased person? Clearly you are. Indeed, you are morally obligated to do so.
What if the family of the deceased is standing nearby and urges you not to, pleading that if their loved one's remains are crushed, it will interfere with his religious preferences about burial? No matter how much it upsets the family and would have upset the deceased, you are permitted to divert. Now what if diverting would save not one life but six or seven? And what if the trolley wouldn't crush the deceased beyond recognition but would merely cause some internal change that would be invisible at burial? Surely the answers only become easier.
If you've answered as I have, we should be permitted to take the organs from the recently deceased when doing so represents the only way of saving the six or more people who need those organs to survive. Does this mean we should implement a routine salvage program where people must donate if they die with organs available for transplantation? Not necessarily. There may be financial or priority incentives that will induce sufficent donation such that we don't have to go so far as to conscript lifesaving organs. But our current practices cause far too much unnecessary death and misery. See here and here for more.
Wednesday, April 24, 2013
On Policy and Plain Meaning in Copyright Law
As noted in my last post, there have been several important copyright decisions in the last couple months. I want to focus on two of them here: Viacom v. YouTube and UMG v. Escape Media. Both relate to the DMCA safe harbors of online providers who receive copyrighted material from their users - Section 512 of the Copyright Act. Their opposing outcomes illustrate the key point I want to make: separating interpretation from policy is hard, and I tend to favor following the statute rather than rewriting it when I don't like the policy outcome. This is not an earthshattering observation - Solum and Chiang make a similar argument in their article on patent claim interpretation. Nevertheless, I think it bears some discussion with respect to the safe harbors.
Some Thoughts on Counting Terror, and Counting in General
It is impossible to look at this map and not immediately ask: “What exactly is a terror attack?” According to the research group at the University of Maryland that produced the map, “terror” is:
The threatened or actual use of illegal force and violence by a non-state actor to attain a political, economic, religious, or social goal through fear, coercion, or intimidation….
Now that obviously can’t be entirely true. By this definition, every drive-by gang shooting would be an act of terror: a non-state actor using intimidation to secure economic gains. Arguably any act of domestic abuse, particularly in a semi-public or public place, could likewise be seen as an act of terror, since it represents an effort to use fear to advance a social goal (keeping women in a second-tier position). And so on. Simple armed robbery? Seems to fit.
Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys
The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.
Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.
I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.
I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.
Setting the Stage: The Explosion in Prison Populations
The graph below never ceases to amaze, no matter how many times I look at it.wrote in 1979 that:
The existence of such a stable imprisonment rate suggests that, as a nation’s prison population begins to fluctuate, pressure is generated to restore the prison population to that stable rate.
Not exactly. Today, the US is home to about 5% of the world’s prisoners population, but nearly 25% of its prisoners. Our prison-and-jail incarceration rate* of 756 (in 2011) is the highest in the world. The countries filling out the top ten (in descending order) are Russia, Cuba, Belarus, Belize, Georgia (the country—the state has a higher rate), Kazakhstan, Suriname, South Africa, Botswana, Israel, Ukraine, and Chile; Russia’s rate of 629** putting it in the number 2 slot. If we are known by the company we keep, we should be worried. European countries outside of the former Warsaw Bloc states all have incarceration rates in the 100s, as does China (and Saudi Arabia).
Animal cruelty law rejected
Following SCOTUS' 2010 decision in United States v. Stevens invalidating a federal statute prohibiting "animal crush videos," Congress responded with the Animal Crush Video Prohibition Act of 2010, which I wrote about here and here. The key to the new version was that Congress defined animal crush videos as prohibiting certain depictions of animal cruelty that are obscene, attempting to shoehorn this speech into an existing category of unproteced speech.
Last week, Judge Lake in the Southern District of Texas held that the new statute is still unconstitutional, dismissing the first prosecution under it. Judge Lake rejected the two government arguments in support of the statute: 1) that it regulates already-unprotected obscenity (the videos are not obscene because, while patently offensive, they do not depict sexual conduct, as required under Miller) and 2) that it is justified to dry up the market in animal cruelty (the court emphasized the narrowness of this rationale outside child pornography and videos depicting conduct that is inherently and always unlawful). The law therefore was a content-based regulation subject to strict scrutiny, which it did not survive.
Curious to see if the government appeals or just waits to try again with a different prosecution in a different court.
Tuesday, April 23, 2013
"The Blogger as Public Intellectual": A fun conversation with Paul Horwitz
Notre Dame's Institute for Advanced Study is hosting this week an interesting conference on "public intellectuals" and, this morning, the featured paper was from our own Paul Horwitz, whose topic was "The Blogger as Public Intellectual." (For one blogospheric reaction to his presentation, go here.) Paul was, as per usual, interesting and thoughtful, and I hope he'll post his paper, or a summary of it, soon.
I was the "commenter" (or "commentator"?) who followed Paul and I spent most of my time talking about and reflecting on my experience with my "other" blog, "Mirror of Justice." And, here's some of what I said:
What “stand outs” in my mind, about the “Mirror of Justice” effort – in addition to its relatively distinctive subject-matter – is that it is both a “group” blog and one whose contributors disagree strongly about a lot of pretty important things . . .
Our hope, when we started – and when we very deliberately assembled Catholic law professors from a variety of disciplines and from across the political spectrum – was the same one that University admissions officials cite when they do their work, namely, that the diversity would enrich the conversations that took place. It did, and it has . . . but we’ve also fought a lot . . . Our arguments are, almost always, fairly regarded as “fights among friends”, but they happen “in front of” strangers, which is a bit unsettling (at least for me). They flare up and are resolved “in public” – the sharp elbows are thrown, and the sincere apologies extended, “in public.”
And so, over the years, I’ve come to think of our role less in terms of “providing for the world a coherent Catholic legal theory”, and also less in terms of contributing to (or imposing on) the world various pieces of “public intellectualism.” Instead, . . . I’ve tended to think about what we do more in terms of “modelling.”
It seems to me that what we provide, or offer (or fail to provide or offer) to readers is not so much the discrete work product of a dozen “public intellectuals” as a conversation – an illustration or example – that is, depending on the day, more or less edifying and productive. When I’m blogging now (and this was not always true), I’m thinking not so much of “my own” readership, the way I might if I were a regular columnist for the Washington Post, as I am of my students, and my fellow bloggers’ students, who might be thinking hard about what it means to have a vocation in the law and to aspire to integrate that vocation with one’s religious faith and traditions.
Whether we on the blog are talking or arguing about the election, or immigration reform, or the philosophical anthropology underlying and animating the law of torts, I find myself these days thinking less about the importance of persuading as about the “way the conversation is going.” Don’t get me wrong: My fellow bloggers and I have views (often strong views) and we all want, I am sure, for those who disagree with us to yield to our superior arguments. (We’re lawyers, after all.) Still, and without being too polly-annish or precious, I have found myself in recent years more focused on the community-building and community-maintenance dimension of my blogging than on its evangelical or propagandizing aspects.
I hope no one thought or thinks that my point was that MOJ is somehow more of a "community" than is Prawfs or other group blogs -- that's not it. It was, instead, just that my own experiences over there have, over the years, prompted me to think differently about the blog's "mission" and about what I'm doing over there, and maybe over here, too ("albeit in a boring way until recently"). I have to admit, I worry more about the times I fall (well) short in terms of the "modelling" thing than I do about whether or not X reader changes his or her mind after reading my 143rd post on the ministerial exception!
Impact of the “Lander Brief” in the Myriad (Gene Patent) Case – and an answer to Justice Alito’s QuestionThe Supreme Court heard oral arguments on April 15 in Association of Molecular Pathology et al. v Myriad, concerning whether human genes are patent-eligible subject matter. The case focused on Myriad’s patents on two genes, BRCA1 and BRCA2, involved in early-onset breast cancer
Surprisingly, many of the Court’s questions for Myriad’s counsel focused on what Justice Breyer dubbed the “Lander Brief” – an amicus filed on behalf of neither party by one of the country’s leading scientists, Dr. Eric Lander. (Lander was one of the leaders of the Human Genome Project and co-chair’s the Presidents Council of Advisors on Science and Technology.) [Full Disclosure: I am one of the authors of this brief] Justices Breyer, Ginsburg and Alito referred to the brief by name, and several other Justices were clearly influenced by the information in the brief.
I believe that the “Lander brief” was a hot topic of conversation because the Justices realized that it was central to applying the Court’s product-of-nature doctrine to DNA. Importantly, the brief demolished the scientific foundation of the Federal Circuit decision on appeal. The Federal Circuit panel held that human chromosomes are not patent-eligible because they are products of nature, but a majority found that “isolated DNA” fragments of human chromosomes (such as pieces of the breast cancer genes) are patent-eligible. The Federal Circuit’s distinction rested on its assumption that (unlike whole chromosomes) isolated DNA fragments do not themselves occur in nature, but instead only exist by virtue of the hand of man.
The Federal Circuit cited no scientific support for its crucial assumption – neither in the record below, nor in any scientific literature.
Embarrassingly, the Federal Circuit’s assumption turned out to be flat-out wrong. The Lander brief summarized 30 years of scientific literature showing that natural processes in the human body routinely cleave into isolated DNA fragments. Isolated DNA fragments turn out to be abundant outside of cells – including in cell-free blood, urine and stool. They are so common that they can be used for genetic diagnostics of inherited diseases and cancers. In fact, they are so prevalent that several scientific groups have shown that it is possible to determine the entire genome sequence of a fetus based on analyzing the isolated DNA fragments found in a teaspoons-worth of its mother’s blood.
Justice Breyer relentlessly pushed Myriad’s counsel to declare whether he agreed or disagreed with the Lander Brief. When the counsel finally declared that he disagreed, Justice Breyer demanded:
JUSTICE BREYER: Okay. Very well. If you are saying it is wrong, as a matter of science, since neither of us are scientists, I would like you to tell me what I should read that will, from a scientist, tell me that it's wrong.
The only reply that Myriad’s counsel could muster was to point to a declaration that had been filed (by Dr. Mark Kay) in the District Court case in 2009. (In fact, Dr. Kay’s declaration said nothing whatsoever about whether isolated DNA fragments occur in Nature. It concerned how to construe terms in Myriad’s patent.)
A few minutes later, Justice Ginsburg returned to the point:
JUSTICE GINSBURG: Do you concede at least that the decision in the Federal Circuit, that Judge Lourie did make an incorrect assumption, or is the Lander brief inaccurate with respect to that, too? That is, Judge Lourie thought that isolated DNA fragments did not exist in the human body and Dr. Lander says that --
MR. CASTANIAS: No, what -- I think Justice -- Judge Lourie was exactly correct to say that there is nothing in this record that says that isolated DNA fragments of BRCA1 exist in the body. Neither does Dr. Lander's brief, for that matter. And for that matter, those isolated fragments that are discussed in Dr. Lander's brief again are -- are what are known not -- not in any way as isolated DNA, but as pseudogenes. They're typically things that have been killed off or mutated by a virus, but they do not –
Here, Myriad’s counsel proved to be confused. Contrary to Mr. Castanias’s statement, the Lander brief (on page 16) explicitly stated that isolated DNA fragments were found covering the entire BRCA1 and BRCA2 genes. Also, “pseudogenes” had nothing to do with Lander’s brief; they arose in the ACLU’s brief for Petitioners and in Myriad’s reply. (“Pseudogenes” are sequences in the human genome that occur when RNA is rarely reverse transcribed into DNA; they are relevant to the patentability of cDNA but are unrelated to the patentability of genomic DNA.)
Justice Alito then jumped in, offering the only glimmer of hope for Myriad’s counsel:
Happy to be backThanks to Dan and the Prawfs crew for having me back, I'll be blogging about the Myriad case, transplant tourism, residency work hour rules, The Sessions, and other fun things that come to mind...
Some Must Reads from the Mich LR Books Issue
I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more.
Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.
The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.
And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course. For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.
Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.
In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces.
Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?). Enjoy!