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Tuesday, November 30, 2010

Substance v. Procedure

This is my last post on Prawfsblawg (for now, at least).  I have thoroughly enjoyed my opportunity to blog here, and I want to thank Dan Markel for making it possible.  I hope I can come back in the future!

I want to end my time here in a blaze of glory, so I conclude with probably the most difficult part of the argument I present in my draft article, "Mass Torts and Due Process."  It concerns whether my proposal satisfies not only the Due Process Clause, but the dreaded Rules Enabling Act.  

To recap, in my prior posts on my draft (see here, here, here, here, here) I argued that mass tort litigation poses a "property" problem.  Because the mass tort claim, or "chose in action," is individually owned by the numerous plaintiffs, collective action problems prevent the plaintiffs from coordinating their suits to optimize their investments in common issues.  This leads not only to suboptimal recovery for the plaintiffs, but suboptimally deters the defendant, leading to more mass torts.  In fact, this self-defeating behavior can be individualized if it is understood as a conflict between an individual's pre-tort preference for collective investment and control over the claims (and thus optimal deterrence) and the individual's post-tort preference for individual control, or autonomy, over the claim (since the tort cannot be undone, and its every man for himself in terms of recovery).  To solve the problem, the legal title of the plaintiff's claims must be coercively collectivized to ensure optimal deterrence.  This can be achieved through the use of a mandatory class action, which assigns collective control over the claims to a class attorney.  

But if the Due Process Clause prohibits the state from "depriv[ing]" the "life, liberty, and property" without "due process," doesn't a mandatory class action, by definition, "deprive" the "property" of the plaintiffs insofar as it snatches away one stick from the bundle of rights that is the "chose in action?" Moreover, if the "chose in action" is understood as a substantive right, doesn't a mandatory class action rather obviously "abridge, enlarge or modify [a] substantive right?"  The Court intimated in Ortiz that mandatory class actions, which have been limited to cases involving "limited funds" or injunctive relief, should not be extended to mass tort settings because of due process and Rules Enabling Act concerns. Moreover, in Shady Grove, Justice Scalia concluded that class actions under Rule 23 are "rationally capable of classification" as "procedure," but noted that Rule 23 does not violate the Rules Enabling Act "at least insofar as it allows willing plaintiffs to join their separate claims against the same defendants in a class action."

As to Due Process, many rules infringe the bundle of rights that is the "chose in action."  Rule 13, for example, requires a defendant to file a "compulsory counterclaim" in some instances, which arguably infringes the defendant's autonomy over the claim.  This suggests that the Due Process Clause does not prohibit all "depriv[ations]."  In some instances, a "depriv[ation]" is necessary to correct a "depriv[ation]" caused by the status quo.   In fact, such a "depriv[ation]" is no "depriv[ation]" at all, but simply a reflection that the world is imperfect, and no one has a pristine right to "litigant autonomy" to begin with.

Take a limited fund, which arises when a pot of money is insufficient to satisfy all claims to it.  In such situations, you get a race to judgment, with the first filers getting full recovery and the late filers nothing.  To prevent such an arbitrary preference for some plaintiffs over others, some mandatory proceeding (such as a "limited fund" class action or interpleader) is necessary to treat plaintiffs equally, usually through pro rata distribution of the fund.  In fact, Rule 23(b)(1)(B), the provision at issue in Ortiz, permits a mandatory class action if individual actions by some plaintiffs "would substantially impair or impede" the rights of others similarly situated.  Clearly such a proceeding would infringe upon each plaintiff's "autonomy," but the infringement is understood as necessary to correct the "infringement" of the late filers' rights by the first filers.  Again, the world is imperfect, and the mandatory class action is preferable to a race to the judgment.

But if you want to improve upon the status quo, you need an impartial basis by which to compare the status quo to something else.  Mathews v. Eldridge, as interpreted in later cases, suggests one such "balancing" approach that weighs the "private interest[s]" of the affected parties.  Mathews focuses on "risk of error" as the central private interest at stake, but clearly the law of due process contemplates the full panoply of interests.  Pro rata distribution, by definition, is inaccurate, but nevertheless preferred.  

Thus, by tweaking Mathews, I argue that mandatory class actions do not violate due process because they improve upon a suboptimal status quo.  Like in "limited fund" contexts, individual actions can "substantially impair" the interests of the others in the class by destroying the economies of scale necessary to put the plaintiffs on equal footing with the defendant.  Moreover, we can understand mandatory class actions as improving not only the collective interests of the plaintiffs, but their individual interests as well.  Mandatory class actions are justified because they take into account the "private interest" of each individual plaintiff in deterrence, or avoiding the tort altogether.  Thus, the mandatory class action, if it is a "depriv[ation]," is certainly a justified one.  Is it paternalistic?  Of course!  But sometimes we need more than a nudge in the right direction.

The harder issue is the Rules Enabling Act, which, by its terms, prohibits any "abridge[ment], enlarge[ment], or modif[ication] of any substantive right."  As an initial matter, any rule will have an impact that may "abridge, enlarge, or modify" a substantive right.  Thus, as Scalia himself has noted in the Erie context, outcome determinism alone "does not have the power to convert the most classic elements of the process of assuring that the law is observed into the substantive law itself."  But the class action presents a tougher problem.  If we take the "chose in action" as the substantive right, then a mandatory class action clearly is an "abridge[ment]" of it, though whether the "stick" being abridged, in this case litigant autonomy, is "procedure" or "substance" is fuzzier than it would be in other contexts.

I think the best way to address the issue is, again, to acknowledge that the world is imperfect, and argue that the Rules Enabling Act does not stop a court from trying to make it better.  In other words, whatever the distinction between "substance" and "procedure" may be, it does not prohibit a court to use existing "procedure" to make the relevant "substance" a reality, which courts have done so with mandatory proceedings like the "bill of peace" for many, many years.  This will involve being clearer about what the relevant substantive rights are, which, as I argue, includes a right to be free from the tort altogether, a point emphasized by civil recourse scholars in emphasizing that torts are really wrongs.  It will also involve a sensitivity to practical realities and a willingness to use the "manner" in which the rights are enforced in a way that makes those rights a reality.  And if a state or the federal government disagrees, they are perfectly capable of making that disagreement known, as they have done so in the past.  

Of course, envisioning courts as using procedure to respect rights rather than the status quo creates much more than "the feel of a tension," but as the late Robert Cover argued, the Rules have always "embod[ied] a practical philosophy, one which liberates the courts to achieve substantive ends."  And, frankly, it is the only vision of the rules, and civil procedure in general, that is worth giving a damn about.

And with that, I am off!  Thank you all for reading!

Posted by Sergio Campos on November 30, 2010 at 05:58 PM | Permalink | Comments (0) | TrackBack

Signing off and a quick plug

Thanks so much to Dan and all the Prawfs for having me as a guest here this month!  Also thanks to all those who read, commented on or emailed about my posts - I've really enjoyed the dialogue and feedback.  For those who'd like to continue the conversation, feel free contact me at [email protected].

Finally, for those interested in some of the issues related to law & religion I've raised in my posts, I'm hopeful you'll come hear this year's Jewish Law Section's panel at AALS on January 6th.  I'll be presenting on a panel moderated by Keith Sharfman, along with Douglas Laycock and Michael Broyde, on the topic of Rabbinical Courts in American Law.  It should be a great conversation.

Posted by Michael Helfand on November 30, 2010 at 03:35 PM | Permalink | Comments (1) | TrackBack

Should "practicing lawyers" "hate legal academics"?

Prof. Bainbridge sets out here (some of) the "well known" reasons why they do (and, he suggests, should).  First, "[l]aw schools produce too many students who can't write a coherent letter, let alone a detailed contract or brief."  Second, "legal education still pays little attention to training students in how to actually practice."  Third, "legal scholarship is increasingly irrelevant to judges and lawyers."

Steve elaborates his points colorfully.  And, it would be hard to maintain that there isn't something to these charges.  Still, and notwithstanding my respect for Steve's excellent taste in wine, and his other merits, I think a little push-back is warranted.

For starters, I would want to see evidence that the young lawyers who graduated whenever it was that law schools supposedly were producing good writers actually were, in fact, good writers.  It is easy for we oldsters to complain that "kids these days" aren't writing as well as we imagine we do, and did.  But, does the complaint have merit?  Are we really supposed to think that Robert Jacksons were thick on the young-lawyer ground in the 1960s, and would be today, if only legal academics stopped writing about Critical Race Theory or legal history?  In any event, I think it's probably not fair to blame the law schools -- or "legal academics" -- for young lawyers' alleged inability to write well.  After all, I hear it said often (perhaps with justification, perhaps not) that today's high-school graduates and college-graduates don't write as well as their old-days counterparts did. 

Second, Steve says that "legal education still pays little attention to training students in how to actually practice."  I am confident that I am as committed as Steve is to skills-development and experiential learning, and I am sure that law schools could do better in this regard than we do.  I think it is a mistake, though, to connect too closely (a) the importance of preparing law students, to the extent possible, for the actual work of the profession with (b) complaints about "Law and the Visual Arts."  There is a danger that doing so creates -- in our students, and in the profession itself -- the misguided view that this "actual work" - the lived-out vocation of being a lawyer -- is reducible to the competent execution of particular lawyer-ish tasks.  Ours is, and has always been, a learned profession.  To "actually practice" law -- to do it right, and well -- one does have to be educated and formed to reflect on, and not only to do, what one is doing.  What we do, at our best, is to offer and exercise sound judgment, informed deeply and appropriately by consideration of relevant historical, social, moral, and other factors.  And, of course, to write clear letters, file motions on time, ask the right questions, anticipate and solve problems, and so on.   

Finally, the "legal scholarship is irrelevant to judges and practicing lawyers" charge:  Sure, much of it is (but see the paragraph above).  I don't think this is because law schools are hiring scholars with Ph.D.'s, or scholars who are interested in empirical questions and analysis.  Legal scholars should be, well, scholars.  And the field of law that legal scholars study -- like the practice of law itself -- is broader, in my view, than the criticism appreciates.  In any event, most law schools are situated in research universities, and law professors (like Steve, and like me) have -- or want to have -- tenure and to participate in the life and governance of universities.  Our role is to contribute to the profession and to the formation of lawyers, and also to contribute responsibly to the academy.

Don't get me wrong (please).  This post is not a defense of the misguided and offensive idea that everyday law practice is somehow beneath legal scholars' notice or undeserving of their attention.  It is not -- it absolutely is not -- a suggestion that writing hyper-footnoted articles that no one will ever read is "more important" than forming learned, competent, ethical, sensitive lawyers.  It is, instead, a plea that when we criticize what legal scholars and law schools are doing as insufficiently well matched with "actually practicing law", we don't unintentionally shrink or sell short the rich, deep, important, even noble enterprise that "actually practicing law" is.

Posted by Rick Garnett on November 30, 2010 at 03:25 PM | Permalink | Comments (16) | TrackBack

4th International Conference on the Globalization of Collective Litigation

FIU College of Law will host the 4th International Conference on the Globalization of Collective Litigation on Friday, December 10.  The program has been organized by Deborah Hensler (Stanford) and Manuel Gomez (my FIU colleague). The conference brings together academics, policy analysts, and practitioners to discuss issues of collective litigation around the world, with a special focus on Latin America.



Posted by Howard Wasserman on November 30, 2010 at 09:01 AM in Civil Procedure, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0) | TrackBack

Monday, November 29, 2010

Using Smokescreens and Spoofing to Undermine Wikileaks

The leaked diplomatic cables story already been much discussed and will be discussed further elsewhere.  As a privacy law scholar, my starting point is to think of this problem as a data security issue and then wonder how Pfc. Bradley Manning evidently obtained access to such a large cache of highly sensitive information.  I suspect that some (but not all) of that story will be told in the coming months.  The government's failure to better safeguard sensitive national security information against someone in Manning's position is a genuine scandal, one that ought to prompt careful investigations into what went wrong and rapid data security improvements.

That said, we have seen from analyzing commercial data security breaches that breaches will inevitably occur.  To that end, it may make sense for the government to supplement heightened data security measures by regularly leaking false (but plausible) intelligence to Wikileaks.  The current controversy has generated great attention because the information exposed on Wikileaks is believe to be genuine.  But if disclosures to Wikileaks are frequent and sorting between true and false leaks is difficult, then the damage resulting from inevitable disclosures of true information would be reduced.  It might even make sense for the government to announce publicly that it will be leaking lots of false diplomatic cables going forward so that foreign governments are not unnerved by what they read on Wikileaks and in the press. 

A version of this strategy - called spoofing - was used effectively by the recording industry to make illicit peer-to-peer file swapping less attractive. 

If users couldn't distinguish between real Kanye West mp3 files and garbled noises on Limewire, then they might get frustrated enough to switch to iTunes.  Applications that fostered the swapping of unlicensed p2p files tried to combat spoofing through file rating systems, but these were also subject to gaming by spoofers.  Similarly, a spoofing approach to national security leaks might lower the reliability of Wikileaks information enough to get people to stop paying so much attention to the content that is posted there.  Recall the little boy who cried wolf too many times.  Wikileaks could invest in trying to sort between legitimate and phony leaks, but doing so would be costly and time-consuming, and it might bring more of Wikileaks's contacts with the Bradley Mannings of the world into the open.

One question that arises is whether the government is doing this already.  Corporations evidently engage in such behavior with some regularity.  Indeed, using misdirection strategies against competitors may be part of the "reasonable precautions" that a firm ought to engage in to guard its trade secrets.  Are there instances of the government leaking false documents to Wikileaks?  If the government isn't engaging in those strategies, should it start doing so?

UPDATE: Not-so-great minds think alike.

Posted by Lior Strahilevitz on November 29, 2010 at 05:13 PM in First Amendment, Information and Technology, Web/Tech | Permalink | Comments (3) | TrackBack

Chipping Away at the Presumption of Patent Validity

The Supreme Court granted certiorari today in Microsoft Corp. v. i4i Ltd., a case in which I signed on to an amicus brief supporting grant. While there are a lot of things the Court can do, the basic question is a relatively simple one: how much weight should the US Patent and Trademark Office (PTO) determination of patent validity count when the patent is later challenged in litigation.

This is an important question in an age where many think that patent quality is at a recent, if not all time, low. The current law presumes all issued patents to be valid, and consequently requires clear and convincing evidence of invalidity. This is theoretically a high standard, but more on that later.

At the other extreme, the law would give no deference to PTO determinations, and require the patentee to prove validity as part of the elements of a cause of action. This is not unheard of; trademark owners must often prove that their marks are distinctive, for example. Further, given that patent applications are presumed valid at the PTO unless an examiner can prove that the patent is not novel or obvious means that any granted patent always has a taint of not being fully vetted when it is granted. High patent grant rates - well over 60% or even  70% in some subject areas - support this position.

However, examiners often find prior art and reject patents or require amendments to narrow claims, and it makes little sense to have an examination system if patent grants are given no deference. Indeed, the U.S. had a system where all patents were granted in the early 1800's and it was rejected in favor of examination in 1836. 

The question, then, is just how much deference should be granted. Like many professors I know, I favor a system where patents are presumed valid, but that they can be invalidated with new evidence that was not before the PTO. The defendant would have to prove such invalidity by a preponderance of the evidence. If, however, the PTO considered a piece of evidence, then the patent would could only be invalidated by clear and convincing evidence.

This sounds fine on the surface, but is a bit more complicated than it might seem. If only one piece of prior art is at issue, the system works fine - either that reference invalidates the patent or it does not. However, many patents are challenged as obvious - where one prior reference does not teach the invention. In such cases, multiple references are combined or "general skill" is used to build on a single reference to fill in any gaps between the prior art and the patent.

It is not at all obvious (pun intended) how the burden of proof should be allocated in such situations. It is unclear why judge or jury should be in the business of second guessing a trained patent examiner determination about what is or is not obvious. Further, what if a new reference is combined with an old one? This might imply a lower burden, but if the new reference is similar to an old one, then courts will have to determine exactly what the PTO considered just to assign a burden of proof. 

Furthermore, sometimes examiners mentally consider and reject obviousness arguments without recording them in any detail. It will be very difficult to determine whether the PTO actually considered an issue if the record is unclear. Of course, patentees can pepper the record with confirmatory statements that the PTO rejected arguments, but such CYA submissions both increase the cost of the system and are unhelpfully self-serving.

I suspect that the Court will issue a ruling similar to its recent minimalist and flexible patent rulings that says something like, "Courts should give as much or as little deference as justified based on what happened before the PTO," and leave it to lower courts to figure out the difficult questions I pose here.

In the end, I wonder how much the burden of proof really matters. When it is a single prior art reference, I think not much. If something invalidates, it is usually clear to all involved once the court has determined what the patented invention is. There are cases on the margin where it is unclear if a prior art reference invalidates; such cases usually occur because some piece of information is either vague or unknown. If so, however, the only thing that would change results is to shift the burden over to the patentee, and that's never been the law (nor do I expect that result in this case).

Instead, a primary difference between the standards is about what evidence may be credited and considered. The clear and convincing standard often requires corroborating evidence. Thus if the prior art is uncorroborated (e.g. oral testimony about what a document said or how a product operated), then it might be sufficient to invalidate under a preponderance standard but not a clear and convincing standard.

This was the very issue in the Microsoft v. i4i dispute. The parties each presented testimony about how a prior product worked. Neither had corroborating evidence. The Federal Circuit held that Microsoft needed corroborating evidence to invalidate, and that i4i did not need such evidence to sustain its patent. Thus the jury's finding that the claim was valid (crediting the i4i witness) was easily affirmed.

Even so, it's not clear that the difference matters. Even if the burden were preponderance of evidence and even if i4i held this burden to prove validity, the court would have affirmed the jury's finding on competing oral testimony. That's what juries are for - resolving competing testimony that might conflict.  Even if the Microsoft witness were the only one, the jury could have disregarded the testimony if it lacked corroboration. Thus, it's not clear at all that changing the standard will help Microsoft in this case.

In contract, the standard should theoretically have a much stronger impact on obviousness determinations.  Lowering the standard would presumably make it easier for defendants to argue that patents would have been obvious. The "gaps" in the prior art can be more easily bridged under a preponderance standard.

Here to, though, a change in standard will not clearly make a difference, for at least three reasons:

1. Obviousness determinations are notoriously difficult to make, and so long a juries are allowed to make factual findings that underly the inquiry (the Court denied cert. on this issue a couple of years ago), then their findings will likely be upheld one way or the other, as they were in Microsoft v. i4i. Of course, the verdict form in that case was pretty generic, and the Federal Circuit presumed all sorts of facts that jury likely did not consider. Even so, such presumptions are unrelated to patent presumptions and are based on longstanding appellate review principles.

2. To that end, the jury instructions hardly imply an insurmountable burden. For example, the Northern District of California Patent Jury Instructions (now used by several districts) say this: "To prove invalidityof any patent claim, [alleged infringer] must persuade you that it is highly probable that the claimis invalid." I objected at the time that this instruction does not have nearly the same meaning as "clear and convincing," and I still believe that today. (I do note, though, that in Microsoft v. i4i, the court did say "clear and convincing" in the jury instructions.)

3. Since the Supreme Court's ruling in the KSR case, lower courts have had much more leeway to find patents obvious. Indeed, in the Court's obviousness jurisprudence through the years (like 150 years), it has found patents obvious with little more than hand waving, despite a clear and convincing standard. As a result, lowering the standard may not have much of an effect on court rationale at all. Of course, this may just imply that the standard never was clear and convincing.

In sum, it makes sense in theory to lower the standard of proof where the PTO has not considered an issue. In practice, however, I think that doing so will make very little difference except in a few special cases where the evidence is right at the margin and it is the presumption and nothing else that is protecting the patent.

Posted by Michael Risch on November 29, 2010 at 04:36 PM in Intellectual Property | Permalink | Comments (0) | TrackBack

Federalism Seminar

I (with the help of my research assistant) am in the process of creating a proposal for a 2-credit “Federalism Seminar.”  I plan to spend the first 2-3 classes on Vertical Federalism, and then spend each of the remaining class sessions on a “hot” topic that raises significant federalism issues.  The goal would be to understand the way in which regulatory efforts at the federal, state and local level interact in a variety of substantive contexts. 

My tentative wish list of topics includes:  Medical Marijuana; Same-Sex Marriage; Climate Change; Health Care Reform; Immigration Federalism; Regulation of Convicted Sex Offenders; School Finance Reform/Education Policy; and Regulation of Religious Land Uses. 

For each topic I would compile (a) the relevant federal constitutional provision, statute or regulation; (b) a sampling of state/local regulations; (c) a leading case and (d) a secondary source (newspaper article or law review article) to provide context. 

Any suggestions or recommendations for the syllabus (particularly from someone who has put together a similar course) would be greatly appreciated. And, of course, I will be happy to share the syllabus with anyone who is interested once it is complete.   

Posted by Ashira Ostrow on November 29, 2010 at 02:11 PM in Syllabi Project, Teaching Law | Permalink | Comments (8) | TrackBack

Sunday, November 28, 2010

Transparency, Anonymity, and Internet Threats Against Children

 A new case from the U.S. Ninth Circuit Court of Appeals pits the public interest in open and "transparent" legal proceedings against plaintiffs' rights to proceed anonymously when they fear retaliation.  This case, Doe v. Kamehameha Schools, 596 F.3d 1036 (9th Cir. 2010), is  unusual because the would-be Doe plaintiffs are children who fear for their safety predominantly as a result of invective and abuse posted on the internet.  This decision is noteworthy for a number of reasons (discussed below), not least of which is its discussion of the complicated task of evaluating anonymous threats on the internet.


In Doe v. Kamehameha Schools, four children in Hawaii sued the Kamehameha schools, claiming that the schools applied an admissions policy that violated their civil rights; the schools'  policy "grant[s] admission to any applicant with any amount of Native Hawaiian blood before admitting other applicants."  The children sued in federal court under 42 U.S.C. Sec. 1981 and moved for leave to proceed anonymously, contending that they  feared physical injury otherwise.  The children's attorney pointed to several pieces of evidence to support the motion to proceed anonymously.  First, the plaintiffs demonstrated the intense and angry public reaction to a prior civil rights lawsuit against the Kamehameha Schools.  Second, they brought evidence of anonymous threats of violence against the child plaintiff and attorney involved in the prior litigation against the Kamehameha Schools.  Third, they demonstrated that threatening language had been used in posts about their lawsuit, including statements that if they were admitted to Kamehameha, they were "jus gonna get lickins every day."  Another post stated that "one day" plaintiffs' "haole attorneys" would "be targeted by some crazy Hawaiian or group of Hawaiians armed with baseball bats or guns."  Finally, the plaintiffs brought evidence of hate crimes by Native Hawaiians against non-Native Hawaiians. 

A magistrate judge denied plaintiffs' motion to proceed anonymously, finding none of their evidence was sufficient to make plaintiffs objectively fear physical retaliation.  Indeed, the magistrate judge found that "[a]t most, Plaintiffs' evidence suggests they may be socially ostracized."  After a Hawaiian newspaper published a story on the ruling, more vitriolic comments were posted online, such as one that stated "Sacrifice them!!!!!!!!" and another that read "4 kids . . . will need 10 bodyguards lol."  Yet another stated the plaintiffs "would have to watch their backs for the rest of their lives."  The plaintiffs also pointed to a threatening phone call received by their attorney.   The magistrate judge  denied plaintiffs' motion to reconsider based upon this new evidence.  The district judge likewise determined that "the prejudice to the defendants and the public's interest in open courts outweighs plaintiffs' fears of harm."  As a result, the judge denied plaintiffs' motion to proceed anonymously and dismissed their case.

On appeal, a three-judge panel of the Ninth Circuit affirmed the dismissal of plaintiffs' claims, holding that "the district court did not abuse its discretion in determining that the Doe children do not reasonably fear severe harm."  In reaching this conclusion, the court stated that "the normal presumption in litigation is that parties must use their real names."  The court linked this presumption both to "the public's right to open courts, [ ], and the right of private individuals to confront their accusers."  However, the court also noted that the presumption that litigants must use their real names can be overcome by "balancing" five factors: "(1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, . . . (3) the anonymous party's vulnerability to such retaliation, (4) the prejudice to the opposing party, and (5) the public interest."  Id. at 3322 (citing Doe I Thru XXIII v. Advanced Textile, 214 F.3d 1058 (9th Cir. 2000). 

The court conceded that it was difficult to evaluate the severity of the threatened harm given the controversial nature of the case, "the recognized tensions between some Native Hawaiians and non-Natives in Hawaii, and the threats against the anonymous plaintiffs."  The court also noted that obscuring the identities of the plaintiffs in this case would not seriously impair the public's ability to evaluate the underlying issues in the case.   In fact, the refusal to allow the plaintiffs to proceed anonymously in this case prevented a resolution of the important legal issues they raised (!), because they decided to face dismissal rather than reveal their identities.  Nonetheless, the court found that the district court did not abuse its discretion in concluding that plaintiff had failed to show a reasonable fear physical retliation.  

The court closely examined the context surrounding the alleged threats against plaintiffs.  The court observed that the fact that the threats were posted on the Internet might make them "much more frightening" in light of previous "random acts of racial violence against non-Native Hawaiian children."  On the other hand, the court noted that "people say things anonymously on the internet that they would never say in another context and have no intention of carrying out."  (emphasis mine)  Even some of the posts that plaintiffs had cited as threatening contained language denying any desire for actual violence against the children.  The court also noted that a prior plaintiffs who had litigated against Kamehmeha Schools using their real names had faced no reprisals in school or out. 

The case is noteworthy for several reasons.  First, although the case involves child plaintiffs, the court places almost no emphasis on this fact and seems to evaluate the alleged threats they would face if their names were revealed the same way it would evaluate threats to adults.   Children are more vulnerable than adults, and arguably the balance between transparency and anonymity might be tipped more toward the latter when a child's safety is at issue.   In fact, Federal Rule of Civil Procedure 5.2(a) contemplates that minor litigants can routinely be identified only by their initials.  Nonetheless, the court did not address this rule, and the  fact that the case involved child litigants did not seem to affect its outcome.

Second, the court apparently believed that the only threat to the children that would justify allowing them to proceed anonymously was a threat of physical violence, even though the five-factor test the court applied seemed to contemplate other types of threats.  Perhaps the threat of  social or economic retaliation can never outweigh the interest in transparency; if so, I would have preferred that the court explain and justify this assumption, especially since it seems that the children in this case would have objectively reasonable fears of "severe" social retaliation, at a minimum. 

Third, the court did not evaluate the case under First Amendment law governing "true threats."  The court views the true threats case law as inapposite because it typically involves an injunction or other direct restriction against speech rather than an indirect threat to the public's right to know.  According to the court, the "true threats" cases set an even "higher bar to the finding of reasonable fear" than the five-factor balancing test they applied.  In this bit of dicta, the court places the First Amendment right to speak on a higher plane than the public's right of access to judicial information.  This relative weighting is hardly revolutionary, but it is nonetheless noteworthy that the standard for judging the reasonableness of a plaintiff's fear may be higher in one context than in the other.  

Fourth, and most fascinating to me, is the court's discussion of the  nature of internet threats.  Are internet threats more or less likely to create "reasonable fear" in their target than other kinds of threats?  The court addressed arguments on both sides.  The court acknowledged the argument that the anonymity of internet threats can make them more frightening.  The court did not elucidate, but there are several reasons a plaintiff might find internet threats more frightening.  Since the person making the threats is usually anonymous, s/he could be anyone anywhere, leaving plaintiffs with fewer means to protect against or avoid the makers of threats.  There is also the prospect that a person who makes an online threat will feel empowered by the vitriol of other speakers to carry out a violent act against plaintiffs in the real world.  Perusal of internet comments on a topic as controversial as affirmative action for native Hawaiians quickly gives one the feeling that there are lots of angry, intemperate and mean-spirited people out there; who knows what the match that lights the tinder will be?   Nonetheless, in First Amendment contexts, courts typically require a showing of more than speculation regarding the possibility of harm.  Indeed, the Ninth Circuit ultimately credited the argument that internet threats should be discounted precisely because the internet is a forum in which many people hide behind the cloak of anonymity to say things they have no intention of doing.  Again, the court did not really flesh out this discussion, but it seemed to buy into the notion that the internet can act as a safety valve for vitriolic venting about contentious public issues.  Hyperbole and exaggeration are common, and therefore the district court did not err in concluding that the threats to the children involved in this case were not serious.   [Shameless plug alert:  For extended examination of the benefits and harms of anonymous speech, see Lidsky, Silencing John Doe, or Lidsky & Cotter, Authorship, Audiences, and Anonymous Speech.]

Fifth, if you are a law professor in need of a case to illustrate to students why standards of review matter, this is a good one.  The court spends the whole last paragraph of the opinion emphasizing that if it were reviewing the case de novo, it might come out differently on the issue of whether the plaintiffs' fears of physical harms were reasonable. 

Finally, the decision spurred Judges Kozinski and Reinhardt to unite in dissenting from denial of plaintiffs' petition for rehearing en banc.  Judges Kozinski and Reinhardt both wrote strongly worded dissents accusing their colleagues of ignoring the physical and mental well-being of the children.  The members of the original panel--Beezer, Graber, and Fisher--responded to the criticisms of Kozinski and Reinhardt in a separate concurrence in the denial of rehearing en banc. 

Posted by Lyrissa Lidsky on November 28, 2010 at 01:14 AM in First Amendment, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Saturday, November 27, 2010

Wam! Bam! Thank you ma'am!

Michael Robertson, the CEO who brought us MP3.com at the turn of the 21st century, is back again with two services: MP3Tunes and Sideload. MP3.com ostensibly allowed users to listen to CDs stored on MP3.com servers if they could establish to MP3.com's satisfaction that they owned the original CD. MP3.com lost a fight in the Southern District of New York, with the court concluding that MP3.com was not engaging in (arguably) protectable "space shifting" by storing subscribers' CDs, but instead "re-playing for the subscribers converted versions of the recordings it copied, without authorization." Judge Rakoff concluded that this was not fair use, and the legal fallout led to MP3.com's merger with Verizon.

Robertson's new storage service, MP3Tunes, allows customers to store audio files "in the cloud," not unlike Dropbox or other cloud storage services. Digital files uploaded to an MP3Tunes locker can be replayed by the locker owner in a variety of ways. Viewed in isolation, MP3Tunes simply stores subscribers' CDs. The recent decision in Cartoon Network v. Cablevision would suggest that the Second Circuit, at least, is sympathetic to the notion that where a business provides a service and consumers push the buttons that copy protected expression, the service providers are not directly liable. Thus, if online storage by consumers is protectable private use (a possibility the court in MP3.com acknowledged), MP3Tunes is unobjectionable as a service enabling that storage.

Sideload is an associated service that changes the way MP3Tunes works. The Sideload program lists the material available in the lockers of other users of MP3Tunes and allows you to stream those songs and download them into your own locker.  In other words, if I load David Bowie's* "Suffragette City" into my MP3Tunes locker, Sideload will help you find it, and you can make a copy from my copy. As I understand the services, other people can then make a copy of your copy of Suffragette City. If one accepts as a baseline that consumers are taking their personal stock of legally purchased CDs and MP3s, loading digital files into MP3Tunes lockers, and other consumers are locating those files and copying them through Sideload for free, then the service sounds suspiciously like Napster-esque "file sharing," and unlike arguably protectable "space shifting." Robertson makes an interesting factual claim in its motion for summary judgment that, if true, might alter the way we think about this particular case, even if Sideload is part of the package.

Robertson asserts that record lables like EMI distribute music files for free on the internet with the intent (in the words of EMI's Senior VP for Digital Marketing) that the songs should become "viral...giving fans the ability to disseminate to other fans, to spread like a virus." Not every song is marketed as a free (and hopefully viral) release, but many are. EMI and the other labels want to hold MP3Tunes accountable for distinguishing between them. MP3Tunes instead hopes to rely on Section 512(c) of the DMCA, which immunizes online service providers that store material online at the direction of users, so long as the service provider takes down unauthorized content once it is brought to the attention of the service provider by the copyright holder. MP3Tunes argues (reasonably, I think) that if EMI has flooded the market with free content, EMI is the party best positioned to distinguish between viral content and content that wasn't supposed to get out for free. Thus, if MP3Tunes timely removes any content flagged by record labels, then EMI should be able to get what it wants by flagging "traditional" content for removal, allowing MP3Tunes to remove flagged content while enabling the distribution of free content. Thus, even assuming that Sideload lets other MP3Tunes customers copy "Suffragette City" from my locker, the question we should ask is whether EMI authorized its viral release.

I am a skeptical of Robertson's factual claims, because it seems that many artists have use free streaming content "distributed" through social networking systems like Facebook or Twitter, and less on the distribution of actual copies.  Still, to the extent the claim is accurate, it seems entirely within reason for Robertson to offer a service that allows consumers to find and share authorized "viral" downloads.

* Bowie is an EMI artist, whose seminal album, The Rise and Fall of Ziggy Stardust and the Spiders from Mars, was just released in the UK on a commemorative stamp.

Posted by Jake Linford on November 27, 2010 at 02:26 PM in Culture, Information and Technology, Intellectual Property, Music, Web/Tech | Permalink | Comments (1) | TrackBack

Honorific Resolutions (and the Establishment Clause)

Via the Volokh Conspiracy, I see this LA Times story reporting that the incoming House Republican leadership is considering eliminating or scaling back on honorific resolutions without legal effect.  Says Rep. Eric Cantor of the leadership team in the story, "I do not suspect that Jefferson or Madison ever envisioned Congress honoring the 2,560th anniversary of the birth of Confucius or supporting the designation of National Pi Day. . . . I believe people want our time, energy and efforts focused on their priorities."

On the whole, more power to them, I say -- although this move against symbolic politics is, of course, itself a symbolic move, and a far cry from identifying genuine sources for budget cuts that do not involve a long list of costly entitlements the leadership has taken off the table.  It's a little like a doctor clipping a toenail to demonstrate his symbolic willingness to amputate a leg.  

The timing is interesting, though, if no doubt unintentional.  The story comes a couple of days after Thanksgiving, which has been the subject of congressional and presidential proclamations since the birth of the Republic.  And it comes in a year in which most members of Congress had no hesitation expressing the sense of the institution in favor of a National Day of Prayer.  One thing this history and continuing practice suggests, of course, is that the founding generation had a great willingness to expend time and ink on symbolic legislation, so Cantor's statement is surely wrong.

Of course, Cantor could have meant not that the founders had no suspicion that Congress would engage in symbolic legislation, but that they had no suspicion that this legislation would include Confucius.  I hope that's not what he meant.  (Elsewhere in the story, incidentally, Rep. Jason Chaffetz (R-UT) is quoted as saying "We shouldn't have done it until he was at least 2,600 years old."  Presumably Congressman Chaffetz is prepared to wait a few more centuries for a Christmas proclamation.)  But if it is, that raises the question what purposes these kinds of resolutions honoring our "civic religion" serve.  The legal justification for these kinds of actions is grounded on, among other things, the notion that these kinds of statements are anodyne and inoffensive, a recognition of our general culture and heritage rather than an effort to take sides in a culture war.  But another possibility (one I suggest in my forthcoming book) is that whatever purpose they once served, today these resolutions are intended to take sides, to provoke rather than unite: in our own age of religious pluralism and contestability, they aim to enlist the symbolic voice of government behind particular religious views.

That doesn't mean all of these kinds of statements are unconstitutional.  But it does suggest that we might have more than one reason to rejoice at the House Republicans' intention to cut back on symbolic resolutions.  And perhaps, as we wait to see whether the new leadership in fact cuts back on these resolutions in all circumstances, or whether it continues to gin them out for purposes of making statements on behalf of an actual or perceived religious majority, it will give them, and us, cause to reflect on what message they are actually trying to send with these statements, and to acknowledge the actual purpose of these statements with a little more candor and a little less disingenuous talk about civil religion, ceremonial deism, recognition of heritage, and so on.      

Posted by Paul Horwitz on November 27, 2010 at 02:01 PM in Paul Horwitz | Permalink | Comments (4) | TrackBack

Friday, November 26, 2010

Research Assistance

In the past, I have relied on research assistants almost exclusively to bluebook and cite check my footnotes prior to submitting an article for publication.  As another contributor noted in a post earlier this week, research assistants are not always good at bluebooking, but often, they are even worse at substantive research assignments.  Perhaps I do not explain what I need them to do well enough, or perhaps they do not have enough legal research training, but it usually takes me longer to supervise a research assistant than it does to just do the research myself.    

Recently, however, I hired a research assistant who seems remarkably capable of researching substantive legal issues.  This RA was a former student, who, though quiet in class, consistently emailed me relevant news articles with (and maybe this is the key) her own thoughtful analysis and ideas.   I realized that (a) she was intellectually curious and (b) her research interests paralleled my own.  Eventually, I asked her if she wanted to be my RA and we have been working well together ever since.   

I am trying to pin down what it is about the student, or the hiring process, that leads to a successful Professor/RA relationship (mainly so that I can replicate it when my current RA eventually graduates). Any thoughts?    

Posted by Ashira Ostrow on November 26, 2010 at 03:56 PM | Permalink | Comments (4) | TrackBack

An OMB for the Courts?

In the spirit of Thanksgiving, I want to give thanks for my current job.  Before entering academia, I practiced and clerked, and enjoyed both jobs for the most part.  But in each job I could not stop myself from thinking about the law in nonintuitive ways.  Now I get paid to do it!

I want to take a break from blogging about my current draft "Mass Torts and Due Process" to discuss one half-baked idea I played around with during my clerkship.  Like all clerks, I worked on a fair amount of criminal cases.   One such case involved a Terry stop in Boston.  The details of the case are not important, but while researching the case I read a number of Supreme Court opinions on "reasonable suspicion," and I tried to think of more rational ways to deal with the issue, including one that is the title of this blog post.

What I found interesting about findings of "reasonable suspicion" is that they rely a great deal on both a police officer's experience AND a district court's experience.  In Ornelas v. United States, for example, Justice Rehnquist emphasizes that appellate courts should "give due weight to inferences drawn from [the suspicious behavior] by resident judges and local law enforcement officers."  After all, "[a] trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise." Moreover, in Illinois v. Wardlow, which concerned whether flight in a "high crime area" was sufficient to establish reasonable suspicion, Justice Rehnquist notes that "[i]n reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists."

It's understandable to give some weight to the experience of officers and district court judges, but is there anything really stopping courts from developing "empirical studies" concerning suspicious behavior? Although I focus on civil procedure, I have long been a fan of Rachel Barkow's work using insights from administrative law to reform criminal law enforcement.  Her work inspired me to think of nonintuitive ways to provide "empirical studies" of suspicious behavior within the federal judiciary.  Admittedly, there are some foundations that provide such empirical research on legal issues, and courts could demand greater evidence from the parties.  But what if the federal judiciary (or an entrepreneurial circuit) decided to create a research and development department to conduct the kind of empirical research that is currently not available?  Moreover, such a department could study not only how "suspicious" certain behaviors actually are, but the cost and benefits of targeting one type of behavior (or area, as in the case of "high crime areas") over others.   Thus, such a department could be like an OMB or CBO for the courts.  Although the focus of such an "OMB" for the courts would not be on the impact of doctrine on the court's budget, it would provide the same kind of cost-benefit analysis to criminal procedure doctrine that the OMB and the CBO provide for executive action and legislation.  In fact, such an "OMB" for the courts could look at other things within the purview of federal jurisdiction, such as pleading standards or class certification standards.  

Now, I am not claiming originality for this idea, since I am sure others have suggested it.  In fact, it is unclear to me whether the Federal Judicial Center already conducts some of these studies.  I am also aware of some of the limits of cost-benefit analysis.  But one benefit of having an "OMB" for the courts is that it would allow us to test the "experience" of officers and judges, particular when that "experience" could have some unintended consequences.  What do you all think?  

Posted by Sergio Campos on November 26, 2010 at 03:50 PM | Permalink | Comments (2) | TrackBack

"Religious" Contracts

As part of my recent thinking about the "new multiculturalism," I've been giving some thought to a category of contracts I'd call "religious" contracts (here's an abstract for the project).  What I mean by this category is contracts where parties enter some sort of financial arrangement, which also entails or incorporates some religious term or practice into the agreement. 

I think most people, when considering this category, typically raise examples related to divorce proceedings (e.g. the Jewish practice of executing a divorce through a get) and some of the challenges courts have faced when addressing agreements to execute a religious divorce.  But I've been wondering more about commercial agreements, which are also interwoven with religious practices.  Some prominent examples include the enforcement of mahr agreements (entered into within the context of Islamic marriages) and heter iska agreements (entered into to avoid Jewish law's anti-usury laws).  I'm curious if there are any other prominent examples of religious contracts that come to mind? 

I've been collecting examples to see how courts interpret such agreements as instances of the challenges courts faced when trying to regulate and enforce religious commercial conduct.  My own sense, which I sketch after the jump, is that courts have frequently adopted one of two adjudicatory tactics when faced with such conduct.   

In some instances, courts – fearful of the Establishment Clause – reflexively refuse to adjudicate cases implicating the enforceability of religious commercial conduct.  In so doing, courts often exhibit a hyper-sensitivity to entanglement concerns, without truly considering whether or not the religious overtones of the case actually require dismissal on Establishment Clause grounds.  Such a risk-averse approach to constitutionality can leave aggrieved parties without a venue to seek redress of legal wrongs.

Alternatively, some courts embrace adjudication of disputes implicating religious commercial conduct by pushing the religious undercurrents of the case to the margins and focusing instead on the familiar secular features of the case.  By so doing, courts can enforce religious agreements and resolve religious disputes under the umbrella of the neutral-principles doctrine, finding increased constitutional comfort in adjudicating cases impacting religious conduct when they can take religion out of the equation.

As courts face more and more cases of religious commercial conduct, my own view is that they'll have to start developing more of a middle-of-the-road approach.  Without appreciating the religious beliefs and practices intertwined with religious commercial conduct, courts will be hard pressed to determine whether or not entanglement concerns truly preclude a court from adjudicating a particular claim.  Moreover, to enforce an agreement by focusing only on the secular features of a case likely can distort the very terms of the agreement.  Instead, I think courts would be better served in educating themselves as to the implicated religious issues - allowing the parties to present evidence to explain the religious aspects of the agreement - in order to accurately determine what a particular contract entails and where commercial conduct ends and religious conduct begins. 

Posted by Michael Helfand on November 26, 2010 at 12:47 PM in Constitutional thoughts, Religion | Permalink | Comments (2) | TrackBack

Return of the Son of Con Law

Yesterday, I suggested that there was a different way to teach constitutional law to law students. And then I left to go to a Thanksgiving celebration without elaborating.  So happy day after Thanksgiving, folks, here's the rest of that post:

To begin, I'd divide constitutional law into two areas. On one hand, you have the constitutional issues that law students need for the bar. With respect to those issues, I am willing to embrace the idea that I condemned previously: If students need to be exposed to specific areas of con law issues for the bar, let's put those issues in the relevant substantive courses and put those courses on a list of courses recommended for the bar exam.

On the other hand, you have the point I urged yesterday--law students should be exposed to a way of thinking about the constitution as a whole. I think there should be a required course that explores the idea that the constitution defines a constitutional order that sketches a series of relationships and dynamics and problems, and considers whether there is a connection between that order and the legal system as a whole.In effect, what we would be doing in this new course is teaching constitutionalism, rather than constitutional law, though we are teaching a particular constitutionalism, based on the specific deas and institutions we find in the US constitutional order.

How to teach that second aspect of constitutional law?

I propose we move constitutional law out of the first or second year. Let's make it a required capstone course, tied to a writing and research requirement, and put it in the third year. I'm of two minds as to how to structure it, a seminar would be nice, but I could see teaching the course as a large section, breaking students off into subsections for discussion, and then bringing the large section together at points in the semester. (One could even use online teaching tools, like wikis and miniwebinars, to facilitate this.)

Regardless of the size of the course, I'd organize it like this: I'd pick a relatively recent Supreme Court case, say something from the past five years (in most law schools, you would need several sections and you'd want to pick a different case for each section). The class would spend all semester unpacking that case, something that we'd do in several stages.

Stage one: The course would start with a close reading of each of the opinions that make up the reported decision in their entirety. The goal at this point is to map out the various arguments, constitutional and otherwise, that shaped the decision of the Court.  

To do that, the focus at this stage would be twofold. First, we'd look at each opinion separately to see how the constitutional arguments related to one another within the opinion, and to explore whether and to what extent they were influenced by assumptions from or appeals to other areas of law. 

Second, we'd consider how the opinions interacted. What conversations are they having, or not having? What is causing the differences? Are the disputes about the meaning of constitutional principles? Are they disagreements about precedent? Are they disagreements about what constitutional provision applies? Are the different perspectives influenced by what we might call subsidiary arguments, those based on other, nonconstitutional areas of law? Etc, etc.

At the end of that first stage, we want to know the opinions in the case backwards and forwards, but we also want to begin thinking about whether the various opinions are working from the same fundamental assumptions. Are the different opinions working from the same vision of a constitutional order, or are there very different ideas about constitutional order at play?

Second stage: Then, once we have the terms of the debate at the Court worked out, we start looking at the stuff the decision was built on. What did the parties and the amici argue? What did they cite? How did their framing of the problems of the case differ from the Court's? What about the lower court opinions? How did they frame the issues and develop their arguments? What about the precedent? Were the older cases the Court relied on making the same assumptions or working within the same framework the Court was in the case we started with? If not, what assumptions and frameworks were they working within? We may also want to look at other recent, related opinions to see how particular justices have dealt with similiar issues over time.

At that second stage, the idea is to understand the legal context of the decision both vertically (looking at the arguments and precedents the opinions are based on) and horizontally (examining the immediate context of the opinion, to see how it compares to other recent First Amendment or Equal Protection cases, for example). To the extent that the decision of the Court seems to fit within a coherent trajectory of law, the idea would be to try to define that trajectory. To the extent that the opinion appears inconsistent, the point would be to try to identify the reasons for the divergence. In the process of considering those things, we want to continue to think about what constitutional orders the materials we are reading assume.

Third stage: From that, we broaden our inquiry to ancilliary areas of law. If this is a case involving corporations and their speech rights, think Citizens United, then we need to understand the history of legal assumptions about corporations, both in terms of the evolution of corporations law and in terms of theories of the relation of corporations to the polity (think Munn v. Illinois).If this is a case about voluntary desegregation plans in K-12 systems, think Parents Involved, then we need to understand something about education law, rules about the autonomy of local governments, and perhaps police power. So at this stage we need to try to put our case into a web of legal arrangements that extend far beyond the specific principles of the First Amendment or the Equal Protection Clause.  We're trying to see how the visions of constitutional order we've previously identified intersects with other areas of law.

Fourth stage: At this point, we need to expand our examination beyond our narrow focus on law. If we're looking at Citizens United, we want consider what political science or economics tells us about the workings of election campaigns and finance, or the changes in the role of corporations in the US and global economy. We might want to look at how political campaigns work in other democracies, or what corporations can and cannot do in other nations.

If we were looking at Parents Involved, we might want to explore what sociologists or historians tell us about how our understanding of the role of schools, particularly public schools, changed over the past 50 or 100 years.

At first, we'd need to examine these issues independently, doing our own research. But once we've done that, we need to circle back to the case, to see whether and how the parties and the courts relied on social science research and to evaluate that work in light of our own.

That social science research puts the opinion into an empirical context. In some cases it might also suggest that the reality on the ground is far different from the assumptions of our constitutional order. And that would invite discussion about what the implications of that disconnect.

That would pretty much fill a semester, and the various stages would provide opportunities for a wide range of research projects for individual students, or groups of students, depending on the size of the class and the research and writing requirements the class was supposed to fulfill.

We'd want to end the semester with a discussion that looked at the context we've put the opinion in, to try to see what that tells us about the constitutional order as a whole. But in the grand scheme of things the conclusions we reached, as a class or as individuals, would be secondary to the main point of the class, which is to see how a single case sits in the middle of a huge network of legal principles and precedents and constitutional assumptions.

Can it be done? Sure, I do something like this in research seminars I teach for undergraduates, though on a much smaller and less complicated scale since I'm working with students who have no legal background and no legal research skills. Does it work? With undergraduates it does sometimes and sometimes it doesn't, but that's more a statement about my teaching skills (and maybe the alignment of the planets) than it is about the viability of the course itself.

That said, I recognize it would be a very hard course to teach at the law school level, for several reasons. My guess would be that preparing and running a class like that would be at least as time consuming as teaching a 4 credit property course to 100 students.  It would take a lot of pre-class preparation (though like many courses of this sort, each time you taught it you'd find it was easier to prepare.) But even then, even if the students did a lot of the heavy lifting by researching and writing up the various issues that were raised, coordinating all that and enabling the discussions along the way would be tough. A law school would have to experiment. Perhaps a only core group of professors should be assigned to teach this course. Perhaps the course should be team taught.

Of course, the problem is not just finding willing faculty. The course would probably also be a hard sell to students, because there would be so much research and reading involved and since it doesn't teach any principles of law. I'm not singularly sympathetic to the argument it would be too much work, but for those who are sympathetic there are a couple of responses.

The most obvious is to give the course more than the usual number of credits for a seminar. If seminars are typically two credits, than this course requires three credits, at least. Four would probably be better, I'd be fine with five or even six. The point is this is a big course for the faculty and the students involved, it will take a lot of work. Let's treat it that way by crediting it accordingly.

That might alleviate some of the student concern, but maybe it's not practical. Another, simpler way to reduce the amount of reading and writing for each student is by making the class bigger than the usual seminar. A bigger class means that the various projects could be spread around so that the work each student had to do would be smaller (thought it also means that the person teaching the class would have to do more work coordinating).

With respect to the argument that the course is unappealing because it doesn't teach any principles of law, I would say that was precisely the point. Like lots of law school courses (like lots of grad level courses, period) it teaches a process or point of view. Here, the purpose of the course is to encourage students to think about how a particular case fits into the larger picture of our constitutional order and the relation between the constitutional order and our legal system more generally.

And that's why it strikes me that this is a good capstone course for a law school. After three years of having to focus on the details and narrow areas of law, a course that pushes students to take a step back and look at things from a larger perspective strikes me as valuable.




Posted by Elizabeth Dale on November 26, 2010 at 10:31 AM | Permalink | Comments (1) | TrackBack

Thursday, November 25, 2010

Happy Thanksgiving

From all of us at Prawfs, I wanted to wish all our readers and contributors a bountiful and blessed Thanksgiving Day.

I wanted to revive also a tradition that we let lapse a few years ago.  Given the spirit of the day, we should be in the business of praise and thanks to our colleagues. Let me invite readers to participate in what I hope will be a fun activity. I'd like you to select a law review article or essay or review (other than your own of course) that was published between last Thanksgiving and this one, and explain why you think that publication is outstanding. Did it change the way you thought about a particular subject? Did it reveal information that we didn't know before that now helps us understand law and society better? Just give a few sentences to describe what you think its contribution is. It can be from any field so long as it was published in a law review, whether student-edited or peer-reviewed. With some luck, we'll remember to do this next Thanksgiving, and we'll start a new tradition...

Posted by Administrators on November 25, 2010 at 01:34 PM in Blogging | Permalink | Comments (2) | TrackBack

Happy Thanksgiving!

Although, I admit, my mind at the moment is primarily focused on deep-fried turkey, pumpkin-molasses pie, mocha-pecan pie, ginger-cranberry sauce, chorizo stuffing, corn-and-bacon pudding, garlic mashed potatoes, squash soup, cranberry mojitos, and malbec . . . I suppose it's worth remembering the words of Abraham Lincoln, shared during some pretty tough times (1863):

A Proclamation.

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consiousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

Best wishes to all!

Posted by Rick Garnett on November 25, 2010 at 12:25 PM in Rick Garnett | Permalink | Comments (4) | TrackBack

Son of Con Law

In my previous post I asked why law schools were backing away from requiring constitutional law courses.  It's clear from some of the responses that I was not completely clear about what I was getting at, so this is by way of an effort to be slightly clearer. And, since in reflecting on what I wrote I realized that I had focused on a part of the issue, rather than the whole problem, it is also an effort to elaborate. 

Let me start by saying that I do realize that law schools still teach constitutional law, either in independent con law courses, or as part of courses on other subjects. My puzzlement about the former was that those courses increasingly were not required; I tried to capture my concerns about the latter in my obviously unsuccessful metaphor about the phrase book.

So let me try to rearticulate my worries about fitting con law into other required courses, because I think that's a good way to get in to what I think is the larger problem that I completely failed to engage in my earlier post.

I worry that by moving constitutional law issues into other substantive courses and abandoning a required con law course in the process you teach students to approach constitutional issues only from the perspective of other areas of law. Take the example of Takings. If you teach it in a property course you do make it relevant in a way it probably isn't in a general con law course. But the cost is that you teach Takings only from the perspective of property.

There are any number of ways you can do that, of course: you can teach that the Takings clause is the perfect expression of the Anglo-American property law; you can teach that it is a constitutional distortion or check on the wisdom of the common law as modified by statutory reform; you can teach it is a reflection of the fundamental connection between property ownership and constitutional status.

Regardless, in any of those approaches what you are doing is teaching students to think of the constitutional principle only as a part of property law.  You are giving students a check list that includes a few constitutional terms to check off, but you are not encouraging them to think, either as students or lawyers, of our property regime within the context of a larger constitutional order.

And that's part of what I was trying to get at in my previous post.

But I see now that I failed to fully think through my puzzlement with the law school approach to con law. Because even a required, stand alone constitutional law course teaches a piece of constitutional law in isolation. And as I reflect on the matter, that strikes me as being as big a problem, or, more accurately, it strikes me as being an expression of the same problem. In both cases, we're carving up constitution into bits and and suggesting that its reasonable to think of the bits independently.

At this point, I should probably reveal, in a suitably hushed tone, that I am a big fan of Justice Douglas' opinion in Griswold. Outcome aside, though I'm all for that too, I really like his holistic approach to interpreting the constitution.

Having lost at least half the audience with that shockingly unserious revelation, let's unpack that thought a bit. Even if you reject the idea that there is a right to privacy (or if you object to the idea that the right to privacy includes a right to contraception), it seems to me that many of us can agree that there is much to be said for reading the constitution as a whole. It defines a constitutional order, and focusing on parts of that order in isolation, whether we do it in a class or in a case distorts that order. Theoretically, intellectually, textually, or historically, it strikes me there is a lot to be said for a holistic approach to reading and interpretating the text.

And even if it is not an appropriate approach to making constitutional claims (I can accept the argument that we have not done it that way for so long that it would be a pretty revolutionary act to start doing it now), it seems to me there is much to be said for trying to teach the constitution as a whole, rather than as a collection of parts. Of course, I recognize that teaching the constitution as a whole would be impossible in a single semester's course, required or not. It would be hard to do in a full year course. Maybe you could do it in three years, I'm not sure. 

Now I teach constitutional history, so from my perspective that's a feature, not a bug. But reasonable minds might differ. So how do you teach students to think about constitutional issues in a holistic fashion, if all you have is a semester to do it?

I need to go get ready to head out for Thanksgiving. So I'll deal with that tomorrow.

Posted by Elizabeth Dale on November 25, 2010 at 11:51 AM | Permalink | Comments (1) | TrackBack

Wednesday, November 24, 2010

Petition Drive for Anti-Circumcision Ballot Initiative in San Francisco

News comes to me of a petition drive for a ballot initiative that would ban circumcisions in San Francisco.  Its supporters say the law will "make it illegal, except in the case of  extreme medical emergency, to circumcise male infants and minor children" in the City and County of San Francisco.  The proposed language can be found here.  It would ban circumcisions for minors except where "the operation is necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available" and is performed by a licensed medical practitioner.  It further states that "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."

This raises some interesting questions.  Under prevailing Free Exercise jurisprudence, the law as written strikes me as neutral and generally applicable.  The more pressing question is whether it nevertheless is unconstitutional because, under the Supreme Court's decision in Lukumi Babalu Aye, it creates an exemption for non-religious circumcisions but none for religious circumcisions and thus can be read as not truly neutral or generally applicable.  Under Ninth Circuit law, however, the existence of a single exemption, tailored to a specific concern like a medical emergency, may not suffice to rebut the rule in Employment Division v. Smith.  (See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134-35 (9th Cir. 2009); Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 701-02 (9th Cir. 1999) [subsequently abrogated on other grounds]).  Even in those circuits that have been more aggressive in treatment the existence of non-religious exemptions as creating a strong suspicion that the law discriminatorily fails to show equal regard for religious claims for an exemption, this law might still pass muster, since the single exemption serves the ostensible purpose of the bill.  One story on this petition suggests that the language making clear that there is no religious exemption may itself endanger the petition.  Of course, that language could be excised easily enough (pardon the pun or not as you please) at the drafting stage, but I don't think the language is necessarily constitutionally problematic.  It simply clarifies that no other reason for an exemption save medical necessity is acceptable.  The petition is hostile, to be sure, but not just to religion--it's hostile to medically unnecessary circumcision in general.  (I take no position on what California state constitutional law provides on these issues.)

So the law might be constitutional despite its obvious disproportionate effect on those who seek circumcisions for religious reasons.  But is it wise policy?  Consider that the law makes an exception for physical health, but not for emotional well-being.  Consider, too, the possibility that this might drive those seeking circumcisions into the hands of back-alley mohels, sometimes charging outrageous fees and operating in circumstances that, because unregulated, might be much more dangerous to the patient.  Finally, although one could argue that circumcisions could easily be obtained elsewhere, this makes circumcision available to the wealthy and places a strong burden on the poor, for whom travel might be difficult and expensive.  In other words, on a matter of profound importance to intimate family relationships and personal autonomy, we might have one law for the rich and one for the poor.  

(Yes, I am drawing an analogy.  Yes, the analogy is imperfect.)  


Posted by Paul Horwitz on November 24, 2010 at 07:29 AM in Paul Horwitz | Permalink | Comments (27) | TrackBack

Tuesday, November 23, 2010

Con Law, not so much?

As I think I mentioned earlier, I mostly do constitutional history. Specificially, I teach several types of constitutional history. I teach US Constitutional History in a general course for law students and graduate students in history, political science, and related fields; I also teach some more specialized law student/grad student constitutional history courses: I've taught a seminar on civil rights in times of war and trouble and a course that looked at constitutional history through the lens of citizenship. In addition, I frequently teach a law student/grad student seminar on comparative constitutional history, which compares constitutions across time and space.

And in my history professor guise I teach a lot of different undergraduate courses in constitutional history, from a course in the long history of civil rights, to research seminars on particular famous constitutional cases, to the usual overviews.

Almost all of my research and writing has been in constitutional history, broadly defined. I've looked at efforts to create a religiously based constitutional order in Massachusetts Bay colony in the 17th century. I've written about the intersection of criminal law and constitutional forces (specifially popular constitutional forces) in 19th century criminal law, and I'm starting work on a project that looks at transnational constitution-making efforts in China at the turn of the Twentieth Century.

And before I got into all this academic stuff, I was a civil rights attorney at a firm that specialized in the 4th Amendment claims, and also did employee work that sometimes raised constitutional issues.

So I've basically been dealing with constitutional law, from a variety of perspectives and in quite a few settings, for my entire working life. And I admit to being a bit puzzled by the role of constitutional law in law schools.

I should probably make a pre-emptive confession here: I cut most of my constitutional law classes when I was a law student.  So I understand that it's not always a particularly gripping course, even for people (especially for people?) for whom constitutional law is fascinating.

But even given that, I'm a bit puzzled by the fact that it seems to play a smaller and smaller role in the law school curriculum. As best I can tell, and I have not exhaustively reviewed the first and second year curriculum for most law schools, a number of law schools no longer require Constitutional Law I. It also appears that those schools that do require a semester of constitutional law rarely require, or even recommend, further courses in constitutional law. And those schools that do not require any constitutional law often do not recommend, or strongly recommend, students take it.

And that strikes me as odd, for several reasons. At some basic level, the constitution is about the only thing, aside from geography, that we share as a nation. (I hasten to assure you that I use the word "share" very loosely, I have grasped that in many ways what most unites us are our bitter disagreements over what the constitution means.)  And while one could once assume that students who finished grammar school had studied the constitution (it was a requirement for graduating from 8th grade and from high school when I was a K-12 student), I assure you that that is no longer the case. My undergraduates rarely have studied the constitution before they take one of my history courses, and often have hazy (if not disturbingly wrong) ideas of what it provides.  I doubt they are unique.  Given that the constitution is no longer taught to younger students on a routine basis, I am puzzled by the fact that law schools are de-emphasizing it as well.

I've heard, I concede, the argument that there is no reason to waste a slot in the law school curriculum on constitutional law since most students at most law schools are not going to be Supreme Court clerks or ACLU attorneys.  I suppose that's true. But again, I was neither a Supreme Court clerk nor an ACLU attorney, and I spent five years writing memos and drafting arguments that rested on constitutional history and precedent. 

But more to the point, the argument that most law students are going to do bankruptcy, or real estate transactions, family law, or corporate work and don't, therefore, need constitutional law strikes me as resting on an oddly constrained theory of law. Don't property lawyers need to know something about takings or the scope of the provision that no state shall deprive a "person of ...property without due process of law"? In a post Citizens United world, wouldn't it help if corporate attorneys understood the First Amendment?  Might it not be that issues of citizenship, or equal protection, or religious freedom sometimes came up in family law cases?

But there's more to my confusion than that. The argument that there is no need to teach law students constitutional law because most of them will not be constitutional lawyers seems to me to rest on the strict category divides that drive law school curriculum. And those divides strike me as being both artificial and not the way the world works (or has worked).  There is slippage between most of law's curricular categories, as when a theory from torts influences contract claims or vice versa, and we all know that. But somehow, we can't work from that accepted principle to what seems to me to be the equally obvious principle that constitutional assumptions have shaped and will continue to shape many non-constitutional areas of law. Even if a divorce case involves no questions of citizenship, or equality, will involve theories of due process and equal protection of the law. And even if that divorce case is settled before trial, the likelihood of settlement and the willingness of the parties to enter into the settlement are, also, determined by professional and lay conceptions of process and rights that are, at their heart, constitutional.

So I don't think you can fence off constitutional law and say "we don't need to really teach it, our students will never use it." Nor am I persuaded by the argument that the best way to deal with any constitutional principles that might influence other areas of law is to raise the constitutional issues in classes that focus on those other areas. If all students read are three cases on the First Amendment rights of corporations in a corporations class, I'm hard pressed to believe they'll know much about the First Amendment or how it might effect a particular corporate client. The same is true if they read two cannonical cases on child custody and the constitution in a family law course.  In either case, you are giving law students the academic equivalent of a tourist's phrase book. That's hardly going to make them fluent or particularly inclined to try to become fluent somewhere down the line. It may not even make them capable of articulating a comprehensible request for help should the need arise.

It strikes me as a better argument that constitutional law courses as they are currently conceived don't provide a particularly helpful background for students, either. To make that point more directly, the strongest argument against my suggestion that lawyers in many areas of law might, sometimes, need to be able to address constitutional claims or think in constitutional terms as part of their work, is that the basic constitutional law sequence as it is taught in law schools really doesn't provide them with the sort of background that might help them.

But my response to that is that just proves we need to teach constitutional law to law students differently. I'll return to that in a latter post. For now, I'm interested in knowing if there are other arguments out there for dropping constitutional law as a required course, or reducing the number of con law courses that are routinely offered at a law school.

Posted by Elizabeth Dale on November 23, 2010 at 04:07 PM | Permalink | Comments (8) | TrackBack

This season, I am thankful for…

Yesterday, Cravath, Swain & Moore announced associate bonuses that largely match last year’s rates.   According to an article in the New York Law Journal, bonuses will range from $7,500 for associates in the firm's 2009 class to $35,000 for senior associates.  

It was not that long ago that I anxiously awaited Cravath’s announcement, knowing that most other firms (including the one where I worked) would follow Cravath’s lead.  To be sure, bonuses were higher when I was in practice.  In fact, in my last year at a large NYC law firm, bonuses started at $35,000.  But even this year, $7,500 for first year associates, on top of a $160,000 starting salary is a nice chunk of change (although it seems that associates at these firms do not agree). 

A Holiday Bonus.  That is one thing that I miss from my days in practice.  On the other hand, after three years in the academy, I still cannot believe that I get paid to think and write about the law and teach students to do the same.  So, this season, I am thankful for my job.   


Posted by Ashira Ostrow on November 23, 2010 at 02:17 PM | Permalink | Comments (2) | TrackBack

Me on ACSblog on Ghailani

Although I'm a bit late to the party, I have a guest post up today over at ACSblog on last week's near-acquittal (that term itself is telling) in the Ghailani prosecution.  The post isn't about the result so much as it's a critique of one of the more original responses thereto...

Posted by Steve Vladeck on November 23, 2010 at 11:47 AM in Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Knowing your audience or getting too cute

Last week, a criminal defense lawyer, Bennett M. Epstein, sent a letter motion to Judge Kimba Wood (S.D.N.Y.) in a case which is due to begin trial on November 29. Styled a "Writ of Possible Simcha," the letter explains that Epstein's daughter is due to give birth to her first child on December 3. The letter then goes on to explain the possible effects on trial scheduling:

Should the child be a girl. not much will happen in the way of public celebration. Some may even be disappointed, but will do their best to conceal this by saying, Has long as it's a healthy baby". My wife will run to Philly, immediately, but I will probably be able wait until the next weekend.    There will be happiness, though muted, and this application will be mooted as well.

However, should the baby be a boy, then hoo hah!J Hordes of friends and family will arrive from around the globe and descend on Philadelphia for the joyous celebration mandated by the halacha-' to take place during daylight hours on the eighth day, known as the bris.    The eighth day after December 3rd could be right in the middle of the trial.    My presence at the bris is not strictly commanded, although my absence will never be forgotten by those that matter.

Judge Wood granted the request with the following handwritten order on the bottom of the letter:

Mr. Epstein will be permitted ot attend the bris in the joyous event that a son is born. But the Court would like to balance the scales. If a daughter is born, there will be a public celebration in Court, with readings from poetry celebrating girls and women.

This is all in fun. In the letter, Epstein provided footnotes with Yiddish translations and explanations. And he even wrote out "tfu tfu tfu" in the letter to represent the sound of spitting to ward off the evil eye (I think I would have spelled it differently). So I am not trying to take this too seriously.

Some are seeing this as Judge Wood standing up to the perceived imbalance and unfairness of the different treatments of the births of boys and girls--the birth of a girl is a subject of disappointment and muted happiness, while the birth of a boy is hoo hah (which I never realized has its origins in Yiddish). Accepting for the moment that Epstein's attitude reflects widespread Jewish religious/cultural beliefs, should a judge be opining on that matter, even if only jokingly?

Is there an interpretation of the letter that does not truly suggest the birth of a girl is a lesser event that is less worthy of celebration? I tried to suggest that Epstein's point was that the public celebration of a girl would not be immediate; baby namings (the modern ceremony for welcoming girls into the Jewish faith and Covenant) often do not happen on the eighth day (our daughter's naming did not happen until she was almost seven months old) and thus could await the end of trial without the need for an off day. A generous reading of the letter, to be sure. But is it a fair reading?

Epstein's letter is the latest example of a lawyer gaining some attention (at least in the world of legal blogs) from trying to have some fun with a routine request to a court, dressing it up with legal jargon into a formal motion, written in a very tongue-in-cheek manner. You see something like this around big sporting events, where the attorney requests an extension because he has tickets to some big game (I recall one last winter from a lawyer in New Orleans on the eve of the Super Bowl) and has some fun creating a "legalistic" explanation for why he must attend the big game. I am all for making these sorts of law jokes in private settings (my former judge once signed a Writ of Habeas Corpus as part of one of his clerks proposing to his girlfriend) or even in the informality of this blog. Is it somehow different when it goes public and becomes part of the public litigation record? Especially when it turns into a mini colloquy on gender equality? And is "humor" such as this becoming more common in litigation, as blogs enable the routine paper filed in a single litigation to be seen around the world?

Again, please don't think I'm taking this too seriously. Just something to think about.

Posted by Howard Wasserman on November 23, 2010 at 09:01 AM in Civil Procedure, Culture, Howard Wasserman | Permalink | Comments (4) | TrackBack

Seemed like a good idea at the time

Early this month, Chris Suellentrop suggested that we all Abandon Ownership! Join the Rentership Society! Suellentrop noted that he and his wife barely broke even on the sale of two condos, while they were able to save money renting, and had the flexibility to adjust to economic downturns. Something else about the article caught my attention. His wife described their decision to sell their automobile and use rental cars when the need arose as "Netflixing a car."

We are certainly gravitating toward a rentership society with regards to our intellectual property consumption.  While some resist the shift by continuing to purchase corporeal embodiments of mass media in book, CD, or DVD format, others fully embrace the rental life with monthly subscriptions to Rhapsody / Zune music subscriptions instead of purchasing music, in either physical or MP3 formats. Just this week, Netflix began offering a streaming-only service for consumers no longer interested in receiving and returning DVDs. Suellenpost suggests the winner of the ebook market will be the company that figures out rental services for ebooks.

In many ways, I wonder if those holding on to the vestiges of an ownership society are simply fooling themselves - or being fooled. The key feature of digitally intermediated services offering intellectual property works, whether for purchase or sale, is the clickwrap license. While our principles of contract law are designed to allow private ordering, and built on assumptions about equally situated parties negotiating the details of an arms length business transaction, we live in a world of unilateral ordering, where consumers are offered boilerplate terms that they may take or leave, but over which there is no room to negotiate. This clickwrap world resembles a federalism of contract law, where the best we can hope for is that some company will offer us terms we are willing to accept, and our only option is to vote with our feet (or in the internet sense, our eyeballs).

Of course, much like the winds of legislative change can alter the terms of the service we thought we bought into when move from State A to State B looking for the right social compound from the laboratory of federalism, boilerplate terms change. The default moves with the design of the provider. Facebook has continually reset the default between your public and private information in favor of more disclosure, and most of the changes to its privacy policy have favored complication over clarity. It is only a slight exaggeration to say that managing your privacy settings is nearly as difficult as selecting your prescription drug coverage under Medicaid Part B. This was not the trip for which many Facebook users originally signed up, but it's the ride they are on. Perhaps the phrase unilateral ordering is misplaced, and I should instead use the term unilateral re-ordering.

There is some hope, at least in some states, that unilateral changes in terms of service are not enforceable, and may constitute a breach of contract. Nevertheless, if iTunes soon tells me that the terms of the deal have changes, and I now need to rent from them the mp3s I thought I purchased those many months ago, it may no longer seem like the deal I signed up for at the time, but it also may not be a surprise.

Posted by Jake Linford on November 23, 2010 at 08:55 AM | Permalink | Comments (0) | TrackBack

Monday, November 22, 2010


I recently finished grading the midterms from my Contracts I class.  It was quite a significant task to make it through all the exams while in the middle of my first semester of teaching.  I gave the exam because of my school's policy that all first-year classes give a midterm - one that (for the most part) does not count towards the students' final grade - in the fall semester.  I thought given the amount of work that it required that I would choose not to do so in the spring semester.  However, after seeing how much the midterm clarified for the class what I expected on an exam, I'm leaning towards doing so next semester as well.

I'm wondering how many of you give midterms, especially in the first year and whether you've had similarly positive results?

Posted by Michael Helfand on November 22, 2010 at 11:34 PM | Permalink | Comments (0) | TrackBack

Thanksgiving Week Distraction: Obscure numerical literary references

Yesterday, we went to the Miami International Book Fair's Street Festival. We stopped at the booth for Novel-T, which sells "jerseys" for authors and fictional characters, each with a logo on the front and the name and number on the back. There are two teams--the American Canons (great authors/characters from 19th century American literature) and the National Puncs (mix of American and non-U.S. writers, including one living writer).

According to the reps at the booth, each number is significant to the character or author--some obvious and some obscure. After the jump, I present the "line-ups" for the two teams. In the comments, let's here your best guesses as to the significance of each number to the character or author.

American Canons

Dick -- 1

Ahab -- 2

Prynne -- 8 (the front logo, obviously, is an 'A'--my wife got this one)

Bartelby -- 9

Whitman -- 11

Sawyer -- 12

Poe -- 13 (two possible logos--a heart or a raven -- I got the latter)

Finn -- 14

Thoreau -- 28


National Puncs

Gatsby -- 3

Dickinson -- 4

Vonnegut -- 5

Alice -- 7 (logo on the front is a cupcake)

Darcy -- 10

Ames -- 20

Darwin -- 22

Quixote -- 51

L. Tzu -- 69

Trout -- 81
















I ain't building no bookcase

Posted by Howard Wasserman on November 22, 2010 at 08:51 AM in Culture, Howard Wasserman | Permalink | Comments (2) | TrackBack

The Blogging Persona

Here is a beautiful essay by Carl H. Klaus from the Chronicle of Higher Education called The Put-Ons of Personal Essayists.  Although Klaus writes about how essayists invent a persona that seems "personal," I was struck by how applicable his insights are to blogging.

Posted by Lyrissa Lidsky on November 22, 2010 at 08:44 AM in Blogging, Lyrissa Lidsky | Permalink | Comments (0) | TrackBack

Sunday, November 21, 2010

You Keep What You Kill

The New York Times today has an interesting column by Ariel Kaminer about farms that "allow[ ] customers to choose their animals, to witness their slaughter and even, for those so inclined, to wield the sharpened knife. It’s all part of the broader cultural effort to escape the climate-controlled, linoleum-lined artificiality of supermarket shopping, in which meat magically appears all ready for your oven and animals are characters in children’s storybooks."  

The comments on the column are mostly about vegetarianism, meat-eating, feeling connected to your actions instead of being a mindless consumer, etc.  But I confess that my first thought upon reading the column was that for a certain class of reasonably wealthy and well-educated Americans, morality -- or, more to the point, the experience of morality -- has itself become something between a tourist experience and a luxury good.  I won't belabor the point, but its applications to law, and to the kinds of legal issues that attract the most attention in the legal academy, seem boundless.  

(Hat tip for the title: The Chronicles of Riddick, of course.)

Posted by Paul Horwitz on November 21, 2010 at 09:47 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

The (Untenured) Demise of the ALWD Citation Format

Dave Hoffman at Concurring Opinions posted an interesting article about ALWD, a citiation format taught in many legal writing programs. The upshot is that, although similar to the Blue Book citation format, it is not identical and is thus being rejected at many schools because employers desire students who know how to "bluebook" rather than use some other format. The post has a lot of interesting feedback from LRW professors about their experiences.

I had a couple comments on the post, and they turned out to be long enough for a post of their own.

I think the worries about imperfect bluebooking or ALWD in practices are overrated. I was (and still am) a terrible bluebooker, and I never got chided by a district or appellate court (and I've been in front of some tough ones). Indeed, courts often fail to follow the bluebook.

That said, I do think lack of knowing bluebook has two important effects, both of which are created by over-rigidity, IMHO. First, if employers are asking if you know the blubook (instead of knowing how to do citation), and you can't answer yes, then that's a problem. Granted, it's an overly rigid question to ask and an unprincipled sorting mechanism, because one can learn the basic bluebook principles pretty quickly and the hard ones should be looked up anyway to make sure they haven't changed.

More important (to me at least) is the role of students as research assistants. When I first started teaching, my first two RAs were not on law review. I asked them to put citations in memos and to bluebook articles. The citations were always just off. For the longest time, I was really irritated. Then I realized that they were doing ALWD, not bluebook format. Incidentally, we started teaching the bluebook a year later; there was just no justification for teaching a system that no one in practice actually uses.

Now, why was I irritated when judges might not have been? Because of the rigidity required by the law reviewsto which  I submit articles. They want bluebook, and submitting a draft that's not in conformance reduces the chances of acceptance by some amount when I'm competing with others that have perfect citations. (I don't mean to imply that all articles editors consider the amount of work in editing, but it's not a chance I want to take, especially pre-tenure).

If I knew that any consistent citation format that indicated source would be sufficient and equally judge by every review, I wouldn't have checked so closely or have been so irritated initially. Thus, it's a closed system. We use a rigid format because we are told we have to; we don't want editors to be irritated in the same way I was. Perhaps at some point the rigidity will relent, but it won't be before I get tenure, so bluebooking it is (and goodbye ALWD).

Posted by Michael Risch on November 21, 2010 at 06:42 PM in Life of Law Schools | Permalink | Comments (11) | TrackBack

Friday, November 19, 2010

A descriptive defense of the new obscenity

I received a phone call from a learned reader in response to my earlier post on the new prohibition on animal-crush videos. The reader suggested that, while hardly slam dunks, the arguments in support of H.R. 5566 may be closer than I suggested. So I thought I would lay out those arguments (as they came through in our conversation) for why Congress thought this would work.

First, although Congress did not define obscenity in the statute, finding # 6 stated that "many animal crush videos are obscene in the sense that the depictions, taken as a whole, appeal to the prurient interest in sex, are patently offensive, and lack serious literary, artistic, political, or scientific value." One possibility is that a court applying the statute will look to this finding to provide the definition in § 3(a)(2), as well as the elements the governemnt must prove in any prosecution under the statute. Interestingly, there was at least early discussion of a legislative declaration that crush videos are obscene (under this definition), with the court bound by that definition in its findings, but that idea was rejected. Good thing, too, because that would seem to be a pretty clear violation of Klein's prohibition on Congress dictating findings to courts.

Second, although there is some absolute language in Chief Justice Roberts' Stevens opinion suggesting that the Court would not recognize any new unprotected categories, perhaps we need not read the opinion for all its worth. The closing paragraph did expressly reserve judgment on "whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional." Perhaps the Court might be willing to adopt this new, narrower category as unprotected. Importantly, this new category almost perfectly tracks an existing unprotected category--obscenity--except for the requirement in the second prong that what is patently offense be "sexual conduct." So maybe the Court will be receptive to finding a new unprotected category grounded on 85 % of an existing categorical definition.

Third, perhaps Bartnicki's rejection of dry-the-market as a government interest for regulating protected expression is not as absolute as my broadest reading would suggest. This is especially so in light of Justice Breyer's concurring opinion, which adopted a more open-ended balancing approach. Thus, even if animal-crush depictions are not categorically unprotected, perhaps the Court will accept drying the market as a compelling interest justifying this ban as part of a strict scrutiny analysis. This argument becomes particularly strong when we compare crush videos with dog-fighting videos (the speech at issue in Stevens). Most dog fighting will occur regardless of whether it is recorded or distributed; the point is to hold the fight, not to create and sell its depiction. Banning dog-fighting videos will not eliminate the conduct, because the videos do not drive the conduct. Animal crushing only occurs for the depiction and the marketing of the depiction, so a ban on the sale and distribution of videos might better eliminate the underlying conduct.

Again, none of this is a slam dunk. And I obviously prefer my initial reading of the case law; were I a judge, I would not buy these arguments. But this appears to be how things are going to play out.

Posted by Howard Wasserman on November 19, 2010 at 10:15 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2) | TrackBack

"Choses in Action" and the "Life, Liberty, or Property" Interest

The New York Times recently published an article on institutional investors increasingly investing in private litigation.  This development, understandably, is "send[ing] shivers down the spines of general counsels all across the globe,” but even this increase in financing options leaves many parties on the defense side with an inherent advantage.  Traditionally, the law of champerty and maintenance has, with few exceptions, prohibited the outright selling of claims to third parties.  Thus, private litigation on the plaintiff-side has traditionally been financed through debt instruments like loans.  Even the hedge funds and the private equity firms discussed in the article are mainly serving as lenders, not equity holders.  By contrast, litigation on the defense side is financed by whatever financial options are available to the defendant, and thus can take advantage of capital markets not available to plaintiffs. 

I am highlighting the article not to wade into the debate on whether this increased investment activity is a good thing, but to discuss the law of procedural due process.  In my previous posts (here, here, here, and here) I have argued that the problem of mass torts is best understood as a property problem.  Specifically, individual ownership of each claim by the plaintiffs leads to suboptimal results for everyone.  In fact, it leads to self-defeating behavior, because individual ownership leads to less than optimal deterrence and, as a result, more mass torts.  So one way to avoid the problems posed by individual ownership is to collectivize ownership of the claims through a class action.  So what do I mean by that, and how does this relate to the law of procedural due process?

The Due Process Clauses found in the Fifth and Fourteenth Amendments prohibit federal and state governments from "depriv[ing] any person of life, liberty, or property, without due process of law."  In civil litigation, the Supreme Court has recognized the claim, sometimes referred to as a "chose in action," as a protected "property" interest for purposes of the Due Process Clause.  Setting aside the issue of state action,  the idea is that a plaintiff's "chose in action" cannot be "deprive[d]" without "due process."

A "chose in action," like any property interest, can be understood as a "bundle" of a number of entitlements.  Litigation financing implicates two such entitlements.  One obvious one is the right to alienate, or sell, the property, which Roman civil law referred to as the "abusus."  The law of champtery and maintenance severely restricts this entitlement, which some have criticized.   Another entitlement is the compensation that each claim could provide, at least contingently.  This was referred to as the "fructus" under Roman law but can also be understood as the "beneficial interest" of the "chose in action." Understandably, it is the "fructus" that is motivating recent investment in litigation.  Apart from these two entitlements, a third entitlement is the right to dispose of the "chose in action," understood under Roman law as the "usus" but analogous to the "legal interest" or the "legal title" in the chose in action. 

These various entitlements may sound somewhat ornate and arbitrary, but they actually have some significance, even in recent Supreme Court cases.  For example, in Sprint Comm'ns v. APCC Servs., the Court had to consider whether an "aggregator," that is, a third party hired to bring claims on behalf of pay numerous phone operators, had standing to sue for statutory damages owed by long distance providers like Sprint.  Providers like Sprint owed the amounts because they allowed individuals to avoid paying the pay phone operators by calling numbers like 1-800-COLLECT.   By contract, the aggregators could bring the claim but had to remit all proceeds back to the long distance providers.  So does an aggregator under this arrangement have standing?  The Supremes held yes, drawing on a history of cases where an individual with "legal title" to a claim was permitted to sue even though the entire "beneficial interest" remitted to another party.  Of course, as Justice Roberts pointed out, if you have nothing, you have nothing to lose, so it is unclear how the aggregators could thus establish an "injury-in-fact" for purposes of Article III standing.  Nevertheless, the larger point is that the various sticks in the bundle that is the "chose in action" can be, and have been, sliced and diced.

Why does this matter for due process?  Well, one way to understand any potential "depriv[ation]" caused by the class action is to see it as, in essence, a taking of legal title.  It takes away the right of each plaintiff to use his or her "chose in action" as he or she sees fit, which is often described as "litigant autonomy."  In fact, the class action deprives the legal title of the claims and assigns it to a third party, class counsel.  But, as I argue in my draft, this judicial assignment (or something functionally similar) is necessary to avoid the strategic behavior caused by individual ownership of legal title.

I want to conclude by discussing one interest that cannot be adequately captured by the traditional "bundle of sticks" that define the "chose in action."  A "chose in action," like any intangible property interest, involves a number of entitlements, but the chose in action itself implies a further entitlement.  As most famously shown by Calabresi and Melamed, a "chose in action" is really a secondary entitlement that is meant to protect another, primary entitlement.  And the primary entitlement in mass torts is safety.  The "chose in action" is meant to deter parties from committing mass torts in the first place.  Now, the Supremes have been all over the map as to whether an entitlement to "deterrence" can be understood as "property" interest in and of itself, but it certainly is an interest that is wrapped up in the "chose in action."  As I argue in my draft, an entitlement to "deterrence," while perhaps itself not subject to independent protection (although others have argued for it as a matter of structural due process), should be included in the due process analysis as a private interest.  I will have more to say about this in subsequent posts.

Posted by Sergio Campos on November 19, 2010 at 05:45 PM | Permalink | Comments (0) | TrackBack

In Which the Miami Heat Are Shocked To Learn That They Play in Miami...

As a former Miami resident (let alone a former NBA fan), this is absolutely hilarious (and totally unsurprising). 

Posted by Steve Vladeck on November 19, 2010 at 05:42 PM in Culture, Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Friday Afternoon Jukebox

As always, three plays for $1.  Here are mine:

For that car commercial with the kids playing hockey.

For the new release.

And for the pardon.

Posted by Matt Bodie on November 19, 2010 at 04:19 PM in Music | Permalink | Comments (0) | TrackBack

Offensive Student Evaluations

It is that time of year again – student evaluation time.  Although the value of student evaluations has been questioned  (for example, see here and here), I used to take them pretty seriously. 

And then I got this one:

In response to the question “What are the best aspects of the course?” the student wrote: 

Professor is kinda hot – not bad to look at!

In response to the next question, “What advice do you have for the instructor to improve this course?” the student responded: 

Lose a few pounds. 

Really? An entire semester of Property, and that is what you came up with?   So now I take my student evaluations with a grain of salt and a pint of Ben & Jerry’s.  

Posted by Ashira Ostrow on November 19, 2010 at 11:34 AM | Permalink | Comments (20) | TrackBack

New crush video ban and understanding First Amendment limits

The House this week passed H.R. 5566, the Animal Crush Video Prohibition Act of 2010, the House adopting the version approved in the Senate in September. This is Congress' response to United States v. Stevens, which struck down as overbroad the prior prohibition on the creation, possession, and sale of certain animal cruelty videos. Kathleen Bergin wonders if the new law can survive challenge.

Just after Stevens came down and the conversation immediately turned to how Congress could re-enact the ban, I had my doubts. The key to Stevens was the Court's refusal to recognize animal cruelty depictions as an unprotected category (a la  child pornography) in which visual depictions of conduct can be proscribed as a way to stop the conduct itself (because the conduct could not be stopped purely by enforcing prohibitions on the underlying conduct, Congress attempts to dry-up the market for depictions of the conduct). And I did not see in the Court's reasoning a willingness to recognize even a narrower category, such as "animal crush depictions," as a new unprotected category of speech; Chief Justice Roberts really seemed to insist that it was a closed set of unprotected categories, most of them historically grounded. Finally, in Bartnicki v. Vopper, the Court had refused to accept dry-up-the-market for conduct as a proper government interest justifying regulations of constitutionally protected expression. Putting that all together, I could not see any ban passing muster--the statutorily targeted speech would not fall in an unprotected category because the Court was not willing to recognize such a category, so Congress could not ban the videos purely to dry the market to halt the underlying conduct.

The apparent solution was to work a pre-existing unprotected category into the statutory definition. Section 3(a) defines animal crush video as a video, photo, or recording that "depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled or otherwise subjected to serious bodily injury" and is obscene (presumably applying the constitutional Miller standard). That definition resolves the category problem--by defining crush videos as a sub-species of an already-unprotected category, Congress has a free hand to ban it.

The problem, as Mike Dorf pointed out when the Senate bill was still under consideration, is that the statute does not actually prohibit anything. Obscenity under Miller requires that the speech depict or describe, in a patently offensive way, sexual conduct, specifically defined. But the bill does not define any sexual conduct. And animal crush videos typically do not contain any sexual conduct or even any nudity. Although animal crush videos appeal to the prurient interest in sex and people are sexually aroused by watching them, that alone does not make the thing shown sexual--and if it is not sexual, it cannot be obscene.

It is possible, as some of Mike's commenters suggested, that the statute is using "obscene" in a narrower, more colloquial sense than Miller. But that does not really help. First, the statute does not define obscene, so there is an immediate void-for-vagueness problem if Congress wants to capture something other than the widely understood legal definition. Second, if the speech at issue does not fall within the constitutional definition of obscene, it is not unprotected (again assuming the Court will not recognize any new unprotected categories) and cannot be banned to dry-up the market.

So no conceivable real-world conduct could violate the statute. Which, I suppose, makes it constitutionally valid. It also makes it, as Dorf says, useless--prohibiting a unique animal cruelty "so deviant it does not exist." This is the perfect example of symbolic legislation.

Posted by Howard Wasserman on November 19, 2010 at 08:25 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1) | TrackBack

Wednesday, November 17, 2010

Religious hiring and discrimination, again

A hearing is scheduled for tomorrow, before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Committee on the Judiciary, on "Recommendations of the President’s Advisory Council on Faith-Based and Community Partnerships and Other Current Issues."  Among the witnesses are Barry Lynn, Melissa Rogers, and Doug Laycock.  Anticipating the conference, Marci Hamilton writes that it is "time to end government handouts based on religion."  (I would hope that the time to start such "handouts" never comes!)  Opposing a policy that would allow faith-based social-service agencies to take religion into account in hiring, even when they are cooperating with government, she writes:

 We face high unemployment, gigantic government overruns, and serious needs among citizens for meaningful and strong social services. If the federal government is going to subsidize social services, it has the obligation to demand the highest quality. And anyone working with those funds should have to be chosen based on credentials and experience, not religious identity. Any argument for a "bye" just because a group is religious is just bad public policy.

I am afraid I have to disagree with Marci on this.  In my view, there is no good reason to regard a religious social-welfare agency's hiring-for-mission as invidious and so no good reason to insist that such an agency give up its religious-hiring rights simply because its receives some public-funding in support of its social-welfare services.  And, I think Marci's piece mis-frames the question(s) presented:  No one is suggesting that such an agency, because it is religious, should get a "bye" from requirements regarding effectiveness and performance.  ("Credentials" and "experience" will remain, I am confident, highly relevant.)  No one is suggesting that such an agency should get a "handout," but instead that it should not be asked to give up something that matters as a condition of helping to promote the common good in cooperation with government.  And, no one (so far as I know) is suggesting that such an agency should (in Marci's words) be allowed to "discriminate in favor of co-religionists in the delivery of social services," if by "delivery" we are referring to the delivery of social-welfare services to their beneficiaries.

In any event, I'm confident that Doug will make the case better than I have, or could!

UPDATE:  The President's Executive Order on the matter is available here.

Posted by Rick Garnett on November 17, 2010 at 01:58 PM | Permalink | Comments (0) | TrackBack

FIU Law Review Symposium Now On-Line

Podcasts of last week's symposium at FIU, Cure, Botch, or Opiate? Law, Politics, Policies, & the Constitutionality of the Patient Protection and Affordable Care Act, are available. It is worth a listen. The symposium hopefully will be published in Spring/Summer 2011.

Posted by Howard Wasserman on November 17, 2010 at 01:19 PM in Current Affairs, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0) | TrackBack

New York has Lowest Voter Turnout in the Country

According to a recent article in the New York Times, fewer eligible voters turned out to vote in New York than in any other state.  Minnesota, one of only six states where voter turnout exceeded 50%, recorded the highest turnout at 55.4 percent. 

In other countries, voting is mandatory.  For example, in Belgium (which has one of the highest voter turnout rates in the world) non-voters can be fined, and those who repeatedly fail to vote in elections may be disenfranchised for ten years.  In Peru and Greece those who fail to vote may be denied various goods and services provided by public offices; in Bolivia non-voters can be prevented from withdrawing their salary from their bank accounts for three months following the election. 

Would compulsory voting work here?  I think not.  Even if it would, compulsory voting assumes that low voter turnout is a bad thing.  But in some ways, isn’t choosing not to vote just as valid a political choice as choosing to vote? 

Posted by Ashira Ostrow on November 17, 2010 at 01:06 PM | Permalink | Comments (1) | TrackBack

Obviousness and Cumulative Innovation

I've been spending time recently (way too much time, I think) participating in prior art searching for ArticleOnePartners, a company that pays its bounty hunters advisors prizes if they find prior art that invalidates certain patents. The company, in turn, uses the gathered research to license to patent defendants. The prizes used to be huge ($50,000 or so), but are now moderately big ($5K to $15K for the most part). 

It's no mystery why I do it: I want to win some money. I haven't won a big prize yet, but I've got a couple "studies" that I am optimistic about. Even without winning, the endeavor has been extremely helpful in developing my understanding about innovation, obviousness, and prior art. That's what I want to write about below the fold.

The story begins with conventional wisdom. Whenever a high profile patent is asserted, the media reports the claims in only the most general terms, like "the patentee claims to have invented hyperlinking." People reading the article immediately protest that surely this inventor could not have invented something so a) important or b) broad.

The reality is that few patent claims actually read like they are depicted in the media. First, they are usually much narrower than the media reports. For example, the "hyperlinking" patent was really a much narrower claim about hidden data that points to blocks of memory retrieved from a single central computer using a keypad. It's possible, of course, that clicking a link using a mouse (where the URL is not really hidden memory) to obtain a web page from a variety of servers would infringe by the doctrine of equivalents, but it's not clear. The technology in the patent describes no way to communicate with more than one server. (Of course, the owner sued Prodigy, who may have connected users to a single server).

Second, such claims, though usually narrower than reported, are also usually filed much earlier than people think. The hyperlinking patent, for example, was originally filed in 1976. If someone really did invent hyperlinking in 1976, my view is give them the patent - they were years ahead of their time.

This is where Article One Partners comes in. The company knows that it is difficult to find evidence that even narrow claims were not new when the patent application was filed early. It only takes one document or product to invalidate a patent claim, but only if that one piece of prior art includes every element of the patent claim. Further, because we often don't know when the claim was invented, we can only be sure to invalidate the claim if the prior art is dated one year or more before the patent filing date. This makes information very difficult to find. Thus, Article One Partners enlists others to find that prior art with money as a reward for a successful search.

My searches have opened a frustrating but fascinating window into the nature of innovation. As I look at each patent under review, I almost always think, "No way they invented that." (Sometimes, it really does seem like the patent was a pioneer.)  However, when I start digging, I find many instances that are close, but are not the same. Every time I think I've found the silver bullet, I review the patent claim and it includes some small detail that makes the invention different than what came before.

While "close, but no cigar" is not putting money in my pockets, it is helping me better understand innovation and obviousness. In just about every case (there are a few where I think I have found the silver bullet), you can see technology developing, with many companies racing to add the next feature, each building on the other. The most fascinating process to me is a claim for data storage in web pages. This is technology that every HTML form programmer takes for granted today - you put a variable name  and value into your dynamic web page so that it remembers what you've typed in when you load the next page. This method is so basic that it is part of every manual on HTML programming: "Authors may create controls that are not rendered but whose values are submitted with a form. Authors generally use this control type to store information between client/server exchanges that would otherwise be lost due to the stateless nature of HTTP..."

While hidden fields are basic now, they weren't basic in December of 1993, the cutoff date to invalidate this patent. While I think I have found invalidating prior art, the method was certainly not a standard. Instead, it was in the process of being invented by others at exactly the time of the cutoff. I found fascinating discussions among those who invented the HTTP protocol about how to store information between pages, and I found draft standard documents that were published two days before the cutoff.

This, I think is the most fascinating part of the experience. We talk now about "crowdsourcing" as if it were new, but a lot of innovation has come about through crowded fields with many fingers in the pie. The innovation process that was artificially cut off in my search reached the identical solution in the patent soon thereafter (if not before).

My final point is that this innovation process affects how we should think about obviousness. Where the crowd is close and quickly moving, it seems that many of these inventions should be considered obvious. Obviousness is how one determines whether a close, but not identical, piece of prior art invalidates a patent. Patent law has an obviousness factor called "simultaneous invention," and I've come to believe that the factor is woefully underused. In some cases the patentee may make a leap away from the crowd, but I am finding that for many of these patents, the inventor won the patent only because he or she was the first to the patent office and it was difficult to find out how others were doing the same thing. 

I am convinced that as search engines digitize and index more of the world's information, more patents will be invalidated as obvious. I am surely not the first person to be convinced of this, but I have now seen first hand how difficult it is to find do in practice.

Posted by Michael Risch on November 17, 2010 at 10:50 AM in Intellectual Property, Web/Tech | Permalink | Comments (5) | TrackBack

Tuesday, November 16, 2010

And your bird can sing

As of today, the Beatles catalog is available on iTunes. I'm unusually giddy about this, even though I own the majority of the band's catalog in various physical formats, and even though the band is five years late to the party. (If you are listening, Mr. Jobs, I would like to buy mono versions of Revolver and Sgt. Pepper's).

It nevertheless feels appropriate to pause and have a moment of silence for those Beatles tribute bands who might well have made their best sales to frustrated consumers searching in vain for authentic Beatles recordings on iTunes in months past. The market for Beatles look- and soundalikes is sufficiently valuable that one tribute band, the Fab Four, recently sued another Beatles imitator, the Fab 4, for trademark infringement (although the Fab Four subsequently voluntarily dismissed its case).

I occassionally sought out Beatles recordings on iTunes prior to today's release notice, and until today, I primarily found offerings from tribute bands and other artists covering Beatles songs. Some consumers may have even purchased those alternate offerings when they found no authentic Beatles material available. Could iTunes be liable for trademark confusion, specifically, initial interest confusion?

You might recall that "initial interest confusion" can occur when one party intentionally uses another's mark to capture consumer attention, even if the confusion is quickly dispelled. The Second Circuit recently declined to dismiss a claim by Rescuecom against Google that alleged Google recommended "Rescuecom" as a keyword to those AdWords consumers that were also Rescuecom competitors. The Ninth Circuit has held that triggering competitors ads in response to a search for plaintiffs marks might also create initial interest confusion.

Could Apple, knowing as it does that there are no Beatles tracks in its library, be liable for returning search results that include Beatles imitators? One factor cutting against initial interest confusion is that many consumers who followed the Beatles knew they were one of the last iTunes holdouts. On the other hand, iTunes is certainly better placed than many consumers to recognize the difference between authentic and soundalike Beatles. Should Apple be required not to return any results, or offer only the solo works of former Beatles to its customers? Perhaps not - we would be unlikely to grant a request by the Beatles to keep their recording a safe physical distance from the Monkees or any other imitative contemporary in a record store.  And competitors are often allowed to boast, "If you like X, you'll love Y."

As a final thought, should it matter whether the imitators are performing faithful cover tunes, in accordance with Sections 114 & 115 of the Copyright Act, or whether the imitators are creating new works derived* from the original musical compositions and sound recordings? The former do not infringe copyrights in the imitated sound recordings or their underlying musical compositions, while the latter would, subject to fair use.

* The Fab Four's Christmas album, Hark!, includes remakes of traditional Christmas tunes combined with recognizable elements of Beatles hits. For example, the Fab Four remake of Silent Night plays over the Indian sitar drone of Tomorrow Never Knows, while the title tune, a remake of Hark the Herald Angels Sing, closes with three part harmonies and a guitar lick identical to those that close Help!



Posted by Jake Linford on November 16, 2010 at 04:00 PM in Culture, Intellectual Property, Music | Permalink | Comments (0) | TrackBack

Divided Selves

In a wonderful New Yorker pieceJames Surowiecki surveys recent literature on the problem of procrastination.  What I found fascinating about the piece is the idea, mostly popular among philosophers, but also some economists and psychologists, that procrastination may represent a conflict between two versions of yourself  - your present self and your future self.  That is, our present self may prefer to avoid doing something - studying for an exam, say, or writing a law review article - that would benefit your future self.  

I bring this up to address one issue with mandatory class actions I have so far left unresolved.  Previously I noted that mass torts are rife with internal conflicts.  For example, in asbestos litigation, the "presents" want to recovery as quickly and as much as possible, but the "futures" want to make sure that there are funds available for them should they manifest injury.  But how does the mandatory class action resolve this conflict?  In fact, by forcing individual plaintiffs to litigate collectively when they would be better off going alone, isn't the mandatory class action only making things worse, by, in effect, forcing the "high" value claims to subsidize the "low" value claims?   As I argue in my draft "Mass Torts and Due Process," focusing on conflicts among class members obscures a more fundamental conflict.  Like procrastination, mass torts primarily involve an intertemporal conflict within each class member.

What do I mean by that?  If you view the mass tort situation ex post, or after the mass tort has already occurred, you see a large number of dispersed plaintiffs who conflict in a number of ways.  But consider the mass tort from the perspective of the plaintiffs ex ante, or before the tort occurs.  From this perspective, a plaintiff will not know if she will get injured.  Instead, she will only know that she will be part of a population that may be potentially injured by the defendant.  In the asbestos context, for example, the tort involved the production of asbestos-containing products, but before deployment of these products into the world, the individuals within the exposed population (pipefitters, schoolchildren) don't know if they will actually get injured, and, if so, how (pleural plaques or lung cancer). 

Ideally, before the tort occurs, the pipefitters and the schoolchildren would just negotiate with the manufacturers.  Please don't make asbestos products at all, or at least warn us to wear a mask!  But this is difficult to do given the numerosity and the dispersion of the plaintiffs.  There are too many of them and they are dispersed with respect to place (all over the country) and time (differing latency periods). 

You can, however, reflect what the plaintiffs would have bargained for through the use of liability.   In other words, the threat of compensatory damage suits can deter the defendant from using asbestos in its products, or at least add warnings, which would mimic what the plaintiffs would have bargained for.  In fact, in more fine-grain contexts, the threat or imposition of liability can lead the defendants to take optimal precautions among different safety options.  Of course, the resort to liability to mimic what would have been bargained for is a second-best solution, and may in fact be pointless in situations where individuals can, in fact, negotiate for safety features, although the case for the use of liability even in such cases is there, if uneasy.

If we have to resort to a second best solution, there is still a question as to which procedures an individual would prefer ex ante.  Ex ante, a plaintiff would prefer a mandatory class action.  Because he or she is uncertain as to what position he or she would occupy after the tort occurred (injured, noninjured, "present," "future"), a plaintiff would prefer trying to deter the defendant as much as possible.  From this perspective, it is better to avoid the tort as much as possible than suffer an increased risk of injury coupled with a "lottery ticket" to sue for damages.  A mandatory class action will get a plaintiff optimal deterrence because it threatens the imposition of the defendant's total liability. 

However, ex post, or after the tort has already occurred, a plaintiff may prefer to go alone rather than participate in a mandatory class action.   Why would that be the case?  Ex post, the plaintiff will know his or her situation, and once that position is revealed to the plaintiff, it may make more sense to go alone.  Notice, moreover, that going alone will destroy the mandatory class action necessary to optimally deter the defendant.  But ex post the tort has already happened, so the plaintiff rationally will not care about the deterrent effect of the mandatory class action.

In short, when one considers each plaintiff's interest ex ante, each plaintiff will prefer a mandatory class action, while that may not be the case ex post.   Thus, the question of whether to use a mandatory class action or not really reflects an internal conflict between each plaintiff's "present" self and "past" self, so to speak.  In fact, a plaintiff would prefer to listen to his or her "past" self simply because avoiding injury is better than compensated injury, given the prevalence of nonpecuniary losses like death and pain and suffering.

Now, the "tragedy" of the mass tort context is that we can't give priority to the plaintiff's "past" self.  Just as bargaining ex ante is impossible, allowing plaintiffs to tie themselves to the mast of their ex ante preferences, such as by contract, is impossible as well.  Thus, to reflect the priority of each plaintiff's "past" self, a judicial intervention is needed in the form of a mandatory class action.  

Notice that reframing the conflict from one among plaintiffs to an internal one within each plaintiff individualizes the problem.  Instead of a problem of distribution, the problem is really, like procrastination, one of self-defeating behavior.  In fact, the resulting distributional problem is really secondary to the preference by the plaintiffs to avoid the tort in the first place!  This has a number of implications for the law of procedural due process, which I will discuss in subsequent posts.

Posted by Sergio Campos on November 16, 2010 at 10:49 AM | Permalink | Comments (4) | TrackBack

Online Teaching, Part 3: Can it be done?

Probably not.

Sorry to be so grumpy and negative this morning, I spent an hour on the phone late (at least to my way of thinking) last night trying to work something out with a colleague and I'm more than a little tired. But my feelings about the limits to the possibilities for using online teaching methods to help grad and law programs  are not just the result of fatigue. I think there are some real problems of logistics and imagination. (For evidence that I am not entirely alone, you might want to look at this recent article on roadblocks to the use of online materials in higher ed generally.)

But let's recap to figure out where the problems really are. It seems to me that there are three good uses for online education in the context of law or grad programs.

1. For working or mini-conference groups, who might use online resources to allow the exchange of ideas over the course of a year or two while the project or conference is coming together.

2. To create ongoing, narrowly focused research seminars for graduate students in all stages of their careers. This would allow students in dissertation programs who are off campus doing writing and research to keep connected to their scholarly community back home, it would help professionalize students starting a PhD program, it might be a fruitful way to bring law students (or people from other disciplines) who are interested in interdisciplinary study into contact with other students at their university.

3. To help create programs that cross not just disciplinary boundaries, but also institutional boundaries, so that students enrolled at one university could work on a consistent basis with students and scholars at other universities in the US or elsewhere who were doing related work. In a sense, this is possibility two (above) writ large and might be a way to create working cohorts in times of declining enrollments or provide interdisciplinary study for law students, say, who were in programs that were not associated with graduate schools.

Of the list, I think the second is the most important and the third is the most interesting. While I think the first is interesting and could be productive I'm not sure I think it's as crucial.

Perhaps it won't come as a suprise that I think that of the three, the first is the most possible.

Why? Because many working groups and mini-conference programs are funded on grants or financed through some sort of soft, specifically allocated funding. As such, they are able to afford the sort of software that would make online exchanges possible, and there is usually the sort of institutional support (in terms of thinking that the conference or working group's activity are noteworthy and good) that usually means, in my experience, that people will want to make the experiment and put the effort in. In fact, the advantage of using online resources as part of a mini conference or working group project is that it's cheaper than bringing everyone to a particular spot several times, so online materials could make it cheaper and easier to bring people together to work on projects of this sort.

In contrast, the other two ideas are harder to finance. Let's talk about the second proposal (the cradle to grave seminar) first. There are several problems, three in particular stand out:

1. There is little or no money, at least at many institutions, for grad seminars that are not directly related to teaching graduate students required material. So it might be difficult to get even the fairly nominal funding necessary for the extra software to run a dedicated online seminar. And while one could probably scrap together a workable alternative using skype, it would not be as good and there would still be some costs that someone would have to absorb. Who is that someone? Do we make the grad students pay extra? Do we expect the faculty member(s) leading the program to absorb the cost?

2. In addition, seminars like that become a scheduling and cost accounting nightmare. Are they an overload that has to be paid for with extra salary (recall that I am teaching my online webinar this year as an overload, using a small internal grant, and it does pay me a modest amount extra to cover the class). Or is it something that faculty should do extra, i.e., for free, because we are professionals?

3. One good argument for a program like this (other than the basic argument that it is good to have grad students work with a mix of other students with similar interests who are at different stages of their careers) is that it is a way to help create interdisciplinary communities. This could be a way to bring, for example, students at a particular institution who are studying history, anthropology, sociology, political science, and law together to explore the things that connect their projects and disciplines. Law students who want that sort of enrichment would benefit without having to enroll in  a joint degree program, students in PhD programs could use this to learn about legal methods and assumptions without having to take out loans to go to law school. 

But some institutions (I'm not sure how many) are using budgeting processes that look at how many students (or credit hours) particular faculty members, or departments, or college are teaching. How do you count a cross disciplinary seminar with students from around a university in such a system? Who gets the credit for those students? Which department, which college, which faculty member?

All those problems are magnified the moment we start even thinking about trying to create cross institutions programs. Where do the students in such a program "belong" (to put it more crudely, who owns them and gets to claim them)? Do they belong to the school that enrolls them? Do they belong to the school that employs the faculty member who runs the online seminar? If we were five year olds, presumably the answer to questions like that would be that we should figure out a way to share.

And the idea of figuring out ways of sharing has a lot of appeal, at least in theory. Sharing is good, right? And even if there are some out there who don't think it is good, perhaps we can all agree that in a time of some austerity in most academic institutions, sharing resources might be a way to keep programs, and the faculty associated with them, occupied and productive even if budgetary constraints mean fewer students can be admitted to them. Sharing might even mean that programs could be expanded, precisely because the very modest costs could be shared between several institutions.

But we aren't in kindergarten and I'm not sure we can share. Our current systems make sharing or even talking about sharing difficult if not impossible (just think about some possible issues: does your law school allow a student to take courses for credit outside the law school at your own institution? does it allow students to take courses for credit outside your university? if so, how many? what sorts of reviews are done to make sure the course lives up to your standards? who gets the tuition payments for that course?).  In my experience, it's hard enough to get programs in different programs in the same college or university to work together, and I know of few cross-institutional programs (as always, if anyone can think of some, feel free to drop a note or a link in the comments).

More to the point, our working assumptions and the bases of our professional reputations also stand in the way. Our students, our disciplines, our programs, and our institutions define us and they place us in various pecking orders that I think are hard to work around.  Sure, some people can jump from institution to institution and move up or down those ladders in the process. I've done it myself. But while some individuals may be able to shift around within the structures of our expectations, the logic of that process of individual movement keeps the basic structures and hierarchies in place and largely depends on them. And just as we depend on those structures and the hierarchies they create to get our sense of our place in the universe of higher education, our administrations depend on it as well. That's how they evaluate us, that's how they sell us to prospective students or donors.    

Under those circumstances, I'm not sure how willing we are to try to create seminars that cross institutional boundaries, even if it were financially possible.  And that strikes me as a shame.


Posted by Elizabeth Dale on November 16, 2010 at 09:22 AM | Permalink | Comments (1) | TrackBack

Monday, November 15, 2010

John Yoo, Demographer and Political Analyst

Mark Tushnet once wrote about the "'lawyer as astrophysicist' assumption, namely that the generalist training of lawyers allows any lawyer to read a text on astrophysics over the weekend and launch a rocket on Monday."  We might add to this the "public intellectual as sage" assumption, under which any academic who has achieved a certain amount of general renown or infamy considers himself ready, able, and all too willing to pronounce on any subject, no matter how far outside of his expertise it happens to be.  (Yes, hypocrite lecteur, that category also includes bloggers.)  

For some reason these lines came to mind when I read, courtesy of a referral from The New Republic, this musing by John Yoo at the National Review's online site about last week's election, in which he considers data (for which I will take his word) suggesting that the Democrats won among possessors of more than a single college degree and less than a high school degree, and lost among those whose educational credentials fell in between.  He writes:

"I’ve been trying to figure out what this means (aside from the amazing educational achievements of the electorate — 97 percent had a high-school degree or more). Does it mean that the over-educated have no more common sense than those with no education? Does it mean that Obama only really appeals to the extremes of the educational distributional curve, because neither end is really responsible for making ends meet and balancing budgets?"

Now, I am no statistician, and I haven't drilled down into the data, so I'm not able to draw an educated conclusion about this.  But I'm guessing that this last sentence applies to John Yoo as well, and yet it hasn't stopped him from armchair speculation.  So let me add a speculation of my own: if those are the only two conclusions you can come up with, it is just possible that you haven't "been trying" very hard to "figure out what this means."

Posted by Paul Horwitz on November 15, 2010 at 09:16 PM in Paul Horwitz | Permalink | Comments (7) | TrackBack

Op-eds, blogs and other non-article forms of writing

After sending out an op-ed last week, I started to think a bit more about the various forms - and forums - for writing available to new law professors.  While I enjoyed the feedback I got on the piece, the editing process took quite a lot longer than I anticipated and I began to wonder whether op-ed writing is worthwhile, especially during the pre-tenure years, given the availability of blogs and other more direct forms for "non-article" writing.  So for example, I could have followed my colleague Haider Hamoudi (whose blog is a must read for those interested in Islamic law and other related topics) and put my own thoughts on the Oklahoma sharia ban directly into the blogosphere. 

I'm curious what wisdom is out there for those of us just starting in the academy.  What, if any, non-article forms of writing make the most sense in the pre-tenure years?

Posted by Michael Helfand on November 15, 2010 at 03:58 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Waldron on Religion and Public Reasons

Via Larry Solum, here is a new paper from Jeremy Waldron titled "Two-Way Reason: The Ethics of Engaging With Religious Contributions in Public Deliberation."  Here's the abstract:

Using as an exemplar, the 2007 "Evangelical Declaration against Torture," this paper examines the role of religious argument in public life. The Declaration was drawn up by David Gushee, University Professor at Mercer University, and others. It argues for an absolute ban on the use of torture deploying unashamedly Christian rhetoric, some of it quite powerful and challenging. For example, it says: " [T]he Holy Spirit participates in human pathos with groans and sighs too deep for words. The cries of the tortured are in a very real sense, … the cries of the Spirit." The present paper considers whether there is any affront to the duties of political civility in arguing in these terms. There is a line of argument, associated with John Rawls's book, "Political Liberalism," suggesting that citizens should refrain from discussing issues of public policy in religious or deep-philosophical terms that are not accessible to other citizens. The present paper challenges the conception of inaccessibility on which this Rawlsian position is based. It argues, with Jurgen Habermas, that all sides in a modern pluralist society have a right to state their views as firmly and as deeply as they can, and all sides have the duty to engage with others, and to strain as well as they can to grasp others' meanings. It is not enough to simply announce that one can not understand religious reasons, especially if no good faith effort has been made, using the ample resources available in our culture, to try. Of course, many peoeple will not be convinced by the reasons that are offered in religious discourse; but to argue for their rejection - which is always what may happen in respectable political deliberation - is not to say that the presentation of those reasons was offensive or inappropriate.

* * * 

I haven't read the paper yet, although based on the abstract it seems consistent with what I (and many others) have argued elsewhere, including in my forthcoming book.  (Available for pre-order!  Makes a splendid Valentine's Day gift!)  But it sounds very interesting and I wanted to beat my good friends at MoJ to the punch.

Posted by Paul Horwitz on November 15, 2010 at 12:35 PM in Paul Horwitz | Permalink | Comments (3) | TrackBack

The Good News About the Oklahoma Anti-Sharia Law

Today's New York Times has a story about the Oklahoma constitutional amendment, currently stalled in the courts, that would prevent state courts from applying international law or Muslim Sharia law in resolving legal disputes.  One unsurprising takeaway from the piece is that the measure was basically a political wedge, designed to get out the votes and increase Republican electoral victories in the state.  Supporters of the amendment were able to point to no cases in Okhlahoma that raised the Sharia issue and only one (overturned) decision elsewhere.  Nevertheless, they painted the issue as involving "a war for the survival of America," a "cultural war."  

What is "good" about the law?  The use of the words "cultural war" is a giveaway.  It suggests that in our culture wars, the invocation of Christianity or the condemnation of other religions through law is becoming an increasingly important front in the battle.  Take the words of one of the bill's authors: “America was founded on Judeo-Christian principles — that’s the basis of our laws, and people try to deny it . . . . I believe there is an awakening of people concerned about Christian values in our nation, and they are starting to express themselves.”  They are a reminder that not only the condemnation of Sharia, but the invocation of Christianity, serve the same purpose: not really to "acknowledge" our history, but to assert, in the most combative terms, our present status as a Christian nation.  They serve as a reminder that, in interesting ways, ours is increasingly a culture of religious contestability.  It is difficult to seriously contend that Christianity is under genuine attack in this country.  But those who fight these battles are reacting, I think, not so much to that perceived threat but to a wider sense of religion's fragility in our culture, of the complex negotiations forced upon religion in a culture of increasing religious and ideological pluralism, in which religion either does not matter much to many people or many people are happy to accept the presence and non-privileged status of many faiths and non-beliefs.  It is inevitable that many people will react to those conditions by fighting wars of symbols, wars that invoke or condemn one religion or another not out of some mere bland recognition of a Christian past, but out of a desire to claim and define our current religious status in uncertain times.

Why is that "good?"  Because it is at least more candid, and its candor says much about areas of this symbolic war in which we have been less than candid.  The Oklahoma law's advocates are refreshingly clear that the primary legislative purpose behind the law is religious, not secular.  They make more perspicuous what both courts and other legislators have tried to obscure, in a raft of cases addressing these kinds of religious invocations, such as the use of "under God" in the Pledge of Allegiance: that these laws do have a religious purpose and are not a secular "acknowledgment" of history, that they are wedges in a war over religious symbols in an age of religious contestability.  Some have argued that those kinds of cases are not worth fighting: that they involve "civic religion" or "ceremonial deism," that they are de minimis harms at best, or that the cure would be worse than the disease.  Others argue that upholding such laws by calling them ceremonial deism ultimately does more harm to religion than good, by denying or watering down what everyone recognizes to be genuinely religious messages.  

I take no position on those questions here.  But it may be that both our public debate and religion itself would be better off, more honestly and respectfully treated, if we could acknowledge these symbolic debates for what they are rather than pretend they are about something else: recognizing our history, treating such measures as ceremonial rather than real religion, and so on.  It certainly lays bare how much and how little is at stake.  It raises serious questions about how long we can continue down the "ceremonial deism" road, and whether it's time to address squarely the genuinely religious aspects of both the extreme and the "moderate" instances of these laws.  At a doctrinal level, the more honest legislators are about the purposes behind these laws, the more cover they give to courts to strike down these laws in the absence of the fig leaf of a secular purpose.  And at a broader level, they illuminate an interesting and unrecognized phenomenon: the extent to which our culture wars are fought through symbols, and the extent to which the general social status of religion in what Charles Taylor calls a "secular age" has become so "fragilized" that it awakens insecurity among a variety of religious and non-religious groups.  Advocates of laws like the anti-Sharia law may say that they are fighting a Muslim threat, or that they are fighting on behalf of an embattled Christianity.  But they are doing something deeper: they are fighting the conditions of our age itself, struggling to find a foothold in an unsettling and complex age of religious pluralism.

Self-promotion note: I address some of these issues in my forthcoming book, The Agnostic Age: Law, Religion, and the Constitution.  

Posted by Paul Horwitz on November 15, 2010 at 08:05 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Friday, November 12, 2010

Design v. Rights

So in my previous post I argued that mass torts are better understood as posing a "property" problem, not, as Richard Nagareda and others have argued, a "governance" property.  This is not to say that "property" and "governance" are mutually exclusive.  Instead, and as I argue in more detail in my current draft, "Mass Torts and Due Process," the governance problems that arise in mass torts are caused by the plaintiffs' individual ownership of their claims. 

Specifically, individual ownership leads plaintiffs to invest much less in common issues relative to the defendant.  The defendant, who owns all of the liability associated with a common issue, simply has more at stake.  Moreover, strategic behavior prevents plaintiffs from voluntarily aggregating to achieve the same economies of scale as the defendant (although "economies of share" is probably a better term).  Some plaintiffs are simply better off going alone.  Accordingly, a procedure that collectivizes ownership of the claims -- a class action -- is needed.

While I mildly disagreed with the "governance" story, I think Nagareda is absolutely correct that the solution is a matter of procedural "design."  Now what do I mean by that?  What, exactly, is the alternative?  To answer these questions, I want to start with an anecdote, and then address one problem that may arise in class actions - class attorneys "selling out" the class.

Let me start with the anecdote.  I recognize that anecdotal evidence is far from ideal, but telling "stories" is unavoidable, even to discuss collective action problems.  When I clerked for my district court judge, the judge scheduled a status conference in an MDL involving the pricing of pharmaceuticals (don't ask, it's complicated).   The status conference concerned one of the suits within the MDL, a proposed class action  of small out-of-pocket payors with some larger insurers as co-plaintiffs.  My judge suggested that the class attorneys coordinate their discovery efforts with the co-plaintiffs, and one of the class attorneys responded: "I have no incentive to do any discovery until you cerfity the class!"

What's the point of the story?  One concern with class actions is that the class attorneys may enter into "sweetheart" settlements with the defendant.  Since the class attorneys are usually paid a percentage of the recovery, they stand a lot to gain from settling the class action for pennies on the dollar, a point recognized by Judge Friendly and the Supremes in Ortiz.   In fact, one point of the Class Action Fairness Act was to prohibit "coupon settlements" in which class attorneys were paid in dollars while the class only received worthless coupons.  

While plausible, the above account of "sweetheart" settlements does not tell the whole story.  Why would a class attorney accept a lowball settlement if the claims are worth much more than that?  After all, if the attorney is paid a percentage of the recovery, he or she only stands to gain more by trying to extract more in negotiations.  But what leverage does a class attorney have?  Well, if class actions are hard to certify, a class attorney has the choice of either (1) accepting a lowball settlement or (2) cobbling together some plaintiffs and pursuing the litigation.  In my anecdote, the proposed class suffered damages in the tens or hundreds of dollars, so litigating either alone or in partial groups would not have been feasible. 

When the class attorneys' alternatives (no class action, individual or partially aggregated litigation) are acknowledged, it is clear why class actions (may) settle for too little, and why the class attorneys in my anecdote balked at discovery pre-certification.  Somewhat counterintuitively, the solution to the problem of "sweetheart" settlements entails mandatory (that is, no opt out) class actions that are easier, not harder, to certify for litigation purposes.  That way the class attorneys will be incentivized to seek as much as possible for the entire class, and back any claim for more with a threat of litigation as to the whole pot.

Thus, the solution is a matter of rejiggering the incentives of the class attorneys, or, "design."  But what is the alternative?  The traditional solution has advocated the opposite approach - more chances to "opt out" of the class action rather than making it easier to bring a mandatory class action.  While this may protect an individual plaintiff from a "sell-out" class action, it takes away the leverage both the class attorney and the opt-out plaintiff need to extract as much as possible from the defendant.   The opt-out plaintiff will be limited by his or her own potential recovery and the lack of economies of scale that would have come from aggregating.  The rump class may blow up altogether. 

Notice that the traditional solution can be described as "more rights."  Generally, if we are concerned with procedures harming individuals, we give them more "rights" to protect their interests.   A day in court, say, or an opportunity to be heard, or notice, or, like in this example, an opportunity to opt out of the class.  But here the solution is "less rights."  It is instead a restructuring of the incentive structure to make sure that the class attorney maximizes recovery, which results in a severe limit on litigant autonomy.  This is nothing to sneeze at, since many mass torts plaintiffs who would want to opt out have very valuable claims.  

Now, we cannot easily reject the "more rights" approach, because it not only implicates the optimal "design" of mass tort procedure, but due process itself.  I will address the due process ramifications of the "design" approach, as well as the problem of internal conflicts in mass torts, in my next posts. 

Posted by Sergio Campos on November 12, 2010 at 04:23 PM | Permalink | Comments (13) | TrackBack

The New Foreword

For some reason, I am driven every year to be among the first to spot and promote the new Supreme Court issue of the Harvard Law Review and its Foreword article.  As far as I can tell, it's not up yet on the Harvard Law Review website, which posts PDFs of its full issues; but it is available now on Westlaw.  And so I commend to readers Heather Gerken, author of Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4 (2010).  Gerken argues that we should "orient constitutional theory around federalism-all-the-way-down--around voice rather than exit, integration rather than autonomy."  Here is her roadmap paragraph:

Part I argues that even as scholars reject a sovereignty account, sovereignty continues to shape the way we think about “Our Federalism.” Part II shows that focusing on minority rule without sovereignty would push federalism all the way down to the special purpose institutions that constitute states and cities. Part III argues that orienting federalism around federalism-all-the-way-down would expand our understanding of how the center and periphery interact, helping us to develop an account of the power of the servant to compete with our existing account of the power of the sovereign. Part IV suggests that if we shed the assumption that minority rule must be accompanied by sovereignty, we can build a more convincing nationalist account of “Our Federalism.”

* * * 

I look foreword -- sorry, forward -- to reading the whole thing.  Forewords (on whose history one should read Mark Tushnet's terrific piece on the "Project of the Harvard Forewords" in Constitutional Commentary from the mid-1990s) often serve to consolidate and advance emerging trends in constitutional law, and this one seems to do the same thing.  Its focus on the nature, scope, and limits of sovereignty, on the role of "localism" of various kinds in constitutional law and theory, and on the potentially salutary role of intermediary institutions captures a number of prominent lines of direction in current constitutional scholarship.  I loosely include myself among those writing in this area, and Gerken has a section (which I haven't read yet) on the relationship between "federalism-all-the-way-down" and the First Amendment.  In Larry Solum's words, "read the whole thing."  

Posted by Paul Horwitz on November 12, 2010 at 10:29 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Thursday, November 11, 2010

The "clerkship scramble"

"The system for placing [clerks] with federal judges is breaking down," reports the National Law Journal. 

Are the Wild West days of federal clerk hiring back? That's what some law school administrators and judges fear. They worry that the voluntary system whereby federal judges wait until September of the 3L year to hire clerks is teetering. Judges are choosing clerks earlier in the year and are being inundated with applications as the legal job market narrows. And a trend toward hiring the already graduated means fewer positions are available for fresh law graduates.

I'm not sure how to fix it, but "it" (the clerkship-hiring-"process") seems a mess to me.  Although, as a general matter, I welcomed the success of "the Plan" in moving the clerk-hiring process, and decision, until after the second year (or, more specifically, until after a candidate has at least two years' worth of grades), the situation now seems to be the worst of all worlds.  There is, as the piece reports, a lot of defection from the Plan; schools are not quite sure how to respond; and the fact that the downturn has recent (and not so recent) graduates applying "off-plan" for clerkships puts even greater stress on those who would like to comply with its requirements.  Add to the mix the facts that state judges and courts are on entirely different schedules and systems, and that some (but not all) judges employ the OSCAR system . . . phew.  A mess. 

So, let's harness the Power of Prawfs and . . . clean it up.  Suggestions?

Posted by Rick Garnett on November 11, 2010 at 04:31 PM | Permalink | Comments (6) | TrackBack

Must Second Amendment Originalism Account for the Militia Clauses?

Both because plenty of others are far more well-versed in the debates than I am and because my own views are a bit odd, I've largely stayed out of the Second Amendment conversations invigorated by Heller and McDonald, and the concomitant debates over originalism in constitutional interpretation. There's one place, though, where Second Amendment originalism does dovetail with some work I've done, and that's with regard to the "Militia Clauses" of Article I, which empower Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," and "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." 

To get to the point, here's my basic thought: As I've argued at some length elsewhere, the "militia" for constitutional purposes has basically become a dead-letter, thanks to both Congress and the Supreme Court. Congress has rendered the militia obsolete by (1) authorizing use of the federal regulars in circumstances where the Constitution appears to only contemplate use of the militia; and (2) setting up a "dual enlistment" system with the National Guard pursuant to which guardsmen are always federal regulars (and not militia) for constitutional purposes, even when they're only acting in their non-federal capacity. And the Supreme Court has sanctioned these developments in a series of lesser-known decisions, especially the Selective Draft Law Cases during World War I (which rejected an argument that draftees could only be used in the circumstances specified in the Calling Forth Clause) and Perpich v. Department of Defense in 1990 (which rejected a similar argument with regard to guardsmen).

If all of the above is true, i.e., if history (along with Congress and the courts) has rendered Article I's reliance upon the "militia" obsolete, should that have any bearing on whether we look to the original understanding of the militia in interpreting the Second Amendment? I recognize, as I must, that the ship has basically sailed. But isn't there at least an academic argument that where different provisions of the Constitution refer to the same entity, it makes little sense to apply different methodologies to interpreting those distinct provisions? Or, put another way, if Heller and McDonald are methodologically correct, might the Selective Draft Law Cases and Perpich be wrong?

Posted by Steve Vladeck on November 11, 2010 at 03:07 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (11) | TrackBack

Habitat for Profanity: Empirical studies and other inanity from the PTC

The first time I angrily disagreed with the Parents' Television Council came in 1977, when nine-year-old me was outraged that the group was trying to get ABC to cancel my favorite television show--Starsky & Hutch--because it was too violent. Well, what already was not one of my favorite organizations has been in the news a lot recently with its usual brand of over-stated nonsense and inanity.

First, there was the over-reaction to a suggestive GQ photo spread featuring Glee stars Lea Michelle and Dianna Agron. The PTC described the spread as "bordering on pedphilia," even though both Michelle and Agron are 24. The PTC  did not help its cause by acting as if Glee were Hannah Montana--a show intended for tweens starring an actual teen-ager, which Glee plainly is not. Plus, I am not sure how photographs can be pedophilia--did they mean child pornography (which also would have been wrong, but at least closer to accurate)?

Second comes Habitat for Profanity: Broadcast TV's Sharp Increase in Foul Language, a PTC study (with an admittedly catchy title) of the increase in profanity on network televisions from 2005 to 2010. Page 6 of the report even includes a handy chart of eighteen different dirty words or categories of dirty words (such as "euphemisms for fuck"), how often they have been heard in 2010 at 8 p.m., 9 p.m., and 10 p.m. (although 10 p.m. marks the start of the FCC's safe harbor in which profanity is permitted), and how large an increase that represents since 2005. I can only imagine the fun somone had watching every minute of tv, recording ever dirty word spoken and putting that chart together. It calls to mind what I imagine folks were doing fifty years ago, huddling around a radio trying to understand the words to "Louie, Louie" and decide whether they were obscene.

Interestingly, and seemingly erroneously, the major advocacy theme of the report is criticism of the "grossly deficient" Second Circuit ruling in Fox Television v. FCC striking down the FCC's "fleeting explitives" rule that "castrated" FCC enforcement authority. The PTC seems to link this demonstrated increase in graphic content and language on broadcasting to the decision in Fox Television, using this "evidence" to urge the FCC to pursue an appeal (a cert petition is pending and I would be surprised if SCOTUS did not take the case). Of course, Fox Television was decided in July of this year--less than four months ago. I am no empiricist, but that seems to raise something of a causation problem for the study.

Posted by Howard Wasserman on November 11, 2010 at 09:12 AM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (1) | TrackBack