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Thursday, March 06, 2008

Friends as Fiduciaries

I too have shipped a solo effort out to the law reviews very recently.  It is entitled Friends as Fiduciaries and an abstract is pasted below.  I'll upload it to SSRN upon placement:

The Article argues that the law of fiduciary duties provides a good framework for friends to understand their duties to one another better, gives courts a useful set of rhetorical and analytical tools to employ when they are forced to entertain disputes that arise between close friends, and, finally, can help direct courts to furnish betrayed friends certain kinds of remedies that are most appropriate for achieving justice within that dispute context. This is not the first Article to make an effort to expand the reach of the fiduciary concept into new sorts of relationships that are not always considered within the ambit of fiduciary duty law. But the case for thinking of friends as fiduciaries is exceedingly persuasive and underappreciated, both in the law and in our lives.

This article is the first effort to address the "second generation" inquiries posed by my "friendship & the law" research agenda.  The "first generation" questions about whether the research agenda is worthwhile at all (in the way I hope to pursue it, anyway) are tackled in two previous works:  Friendship & the Law, 54 UCLA L. Rev. 631 (2007) and Friends and the Law: Can Public Policy Support the Institution of Friendship?, 145 Pol’y Rev. 55 (2007).  This summer I hope to draft another part of this research agenda in an article entitled Friendship as Relational Contract.

Posted by Ethan Leib on March 6, 2008 at 07:20 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Retributive Damages: The Abstract

So, as threatened, I've finally got a serviceable draft of Retributive Damages ready. Once I've finished blogging about and through the Punishing Family Status article, I will return to blogging about this project but since I've just sent it off to the law reviews and am basking in the utter sense of possibility(ha!), I thought I'd share the abstract, which is a bit different than the one up on SSRN.

Not long ago, Professor Cass Sunstein and his co-authors lamented that our legal culture lacks “a full normative account of the relationship between retributive goals and punitive damages.” This Article offers that full normative account — through a theory of “retributive damages.”

Under the retributive damages framework, when people defy legal obligations the state has imposed to protect the rights and interests of others, the state may either seek to punish them through traditional criminal law or make available the sanction of retributive damages, which would be credited against any further criminal sanctions imposed by the state for the same misconduct. Retributive damages statutes would empower private parties to act on behalf of the state to seek the imposition of what is in effect a fine determined largely by the reprehensibility of the defendant’s misconduct. The base amount of the fine would assess a percentage of the defendant’s wealth (or net value for entities) that increases with the reprehensibility of the defendant’s misconduct, an assessment informed by guidelines and commentary provided by the state. The total retributive damages award should also include gain-stripping amounts, if any, in excess of compensatory damages, as well as lawyers’ fees and a modest and fixed award for the plaintiff for bringing the matter to the public’s attention. These payments together (to the state, the plaintiff, and the lawyer) constitute the best way to structure punitive damages to advance the goals of retributive justice.

After offering some background on punitive damages and how retributive justice differs from other rationales for punitive damages such as optimal deterrence or victim-vindication, the Article describes the structure of retributive damages and clarifies the comparative advantages of retributive damages vis-à-vis other remedies and mechanisms. Finally, the Article defends the retributive damages framework against possible constitutional objections. Importantly, the account here not only answers Professor Sunstein’s challenge, but also promises to makes sense of the Supreme Court’s recent and somewhat puzzling holding in Philip Morris USA v. Williams, i.e., that juries may not calculate punitive damages by considering the amount of harm caused to strangers to the litigation.

Posted by Administrators on March 6, 2008 at 06:44 PM in Article Spotlight, Criminal Law, Dan Markel, Torts | Permalink | Comments (1) | TrackBack

Home schooling no more (in California)?

The L.A. Times has this story about a recent ruling by an appellate (state) court in California:

Parents who lack teaching credentials cannot educate their children at home, according to a state appellate court ruling that is sending waves of fear through California's home schooling families.

Advocates for the families vowed to appeal the decision to the state Supreme Court. Enforcement until then appears unlikely, but if the ruling stands, home-schooling supporters say California will have the most regressive law in the nation. . . .

"Parents do not have a constitutional right to home school their children," wrote Justice H. Walter Croskey in a Feb. 28 opinion signed by the two other members of the district court. "Parents who fail to [comply with school enrollment laws] may be subject to a criminal complaint against them, found guilty of an infraction, and subject to imposition of fines or an order to complete a parent education and counseling program."

Phillip Long said he believes the ruling stems from hostility against Christians and vowed to appeal to the state Supreme Court. . . .

Thoughts?  Predictions?

UPDATE:  This post suggests that the L.A. Times mis-reported the decision.  (HT:  The Corner).

Posted by Rick Garnett on March 6, 2008 at 06:21 PM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Spring Break on the Road...Academic Style

Greetings from NYC, where I'm in town for a few days. Tomorrow I'll be presenting Retributive Damages to the St. John's faculty. Very excited about that since I've just shipped off the most recent draft to the law reviews. It's my first piece about punitive damages but I've actually been toiling on this project since the fall of 2002. Talk about gestation. Anyway, I'll be getting a draft of that on SSRN soon.

I'll be here until Monday and then off to Tucson, AZ where I'll be presenting Punishing Family Status to the U. Arizona faculty next Thursday and probably pestering Jack Chin, Marc Miller, and Jonah Gelbach. After that, a couple days in Phoenix with some ASU friends and to say hi to Judge Hawkins and his former clerks, and then back to school. If you're a prawfs reader and on the itinerary, please feel free to drop a line.

Posted by Administrators on March 6, 2008 at 06:21 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Bobby Jindal and Ethics Reform in LA

As a New Orleans native whose family still lives there, the months since Hurricane Katrina have been full of one heartbreak after another.  The devastation of the storm has been followed by disappointment at the failure at all levels of government, particularly state and local, to at least restore the city and state to what it was, or at best, to utilize the opportunity to create something better.  Then came Bobby Jindal and the campaign against Ruth's Chris.

Jindal was elected governor in the wake of Katrina.  The 36-year-old son of Indian immigrants, a graduate of Brown University and a Rhodes Scholar, has had a fairly remarkable career trajectory.  He was secretary of Louisiana's department of health and hospitals, president of a national council on reforming medicare, president of Louisiana's university system, and assistant secretary at HHS.  He then ran unsuccessfully for Louisiana governor but, after his loss, was elected to the House of Representatives. 

When Jindal was inaugurated in January he became the youngest governor in the country and Louisiana's first non-white governor since Reconstruction.  While Rush Limbaugh's endorsement of Jindal as "the next Ronald Reagan" could be a positive or the kiss of death, depending on your viewpoint, as one who cares about Louisiana and removed from any political leanings, I am heartened by his actions since becoming governor.  Which brings me to Ruth's Chris.

A prominent plank in Jindal's platform is widespread ethics reform; he campaigned heavily on this topic and called a special session of the legislature to create new ethics rules.  Arguing that Louisiana's tawdry reputation for less-than-above-board politics curtailed outside investment, he pushed bills through the legislature that would force most political officials statewide to disclose all sources of income, real estate holdings, and significant debts.  State officials can no longer get contracts for various state projects, and lobbyists' expenditures on meals for officials will be capped at $50.

These reforms sound fairly basic, but the reaction in Baton Rouge -- particularly to the cap on meals -- illustrates the cultural change this could cause.  The Times highlighted the impact this will have on the capitol's Ruth's Chris, and reported that one legislator "said the limit would force her and her colleagues to dine at Taco Bell, and urged that it be pushed to $75 per person, to give them 'wiggle room.'"  Whether the outside investment spurred by the ethics overhaul will compensate for the reduction in profits for the restaurant industry is, I guess, an oustanding issue.

These changes are certainly timely.  As of late 2007, the former governor (Edwin Edwards) was in jail, the former Elections Commissioner had been convicted of money laundering, three Insurance Commissioners in a row had been sent to jail, the Agriculture Commissioner was indicted on bribery charges, and the former President of the State Senate was  in jail for money laundering.  (For a summary of this recent political corruption, see here.) Add the situations facing William Jefferson and David Vitter, and the ongoing investigation into the former administration of New Orleans mayor Marc Morial, and the corruption is really remarkable.  For all the damage wrought by Katrina, maybe this can be a turning point for some of the state's problems.   And, since Ruth's Chris moved its headquarters from New Orleans to Florida following Katrina and hasn't come back, I guess I don't care if their business suffers.

Posted by Amy Barrett on March 6, 2008 at 05:41 PM in Law and Politics | Permalink | Comments (3) | TrackBack

Clemens v. McNamee: Your One-Stop Civ Pro Exam

Apparently, the new goal of sports figures is to educate the public about civil procedure (not a bad thing, actually). First came the lawsuit between West Virginia University and Rich Rodriguez, its former football coach, which taught us about removal and the difference between a citizen of a state and an arm of the state for purposes of diversity jurisdiction and now is going to demonstrate just what the discovery process looks like. (WVU Law's Sports and Entertainment Law Society and Professor Beth Thornburg (SMU, visiting at West Virginia) both are doing a great job watching and reporting on the procedural details).

Now comes the defamation lawsuit that Roger Clemens filed against Brian McNamee, his former trainer, over McNamee's statements to law enforcement and the Mitchell Commission that Clemens used performance-enhancing drugs. Clemens filed the lawsuit in January in state court in Houston; McNamee removed to federal court (on diversity--this was an obvious move). Yesterday, McNamee brought Rule 12(b) alive for civ pro students and sports fans alike. Get ready for your final exam, featuring a motion to dismiss for:

1) Lack of Personal Jurisdiction: McNamee argues that his allegedly defamatory statements were made in New York (where he met with Mitchell Commission investigators) about actions that Clemens took in Toronto and New York. McNamee went to Texas several times to train Clemens (about 2-3 times per year since the late 1990s) but none of those trips had anything to do with his injecting Clemens or with his statements. Clemens suffered harm in Texas, where he lives, but McNamee did nothing to direct his statements to Texas, and 5th Circuit precedent holds that the situs of harm alone is not enough. More interestingly, Clemens' complaint argues that McNamee is subject to general jurisdiction based on 2-3 annual trips to Texas.

2) Improper Venue: Under § 1391, a diversity case can be brought in a federal district in which a defendant resides or in a district where a substantial part of the events and omissions giving rise to the claim occurred. McNamee resides in New York, which also is where the events and omissions (his statements and the subject of those statements) occurred. It is not clear any of the key events occurred in Texas.

3) Failure to State a Claim: McNamee argues that Clemens' complaint is factually insufficient, by failing to allege with specific detail the defamatory statements--when the statements where made, when, to whom--and cites, of course, Bell Atlantic v. Twombly, the current focus of much academic obsession. There also is citation to prior case law that required higher pleading for defamation claims, such claims being "disfavored."
McNamee also argues for dismissal of Clemens' claim for a declaratory judgment that Clemens did not defame McNamee, arguing that case law generally prohibits a potential tortfeasor from seeking a declaration of non-liability, since doing so would allow a potential defendant always to trump the potential plaintiff's choice of forum. This likely is a first step towards McNamee bringing a defamation counterclaim (which likely would be compulsory) if he is unsuccessful in getting Clemens' complaint dismissed.

Notably missing is a motion to transfer venue from Texas to New York--that even if Texas is appropriate, the case can more easily and more appropriately be litigated in New York. This probably is because it is tough to get a case transferred out of the plaintiff's home forum (Clemens lives in Texas). But I am surprised McNamee's attorneys did not spot that issue and at least try to raise that issue.

Posted by Howard Wasserman on March 6, 2008 at 01:27 PM in Law and Politics | Permalink | Comments (4) | TrackBack

More on IUPUI and the KKK

I was going to post this as a Comment on Rick's post on the looniness at IUPUI, but there is a lot of stuff to bring out, so I decided to make it a separate post. First, Paul Secunda discusses this at Co-Op, with some very good comments. He also announces that IUPUI rescinded the punishment, although with a letter that sounds a lot more like a warning than an apology (more on that in a second).

Rick asks whether it is possible that reading a well-reviewed work of scholarly history can "constitute[] racial harassment, or should be the ground for disciplinary action." Unfortunately, those are two very different things. No, it would not and could not be racial harassment under Title VII just to read a book at work that has KKK in the title, nor can it be harassment to stop reading such a book because a co-worker objects; any Title VII claim against IUPUI would fail. The problem is that the incentive structure of harassment law makes this very sort of disciplinary action against Sampson likely. IUPUI is so scared of getting sued by the allegedly harassed co-workers (even on a claim that is utterly meritless to the point of frivolous) that it is easier for it simply to punish Sampson. For reasons perfectly explained in one of the Comments to Paul's Co-Op post, Sampson has no remedy for what should be recognized as a violation of his First Amendment rights--not to mention everything a university should stand for. So IUPUI can save itself the lawsuit and punish Sampson with impunity.

As Paul notes, the punishment was rescinded, but in a letter that likely will (and likely was intended to) make Sampson think long and hard before doing any on-break reading ever again. First, the affirmative action officer who wrote the letter insists she only got involved because of the perception of Sampson's co-workers about his conduct (i.e., reading a scholarly historical account of real-world events) and the sense that he was reading that book to create a hostile environment. She then explains that punishment was rescinded only because she "was unable to draw any final conclusion about what was intended by the conduct." Of course, if Sampson continues to read this book and co-workers continue to complain, it is very likely that the affirmative action officer will draw conclusions about what he was intended, simply because Sampson continued to ignore his colleagues' objections to his reading that book (in ordinary First Amendment law, we call that a "heckler's veto"). What would you do if you were Mr. Sampson?

Posted by Howard Wasserman on March 6, 2008 at 12:05 PM | Permalink | Comments (9) | TrackBack

Is reading "Notre Dame v. the Klan" at work racial harassment?

Here's a story, that hits close to home, from FIRE (Foundation for Individual Rights in Education):

In a stunning series of events at Indiana University - Purdue University Indianapolis (IUPUI), Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book during his work breaks.

Sampson is in his early fifties, does janitorial work for the campus facility services at IUPUI, and is ten credits shy of a degree in communication studies. He is also an avid reader who usually brings books with him to work so that he can read in the break room when he is not on the clock. Last year, he began reading a book entitled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. The book, which has garnered great reviews in such places as The Indiana Magazine of History and Notre Dame Magazine, discusses the events surrounding two days in May 1924, when a group of Notre Dame students got into a street fight in South Bend with members of the Ku Klux Klan. As an historical account of the students' response in the face of anti-Catholic prejudice, the book would seem to be a relevant and worthwhile read, both for residents of the state of Indiana and for anyone interested in this chapter of American history.

But others at IUPUI clearly did not see it that way. First, a shop steward told Sampson that reading a book about the KKK was like bringing pornography to work (apparently this holds true in his eyes regardless of the context in which a book discusses the KKK, the position it takes, and so on). Likewise, a co-worker who happened to be sitting across the table from Sampson in the break room remarked that she found the KKK offensive. On both occasions, Sampson tried to explain what the book was really about. Both times, the other individual refused to listen.

A few weeks later, Sampson was notified by Marguerite Watkins of the school's Affirmative Action Office (AAO) that a co-worker had filed a racial harassment complaint against him for reading the book in the break room.

I do not know as much as I'd like to know about workplace-harassment law.  But, assuming this account is true, is it remotely plausible that reading this book (which is a great read, by the way) at work -- a book that celebrates the defeat of the Klan, by a group that, in Indiana, was, like African-Americans, a target of Klan hatred -- constitutes racial harassment, or should be the ground for disciplinary action?

UPDATE:   A Prawfs reader (and fellow law-blogger) pointed out to me that several others had also posted, on several other blogs, this story.  For what it's worth, I got the story directly from a reader of my other blog, Mirror of Justice, and so didn't realize, at the time I posted it here, that other bloggers were on the case.  Otherwise, I would (and should) have given the old "hat tip" to the source.  Sorry for creating any confusion!

Posted by Rick Garnett on March 6, 2008 at 09:31 AM in First Amendment | Permalink | Comments (3) | TrackBack

Reading Legal Scholarship

Brian Leiter recently posted a query on his philosophy blog asking how people read philosophical articles.  I'd like to ask the same question about law review articles.  How much time do you typically spend reading an average length article? Do you usually skim? Do you read the footnotes methodically or selectively?  Surely these answers will vary with the piece but somehow the comments on Leiter's blog were still informative. 

As I've discussed before on Prawfs, the topic is particular importance in legal scholarship where often 1/3 or more of the words in an article appear in footnotes.   In fact, one can think of every law review article as consisting of a full and a "lite" version, depending on how meticulously the reader examines the footnotes.  This makes legal scholarship like a "Choose Your Own Adventure Story." 

In deciding what text should be in the body of an article versus the footnotes, it would be helpful to know more about how scholarship is read.  Should footnotes be treated as necessary support for points in the text or also as enrichment discussion?  In practice, the answer seems to be both.  But surely there's a spectrum of choices between these two options.  Perhaps we should deliberately write our articles cognizant of the fact that they effectively have both full and lite versions.

Posted by Adam Kolber on March 6, 2008 at 08:54 AM | Permalink | Comments (8) | TrackBack

Reverse age discrimination and presidential hiring

Paul's new post on "the Endless Narcissism of a Generation" has me again thinking about age as an extremely important — and remarkably underexamined — aspect of federal elections.  Senator Clinton has recently been urging citizens "to think about this decision more like a hiring choice than a voting choice."  Okay, HRC since you asked:

1.  It seems fair and responsible to assume we are making an 8-year hiring decision, since voters will only "fire" an incumbent if he/she is very unpopular and opponents put up an appealing alternative.

2.  We are hiring for the "toughest job in the world,"  a job in which the worker apparently needs to be prepared to take emergency phone calls at 3am and must be ready to lead on Day 1 (though the job comes with a nearly 3-month preparation period between being hired and starting work). 

3.  The skills needed by, and the challenges facing, a president are dynamic and ever-changing: e.g., Prez Bush focused mostly on domestic issues until 9/11, which completely changed the country's needs and his role.  Also, understanding the complexities of the modern world and modern technologies is one obviously important skill for this job.

4.  One of the Prez's most important jobs is to hire great "assistants" for the Cabinet and to support and help ensure effective people are in place to operate the other branches of the federal government and subsidiary businesses (e.g., state governments, private industries, etc.)

5.  Success and failure in this job is properly measured in decades, not weeks or years, and the long-term national forces/spirit that the Prez influences may be more important than any specific short-term policy decisions.

Now, against this backdrop, let's consider our three remaining job candidates in terms of "age."  One would be aged 72 to 80 during his job term; another would be aged 61 to 69 during her job term; another would be 47 to 55 during his job term.

Though I know nothing about labor law and age discrimination law, I suspect a large business picking a new CEO for an eight-year term or a law firm picking a new managing partner for an eight-year term or a law school picking a new dean for an eight-year term would be FAR more likely to favor the younger candidate if all other factors were equal.  Again, I am legally ignorant here, so I do not know if a hiring committee could expressly assert that the two older candidates here are "too old for the job," but I do believe every candid hiring decision-maker would admit that age was one of a number of factors to be justifiably included in a sensible hiring decision for an important and tough 8-year job.

The irony at the Presidential level, at least in my view, is that the age discrimination we are seeing involves the older candidates asserting that the younger candidate is too young and inexperienced to be qualified for this job.  I sense that younger people and more highly educated people are not buying the invitation to engage in reverse age discrimination in their presidential hiring decision, but yesterday's election results suggest that some significant percentage of the voting population may be.

(For a little historical context, consider that Abe Lincoln was "hired" by the American voting population at age 52 , Teddy Roosevelt at age 42, FDR at age 51, John Kennedy at age 43, Ronald Reagan at age 69, Bill Clinton at age 46, George W. Bush at age 54.)

Posted by Douglas A. Berman on March 6, 2008 at 07:49 AM in Law and Politics | Permalink | Comments (1) | TrackBack

Student Note Title Hall of Shame: YouTube Edition

Overtly cutesy article titles annoy me. It’s a particularly severe problem with student notes. Yes, it may have been Bluebooked top-to-bottom and back-to-front. But why didn’t anyone ever pull the author aside and say, “Kid, about that title … ?” I keep a file of terrible article titles, a file full of bad puns, out-of-context song lyrics, and failed jokes. Lately, I’ve noticed a worrying trend of ill-considered titles for articles about the YouTube copyright litigation. That YouTube’s defenses are in part based on the Section 512 “safe harbor” from copyright liability has inspired not just the usual bad names, but some truly regrettable nautical puns:

  • Jason C. Breen, YouTube or YouLose: Can YouTube Survive a Copyright Infringement Lawsuit?, 16 Tex. Intell. Prop. L.J. 151 (2007)
  • Amy R. Mellow, … And the Ruling on the Field is Fair: A Fair Use Analysis of Uploading NFL Videos onto YouTube and Why the NFL Should License Its Material to the Website, 17 S. Cal. Interdis. L.J. 173 (2007)
  • Michael Driscoll, Will YouTube Sail into the DMCA’s Safe Harbor or Sink for Internet Piracy?, 6 J. Marshall Rev. Intell. Prop. L. 550 (2007)
  • Lauren Brittain Patten, From Safe Harbor to Choppy Waters: YouTube, the Digital Millennium Copyright Act, and a Much Needed Change of Course, 10 Vand. J. Ent. & Tech. L. 179 (2007)
  • Kurt Hunt, Copyright and YouTube: Pirate’s Playground or Fair Use Forum?, 14 Mich. Telecomm. Tech. L. Rev. 197 (2007)
  • Jonathan J. Darrow & Gerald R. Ferrera, Social Networking Web Sites and the DMCA: A Safe-Harbor from Copyright Infringement Liability or the Perfect Storm?, 6 Nw. J. Tech. & Intell. Prop. 1 (2007) (Messrs. Darrow and Ferrera are actually professors, and ought therefore to know better.)
  • Trevor Cloak, Note: The Digital Titanic: The Sinking of YouTube.com in the DMCA’s Safe Harbor., 60 Vand. L. Rev. 1559 (2007) (“At its current heading, YouTube, The Digital Titanic, is drifting towards an iceberg and will soon be leaving the placid safe harbor of the DMCA and entering the rocky seas of copyright liability.”)

Titles like these do authors no favors. Even when the article itself is solid scholarship, using such a silly title is like starting off a lecture by hitting yourself in the face with a cream pie. It’s hard to take what follows seriously.

Posted by James Grimmelmann on March 6, 2008 at 12:37 AM in Teaching Law | Permalink | Comments (13) | TrackBack