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Monday, February 28, 2011

Snow-Shoveling, Governing Law Clauses, Six-Hour Contract Classes, and Other Random Heretical Observations

The title is one for a post I started writing at the beginning of the month, then deleted, and never came back to it.

At this point, I don't remember the connection, although I think it started with an observation about being very anal about shoveling the driveway (something we've been doing a lot of in Boston this winter), and wondering why it made a difference to me that I made the driveway look clean and neat and not merely functional.  That morphed into thoughts about other things that we do simply because we do them, and think they make a huge difference, but perhaps don't.  And, indeed, what would have been heretical for me, as a contracts professor in a six-credit course, would have been to suggest that six credits devoted to contract law might be overdoing it.

But it's now February 28, my month as a guest has run out, so it will just have to wait.

Posted by Jeff Lipshaw on February 28, 2011 at 05:45 PM | Permalink | Comments (0) | TrackBack

Attorney General Eric Holder and prosecutorial (mis)statements

In the Portland bomb sting case (about which I've got a series of blog posts at my home blog), there has been an interesting recent development involving the defense motion for a gag order against Attorney General Eric Holder.

To recap, in this case, Mohamed Osman Mohamud, a 19-year-old student, was arrested and charged with attempted use of a weapon of mass destruction in violation of 18 USC s 2232a after being ensnared in an undercover sting operation.  The night after Thanksgiving, at the annual Christmas tree lighting ceremony in downtown Portland, he repeatedly pressed a button on a cell phone, expecting to blow up a vehicle packed with explosives.  The "bomb" was inert, though, and his colleagues turned out to be undercover FBI operatives.

After Mohamud was arraigned, his public defenders told the press that they were going to look into whether Mohamud had been entrapped.  That in turn prompted Holder to make a number of public statements, including the following:

I make no apologies for the how the FBI agents handled their work in executing the operation that led to Mr. Mohamud's arrest.  Their efforts helped to identify a person who repeatedly expressed his desire and intention to kill innocent Americans.  As you may have read – and as the affidavit alleges – Mr. Mohamud chose the target location months in advance; provided FBI operatives with bomb components and detailed operational instructions; and repeatedly refused to change course when he was reminded that a large crowd – including children – would be in harm's way. 

Because of law enforcement's outstanding work, Mr. Mohamud is no longer plotting attacks.  He is now behind bars.  And he will be brought to justice.


Those who characterize the FBI's activities in this case as “entrapment” simply do not have their facts straight - or do not have a full understanding of the law.

Hmm. . . .  So the defense attorneys do not have their facts straight or do not understand the law if they think there is an entrapment issue?  Ironically, if anyone does not have a full understanding of the law, it appears to be Holder, who has also said that Mohamud could not have been entrapped because "he had numerous chances to walk away."  If that were true, entrapment would never succeed, since a defendant can always choose not to commit the crime in question.

In any event, the defense moved to gag Holder based on these public statements, and while the district court denied the motion, it did find that three of Holder's comments were improper.  Holder went beyond commenting about the nature of the charges to offering his personal assessment of the defendant's intentions and motivations.

I think this was something of a compromise ruling.  I have a hard time seeing the district court issuing a gag order against a Cabinet official (although District Judge Royce Lamberth has, if I recall correctly, repeatedly held Interior Department Secretaries in contempt of court, so you never know), but Holder's comments crossed the line and merited some sanction, even if solely in the form of a judicial finding of improper conduct.  That the gag order was denied means that the government won't appeal the ruling, so the real impact is just a judicial spanking of the Attorney General.

Posted by Tung Yin on February 28, 2011 at 04:49 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Measuring Federalism

Modern federalism, as it is practiced in U.S. courts, depends heavily on untested empirical propositions.  For instance, as everyone knows, the Supreme Court has swung back and forth a few times on whether states need some kind of judicial protection to preserve their policy autonomy, or whether instead the political process is good enough.  Similarly, the Court seems to lean more and more towards Justice Thomas' view that courts should not enforce the "dormant" commerce clause, and should leave protection of the national open market to Congress, apparently on the assumption that Congress would do a better job. 

These assumptions are testable, but until now no one has tested them.  I have.   And I find that political self-interest seems to outweigh the influence of states at least in situations when the choice between the two is presented most starkly: when Congress is deciding whether to grant a break from state taxation to a special-interest group. 

I started the study intending just to test the Justice Thomas argument (also presented in the academic liteature by folks like Marty Redish, David Super, and Ed Zelinsky): that Congress can be trusted to oversee state taxing power, and so the courts should just get out of the way.  This seemed implausible to me for two reasons: 1.  granting a *state* tax cut is costless (absent some state lobbying influence) for federal officials, and so we should expect that the feds will not fully internalize the costs of the cuts; and 2. to the extent Congress believes that there is "vertical tax competition" -- that is, if it's harder for the feds to tax if state taxes are already high -- then reducing state taxes actually benefits Congress even if there are no other rents to be earned. 

I then realized that in essence what I was looking at was an unfunded mandate.  In both "commandeering" and federal control of state taxation, the federal official can obtain political rents from a constituency without incurring any budget costs for herself.  (Many forms of preemption also have a similar political-economy dynamic, as rick h. has described).  So if I could test the tax theory, I could also test theories about whether the "political safeguards of federalism" work against commandeering and other actions that look like it. 

So what I did was find, read, and then (wtih some help from my RA's) code every federal statute Congress has ever enacted affecting state taxing power.  This took a while.  Like, two years.  Then I gathered data for some controls.  When I was done, I regressed the changes in state taxing authority on a variety of factors, including a variable indicating whether a concentrated political group stood to benefit, and another one indicating whether the state tax in question fell on an indian tribe or its property. 

Both of these, I found, were strongly statistically significant.  Conditional on enactment, if a state tax affected a special interest, congress was a lot more likely to restrict that tax.  And, if the state tax affected an indian tribe, congress was more likely to *expand* the state's authority.  There are a few stories one can tell about that, but I argue this supports my "vertical tax competition" argument: indian tribes are exempt from federal tax (arguably by the terms of the Constitution itself), and so they represent one of the few sources of income over which states and the feds do not compete.  And whaddya know?  Congress is a lot more generous when states try to tax tribes.

Interpreting these findings is complicated, and there's an extensive discussion of that in the paper.  Even if you totally buy my findings, it still doesn't necessarily follow that the "political safeguards" theory is wrong as a general matter -- I look at only a tiny sliver of all federalism-related legislation.  And even as it pertains to commandeering, all I show is that the safeguards don't work -- there are certainly arguments that that isn't necessarily a bad thing (arguments with which I largely agree).  But I think it's helpful to move on to those arguments, rather than simply slinging dueling empirical assumptions past one another. 

Comments, questions, and suggestions are very welcome. 

Posted by BDG on February 28, 2011 at 03:14 PM in Article Spotlight, Constitutional thoughts, Tax | Permalink | Comments (0) | TrackBack

Rethinking Indeterminate Sentencing

My new article, “Beyond Rehabilitation: A New Theory of Indeterminate Sentencing,” is now available here on SSRN.  The article grew out of my interest in the revival of early-release opportunities that has occurred over the course of the past decade.  This revival has the effect of making sentencing less determinate in many jurisdictions — it is not as clear at the time the judge pronounces the sentence exactly how long the defendant will spend in prison.  It is commonly assumed that indeterminate sentencing is incompatible with retributive approaches to punishment, particularly to the extent that the amount of incarceration is made to depend on considerations other than the gravity of the crime (for instance, on the defendant’s performance while in prison).

My purpose in the article is suggest one way that indeterminate sentencing may be reconceptualized so that it fits tolerably well with at least one version of retributivism.  In essence, an indeterminate sentence is seen as a way to permit limited extensions of incarceration as a retributive response to persistent, willful violations of prison rules.  Were this approach adopted, however, it would probably require a rethinking not only of the way that parole is administered, but also the way that prisons are run.  If prisons are, in practice, little more than warehouses — places of intense exclusion that aim to provide no more than the bare necessities for physical existence — then it is not clear there is a morally satisfactory basis for retributive responses to prison rule-breaking.

The article is forthcoming in the American Criminal Law Review.  The abstract appears after the jump.

Indeterminate sentencing—that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board—fell into disrepute among theorists and policymakers in the last three decades of the twentieth century.  This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970’s.  In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release.  Yet, sentencing remained indeterminate most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback.  However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm.  Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.

In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment.  In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules.  The Article explores the implications of this model for prison and parole administration and for punishment theory.

Cross posted at Life Sentences Blog.

Posted by Michael O'Hear on February 28, 2011 at 02:50 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Negging of Law Professors

For those of you unfamiliar with the concept, negging (according to the urban dictionary) is when a man relies on low-grade insults meant to undermine the self-confidence of an attractive woman so she might be more vulnerable to his advances.  It is a way for a man to attract a woman more beautiful than he would normally be able to attract. 

Try this classic example of negging: “Hey, I really like your dress.”

 **pause for her response**

Yeah, my (mother/aunt/grandmother) has one just like it." 

Or another one:  “It is so cute how your nose moves up-and-down when you laugh.”

**point and chuckle**

“So cute.” 

Negging is insulting—but in a subtle back-handed way—so that the woman is not angry that a man has insulted her but her self-confidence is damaged just enough that the woman becomes insecure (and in need of the man’s approval) so that he may now have a chance with her.

 So, what does negging have to do with law professors?  Well, I think in general law professors have the temptation to become like beautiful women: arrogant, self-important, and with a belief that the world and all things revolve around them.  I remember having this thought for the first time when I had a student come into my office to ask my opinion on an issue.  After about 15 minutes of talking on and on about a certain topic, I realized that this student was going to smile and nod to everything I said and write it all down as if it was Truth (with a capital T).  It can be dangerous to be in a profession where we have a weekly pulpit to discuss our views on issues (with little opposition), where we are often called “experts” on a wide-variety of topics, where we are surrounded by flattery from students and colleagues (with a notable exception discussed in Mike Madison, Michael Risch, and Jeff Lipshaw’s posts on “tough love” at faculty workshops), and where we generally get paid to write, think, and speak about whatever we find interesting.

Generally speaking, as law professors our egos get flattered more often than other lawyers.  Maybe this is why we tend to like our jobs better than other lawyers.  I can think of two exceptions to this that occur at four different times of year: law review submission periods and student evaluations.  This is where the negging comes into our profession, allowing our egos not to get unmanageable such that they explode or allow us to become unbearable to be around.  With every separate rejection we get from law reviews who do not want our amazingly innovative law review article, we are negged.  Our egos are kept in check.  Our first response to law review negging may be: “clearly they didn’t read the article” or “well, I didn’t want to publish in that journal anyway,” but as other rejections come in (regardless of who they are from), we realize, “well, maybe my article *isn’t* objectively the best article ever written.”  This is good for us.  And even when we eventually place our article in an acceptable law journal, we have still gone through this process that allows us to feel the rejection and pain of negging.

Negging with women and law reviews isn’t a perfect analogy, of course, because the law review editor has no devious plan to eventually date the professor.  But the effect of the person being negged is similar with both examples; and that is what I want to highlight.  In sum, negging of law professors and beautiful women may both be positive developments.  Less attractive men are able to end up with more beautiful women.  Law professors are able to keep from dispelling all friends and family who used to be able to tolerate us.  And so on.  At least this is what I am telling myself as the rejections pile in on my latest submission...

Posted by Shima Baradaran Baughman on February 28, 2011 at 10:50 AM | Permalink | Comments (10) | TrackBack

Are we “Post-Gender?”

The following is by FIU's Kerri Stone:

Twenty-one years have passed since the Supreme Court held in Price Waterhouse v. Hopkins that Ann Hopkins was passed over for partnership at Price Waterhouse because of her sex, as evinced by the sex-stereotyped comments directed against her. Many of the factors that made that case so compelling overall, however, are no longer commonly found in the modern workplace. It is, for example, no longer politic to refer to the “lady candidate” for anything, or to vocally subscribe to the explicit notion that a woman should act or appear more or less like the men around her do. It would be highly uncommon for a major accounting firm to put eighty-eight candidates up for partnership and have only one woman among them. Indeed, I recently asked my class whether it thought that Ann Hopkins would have won her case if half of those selected had been women and if the company had had a high percentage of female partners. As I had suspected, many felt that she would not have.

But what about the types of stereotyping that persist in the workplace today? In a day and age in which a typical employer’s gender ratio is bound to be more balanced than Price Waterhouse’s was in 1989, and at a time when most people are simply too informed of the law and of societal norms to advise a candidate that she should wear more makeup or more feminine fashions, is stereotyping alone enough to sustain a discrimination or harassment claim?

All of which brings me to a fascinating writeup of a case that a student of mine sent me with the note that it might be, as she termed it, “a modern-day Price Waterhouse v. Hopkins.” According to the case’s writeup, which came from the ABA Journal, a thirty-four year old attorney who had worked in the New York City office of a large Canadian law firm, until her salary was capped and she was eventually laid off, was suing the firm and alleging discrimination, retaliation, and that her supervising partner had helped to create a “‘hostile and demeaning’ environment for women.”

As the writeup recounts, the partner told the associate that “he didn’t think she wanted to be a partner, she ‘must be more than a pretty face’ and [that] she’s not helping herself ‘coming to work looking well put together.’” Id. When asked by the associate how she could do a better job, he responded that she should “stop acting like a child that’s been taken to the woodshed and spanked.” Id. The partner also allegedly advised another associate who took maternity leave “that it would take her off of partnership track, and told another woman, ‘That’s why I hate working with women, because they just get pregnant and leave. Out of every three years, you only get one good year out of them.’” Id. The partner then allegedly “[t]old an associate attending Harvard law school [sic] that it was great he was going there because ‘you might meet some pretty women pretending to get a legal education.’” Id.

Knowing no more than what was in the writeup, I nonetheless cannot help but think that the dynamic described is all too familiar to those who have worked in large firm legal practice in a big city—and likely beyond that context as well. But are the allegations enough to buttress a case for discrimination or for a “demeaning and hostile environment”? My uncertainty was strengthened when I happened across a somewhat snarkier writeup of the same case on AbovetheLaw. The blogger, after dismissively describing the supervising partner in the case as someone who “sounds like a man who has never been to a Harvard party,” wryly asked:

That’s it? At the risk of scraping my knuckles against the pavement, I’m a little underwhelmed. . . . . I mean, sure, the guy probably needs to stop judging the attractiveness of Harvard women based on The Social Network. But in the grand scheme of things, these allegations leave me with a feeling of “meh.”

The blogger then went on to posit that while the associate’s

salary stagnation and eventual layoff . . . could have been in retaliation for her complaints, . . . maybe they could also be attributed to the fact that it was 2009 and everybody was getting [potentially harassing reference to lovemaking] with their [potentially male-normative reference to an article of clothing] on. The year 2009 was rough on a lot of people. . . . I’m not an employment lawyer, but it seems to me that to prevail on a sexual harassment claim arising out of a legal layoff in 2009, you’re going to need a little more fire than a few wisecracks about working women.

I have deliberately retained this blogger’s off-color allusions to highlight the way in which this story seems to “play” against the backdrop of the blogosphere—in which the gritty grounding that the injection of humor and reality give the narrative might well echo the skepticism with which a judge or jury might meet these claims.

How much progress have women really made since the 1980s when Ann Hopkins, who by all accounts, might have been the ideal male partner, was declined for being, in essence, too manly of a woman? To the extent that normative biases about how women should act and appear and stereotypes about the types of women that do things like attend top-flight law schools or have babies—or both—persist and inhere in workplace discourse, how likely is it that they will be seen to inform workplace decisions in light of factors like more integrated workplaces, a terrible economy, and perhaps even receptive malaise as to the discriminatory conceptions and treatment of women? It appears that in a more gender-balanced workplace in which certain speech, like telling a woman to be more feminine, is now taboo, a plaintiff like this associate may have a harder time prevailing on a Title VII claim than Ann Hopkins did. With the standards for the severity or pervasiveness of harassment so high and those for causation in a retaliation case so exacting, those cases are incredibly hard to make out. Moreover, with courts today as poised as they are to find comments short of “smoking guns” to be “stray” or otherwise legally insignificant, as a matter of law, to sustain a cognizable case, evidence in a case like this one might well be relegated to the realm of “wisecracks about working women” and dismissed.

As I finish my newest article on the stray comment doctrine, I find myself very interested in the future of cases like this one. It seems hard to fathom that a supervising partner capable of making such comments would view male and female associates in the same way. Moreover, we know that employment decisions undergirded by dual motives where only one motive is unlawful are nonetheless violative of Title VII. So the question remains, are we as a society too “post-gender” to give credence to the notion that cases like this warrant coverage and redress by Title VII?


Posted by Howard Wasserman on February 28, 2011 at 10:14 AM | Permalink | Comments (1) | TrackBack

An Al-Kidd Reality Check: The Myth of Non-Statutory "National Security" Detention

In cross-posts at Volokh and SCOTUSblog, Orin Kerr takes issue with the government’s litigation strategy in Ashcroft v. al-Kidd, the material witness/Fourth Amendment/qualified immunity appeal in which the Supreme Court is set to hear argument on Wednesday. Orin’s argument is worth reading in full, but I will focus on his principal point -- that, when it comes to the substantive Fourth Amendment question in the case, "DOJ is making an argument with one arm tied behind its back.” I don’t think that’s right. Instead, as I explain below the fold, DOJ does not, in fact, have available the alternative “national security detention” argument that Orin believes it is avoiding.

As Orin notes, DOJ's merits-based argument is argument is that because it has available a criminal law enforcement justification for detaining someone under the material witness statute, it does not violate the Fourth Amendment if the government’s “real” reason for the detention is instead a national security objective, such as interrogating the detainee to discover if he has information about possible future national security threats.

What Orin finds curious is that DOJ is not arguing that the national security justification is itself an independent ground for the detention. As Orin puts it, “DOJ never makes the argument that its use of the material witness statute for national security reasons is permitted by its national security detention powers. . . . DOJ is arguing that the Court shouldn’t even look at its non-law-enforcement purpose and therefore shouldn’t get into its national security powers. . . ." This choice puzzles Orin. He writes that “[i]t’s not clear to me why DOJ has limited its argument in this way. But . . . [t]he Justices presumably will want to know . . . what DOJ thinks its national security powers are.” What this overlooks is that the government is probably forgoing such an argument because it does not have any such “national security” power to detain a U.S. citizen for over two weeks (as happened to al-Kidd).  Indeed, I think it's fairly clear that neither the Constitution nor any federal statute affords the government such authority, at least in this case.

For starters, federal law specifically forbids it. The so-called Non-Detention Act, 18 U.S.C. § 4001(a), provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” In Hamdi, the government argued that this prohibition does not apply to military detention. The Court did not specifically rule on that question, but as I wrote way back when, its earlier decision in Howe v. Smith had held that “[t]his argument . . . fails to give adequate weight to the plain language of § 4001(a) proscribing detention of any kind by the United States, absent a congressional grant of authority to detain.”

To be sure, as Hamdi itself suggests, the Non-Detention Act is merely a baseline restriction: It does not prevent Congress from authorizing “national security detention.” (Indeed, the Hamdi Court went on to hold that Hamdi’s detention was authorized by the 2001 Authorization for Use of Military Force.) The material witness statute might well provide such authority in some cases – the government’s argument is that it did so in the al-Kidd case. Orin’s puzzlement, however, is why DOJ is not also citing a stand-alone “national security” basis for al-Kidd's detention, rather than falling back on the material witness statute.

The reason for DOJ's reticence on that score is that Congress has not afforded the Executive such an authority. Section 412 of the USA PATRIOT Act does authorize the detention of non-citizens suspected of terrorism-related activities for up to seven days, before the detainee must either be (1) charged with a crime; (2) placed in removal proceedings; or (3) released. But that authority would not help in al-Kidd, both because he is a citizen and because his detention more than doubled the seven-day statutory limit. Moreover, as Orin himself notes, DOJ urged Congress during the debate over the PATRIOT Act to enact a broader statute authorizing national security detentions that might cover the case here, but that “proposal proved controversial and was never passed.”

It might be argued instead that the AUMF authorizes the very “national security detention” Orin contemplates. It is very much an open question whether the AUMF does (and constitutionally could) authorize the detention of individuals, especially U.S. persons, who are apprehended within the United States and alleged to be enemy forces, among the persons covered by the terms of the AUMF. That was the question raised in both the Padilla (U.S. citizen) and al-Marri (lawfully resident non-citizen) cases, which the Supreme Court did not resolve because the government returned the two detainees to criminal custody. But whatever the government's national security detention authority might be as to members of enemy forces captured inside the United States, the AUMF cannot be of assistance here; the government is not alleging that al-Kidd is part of enemy forces, or otherwise covered in any way by the terms of the AUMF.

Nor am I aware of any extant statutory authority for long-term “national security detention” beyond what the material witness statute, the USA PATRIOT Act (for non-citizens), and the AUMF provide. Together with the prohibition of the Non-Detention Act, this absence of statutory authority explains why the government’s sole argument for its authority to detain al-Kidd is based on the material witness statute. To be fair, If I’m reading his posts correctly, Orin appears to think that the Fourth Amendment itself might provide the government with the authority that the U.S. Code does not for a long-term “national security” detention of a U.S. citizen. But I had always understood the Fourth Amendment as only limiting the government’s power to seize persons – not as creating such powers.

In short, then, it seems to me that the Justice Department isn’t forgoing any important arguments here. Leaving aside whether or not former Attorney General Ashcroft is entitled to qualified immunity, the underlying merits issue is whether the material witness statute authorized al-Kidd’s detention -- and, if it did, whether that detention nevertheless violated the Fourth Amendment if the government’s motives were pretextual in the way al-Kidd alleges (allegations that must be taken as true at this stage of the litigation). It's still an important and tricky case to be sure, but I just don't see Orin's dog that didn't bark...

Update: Orin's posted a thoughtful reply, for which I'm quite thankful. I agree with Orin that Virginia v. Moore appears to stand for the (in my view, not entirely obvious) proposition that the mere fact that a seizure is ultra vires is not conclusive of its reasonableness for Fourth Amendment purposes. At the risk of drawing out this exchange longer than is merited, Orin's response provokes two additional thoughts on my end:

First, crystallizing the argument as Orin has only reinforces to me the reasons why DOJ didn't make it part of their argument on the merits before the Supreme Court. After all, to make the argument that al-Kidd's seizure was reasonable on national security grounds, DOJ would have to concede that it had nothing whatsoever to do with the material witness statute, since it's hardly an alternative theory that fits the same facts. So framed, the government would be litigating the case on even weaker terrain--conceding a statutory violation and resting everything on Moore, where the issue was the legality of the initial arrest, rather than the subsequent detention.

Second, and related, I can't imagine the Justices will see the issue here as settled by Moore. It's one thing to argue that certain seizures are consistent with the Fourth Amendment regardless of whether they're authorized by statute, but that's in the short term (as in Moore). It's another thing entirely to think that the Fourth Amendment would also tolerate continuing detention beyond the initial seizure in the face of contrary statutory authority -- especially where, as here, a federal statute specifically forbids precisely that category of detention (i.e., detention without statutory authority). Of course, one response is that it's difficult to draw the line between what the Fourth Amendment might tolerate initially and what it won't abide in the long term, but isn't that the entire point of the 48-hour rule articulated by the Court in County of Riverside? I'm not the criminal procedure expert that Orin is, but it strikes me that Moore would be irreconcilable with County of Riverside if it stood for the proposition that the Fourth Amendment tolerates detention past 48 hours in the absence of other, statutory authority. 

Given that, although I appreciate what Orin's arguing, I still can't see how the wiser course for DOJ would have been to argue for "national security" detention.

Posted by Steve Vladeck on February 28, 2011 at 01:42 AM in Blogging, Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink | Comments (230) | TrackBack

Sunday, February 27, 2011

Depravity: Finding Meaning in Doctrine, Not Abstraction

A few last thoughts on the crime of depraved heart murder in New York -- the end of my depraved trilogy.  In previous posts, I accepted the received wisdom that depraved indifference murder is some sort of amalgam of extreme risk-taking regarding homicidal risk and a distinctive mens rea.  The New York Court of Appeals adopted this view in People v. Suarez and People v. Feingold, overruling the older, Herbert Wechsler/Model Penal Code-inspired "objective circumstances" gloss.  In this post, I want to sketch an argument that depraved indifference (or "heart," or "mind") murder actually has very little -- almost nothing -- to do with the extremeness of the risk-taking involved, and almost everything to do with the distinctive -- albeit elusive -- cast of mind connoted by the baroque term itself.

The etymology of depravity is Latin: "pravus" means crooked, warped, distorted and twisted.  I speculate that adding the "de" further emphasizes and augments the sense of crookedness -- we're now talking about an additional quantum of deviance from an existing crookedness and distortion, a second-level quality of warped-ness.

Nevertheless, it's difficult to put one's finger on exactly what this quality looks like in the real world.  Users of Joshua Dressler's criminal law textbook like me know that he points to some language from an Alabama court describing a "don't give a damn attitude."  That's helpful, but for me it speaks to the "indifference" component of depraved indifference, and not so much to the quality of depravity.  So what are we talking about? 

The New York Court of Appeals's doctrinal struggle sheds some light on the question, but a little excavation is necessary to get at it, since the Court nowhere really puts two and two together.  And the answer suggests not only that risk taking doesn't have much to do with it but also that it's a quality that finds elucidation not in a clean abstraction, but only in the welter of real facts.

The Court of Appeals historically has recognized two categories of depraved indifference murder, which it mistakenly treats as somehow distinct or separate. 

The first category deals with defendants who do not intend to kill when they "shoot into a crowd or otherwise endanger[] innocent bystanders."  People v. Payne.  Cases that fall into this category include: where a defendant shoots into a house and ends up killing people with whom he has had a fight (People v. Jernatowski); where a defendant shoots at a retreating crowd (People v. Fenner); where a defendant drives onto a sidewalk with people on it and mows down two kids without stopping (People v. Gomez); but not, apparently, where he drives like a madman and plows into a car, killing the victim inside (see my previous post on People v. Prindle).

The Court has come up with a strange little rule that generally speaking, one-on-one killings (particularly when done with a weapon) cannot qualify as depraved indifference homicides.  That's because those are -- again, in the main -- likely to be intentional killings.

But there is an exception -- one which forms the basis of the second category of depraved indifference murder, and which, I believe, illuminates matters somewhat: where a defendant has no intent to kill but directs his acts against one specific victim in an uncommonly brutal or heinous manner.  In this category are the following cases: without intending to kill, the defendant systematically beat a three year old child over an extended period of time (People v. Poplis); without intending to kill,  the defendant fractured the skull of a seven week old baby, the forensic evidence indicating severe shaking and a fall consistent with the impact one might receive from dropping from the second story of a building (People v. Bryce); without intending to kill, the defendant inflicted repeated and sustained beatings on a nine year old boy, which over time created open wounds that became infected, resulting in vomiting, the inability to vomit, and death by asphyxiation and blood poisoning (People v. Best). 

Finally, there is People v. Mills, where a group of 16 and 17 year-old boys went to a pier to go swimming.  In order to access the pier they had to climb over a fence, which separated the beach area from the pier.  As they were leaving the pier, each of the boys climbed over the fence to go back to the beach, and the defendant was the last one on the pier side.  Just then, the victim, a 12 year old boy not part of the group climbed over the fence and headed toward the pier to go swimming.  Defendant told the group that he was going to “push the bastard in” and he ran some distance back up the pier and pushed the 12 year old kid hard in the back.  The kid fell down hard, hit his head against the concrete, and slid into the water.  The defendant's companions on the other side of the fence yelled to the defendant to help the boy, but the defendant indicated to them through a swimming motion that the boy was just fine, so everyone took off.  But the boy was not fine; he was motionless in the water, and he drowned.  Later on, when his friends asked him whether the boy made it to shore, the defendant told them that he had drowned and threatened to hurt them if they revealed what had happened.

Why all the detail?  It's because I believe that (a) the cases in the second category are really the ones that suggest something tangible and distinct about depravity as a category of murder; (b) that quality actually exists also in the first category, so the Court is mistaken to have a special rule for killings done one-on-one with a weapon; and (c) that quality is really what ought to be driving the depraved indifference engine, not the idea of extreme (or "transcendent" or "grave" (P. v. Sanchez)) risk-taking.

But that quality can only be captured with words like viciousness, atrocity, cruelty, barbarity.  It's a quality that is present no less in the person who shoots cravenly into a retreating crowd, relishing the terror without specifically intending anyone's death, than it is in the incomparable nastiness of a young man who shoves a young kid hard just for the raw pleasure of it, watches him crash headlong into a block of cement and slip into the water, deceives people that the kid is just fine and waves off help, and then threatens to hurt them if they confess. 

That's the core of depraved indifference, and it matters little whether we can measure exactly how risky it was to shoot into a terrorized and retreating crowd, or to beat one's child so severely and with such consistent atrocity that its poor little body became infected and poisoned.  It is the quality of inhuman atrocity that one can feel in these cases which forms the core of depraved indifference -- and not any colder, even if harder-edged, calculations about risk-taking.

Admittedly, I haven't been able to articulate a standard, a precise theory that we can use to distinguish neatly when a defendant acts with depravity and when he does not.  But my own inadequacy with words doesn't mean that there isn't anything real or true about the quality these cases evince.  The facts speak for themselves, and they shape the doctrine accordingly.  And it is the doctrine, and not our cleaner intellectual abstractions from it, which reflects the truth with greatest acuity.

Posted by Marc DeGirolami on February 27, 2011 at 03:41 PM | Permalink | Comments (0) | TrackBack

Saturday, February 26, 2011

Glen on Kafka and Subjectivity in Law

I skimmed an interesting article, An Essay on Franz Kafka, Lawrence Joseph, and the Possibilities of Jurisprudential Literature, by Patrick Glen (HT Larry Solum), a lawyer in the DOJ Civil Division, and an adjunct professor at Georgetown with quite an impressive publication record.  I never got into Kafka, nor was I familiar with the work of the novelist and law prof (a fellow Detroiter), Lawrence Joseph.  The hook, for me, was this sentence in the abstract:  "The importance of perspective rests with the fact that although law might constitute an objective system, its experience is inevitably subjective."  Or from the essay:  "In essence, the law of the academy is the law of Posner—a system of rules that, by definition, excludes malevolent whimsy, arbitrariness, capriciousness. Law is known and need only be applied to certain factual situations. The fact that reasonable minds may differ on that application does not undercut law’s objective pretensions."

I'm a long way from being a Crit, but there's a fundamental insight in the application of narrative to the legal process, which is that it's always a subjective take.  I happen to think that it's a subjective take on an objective world (pace Crits, I think, in the sense that I don't think truth is always at odds with power), something I've written about from time to time.  This is an thoughtful exploration of that idea.

Posted by Jeff Lipshaw on February 26, 2011 at 06:43 PM in Article Spotlight | Permalink | Comments (4) | TrackBack

Friday, February 25, 2011

A Presumption Against Cost-Benefit Preemption?

The SCOTUS's decision in Williamson v. Mazda Motors is welcome to all friends of federalism not only because of its pleasingly unanimous holding but also because it is the perfect course-packet and casebook companion to Geier v. American Honda. The two decisions differ by a hair's breadth from each other in the basic facts: The question in both was whether the feds' giving a manufacturer an option regarding a safety precaution should preempt states' holding the manufacturer from exercising one of the options permitted by federal law. The Geier Court held that the manufacturer's choice between airbags and automatic seatbelts, permitted by FMVSS 208, was protected from state tort liability. The Williamson Court held that the manufacturer's choice not to install a lap-shoulder belt for the middle rear seat, also permitted by FMVSS 208, was not protected from state tort liability.

How can these holdings be squared? Here's one possible reading: The Court could be adopting a presumption against preemption whenever federal agencies exercise self-restraint because by not imposing a precaution on the ground that the precaution is not cost-justified. The agency's purpose of curtailing its own mission in the name of efficiency, in other words, is presumptively not preemptive of state law. If this turns out to be how the Court ultimately construes Williamson, then the decision is actually a big deal -- and welcome news to federalism fans who, like myself, believe that democracy works better when subnational politicians are freer to change the status quo.

Here's my basis for this "agency-efforts-to-promote-efficiency-don't-preempt" reading of Williamson. In Geier, the Court held that the DOT preserved the choice between airbags and automatic belts because the automakers' exercise of this choice would yield data about the relative merits of the two devices. Because the options preserved by the federal agency would contribute to auto safety, the federal agency's specific mission, the states could not second-guess the manufacturers' exercise of the agency-sanctioned option. In Williamson, by contrast, the federal agency refrained from requiring a lap-and-shoulder belt for rear inner seats only because the federal agency thought that this requirement would not be cost-effective. According to the Court, this sort of agency exercise in self-restraint for the sake of efficiency rather than for the sake of the agency's specific mission should generally be presumed not to preempt state law:

"Many, perhaps most, federal safety regulations embody some kind of cost-effectiveness judgment. To infer from the mere existence of such a cost-effectiveness judgment that the federal agency intends to bar States from imposing stricter standards would treat all such federal standards as if they were maximum standards, eliminating the possibility that the federal agency seeks only to set forth a minimum standard potentially supplemented through state tort law. We cannot reconcile this consequence with a statutory saving clause that foresees the likelihood of a continued meaningful role for state tort law."

In other words, because agencies routinely make cost-effectiveness judgments, those judgments cannot be treated as preemptive without radically undercutting state power.

Of course, the auto maker could respond that perhaps federal agencies want radically to undercut state power for the sake of promoting efficiency. Why presume that federal agencies' judgments about efficiency restrain the agency alone rather than the states as well?

Is there any justification for treating cost-effectiveness judgments as less preemptive than safety-effectiveness judgments? One possible reason might be that agencies specialize in particular regulatory missions -- health, auto safety, food safety, drug safety, clean air, clean water, etc. -- rather than in some general mission of making the law more efficient. It is the Department of Transportation, after all, not the Department of Regulatory Efficiency. There is no special reason, therefore, to defer to federal agencies' judgments about the costs imposed by state law when those costs do not involve interference with the federal agency's primary regulatory mission (e.g., auto safety, clean water, clean air, better medical technology, etc.) If a state wants to impose inefficient levels of liability because of (for instance) a hypochondriac risk aversion, or a desire for populist democracy implicit in the jury system, or a paranoid distrust of corporations, it is no business of the federal agency's.

I would even go so far as to say that, absent some fairly clear statutory mandate to promote generalized efficiency, no federal agency should be construed to have the legal power to preempt state laws that do not interfere with the agency's specific statutory mission. The National Highway Traffic Safety Administration (NHTSA) is entitled to impose safety-safety tradeoffs on the states, because NHTSA is an expert on safety. The FDA is entitled to impose health-health tradeoffs on the states for the same reason. And so forth, for the rest of the federal menagerie of agencies: Each has a specific area of expertise. But who appointed these agencies to be czars of efficiency in general? True, they might have authority to curtail their own missions in the name of of some general brand of social welfare. But it is hard for me to see why this statutory mandate for self-restraint -- if it exists -- entitles them to trump state judgments about social goals that simply fall outside the federal agencies' bailiwick.

I realize, however, that I, being temperamentally a federalism nut, take an extreme view. I am sufficiently happy that Williamson could be plausibly construed to have adopted a default rule in implied preemption cases that agencies' efforts at self-restraint in pursuit of their mission are presumptively non-preemptive.

Posted by Rick Hills on February 25, 2011 at 09:00 PM | Permalink | Comments (3) | TrackBack

Want to Cut Costs? Release More Prisoners

In an era where states are looking to do anything to bring down budget deficits, they may be overlooking one of the most important costs they generate in the criminal justice system: pretrial detention.   Many people would be surprised to know that the majority of people in our nation’s jails are those detained pretrial, not convicts.  And what often happens is that detention begets more detention.  People who are detained pretrial are more likely to get longer prison terms later because defendants have little bargaining power in plea bargaining when they are locked up.  Worse, judges often keep the status quo in sentencing (you’re in jail, you stay in jail, and vice versa).

We all know that the United States has the highest incarceration rates in the world and given the average costs to hold an inmate, this costs us a whopping $66 billion every year.  As a study I’ve recently worked on shows, the solution to this problem is now becoming clearer: states need to release more defendants pretrial to save money.  This will seriously decrease costs, unnecessary incarceration rates and do so without endangering public safety.

Some counties have already started down the road of releasing more inmates.  Recently, for instance, Miami-Dade County cut costs by supervising defendants outside jail at a total cost of around $400 per defendant.  And in Iowa, alternatives to jail saved one district $1.7 million in 2009.

These are great solutions but the obvious question that remains is: which defendants should states release from pretrial detention?  No state wants to release the next Jared Lee Loughner, and obviously there is a risk to releasing more people pretrial, so where does that leave states?  According to the recent empirical study that I conducted with economist Frank McIntyre, based on a dataset of over 100,000 felony defendants over a 15-year period, it looks like if we were smarter about which defendants we released pretrial, we could cut costs and decrease pretrial crime.  Generally speaking, our study shows that judges all over the country are detaining the wrong defendants and could release up to 25% more defendants safely—if they made decisions based on the evidence.   Looking at the data, it seems that judges are often detaining too many older defendants (people over 30), defendants with clean records, and defendants charged with fraud or public order offenses.  After careful consideration at a local level to ensure this is done properly, our model can easily be replicated in all U.S. counties to help policy makers release more defendants and save money—with the significant side-benefit of improving the safety of the public.

Posted by Shima Baradaran Baughman on February 25, 2011 at 05:05 PM | Permalink | Comments (8) | TrackBack

The Early-Release Renaissance

I think one of the most fascinating developments in criminal justice over the course of the past decade has been the reinvigoration of early-release opportunities for prison inmates -- parole and parole-like mechanisms.  Parole, of course, was a universal feature of the American criminal justice system as recently as forty years ago, but fell into precipitous decline over the last decades of the twentieth century.  By 2000, fifteen states and the federal government had abolished parole altogether (often under the banner of "truth in sentencing"), while twenty additional states had formally restricted its availability.  Since then, however, a trend in the opposite direction has quietly gathered steam.

I've been collecting information for some time about state legislative enactments that expand early-release opportunities, and I've just added data from 2010 to my running list.  The full table of new laws from 2000 to 2010 appears at the end of this post.  By my count, we are now up to at least thirty-six states.

Does this trend reflect a durable change in attitudes towards crime and punishment, or is this about short-term fiscal pressures and the need to reduce bloated corrections budgets?  Probably a little of both.


Much of the new legislation is designed to encourage and reward inmates for participating in prison-based programming, which seems to reflect a renewed confidence in the capacity of offenders to achieve rehabilitation under the guidance of corrections officials.  (The extraordinary growth of drug treatment courts across the country may provide even clearer evidence of this.)  Likewise, much of the new legislation is intended to provide release opportunities for inmates who suffer from terminal illnesses or who have otherwise become seriously physically disabled.  Such legislation seems to reflect a turn away from the indiscriminate approach to incapacitation that prevailed in the 1990s.  Finally, much of the legislation is intended to provide enhanced release opportunities for nonviolent drug offenders, which may indicate a weakening of the close association between drug crime and violent crime that seemed to develop in the public’s imagination during the crack epidemic in the 1980s.

Even assuming that such changes are occurring in public attitudes, it is hard to believe that they would have resulted in such widespread legislative reform as we have seen in the absence of extraordinary fiscal pressures.  The first wave of these laws was adopted during the economic downturn of a decade ago, which created fiscal crises in many states foreshadowing the present difficulties.  All along, the reforms have consistently been sold as cost-savings measures (although there is sometimes also an ethical dimension, as in the so-called "compassionate release" laws).

Will the early-release renaissance continue when the fiscal crisis eases?  Or, given the increasing strain that aging Baby Boomers are placing on government health and pension programs, is it naive to think the fiscal pressures will abate any time soon?

Things may play out quite differently with discretionary and mandatory early-release programs.  In Wisconsin and a number of other states that have adopted discretionary programs, projected cost-savings have not been realized because gun-shy corrections officials have been extremely conservative in exercising their new authority.  Anyone remember a guy named Willie Horton?  In such states, the new early-release programs are already being perceived as disappointing failures and seem more likely to be discontinued than to be expanded.

In any event, here is the information I have on legislation from 2000 to 2010 (which I expect to be included in some form in a forthcoming article of mine in the American Criminal Law Review):



2008: established new program permitting early release of certain older inmates with serious medical conditions[1]


2003: authorized early release of nonviolent offenders to reduce prison overcrowding[2]

2005: authorized transfer of inmates to community-based transitional housing up to one year before parole eligibility[3]


2009: expanded earned-time opportunities; permitted parole to be granted without a hearing in some cases[4]

2010: authorized medical parole for inmates who are permanently incapacitated[5]


2009: expanded number of good-time credits that can be earned per month; authorized Department of Corrections to deduct additional sixty days from sentence of nonviolent inmates for good behavior[6]

2010: expanded eligibility for earned time[7]


2005: expanded parole eligibility; authorized transfer of inmates to community-based residences within final eighteen months before release date; established compassionate release program for inmates who are elderly or ill[8]


2008: authorized earned-time credit for participation in prison programs[9]

2010: expanded eligibility for good-time credits[10]


2009: expanded eligibility for work release and transitional centers for violent offenders during final year of incarceration[11]


2007: authorized earned-time credits for inmates who earn GED[12]


2010: authorized rehabilitation-based discharge for certain long-serving inmates[13]


2007: authorized earned-time credits for completion of certain programs by low-level offenders[14]

2010: authorized medical parole for terminally ill inmates[15]


2008: permitted shift to home confinement for nonviolent offenders within 180 days of release date; authorized earned-release credits for completion of drug treatment and education programs[16]

2009: expanded parole eligibility for inmates convicted of certain low-level felonies[17]

2010: authorized certain inmates to be release to home confinement when they have 180 days left in their terms[18]


2001: reestablished parole eligibility for certain nonviolent offenders[19]

2008: increased earned-time available for inmates serving consecutive sentences[20]

2009: authorized parole for inmates serving life sentences for heroin offenses[21]; authorized earned-time credits for participation in approved treatment programs[22]

2010: made good-time credits retroactive to 1992 for some inmates; eliminated requirement that parole board be unanimous in support of release[23]


2007: permitted inmate work hours to be applied toward good time[24]

2009: expanded eligibility for release for terminally ill inmates[25]


2004: authorized early release of certain offenders for drug treatment in the community[26]

2007: established parole eligibility for certain offenders sentenced to a mandatory minimum[27]

2009: expanded conditional release eligibility for nonviolent offenders[28]


2010: authorized early release for some inmates serving mandatory terms for nonviolent drug offenses[29]


2002: established parole eligibility for certain drug offenders[30]


2005: authorized early release of certain nonviolent drug offenders[31]


2001: reduced amount of time that first-time, nonviolent offenders must serve before becoming eligible for parole; created programs permitting certain inmates to obtain earned-time credits[32]

2004: authorized transfer of terminally ill inmates to community supervision; increased sentence reduction based on participation in trusty programs[33]

2005: expanded parole eligibility for certain drug offenders[34]

2008: restored parole eligibility for nonviolent offenders; authorized release of terminally ill inmates regardless of time served[35]

2009: expanded early-release credits for participation in education programs[36]


2010: increased amount of good-time credit that could be earned by jail inmates[37]


2007: increased maximum number of possible good-time credits[38]

2009: permitted parole violators to earn good-time credits; authorized parole without a hearing for some offenders; expanded eligibility for residential confinement[39]

New Hampshire

2010: established presumptive parole for certain inmates[40]

New Jersey

2010: authorized courts to waive or reduce parole ineligibility for certain drug offenses[41]

New York

2004: authorized certain drug offenders to petition for resentencing; increased merit-time credits[42]

2005: expanded resentencing possibilities to new class of drug offenders[43]

2009: expanded eligibility for early release through Shock Incarceration Program; authorized medical parole for inmates suffering permanent disabilities; increased merit-time credits[44]

2010: expanded earned-time program[45]

North Carolina

2001: expanded programs through which earned-time credit might be obtained[46]

2008: established procedures for medical parole[47]


2008: streamlined procedures for medical and other early-release programs[48]


2009: expanded earned-time credit opportunities[49]

2010: expanded eligibility for education-based credit towards early release[50]


2008: adopted risk-reduction sentences to give inmates early-release opportunity based on participation in programs designed to reduce recidivism[51]

2010: authorized parole release for some inmates who have not completed prescribed programming[52]

South Carolina

2010: required that certain inmates be released to mandatory supervision 180 days before their prison release dates; expanded parole eligibility[53]


2007: authorized earned-time credits for inmates who complete certain programs[54]


2009: eliminated life without parole for juveniles[55]; authorized Department of Criminal Justice to restore lost good-time credits[56]


2010: expanded furlough program[57]


2001: expanded eligibility for geriatric release[58]


2003: increased amount of potential good-time credit from thirty-three to fifty percent of total sentence[59]

2007: authorized earned-time credits for participation in programming[60]

2009: expanded eligibility for early release for medical reasons[61]

2010: authorized release of certain inmates to partial confinement during final twelve months of sentence in order to complete parenting progam[62]

West Virginia

2010: instituted accelerated parole for inmates who complete rehabilitative program[63]


2009: adopted risk-reduction sentences to give inmates early-release opportunity based on participation in programs designed to reduce recidivism; established “positive adjustment” time; expanded eligibility for medical parole[64]


2008: authorized earned time and medical parole[65]



[1] Tina Chiu, Vera Institute for Justice, It’s About Time: Aging Prisoners, Increasing Costs, and Geriatric Release 10 (2010).

[2] Ryan S. King, The Sentencing Project, The State of Sentencing 2007, at 13 (2008) [hereinafter King, 2007].

[3] Ryan S. King, The Sentencing Project, Changing Direction? State Sentencing Reforms, 2004-2006, at 13 (2009) [hereinafter King, Changing Direction].

[4] National Conference of State Legislatures, Significant State Sentencing and Corrections Legislation in 2009 (2010), at http://www.ncsl.org/default.aspx?tabid=19122 [hereinafter National Conference of State Legislatures, 2009].

[5] Nicole D. Porter, The Sentencing Project, The State of Sentencing 2010, at 3 (2011) [hereinafter Porter, 2010].

[6] Alison Lawrence, National Conference of State Legislatures, Cutting Corrections Costs: Earned Time Policies for State Prisoners 4 (2009).

[7] National Conference of State Legislatures, State Sentencing and Corrections Legislation in 2010, at http://www.ncsl.org/?TabId=20763 [hereinafter National Conference of State Legislatures, 2010].

[8] King, Changing Direction, supra note ­3, at 12.

[9] National Conference of State Legislatures, Significant State Sentencing and Corrections Legislation in 2007 and 2008 (2010), at http://www.ncsl.org/default.aspx?tabid=12682 [hereinafter National Conference, 2007-2008].

[10] National Conference of State Legislatures, 2010, supra note 7.

[11] National Conference of State Legislatures, 2009, supra note 4.

[12] National Conference, 2007-2008, supra note 9.

[13] Porter, 2010, supra note 5, at 9.

[14] Lawrence, supra note 6, at 6.

[15] Porter, 2010, supra note 5, at 3.

[16] Ryan S. King, The Sentencing Project, The State of Sentencing 2008, at 4 (2009) [hereinafter King, 2008].

[17] Nicole D. Porter, The Sentencing Project, The State of Sentencing 2009, at 3 (2010) [hereinafter Porter, 2009].

[18] Vera Institute of Justice, The Continuing Fiscal Crisis in Corrections 18 (2010).

[19] Ryan S. King & Marc Mauer, The Sentencing Project, State Sentencing and Corrections Policy in an Era of Fiscal Restraint 5 (2002).

[20] National Conference, 2007-2008, supra note 9.

[21] Porter, 2009, supra note 17, at 7.

[22] Id. at 13.

[23] Vera Institute of Justice, supra note 18, at 18, 19.

[24] National Conference, 2007-2008, supra note 9.

[25] National Conference of State Legislatures, 2009, supra note 4.

[26] King, Changing Direction, supra note 3, at 6.

[27] King, 2007, supra note 2, at 10.

[28] National Conference of State Legislatures, 2009, supra note 4.

[29] Porter, 2010, supra note 5, at 9.

[30] Judith Greene & Marc Mauer, The Sentencing Project, Downscaling Prisons: Lessons from Four States 28 (2010).

[31] King, Changing Direction, supra note 3, at 14.

[32] King & Mauer, supra note 19, at 5, 9.

[33] King, Changing Direction, supra note 3, at 14.

[34] Id.

[35] King, 2008, supra note 16, at 4-5.

[36] Porter, 2009, supra note 17, at 3.

[37] National Conference of State Legislatures, 2010, supra note 7.

[38] King, 2007, supra note 2, at 14.

[39] National Conference of State Legislatures, 2009, supra note 4.

[40] Porter, 2010, supra note 5, at 9-10.

[41] Id. at 3.

[42] King, Changing Direction, supra note 3, at 15-16.

[43] Id. at 16.

[44] Greene & Mauer, supra note 30, at 25.

[45] National Conference of State Legislatures, 2010, supra note 7.

[46] King & Mauer, supra note 19, at 10.

[47] National Conference, 2007-2008, supra note 9.

[48] Id.

[49] Id.

[50] Vera Institute of Justice, supra note 18, at 17-18.

[51] Christine S. Scott-Hayward, Vera Institute of Justice, The Fiscal Crisis in Corrections: Rethinking Policies and Practices 11 (2009).

[52] National Conference of State Legislatures, 2010, supra note 7.

[53] Vera Institute of Justice, supra note 18, at 18-19.

[54] National Conference, 2007-2008, supra note 9.

[55] Porter, 2009, supra note 17, at 3.

[56] Id. at 14.

[57] Vera Institute of Justice, supra note 18, at 19.

[58] Chiu, supra note 1, at 9.

[59] Lawrence, supra note 6, at 3.

[60] National Conference, 2007-2008, supra note 9.

[61] Chiu, supra note 1, at 9.

[62] National Conference of State Legislatures, 2010, supra note 7.

[63] Vera Institute of Justice, supra note 18, at 19.

[64] National Conference of State Legislatures, 2009, supra note 4.

[65] National Conference, 2007-2008, supra note 9.


Posted by Michael O'Hear on February 25, 2011 at 04:03 PM in Criminal Law | Permalink | Comments (0) | TrackBack

The Leo Strauss Tapes

I've blogged here before about my book project on Leo Strauss's ideas on war, peace, and law.  One of the steps forward in this project came when the literary executor of Strauss provided me with a transcript of Strauss's course on Hugo Grotius's Rights of War and Peace.   Strauss's lectures confirmed my view, based especially on a reading of his Thucydides essay, that he took international law very seriously.  

Now many of Strauss's courses and seminars are being made available on the website of the Leo Strauss Center at the University of Chicago.   A common misunderstanding of Strauss, based upon an inadequate reading of his idea of esoteric/exoteric teaching is that Strauss reserved the blunt expression of the inner meaning of his thought for oral instruction of disciples (often suspected to be a militantly anti-liberal ubermensch type philosophy).   In my first published work on Strauss, "Between the Lines," which appeared in Philosophy and Rhetoric over a decade ago, I sought to correct this misunderstanding through an interpretation of Strauss's introductory essay in Persecution and the Art of Writing, arguing that for Strauss writings are more authoritative articulations of philosophical truth than oral teachings.

Well, now it is possible to listen to a wide variety of Strauss's classes, and while I've only started to mine the tapes, those seeking to present Strauss as teacher of would-be tyrants (or at least Wolfowitzs) will have a lot to answer for. 

Strauss's manner of teaching is modest, straightforward, preoccupied by trying to understand for himself, and communicate his understanding to the students.  He is frequently tentative, often corrects himself, and allows himself to be corrected and improved by comments of the students.  He is probing and provocative in his confrontations with the texts he analyses but he is never preachy or polemical.  To borrow from Marx's famous line, one comes away from listening to these classes with the clear impression that Strauss was teaching students to interpret the world, not to change it (except perhaps only very indirectly, through thinking and arguing about the basic problems of the human condition). 

This isn't surprising to me, however, given Strauss's own written account of his ideal of  pedagogy:  "Always assume there is one silent student in your class who is by far superior to you in head and in heart....[D]o not have too high an opinion of your importance, and have the highest opinion of your duty, your responsibility."  These are words that I've tried to have in my head every time I've entered the class room for the last 20 years.   

The tapes can be found here. I know that there are some conspiracy theorists who will not be satisfied-maybe Strauss was prepping the neocons in midnight seances with the tape recorder shut off, or in office hours?  Also, those who hope that listening to these classes is a shortcut to grappling with the immense complexity of Strauss's written engagements with thinkers such as Machiavelli and Maimonides will probably be disappointed.   But there is much here of genuine philosophical value.  And all but the most close-minded will come away with a clearer portrait of the kind of teacher and human being that Strauss was. 

Finally, the Strauss Center is running a conference on April 22 and 23 to celebrate this project, focusing on Strauss as a teacher.  The link, with registration information is here.








Posted by Rob Howse on February 25, 2011 at 01:09 PM in Culture, International Law | Permalink | Comments (10) | TrackBack

The Consultant's Four-Quadrant Matrix for Generating Article Topics

Back in 2006, in my debut performance as a PrawfsBlawgger, I introduced many of you to the standard consultant's four-quadrant matrix.  This morning, while I could have been doing any of the following productive things - preparing for class, getting ready for my talk to the faculty next week, writing an article for the ABA Young Lawyer magazine that's due soon, finishing a recommendation letter for a student - I managed to turn my mind to something just above Bubble Breaker on the procrastination scale.  As a public service, here is the four-quadrant matrix on generating article topics.

The source is the standard product development consultant's four-quadrant matrix for corporate revenue Slide1 growth, shown at right.  I used Oldsmobiles and electric vehicles, but you can get the same place if you imagine Starbucks in Tierra del Fuego for one of the quadrants (that's Old Products/New Markets), or selling medicinal marijuana at the store on Telegraph Avenue (that's New Products/Old Markets).

What occurred to me, after listening to a whole bunch of job talks this past winter, and seeing Ethan Leib's post below (as well as Larry Cunningham's new paper on unconscionability) (sorry, guys) was that an enterprising "research topic" consultant could convert the "new product/old product/new market/old market" Slide1 matrix of product development into a matrix for article development based on the axes of law (old and new) and subject matter (old and new).  The result is what you see at left.  Your diehard, traditional doctrinal Socratic types are going to want stick pretty much to the upper left hand box, while your off-the-wall space cadets are going migrate down to the lower right.

This matrix is also useful in determining who your promotion and tenure reviewers ought to be.  If you plot your pieces in one quadrant, and the reviewer's work is significantly in another one, even if you share the same discipline, you are going to want to reconsider.

I'm available for faculty retreats on this subject at my usual consulting fee plus expenses.

Posted by Jeff Lipshaw on February 25, 2011 at 11:27 AM | Permalink | Comments (0) | TrackBack

Church Autonomy on Tap?

John Elwood at Volokh discusses two law and religion cases that are scheduled at the Supreme Court's case conference today.  It's interesting to me that both involve church autonomy questions -- whether and when the state ought to interfere with matters of church governance and management.  The second case, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, would involve the Court in a ministerial exemption issue.  The terminated employee, through the EEOC, brought a claim under the Americans With Disabilities Act (according to the petition for cert. filed by Doug Laycock, she claimed in part that she was fired because of her diagnosed narcolepsy -- interesting).

I hope the Court takes Hosanna-Tabor, if only to declare itself on the ministerial exemption.  The federal circuits have uniformly accepted the ME, though there is a difference of opinion about its scope.  But the Supreme Court hasn't even officially ever recognized the doctrine at all.  Arguably, it obliquely acknowedged the ME in NLRB v. Catholic Bishop of Chicago, where it said that "excessive entanglement" concerns necessitated that teachers in parochial schools be exempted from collective bargaining requirements.  But it would be good to get a clear statement from the Court on the viability, let alone the reach, of the ME. 

Posted by Marc DeGirolami on February 25, 2011 at 10:38 AM | Permalink | Comments (22) | TrackBack

Thursday, February 24, 2011

Lessons for Health Care from the UI Experience

When I started out in my efforts to alleviate sleep-debt across the blog-reading world, I promised that my boring unemployment posts would have an exciting payoff in lessons for the affordable care act.  Well, get your lunesta, my friends.  Because one lesson from UI is that the ACA is obviously constitutional.  When the UI system of taxing employers to twist the arms of their local state officials was challenged in 1937, Cardozo, famously, responded that to condemn conditional taxation as "coercive" would be to plunge law into "endless difficulties."  

That was a typically glib Cardozoism, but there was a more substantive analysis, too.  Cardozo argued that, left on their own, states could never implement UI because of the threat of competition with neighboring states.  So the court ultimately held that, even if there were some limits on what the federal government could do with its conditional taxing power, enacting UI surely fell within them: without federal action, the race to the bottom would cripple state efforts, and ultimately the economy.  Swap some letters around -- say, "ACA" for "UI," and you're describing the federal tax on folks who don't buy insurance, as I've argued

After the jump, lessons for the relationship between the states and the feds in administering the new health care system.        

For obscure reasons that probably have something to do with making the legislation look somewhat more centrist, the core of the ACA is a cooperative venture between states and the federal government.  States continue to regulate health insurance and insurance providers, and administer "exchanges" where those who do not have other forms of insurance can purchase at a group rate.  Folks who can't afford that rate, either, will get subsidies from the federal government. 

It's hard to see anywhere in this system where states have incentives to hold down costs.  As with UI, states have federal insurance against rising costs associated with their other policy choices.   The legislation contains a basket of great experiments to lower costs (as Atul Gawande and more recently Krugman have written about), but it looks for now like we shouldn't expect states to jump on board. 

Arguably, that incentive structure is the price to be paid for higher enrollment: if states bore some of the costs of paying for new enrollees, they might be disinclined to push to sign up people who are now uninsured.  But that's a false choice, I think.  There are ways to get states to internalize insurance costs without deterring enrollment.  For example, why not increase the federal subsidy for other state health costs for Medicaid families (the "FMAP") in states that reduce costs per patient in the exchange? 

States can be important experimental partners, but the UI story tells us that gains from experimentation can be swamped by other factors if we're not careful.

Posted by BDG on February 24, 2011 at 08:11 PM in Tax | Permalink | Comments (0) | TrackBack

Posner on Leib/Leib on Posner on Leib

Eric Posner's review of my new book Friend v. Friend is available at The New Republic's website.  It is sharp -- and reasonably critical and skeptical.  My response is also available at TNR here

Posted by Ethan Leib on February 24, 2011 at 07:55 PM | Permalink | Comments (0) | TrackBack

Feedback, Tough Love, and "Failing Well"

Mike Madison and Michael Risch have thoughtful posts on so-called "tough love" workshops, the former's informed by five years as the Associate Dean for Research at Pittsburgh.  The tension Mike Madison described is not unique to academia:  on one hand, the only way you get better is to get criticized; on the other hand, (a) getting criticized isn't fun, and (b) do people understand that something can be both good or on the right track, but at the same time flawed and worth a lot of criticism and correction?  On the other hand (that makes three), maybe the piece just ... sucks.  That is indeed the paradox and the problem of establishing what, in jargon, is the "learning organization."

Unknown An anecdote.  I've blogged elsewhere about watching the Colts-Titans game over New Years' weekend this year and realizing that I knew two of the people in the NFL officiating crew.  The buff referee, Ed Hochuli, is a Phoenix, Arizona lawyer who did some products liability litigation for us when I was the general counsel of Great Lakes Chemical.  The side judge (see left) was my long-time friend, Ron Torbert, a Harvard Law School educated lawyer, my former associate at Dykema Gossett in Detroit, the general counsel of our safety restraint business at AlliedSignal, and now the general counsel of Barton-Malow, a big construction company in Michigan.  Ron has spent the last twenty or more years working his way up the referee chain, from high school to Division II to the MAC to the Big Ten, and now he's finished his first year as an NFL official.

Anyway, the story is about Ron.  The reason Ron came to work at AlliedSignal was that he was simply the best young associate at Dykema, and I stole him away.  The first project he and I worked on together was the appeal brief in a case called Borman's, Inc. v. Michigan Property & Casualty Guaranty Association.  I was a young partner; he was a new associate.  Ron wrote the first draft of the brief, and I "bled" in red ink all over it.  I remember Ron telling me how freaked out he was; what I tried to explain was what a pleasure it had been to work on the brief.  The structure and the ideas were there; I was shaping and sanding and reacting.  The point is that it was a mutual learning experience.  (You can see from the photo that Ron continues to get feedback on his performance; I'm not sure this is a learning experience.)

I have spent fifteen years in a big law firm, eleven years in a big corporation, and six years in academia, and I'm here to tell you that there's not a shred of difference among them in their inherent tendency not to be learning organizations - in which people "fail well."  There's just as much palpable fear, unless managed out of the organization, about not getting tenure as there is about not making partner as there is about getting fired. Learning organizations arise from a shared commitment to growing that is at once confident, humble, open, honest, blunt, empathetic, caring, charitable, and judgmental!  In learning organizations, leaders and teachers are first and foremost learners.  In Michael Risch's terminology (his post is entitled "The Virtue of Getting Shredded"), we are all equally capable of being shredders and shreddees.  And as good as we might be, sometimes we produce something that well ... sucks.  Ask the man who cringes when he reads some of his own writing. 

Having said that, I've not yet experienced the kind of intense workshop Mike and Michael describe.  As Mike concludes, a learning environment is the key; I've no doubt that a couple pompous and self-important asses could ruin that pretty quickly.  I've given the usual "faculty enrichment" lunch talks on my papers, and while they're fabulous for the ego (notwithstanding that after I'm gone they're no doubt saying "who was that buffoon?"), I've not yet had one really make a paper better.  On the other hand, I've had friends go over papers line by line and section by section and say things like "I don't get what you are saying here" or "cut this whole section out" or "you've got too much going on" and invariably the paper gets better.  But that's not a learning organization; it's a learning relationship. 

Posted by Jeff Lipshaw on February 24, 2011 at 07:08 PM | Permalink | Comments (0) | TrackBack

Is Winkler Right to Say Obama Was Wrong?

FoP Adam Winkler (UCLA) has an interesting take on the Obama Admin's decision to not defend an aspect of DOMA. After the jump, I've reprinted the post, and I hope the comments here will be somewhat more illuminating than those on HuffPo. (FWIW, I do share some of Adam's concerns but I would like to hear why they are misplaced, if in fact they are.)

Liberals rejoiced on Wednesday when the Obama Administration, which has often seemed indifferent to gay rights, announced that it would not defend a key provision of the Defense of Marriage Act in court. DOMA, as the law is known, establishes that only opposite-sex marriages are recognized by federal law. While DOMA is a discriminatory law and should be repealed, Obama's decision not to defend it should be condemned.

For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution's command that the president "shall take Care that the Laws be faithfully executed."

But now Obama has declared that if the president doesn't agree with a law--even if the courts say it's constitutional--he can choose not to defend it. This sets a terrible precedent that could well come back to haunt those who are cheering the president's decision. Don't be surprised if a President Palin points to Obama's decision when announcing her refusal to enforce and defend the landmark healthcare reform law because, in her view, the individual mandate is unconstitutional.

The administration decided not to defend DOMA on the basis of a controversial reading of the Constitution. Attorney General Eric Holder's letter to John Boehner, in which the announcement was made, stated that discrimination against gays must meet what the courts call "heightened scrutiny." That means that any law singling out gays must have unusually strong justification.

If only that were the case. Twice the Supreme Court has been asked to hold that discrimination against gay people warrants heightened scrutiny. And twice the Supreme Court has rejected that argument. Instead, the Court has suggested that discrimination against gays only needed to meet a lower standard of rationality. The lower courts asked to rule on the constitutionality of DOMA so far have consistently agreed that heightened review is not appropriate.

In my view, the Supreme Court was wrong to reject heightened scrutiny for sexual orientation discrimination. Nevertheless, that's the law of the land and, for better or worse, it's the Supreme Court, not the president, who gets to make that decision.

The administration had other alternatives. It could have continued to defend the relevant provisions of DOMA in court but drop some of the specious arguments traditionally used to support it--that marriage is only about procreation or that gay people aren't good parents. The administration could even argue that the Supreme Court was wrong to reject heightened scrutiny and that the law should be judged by that higher standard. But to declare unilaterally that the law is unconstitutional, on the basis of an interpretation of the Constitution with little support in Supreme Court doctrine, is a mistake.

Think of the laws that might be undermined by the next Republican president. Senator Rand Paul has argued that the Civil Rights Act may be unconstitutional. Senator Mike Lee has insisted that thefederal laws barring child labor were not within Congress's constitutional authority to enact. Some in Republican circles even suggest that the federal government doesn't have the constitutional power to require background checks on gun purchases.

It should take more than a presidential announcement to repeal these vital and important federal laws. Unfortunately, President Obama's decision on DOMA makes that very threat more of a reality.


Posted by Administrators on February 24, 2011 at 01:54 PM in Constitutional thoughts | Permalink | Comments (11) | TrackBack

Wednesday, February 23, 2011

Depravity, Again

Hot on the heels of my thoughts on depraved heart murder, the New York Court of Appeals today issued People v. Prindle, in which the defendant was in the process of stealing a snow plow blade (this year, I could certainly sympathize) when police responded to the scene and defendant took off in his van with the police in hot pursuit.  The chase ended between 2 1/2 and 4 miles later, when the defendant crashed into another car, severely injuring the victim, who survived in a comatose state with terrible injuries before dying five days later.

The quirk about the case was that the trial court gave a jury instruction which tracked the law in the now-overruled, supposedly objective and morally shorn People v. Register.  At the time of trial, Register hadn't been explicitly overruled yet, but it was on the way out.  The trial court instructed that a finding of depravity depended on a decision that the defendant's "conduct, when objectively viewed," rose to a level of dangerousness "demonstrat[ing] an attitude of total and utter disregard" for human life.  The defendant didn't object; so that's the standard that the Ct. of Appeals used.

In my previous post, I argued that a legal moralist view of depraved heart is perhaps counter-intuitively more defendant protective than an objectified view that focuses exclusively on risk-taking.  The beauty of Prindle is that it manifests the utter inadequacy of the objective, morally denuded approach to depravity in another way: it is unfair. 

Compare another wild car chase case more than 20 years ago, People v. Gomez, in which the Court of Appeals upheld a depraved indifference conviction where the defendant drove 40 miles an hour along a city street, hit a parked car, continued onward weaving between lanes, hit another moving car, climbed up a sidewalk curb and hit and killed a kid on a bike, and then sped up, hitting and killing another child.  In Prindle, there was testimony that the defendant drove the van erratically, was weaving in and out of lanes, crossed over the median, barrelled through no less than 5 red lights, causing traffic to come screeching to a halt, drove for long moments in the lane of oncoming traffic at 65 mph (with cars peeling and skidding out of the way), hit a truck at an intersection, and plowed on ahead until it crashed into the victim's car without braking or attempting to avoid it.

Without any explanation at all, applying the "objective" test, the Prindle majority distinguished Gomez and held that these facts were legally insufficient to rise to the level of depraved indifference and could only be second degree manslaughter.  How it did so is a mystery to me, as well as to dissenting Judge Pigott.  Was it the killing of two people?  The fact that the people were children?  The driving on after the initial hit?  If it helps (as if it should!), the victim here was a young woman who was on her way back from a baby shower.  Examined "objectively," exactly what factual circumstance is it that warranted giving Gomez a minimum of 15 years where Prindle gets a minimum of 1?

No, objectifying the standard for depravity -- eliminating the inquiry into culpability -- by trying to discern whether a defendant like Gomez presented a "grave" risk, while Prindle only presented a "substantial" risk, is no way to run a railroad.  The unfairness to -- that is, the unequal treatment of -- defendants in using this sort of fact-oriented, mens rea insensible approach to depravity boggles the mind.  Placing depravity on a continuum with ordinary criminal recklessness -- calling it a species of extreme recklessness regarding homidal risk without any uniquely morally culpable component -- is a dreadful idea.  

Posted by Marc DeGirolami on February 23, 2011 at 03:06 PM | Permalink | Comments (3) | TrackBack

Quality legal television, for once

Tomorrow night on HBO is the premiere (with many, many repeat showings to follow) of Thurgood, starring Laurence Fishburne, in a filmed performance of the one-man show at the Kennedy Center. The play is based around a fictional speech by Marshall at Howard Law School, in which he recounts his life and career as civil rights attorney and Supreme Court justice.

It's a good time for this, given that the last we heard of Justice Marshall, he was the focus of intense scrutiny by Republicans on the Senate Judiciary Committee.

Posted by Howard Wasserman on February 23, 2011 at 10:04 AM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Ballooning Statutory Damages in Copyright Law: Part 1 of 3

My_bookshelf Over on the Freakonomics blog last week, Kal Raustiala and Chris Sprigman put up a post marking the ignominious end of the Jeffrey Koons "balloon dog" controversy. In case you missed it, a blogospheric hubbub erupted when Koons's firm, Jones Day, sent a cease and desist letter to Park Life, a San Francisco art gallery, for selling bookends that resembled Koons's "Balloon Dog" sculptures. The problem was that the bookends resembled Koons's sculptures mostly because they resembled balloon dogs, which are not copyrighted by anyone.

It was particularly ironic for Jeffrey Koons, of all people, to be making an expansive claim of copyright protection, given that Koons has been on the receiving end of a number of such claims over the course of his career, which he only recently began defeating. Park Life, represented by Fenwick & West, filed a declaratory action that began with the observation, "As virtually any clown can attest, no one owns the idea of making a balloon dog." The case quickly settled without so much as a hearing.

Koons  balloon dog yellow Raustiala and Sprigman believe there are larger lessons to be learned about copyright law from this episode; lessons beyond "clients do the craziest things." Specifically, they believe that the Koons letter illustrates the way in which copyright law allows meritless claims to succeed. This is a fairly common argument in copyright circles; the idea is that there is something about copyright law under which even claims that lose are evidence of some sort of problem with the law.

I am skeptical, at least of the idea that there is something particular about copyright law that causes overreaching claims like the Koons letter. You could tell much the same story about any number of areas of the law, such as personal injury claims, property disputes, defamation, securities fraud, employment discrimination, or heck even dry cleaning law. It could be the case that copyright is worse than all of those other areas, but anecdotes like the Koons case won't demonstrate that. And if the problem is more general, that means the solution is not at all obvious.

Here's the core of the Raustiala and Sprigman argument. After noting that ideas (such as balloon dogs) are unprotected, and that fair use limits rights even further, they write:

But that's the law on paper. The real world is different. As a result of lobbying by Hollywood and the recording industry, the law allows copyright owners — at least those who have registered their works with the Copyright Office — to win huge damages for successful copyright lawsuits. As a result, copyright owners have tremendous leverage to coerce potential defendants to stop engaging in conduct that may be perfectly legal. The cost of a lawsuit — even a lawsuit that seems unlikely to succeed — is just too great, unless the defendant is very, very sure they will win.

There's a few claims in here: statutory damages were the result of lobbying by Hollywood and the recording industry, the vagueness of copyright law encourages totally meritless cease and desist letters, and the prospect of statutory damages causes the recipients of such letters to fold. I'll tackle each of these in a separate post. (I began this as a brief response, but it now vastly exceeds the length of the original post, so really it's a series of reflections of my own occasioned by the Raustiala and Sprigman post.)

1. The history of statutory damages. Statutory damages were added to copyright law in their modern form in the Copyright Act of 1909. That act provided for damages for infringement of copyrighted works of between $250 and $5,000, or $6,109 and $122,186 in 2011 dollars. That's pretty much what we have now, even though statutory damages have been nominally tripled in the last 23 years. The current version of the Copyright Act permits statutory damages of between $750 and $30,000 for infringement, or up to $150,000 if the infringement is "willful." In fact, the 1909 Act damages were considerable higher at the low end, $6,109 versus $750 (or $200 if the infringement is found to be "innocent").

Copyright owners were obviously the most interested in 1909 in getting a more effective statutory damages award. But that wouldn't have been either Hollywood or the recording industry, both of which barely existed. This is more than a nitpick. Despite what you may have read, the lobbying battles over copyright legislation are more often than not battle royales between various competing groups. Certainly there are particular instances where the interests affected, or at least represented in the process, are more narrow. Citing Hollywood or recording industry lobbying as being the single cause of some change brings to mind the recent battles against individual or Internet infringers--Goliath vs. David, in other words. But even as late as 1976, when the current statutory damages provision was adopted, those battles were still in the future. The lobbying battle would therefore have been more complex. Statutory damages would have had as one of its primary targets those entities capable in 1909 or 1976 of committing infringements on a regular basis: that is to say, publishers themselves, as well as distributors. I don't know if there were any fractures on statutory damages in the lobbying battles before Congress but it doesn't strike me as something that would be strongly unilateral.

Congress in 1976 did change statutory damages in one very significant way that backfired: in an attempt to limit statutory damages, Congress specified that such damages be calculated "per work infringed." This was a limit at a time when infringement typically meant multiple copies of a single or small set of works. But now a typical, and unforeseen, infringement vector is the creation of a shared library of thousands of works. The statutory limitation now inflates statutory damages remedies in typical online infringement actions, with consequences I've noted elsewhere.

Of course all that has no impact on cases like Koons's. Koons was complaining about the infringement of one work, one of his balloon dog sculptures. His damages would max out at $30,000, or $150,000 if willful, both of which would have to be deemed unlikely, the latter particularly so. But perhaps the likelihood of getting damages is beside the point. Perhaps even the prospect of getting up to $150,000 for willful infringement of a single work encourages more cease-and-desist letters to be sent, or more to be complied with, or both. I'll start taking a look at that in my next post.

Posted by Bruce Boyden on February 23, 2011 at 09:05 AM in Intellectual Property | Permalink | Comments (2) | TrackBack

Chinese Rooms and Partner Pay

The Wall Street Journal today spanned the continuum from the deep and mysterious hard question of consciousness to the Mammon of Big Law Firm partner hourly rates.  The former came in an op-ed from John Searle, using his famous "Chinese room" image to explain why Watson computes but doesn't think.  The latter came in an article about the uncapping of top fees from the self-imposed $1,000 limit at many firms.

I was a partner in a big Midwestern law firm in the late 80s and early 90s, and I don't think my compensation ever overtook what first year associates in New York were making (or it was close).  I leave it to my friend Bill Henderson to do the definitive empirical work on this, or to tell me how it's changed, but the big difference in those days was leverage - big Midwestern firms ran a ratio of "equity" partners to associates of just about 1:1; in New York it was 4:1 or 5:1.  I read somewhere that firms like DLA Piper now pay top partners as much as $6 million, with a 9:1 gap between the lowest and the highest.  That would still leave a "low-paid" partner at the paltry sum of $666,666, which, I suspect, means the partner is still what I would call a partner.

What do I mean by that?  I recall sitting in a partners' meeting years ago, thinking that only some of us (and not I) were really partners.  Even though we were equity partners, the real question, it seemed to me, was whether we were net givers or net takers.  With low leverage ratios, it had to be the case that some percentage of the partners were still the source of profit to other partners (i.e. they made less than what they brought in from their hourly rates, even accounting for overhead).  It was the worst of both worlds, because of what was, in effect, reverse leverage.  Unlike the associates, your compensation wasn't guaranteed.  Instead, if times were not so good, you helped subsidize the lost income to your genuine partners!

Posted by Jeff Lipshaw on February 23, 2011 at 08:16 AM | Permalink | Comments (4) | TrackBack

Tuesday, February 22, 2011

Is "Intellectually Vacuous" the Right Expression for Veil-Piercing Doctrine?

Over at his blog, Steve Bainbridge endorsed a view, inspired by comments from Steve Bradford (Nebraska) at Business Law Prof Blog to the effect that every time he got to teaching "veil-piercing," he was reminded again how "intellectually vacuous" the doctrine was.

I sympathize.  I have the same reaction when I teach veil-piercing.  Why?  It's the tempest in a teapot problem that affects much of what commercial and business lawyers learn in school, on one hand, and what they practice, on the other.   Were you inside the teapot of an idiosyncratic case that ends up as an appellate decision on veil-piercing, it would seem like a Category 5 hurricane.   You read five or six cases with outrageous facts and try to reconcile how the doctrine for why corporations legitimately exist (individual use them to shield themselves from liability) is exactly the same as the doctrine under which individuals can be tagged (individuals used them to shield themselves from liability).  Blow winds and crack your cheeks, rage, blow!  But piercing cases are rare, idiosyncratic, and usually marked by some outrageous conduct that makes the decision, in retrospect, not particularly surprising.

Slide1 But I disagree that the proper description of the problem is intellectual vacuity.  The problem is trying to reduce to propositions something that propositions can't reduce.   I've been teaching first year contracts and I've encountered this same "vacuity" problem every time the standard is "justice" (as in promissory estoppel), unconscionability, or mistake.  Analogical reasoning doesn't work because it is inductive analogy - the cases are supposed to describe a rule - rails in a Wittgensteinian sense - that point you to the next result, and there are no rails, or there are too many rails, or they aren't parallel (metaphorically speaking).   The better way to approach this is to understand that (a) we have a non-propositional conception of the prototypes of corporate legitimacy and corporate legerdemain, (b) the prototypes sit in polar opposition on a continuum, and (c) the rationalizing propositions follow the non-propositional and intuitive metaphoric leap from the specific case before us to a prototype.  Another in my series of Venn representations of this kind of polarity is at left - this on unconscionability.

Shameless self-promotion alert:  I discuss this cognitive process at length (giving credit where credit is due - I didn't make this stuff up) in three recent papers:  Metaphor, Models, and Meaning in Contract LawThe Financial Crisis of 2008-09:  Capitalism Didn't Fail But the Metaphors Got a "C" (Minn. L. Rev., forthcoming), and The Venn Diagram of Business Lawyering Judgments (46 Seton Hall L. Rev. 1 (2011), forthcoming).

Posted by Jeff Lipshaw on February 22, 2011 at 01:33 PM in Corporate, Deliberation and voices, Legal Theory, Lipshaw, Teaching Law | Permalink | Comments (1) | TrackBack

Monday, February 21, 2011

Weiler in the Dock

As some of you know from reading Leiter's blog, NYU Law prof, Joe Weiler, has been accused in France of a criminal defamation charge because he refused to take down a negative book review that appeared in the journal that he edits (the EJIL). Weiler had nice things to say about the trial's fairness but one hopes nonetheless that he is being indemnified by all the parties (that's all of us) who would benefit from a ruling in his favor, soon may it arrive. The judges are supposed to issue a verdict in a fortnight. In the meantime, you might want to check out Adam Liptak's very interesting Sidebar column in today's NYT about the trial and Weiler's seemingly mellow mood about this all.   Adam, you might recall, has done some freelancing for NYU Law in the past, so it's not entirely surprising that he would take interest in the injustice to Weiler. And I'm glad he did. The alleged victim's amazon webpage hasn't exactly benefited from the attention Liptak has focused on it.

Perhaps somewhat oddly, I owe the appearance of my first scholarly publication to Prof. Weiler, who, before he set off to NYU from HLS, cheerfully encouraged me as a 1L to write a review essay of a book on ethics and authority in international law.  I just discovered that the link I had to that essay on my website is dead, and, that may all be for the better. Nonethless, I find it sad that more than technology is frustrating the European Journal of Int'l Law and its editors these days. We all owe Prof. Weiler a substantial debt of gratitude for his principled stand regarding the fate of academic book reviewing. Thanks for hangin' tough, Joe. (And a h/t to Al Brophy, for spotlighting the Sidebar for me today.)

Posted by Administrators on February 21, 2011 at 11:11 PM in Blogging, Books, Criminal Law, Culture | Permalink | Comments (4) | TrackBack

Depravity -- or, Legal Moralism's Protective Dimension

Criminal law teachers and scholars know that an unintentional killing evincing a "depraved mind" (or "heart") historically has constituted murder -- one whose culpability is generally on a par with an intentional killing.  As part of my efforts this year to learn and teach more New York law to my criminal law students, I have been greatly enjoying the rich local doctrine in this area.  The New York Penal Law uses the "depraved indifference" formulation, and, in a nutshell, the Court of Appeals relatively recently held that depravity is its own mental state, and cannot be captured by "objective" factors which relate solely to the degree of risk-taking.  The latter was the older rule in a case from the early 1980s, People v. Register, where the aim had been in part to shear away what was perceived as a kind inappropriate legal moralism in the concept of "depravity" and to make it more neutral, more "objective."  The result was that prosecutors began to charge defendants with both intentional and depraved indifference  homicide -- an outgrowth of the fact that depravity no longer retained its own independent sense of culpability.  It was the desire to do away with the distinctive moral opprobrium that attaches to depraved indifference which occasioned the prosecutorial practice of gamely bringing two charges that have no business standing side-by-side.  Roughly five years ago, Register was overruled.

In my (limited) experience teaching criminal law, students have a difficult time wrapping their minds around the idea of depravity -- they want to think about it purely in terms of excessive risk-taking -- really, really excessive (murder) as compared with just plain old excessive (manslaughter).  But the New York experience suggests that the older, morally laden language is more protective of defendants -- more protective exactly because keen to retain the distinctly culpable quality of "extreme wickedness, or abject moral deficiency," People v. Suarez, 6 N.Y.3d 202 (2005), that is the distinctive flavor of depravity.

As it happens, I'm working on a paper dealing with the thought of Sir James Fitzjames Stephen, an important Victorian-era jurist and one of the leading 19th century expositors of English criminal law.  His descriptions of the culpability of particular offenses, often drawn from cases that he tried, are masterful.  For criminal law teachers who are thinking about how to transmit the concept of the depraved heart, may I suggest the following tract, from the third volume of Stephen's magnificent History of the Criminal Law of England:

“Is there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and the man who stabs another in the chest with no definite intention at all as to the victim’s life or death, but with a feeling of indifference whether he lives or dies?  It seems to me that there is nothing to choose between the two men, and that cases may be put in which reckless indifference to the fate of a person intentionally subjected to deadly injury is, if possible, morally worse than an actual intent to kill.  For instance, the master of a ship, by a long series of brutal cruelties intended not to kill but to inflict prolonged and exquisite torture which may or may not end in death, does actually kill his victim.  This shows more cold-blooded, disgusting cruelty than if he had killed by a single blow intended to kill.  Or, again, a man wishing to cheat an insurance office, and so to obtain a small sum of money, sets fire to his own dwelling-house well-knowing that six people – all of whom are burnt to death – are sleeping above the room that he sets on fire.  Morally, this seems to me a murder quite as horrible as poisoning a person in order to inherit from him.  Whether cruelty shows itself in that most hateful of all forms, delight in the infliction of pain, or in callous indifference to the destruction of life, it is in my opinion equally revolting and abominable, and the question whether the wretch who feels it wishes that his victim should live in order that his murderer may enjoy his sufferings; or that he should die in order that his murderer should inherit from him; or is indifferent whether he lives or dies so long as the murderer gains some object of his own by the deadly violence inflicted, seems to be irrelevant to his guilt.”

Posted by Marc DeGirolami on February 21, 2011 at 10:24 PM | Permalink | Comments (5) | TrackBack

Perfectionism is the Enemy of Productivity

Here is some excellent advice from The Chronicle of Higer Education on writing and productivity.  The short version is this: perfectionism is the enemy.  Why did I have to learn this lesson the hard way? And why do I have to keep relearning it?

Posted by Lyrissa Lidsky on February 21, 2011 at 06:36 PM in Lyrissa Lidsky | Permalink | Comments (2) | TrackBack

Sticks and Stones

I don’t know Judge J. Phil Gilbert of the Southern District of Illinois personally, but I’m pretty sure he dislikes sex offenders.  A lot.  So much so that his remarks at sentencing in at least two recent sex cases have earned rebukes from the Seventh Circuit.  In one, United States v. Snodgrass (No. 10-2343), Judge Gilbert imposed a thirty-year sentence — a full ten years above the advisory Guidelines range.  Here’s how he explained the sentence:

Mr. Snodgrass, there’s not a whole lot I’m going to say. I listened to the trial, have seen the evidence at the sentencing hearing. You are definitely a scourge on society. You are a sick-o. You’re a sexually dangerous person who, in the opinion of this Court, should never be allowed the freedom to abuse children again. You may be beyond redemption, but that’s not for me to decide. There’s good and evil in this world, and you fit the bill of being evil.

There’s not a [§] 3553(a) factor that doesn’t cry out for a sentence that will result in your incarceration the better part of the rest of your life.

Meanwhile, in United States v. Bradley (No. 10-1080), Judge Gilbert imposed a twenty-year sentence — more than fourteen years above the Guidelines range and more than twelve years above what prosecutors requested.  Here’s what the Seventh Circuit quoted from his explanation of the sentence:

The district court, unpersuaded by Bradley’s words, characterized him as “Dr. Jekyll and Mr. Hyde” and a child predator and told him:

“But in truth in fact, Mr. Bradley, you are a pathetic person. I can’t think of a more calculated and heinous crime upon children than this one. The only thing worse you could have done to this child was to have killed him. But wait a second. You did kill him. You killed his spirit, his self-esteem, his confidence in himself, his security, and his ability to cope with life. You have killed the person he was, for the victim here, T.S., will never be the same. And he will likely go through the rest of his life in living hell because of you.”

The court, having read a letter from Bradley’s 78-year-old mother in which she quotes The Merchant of Venice in asking the court to temper justice with mercy, responded by paraphrasing its favorite philosopher, the Peanuts character Snoopy, and telling Bradley: “You are the crabgrass on the lawn of life.”

In Snodgrass, the Seventh Circuit affirmed the sentence on the basis of a “well-reasoned” written opinion by Judge Gilbert that evidently filled in the reasoning that was lacking in his remarks in open court.  But the court nonetheless offered some pointed criticisms of Judge Gilbert’s oral explanation:

We caution, however, that namecalling is not a substitute for reasoned analysis. Regardless of the heinous nature of the crime, every defendant is entitled to a reasoned explanation of his sentence. This ensures meaningful appellate review and promotes the perception of fair sentencing. During Snodgrass’ sentencing hearing, the judge uttered an explanation that provided no guidance on appeal and served only to insult the defendant.  Such an explanation is inadequate under the law and incompatible with of our system of justice. While the judge’s written explanation of Snodgrass’ sentence preserved meaningful appellate review, we lament the need for it in this case.

In Bradley, the Seventh Circuit vacated the sentence because it was based on “rank speculation” that Bradley was a serial child molester, even though no evidence in the record supported such a finding.  (See my earlier post on Bradley here.)  Along the way, the court noted its concerns with Judge Gilbert’s “unnecessarily harsh and exaggerated language”:

Bradley rightly questions the propriety of the court’s disparaging comments, particularly the glib response to his mother’s plea for mercy. We recently observed that a “litany of inflammatory remarks” can undermine the entire analysis of a sentencing judge.

To my mind, Snodgrass and Bradley raise interesting questions about what a sentencing judge should do when he or she feels powerful, visceral negative emotions — disgust, revulsion — regarding a defendant, and what an appellate court should do when it sees evidence that a sentencing judge was experiencing such emotions.

From a legal doctrinal standpoint, these questions get addressed through sentence explanation requirements.  I discuss the doctrinal framework, which varies quite a bit from jurisdiction to jurisdiction, in this article.  Consistent with the traditional view that sentencing is a matter that lies within the discretion of the trial-court judge, explanation requirements are not usually very demanding.  But federal sentencing law, like the law of at least a few states, does plainly contemplate some sort of a process of deliberation and logical reasoning; there should be something at least loosely “law-like” going on — an express application of established general principles to facts that are found based on record evidence.

This ideal of sentencing as cool-headed, objective reasoning — which seems so clearly embodied by the federal sentencing guidelines system — is at least in tension with the picture of a judge who is revolted by the person of the defendant.  And when that revulsion finds voice in the formal explanation of the sentence, an appellate court may conclude that the explanation is legally inadequate.

It’s easiest, of course, when revulsion is all there is to the explanation.  So, if there had been no “well-reasoned” written opinion to follow the sentencing hearing in Snodgrass, the Seventh Circuit seems to be telling us that the sentence would have been vacated.

But what if, as in the actual Snodgrass facts, the sentencing judge not only gives voice to disgust, but also separately justifies the sentence in ways that satisfy our minimal rationality norms?  One may be inclined to see the explanation as a post hoc rationalization for a sentencing decision that was actually driven by personal animus.  In such cases, however, it is not clear to me that there is a doctrinal basis for vacating a sentence that — let us assume — lies within the wide range of substantive reasonableness.  It is clear to me, though, that appellate courts are not likely to have much interest in peaking beneath superficially adequate explanations to explore the actual motivations of sentencing judges, absent strong evidence of bribery, racial bias, or other clearly out-of-bounds considerations.  (See, for instance, my post on State v. Harris, a fascinating Wisconsin case in which the sentencing judge seemed to react quite negatively to the defendant on a personal level, but no one seemed able to frame the issue in anything but racial bias/Equal Protection terms, which did not quite fit.)

As Bradley indicates, however, the sentencing judge’s articulation of a formally logical explanation for the sentence may not be the end of the matter if the judge’s logic rests on premises that are merely “speculative.”  In such cases, Bradley suggests that a judge’s “unnecessarily harsh and exaggerated language” in imposing a sentence may lend support to a conclusion that the sentence was not adequately justified.  The Seventh Circuit left it unclear as to what work exactly the harsh language did in its legal analysis, but perhaps there is a sense in which such language raises doubts about the care with which the sentencing judge was evaluating the record and thereby attenuates the deference that would normally be shown to a trial-court judge in matters of fact-finding and discretion.

Apart from the doctrinal questions, there are also interesting questions of ethics and punishment theory lurking in the background.  Emotions play an important role in moral judgment, and it seems neither possible nor desirable to eliminate the sentencing judge’s emotional responses entirely from the sentencing process.  Indeed, the federal sentencing guidelines have come in for some harsh criticism for going too far towards a coldly mathematical sentencing process that is drained of moral weight.

I think, too, that if the irritable, oversized personalities who seem to dominate our TV judging corps reflect public ideals of judging, then the Judge Gilberts of the world may nicely fit majoritarian preferences -- especially when they are venting their spleen in cases involving sex offenders and others who are especially loathed and feared in our society.  If Judge Gilbert were required to run for reelection, it is hard to imagine that his comments to Snodgrass and Bradley would be used against him by a politically savvy opponent.

Yet, I remain uncomfortable with Judge Gilbert's remarks.  There is a difference between saying (on the one hand) that sentencing requires moral judgment, and good moral judgment requires emotional engagement, and (on the other) that namecalling and the lack of emotional restraint suggested by gratuitous insults are okay.

Without attempting a systematic exploration of the claim -- this post is no doubt already taxing readers' patience enough -- let me just point in the direction of three overlapping concerns that might help to account for my discomfort.  First, it is hard for me to distinguish namecalling at the sentencing hearing from shaming sanctions, and I am quite sympathetic to the arguments of Dan Markel, James Whitman, and others that shaming sanctions have no place in the punishment systems of modern, liberal states. 

Second, thinking again of the work of Whitman, as well as Michael Moore and others, many of the emotions associated with punishment are dark and dangerous, and there is always a risk of these emotions spinning out of control, blurring the line between punishment and mere vengeance.  As Whitman puts it, "[T]he paramount problems of punishment involve maintaining a dispassionate professional attitude."  Making Happy Punishers, 118 Harv. L. Rev. 2698, 2723-24 (2005).  Namecalling seems quite inconsistent such an attitude, and, when delivered by a judge, may also tend to diminish the sense of professionalism of others in the system.

Finally, thinking now of the work of Tom Tyler and others on procedural justice, the percevied legitimacy of a sentencing decision is likely influenced by the extent to which the judge is perceived to be neutral, caring, and respectful.  When the judge's words do not reflect these core procedural justice values, the judge may disserve the end of inculcating greater respect for the law and legal authorities. 

Cross posted at Life Sentences Blog.

Posted by Michael O'Hear on February 21, 2011 at 04:17 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Did UI Funding Contribute to the Recession?

In response to (cough) overwhelming demand, coverage of the unemployment insurance system will now resume.   The Great Recession has staggered state UI funds; projections are that more than 30 will go broke and have to turn to the federal government for aid.  As I argued last time, it's not clear that in itself is a bad thing.  But it's possible that the system of UI financing needlessly increased the costs to the feds, and maybe even made the recession deeper than it would have been.  The new Obama administration proposal arguably worsens the problem.      

Below the fold: um, we should fix that. 

State incentives both to under-save and also to take too little care with their own economic management derive from the moral hazard created by the federal lending pool.  If you've already forgotten, the way UI works is that both states and feds tax state employers a percentage of the salaries they pay.  States use these monies to fund benefits paid out to unemployed workers, while the feds use their portion, among other things, to make loans to states whose accumulated balances are insufficient to meet demand.  In effect, the state is promised an easy bailout if it fails to save enough to cover unemployment claims.  So why not take bigger risks, knowing that the feds will clean up the mess?  And, once bad events happen, why undertake costly efforts to mitigate the downside?

Typically, the way insurers curb these kinds of moral hazards costs is with co-pays and deductibles.  The UI system has a kind of co-pay system, but it turns out to be incredibly weak.  If states fail to repay their federal loans within 2 years, their businesses can get hit with an additional federal tax of $21 per employee per year.  That's less than 10% of the average tax each employer pays to the feds annually.  And it won't hit until years after the risky behavior -- possibly well after the risk-taking official has left office. 

There is some rough qualititative evidence to suggest that this $21 figure is way too low, and is encouraging growth of  the moral hazard problem.  The penalty has been $21 since 1983.  Over time, as the real value of the penalty has declined, state fund balances have declined, while incidents of state borrowing and states triggering federal penalties have increased.  As I say, this is just qualitative evidence, since obviously to make this point more rigorously we'd want to control for economic conditions and so on.  (Watch this space next year for reports on how that turns out...) But I think what we have is pretty suggestive.

So, step one to reforming UI insurance is to raise the penalty, and to index it.  The administration's proposal (accidentally?) increases the penalty amount, by increasing the federal "taxable amount" that all federal taxes, including the penalty, are based on.  But it doesn't index that amount, which based on what I've just said seems like a mistake.  

Another problem is that the proposal on the table would extend the period for state repayments without penalty, which again is a form of bailout.  If we're going to do things that increase the likelihood of moral hazard, we should also put in place reforms that would tend to counteract it.

Posted by BDG on February 21, 2011 at 01:41 PM in Tax | Permalink | Comments (0) | TrackBack

Professionalism and Student Complaints About One's Colleagues

I know that it is almost never professional nor wise to listen to student complaints about my colleagues. Yet students often want to tell me, indeed seem compelled to tell me, how bad a teacher Professor X is or what a terrible thing Professor Y said in class.  The conversation always has a flattering subtext, to wit, "you're not like Professor X nor Professor Y."  The question, then, is how to divert the conversation to a different topic without making the student feel uncomfortable.  Though I love a good bit of gossip as well as (and maybe better than) the next person, it is simply not a good idea to indulge in this kind of conversation.  I sometimes try to counteract the criticism by pointing out how much my colleague knows about his/her subject matter or how much my colleague really does care about students. Other times, I will say "I can't speak about my colleague" or I will literally stick my fingers in my ears and say "la, la, la" loudly to indicate, in a light-hearted manner, that I cannot be party to that kind of conversation.  Are there any better tricks to deal with this problem?  Over time, I inevitably end up hearing things about my colleagues, and, although I am highly skeptical of individual stories taken out of context, I have formed opinions about the teaching abilities of my colleagues based on hearing the same kinds of criticisms from students over and over again over a sustained period of time. Unfair, or inevitable?

Posted by Lyrissa Lidsky on February 21, 2011 at 10:15 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (16) | TrackBack

Tiger Mother Book Club

I was delighted to be one of the participants in Conglomerate blog's book club on Battle Hymn of the Tiger Mother.  My contribution is here.

Posted by Lyrissa Lidsky on February 21, 2011 at 10:13 AM in Books, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Book Club on the Battle Hymn of the Tiger Mother

Our friends at the Conglomerate blog are having a book club today about Amy Chua's defense of tough love. You've read Rob Howse's penetrating review of it here. Head over to the Glom to see what a gaggle of other wonderful folks (including our own Lyrissa Lidsky, my co-author Jennifer Collins, and visiting prawf Shima's sister Mehrsa Baradaran)  think about the challenges of prawfing while parenting. As a parent of two mini-boys, I can say that this book club merits the highest praise I could offer: I wish Prawfs had thought of this too...happy Monday.

Posted by Administrators on February 21, 2011 at 10:06 AM in Blogging, Books | Permalink | Comments (0) | TrackBack

Sunday, February 20, 2011

Some Mid-Afternoon Whining, I Mean Observations, About Class Preparation

I just Googled my name and "class preparation" to see if I had ever blogged on this subject before, and found an entry from July 2006 on this very blog, posted only a few days before I hit the road to take up my visiting post at Tulane.  I was thinking about class prep because I'm into about the eighth hour of preparation for what will ultimately be about 120 minutes of class on mistake doctrine in contract law (with still two of the three cases yet to go), and I feel like procrastinating by whining about it.  Here are a few random observations now five years (and scores of teaching blunders) later:

1.  In 2005, the summer before my first venture into full-time teaching, I prepared most of the class notes for the entire semester of the two classes I was to teach at Wake Forest in the upcoming fall.   That now strikes me as a elevation of insecurity over effectiveness.  With experience, I'm cavalier enough to be a week or two ahead of the students in a new prep for the full year contracts class, but I know the subject well enough to be able to anticipate future material in the present preparation.   I could see, if somebody asked me to teach an entirely new subject, that I'd feel insecure again about prepping the stuff at the front end if I didn't know anything about the back end (like prepping on creation and attachment of security interests without knowing anything about perfection).  But I think I'd just read up on it over the summer.

Slide12.  I am far more brutal in deciding what and what not to cover.   One red flag:  if it's not clear to me why I'm doing it, I don't.  Nobody will ever miss it.

3.  In addition to the syllabus, I divide the material into units, and post the outline of the unit, into which my notes are organized, on TWEN ahead of the class as a Word document.  This means that sometimes I have to update the posted outline if I change it.

4.  I still write out my notes, including where it's question and answer (I don't like the term "Socratic"), in full sentences.  See Point #2.  Doing this is a rehearsal of the class in my head.  If it doesn't make sense in my head, it will likely not make sense in class.  Also, back many years ago when I was a litigator, I used to do the same thing with deposition and trial questions.  Same point on rehearsing in my head.  Also, it allowed me to freelance whenever I wanted (as the notes do in class) knowing that I could always come back to the script if I got lost.

 5.  I used to be a Power Point Luddite, but I've made my peace with the medium.  I never use the "bullet point" format.  Nor do I very often use it for cutesy pictures or entertainment (a little bit of that goes a long way).  I do use it to provide conceptual frameworks, whether by way of Venn diagrams (Carter Bishop now calls me the "Venn Master"), flow charts (my masterpiece is UCC 2-207), or diagrams of the fact patterns in cases (the same way I would diagram the relationship of the parties when doing a deal).  I also keep the unit outline in a scroll on the side, with the present topic in bold face, a la the scrolls you now see on ESPN's Sports Center or Pardon the Interruption.  Also, I save the slide as a JPEG and embed it in my class notes so that I never (or as much as I can avoid it) turn to face the screen. Again, a measure of my anality is that I write out in my notes when to hit the CLICK to advance the animation.  The picture above is what I'm presently working on in connection with the various factors that work for or against relief for mistake in contract law.

6.  I use the "Custom Animation" feature in the Power Point quite a bit so that students aren't trying to figure out the whole thing ahead of me.  On the other hand, I post all the slides on TWEN ahead of the class so students can get a sense of where we're going.  It's another reason not to ban laptops, because I would just as soon they have access electronic access during the class.

7.  For a new prep, it's still 8-12 hours per hour of class.   I still have to use a lot of Saturday and Sunday.  It's a corollary to the old saw about not having enough time to write a short paper.

Posted by Jeff Lipshaw on February 20, 2011 at 02:49 PM in Teaching Law | Permalink | Comments (3) | TrackBack

Saturday, February 19, 2011

Judge Randolph Pulls Another Fast One--But Will Anyone Notice?

Tuesday's decision by a D.C. Circuit panel (Henderson, Williams, Randolph) to vacate and remand the grant of habeas relief in Hatim v. Gates is hardly surprising.  As the per curiam opinion notes, there have been a number of D.C. Circuit decisions since the district court ordered Hatim's release that call at least some of the trial court's analysis into question. So reconsideration in light of these intervening decisions seems, at first blush, totally uncontroversial.

Buried in the three-page order, however, is a critically important--and dangerously wrong--holding that will likely prejudice Hatim's case on remand (and any number of cases to follow).  Here's the relevant language:

The district court ruled that the military could detain only individuals who were “part of” al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that “those who purposefully and materially support” al-Qaida or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how. As the district court stated in issuing the stay, Al-Bihani “calls into question” a “key determination[ ]” upon which the order rested.

Just to be clear, the key here is the notion that anyone who "purposefully and materially support[s]" al Qaeda or the Taliban can be detained indefinitely, whether or not they're in any way affiliated with either group, and whether or not they come anywhere near the definition of a "belligerent" under international humanitarian law. (After all, the famous "little old lady in Switzerland" who gives money to certain Islamic charities may be materially supporting al Qaeda...)

Suffice it to say, it's an amazingly broad--and momentous--holding. So what? Well, (1) the Obama Administration has never affirmatively argued in a habeas case that the scope of the AUMF should be understood by reference to the MCA; (2) such a conclusion was, at best, dicta in Al-Bihani (which is why the district court in Hatim said Al-Bihani only "call[ed] into question" Hatim's argument, rather than foreclosed it); and (3) there is clear and compelling evidence that, dicta or not, Al-Bihani's analysis on this issue was just plain wrong.

More on (2) and (3) below the fold...

Al-Bihani and the Dangerous Conflation of the AUMF and the MCA

The heart of the Hatim panel's "purposeful and material support" holding is borrowed from this discussion by Judge Brown for herself and Judge Kavanaugh in Al-Bihani (my emphasis added):

The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” . . . The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government's detention authority logically covers a category of persons no narrower than is covered by its military commission authority. . . . [F]or this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners. 

In short, Al-Bihani read the definition of who can be tried under the MCA as expanding, albeit sub silentio, the scope of detention authority under the AUMF.

There are two problems with this view: First, it doesn't follow logically that those who can lawfully be tried by a military commission are a subset of those who can be lawfully detained without trial. Under IHL, these are two very different categories of detainees, whose status presents two distinct sets of questions. Second, even if that conclusion could follow as a matter of logic, it is abundantly clear from the MCA's legislative history that Congress in no way meant or intended to impact the substantive scope of the AUMF through its definition of who could be tried by a military commission. Quite to the contrary--the House Armed Services Committee's report accompanying the MCA expressly notes that the divergence between the AUMF and MCA definitions reflected the committee's disagreement that "the United States must be engaged in armed conflict to try an alien unlawful enemy combatant engaged in hostilities against the United States." That is, the difference was a deliberate choice to reflect the different standards and rules applicable to military trials vs. noncriminal detention under IHL. Thus, it's not only a logical fallacy to read the MCA as expanding the scope of the AUMF's detention authority; it runs directly counter to the intent of those who wrote the latter statute.

The AUMF/MCA Conflation as Dicta

Judge Brown's logical fallacy notwithstanding, one might still conclude that the Hatim panel was bound to follow this discussion. Except that it's clear that this point was dicta in Al-Bihani, since the panel there concluded that Al-Bihani was clearly "part of" al Qaeda, mooting the question of whether he could be detained simply because he provided "purposeful and material support" thereto. 

Nor should it surprise anyone that Al-Bihani is full of inconvenient dicta. Judge Williams' concurrence in that case made exactly that point. And the D.C. Circuit all-but went en banc to overrule (or, at least, dicta-ize) one of the panel's other holdings--i.e., that the laws of war have no bearing on the scope of the government's detention authority under the AUMF. 

Thus, Hatim was not merely "following" Al-Bihani; it converted wholly unnecessary (and woefully incorrect) dicta into a holding, and without anything in the way of analysis. Moreover (and this is key), Judge Brown's reliance on the MCA in Al-Bihani came only after she rejected the Obama Administration's argument that the scope of the AUMF should be understood by reference to international law--that is, the conflation of the AUMF and the MCA necessarily followed upon her rejection of international law as the relevant constraint, a position that was itself dismissed by the rest of the D.C. Circuit in the non-en banc manuevering last August. So to reaffirm that logic (as the Hatim panel did) after its necessary predicate (Al-Bihani's holding vis-a-vis international law) had been vitiated is even less convincing than the original holding might have been on its face.

So this leads to my real question: As it becomes increasingly clear that a small but vocal minority of the D.C. Circuit (Judges Brown, Kavanaugh, and Randolph, in particular) will apparently find any way in any case to adopt holdings that (1) go beyond even what the government is asking for in these cases (see, e.g., Randolph's lament about the standard of review in Al-Adahi); and (2) are indefensible as a matter of law and logic, is anyone else on that court going to notice?

Don't get me wrong--the answer in Hatim's case may end up being the same. And the other judges of the D.C. Circuit may well reach the same results in these cases as their more aggressive colleagues. But my gripe is not about the merits; it's about the indifferent attitude that the rest of the court seems to have toward the analysis being deployed by these three jurists, and the damage that is being done to the substantive and procedural law governing detention going forward. The more these decisions pile up, the more a pattern is developing in which panels that include one or more of Judges Brown, Kavanaugh, or Randolph find seemingly uncontroversial ways to reach sweeping new holdings that have dramatic effects on the shape of the law. And if the Supreme Court isn't in a position to say anything about it, that leaves the other seven active judges of the D.C. Circuit. Let's just hope they're paying attention...

Update: A helpful reader pointed me to even more specific language in the 2009 MCA's "conference" report (of which I was unaware), which provides that the statute's definition of who may be tried "is included for the purpose of establishing persons subject to trial by military commission in accordance with section 948c, of title 10, United States Code, and is not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of war or for any other purpose." If this doesn't prove how wrong Al-Bihani is on this point (and how wrong Hatim is to adopt it sans analysis), I'm not sure what will.

Even worse, imagine the implications of a world where anyone who "purposefully and materially supports" al Qaeda could be detained indefinitely at Guantanamo or elsewhere... I dare say that there's a pretty good reason why neither the Obama Administration nor any judge (other than Brown, Kavanaugh, and now Randolph) has ever argued for a standard so completely divorced from the laws of war.

Posted by Steve Vladeck on February 19, 2011 at 04:03 PM in Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Nollan-Dolan's Lessons for Governor Walker's Anti-Union Proposals

Governor Scott Walker of Wisconsin has raised a major ruckus by proposing draconian limits on the scope of collective bargaining with public employees. As the two or three people who regularly read this blog know, I am no fan of public employee unions. In particular, I believe that, given politicians' short time horizons, some sort of procedural constraints on collective bargaining agreements are needed to control politicians' tendency to give away the store with contractual benefits that do not vest until those politicians are out of office.

This said, Governor Walker's proposals to limit scope of bargaining strike me as pointless. The Nollan-Dolan line of cases in land use regulation tells us why. Nollan-Dolan ostensibly limit the power of government officials to demand conditions for land-use development that bear no "roughly proportional" nexus to the impacts of that development. For instance, under Nollan-Dolan, New York City is not supposed to demand that a developer, say, hire a certain percentage of minority employees as a condition for building an extra-tall tower in Manhattan unless there is some way in which the tower would adversely affect the employment opportunities of minority employees.

Of course, as any serious landuse lawyer knows, this doctrine has imposed no serious constraint on what local governments exact from developers: New York City and every other local government demands such unrelated conditions in return for development rights all the time. Why? Because such limits on the scope of bargaining are senseless impediments to efficient freedom of contract. Developers do not sue to enforce such Nollan-Dolan limits, because they interfere with a deal that the developer wants to close.

Although I'll defer to Joe Slater or other experts in this area, my prediction is that limits on the scope of collective bargaining will be just as pointless, wasteful, and ultimately unenforced as Nollan-Dolan.

Imagine that Governor Walker succeeds in limiting the scope of bargaining to base wages. Now he has to negotiate a deal with, say, the Nurse's Union. Obviously, any wage proposal will be negotiated in the shadow of other compensation that nurses might get: If they get less sick leave and vacation time or fewer health benefits or smaller pensions, then they'll demand higher base pay. The governor might, for genuinely sensible reasons of policy believe that it would be better for the people of Wisconsin to make concessions on these other aspects of compensation than offer higher wages. The nurses might actually agree: they'd actually prefer to have lower pay but more secure pension benefits in, say, a defined benefit plan. If, however, the governor's hands are tied by taking these other issues off the table, then the governor has to offer higher wages. This leaves both parties worse off. It is as if the law required nurses to be paid in bananas rather than cash: The limit on the scope of bargaining would simply impose a dead-weight loss on everyone.

Winks and nudges would follow: Informal commitments on non-wage issues would be made -- because efficient bargaining requires that they be made. Would these be unenforceable? If so, then Wisconsin would have to pay a higher wage premium similar to the default premium that bondholders exact for taking "unenforceable" moral obligation bonds. The losers, in the end, will be the taxpayers of Wisconsin, who end up footing the bill for this ridiculously complex minuet.

Precisely the same minuet is danced every day between developers and local governments under Nollan-Dolan: Governments are officially barred from demanding fire trucks, schools, playgrounds, etc, in exchange for building permits -- but developers offer them all the time, and, lo and behold, they get a permit and give a benefit that bears no "roughly proportional" nexus to any cost that the proposed development imposes.

Rather than engage in this limit-on-scope-of-bargaining farce, why not directly address the problem of future benefits like pensions and health benefits? Allow unions and government to bargain over them, but make sure that the ultimate agreement is ratified in a highly salient, public way -- a referendum, for instance. This procedural solution would reduce the real "agency cost" danger that politicians will give away the store when negotiating future liabilities. But the procedural solution avoids the silliness of taking obviously relevant issues off the table.

In any case, this is why I am inclined to believe that Governor Walker has picked the wrong fight with the unions. But maybe I am missing something special about the collective bargaining context that distinguishes it from landuse regulation? If so, I hope that either public-employee experts like Joe Slater or libertarian-minded bargaining-with-the-state experts like Richard Epstein will set me straight and explain why the limits on bargaining topics proposed by Governor Walker with unions will work better than Nollan-Dolan limits on scope of bargaining have worked with developers.

Posted by Rick Hills on February 19, 2011 at 11:09 AM | Permalink | Comments (5) | TrackBack

Should libertarians applaud the Individual Mandate as a matter of policy?

Set aside the constitutional argument against the PPCACA's individual mandate. (I've already offered horse doctor's doses of my opinions on that score). I've got a different question: Shouldn't libertarians like Randy Barnett applaud the individual mandate as good health care policy that, if somehow precluded to the feds by Article I, ought to be pursued by the states? I ask, because the leading libertarian book on health care seems to embrace the mandate. John C. Goodman & Gerald L. Musgrave, Patient Power: Solving America's Health Care Crisis (Cato Institute 1994) provides that non-purchasers of insurance be subject to a special tax (aka fine) to compensate institutions that provide them with free health care services like emergency room access. (Id. at 68-69). Daniel Shapiro, a prominent libertarian philosopher on health care financing, thinks that this tax does not go far enough for indigent persons: He'd "force the indigent to take the refundable tax credit and purchase health insurance." Daniel Shapiro, "Why Even Egalitarians Should Favor Market Health Insurance," 15 Soc. Phil. & Pol'y 84, 99 (1998).

This libertarian support for an individual mandate should hardly be surprising: Libertarians stand for personal responsibility, and people who do not buy health insurance, based on these principles, are parasites on the public fisc. The individual mandate forces these wastrels to internalize the cost of their own medical care. Of course, one could imagine the provident "ants" kicking the improvident and uninsured "grasshoppers" into the gutter when the latter get sick. But who'd clean up the mess? At the very least, even the most stony-hearted liberatarian would insist that the uninsured get burial insurance. And libertarians actually are not a stony-hearted bunch, as Goodman's and Musgrave's book indicates: They understand that improvident (or, more likely, unlucky) uninsureds impose a "Good Samaritans' externality" on the rest of us by getting sick, because we will inevitably come to their aid despite their lack of foresight (or resources) in not saving for their own sicknesses.

So why are libertarians now denouncing the individual mandate as an outrageous intrusion on individual liberty -- you know, "can Congress force you to eat broccoli?" and other silliness -- when just sixteen ago, the Cato Institute declared it to be an essential part of market-based health care? My best guess: They do not really mean it. Attacks on the Individual Mandate are just a convenient way to beat up on the PPCACA, which they dislike for other (and perhaps better) reasons. But this hypocrisy comes at a cost: Anti-paternalism rhetoric directed against a program that everyone knows libertarians actually embrace sounds either cynical or unintelligent.

In light of these realities, here's my advice to libertarian critics of PPACA: Enough with the anti-paternalism rhetoric in denouncing PPACA's Individual Mandate. Stick to your Article I technicalities (for what they are worth). Unless you reject every libertarian, market-based health care plan yet proposed in favor of euthanasia, you are on board as favoring such a mandate at some level of government.

Posted by Rick Hills on February 19, 2011 at 10:30 AM | Permalink | Comments (12) | TrackBack

Friday, February 18, 2011

All Dogs Go to Harvard

 The sun came out and the temperature hit 60 degrees F.  The faculty meeting was yesterday.  Unbelievably, IMG_0018the students attending the SPILG auction last night bid the contribution of dinner with Alene and me at a nice restaurant in the North End up to somewhere between $550 and $675 (I heard both numbers in the hall today; my guess is that if it had been dinner with just Alene and not me, it would have broken $1,000.)

So Max and I decided to celebrate a little by taking advantage of the lovely day.  We put down the contracts class prep (mutual  and unilateral mistake - he was helping format the PowerPoint) and took a walk down to Harvard Square. 

When you are walking IMG_0021 with a handsome dog, everybody is your friend.   I wish I had figured that out when I was twenty. 

I decided to see what Max thought about the idea of law school, so we stopped by the first one we could find.  He thought those shrubs over there at left were just  first rate.  And he was okay with Socratic method and formalism, no matter what the realists and the Crits had to say about it.

But when we crossed the campus and saw this school had a Pound, he got a little freaked out.  I tried to explain it was a Roscoe, but that didn't seem to mollify him.  I'm pretty sure he's decided, like Dad, he'd really rather be a Stanford dog.

Posted by Jeff Lipshaw on February 18, 2011 at 05:42 PM | Permalink | Comments (5) | TrackBack

The New Habeas Revisionism: Shameless Plug (and Overdue Thanks)

In the Friday afternoon shameless self-promotion department, my essay reviewing Paul Halliday's Habeas Corpus: From England to Empire is finally out, in the February 2011 issue of the Harvard Law Review.  Because HLR's (silly!) policy wouldn't allow me to say the following in my author footnote, let me take this opportunity to express my heartfelt thanks to Zach Schauf, Jaime Eagan, and David Caldwell, who made this about as productive and enjoyable an editing experience as I've ever experienced--and whose substantive contributions to the final product cannot be overstated.

Posted by Steve Vladeck on February 18, 2011 at 02:54 PM in Article Spotlight, Books, Constitutional thoughts, Steve Vladeck | Permalink | Comments (1) | TrackBack

Kiss Me I'm Irish: Is Dual Citizenship an Endangered Species in America?


By Evelyn Cruz, ASU

Proponents of Arizona HB 2561 argue that the 14th Amendment was enacted to bestow citizenship only to individuals who did not owe allegiance to any other country. And since a dual citizen has rights in more than one country, then his or his off-spring does as well. Therefore the offspring fails the "subject to the jurisdiction" requirement because he is also subject to his parent’s country of citizenship. Dual citizens, the argument goes, are not truly American subjects.

But this misconstrues the reality that dual-citizens in the United States are not treated any different from citizens who do not have a second citizenship. (David S. Gordon, Dual Nationality and the United States Citizen, 102 Mil. L. Rev. 181 (1983)) The dual-citizen cannot request to contact the consul of his second nationality if arrested. The dual-citizen cannot invoke the second citizenship if drafted into the Army. It is only when the individual leaves U.S. soil that the dual-citizenship comes into play, for instance when fighting extradition from the second nationality country back to the United States. (William Branigin, France Rejects Extradition for U.S. Killer, Ruling Outrages American Officials Washington Post (December 5, 1997))

Proponents of the birthright bill also interlace dual-citizenship with undocumented status. While their rhetoric purports that the bill will end the ability of children of undocumented immigrants to gain U.S. citizenship, the language of the bill strips the rights of dual-citizens as well as undocumented aliens. It associates what has for the most part been an inconspicuous segment of our society with another that has become the center of much controversy. It takes us down a dangerous path that may lead (some may argue that it already has) to a belief that multi-cultural privileges are unpatriotic and repugnant to an American way of life.

The view that sole loyalty defines membership in a state is out of step with modern international relations. Professor Spiro published a book in 2008 noting that globalization had brought about a change in the treatment of dual citizenship from a rare occurrence to a common reality. (Peter J. Spiro, Beyond Citizenship: American Citizenship after Globalization Oxford Press: 2008) More and more individuals posses dual or triple nationalities (if not citizenships) permitting them to tap into opportunities in multiple countries. To some nations, dual citizens have become lucrative economic development partners. China encouraged British dual citizens to remain in China after Hong Kong was returned to them by the British. (John Dodsworth and Dubravko Mihaljek, Hong Kong, China: Growth, Structural Change, and Economic Stability During the Transition, Industrial Monetary Fund Press: 1997) Mexico amended its constitution in 1996 to allow Mexican nationals naturalized in another country and children born abroad to Mexican citizens to retain Mexican nationality. The ability of dual-national Mexican-Americans to buy land in Mexico without restriction has fueled construction in coveted retirement areas in Mexico. (Seven W. Bender, RUN FOR THE BORDER: VICE AND VIRTUE IN U.S.-MEXICO BORDER CROSSINGS forthcoming)

Dual-citizenship is not an uncommon phenomenon in our country. Many countries, permit generations of descendants born abroad to apply for citizenship. Some do not require a renunciation of the birth country’s citizenship. (Patrick Weil. Access to Citizenship: A Comparison of Twenty Five Nationality Laws, in CITIZENSHIP TODAY: Global Perspectives and Practices, Aleinikoff and Klusmeyer ed. 2001) Therefore, a fair number of Americans could be dual citizens if they pursued the procedural requirements imposed by their ancestral homelands. So that person wearing the "Kiss me I’m Irish" may actually have rights to Irish citizenship, and his child could be stripped of U.S. citizenship if HB 2561 was upheld.

Dual-citizenship, as Professor Spiro, and other citizenship experts can attest, is quite complex. There are often inequalities in rights between the two citizenships. Some countries, like the United States, give citizenship rights to children of expatriates. The minor can move to the United States and vote. Mexico, which splits citizenship rights from nationality rights, only gives nationality to the children of expatriates. The derivative national cannot vote in Mexico.

The attempt to define the 14th amendment’s "and subject to the jurisdiction thereof" clause to mean that children of dual citizens are not U.S. citizens by birth advances a negative ideograph of dual citizenship. It pins those who see dual citizenship as means of continuing a connection to an ancestral homeland, or as means to keep open future opportunities, against those who see dual citizenship as a form of bigamy, a dilution of U.S. citizenship. It makes me wonder if perhaps someday the "Kiss-me I’m Irish" T-shirt will become an oppositional visual ideograph like the Mexican flag is today.

Posted by Immigration Prof on February 18, 2011 at 12:28 PM | Permalink | Comments (1) | TrackBack

Public employee Ann Althouse

I've always found it an interesting wrinkle that five of the top conservative/libertarian law prof bloggers are public employees: Glenn Reynolds,  Ann AlthouseEugene Volokh, Stephen Bainbridge, and Larry Ribstein.  I would imagine this status would create some ripples between one's ideological beliefs and personal economic interests.  Back when the UC system had furloughs in 2009, here was Professor Bainbridge's reaction:

They call it a furlough, but at least as far as faculty are concerned, that's a complete misrepresentation. We are not allowed to cancel any classes . . . .  Nobody's said anything about reducing committee and other service obligations. Likewise, nobody's said anything about reduced research expectations. So where exactly is my furlough time off? . . . . I'm not much of one for strikes and protests. And I think I have an obligation to my students to show up for class as scheduled. But I also won't blame those who participate [in the protest]. It's enough to make one a raging populist.

Ann Althouse has been fairly critical of the Wisconsin protests, based on the language and tone of some of the signs, as well as the conduct of the protesters.  But she also has some interesting thoughts on the conflict between the personal and political:

It really is odd that Wisconsin became ground zero, because we didn't have the budget disaster that was going on conspicuously in some of the other states. I'm really trying to understand this. Why Wisconsin? A distinctive thing about us is how good our public employees' benefits are. The cut we — I'm one of them — are being asked to take is severe. (I'm looking at a loss of more than $10,000 a year, myself.) But it's hard to complain and appear sympathetic, because we're only being asked to go from paying 0.2% of the payments into our pension fund to 5.8%, which probably looks astoundingly low to outsiders. We're being asked to pay more for our health insurance, but the coverage is extremely good, and the annual hit will be about $2,500.

So maybe we public employees in Wisconsin are a great target — a great starting place for what is a national movement by the Republicans. I'm trying to understand the party politics. Tell me if this is correct: There are vast numbers of public employees, who vote overwhelmingly for Democrats. Once elected, the Democrats create more and more public jobs with greater and greater benefits, and, consequently, more voters who are even more locked into voting for Democrats. This is a cycle that approaches political graft, and the Republicans, to win, must overcome all those passionate, self-interested Democratic voters. Why wouldn't the Republicans embrace a strategy hostile to the public employees? Why wouldn't they drive a wedge between the public employees and all the other citizens in the state?

So I see 3 questions: 1. Is this what the Republicans are really doing? 2. How good a political strategy is it? and 3. Is it a good idea to reduce the political and economic power of public employees? 

The 3 questions are interrelated, but they should contemplated separately... but who is capable of doing that? I'm trying to be fair, and it's possible that I'm in as good a position as anybody. I voted for Walker and support many of the things the Republicans are trying to do, but this budget plan — as I said — will cost me more than $10,000 a year.

Posted by Matt Bodie on February 18, 2011 at 11:40 AM in Workplace Law | Permalink | Comments (4) | TrackBack

You Wouldn't Hit a Guy With Glasses, Would Ya?

This story from a few days ago reports the distinct sense of criminal defense attorneys that juries are less likely to convict defendants who wear glasses, with some support in a study finding that, especially for African Americans, glasses impart some sort of benign, non-threatening quality.  I can certainly understand the positive effect of dressing well on a jury, but the glasses "nerd defense" suggested by an unidentified prosecutor seems counter-intuitive.  Juries are said not to like beards, for example, because a beard covers up the face.  Glasses do something like that, too, no?

I wonder if juries feel the same way about monocles

Posted by Marc DeGirolami on February 18, 2011 at 11:37 AM | Permalink | Comments (3) | TrackBack

The Endurance of the Used and Rare Bookstore

A long time ago, I was fortunate to work part time for about a year at a used and rare bookstore called McIntyre and Moore Booksellers (they were on Mt. Auburn Street back then, not way off in Porter Square).  Present circumstances excepted, it was the best job I ever had.  I learned a little bit about how to judge a book's value as well as how to repair beautiful but injured old books.  I also discovered things that I know I would never would have come across -- a first edition of T.S. Eliot's "Murder in the Cathedral," an early edition of George Santayana's "The Genteel Tradition at Bay," and even -- for the first time -- a used copy of Harold Berman's "Law and Revolution," as well as lots and lots of other odds and ends.  The beauty of the store was its physical orientation to books -- books needed to be touched, felt, fixed, glued, stacked, flipped through.  The must of their oldness and used-ness had to be smelled, their collected dustiness inhaled.  Part of the fun was to see and touch again the discolorations and brown spots that were the marks of prior readers, or to see a 100 year old inscription, and then another one about 50 years later, on a 200 year old volume.  Some rare bookstores have the air of a holy shrine; you enter and can almost hear the Gregorian chant.  Those can be great too, but my store was more earthily tactile, though some of its books could be quite valuable.

When I worked there, the shadowy fear was always that the giant chains -- Borders, Barnes & Noble, and the like -- would choke the life out of these little stores.  It was at least in part because of the market pressure of these big mega-stores that my own store opted to relocate.  But with the news of Borders's bankruptcy (B&N isn't doing all that well either), I can only imagine that stores like mine -- most of which have managed to survive just fine -- are feeling some...schadenfreude isn't exactly right, but I bet they're feeling a little pride.

The received wisdom is that on-line giant Amazon has made the physical mega-stores obsolete.  You can obtain much more from Amazon than you can from Borders, and it's easier to do so.  Yes, Borders allows you to browse through books, which you can't do the same way on Amazon, and that means you have to have a better idea of what you're looking for on Amazon.  But why hasn't the same market force which crushed Borders dampened the fortunes of the used and rare bookstore?  After all, you can get as good or better deals on Amazon as you can at any of these stores.  The selection of course is infinitely better.  As for rare or extremely valuable books, stores like mine might still have an advantage, but not enough people can afford to buy these books to keep the little stores afloat.  Is it the inherent physical pleasure of books that explains why the little stores -- much smaller operations than Borders and the like -- continue to survive and even prosper?  What is it that accounts for the endurance of the used and rare bookstore?

Posted by Marc DeGirolami on February 18, 2011 at 11:00 AM | Permalink | Comments (4) | TrackBack

The ASU SW Junior Conference is neither SW nor Junior. But it is really good.

The beloved friends of Prawfs over at ASU in Phoenix are putting together their ostensibly regional conference for works in progress ostensibly by juniors. Juniors are defined capaciously: if you were there last year or you have been teaching for 10 or fewer years, you are invited to come for a spring training ball game, dinner, lunch, and a chance to present a work in progress or a half baked idea to folks in your area of interest.  (There's also no real geographic restriction either.)

I did this last year and will be returning--it's a wonderful opportunity to get substantive engagement with your work and to see what others are doing in your field. Usually you break into groups of 1/2 dozen or so, so you read 5 papers in advance and give comments, and get comments from 5 or so folks who will have actually read your draft. It's very good--and fun too. You can register here. Hope to see you at ASU March 13-14th. The itinerary roughly scheduled appears after the jump. If you have any questions, funnel them to Doug Sylvester, the impressario of intellectual life at ASU.

a.       Sunday the 13th

                                                               i.      Baseball Game: Noon-4:00p.m.

                                                             ii.      Reception/Dinner: 6:30-9:00.

b.      Monday the 14th

                                                               i.      Breakfast (provided)/Registration: 8:30-9:00

                                                             ii.      Morning Breakout Sessions: 9:00-12:00

                                                            iii.      Lunch (provided): 12-1:00

                                                           iv.      Afternoon Breakout Sessions: 1:00-3ish

                                                             v.      After-Conference Social: 5:00-?? (entirely optional)


That’s it—so if you are not interested in the free Spring Training Baseball game (the weather will be beautiful—a near guarantee for Phoenix in March) then you could easily arrive late morning or early afternoon on Sunday. On Monday, most will be done by 3:00. The airport is less than 10 minutes from the law school so you could easily catch a 4:30 or later flight out that day. It would be very difficult to arrive on Monday morning but even that may be possible (if not recommended).



Posted by Administrators on February 18, 2011 at 10:24 AM in Blogging | Permalink | Comments (0) | TrackBack

What to do about accused athletes?

FIU has decided to allow Garrett Wittels, its star baseball player who enters this season riding a 56-game hitting streak (three shy of breaking the college record), to play to start the season, despite Wittels facing sexual assault allegations in the Bahamas. The next hearing in the case is not until April 18 and, citing the presumption of innocence, the university decided he should be allowed to continue playing, at least until further developments in his case. This raises the broader question of what to do about athletes (pro and college) who are arrested/accusd/charged with crimes but have not yet been convicted. I genuinely am not sure of the answer.

On the one hand, we do have a presumption of innocence. And if the Duke lacrosse case taught us anything, it is that schools look very bad if they move quickly to suspend student-athletes only to have the allegations and the legal case prove to be a complete fantasy. Is it fair to the player to lose a big chunk of his season because of charges that could prove unfounded? Should we place it in non-athletic terms--would a non-athlete-student in the same position as Wittels be suspended from school? If not, perhaps the athlete should not be suspended from the team. (I take something like this view about professional leagues getting all worked up about players' off-field misconduct).

On the other hand, playing for the school's baseball team is different than being one of 42,000 students. How does it look to have a player representing your institution of higher learning who is facing a charge of sexual assault? And there is a certain degree of fame and prestige enjoyed by a star athlete that is not enjoyed by an ordinary student. How does the alleged victim feel to see Wittels continuing on with his educational and athletic career, including games on ESPN? (Similar issues were raised in the controversy over an alleged sexual assault by a Notre Dame football player, who continued playing while the school dragged its feet and the student ultimately took her own life). The accusation of a crime does place the accused in a different legal position than someone who has not been accused of a crime (even if he has not been convicted). So perhaps a school/team should take action against the player who occupies that different legal position. Or should it depend on the school's assessment of Wittel's culpability--and if so, how does the school make that assessment?

I genuinely do not know where I fall on these questions, so I throw them out there for consideration.

Posted by Howard Wasserman on February 18, 2011 at 08:45 AM in Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Thursday, February 17, 2011

Tough and Not-so-Tough Solutions

I was thinking yesterday morning as I was listening to NPR, how difficult it will be for Congress and the President to agree to a solution to our medicare/medicaid and social security problems.  With all of the vested interests involved (particularly the type who vote: ie, older people who rely on their medicare and social security), it will be extremely "tough" (Obama's word) to come to some sort of compromise on badly needed budget cuts--particularly as we approach an election year.  These types of compromises will also be difficult for states.

Some organizations working on reforms are targetting the budget-conscious policy maker.  A recent Wall Street Journal blogpost featured a group called, "Smart on Crime."  Smart on Crime is a nonpartisan coalition of 40 organizations and individuals composed of the "leading voices in criminal justice policy" and representing diverse perspectives including: the ACLU, the Heritage Foundation, Amnesty International, and the American Bar Association.

Smart on Crime recently released a very helpful and concise 318- page booklet with policy proposals in 16 areas for Congress.  These areas range from overcriminalization and grand juries to conviction of the innocent and indigent defense.  The goal of this book(let) is to recommend cost-effective, fair and evidence-based strategies to improve the U.S. criminal justice system.  Just to give you one example of an area ripe for reform--overcriminalization. Problem: addressing the 4,450 criminal offenses scattered through the federal criminal code that our reactionary Congres amends each year that fail to make us safer.  The solution: the report recommends that Congress "enact mandatory reporting legislation" for all new criminal laws requiring the government to produce a report that discusses the justification, costs, and benefits of this new criminal law.  Seems like a decent idea.  An even better idea in the report tackles one of the biggest criminal justice issues we face: mass incarceration.  It encourages Congress to cut recidivism and increase rehabilitation through drug treatment, alternatives to incarceration, access to education, and job training.  All great ideas.

My biggest critique of the Smart on Crime report and even the new Right on Crime campaign:  Zero mention of bail reform.  Increasing programs that allow people to be released on bail rather than detained (pretrial supervision, ankle bracelets, GPS trackers) would a huge step towards reducing our incarceration problem.  The majority of people in our nation's jails are pretrial detainees, not convicts.  This initial detention often leads to more detention: people who are detained pretrial more often get custodial sentences, those who are detained often get longer prison terms, and those detained have less leverage in plea bargaining--again resulting in longer detention periods.  So if we are going to seriously tackle mass incarceration, it only makes sense to release more people pretrial. And unlike the discussion over medicaid and medicare, it does not have to be costly or disproportionately impact any voting block.  We don't have to pay more for defendants to be released pretrial as it is obviously more expensive to detain them. But what's the argument against releasing more defendants pretrial?  Well, some would argue that there *is* a cost to releasing more defendants: more crime--which is obviously costly to society.  Plus, others would say that people accused of crimes are probably dangerous and most of us would rather have them safely locked up, thank you.  Admittedly, some of this is true.  But what if I was to tell you that we can actually release a lot more defendants and maintain our levels of pretrial crime?  Well, I can.  According to a recent empirical study that I conducted with Frank McIntyre, we can release up to 25% more defendants and still reduce violent crime levels and overall pretrial crime.  Obviously there should be some careful consideration at a local level to ensure this is done properly.  But--in my opinion--one not-so-tough solution to budget crises is releasing more defendants pretrial.

Posted by Shima Baradaran Baughman on February 17, 2011 at 11:21 PM in Criminal Law, Culture, Current Affairs, Law and Politics | Permalink | Comments (1) | TrackBack

So many options for a title, so little time...

Now that the Redyip has been sighted, we can distract ourselves with this unfortunate story regarding a UC-Hastings law prof (Clark Freshman) over at SF Weekly. Short version: warrant was inaccurate b/c insufficiently specific, and cops mistakenly came to Prof. Freshman's home searching for drug sales proceeds. They mistreated him in the course of the search, and he now threatens to sue. I'd be curious to see if Clark Freshman thinks the journalist misquoted him or didn't provide sufficient context but here was his reaction:

"I've been on the fence for years about the legalization of drugs ... and now I'm a victim of this crazy war on drugs," says Freshman, who pledged to sue until "I see [the agents'] houses sold at auction and their kids' college tuitions taken away from them. There will not be a better litigated case this century."


Posted by Administrators on February 17, 2011 at 02:55 PM in Article Spotlight | Permalink | Comments (1) | TrackBack

Klass on "Contract as Promise"

I was delighted to see the first piece to be presented at our (Suffolk's) "Contract as Promise at 30" symposium hit the cyberwaves (HT:  Larry Solum), Greg Klass's Promises, Etc.  Here's the abstract:

This essay, written for "Contract as Promise at 30" at Suffolk Law School, examines the moral obligations contractual agreements generate. It distinguishes a narrow sense of "promise," central to autonomy theories, according to which to promise is to communicate an intention to undertake an obligation by the very communication of that intention. Not every agreement involves promises in this sense. Yet nonpromissory agreements too commonly generate moral obligations. And even when a party promises to perform, her promise need not be the only reason for her moral obligation to do so. Other possible reasons include reliance, an invitation to trust, implicit or explicit, principles of reciprocity, and the harm that nonperformance might cause the parties' relationship. This description of the moral landscape of contractual agreements complicates the project of finding a moral basis for contract law's duty-imposing function. The essay applies it to critically assess some recent arguments claims the relationship between contract and promise from Michael Pratt, Jody Kraus and Seana Shiffrin.

Posted by Jeff Lipshaw on February 17, 2011 at 01:53 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Redyip has been sighted

(artist's rendering)

Posted by Matt Bodie on February 17, 2011 at 12:56 PM | Permalink | Comments (9) | TrackBack

KenJen on Watson

Ken Jennings offers his thoughts on losing the Jeopardy exhibition to IBM's "Watson" supercomputer (KenJen hung-in in the second game, although he and Brad Rutter got crushed in the first game).

So, Paul: as the one among the Prawfs group to have appeared on Jeopardy, what did you think of Watson and the whole man-v.-machine game?

Posted by Howard Wasserman on February 17, 2011 at 07:25 AM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Wednesday, February 16, 2011


Sometimes one sees on a CV a line about foreign languages stating "fluency."  How competent in the language must one be to claim fluency?  The ability to read and write the language is not something that is likely to be tested at an interview, but the ability to speak might be.  How deep a knowledge of the language, what degree of facility, or what, if any, intimacy with a culture in which the language is spoken, is good enough?

Italian is my first language and when I was a kid I spoke it with as much regularity as English.  Over time, my command of the language has become rustier.  I still think that I speak Italian with greater ease than any other language besides English.  And I like to read Italian literature, newspapers, web sites, etc.  And so I call myself fluent in Italian on my CV.

But I'm not really fluent; I'm only fluent in the way that Americans believe themselves to be fluent, in very much the same way that they're sure that they have really gotten to know a foreign culture by having traveled there a few times.  For us, if you studied a language for a few years in school, spent some months in a country in which the language is spoken (generally, "when I was a student"), and are now able to string together a few consecutive responsive and jarringly accented sentences, you've achieved something approaching fluency.  And we are liberal in claiming fluency on our CVs under something like those circumstances.  I don't think it's like that in most of the rest of the world as respects the English language.  Most of the foreigners I know well are Europeans and their knowledge of and intimacy with English on average greatly exceeds our comparative facility with other languages.  The reasons are complex, and perhaps they will change with time. 

But here's my proposal: "fluency" should be reserved for those people who can understand humor and jokes in the language for which they claim it.  If you get -- if you feel yourself to be on the inside of -- the humor of a culture expressed in its own language by natives, then you're fluent.  Of course, under this definition one could be a fluent Spanish speaker and "get" the inside jokes of Mexico, but not Spain.  That's fine -- so long as you can palpate with ease the humorous underbelly of at least one country where the language is spoken.  But if, like most of us, when you are in a group of native speakers who are laughing and nodding knowingly together about some delightful little joke or bon mot, the best you can do is offer a dumb, ignorant grin, hoping that no one will perceive your alien creature status, then you're not fluent.  You should use a label that connotes something less than mastery of the language.  Maybe obfluent, or affluent.

Posted by Marc DeGirolami on February 16, 2011 at 03:44 PM | Permalink | Comments (16) | TrackBack