PrawfsBlawg

Thanks for the Opportunity to Visit

Thanks to everyone at Prawfsblawg for allowing an opportunity to visit.  It's been a great experiment for me, one that I recommend highly.  I'm glad that I was part of this experience during September, which was otherwise a real adventure.  

I want to do a quick shout-out to my daughter Elizabeth, a legal studies major at Cal.  Keep raising your hand in those classes, Liz, I'm proud of you.

Thanks to Prawfs

A quick thanks is due to Dan & Co. at Prawfsblawg for inviting me to guest blog this month. It was my first time guesting on Prawfs, and I hope it won't be my last.  It has been a great deal of fun, and the dialogue has been superb (no surprise there).  I look forward to hearing what the October guest crew brings to the Prawfs table with their posts.

Best regards to all,

Greg

Trade in Services, Trade in Technology, and Labor Mobility

It is hard to believe that the month of September is almost over. In blogging, as in academia in general, there are so many things we want to research and write about, and only a certain amount of time. It’s like the old joke about law practice: there are only 24 hours in a day, and you can only bill 36 of them.

In the area of international trade regulation, I am interested, among other subjects, in the connections and gaps between trade control regimes concerning (a) trade in technology, (b) trade in services, and (c) labor mobility. In some respects these three types of regimes overlap in complementary fashion; in other respects they are in tension with one another; and in other respects there are gaps between the regimes. What are the implications of these overlaps and gaps? What do they suggest about the nature and direction of transnational economic activity and the movement of persons? And perhaps most interesting of all, what does it suggest about how trade might be more effectively regulated or deregulated, or liberalized or restricted?

These are large questions, and they suggest (accurately) that my views and thoughts on the subject are still developing. That makes the subject a perfect one for a post, since it gives me the opportunity to set forth my thoughts for others to comment upon (or not) as they see fit. I will endeavor to keep this post to a reasonable length, which means that the discussion will be at a high level of generality.

The Regimes

Let me begin by reviewing the overlaps in outbound trade controls, trade in services regimes, and labor mobility regimes. First, as I discussed in a previous post, a substantial portion of what at least the U.S. and other industrialized countries regulate as exports actually covers non-physical activity – namely, the provision of technology or assistance to parties abroad. That is, technology for the development, production or use of a particular good or software is itself subject to the export laws of the United States. (Many of the U.S.'s industrialized trading partners also employ a similar regulatory scheme, such that there is rule harmonization in this regard). Moreover, the technology in question is subject to these export control regimes regardless of whether the technology accompanies the goods or software to which it pertains, and regardless of whether a business transaction is involved. The upshot is that a lot of non-physical or non-goods activity is considered export activity.  (For readers interested in how the U.S. export controls in question technically operate, see 15 C.F.R. Part 732, which contains a fairly user-friendly, step-by-step explanation of U.S. export controls.)

It is also important to bear in mind that under U.S. export controls and other national export control regimes like it, the provision of assistance (that is, of a service, such as through a service call) can be considered the provision of technology. That means that any liberalization of trade in services of necessity overlaps with, and interacts with, export control regimes. Some efforts to liberalize trade in services are contained in regional trade agreements or other bilateral agreements between countries, but the larger effort to liberalize trade in services is of course the WTO’s General Agreement on Trade in Services. GATS lists four modes of supply, namely:

   1. Cross border supply

   2. Consumption abroad

   3. Maintenance of a commercial presence abroad

   4. Movement of natural persons

Cross border services, commercial presence abroad and the movement of natural persons all provide opportunities for persons engaged in those service activities to provide an export of “technology” that is separately controlled by a national export control regime such as that of the U.S.

Finally, labor mobility implicates both export controls and trade in services because (a) persons who travel to another country might engage in actions there that constitute the provision of services, or an export of technology, or both. And even more interesting, and perhaps surprising, is that at least under U.S. export controls, the provision of technology to a non-permanent foreign national in the U.S. is deemed to be an export to the foreign national’s "home country" (the so-called “deemed export” rule). Thus, the provision of technology to a Chinese national in the U.S. (such as in the form of training or assistance) is considered by the U.S. to be an export to China, unless the Chinese national is a permanent U.S. resident.  It is a rule observed in the breach, perhaps, but it is a rule, and there are companies (especially in industries with a significant amount of sensitive technology) that spend a great deal of time and money complying with the rule.  There are also individuals whose employment and residency prospects are affected by the rule.  Other countries, however, generally do not have the same sort of “deemed export” rule.

The Implications

This is all very interesting from a technical or operational perspective, but what is far more interesting is what questions the overlaps raise regarding international trade policy at the national, regional and multilateral levels. For example, how is trade encouraged, discouraged or diverted by the interplay of these regimes? For example, does the deemed export rule discourage lawful immigration, and if so, is that a desirable result? Do immigration restrictions avoid or reduce the perceived need for such a rule?

Also, to what extent are trade in technology, trade in services, and labor mobility actually substitutes? To what extent are they complements? International trade and foreign direct investment generally are more complementary than substitutionary, even on an intra-industry basis (which was a subject of my masters dissertation in international economics); does the same hold true for trade in technology, trade in services, and labor mobility? If the rules of the three types of regimes differ – for example, labor mobility rules are more restrictive than trade in technology rules, and trade in services liberalizations are inconsistent across the four GATS modes of supply, among countries and across economic sectors – what does that do to the overall level of global (or regional) trade?

Moreover, how might the overlaps be used to promote what one might call desirable or “fair” trade – which I define here (in quasi-Pareto-efficient fashion) as trade that creates jobs and wealth in one country without causing significant, or at least immediate and rapid, dislocating or structural adjustments in another country? Given the Obama administration's stated interest in "free but fair" trade, that is a question that is perhaps more relevant now than previously.

Finally, such pluralism of regulatory regimes is common, and in some cases even desirable. Paul Schiff Berman, for example, has written about this in his article “Global Legal Pluralism.” Is that the case in this area, however? If plurality of regimes for outbound trade control, trade in services, and labor mobility leads to reduced international trade, could that be desirable (for example, by preventing rapid changes in terms of trade) or undesirable (as traditionally has been generally supposed)? If the result of pluralism in this context is undesirable, does that suggest that greater harmonization (and perhaps even unification) of these three different types of regimes is the only means to achieve the benefits of greater and more liberalized trade?

Again, I currently have more questions than answers, but I pose them nonetheless in the spirit of intellectual discourse. My own current views are, firstly, that greater harmonization of these regimes is desirable, and that pluralism is not. (It perhaps might be that this area of trade regulation, with its concerns regarding efficiency, transparency and security, is the exception that proves the rule with respect to the benefits of legal pluralism in trade, but I have not made my mind up on that score.) Secondly, it is my view that national export control regimes should be more multilateral in their approach (as discussed in my previous post) , and thirdly, I believe that greater efforts should be made to link trade in services regimes to international or regional labor mobility regimes. Too often (in the U.S. at least), the immigration debate centers on security issues that have little to do with trade and economic prosperity. Linking labor movement/immigration laws to economic activity and economic growth might help to shift the debate to more constructive ground, especially if embedded in the discussions is the possibility of greater work opportunities abroad for U.S. nationals.

Chinatown Part III: The Two Victims

Look for the burgeoning international celebrity crime story of Roman Polanski’s arrest in Switzerland to turn into another global culture war about American mores with one spin emphasizing US Puritanism and punitiveness versus European civility and tolerance, and the other spin emphasizing US concern for victims and European decadence and aristocratic disdain for popular fears.  Enjoy what is certain  to be months of coverage with attention to a few ironies from the golden penal state.  Specifically:

(1)  Polanski is himself the chief victim of the most celebrated/transfixing crime in California (arguably US history); the 1969 murders of his wife, actress Sharon Tate, and his nearly born son (she was within weeks of delivery), and four others (three of them close personal friends), by cohorts of psycho-killer-guru Charles Manson.  I argued in a post earlier this summer that the Manson killings and subsequent trial, which transfixed the state and nation for weeks during that pivotal year, helped to reset California’s politics to the kind of “leave no prisoner behind” liberal/conservative consensus we have on tough punishment that has dominated the state ever since.  (I’m continuing to gather evidence that is so far generally supportive of that claim and hope to have a short paper up later this fall).  As a victim of a sexually tinged murder of his wife and child, Polanski is a “super-citizen” of the Republic of California (see, chapter 3 of Governing through Crime), viewed as an eternally recurring victim, suffering ever renewed damage by the memories of his savage loss as each Manson family prisoner comes up for a parole hearing, and accorded a growing set of specific rights in our constitution.  However, as a fugitive from a child sex abuse crime he is at least presumptively guilty of (having pled guilty and fled) he finds himself on the other side of that coin, accorded no element of human empathy by the state or its leaders, protected only by the increasingly shrinking set of federal constitutional rights accorded defendants and prisoners.  Polanski’s best defense is that the murder of Sharon Tate made him do it.  California voters recently enshrined victim rights in the Constitution in a voter initiative that compared the victim experience of parole hearings for murderers to being tortured.

(2)  If Polanski’s international supporters are surprised at California’s endurance on this issue they should not be.  California’s willingness to prosecute crimes to the fullest possible extent of the law was soberly marked last week with the death in prison of Susan Atkins, the “Manson girl” who stabbed Polanski’s wife and son to death whose death from brain cancer came after almost forty years in prison (read her LA Times obit).  Atkins, the longest serving woman in California history (but we’ve got a lot of history to make) was recently denied parole for the umpteenth time, being found a potential risk to Californians despite meeting the board in a hospital gurney (her leg was amputated as part of cancer treatment) with a prognosis of only months to live. 

(3)  Although I haven’t checked the sentencing range for the count of unlawful sex with a minor in 1977, it is almost certainly far lower than it would be today.  California’s new Determinate Sentence Law had just come into effect and the new fixed ranges (based on statistical norms for the indeterminate sentencing practice) were incredibly short by contemporary standards.  In the decade following Polanski’s flight, public concern about child sex abuse would mushroom into far ranging prosecutions of day care workers and others for lurid and implausible (and unlike Polanski’s reported assault, largely fabricated) crimes in which scores of people were sentenced to decades in prison (some of them now released and exonerated).

(4)  America’s penal state makes big city prosecutors potential political stars as crime fighting heroes, but also exposes them to the full fury of the vengeful public when their choices do not line up with the "maxi-max" principle (the maximum punishment for the maximum number of  people).  LA prosecutor Steve Cooley is notoriously “left” of the law enforcement consensus on issues like three strikes, drug treatment not incarceration, and the death penalty.  Precisely because of that he probably felt vulnerable to any accusation that he was being soft on a Hollywood criminal fugitive charged with sexually assaulting a minor, whose supporters continued to make law enforcement, and prosecutors specifically, the bad guys.

Law and Intuitions

Laypeople's intuitions about what the law should be sometimes factor into scholarly arguments about what the law should be.  There are two principal ways in which such arguments are made.  In the "predictive" mode, we seek to understand lay intuitions because we think that laypeople will be more compliant with laws that match their intuitions.  Laypeople may better understand and respect laws that match their own personal views.  When making such arguments in a scholarly context, there is no suggestion that laypeople have special ways of knowing what laws are morally right.  These arguments are merely predictive.  We use them when we try to manipulate behavior in order to encourage compliance with the law. 

In the "justificatory" mode, we treat intuitions as capturing some sort of moral beliefs or sentiments.  If our considered intuitions line up in certain ways that cohere with a general principle, we might think that our intuitions help justify the underlying principle.  There is quite a bit of dispute about precisely how our intuitions should factor into normative arguments, but widely-shared intuitions are nevertheless frequently used to buttress normative legal and ethical claims.

By staying in the predictive mode, we can avoid some difficult conceptual problems about the relationship between intuitions and moral justification.  I take this to be a central task of those, like Paul Robinson, who argue that the criminal law should generally try to match laypeople's intuitions.  By so doing, it is hoped, people will recognize the law's moral authority and be more likely to comply with its commands.  Robinson does not claim that laypeople's intuitions are justified but rather that we can use their intuitions as tools to promote compliance with the criminal law.

I view Robinson's project, a kind of consequentialism which he calls "empirical desert," as an important one.  Criminal law scholars have paid too little attention to the ways in which laypeople understand the law (an interesting psychological question in its own right) and how, if at all, lay views should affect both consequentialist and retributivist theories of punishment. 

But I do think that empirical desert advocates still have their work cut out for them.  It is difficult to demonstrate that laypeople will comply more with laws that match their intuitions.  It is harder still to estimate the amount of compliance that can be induced by changing the law to better match lay intuitions.  Since changing the law will have many different effects (in terms of cost and levels of incapacitation, for example), it is difficult to know whether to change the law unless we can estimate the amount of compliance we can plausibly expect to gain.  Until then, empirical desert might be helpful only in limited situations (for example, when we are on the fence about which policy to choose and empirical desert pushes us in one direction).  I describe this challenge to empirical desert in more detail (along with some others), in this draft article, How to Improve Empirical Desert.

Oligarchy in a one-party town

Yesterday, New York City held the only election that really matters for the only two city-wide offices that were genuinely up for grabs -- the comptroller and the public advocate. (I am assuming that Bloomberg will face little danger from his under-funded and mostly unknown Democratic opponent in the general election). As a practical matter, virtually no one showed up to vote, because the election was a Democratic primary runoff for offices that few city residents understand and for candidates that, because they were all Democrats, could not be distinguished on the basis of party labels. (Of course, one could rely on campaign literature to learn about the candidates. Guess what? All of them said that they were going to stand up against special interests). 227,000 people voted in the run-off, meaning that the second-most important officers of a jurisdiction that governs over seven million people were chosen by, say, 2% of the population.

It is not that these officials do not matter. The Comptroller, for instance, has a significant role to play in managing the city's pension funds and reviewing city contracts. In an era when the city's collective bargaining agreements may come close to bankrupting the city, one would hope that the voters knew something about the candidates' stand on, say, "20 years and out" retirement packages. This is not to say that they should share my conservative skepticism about the sustainability of such deals: They simply ought to be aware of what is actually at stake in the vote. But the low turnout and desultory sources of information suggest that the tiny number of voters mostly voted blind, with the election turning on the informed self-interest of public employees. If one were especially well-informed, then one might know that John Liu, one of the two candidates for Comptroller, received the endorsements of the Working Families Party and the Central Labor Council, the latter by a vote of 22-0, meaning that Liu was the choice of the public employee unions. One could safely infer that his opponent, David Yassky, had as much chance of beating him as the Orioles had of winning a three-game series against the Yankees.

Predictably, Yassky lost. Whatever one thinks of this outcome (I supported Yassky), the process is preposterous. A tiny handful of voters vote blindly for two proper nouns that signify virtually nothing, and a much tinier handful of self-interested voters actually determine the outcome. But this is the process dictated by elections in a one-party town where the absence of competitive parties insures that voters will know nothing about the issues actually at stake in an election. David Schleicher has a good paper explaining how to reform this mess with rules encouraging competitive local political parties. But what are the odds that the power brokers in New York City would ever accept such reforms?

Corfield v. Coryell and the Privileges and Immunities of Citizens in the Several States

In a previous post, I explained how antebellum legal and political use of the paired terms “privileges and immunities” generally involved a reference to a limited set of specially conferred rights.  The phrase was used not as a reference to natural rights belonging to all, but instead referred to a limited set of rights conferred upon a particular person, group or institution.  This concept of “specially conferred privileges and immunities” took on a more defined meaning when used as part of the more specific term of art: Article IV’s protection of “Privileges and Immunities of Citizens in the Several States.”

Today, the best known judicial discussion of Article IV is Justice Bushrod Washington’s opinion in Corfield v. Coryell (1823).  At the time Corfield was decided, however, a line of judicial precedents had already established a consensus understanding of Article IV’s Privileges and Immunities Clause.  In the 1797 case Campbell v. Morris, for example, Maryland’s Judge Chase explained:

It seems agreed, from the manner of expounding, or defining the words immunities and privileges, by the counsel on both sides, that a particular and limited operation is to be given to these words, and not a full and comprehensive one. It is agreed it does not mean the right of election, the right of holding offices, the right of being elected. The court are of opinion it means that the citizens of all the states shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the state, in the same manner as the property of the citizens of the state is protected.

According to Judge Chase, Article IV provided sojourning citizens from other states equal access to a limited set of state-conferred rights. 

This same idea was echoed by later influential jurists such as New York’s Chancellor Kent in cases like Livingston v. Van Ingen (1812).  In fact, by the time Justice Washington decided Corfield in 1823, this had become the generally accepted meaning of the Privileges and Immunities Clause.  In Corfield, Justice Washington echoed Judge Chase’s earlier point about the “particular and limited” set of rights protected under Article IV by limiting privileges and immunities to just those which were considered “fundamental” and which all states had protected since the time of the Founding (a set of rights which did not include the right of Philadelphia boatmen to gather New Jersey clams).  Washington, like Judge Chase before him, understood Article IV as protecting only a special (and limited) set of state-conferred rights.  Later antebellum cases read Corfield as applying the same principle as that articulated in Campbell and Livingston—indeed, the cases were often cited side by side.  When Thomas Cooley published his treatise on Constitutional Limitations in 1868, for example, he adopted this same understanding of Article IV—and cited both Campbell and Corfield.

In sum, the antebellum jurisprudence of Article IV was remarkably consistent—remarkable if only because of the skewing effect that the issue of slavery had on so many other areas of law.  Although some contemporary scholars argue that Washington’s opinion in Corfield referred to a set of natural (and national) privileges and immunities of United States citizens, this is not how the case (or Article IV) was broadly understood prior to 1868.  Although there were a few alternative views of Article IV (with some courts reading the Clause as a limitation on the powers of the federal government), the vast majority of antebellum judicial opinions that addressed the Privileges and Immunities Clause (both North and South, and both before and after the Civil War) all followed the general approach of Judge Chase’s 1797 opinion in Campbell: Article IV provided sojourning citizens equal access to a limited set of state-conferred rights.  Corfield was just one of many antebellum cases which stood for this basic proposition. 

On the other hand, at the same time courts were grappling with the meaning of Article IV’s “privileges and immunities of citizens in the several states,” an entirely separate line of legal thought was emerging regarding the meaning of “privileges and immunities of citizens of the United States.”  This legal term of art—one which closely resembles the language of Section One of the Fourteenth Amendment--will be the subject of my final post.

The Constitution in 2020: Religion, Division, and Pluralism

As Paul has mentioned, he and I (and Ethan) are participating in the "Constitution in 2020" conference and blog-conversation.  My contributions on "The Infrastructure of Religious Freedom" and "Religion and Division" are available here and here.  Here is a bit from the former:

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea.  Here it is:  Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities.  The Jacobins were wrong.  In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

Toleration or Respect?

Take a look at Brian Leiter's new paper, posted on SSRN, "Foundations of Religious Liberty:  Toleration or Respect?"  Here is the abstract:

Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of “respect” and “toleration.” With regard to the former, I start with a well-known treatment of the idea of “respect” in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether “respect” or “toleration” can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices “religious” (again drawing on earlier work). That will then bring us to the central question: should our laws reflect “respect” for religion” or only “toleration”? Martha Nussbaum has recently argued for “respect” as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall’s work. In particular, I shall claim that in one “thin” sense of respect, it is compatible with nothing more than toleration of religion; and that in a “thicker” sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.

Although I think that Prof. Leiter's conclusion that "religion is not the kind of belief system that could warrant [thick respect]" is misguided (in part because his understanding of "religion" is not mine), I find this paper -- like his earlier piece, "Why Tolerate Religion?" -- kind of refreshing, bracing even.  Like Prof. Leiter, I come away from works like Prof. Nussbaum's new book on religious liberty not sure that any case has been (or, given the working premises, could be) made for religious liberty.  Perhaps, as Prof. Steve Smith has been saying for a while, the only solid arguments for religious freedom (that is, for something more than a cost-benefit-based "toleration" of religion) are themselves "religious" or, at least, depend on anthropological and other foundations that we -- even if we are willing to invoke them from time to time -- no longer really accept?

Just a little something to think about over lunch . . .

Facebook and crime

Last week, a Pennsylvania home was burglarized and the thief was caught because he had used the homeowner's computer to check his facebook page. This is pretty much an example of sheer idiocy.  However, Facebook does offer the possibility of actively aiding crime solvers.  A few weeks ago I saw the following status alert on a friend's facebook page:

"AMBER ALERT IN OSHWA NY-3 YEAR OLD GIRL TAKEN BY A MAN DRIVING SILVER TRUCK Ontario PLATE # 728 381. If all of you reading my status would copy and paste into your status, it could potentially save a little girl's life."

My first thought was, I live in South Carolina, there's no point in posting this.  However, then I remembered that I do have one friend who lives in upstate New Nork and probably many of my friends on Facebook have a friend who lives in upstate New York and that these friends surely have many friends who also live in upstate New York and who knows, maybe one of those friends is actually onFfacebook right now driving by this very car. After such thoughts, I posted the status alert on my page. A short time later, another friend of mine informed me that it was a hoax and there was no Amber Alert for a three year old girl abducted in Oshwa New York and I took it down.

Should social networking sites be used in situations like child abduction or is the risk of abuse to great?  On the one hand, if there had been an abduction Facebook could have gotten the information out to hundreds or maybe thousands of drivers who could have helped find the abducted child.  On the other hand, encouraging Facebook Amerber alerts could also give a dangerous weapon to anyone with a grudge.  After thinking about it, I have concluded that the benefits outweigh the downsides but I could be convinced the other way as well.  Thoughts? 

The First Amendment in 2020: An Institutional Perspective

Here's a link to my second and final post on the Constitution in 2020 blog in advance of the conference later this week.  This one is more directly related to the individual rights panel, on which Rick and I will both be speaking (and, I think, hitting some of the same themes).  Here are a few snippets:

Justice Oliver Wendell Holmes once famously wrote, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” The difficulty of this advice should not be underestimated – especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have “a deeply felt desire . . . to achieve noninstrumental certainty in the law.” And Fred Schauer has written of the lawyer’s tendency to think in terms of “juridical categories” rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers’ greatest gift and their greatest handicap.

The law of the First Amendment abounds with evidence of the lure of acontextuality. Across a range of First Amendment doctrines dealing with very different forms of speech, worship, association, and institutional and discursive frameworks, we see judges and scholars hoping to find some frame, some word or concept, that will bring a theoretically pure and coherent shape to the whole of First Amendment law, with little apparent regard for who is speaking or what is being said. “Equality,” “neutrality,” “content-neutrality,” and many more buzzwords are touted as the path to an analytically pure First Amendment. . . .

Is there a better way to proceed? I believe there is. In fact, a number of First Amendment scholars, of whom I am only one, have argued that the way out of the First Amendment impasse lies in resisting the lure of acontextuality itself. We should refashion the First Amendment from the bottom up – from the distinct and varied structures, institutions, and social practices in which public discourse actually takes place, rather than hoping to find some concept or rule that will apply to all of them. We should take Holmes’s advice and think things, and let the words that describe and order them emerge organically rather than being imposed upon them. . . . .

Public discourse emerges from institutions that in some cases pre-existed and in other cases grew up alongside the First Amendment, and those institutions and their practices are sticky and largely self-sustaining. They are not simply creatures of the First Amendment. But the First Amendment might develop in a stronger and more socially responsive way if it were their creature. The First Amendment itself is a mere formula of words that might make more sense if we began by thinking about the existence of things, including institutions, in the world.

When There's a Will, There's a Way...

Thank you so very much to the Prawfsblawg gang, especially Dan, for the wonderful opportunity to guest blog.  It was a blast! 

I'll make my final post a bit of a mea culpa.  I've recently been motivated by the impending birth of our daughter (and sheer embarrassment) to actually sit my lawyerly self down and draft wills, health care proxies, powers of attorney, etc.  You know, those types of documents.  For months (years?), I had been meaning to undertake this task, but somehow never quite got around to it.  I'm not even a procrastinator by nature--it always seemed as if there was something slightly more compelling to address first.  But once I sat down to read through many of the online forms, I found the process to be quite amusing.  The language of several forms reminded me of a wonderful quote from the movie Alice in Wonderland:  "Doorknob: Read the directions and directly you will be directed in the right direction." 

In recruiting various witnesses for these documents, however, I discovered that I was actually in good company in my prolonged failure to find the "will" to tackle my "will."  Ironically, many other prawfs with whom I spoke mentioned that they were also in the very same situation.  I suspect that if there was a plague upon Prawfs a good number of us might go gently (but perhaps with an outdated will) into that good night.  So to those who find themselves in that situation, I wish you "Good Will Hunting"!  And, of course, a convenient Notary Public.

What did the Carnegie report say anyway?

In the last few years, there's been a fair amount of talk in the legal academy about how legal education ought to change, in part in response to the 2007 Carnegie Foundation report. Many assume that the report is a repeat of the familiar "law school should be more practical," and to a certain extent that's true. But it's more nuanced than that.

One way to get the gist is to head to the website of the new law school at UC-Irvine, founded by noted constitutional law scholar Erwin Chemerinsky. The site summarizes its curriculum this way: "A cutting-edge, strongly interdisciplinary curriculum will prepare UC Irvine School of Law graduates not only to think like a lawyer but also to actually practice law."  UCI's website also includes a key quote from the Carnegie report: "Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.  Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice.  The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients." 

You can also read the executive summary of the Carnegie report here, but the highlights are: 

(1) Lawyers are best taught through a curriculum that integrates the three pillars of doctrine, skills, and professional identity, rather than having a curriculum that focuses on doctrine, and treats the other pillars as "add ons." 

Ideally, these three pillars (or "apprenticeships") can be integrated in the same course. For example, rather than having a course called "Torts" that focuses on doctrine, a separate course called "Factual Investigation" that focuses on a skill that any torts lawyer needs, and a course on "Professional Responsibility" that covers ethical dilemmas facing such lawyers, these things can all be included in one course, even if not all are covered in depth. One might call such a course "The Torts Process," which happens to be the name of a well-established course book from Aspen (Henderson et al) that uses this approach, and which I use to teach 1L Torts.

(2) The combination lecture/Socratic method is far overused, as is the Langdellian approach of learning the law through the dissection of appellate opinions. These problems are particularly pronounced after the first year.

(3) Law schools are far behind other educational institutions in how they assess student learning, and the extent to which they provide feedback that improves learning outcomes. 

(4) Problems 1-3 are all related.

Extraterritoriality in Export Controls

For more than sixty years, U.S. export controls have been a key U.S. national security tool for preventing undesirable exports of goods and technology. Although the overall structure of these controls has changed relatively little since the enactment of the Export Administration Act of 1979 (“EAA of 1979”), the United States’ interpretation and application of its export control laws is in some ways radically different than upon the act’s passage. This is particularly true with respect to claims of extraterritorial U.S. jurisdiction, which have been difficult to justify under international law principles of prescriptive jurisdiction.

I have been thinking about this subject for some time (it is a bit of a pet project of mine); I think it is fascinating and important, even if a little arcane. I also think it is quite relevant to current events, namely the efforts by the United States to impede or prevent any Iranian nuclear program, and I believe it offers important insights into how states can and should (and cannot and should not) try to achieve foreign policy and national security goals through the regulation of trade.  Accordingly, in this post I want to (a) recap the history and evolution of the extraterritorial features of U.S. export control laws, (b) discuss the legally problematic nature of these features under international law, and (c) discuss their legal justifiability from a perspective that has not previously been actively explored. 

The post is quite long, but I have decided to err on the side of over-description, so as to provide a fuller context for my comments.

Background

In the early 1980s, the United States radically expanded the extraterritorial application of its export control regime and set off an international furor over what many viewed as excessive U.S. reach. These claims were first made by the United States in an attempt to thwart the construction of a Soviet trans-Siberian pipeline to Europe, by prohibiting certain European firms from using certain U.S. technology in their possession in furtherance of the project.

Specifically, the type of extraterritoriality asserted by the United States in the Soviet pipeline dispute was based on the national origin of the technology involved--as opposed to the technology’s physical location or the nationality of the parties. Under this “item-based” approach, the United States claimed jurisdiction over some U.S. origin technology, regardless of the fact that it was already outside the United States and possessed by non-U.S. parties, and regardless of the fact that the restricted uses were not prohibited or restricted at the time the technology was first exported from the United States. In other words, national origin was the sole basis for U.S. prescriptive jurisdiction over this technology.

The United States backed down in that particular controversy when it rescinded the prohibitions on use of that technology--but it did not waive its claim of jurisdiction. The extraterritorial jurisdiction first asserted by the United States in that dispute remains a hallmark feature of U.S. export control laws: the United States continues to assert extraterritorial jurisdiction over U.S. goods and technology located outside the United States, based solely on the fact that these items are of U.S. origin or contain significant U.S. content.  (For those interested, Andreas Lowenfeld provided a very nice, concise summary of the 1981-1982 pipeline dispute in "Trade Controls for Political Ends:  Four Perspectives," 4 Chi. J. Int'l Law 355 (2003)).

Analysis

The validity of item-based prescriptive extraterritorial jurisdiction was debated at length by scholars in the 1980s and early 1990s, and at the time a general scholarly consensus was reached that item-based extraterritorial jurisdiction was difficult to justify at best, and unjustifiable at worst. Yet even as this extraterritoriality remained in place attention to this subject waned, perhaps due to the lack of another galvanizing, headline-grabbing event such as the trans-Siberian pipeline controversy. Still, I think the subject of extraterritorial, item-based U.S. export controls remains an important one that is worth revisiting from a more contemporary perspective. The current dispute with Iran regarding Iranian nuclear activities suggests to me that the timing is right for a revisit of the issue. Even if no dispute arises now over U.S. extraterritoriality in U.S. efforts to restrict Iranian activities, it will be useful to consider why that is the case (i.e., is it because of consensus? More on this below.).

My thinking on the subject has led me to conclude that changes in global trade patterns and U.S. national security concerns since the early 1980s can and do provide stronger justifications in 2009 than in 1982 for item-based extraterritorial export jurisdiction. Briefly stated, export control concerns now are based far less on an item or technology’s destination and far more on how it will be used after export or reexport, and by whom. Perhaps, then, prescriptive jurisdiction based on end use concerns (such as nonproliferation or prevention of terrorism) are more justified.

In other words, while the Objective Territorial and Nationality Principles of international prescriptive jurisdiction remain insufficient legal grounds for an assertion of jurisdiction over such U.S. items/technology abroad (just as they were insufficient in 1982), the changed nature of global trade suggests that jurisdiction might be more justifiable under the Protective Principle, and perhaps even under Universal Jurisdiction. While there may be concerns about overly broad jurisdictional reach under these principles, perhaps this broad reach can be considered a logical and not undesirable outcome, provided of course that there is some international consensus concerning the purposes being achieved--i.e., the prevention of terrorism or chemical, biological, or nuclear proliferation activities.

A Different Perspective

This is all well and good, and interesting too--yet “justifiable” does not mean “sufficient,” or perhaps even close to it. That is, item-based extraterritorial export controls may be more legally justifiable now than previously, but they are also strategically imperfect and highly suboptimal. If that is the case, a different sort of analysis is needed.

While during the Cold War “origin” could serve as a useful proxy for “items that raised national security concerns and therefore needed regulating,” this proxy relationship has broken down as global trade has expanded and grown more multilateral. The use of item origin as a jurisdictional filter (to control some transactions but not others)--or more accurately, as a jurisdictional long-arm mechanism--is thus ultimately of little practical importance or meaning. National and multilateral security concerns thus suggest that broader, non-origin-based controls are needed.

How, then, might the export control laws and regulations of the United States, and of other countries too, be reformulated to be both doctrinally satisfactory and strategically sufficient? In my view, a reconsideration of the primary national security goals of these controls suggests that their current antiterrorism and nonproliferation goals could be better served by a departure from item-based jurisdiction. Such a change might lead to greater multilateral cooperation in the area of export controls, since it would resolve an unresolved dispute--which in turn could lead to greater consensus and cooperation via harmonization and enforcement networks than currently exists through multilateral export control regimes such as the Wassenaar Arrangement, Australia Group, and Nuclear Suppliers Group. In the absence of full harmonization, greater progress could at least be made toward mutual recognition by states of their respective different (yet justifiable) export control schemes (including jurisdictional considerations), somewhat along the lines of the mutual recognition regime work by Kalypso Nikolaïdis and Gregory Shaffer.

What is particularly interesting about such a re-imagined conception of export controls is, firstly, that extraterritoriality is not justified on the problematic basis of item origin; and secondly, that because these approaches are based on consensus, they can comport entirely with traditional international law jurisdictional principles. As such, they are both more justifiable and more strategically appropriate than the current item-based approach.  What is also interesting, and indeed ironic, is that after nearly thirty years of problematic extraterritoriality the United States might finally win the legal argument. Sarah Cleveland’s work regarding unilateral trade sanctions as a means to spark international dialogue and push the development of new norms translates well to the export control context.  (See Sarah H. Cleveland, "Norm Internationalization and U.S. Economic Sanctions," 26 Yale J. Int'l L.1 (2001) and Sarah H. Cleveland, "Human Rights Sanctions and International Trade:  A Theory of Compatibility," 5 J. Int'l Econ. L. 133 (2002)).

That is, in recent years at least, the United States’ extraterritorial jurisdiction assertions have been justified largely on antiterrorist and nonproliferation bases--justifications with which U.S. trading partners generally can agree, at least to an extent. The United States thus may have facilitated or fostered transnational export control dialogue on these subjects, and international consensus may be achieved that such broad extraterritorial reach, or at least transnational coordination and cooperation, is justified. And as already noted, efforts to broker a unified multilateral response to Iran’s nuclear activities may provide the factual scenario for this to occur.

The Constitution in 2030

My contribution to the blog discussion of The Constitution in 2020 is up here, in advance of next week's conference, on which I'll be speaking on the individual rights panel along with Rick; I'll have another post in a few days specifically targeted to First Amendment questions raised by the book.  In this post, I focus on the project as a whole, asking whether it is interested in "merely" putting some version of progressive constitutionalism into practice on the courts, or whether it is interested in proposing some genuine new vision of constitutionalism; if it's the latter, I argue, 2020 is too early a date for this to be possible.  Here are some snippets:

There are revolutions, and then there are Revolutions. The big, capital-R type Revolutions are the major sea changes in the way we think and act or in our political structures, the moments in which some concept moves, seemingly overnight, from being unthinkable to being incontestable. Then there are revolutions, in something like the literal sense: the same old turning of the wheel, bringing the return of some set of ideas or political views to dominance, but with the certainty that its moment will inevitably pass, and return, and pass and return, and so on. These small-r revolutions are the stuff of our usual politics. They are one reason (the other may be summed up in a name: Keith Moon) why the Who’s “Won’t Get Fooled Again” still sounds fresh.  “Meet the new boss….”

What do the authors of The Constitution in 2020 want: a revolution, or a Revolution? Are they interested in something genuinely new, a real paradigm shift in how we conceive of the Constitution? Or are they really just looking for a regime change, one that will bring them the results they want but that is destined to be merely temporary? . . . . [O]ne gets the sense that at least the editors of this collection would like to frame their project in more Revolutionary terms.

If that is actually the case. then I want to suggest that The Constitution in 2020 is the wrong title for the book. Small-r revolutions, mere turnovers in power, happen relatively frequently.  Big-R Revolutions are a different matter altogether. They do not happen often or overnight. Paradigm shifts, like rockslides, only appear to happen all of a sudden. In reality, they develop slowly before they happen quickly. . . . 

The Constitution in 2020 looks only a little more than a decade ahead. In that short time, we might see some small-r revolution on the federal courts. We might see the outs become the ins, and liberal rulings might replace conservative ones. But we are unlikely to see any Revolutions in so short a time. Science fiction in the 1950s looked a couple of decades ahead and imagined that we would soon be moving around with jetpacks and serving our robot overlords; by the 1970s, all that managed to happen was that we replaced our eight-tracks with cassette players. The same thing is likely to prove true if we try to imagine a genuinely Revolutionary movement in constitutional interpretation but place it just around the corner, temporally speaking. . . . 

If the editors and authors of The Constitution in 2020 want to encourage a real Revolution in constitutional law, . . . they will need to start by rethinking their title. On the other hand, if all they want is a revolution – if all they really care about is the development of more or less the same old ways of thinking, but from a progressive rather than a conservative perspective; if they just want to be the “new boss” for a while, with a corresponding change in outcomes – then 2020 seems like a reasonable date to shoot for. That is time enough for the new guard to take over.  Unless we are just motivated by politics and a concern with outcomes in particular cases, though, that does not seem so terribly worthwhile a goal. It is certainly a short-sighted one: if all we are concerned about is a shift in who holds the reins of power, instead of a real shift in how we think about the Constitution, then the “progressive” Constitution of 2020 will be replaced by a conservative Constitution in 2040, and so on. Instead of planning for a constitutional revolution in 2020, perhaps we might instead try to imagine what a real constitutional Revolution might look like – in 2030. 

GOP lawsuit to stop Senate appointment

The Massachusetts GOP has filed suit in state court, seeking an injunction against Gov. Deval Patrick's appointment of a replacement for the late Sen. Ted Kennedy, arguing that Patrick lacked the authority to declare the emergency that constitutionally allows him to make the appointment now, rather than having to wait 90 days. A hearing is set for 8 a.m. tomorrow; Patrick's appointee, Paul Kirk, is scheduled to be sworn in tomorrow afternoon.

This is a suit that pretty clearly would fail in federal court on both Article III standing (the state party is not injured by this appointment, other than having lost in the political arena, and certainly not differently injured than anyone else in Massachusetts) and political question doctrine (this seems like a decision vested in the governor's discretion, with which a court will not interfere).

But is anyone out there familiar with the law of Massachusetts and whether its standing rules are so much broader than Article III as to permit the party to bring this lawsuit?

Update, Friday evening:

The court denied the injunction and Kirk was sworn in this afternoon. No mention of standing; the four-page opinion focuses mainly on a state law question of when the governor can declare an emergency.

Learning from the P&T Process

This year marks my first time on the other side of the promotion-and-tenure process, which means I have to visit and evaluate my junior colleagues' teaching. This has been educational in several respects.

First, I am learning substantive law. After observing a contracts class, for the first time I understand Kirksey v. Kirksey ("Dear Sister Antillico"). It is fun to get a small taste of other substantive content--especially what I should have learned back in school.

Second, and more important, it is quite helpful to see other teachers and other teaching styles. There is both a comparative component to this--"How do I compare to this?"--as well as a learning component--"What things does she do that I might incorporate?" or "What things simply cannot work for me?". I always have believed that good teaching style is largely personal--you have to be yourself; this means it is going to be varied and not always transferable. But we can adopt things that we see that might jibe with our own style. Or we may have some ideas confirmed--watching a colleague conduct (very well) a seminar while sitting the entire time confirmed that I would not do well in that environment because I cannot talk while sitting.

Third, it is interesting to see how courses are integrated across the curriculum and how important it is that students not consider each subject in the curriculum in isolation, but come into each class with at least a basic familiarity with prior subjects. For example, for a discussion of the relative merits of trials and truth-and-reconciliation commissions, students should come armed with clear conception of the idea of the trial gleaned from, e.g., civ pro, crim law, evidence, and crim pro. I wonder if we do a good-enough job showing and emphasizing those intra-curriculum connections.

Read the Bill! Or Read the Bill?

At the Volokh blog, the conspirators have been having a very interesting conversation about whether legislators should be obliged to read the full text of every piece of legislation on which they vote.  I won't provide all the links; you can surf on over and check it out.

A couple of comments.  First, asking in an extended and thoughtful fashion whether legislators should read the full text of the bill is different from simply shouting "Read the bill!" or waving copies of a bill in the air.  One is conversation and dialogue; the other is political theater and sloganeering.  The slogan "read the bill" has often been wielded against people who have actually read the bill (as if there were only one) by people who have not, and it often signifies, not that the shouters think their opponents haven't read the bill, but either that they disagree with some provision of the bill (about which they themselves may be in error) or that they can't believe anyone who actually read the bill could possibly disagree with them.  They would not be satisfied if their opponents read the bill and still supported it -- I am reminded of the Onion story in which God answers the prayers of a dying boy with a simple "No" -- so the nature and heat of the dispute can't be about reading the bill as such.  The conspirators who have argued for reading the bill are not making the equivalent of a "Read the bill!" assertion, and good for them.

Second, it is not sure what can be meant by an obligation to read the bill.  Surely it would be unenforceable as a legal obligation, except by some highly unlikely disciplinary mechanism within Congress itself.  (Would there be pop quizzes?)  That does not make it meaningless.  Much of what legislators are supposed to do, under their constitutional oaths, falls under the heading of moral obligation, or of a mixed moral/political obligation that is practically unenforceable.  That doesn't mean it has no weight or that we can't or shouldn't argue about it.  It does mean that we should recognize the debate for what it is and not treat it as anything other than a politically enforceable matter.  And it is one that should, of course, be applied even-handedly.  If reading the bill is the moral good people are interested in, then perhaps they should go to town halls with the text of some bill of which they overwhelmingly approve, and which their representative supported, and ask whether he or she read that bill, instead of focusing only on the legislation they disagree with.  

Third, I think one can have this debate in good faith or not.  If you support the "read the bill" obligation only because you think it would make lawmaking slower and more difficult and retard the pace of legislation, I don't think that's a valid reason in and of itself to support reading the bill as an obligation.  I'm not saying that wanting less legislation, as an absolute matter, isn't a valid desire, although I don't share it (as an absolute obligation; I'm not saying I want more or less legislation).  But in this case, "read the bill" would only be a means to an end, not an end in itself.  Whether or not you support reading the bill shouldn't only be about whether you want more or less legislation.  I am mindful of some of the positions Justice Scalia has taken, on matters such as standing and separation of powers.  If made in good faith, they are either right or wrong; if they are only about finding ways to slow the pace of legislation that might be more likely to be liberal than conservative, they are on more unsteady footing.  

Finally, and more positively, I haven't bothered linking to all the posts because I think Eric Posner has it quite right in his post on the subject.  Here's his opening salvo; go to his post for the rest.

I have read with dismay David and Jonathan’s arguments that all legislators should read all bills before voting. The argument fits a genre of populist rhetoric that claims that problems of governance can be solved with simple, common-sense rules, denying that political institutions are highly complex organizations that have evolved in response to needs and pressures, and that simple-sounding rules rarely do any good in complex settings. Here, we should keep in mind that the ultimate function of the legislature is to produce good law; that determining whether a particular law is good or bad is such a complex and subtle task that all legislatures have found it necessary to divide labor, form committees, hire staff, expect particular legislators to become experts and leaders in particular domains, and, indeed, delegate many functions to unelected expert regulators.

What's happening in legal education?

With the beginning of a new school year, and a new law professor hiring season, one might want to know the answer to this question. Specifically, I can imagine law-professor job candidates being asked the question: "Are you familiar with the Carnegie report on legal education, and how would it affect your approach to teaching?"  So I'd recommend you at least read the executive summary. Over at Concurring Opinions, Kathleen Boozang says that the report was greeted by a "big yawn" by most law professors, but she speculates that the collapse of the legal market could change that. 

A recent National Law Journal article quotes Rod Smolla, the dean of Washington and Lee and architect of its new Carnegie-esque third-year curriculum, as saying "we are at a moment of historical change in legal education...When we look back at this period in five to 10 years, we will mark it as the time when the whole mission of law schools made a fundamental turn."  In W and L's third year, students learn "substantive" areas like family law or employment law through real and simulated cases where students act as lawyers and try to solve problems, not by reading appellate opinions, taking notes in class, and mushing it all into an outline at the end for a 3-hour typing race. More students opted into the new curriculum than expected, and applications there were up 33% this past year, with a survey indicating that the new curriculum played a role in many students' decisions to go there. 

Meanwhile, Martha Minow, the new dean of Harvard Law School, where the Langdellian method of teaching from appellate opinions was developed, has called for "another case method" closer to the one used in business and public-policy schools, and consistent with W and L's approach and Carnegie. 

So will there be significant change or not much at all? My own view, for what it's worth, is that much depends on the success or failure of innovations like Washington and Lee's third-year curriculum, the more practice-oriented curriculum at Northwestern, and the new law school at UC-Irvine. If they succeed, I would imagine others will follow.  What do you think?

Who's Your Mommy?

Yesterday CNN posted a story about a couple who underwent IVF in order to conceive and mistakenly received another couple’s embryo.  The couple have decided to carry the pregnancy to term and give the child to its biological parents upon birth. As IVF becomes more and more common it is reasonable to assume more mix-ups like this may occur in the future and such pregnancies raise interesting legal question.  What would have happened if Carolyn Savage, the women given the wrong embryo, had decided she did not want to carry the baby?  Could she have been prevented from having an abortion by the biological parents?  Given the current case law on abortion, the answer is almost certainly no.  The legality of abortion is based on considerations of the pregnant woman’s rights. Specifically, her right to control over her body.  It is not based on the fact that she created the embryo.  With regard to abortion, one's biological relation to the embryo is given little weight.  A man has no right  to prevent a woman from obtaining an abortion even if he can prove he is the biological father.  Applying this rule to cases involving wrongly implanted embryos would seem to lead to the same results.  Whether to have an abortion or not is the pregnant woman’s choice and cannot be controlled by the non-pregnant biological parents.

However, what if Carolyn had decided to keep the baby?  The law on this is less clear.  On the one hand, there is a well established presumption that the children born during a marriage are the legal children of the married couple. Such cases typically involve two men claiming to be the father of a child, one man is the mother’s husband and the other claims he is the mother’s lover.  Under the law, if the husband claims paternity of the child, it is presumed he is the child’s father.  As a result, courts refuse to recognize any parental rights in the other man, even if he can prove he is the child’s biological father.  Applying the rule from such cases to the present would lend support for a pregnant woman’s decision the keep the child regardless of whether she is the biological mother or not.

On the other hand, it could be argued that Carolyn’s situation is closer to that of a surrogate; a woman who becomes pregnant with another couple’s biological child.  In those cases, when the surrogate has no biological relation to the child she carries courts have been fairly unanimous in their decisions that she may not keep the child.  At the same time, one could also liken this case to those involving egg donation in which case it is the woman who receives the egg and carries the baby who becomes the legal mother.

None of the above situations fit perfectly. Obviously, Carolyn had no intention of becoming a surrogate when she became pregnant but could one argue that she became a surrogate by choosing to continue with the pregnancy after learning that the baby was not her biological child?  Similarly, the biological mother had no intention of becoming an egg donor but how much should such initial intentions matter?  Is this difference a decisive one? Lastly, the reason given for recognizing the legal rights of husbands over biological fathers is typically described as protection of the family unit and a concern that allowing paternity claims by outside parties would threaten the marital family.  However, allowing a claim by the biological parents in a case like the Savages is arguably very different and does not involve the destabilizing claims of infidelity that courts have been traditionally worried about. Nevertheless, between the three lines of cases , I would be inclined to find the greatest similarities with the marital paternity cases.

The marital paternity cases demonstrate the strong protections afforded the marital family and that concerns for protecting the marital family outweigh the competing concerns of biological parenthood.  The Savages are clearly a marital family and allowing an outside party to claim parentage over a child they carried, gave birth to and claimed as their own could clearly have a destabilizing effect on their family.  In addition, the Savages were informed of the mistake almost immediately but what if more time had passed, what if she had already given birth?  There are good reasons to presume that the child of a marriage is the legal child of the couple and these reasons remain relevant in the context of IVF.

What's in a name?

This year I began my Federal Indian law class with a discussion of modern day perceptions regarding Indian people and I used the example of Indian based sports team names and logos.  Is the name Redskins offensive?  Is the logo for the Cleveland Indians racist? if they are, then how come they are still around? A petition for cert has just been filed with the Supreme Court pertaining to this issue. Susan Harjo v. ProFootball Inc. involves a petition under the Trademark Act to cancel the Washington Redskins' trademark registration. Section 2a of the Trademark Act states that a trademark registration may be refused if the trademark "Consists of matter...which may disparage...persons living or dead...or bring them into disrepute."  In Harjo, the petitioner argues that the word Redskins "was and is a pejorative, derogatory, denigrating, offensive scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person."

This case was originally filed in 1992 and has involved both victories and set backs for the plaintiffs.  Although the Trademark Trial and Appeal Board agreed with the plaintiffs and canceled the trademark registration, this decision was reversed by the district court which found the claim barred by laches.  On appeal, the Court of Appeals remanded the case back to the district court finding that they had applied the wrong standard in evaluating laches. On remand the district court again ruled for the team and on appeal the decision was affirmed leading to the petition that has just been filed with the Supreme Court.

Regardless of whether the Supreme Court grants cert, ProFootball will most likely get to keep their trademark registration, but why are they fighting so hard to keep a trademark that offends many American Indians and which has actually been adjudicated racist?  The obvious answer is because it is profitable.  The company has clearly concluded that the trademark  is worth considerably more than than the millions they must have spent on this litigation and undoubtedly they are right.  The general public seems unconcerned about the potential offense caused by such trademarks and extremely unwilling to give them up.  In fact, fans of teams like the Redskins, the Indians, and the Braves seem offended even by the suggestion. Consequently, rather than pressuring teams to change, much of the pressure to change seems to be directed at the Indian tribes. 

Both the Florida Seminoles and the Spirit Lake Sioux tribe initially objected to the use of their tribe's name in connection with a University mascot but both have been convinced to drop their objections.  How the tribes were convinced however remains open to debate.  It is alleged that the Florida Seminoles received more than a million dollars to drop their objections to the Florida State mascot and something similar may recently have occurred with regard to the University of North Dakota's Fighting Sioux mascot.  The Spirit Lake Sioux tribal council just voted to approve the use of the name Fighting Sioux by the University of North Dakota but there have been a number of allegations that the pro-nickname campaign was being funded by the same donor who conditioned his 100 million dollar donation to the University on  the school's promise to keep the mascot.  Regardless of whether money was involved, there is something quite audacious about the fact that active efforts are being made to convince offended people not to be offended by something that organizations such as the NCAA and the Trademark office have clearly agreed is offensive.

MacArthur Grants: Rewards or Incentives for Creative Life on the Margins?

Following up on Adam's earlier post and the comments therein about Elyn Saks' receipt today of a MacArthur genius grant, I was wondering about a larger issue: whether foundations really should be showering $$ on folks like the professors at Harvard (and USC Law), where these folks are already making a decent living for the work they do. The point of the MacArthurs, as I understand it, is to give people the time and money and freedom to do the cool work they've been engaged in recently.  I think that's awesome--and would certainly love a little Mac money thrown my way. But are the folks already making north of 100K and enjoying job security at universities the people who should benefit from this windfall largesse? 

To be sure, I don't have the time or inclination to deny the "genius" status of Professor Saks or the other prof recipients. But I think if I were a steward for the foundation and trying to optimize the social output from genius-type talents, and still committed to doing this without a real application process, I'd rather see the scarce funds allocated to those creative geniuses who are, in a word, freelancing, and thus wondering who's going to cover their health care benefits for the next five years. Am I wrong to think some of these choices are sub-optimal on those grounds alone??  I recognize that if the point of the awards were simply to recognize great contributions over the course of one's career, like a Nobel (?), then that determination should be made without regard to the job security of the recipient. But the Macs' genius grants are purposefully different, don't you think?

Foucault, Kristol, and the Arts of Government

He believed that government programs that were not paternalistic, but merely provided social insurance, would “engender larger loyalties,” which is “precisely what the art of government, properly understood, is all about.” David Brooks, Three Cheers for Irving.

I know relatively little about the late Irving Kristol's political thought, other than the intriguing fact that like the founder of the JSP program, Philip Selznick, he began political life as a participant in the Trotskyist (anti-Stalin but Marxist) wing of the labor movement and then moved to the right (Selznick remains well to the left of Kristol's last known political coordinates).  But this phrase from David Brooks' celebration in this morning's NYTimes, of the longstanding intellectual dean of the modern neo-conservative movement caught my eye .  Two quick thoughts. 

First, it echoes almost exactly Michel Foucault's little known late turn to what he thought of as "liberalism" but which we might think of as "neo-liberalism" or even just conservativism.  Having self identified as a Maoist for at least a few weeks in '68, and strongly supported Francois Mitterand's Socialist Party in the 1970s, Foucault in the last year's of his life criticized Mitterand's socialist government for lacking "an art of government" (quoted in Mike Gane and Terry Johnson, Foucault's New Domains (Sage 1993).  In his writings and interviews of these years, Foucault suggested that liberalism was the political philosophy most faithful to the problem of governing as an art.

Second, it made me wonder what the Kristol of the 1960s (before he had himself abandoned liberalism) might have said about our current health care debate.  Is Obamacare a version of "social insurance" that encourages "larger loyalties" in the wonderful phrase from Kristol quoted by Brooks?  Or, is it the kind of "paternalism" that cannot take root in America's highly conservative (read individualist) culture?  One thing is for sure.  The modern Republican Party that Kristol did so much to stock with intellectual protein has largely abandoned serious reflection on the arts of government and Obama has at least expressly embraced precisely this kind of reflection (whether his product is worthy of that promise is open to question).

“Privileges and Immunities” in Antebellum America

This is part of a series of posts which explores the historical roots of the Privileges or Immunities Clause of the Fourteenth Amendment.  The full historical evidence is presented here.

 

One of the most common approaches to studying the history behind the Privileges or Immunities Clause has been to seek out various historical documents which included the words “privileges” or “immunities.”  This turns out to be a target rich environment, as early American political and legal literature is soaked in the rhetoric of rights, with terms like “rights,” “privileges,” “immunities,” “advantages,” “liberties” used interchangeably and in reference to everything from the privileges of individuals, groups, states, nations and corporations, to the privileges and immunities of the Christian Apostles.  Sometimes the references involved natural rights, other times conventional or common law rights, sometimes both.  In brief, simply looking for occurrences of the single terms “privileges” or “immunities” does not allow any particular conclusions regarding the meaning of the terms without knowing much more about the context of the particular occurrence and the particular rights-bearing group at issue.

 

When combined, however, the term “privileges and immunities” takes on a more focused historical meaning.  According to early American dictionaries, one of the common meanings of “privileges” involved the granting of a particular “public right.”  The combined phrase “privileges and immunities” closely tracked this definition, with antebellum legal and political sources commonly using the phrase in reference to a set of unique or specially conferred rights.  From the time of the Founding right up to and beyond the Civil War, one can find countless references to the peculiar “privileges and immunities” of kings, diplomatic emissaries, private societies, churches, artillery company, ecclesiastics, and corporations—including incorporated towns and municipalities.  This last group was so thoroughly associated with conferred “privileges and immunities” that antebellum dictionaries defined “disenfranchise” as meaning “to deprive cities, &c. of chartered privileges or immunities.” 

 

Antebellum legal documents, court cases, newspaper articles and treatises repeatedly placed adjectives like “special,” “peculiar,” “exclusive,” and particular” in front of the paired terms “privileges and immunities” in order to highlight the unique nature of such conferred rights.  These “peculiar” rights might include natural rights or any other variety and combination of conferred liberties.  In short, the paired terms did not refer to a particular defined set of rights, but rather indicated the existence of a unique set of liberties or advantages, the content of which differed depending on the context and the group at issue.

 

This idea of specially conferred privileges and immunities becomes even more particularized when looking at antebellum treatment of the phrase “privileges and immunities of citizens” such as that found in Article IV of the Constitution.  That particular clause, and the famous case of Corfield v. Coryell, will be the focus of my next post. 

Elyn Saks Wins MacArthur Genius Award

USC law professor Elyn Saks has just won a $500,000 MacArthur "Genius" Award (see here).  Saks writes about a variety of issues at the intersection of law and mental health, including her own struggles with schizophrenia and psychosis.  Here is a link to her recent book, The Center Cannot Hold: My Journey Through Madness.

I'm not aware of other law professors who have won this award, though people might want to list past recipients (assuming there are some) in the comments.

The Obama Administration's "A Strategy for American Innovation"

Dennis Crouch's Patently O blog draws to the Obama administration's "A Strategy for American Innovation:  Driving Toward Sustainable Growth and Quality Jobs."  Although Dennis focuses on the patent aspects of the document, the 26-page document is sweeping in its scope, making it an interesting read for almost everyone.

Specifically, the document touches on presidential policy on such diverse topics as investment, competition, education, infrastructure, employment, patent reform, net neutrality, national security, international trade, the environment, open governance, the collapse of the financial and housing sectors, and research.  Underlying this breadth is, perhaps, an unstated acknowledgement that many of these issues are related in fundamental ways.  

Additionally, the administration articulates the government’s role in fostering the direction of scientific research:

We propose to strike a balance by investing in the building blocks that only the government can provide, setting an open and competitive environment for businesses and individuals to experiment and grow, and by providing extra catalysts to jumpstart innovation in sectors of national importance. In this way, we will harness the inherent ingenuity of the American people and a dynamic private sector to generate innovations that help ensure the next expansion is more solid, broad-based, and beneficial than previous ones.

The strategy document outlines a number of areas for basic scientific research, including “the largest R&D increase in our nation’s history.” Some identified areas for funding include modernizing the electric grid, access to broadband, health care technology, and “Unleash[ing] a Clean Energy Revolution.”  Of course, the impact of these policies will not be able to be assessed for decades. Like another president who proposed ambitious scientific goals, the success of these plans will depend on whether future administrations will continue to support them. 

More on Catholic Social Teaching and Crisis

Further to my post last week on subsidiarity and the implications of Catholic Social Thought for responses to the economic crisis and the policy proposals of the new administration, I want to comment on a post by Rob Vischer (whose work I enjoy and admire) over at the most excellent Mirror of Justice, Rob reflects on the comments of Sioux City Bishop R. Walker Nickless:

[T]he Catholic Church does not teach that government should directly provide health care.  Unlike a prudential concern like national defense, for which government monopolization is objectively good – it both limits violence overall and prevents the obvious abuses to which private armies are susceptible – health care should not be subject to federal monopolization.  Preserving patient choice (through a flourishing private sector) is the only way to prevent a health care monopoly from denying care arbitrarily, as we learned from HMOs in the recent past.  While a government monopoly would not be motivated by profit, it would be motivated by such bureaucratic standards as quotas and defined “best procedures,” which are equally beyond the influence of most citizens.  The proper role of the government is to regulate the private sector, in order to foster healthy competition and to curtail abuses.  Therefore any legislation that undermines the viability of the private sector is suspect.

Rob asks whether Catholic Social Thought actually claims that "a flourishing private sector" is the predominant concern when it comes to a society's provision of health care? "

If the question is put in that way, the answer is "no.' It is not the "predominant concern" although, in fairness to Bishop Nickless, I am not sure that he claimed it to be. He did say that it was the only way to prevent a "top down" rationing of care and CST does suggest that we be skeptical of that type of decision making. This, I think, is what may cause him to say that any bill that undermines the viability of the private sector is suspect.

As I suggested last week, subsidiarity is premised, at least in part, on the subjectivity of individuals and the associations that they form. The state is to empower and facilitate - rather than stifle - human agency and creativity. While this is cannot be read as an uncritical endorsement of markets or a rejection of the need for state regulation and even intervention in their operation (there is much criticism of unbridled markets in CST and robust support for assistance to the poor and to the weak), flourishing private markets are a way in which human creativity is expressed. There are, it seems to me, an almost infinite numbers of ways to control costs and to socialize (or insure) the cost of care. Choosing among them will almost certainly affect incentives to innovate. The notions that the state can choose the "best" form of insurance (mandating coverages and setting limits) or specify the conditions for optimal innovation seem rather dubious and, beyond that, restrict the subjectivity that is at the heart of subsidiarity (and, I would argue, solidarity).

This doesn't mean that the Obama health care plan (whatever it turns out to be) is inconsistent with CST or that current arrangements are not, by its lights, in need of reform. Large numbers of uninsured rests very uneasily with the premises of the Church's social encyclicals. But I think it does suggest why a "flourishing private market" is, if not the predominant concern, an important one.

Of course, Rob is right that the application of CST by Bishop Nickless and others is likely to reflect their own cultural or political views. It can't be otherwise; the objective is to allow those insights derived from CST to guide those views. And, I think, they can be guided in the direction of an emphasis on markets.

Constitutional Conventions and the "C2020 Project"

My contribution to the C2020 project's blog is now available at the dedicated blog for the book and at Balkinization.  If you are in New Haven on October 3, you can hear the talk upon which the blog post is based.  You can also hear my co-bloggers Paul and Rick: look out for their posts in due course. 

Obama's Chinese Tire Decision and the Importance of Not Being Earnest About Campaign Promises

I read with a sinking heart Gregory Bowman's post about the Obama Administration's September 11th decision to impose section 421 "safeguard" tariffs on Chinese tire imports. Gregory Bowman thought that the decision indicated that the Obama Administration has an interest in "regulation that achieves outcomes that are perceived of as 'fair' from some normative perspective other than efficiency."

This characterization of the decision is, I think, naive. In my own view, the tire decision is merely a concession to raw political realities rather than fairness: The United Steel Workers wanted some sort of restriction on trade, Obama had promised such restrictions during the Presidential campaign, and so he felt he had to deliver on these campaign promises. This leads to my vexed question: Was I too cynical in thinking that Obama was insincere when he indulged in nationalistic demagoguery on trade during the Presidential race? The terrible truth might be that Obama actually meant what he said: He now might really intend to wreck the international trading system during a recession in order to keep his campaign promises to the unions. And here I was thinking -- indeed, praying -- that he was a cynical Chicago pol who would trim his sails once the election was won. Darn: Never have I been so convinced of the Importance of Not Being Earnest about campaign promises

Others have already eviscerated the tire decision's policy-making merits. (See, for instance, the Economist's leader). (Has any neutral academic observer actually praised the decision?) After the jump, however, I will highlight three aspects of the decision that suggest that a regard "fairness" cannot be regarded as either its motivation or likely effect: (A) The decision was dishonestly defended by the Administration as a remedy for illegal actions by China; (B) The decision was a breach of the United States’ specific promises not to impose new restrictions on trade in goods at last November’s and April’s G-20 Conference; and (C) the decision will probably not save any jobs.

1. The Administration dishonestly defended the decision as retaliation for unfair trade practices. Initially, the Administration described its action as an effort to provide a remedy for Chinese trade violations. According to the Wall Street Journal’s story, “administration officials said the president couldn't ignore findings that they said were violations of China's obligations under the rules of the World Trade Organization."

This White House statement was an egregious misrepresentation. The section 421 safeguard is not predicated on any violation of WTO rules: Instead, the “safeguard” is a special remedy applicable only to China that applies whenever imports from China “cause or threaten to cause market disruption to the domestic producers of like or directly competitive products,” even if that disruption is produced by perfectly legal trading practices. The Administration’s implicit suggestion to the contrary is, at best, a slippery prevarication.

2. The Administration’s decision broke this country’s promise to the world. At the November 2008 G-20 Conference, the United States agreed to a joint communiqué that “underscore[d]the critical importance of rejecting protectionism and not turning inward in times of financial uncertainty.” The leaders specifically agreed that, [i]n this regard, within the next 12 months, we will refrain from raising new barriers to investment or to trade in goods and services, imposing new export restrictions, or implementing World Trade Organization (WTO) inconsistent measures to stimulate exports.” The United States signed on to an identical statement at the April 2nd G-20 meeting
(paragraph 22).

The section 421 sanction is undoubtedly “a new barrier[] to … trade in goods and services” and is thus a flagrant violation of our nation’s word twice given. We face another G-20 conference in a few weeks: What credibility will we bring to the table after these breaches of our word?

3. In return for breaking its promises and lying about its reasons, the Administration either did not save any jobs or saved such jobs at an absurdly exorbitant cost to the consumer.

Jobs in low-end tire production are offset by the jobs in tire retailing. If an increase in low-end tire tariffs causes the price of Chinese tires to rise enough to affect the buying patterns of low-end consumers away from Chinese tires, then marginal consumers may simply delay tire purchases rather than switch to more expensive American-made brands, putting the tire retailers’ jobs at risk. Of course, it is likely that the lost Chinese imports will instead be replaced by cheap tires imported from Brazil. This is, at least, the claim of Obama’s own Trade Representative, Ron Kirk. In either case, no jobs will be saved by this action.

On the off-chance that some low-end tire makers refrain from laying off their workers as a result of this tariff (an unlikely result, given that tire makers mostly opposed this tariff), the cost to the consumer will be exorbitant. The ITC’s own
estimate is that the decision will impose“a first-year impact on consumers of $459 million to $534 million.” (page 37, note 209). Assuming that the tariff will bring back every single one of the 5,000 jobs that have been allegedly lost as a result of cheap Chinese tires and that the tariff will not sacrifice any other retail jobs – i.e., assuming that demand for low-end tires is price-inelastic beyond the wildest dreams of the tire makers -- this amounts to paying $100,000 per job.

Would it not make more sense to take the recommendation of the dissenting ITC commissioners, Daniel R. Pearson and Deanna Tanner Okun? They sensibly stated that “the best remedy would be to provide economic adjustment assistance to tire workers who lose their jobs, and that implementing a trade restriction would be far more likely to cause market disruption than to alleviate it.”

Pearson's and Okun's statement highlight a question that is begged by Gregory Bowman's post: The issue raised by the Obama Administration's tire decision is not whether to regulate the market but how: Choosing transition relief over tariffs protects fairness for the losers in international trade, but it does not penalize working-class consumers, Chinese tire workers, or tire retailers, and it does not violate our international commitments.

Transition relief, however, would not satisfy the United Steelworkers, and Obama had promises to keep. It is that political reality, I submit, and not any commitment to fairness over market efficiency, that explains the Obama Administration's decision.

Workplace Violence? Making Sense of Annie Le's Murder

Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn't think the murder of Annie Le had anything to do with either New Haven or Yale?  In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write:

Chief James Lewis of the New Haven police would not speak about a possible motive, but said, “It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country.”

In a statement,Richard C. Levin, the Yale president, said the supervisor “reports that nothing in the history of his employment at the university gave an indication that his involvement in such a crime might be possible.

Urban crime?  Last time I checked New Haven counted as a city (maybe not a major city).  Does this just mean that the accused, Raymond Clark, happens to be white?  He was after all otherwise a local.  University crime? I'm not sure what that is meant to include except perhaps political violence like the 1969 bombing of a research lab in Wisconsin, or more recent violence by animal rights militants.  Domestic crime?  Ok, there is no hint that Annie Le had any kind of relationship with Raymond Clark.  But where does the Chief get off hinting darkly that there is a growing problem of "workplace" crime?

It is true that people spend a lot of time at work, so its not surprising that they are sometimes victims of crime there.  That is particularly true of domestic violence.  When partners separate, work may be the easiest place for the abusive partner to arrange a confrontation.  Many workplaces, like retail stores, are targets for robberies.  Here's a copy [Download Workplace Violence] of the federal government's last published report on workplace violence.  Published in 2001 and reviewing data from 1993 through 1999, the report shows violence in the workplace going down along with violence generally in America in those years.  In 1999 there were a little over 600 workplace homicides out of more than 15 thousand nationwide. Perhaps there is a new trend emerging in more recent data that the Chief is aware of.  Otherwise it is irresponsible to suggest that workplaces are a place that would benefit from even more fear of crime than Americans generally already feel.

As for the university, like many employers they have already invested in crime background checks, and apparently closed circuit video taping around its animal labs (probably to combat animal rights activists).  College or university teachers already enjoy the lowest level of  occupational violence of any studied group (as of 2001) at only 2 incidents per 1,000 teachers. 

I'm no expert on criminal motivation.  She was a petite and beautiful young woman.  He was a physically powerful and apparently heterosexual young man.  We may never know more than that.  Let us accept grief at a promising life brutally ended, and some gratitude at the prospect of legal justice thanks to what appears to have been an effective investigation (although some questions about crime scene management have emerged). Let us not seek to invest even more of our life-world with the apparatus of crime control in the pursuit of a level of perfect security that does not exist.

Wishing all of you a happy new year (on the Jewish calendar, 5770)

There Really IS a Public Domain

The other day, I was researching several sources including Henri Poincaré, The Foundations of Science.  Although this book, originally published in 1913, is part of the public domain, no copies were readily available in a nearby library.  I anticipated pulling out a credit card to get an inexpensive, used copy from Alibris or half.com for my bookshelves.

After running a Google book search, I found a familiar list of links to dealers along the left side of the page, where the book might be purchased.  This time, and for the first time in my experience, I found an additional link which allowed me to download the entire book in PDF format.  All 578 pages, just as they would appear in a paper form.  Right there, right now.

As most professors already know, Google Books' digitization project was the subject of copyright infringement allegations, and is currently in the process of settlement. This has been comprehensively documented on The Laboratorium by James Grimmelmann.  As James Boyle has observed,* the settlement may not be perfect and some of these problems may lie in the administration of the copyright system more generally. 

Nonetheless, and without attempting to minimize the importance of that debate, I have to pause and admit that immediate and free access to Poincaré was nothing short of miraculous. 

*Free registration may be required to see Boyle's article.

New Year's Thoughts

The following comes from John Q. Barrett's (St. Johns) excellent Jackson List, dedicated to the work of Justice (and Nuremberg Prosecutor) Robert Jackson (Barrett is writing a biography of Jackson). I found it a very affecting story.

To all our Prawfs readers and writers, celebrating, Happy New Year.

In the Hebrew year 5705, Erev Rosh Hashanah, the eve of the Jewish New Year, came at sundown on the 29th day of the month of Elul. On the Gregorian calendar, it was Friday evening, September 7, 1945.

In Allied-occupied former Germany that year, four months after Nazi Germany’s unconditional surrender, few synagogues were standing and functional, of course. In the Bavarian city of Fürth, however, the space that once had been the synagogue had survived. It was a ground floor room, built to hold 100 or so worshippers, in a big, four-story stone building that once had been a Jewish orphanage. During the Nazi period, the synagogue and orphanage, like virtually every Jewish space, facility and business in Germany, were closed. Other Germans used the upper floor rooms and turned the former synagogue space into a warehouse.

In late summer 1945, about two weeks before Rosh Hashanah, the United States Army, the occupying power in the region, returned this building to the Jews of Fürth. They—survivors who had returned—numbered only 30 or 40, out of 3,000 Jews who had lived in Fürth before the Nazis and the war. These survivors cleaned up and reconsecrated the nearby Jewish cemetery. (Allegedly, some knowledgeable persons dug up there the congregation’s Torah scrolls, which had been buried in the cemetery and thus saved during the war. Others say today that the Torahs of Fürth were saved in hiding places beneath the synagogue’s floor.) The survivors also cleaned and reconsecrated their synagogue, bringing it back to life by relighting the eternal candle (nair tamid), rehanging embroidered drapes on the holy ark (oron chodesh), and restoring other fixtures.

On that Erev Rosh Hashanah, services in the Fürth synagogue were overfilled. The worshippers included returned congregants, American soldiers and “displaced persons” who were living nearby.

Fürth is located just a few miles from Nürnberg. In that same month of September 1945, work crews, including German prisoners of war in U.S. Army custody, worked at the courthouse, the Palace of Justice, located on Fürtherstrasse between the two cities. They prepared that facility for the International Military Tribunal proceedings—the Nuremberg trial of the principal Nazi war criminals—that would begin that November in Courtroom 600.

For Jews on Justice Jackson’s United States prosecutorial team during 5706, the Fürth synagogue became their congregation.

Happy Constitution Day!

As Paul already mentioned, Yale is hosting a conference on "The Constitution in 2020."  As it happens, yesterday was "Constitution Day",, and the 222nd birthday of the Constitution of 1787.  Give it a read, if you haven't recently:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. . . .

Then there's this, somewhat sobering, thought, from one Alexis de Tocqueville:  "In examining the Constitution of the United States, which is the most perfect constitution that ever existed, one is startled at the variety of information and the amount of discernment that it presupposes in the people whom it is meant to govern. . . ."

Blogging on The Constitution in 2020

Yale Law School is holding a conference next month to discuss the recent publication of a book spearheaded by Yale professors, The Constitution in 2020.  Leading up to the conference, the organizers have set up a blog on which the conference participants (including at least three of the permanent Prawfsblawgers) will be commenting on the book.  First up: David Law, who argues that constitutional theory is often over-romanticized and focused on narrow and insular matters, and instead should "concern[ ] itself with questions of institutional design, and on ascertaining which interests and outcomes are privileged by what kinds of rules, practices, and structures."  These will not, I predict confidently, be the last words on institutional design on the Constitution in 2020 blog!  

I hope folks will read and comment on the posts that appear in the coming couple of weeks on the Constitution in 2020 blog.  By way of preview, one of my posts will talk about why, if the book is to amount to more than just a brief for progressive politics, constitutional and otherwise, it should have been titled The Constitution in 2030.  The book has been reasonably criticized, in my view, but there is some merit in trying to imagine how we might do constitutional law in the relatively near future, and I hope the blog will spark some discussion of this question.

Trade Remedies in North America

Following up on my previous post on the U.S. safeguard action regarding Chinese tires, I would like to announce a forthcoming book, entitled Trade Remedies in North America, which will be published by Kluwer Law International and which I am co-authoring with Nick Covelli, David Gantz, and Ihn Ho Uhm.  Nick is Counsel for the Government of Canada; David (as many of you know) is a chaired professor, Director of the International Trade Law Program and Associate Director of the National Law Center for Inter-American Free Trade at the University of Arizona James E. Rogers College of Law; and Ihn is a former senior economist at the Canadian International Trade Tribunal (the Canadian counterpart to the U.S. International Trade Commission).  I myself am founding director of my school's International and Comparative Law Center, although I am currently visiting away for the academic year at West Virginia University College of Law.  The book is slated for publication in early 2010.

The purpose of the book is to provide a comprehensive and comparative treatment of the trade remedy laws (antidumping, countervailing duty, and safeguards laws) of Canada, Mexico and the United States at the bilateral, NAFTA and WTO levels, and of the economic and political underpinnings of these laws.  Also included will be case studies of recent trade remedy actions, namely, Softwood Lumber IV,  U.S. safeguards on Cement from Mexico, and Canadian steel safeguards.  We believe the book is well-positioned to fill a gap in the market, due to its comparative focus and scope of coverage.  If anyone would like more information concerning the book, please let me know.

The Impact of Failed Lethal Injections Upon Murder Victims' Family Members

Most of you have probably heard by now about Ohio's attempted execution of Romell Broom on Tuesday (articles can be found here and here), where Broom received a one-week reprieve from Gov. Ted Strickland after the execution team tried unsuccessfully for more than two hours to locate a vein.  Similar problems occurred with the executions of Joseph Clark in 2006 (delayed for 90 minutes) and Christopher Newton in 2007 (delayed for almost 2 hours).  Such difficulties prompted Ohio to amend its lethal injection protocol, in part to give execution teams as much time as needed to insert the IV.  Broom's execution is now slated for Sept. 22nd, but there seems to be an informal consensus that it will not proceed due to legal challenges (see Doug Berman's opinion on the Sentencing Law and Policy Blog). 

Under Ohio's lethal injection procedure, the IV is inserted in the prisoner's veins before the prisoner is moved to the lethal injection chamber, but these preparations are visible to execution witnesses--including victims' family members and members of the press--on closed circuit monitors mounted in the witnessing room.  Several family members of Broom's victim, 14-year-old Tryna Middleton, including her mother, father and aunt, witnessed the execution team's difficulty with finding a vein, and observed Broom's reactions.  At one point, Broom covered his face with his hands and cried; at another, he grimaced while the execution team tried to site the IV in a vein around his ankles.

In my research on the impact of Timothy McVeigh's capital trial and execution upon victims' family members and survivors of the Oklahoma City bombing (for related articles, see here, here, and here), my participants frequently voiced frustration that McVeigh's execution had been too peaceful, and that he had not appeared to suffer at all.  That also appears to be a fairly common reaction among family members who give statements to the press after witnessing a lethal injection.  However, Middleton's family members experienced something quite different than the customary sanitized sight of an apparently peaceful death by lethal injection.  I have been wondering how those victims' family members who believe that they want to see the offender suffer would regard breakdowns in the execution process that could cause visible suffering to him, such as prolonged attempts to find veins.  Is this the type of suffering that some family members would wish to be inflicted on an offender?  Do family members find it difficult or in bad taste to witness such attempts?  Do family members perceive that the sight of suffering is worth the delay in executing the offender?  My guess is that, if Broom's execution is postponed beyond September 22nd, that the answer to that question for Middleton's family members will be a resounding "no."     

A good crisis and an opportunity: The lessons of Catholic Social Teaching

In conjunction with some papers that I am completing, I have been thinking a lot about the Catholic notion of subsidiarity and what how it may inform our thinking about proposed expansions of the state in response to various "crises," e.g., the financial seizure, global warming and perceived flaws in the delivery of health care.

Subsidiarity tells us that a "higher order" of authority should not do what individuals or a "lesser order" can do for themselves. Thus, the argument might proceed, the federal government should not do what a state goverment could do. Government should not do what voluntary mediating institutions can do.

Conservatives often advance subsidiarity as a justification for limited government and it often is. But it's not that simple either.

The reasons are that subsidiarity is not simply a jurisdictional principle but reflects a judgment about - or at least emphasis of a particular perspective on - anthropology. It rests on a set of assumptions about the subjectivity of human persons. It is not only that granting freedom to individuals and the voluntary associations that they form will release human creativity, but that the release of creativity is itself an instrinsic good. True development of the human person requires his or her participation.

This suggests a limit on subsidiarity as a jurisdictional principle strictly defining the role of the state and the spheres of higher and lower levels of government. Catholic social thought also emphasizes solidarity. People are connected to one another and each should be committed to the common good of all. It emphasizes the human dignity of all persons and the duty of charity towards all.Every  individual ought to be able to exercise his or her subjectivity and government (or even larger private institutions) are not the only obstacle.

Sometimes intervention of a higher order may be required to make the exercise of subjectivity possible. This may threaten to mire us in indeterminancy. What do we do when the irresistable force of subsidiarity meets the immovable object of solidarity? 

I think that we can do many things. But it seems to me that some guidance is provided by the notion that policy must make space for human creativity and freedom. Although not every social outcome produced by human freedom is acceptable, it is not for the state to impose its view of the best of all possible worlds. Once it has done what it can (and that may be far from a guarantee) to ensure the conditions for human flourishing, it ought to step back and allow human beings to flourish.

I don't know that this resolves many of the political disputes we have in the US, but perhaps it is a useful way to think about them. 

Cross posted at the Marquette University Law School Faculty Blog

Expanding the Political Battleground ?

There seems to be a growing tactic on the part of proponents of same sex marriage (or civil unions) to seek to "out" opponents.* Efforts to identify supporters of Prop 8 in California received a lot of attention and a similar effort is being made in Washington through two websites. Although the effort in California focuses on donors to the "yes" campaign, the efforts in Washington seek to publicize the indentity of those who signed petitions to place a referendum to "reject" the state's newly enacted domestic partnership law on the ballot.

A federal court has issued a preliminary injunction against disclosure of the names. This is, of course, a different issue than the disclosure of the identity of donors but two issues suggest themselves.

The first is whether opponents of same sex marriage could establish that their associational rights are jeopardized by disclosure. Could they show that they would be subject to hostility and reprisals? Here in Wisconsin, a young lawyer who was representing a pro bono client in support of the state's recent consitutional amendment (now being challenged as improperly enacted) was met with an organized campaign of phone calls to her firm and had to drop the client.

While that might seem to support a claim for anonymity (if it could be shown that donors would face the same thing), it is a bit different than the prototypical  NAACP v. Patterson situation. In the paradigmatic case, a minority faces pressure from the those holding a majority view. Here the claim would be that pressure is being put on persons holding either a majority view or a view held by a rather large minority (in Wisconsin, the amendment in question garnered 59% of the vote and, of course, Prop 8 won; although many polls show at least plurality support for domestic partnerships). Should that matter? Should the state compel disclosure of the identity of speakers who will face economic pressure? The effectiveness of such pressure might not turn on whether a majority or a minority holds the disfavored position since, for most economic actors, alienation of a nontrivial portion of the customer base is enough to compel silence - particularly when the speech is on the part of an employee whose employer has been pressured.

I am torn on this. My tendency is to see disclosure as a good thing, but I am troubled by politicization of the commercial and neighborly relationships and what can only be seen as an attempt to get one's political opponents to stand down. While I understand there is an almost ontological difference of opinion here and that proponents of same sex marriage feel a personal insult whether or not that is what opponents intend, it seems to me to be a form of political "total war."

The other issue concerns the value of this as a political strategy. If it appears to be an attempt to ostracize persons holding views that our shared by a majority (in the case of same sex marriage) and what is at least a very substantial minority (in the case of domestic partnerships). The idea, I suppose, is to define opposition as a bias against homosexuality and to define that as a form of prejudice on a par with animus against racial or ethnic minorities.

Might that backfire? Public sentiment on these issues seems more nuanced (or, some would say, contradictory) than the debate among the intellegentsia. Substantial numbers of people seem to, for example, oppose discrimination against gays and lesbians while also opposing same sex marriage. Even persons who have abandoned the prescriptions on homosexual relations traditionally held by the Abrahamic faiths may not be ready to see them as a form of "hate." If that's so, does it permit opponents to change the terms of the debate in ways that are not favorable to proponents' long term objectives?

* By way of full disclosure, I oppose same sex marriage on wholly secular grounds unrelated to any moral claim about homosexualitym, although I am not certain that there are not certain circumstances under which I would support it. I do oppose discrimination against gays and lesbians in areas such as employment and housing. I am representing a client in a challenge to Wisconsin's newly enacted domestic partnership registry which they feel too closely mimics marriage. I will not discuss that case or my client in the blogs.

Prognostication About a Judicial Ethics Complaint

Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Wisconsin Supreme Court Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there.

There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides “[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.” This is the proscription that the Judicial Commission says was violated by the Mitchell ad.

But there is a second sentence. It states that “[a] candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.”

The difference between “shall” and “should” is significant. The preamble to the Judicial Code states that “[t]he use of “should” or “should not” in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.” (emphasis supplied)

Everyone agrees that the ad contained a series of statements which, read in isolation, are true. Almost everyone agrees that this same series of statements, when read together, conveys or implies a message which is, in one or more respects, false. The ad says “Butler found a loophole. Mitchell went on to molest another child.” Someone hearing the ad would likely conclude that it means “Butler found a loophole. As a result, Mitchell went free. And then Mitchell offended again.”

But there is a potential problem. Gableman has free speech rights and it is not an easy question to define the circumstances under which the state can punish speech that it determines to be false. Indeed, some would argue – and Gableman does – that it can only punish speech that is defamatory subject to certain additional constitutionally required qualifications. Because 60.06(3)(c) is not so limited, it is facially overbroad and should be declared unconstitutional.

I don’t see that happening.

But the other day, while discussing the case with a reporter for the National Law Journal, I concluded that this might.

The panel may construe 60.06(3)(c) narrowly to require a literally false statement in much the same way that prosecution for perjury generally requires such a statement. Or it may conclude that it is unconstitutional if applied to statements that are literally true but claimed to convey or imply a false message.

Why would the panel do this? Don’t I think – shouldn’t they think – that the ad is false? I do and they probably do too, but I am – and, by the questions put at oral argument, they are – concerned about the state taking on the responsibility to determine whether political speech – something which is at the core of first amendment protection – would be understood to convey a false message.

This is particularly so in the context of campaign ads that are highly truncated messages (often no more than thirty seconds long) that almost must oversimplify the issues that are discussed.

For example, during the Presidential election, the Obama campaign ran some ads that claimed John McCain would “tax your health care benefits.” That was literally true. It is not unreasonable to further claim that it would be understood by most people to mean that they would have to pay new taxes under McCain’s plan.

But that understanding would be false. McCain was also proposed providing a tax credit that would offset any new taxes for almost everyone. The Obama campaign read some ads that mentioned this credit but others that did not. Still others, while mentioning the tax credit, also referred to a middle tax class hike and asked whether “you” could afford it? Should the first amendment permit the sanctions for such ads? My initial reaction is “no.”

This concern is magnified here because finding a violation of the first sentence of 60.06(3)(c) raises the question of discipline and, while that discipline might be limited to a reprimand or a fine, other potential sanctions – suspension or removal – raise uncomfortable issues about disciplinary proceedings interfering with the result of an election. They aren’t going to happen.

But what about the second sentence of 60.06(3)(c)? It is not what the Judicial Commission relies upon, but might the panel nevertheless observe that the Gableman ad violates this aspirational rule. Maybe it is true, but it is certainly misleading. There cannot be a sanction for violating it, but there certainly can be criticism. Would official disapproval of political speech violate the First Amendment? I think not and it would avoid difficult questions about undermining the outcome of an election. (Although you might make the same argument about a reprimand, such an official disciplinary act may be different, particularly in a system of progressive discipline.)

Cross posted at the Marquette University Law School Faculty Blog and Shark and Shepherd

Fractional Parents

Here is a picture of a very modern family: Alan and Brenda would like to raise a child but both are incapable of natural reproduction.  So they find Carl to provide sperm, Deena to provide an egg, and Ellen to carry the fertilized egg in her uterus.  Nine months later, Alan and Brenda are the child’s nurturing parents, Carl and Deena are the biological parents, and Ellen is the birth mother.  Five parents, one child.

While this parenting pattern is unusual, we have made children this way for decades.  Parenting may soon get even more complicated.  Researchers from the Oregon National Primate Research Center recently created several macaque monkeys each of which has three biological parents. 

Most of our genetic code is determined by the chromosomes in a father’s sperm and a mother’s egg.  We also have a small amount of DNA that comes not from chromosomes but from the mitochondria in our mother’s egg.  The recently-created macaques received chromosomal DNA from one mother and mitochondrial DNA from another mother.  The macaques were born with DNA from three parents in total.

The research has been heralded as a potential method for mothers with mitochondrial genetic disorders to have biological children.  If the method works in humans, a woman with genetically-diseased mitochondrial DNA could find a mitochondrial-DNA donor.  At least in theory (there'd be no practical reason for doing it this way), we could add one more parent to the modern family described above.  Six parents, one child. 

The implications of the research go further still.  For if we get good enough at engineering germline DNA, we could use genetic contributions from lots of people to make children who are free from genetic diseases or have particular attributes.  Each parent would provide just a small part of the child's genetic code.  One hundred parents, one child. 

In a variety of contexts, courts give special weight to the interests of biological parents.  We have enough trouble deciding custody cases in traditional families, and the issues would obviously get more complicated when children have more than two biological parents.  For example, mitochondrial DNA is passed along from mother to child and stays relatively unchanged each generation.  The information in your mitochondrial DNA is as much your grandmother’s as your mother’s.  If biological parenthood is determined by the information in our genetic code, the difference between parents and grandparents starts to evaporate.

If we project our technological abilities even further, we will eventually be able to insert artificially-crafted strands of DNA into a human germline.  Just as a child can be nurtured by any number of people, a child can, in principle, be biologically parented by any number of people.  Once we have the pertinent information that we want to put in a child's DNA, we will no longer need a physical specimen of parents'  DNA at all.  No parents, one child. 

While we are used to living in a world with difficult custody battles, we at least thought we knew what it meant to be a biological parent.  In the not-too-distant future, even that category will grow fuzzy.  Parenthood, in all its forms, is increasingly just a matter of degree. 

front-page news

With my habit of glancing at the news online in the am, I didn't pick up on why exactly District Judge Jed Rakoff's rejection of the SEC-Bank of America settlement appeared on the front page of the New York Times, bumping little ol' President Obama's speech to Wall Street to the business pages. 

Until I looked at the print version last night. And there on the front page of the New York Times, the article said that Judge Rakoff's ruling "invoked justice and morality."

I get it now. A judge invoking justice and morality. That is front-page news. 

Coaches teaching civ pro

I still am trying to get more legally oriented reports and documents, but it appears that the breach-of-contract dispute between the University of Kentucky and former men's basketball coach Billy Gillespie is going to turn into another object lesson in civ pro.

In July, Gillespie sued the University of Kentucky Athletics Association in federal court in Texas (where, presumably, Gillespie moved after he was fired). The Association has moved to dismiss for lack of personal jurisdiction, as well as (I would guess) improper venue or to transfer venue to the District of Kentucky.

Meanwhile, the University then sued Gillespie in state court in Kentucky and Gillespie has removed the case to federal district court in Kentucky, apparently on diversity grounds. This sets us up for a replay of the jurisdictional dispute between West Virginia University and its former football coach, Rich Rodriguez. WVU sued in state court to collect on a liquidated damages clause and Rodriguez removed; WVU moved to remand, arguing that as a state university, it was an arm of the State of West Virginia and not a citizen of the State for purposes of diversity jurisdiction in federal district court. The federal court agreed and remanded.

This same sequence could be repeated here. The outcome will depend on whether the University or the UK Athletics Association (an adjunct to the University established by the state to govern the university's intercollegiate athletics) is the plaintiff and whether either or both are deemed arms of the state.

Jonathan Simon Joins Prawfs

I'm thrilled to announce that Jonathan Simon, who's been a regular guest blogger with us in the past, and who has been with us this past summer, will be joining Prawfs for the balance of the academic year.  Welcome, Jonathan! 

For those of you wondering: Jonathan is Associate Dean for Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley; Faculty Co-Director, Berkeley Center for Criminal Justice; and author of Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007).

Splitting Feathers

In 2002, Samuel Wilgus, a non-Indian, was prosecuted for illegal possession of eagle feathers under the Migratory Bird Treaty Act and the Eagle Act.  Wilgus received training in the Native American Church and was given the feathers as a gift. Eagle feathers are an important part of many native religions, but currently, only American Indians have the right to use and posses eagle feathers. This poses a problem for non-native followers of Indian religions.  Should someone like Wilgus have the same right to posses eagle parts as Indian practitioners?

The problem with increasing the number of people who may posses eagle parts is that there are already more requests than available parts.  American Indians who want eagle parts must place requests with the National Eagle Repository and the Repository's waiting list is already extensive.  Currently, there are over 6000 Indians on the waiting list. Requests for feathers can take up to half a year and requests for whole eagles can be as long as four years.  Opening the list up to non-Indians could effectively bar many Indians from ever receiving eagle parts

At the same time however, criminalizing a person’s practice of their religion based on race is obviously concerning. Whether such regulations are permissible depends on whether they serve a compelling governmental interest and use the least restrictive means possible to further that interest. What this compelling interest is however, is the question that is currently being appealed to the 10th circuit.

According to the Utah district court, the compelling interest served by the regulations is the fostering of native religions generally.  Consequently, the district court found that limiting eagle parts to Indians was not narrowly tailored to serve this interest.  On appeal the government argues that the district court erred in its definition of the compelling interest.  According to the government, the compelling interest is the accommodation of federally recognized tribes and the protection of Indian culture.

It seems to me that the government’s characterization of the interest is the correct one.  It doesn’t strike me as right that the protection of Indian religions can be used as the basis for a decision that would prevent Indian people from being able to practice their religion.  Such catch 22s are all too frequent in the field of Indian law, hopefully this will not become another example.

Judge Rakoff and Judicial Meddling

Judge Jed Rakoff (SDNY) rejected the settlement proposed by the SEC and the Bank of America for allegations that the Bank of America lied to shareholders during its merger with Merrill Lynch.  Specifically, the SEC claimed that Bank of America falsely told shareholders that Merrill would not be permitted to pay its executives year-end bonuses when, in fact, BoA had given Merrill approval to pay up to $5.8 billion in bonuses.  Here is the key graf:

In other words, the parties were proposing that the management of Bank of America -- having allegedly hidden from the Bank's shareholders that as much as $5.8 billion of their money would be given as bonuses to the executives of Merrill who had driven the company nearly into bankruptcy -- would now settle the legal consequences of their lying by paying the S.E.C. $33 million more of their shareholders' money.

This could be characterized as a Howard Beale moment for Judge Rakoff -- a cri de couer against the system.  After all, his criticism could be leveled against every SEC settlement in which a corporation (opposed to individuals) pays the fine.  Seasoned observer David Zaring reacts with outrage of his own against officious judicial meddling.  But instead of viewing this as grandstanding or obstreperousness, I think it's a useful opportunity to reconsider the basics of securities regulation.  After all, it does seem somewhat absurd to have the "victims of the violation pay an additional penalty for their own victimization."  Perhaps Judge Rakoff's opinion will prompt a reexamination of this basic facet of the system.

Judge Rakoff's opinion is a brief but wide-ranging discussion of executive compensation, corporate wrongdoing, the TARP bailout (see n.1), and the role of the SEC.  Judge Rakoff wants individual accountability, and he thinks the settlement is an effort to evade it.  It remains to be seen whether this is merely an interesting blip or a catalyst for further action.  But I hope it's more than merely some extra work for the SEC.

What the Chinese Tire Safeguards Suggest about the Obama Administration's Trade Policies

On Friday, September 11, 2009, the Obama administration made an announcement that not only was a first for trade remedy law but also has become a fairly visible news media story:  for the first time, the United States will impose “market disruption” safeguards on imports from China.  The goods in question are passenger vehicle and light truck pneumatic tires.  The Obama administration's proclamation can be viewed here; New York Times and Wall Street Journal coverage can be linked to here and here. The result is that there will be increased duties on U.S. imports of these Chinese tires for three years.  I want to discuss some of the broader policy aspects and implications of this safeguard action, but in order to do so I will first give a brief synopsis of the law in question.

U.S. safeguards laws are intended to temporarily protect adversely affected U.S. industries from the dislocating effects of rapid increases in imports.  U.S. "global safeguards" are imposed against imports from all countries and are generally consistent with U.S. obligations under Article XIX of the General Agreement on Tariffs and Trade (GATT) and the WTO Safeguards Agreement.  U.S. country-specific or regional safeguard provisions also in place.  Most are pursuant to regional trade agreements, but the safeguard action in question here is being taken pursuant to section 421 of the Trade Act of 1974 (19 U.S.C. s. 2451), which permits safeguard actions against imports from China that are a "significant cause" of "material injury" or threat thereof to a U.S. industry.  Section 421 was enacted in 2000 in anticipation of China's accession to the WTO, and its protections were agreed to by China as part of its WTO accession package.  U.S. safeguard actions are imposed (or not imposed) at the president's discretion upon an affirmative determination of injury by the U.S. International Trade Commission, which means that safeguards are essentially a pure trade policy instrument, as opposed to antidumping and countervailing duty actions, which are intended to be corrective in nature.

All of this means that while there is general uproar in China about this particular safeguard action--China is in fact threatening to impose new import tariffs on U.S. chicken meat and automotive products in response--this safeguard action against Chinese tires is lawful both from a U.S. law and WTO perspective.  What is more interesting to consider, therefore, is what this safeguard action suggests about current and future U.S. trade policy.

First, this is a fairly rare example of the type of “free but fair trade” action mentioned by President Obama during the 2008 campaign. The Obama administration’s trade actions have not matched the Obama campaign’s trade rhetoric--there has no move to renegotiate NAFTA or its side agreements, for example. I also doubt there will be many, if any, additional China-specific safeguards imposed in the near future: a healthy trade relationship between the U.S. and China is simply too important to both countries.

Second, and for the same reason, I doubt the action will lead to a large-scale (or even mid-scale) trade war. There may be retaliatory tariffs imposed by China, but matters will not escalate too far beyond that.

Third, and perhaps most interestingly, I believe this safeguard action can and should be thought of as an example of the Obama administration’s greater interest (as compared to the prior administration's) in regulating markets to achieve particular outcomes thought by the administration to be more equitable than the market might otherwise achieve. Much attention, for example, has been paid to the Obama administration’s efforts to manage the financial crisis and reform health care--efforts, in other words, to regulate those important markets and achieve different outcomes. The imposition of U.S. safeguards on tire imports from China also regulates a U.S. market (and a large one at that) through the use of traditional (and overtly protectionist) tariffs. The desired outcome is to soften the blow of imports on the affected industry. Certainly it is true that this decision is also a nod to organized labor—and I would be remiss if I did not acknowledge that the tire safeguard investigation was in fact requested by the United Steelworkers. Still, the decision is consistent with a general increase in greater market regulation, and specifically in regulation that achieves outcomes that are perceived of as "fair" from some normative perspective other than efficiency.

My Daughter Does Walk to School

My twelve-year-old daughter walked to school this morning, she has been since a year ago when she began at Martin Luther King Middle School about a mile from our home in north Berkeley.  As Jan Hoffman reported in yesterday’s  Sunday Styles section of the NYT, this kind of routine traverse to and from school, a fixture of my childhood (ironically I was living in Hyde Park on the South Side of Chicago where in the late 1960s street crime was hardly a fantasy), has become an endangered species in early 21st century America, a victim of a handful of childhood predators among us, and a vast and largely state supported fear of victimization.  While according to Hoffman fewer than 115 child abductions by strangers occurs in a year on average, many Americans will see that many “Amber Alert” highway signs blinking a message about a child kidnapping in progress. 

Those parents that seek to allow their children what one author and parent, Lenore Skenazi has appropriately called “Free Range" childhood, (the alternative the “gated childhood” we no impose on kids of all classes in the name of their security.  Despite the fact that my daughter walks through an upper-middle class neighborhood where there are hardly ever drive  by shootings or outdoor drug selling, the fact that a stranger might pull up and force her into a car (more or less what happened to Jaycee Dugard in South Lake Tahoe 19 years ago) haunts me and probably every parent.  My wife and I have decided to embrace “free range childhood” for our kids because we have concluded that on balance the physical and mental gains from enjoying autonomy and that quintessential form of freedom known as walking around one’s neighborhood outweigh that terrifying if vanishingly small risk of a kidnapping.

The focus on gated childhood is important as we reflect on the costs of over-securitizing American society.  While my book Governing through Crime devotes only a chapter to the family, and only a small part of that to the issue of overprotecting one’s children, it is in many respects where the war on crime really begins and ends.  Protecting ones’ children, rather than conscious or unconscious racism, is the primary consideration that leads parents to choose non-walkable and non-diverse gated communities to live in, sterile segregated schools, and harsh penal policies that promise to (regardless of how marginally) improve that protection.  Until we stop imprisoning our children behind walls of our own fear, there is little chance we will stop imprisoning so many of our fellow citizens.  That is one political battle that will have to be fought one household at a time.

Fashion Week

As so many professors do during Fashion Week, my thoughts turn to intellectual property protection for clothing design. As background, those asserting protection for fashion designs have an uphill battle under IP law.  Under copyright law, clothing is generally considered functional and not protectable.  Design patents are a good source of protection, but because even the top designers make critical changes during the last days, even a several-month-window from application to patent can prevent designers from obtaining an enforceable right when the design is most fresh. (By the way, if you've ever been curious about how a top designer works, the documentary "Marc Jacobs & Louis Vuitton" has some interesting moments).  Incorporating a prominent trademark into a design is perhaps the easiest way to ensure protection.  Is it any wonder that many designers add logos? 

Some bills have been introduced, so far without success, to specifically address IP protection for fashion designs, most recently in April 2009. There has been some interesting scholarship analyzing the issues presented by expanding this protection, including a paper by Kal Raustiala and Christopher Springman, who contend that, under a "piracy paradox," which (as the authors describe) the fashion industry "counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it."  Another dimension is presented by C. Scott Hemphill's and Jeannie Suk's paper, "The Law, Culture, and Economics of Fashion," in which the authors discuss a "cultural law and economics" approach that advocates protection against the ability to make close copies of original fashion designs. 

Both works underscore that the answer to the question of whether fashion should be protected, or not, has larger implications to the operation of the legal system to protect works of the mind.  How one answers that question is part of the more profound inquiry--does more (or less) protection increase the total amount of innovation?

 

The debate about the debate

Paul Horowitz' post about conservative protesters is consistent with a summer long theme on the political left. The point seems to be to talk about the nature of the debate rather than the issues being debated. There is no obvious inconsistency between supporting - or using - government provided infrastructure and concern over the administration's proposed increases in the role of the state. But there is, at times, an inconsistency between rhetoric and reality. The President is not a communist or a fascist. He is not a socialist by most uses of that term. Joe Wilson's outburst was uncivil (as he himself recognized) even if the presidential speech contained a number of assertions that were either false or highly implausible.

Of course, one could have made the same points about criticism of President Bush who was also not a fascist and not a war criminal. Still, I think the point is worth making from time to time. I share Paul's exasperation at overwrought rhetoric and there is nothing wrong with calling out silliness.

But what also bothers me is the assumption that the intemperate conduct of some folks on the other side somehow characterizes your political opponents and their arguments. I certainly don't accuse Paul of that, but people like Frank Rich and Paul Krugman have made it into a cottage industry this summer. We read that the "GOP' or "conservatives" are racist or violent or fellow travelling with those who are. This is just as irresponsible as portraying the President as Goebbels. (If you like, pick out conservative commenters who have done the same thing.)

Most public debate is, of course, oversimplified. The average person does not have the time or inclination to explore the nuances of public policy questions. That is why political advertising - on both sides - is almost always undertaken in bad faith. It is why democracy can be ugly. People who know better - like Krugman and Rich  - should do better.

Teaching pleading

Jon Siegel (guesting at CoOp) has a couple good posts up about Iqbal, including the way it is seeping into very rudimentary tort claims (such as slip-and-fall) that really should be covered by Form 11. Jon makes the following point, which I think is true:

The Civil Procedure professor community, including myself, is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that’s what we’ve been teaching the students for the last 70 years.

But this raises in my mind an interesting pedagogical point. Right now, we are in a state of flux. The pleading rules we taught to members of the class of 2009 when they were 1Ls (fall 2006/spring 2007) are different (perhaps radically so) than what that cohort is walking into on the Bar Exam and practice in fall 2009. We taught that Conley controlled and Swerkiewicz and Leatherman threw an exclamation point on that, although district courts exercised some discretion to ratchet up the pleading requirements in certain cases (as much pre-Twombly scholarship has shown). We were teaching students that way in part because that is what we had been taught (throughout the past 70 years) and in part because that reflected the state of the law (roughly anyway). And for now, the (at least my) teaching approach remains: "This is how it was for 70 years, Twombly and Iqbal changed it (legitimately or otherwise, for good or ill), and we are trying to figure out where we are and how this all shakes out."

But at what point do we stop talking about what came before? When do we change the approach to "This is how it is"? At what point is Twombly/Iqbal simply the law of pleading, with Conley (and Swerkiewicz and Leatherman) reduced to historical footnotes as an "alternative approach" to pleading that is not the prevailing federal approach?