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Tuesday, July 19, 2011

Does Air Conditioning Make for Better Law?


My law school's air conditioning is broken, and we are smack dab in the middle of that neon-pink slice of the weather map displaying mid-America's record-melting heatwave. Today's heat index is 115.

I'm getting close to nothing done.

I do feel slightly guilty that I'm not getting work done without air conditioning when, for so many years, everyone worked without air conditioning. But was their legal work really all that good? I know the delegates to the Constitutional Convention worked in sweltering heat from mid-May through mid-September in Philadelphia. But, let's face it. It shows. The Constitution is in many ways a baffling, ambiguous, error-plagued mess. It didn't hit me until now, but the lack of air conditioning may be the explanation.

I'll bet that if you did an empirical study of statutes, you would find that in the pre-A/C era, the higher the outdoor temperature, the more convoluted and obnoxious the legislation was.

I personally am not interested in conducting this research, but I throw the question out there. Frankly, I'm not interested in doing anything right now. Because it's hot. It's like dormant-commerce-clause hot in here. Ugh!

Posted by Eric E. Johnson on July 19, 2011 at 11:21 AM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

The Federal Circuit's "Good" Term

For much of the last ten years, the joke has been that the Federal Circuit is the New Ninth Circuit, in having an ignominious record before the Supreme Court.  This term, however, the Federal Circuit’s batting average went up considerably, with three affirmances in the last month on patent law.  This has led to some commentary suggesting that the Federal Circuit has had a good term.  I want to push back on that argument somewhat. 

An initial observation is that only one of the three opinions, Stanford v. Roche, was a complete affirmance (I was rather heavily involved in this case, so I’ll refrain from further comment).  The second opinion, Global Tech Appliances, Inc. v. SEB S.A., was an affirmance-in-name-only, since the Court repudiated the Federal Circuit’s test and substituted its own, much more defendant-friendly, test for secondary infringement liability.  This still very much fits the traditional meme that the Federal Circuit is too patentee-friendly and the Supreme Court is reining it in.

The last case, Microsoft Corp. v. i4i Limited Partnership, has received the most attention and seems the most puzzling.  Microsoft dealt with the standard of proof to invalidate a patent.  For a long time, the Federal Circuit has held that the standard is the relatively-high burden of “clear and convincing evidence.”  In 2007, the Supreme Court commented (unanimously) that it could see little reason for this high standard in cases where the challenge to patentability is based on evidence that was not presented to the patent office.

The puzzling aspect is that the Supreme Court affirmed the Federal Circuit standard, seemingly in contradiction of its inclination a mere four years earlier.  But I want to suggest that this is far less of a turnabout than appears at first glance.  The Supreme Court stated that the standard is clear and convincing, but juries from now on should be instructed that evidence not presented to the PTO should be given greater weight.  From an analytical perspective, there is no great difference between saying that the standard of proof is lower when evidence has not been presented to the PTO, and saying that evidence goes further when it has not been presented to the PTO.  The Court has effectively shaped the law to do exactly what it wanted in 2007, albeit using slightly different language.  It would thus be a mistake to read Microsoft v. i4i as a victory for the Federal Circuit.  Once again the law has been moved in a more defendant-friendly direction.

There is one notable difference between this Term and prior ones in terms of the Court’s treatment of the Federal Circuit.  Gone are the days when the Court refers to the Federal Circuit’s jurisprudence as “gobbledygook.”  But to say that the Federal Circuit has had a good term because of this is only saying that it had no place to go but up.

Posted by Tun-Jen Chiang on July 19, 2011 at 01:38 AM | Permalink | Comments (0) | TrackBack

Monday, July 18, 2011

Ohio's "Heartbeat Bill"

This morning I spoke on our local radio show here in Cleveland about some abortion legislation that is pending or has recently been enacted by the Ohio legislature. Not surprisingly, one of the most controversial bills is called the "heartbeat bill." It purports to outlaw (criminalize) all abortions, with narrow exceptions when the life or physical health of the mother is seriously endangered, once the heartbeat of the fetus can be detected. That's as early as 6-8 weeks of pregnancy. When most women probably don't even know they're pregnant.

No one thinks this law is remotely constitutional - I'm pretty sure not even its sponsors think so. In fact, the bill itself contains language saying that, if a federal court holds the law unconstitutional, the effective date will be "tolled" until, essentially, there's reason to believe that the law may be constitutional (due to an intervening change in the applicable law).

The bill has passed the Ohio House, but its prospects in the Senate are unclear. But I have to say, I find it frankly shocking and offensive that a legislature would even come this close to passing a law that is so obviously, indisputably unconstitutional. It seems to me that this craziness only happens in the abortion realm. Are there other examples, perhaps in other areas? 

Posted by Jessie Hill on July 18, 2011 at 04:18 PM | Permalink | Comments (13) | TrackBack

What will Congress do regarding the tax treatment of punitive damages?

For the last couple years, I've been interested in the proper tax treatment of punitive damages as a consequence of my collaboration with my erstwhile colleague, Gregg Polsky, who's now at UNC. There have been some developments on this front that should be of interest to both practitioners and legal academics interested in litigation, tax, and torts. And that's why I'm curious, as the title of the post suggests, what Congress will do. To begin, Gregg and I wrote a piece that came out last fall in which we argued that (1) plaintiffs should be able to introduce evidence to the jury or judge regarding the marginal tax rate associated with business defendants in punitive damages cases so as to allow a tax-informed "gross-up" of punitive damages, and (2) that the tax-informed jury/judge (with an ability to gross-up) was a better solution to "the insufficient sting" concern than the option touted by President Obama, which was simply to remove the ability of businesses to deduct payments of punitive damages as ordinary business expenses. The arguments we made in this piece were largely analytic and prescriptive given the constraints and goals established by the current doctrine as we saw it. Importantly, we think the arguments of our paper should trigger lots more interest by plaintiffs' tort lawyers, since they now have a set of tools that can increase the recovery for their clients in a variety of tort cases involving malicious or reckless misconduct.* In response to these arguments, we were delighted to see that Professor Larry Zelenak from Duke and Paul Mogin (from Williams and Connolly) wrote responses to our piece for Virginia Law Review's online companion, In Brief. Gregg and I now have a working draft of our reply up on SSRN, entitled, Revisiting the Taxation of Punitive Damages. Thus, in an Escheresque-turn, we now invite comments on our comments on their comments on our paper :-)

On a related note, I earlier this year published a companion paper that took a more expressly normative perspective on the optimal design of the tax treatment of punitive damages. That piece -- Overcoming Tradeoffs in the Taxation of Punitive Damages -- is now out, and I've just recently put up a final version on SSRN. In that article, I explained that the tradeoffs created under current law between ostensibly unnecessary plaintiff enrichment and proper tax incentives for business defendants could be overcome by implementing the punitive damages reforms of the sort I have recommended elsewhere.  These reforms would disaggregate the purposes of punitive damages more clearly so that the optimal deterrence function and the victim vindication function could be separated cleanly from the function of vindicating the public's interest in meting out a retributive intermediate civil sanction. More specifically, I argued that the proper tax treatment of the punitive damages (with respect to whether the defendant's payments should be deductible or not) will depend on what goals states have for their punitive damages regimes, and what goals the federal government has with respect to subsidizing those regimes.  Now, if I were you, I'd be wondering, what's Markel know about tax? That's not an unsound intuition. But I had a lot of help from Gregg and a gaggle of other tax prawfs, and my hope is that this piece will be of interest to anyone intent on understanding the full tax dimensions of punitive damages design specifically (and penalties more generally), especially and insofar as these penalties relate to optimal deterrence, victim-vindication, or public-interested retributive justice. 

Last, Gregg and I have just seen one of Congress' Joint Committee on Taxation reports for 2011, and we noticed that the Committee has acknowledged our argument, but hasn't really grappled with its implications fully. So, at this point, we are waiting to see what happens. Our hope is that the Obama Administration and folks in Congress (and the relevant lobbyists too!) read our work and realize that a repeal of the deductibility of punitive damages will interfere with both the appropriate punishment of business defendants and the states' choices to run their tort system in a way that achieves the goals they intend to set out for themselves.   

* Here's how a friend of mine described to his partners at a prominent class action firm the gist of the claim Gregg and I advance with respect to settlement dynamics and the benefits of our argument.

I think the upshot is that if Ds know you have a credible threat of getting the jury to award more in punis because of the gross-up threat, they'll settle for a higher amount.  Same logic as when you try to get a high pre-trial settlement based on the argument that the jury pool in the particular area is plaintiff-friendly.  Eg:
1.  expected compensatories = 1m
2.  expected punis (with jury unaware of tax issues) = 3m
    expected punis (with jury informed about tax deductibility) = 4m (because they know the pain to D is only gonna be 2m)
3.  chance of victory = 25%
settlement value under old scenario = (1+3)*25% = 1.00m
settlement value under new scenario = (1+4)*25% = 1.25m


Posted by Administrators on July 18, 2011 at 01:38 PM in Article Spotlight, Dan Markel, Retributive Damages, Tax, Torts | Permalink | Comments (0) | TrackBack

More on Cite Pimping

I confess that on first reading Eric's "Cite Pimping" post, I was all set to insist that Eric name the perpetrators.  Orin has talked me down from the ledge with his comment.  There is room,  I suppose, to take a more forgiving attitude and refrain from public shame.  That said, I do think the conduct he describes is shameful.  That said, I do think it is not only appropriate but nearly mandatory for Eric or others who have faced this experience to complain to the students; after all, if the idea is that they may not know any better, they need to be educated.  Beyond this, though, and regardless of the student response, I would add that as the faculty advisor to my law review I would like to hear from authors if this kind of thing had been happening at my journal.  So I hope Eric will at least send an email to the faculty advisor letting him or her know what is going on.

Another form of cite pimping that I see regularly and find distasteful is pre-tenure cite pimping.  How many times have you read a pre-tenure or tenure piece that finds any and every excuse for the junior scholar to cite articles by all of his faculty colleagues, no matter how tangential they may be to the piece or what the scholar may actually think of those pieces?  Senior faculty who are susceptible to this form of flattery are unworthy of being flattered; junior faculty who engage in this kind of conduct should remember that tenure is about mastering and contributing to your field and about independence of mind; this behavior demonstrates neither quality.   

Posted by Paul Horwitz on July 18, 2011 at 07:16 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack

Sunday, July 17, 2011

Like father, like daughter?

I have been a sports fan since I was about six years old and as a youngster did not handle my favorite teams losing--tears, yelling, mild swearing, thrashing, shouts to the heavens, and cries of "why didn't ___ happen" were a common occurrence. When my wife and I had a daughter, I hoped that she would become a sports fan, and have been pleased that she has at a young age. She even is showing some decent five-year-old soccer skills (ironic, since that was long the sport that I just did not get).

Well, the family connection became very clear with the US loss to Japan in the Women's World Cup Final today, which precipitated a crying meltdown for the ages. Being more dramatic than I was, hers even got somewhat existential--wondering why she had been born, why she bothered watching, and threatening never to play or watch soccer again (the last part passed quickly and she is looking forward to attending FIU women's games in the fall).

It obviously hurt to see her that upset. But a small part of me felt a twinge of happiness and pride that she has developed such a passion for this.

Posted by Howard Wasserman on July 17, 2011 at 06:54 PM in Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Hangin' Down the Street from George Clooney at the Orso Bruno

During the weekend break from the ten sessions of U.S. Securities Law in Budapest, I met my wife at Lake Como in a wonderful, charming little hotel in Carate Urio, which we learned from everybody after we got IMG_0295 here is famous for being where George Clooney has his villa.  We didn't run into George, but I want to suggest that if you are ever in this neighborhood, let Daniele and Simona Quattieri be your hosts at the Piccolo Hotel Orso Bruno.  Advantages:  absolutely charming; reasonably priced; we had a view of the lake from our room (see left); the Quattieris just purchased and now own the very nice restaurant Acqua Dolce across the street.  Also, the hotel is located at the dock of the Navigazione di Lago Como, which is the boat shuttle that runs frequently up and down the lake.  So even if you didn't have a car, and even though the hotel is kind of out of the way, you can still get from your door to just about any place on the lake you want to go.

The only disadvantage I could note was the one I wrote in the guest book.  If you are staying at a big hotel, you really don't care how hard Messrs. Hilton, Marriott, Sheration, etc. work, but when you stay here, you immediately become friends with these people, and it is simply astounding how hard they work seven days a week to run this place.  (Simona is a graduate of the hotel and restaurant school at Cornell.)

Posted by Jeff Lipshaw on July 17, 2011 at 01:25 PM | Permalink | Comments (0) | TrackBack

Friday, July 15, 2011

Cite Pimping

Every law journal likes to have its articles cited. It gets the journal's name out there, and it pushes up the journal's place in the Washington & Lee law review rankings. But it's not cool to pursue this at the expense of scholarly integrity.

It's come to my attention that there is at least one student-edited law review out there – a good one – that has adopted a policy of pushing/requiring their authors to include in their article some citation to an article previously published in that same journal. The editor explained to a professor I know that this was "for our promotional purposes."

Whoa. I gotta tell you, that's a really bad idea. If any student law review editors out there are reading this (and I know you are), I really recommend that you not start doing this, and if you are already, then you should cut it out immediately. (And I also recommend that you tear yourself away from PrawfsBlawg long enough to go outside and get some sunshine. Gee-wilikers. It's summer!)

For a journal to manipulate the scholarly content of articles for promotional purposes and, apparently intentionally, to game some law review rankings, that just reeks. It's wrong for the same reason it's been made illegal to endorse a product, while being paid to do so, without disclosing the sponsored nature of the endorsement.

I am disturbed that the elite students at a law school would adopt such a policy, because it shows a lack of sincerity in their participation in legal academe. But I might be even more worried about what it portends for them as practicing lawyers. Blithely sending e-mails that document embarrassing organizational behavior is malas noticias.

Look, if the journal had an internal practice of trying to identify its own previous articles that might be on point, and then presenting these to the author as suggestions for further research, that might be sadly pragmatistic, but it wouldn't cross the line for me. But to tell an author – a professional scholar – that he or she has to accept a cite to a previous volume so that the journal can promote itself? That's seriously cringeworthy.

By the way, I write this post in full knowledge I've been called a pimp for writing about my own projects on PrawfsBlawg. So you don't need to point that out to me in the comments. And for the record, what I'm talking about here is completely different. Promoting yourself in the open is one thing. Promoting yourself under someone else's byline is another thing entirely.

Posted by Eric E. Johnson on July 15, 2011 at 08:45 PM | Permalink | Comments (19) | TrackBack

More Horse-Happy Budapest Travelogue

IMG_0163 We have finished our first week of classes in the summer LL.M. program here in Budapest (at the Eötvös Lorand Tudomanyegyetem, pictured left, aka ELTE, and translated as the Lorand Eötvös - that's a name, and in Hungarian last names come first as in China - Science University).  I am sitting in the very bright, very new Budapest airport, waiting for several hours to catch a flight to Milan, where I will rent a car and drive to Carate Urio on Lake Como to meet my lovely bride of going on 32 years.  This airport is really quite nice (with free Wi-Fi) except for three things:  (a) very few seats near the gates (I suspect to encourage spending money at restaurants or duty-free); (b) not enough power outlets; and (c) the exceedingly annoying two young men speaking German and giggling directly behind me.  

As I am killing time, this could well be a long post, although it just occurred to me that Dan Markel's IMG_0293 demand for blog posts is contra to and perhaps far more rational than the demand for pre-tenure scholarly writing; ceteris paribus, blog posts should be short, frequent, and interesting.  Well, as with NPR Car Talk, you've probably just wasted a perfectly good ninety seconds reading this far, but if you are intrigued, here goes with more reflections of a horse-happy American in Budapest. 

At right, that's the Buda Castle, taken from across the Danube in Pest, as I was walking back to the hotel last night.  It was the royal palace; now it's the National Museum and Library.   I walked up there to see a dressage performance by the Epona Spanish Riding School.  More on the performance and, as we say in Hungarian, lovasok (horses), after the mandatory break.

But first, another comment on language.  I mentioned in a previous post how merely saying "thank you" to a shopkeeper prompted her to ask whether I spoke Hungarian.   (Imagine this for a moment at Kennedy Airport.  German person buys a newspaper.  Says "senk you," which I'm sure is what my Hungarian sounded like to a Hungarian.  Clerk says with just a soupçon of pride, "oh, do you speak English?  Right.)   It is absolutely the case that my willingness to pepper my lectures with the occasional Hungarian word that I've picked up is the best IMG_0220icebreaker I have.   I used the word "szaz" for 100 today, prompting oohs and aahs, but that's not hard because the restaurant next door to my hotel is "Szazéves" (sahz-EV-esh) or "100 years."  I used my usual hypothetical to get at the cash generating value of an otherwise low hard asset business (here making sweet paprika packages for tourists) and used the word "jacsko" (plural:  "jacskok") for cheap little bag, but the evening before I had been at the little grocery store, where it is expected you bring your own bag.  I didn't have one, so I fumbled with my dictionary in line so that I could say "jacsko" to the clerk and get a little bag.

But I digress.  As my Facebook friends know, because my current profile picture is of me cantering on Moonie the Dutch Warmblood, learning how to ride a horse has been IMG_0274my primary diversion for the last two years.  Horseback riding, and particularly the formal art of dressage, or very precise movements requiring skill and training of horse and rider is big here in the former Austro-Hungarian Empire.  This is in contrast to the other major non-Western riding activity, which involves jumping over fences either in the ring or in the field.  Simply because it reflects the teachers who have been available to me, I ride with a hunter/jumper instructor in Massachusetts and a dressage instructor in Michigan. 

My adventure on Tuesday was to take a bus, a tram, and another bus (about an hour) up into the hills that constitute the semi-rural outskirts of Buda to meet Krisztina, the director of the riding program at the Petnehazy Lovascentrum (Horse Center).  And, of course, the  minute I got there, I wanted to ride IMG_0290despite the fact I hadn't brought my riding gear (pants, boots, helmet, and "half-chaps").  But as I was to meet Alene in Lake Como, I persuaded her to pack the stuff and bring it to me, so I now have two lessons scheduled with Krisztina next week in IMG_0264 which I will ride Vidam ("Happy"), who posed for me in the picture above.   I don't know if Vidam is really happy, but I suspect life is better than when he was a carriage horse as was described to me.

Then I happened to notice in the hotel tourist magazine that the Epona school would be holding a show in one of the courtyards of the Buda Palace on Thursday.  So I walked up there last night.   These are Spanish bred horses, trained at the Epona school, which has been around now for about five years.  The really magical thing was the setting, in the courtyard just below the dome (right), with the ensemble pictured above, and these amazing horses and riders doing amazing things.

Posted by Jeff Lipshaw on July 15, 2011 at 10:06 AM | Permalink | Comments (0) | TrackBack

Happy Hour at SEALS Law Conference, Thurs July 28th at 9pm

For those of you conferencing in Hilton Head for the SEALS meeting later this month, please mark your calendar for Thursday the 28th of July at 9pm. We will gather for a happy hour at the Lobby Lounge of the Marriott Oceanfront Resort.

Btw, if there are any seasoned experts on Hilton Head among our readers, please feel free to weigh in with some suggestions in the comments of restaurants and bars or other sites we should visit while out there. If there are some places close-by, perhaps we'll have some other happy hours planned. In the meantime, please share the date, time, and location of this happy hour with your peeps.

Posted by Administrators on July 15, 2011 at 09:46 AM in Food and Drink | Permalink | Comments (0) | TrackBack

Public Schools to Teach the Importance of Guns in American History

For those of us who are interested in the somewhat odd status of public schools within the realm of what I call "First Amendment institutions," the recently enacted California law requiring public schools to teach about the contributions of gay and lesbian history to state and national history presents an interesting case.  (Here is the New York Times story.  Ari Waldman has been writing enthusiastically about the legislation in several posts at CoOp.)  

The institutionalist view argues that certain central speech institutions, such as universities, churches, and the press, are an important part of the infrastructure of public discourse, and should be substantially legally autonomous within the sphere of their expertise.  One of the bases for this argument is that these institutions have shown a long tradition of and capacity for self-regulation in accordance with self-regulatory norms and values that help serve the functions of those institutions within public discourse, and hence help advance the system of public discourse that is at the heart of the First Amendment, and of society itself.  

Public schools fit poorly within this structure.

 Surely K-12 education is marked by an increasing professionalization; over time, it has adopted many of the structures, norms, and practices that mark other First Amendment institutions.  The fact that it is a public entity doesn't necessarily alter that fact; public broadcasters are state entities too, and yet the Supreme Court has deferred to them insofar as they have acted as professional journalistic entities.  State action is relevant here, but not conclusive.  So we could imagine public schools as First Amendment institutions, entitled to substantial judicial deference.  But professionalism is not the only salient quality of public schools.  So is local political control.  Universities -- even public universities -- do not act in most respects like other state actors.  But public schools, generally run by elected or appointed state and local boards, act in precisely this fashion.  And like other political institutions, they are often a site of political contestation about what speech the "government" should engage in and what values it should advance.  The more the public schools act like other political state actors -- the less their actions are guided by professionalism and self-regulatory norms -- the weaker the argument for autonomy or judicial deference.

California's FAIR Education Act is an example of this.  No doubt some or many educators would share its goals for professional as opposed to political reasons.  That is, some educators might believe that the pedagogical goals of primary education are furthered by including gays and lesbians within the scope of the history taught in those schools.  Whether they're right or wrong about this, to the extent those conclusions draw on professional reasons, there would be reason to respect those choices, or at least to acknowledge the expertise and professional standards that went into them.  But that's not really the case here.  The FAIR Education Act is not about professionalism.  It's about local (in this case, state) political control of the public schools, and about the right of the people to decide what values are taught there.  Whether educators happen to agree with the substance of the legislation on professional grounds is mostly irrelevant; what counts is that this is a democratic statement about public values, exercised through the schools.

How you feel about this may depend on how you feel generally about institutions vs. political bodies, about professionalization vs. populism, and perhaps about public schools generally.  (Paging Rick Garnett!)  That's up to each of us.  But we can certainly conclude that California's decision is a political decision, not an institutional or professional one.  That's the point of this post's title.  This decision is no different from a political decision to require public school teachers to tell students about the importance of guns in American history, whether the teachers think such a command is professionally justified or not.  It's little different, for that matter, from telling public school teachers to teach students that the Holocaust has been overblown, or that capitalism is wonderful, or that Catholics are evil, or that collectivism is the key to solving social problems.  We may feel differently about each of those instructions, but the move is the same.  In that sense, the FAIR Education Act is simply a liberal mirror-image of similar decisions taken by the Texas Board of Education from a politically conservative perspective.  We may champion or oppose particular decisions; we may champion or oppose this general bent toward treating public schools as political bodies, mere arms of the state, rather than as politically insulated professional bodies.  But we should all see these decisions for what they are.

Let me close with a quote from an opponent of the legislation: “'It’s a sad day for our republic when we have the government essentially telling people what they should think,' said Tim Donnelly, a Republican state assemblyman from San Bernadino. Mr. Donnelly said the law prohibited schools from presenting gays and lesbians 'in anything other than a positive light, and I think that’s censorship right there.'”  Donnelly's first sentence is quite correct, but it raises a question from countless seders: "Why is this night different from all other nights?"  His second sentence is half-true.  From an institutional perspective, commandeering a professional institution that ought to be self-regulating according to its own settled norms and practices is a form of censorship.  From the perspective of standard First Amendment doctrine, however, this is just government speech, not censorship.  It's no different -- no better or worse on principled grounds -- than the myriad other occasions on which government tells its employees what to say.  It is a wholly standard application of government speech doctrine.  The larger question is whether we might want to think differently about government speech doctrine itself, where the government body in question is supposed to be a professional institution of its own rather than just a mouthpiece of the state.   

Posted by Paul Horwitz on July 15, 2011 at 09:05 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack

Do you want to be a judge when you grow up?

Seriously. Do you secretly hanker for article III tenure?

Well, the American Constitution Society along with several other progressive groups keen on diversifying the federal judiciary have published a "How to" manual for law students and young lawyers who aspire to take on the woolsack. And the Administrative Office of the U.S. Courts has gotten into the act, as well, to produce a video series titled "Pathways to the Bench" featuring individual federal judges who overcame obstacles to reach that career goal.



Posted by Thomas Baker on July 15, 2011 at 07:00 AM | Permalink | Comments (3) | TrackBack

Arizona's attack on the unitary executive in its defense of S.B. 1070

Throughout the litigation over S.B. 1070 (Arizona's effort to supplement federal enforcement of the Immigration & Naturalization Act with its own state background checks, arrests, etc), Arizona has maintained that it has "inherent" authority to enforce federal immigration law. This position was asserted in a memo authored by Jay Bybee back in 2002, but Arizona has taken the Bybee position one step further: They claim the right to enforce the INA even when the President of the United States vehemently rejects their proffered assistance. As I argue in a post on scotusblog, Arizona's position pits the principle of the unitary presidency against an expansive notion of federalism.

Whatever one thinks of the merits of this version of federalism, one must surely acknowledge that no fan of the unitary executive could embrace it without swallowing hard. The notion that a state can impose its theory of how a federal law ought to be enforced on the President flies in the face of the position that the Presidency has a constitutional entitlement to determine enforcement priorities. Justice Scalia in particular has rejected such a view in opinions ranging from Printz v. United States to AT&T v. Iowa Utilities Bd.. Yes, the INA provides for states' communicating and otherwise cooperating with the federal government. But any advocate of the unitary executive surely must define state "cooperation" in 8 U.S.C. Section 1357(g)(10) in light of background principles of American constitutional law, including the principle of the unitary executive: states do not "cooperate" with the Attorney General, when the AG rejects their help.

So I am expecting conservatives who support the unitary executive -- and the unitarians are disproportionately conservative -- to line up to denounce Paul Clement's anticipated cert petition on behalf of Arizona to the extent that the petition pushes the "inherent authority" line. How many of you readers think that my expectation of intellectual consistency is naive?

Posted by Rick Hills on July 15, 2011 at 12:48 AM | Permalink | Comments (4) | TrackBack

Thursday, July 14, 2011

The Space Shuttle's Lying, Derelict Astronaut


As Atlantis is somewhere overhead tracing the last orbits of the Space Shuttle program, I'm thinking about my recent nightstand book, Riding Rockets by former astronaut Mike Mullane. In the autobiography, the three-time mission specialist reveals how the military and NASA tolerated a culture of chronic lying and fraud among its flyer corps. For example, here's how Mullane describes some of his blithe criminal conduct aimed at bolstering his chances in the astronaut-selection process.

In an act of incredible naïveté, the docs at NASA had asked us to hand-carry our medical records from our home bases. ... As the miles passed, I pulled out pages I felt could generate questions I didn't want to answer. In particular I pulled out references to the severe whiplash I had during an ejection from an F-111 fighter-bomber a year earlier. ... I liberated the offending pages from my files, planning to reinsert them on the return flight. I had one very slim chance of getting selected as an astronaut. I wasn't going to let a little thing like a felony get in the way. (p. 2)

I realize that the job of astronaut doesn't have the same need for a moral character requirement as that of lawyer. But it's such a coveted job, you'd think NASA could insist on a modicum of rectitude. After all, unmanned rockets can put up satellites. Half the reason to send real people up into orbit is to have heroes.

Mullane goes on to talk of how he lied, lied, and lied some more to an interviewing psychiatrist:

What would [the true stories of my childhood] have said about Mike Mullane? ... That I was an out of control risk taker? That I scorned rules? There was no way I was going to reveal that history. So I lied. (p. 23)

And did he turn out to be an out-of-control risk taker who was a liability to the astronaut corps? That's the conclusion I have to draw from the description of the re-entry on his second mission into space, aboard Atlantis for STS-27.

According to the checklist I should have been strapped into the mid-deck seat, but there was nothing to do or see down there, so I had asked [Commander Robert "Hoot" Gibson] if I could hang out on the flight deck and shoot some video of the early part of reentry. I would get into my seat before the Gs got too high. (p. 285)

But he didn't keep his deal with the commander:

The clouds appeared to skim by at science-fiction speeds. The sight was a narcotic and I watched it until my zero-G weakened legs couldn't take my weight any longer and I collapsed to the floor. It was beyond time to get to my seat. I pulled myself to the port-side interdeck-access opening and looked down. Uh-oh. I had waited too long. ... I was stuck on the flight deck, its steel floor now my seat, a situation I didn't altogether regret. (p. 287)

Mullane rode the shuttle back to Earth like this, sitting on the floor of the upper deck and unable to stand up, even though he was the person designated in an emergency to operate the lower-deck escape hatch and deploy the slide pole if the crew needed to bail out. Nice, huh? He exposed the whole crew to elevated risk because he wanted to be able to look out the windows.

I might of thought this kind of nonsense would get Gibson and Mullane into trouble at NASA. It sounds like dereliction of duty to me. And you and I both know that doing the equivalent as a passenger on an airliner would get you arrested by the sky marshal and facing jail time. But apparently there were no repercussions for the astronauts. Mullane flew again into space aboard Atlantis and eventually retired to become a motivational speaker. And Hoot Gibson went on to two more shuttle flights and a post-NASA career as a Southwest Airlines pilot. At Southwest, he presumably insisted that all passengers, including those in the exit-row, actually sit in their seats during landing.

All in all, I appreciate what Mullane has done for the historical record by writing his candid book. But reading about Mullane's dubious service has tempered my sadness about the end of the Space Shuttle program. What's more, you know that Mullane is nowhere near to being on the leading edge of deviance in the astronaut corps. Obviously, you'll remember astronaut and convicted felon Lisa Nowak, who drove all night from Houston to Orlando to try to kidnap her romantic rival for the affection of philandering NASA astronaut William Oefelein.

At the end of the day, I am happy to give an increased role to adorable robots that look like Johnny 5 from Short Circuit.


This rover would never tamper with its medical records, and it looks like Ally Sheedy's friend. (Image: NASA/JPL)

Posted by Eric E. Johnson on July 14, 2011 at 05:51 PM in Books, Current Affairs, Science | Permalink | Comments (3) | TrackBack

An Update (Part 1)

I've finally had a few hours to clear some stuff off my plate, and that includes updating some drafts on SSRN. I'll do a few of these self-promotion information-dissemination posts over the next week or so. The first thing I'll report is that there's now a final version of a couple papers having to do with punishment theory and the subjectivity debate up there. I'll put the abstract of the more recent of the papers below the jump after a little background on a funny and trivial matter.

The first one, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice , came out last summer or fall, can't remember. Anyway, and oddly, the good folks at the law review wouldn't allow my co-author (Chad Flanders) and I to include a Table of Contents and Abstract in the published version because at the time, they had a policy of no abstracts or TOC's. We were kind of upset about this as it seemed like a ridiculous policy to have in the first instance--who doesn't love a good TOC and abstract? Moreover, we had submitted our piece with a TOC and abstract (and were not told at acceptance that we'd have to jettison it).  It was even weirder, we thought, for them to not budge, even though they acknowledged it was a silly rule, on the grounds that others were stuck with that rule in the volume, and so, we should be stuck with it too.  (Not sure how many complained though...) Anyway, after publication, one of the editors there was nice enough to format a TOC and abstract that we had written, and the version that's up on SSRN now has the published version following that TOC and abstract. Phew. 

To our delight, a few of our interlocutors in that project (Professors Bronsteen, Buccafusco & Masur) wrote a response to our article, and we wrote a reply (inviting along David Gray from UMaryland, with whom we had a shared interest on the merits of this debate). Our essay, Beyond Experience: Getting Retributive Justice Right, which is now up on SSRN, appeared in a new volume of the law review, and I guess because folks boortched about it previously, the editors of the new volume allowed and even encouraged TOC's and abstracts. Mirabile dictu.

Here's the abstract for "Beyond Experience: Getting Retributive Justice Right," the final version of which is now on SSRN.

How central should hedonic adaptation be to the establishment of sentencing policy? 

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release experiences as part of the suffering the state imposes as punishment. 

In subsequent articles, we challenged BBM’s arguments (principally from the perspective of retributive justice) -- see below for SSRN links. The fundamental issue between BBM and us is whether "punishment" should be defined, measured, and justified according to the subjective negative experiences of those who are punished, an approach we refer to as "subjectivism," or whether the more compelling approach is to define and justify punishment, more or less, in objective terms such that the amount need not vary based on experiences of offenders alone. 

In their responsive essay, "Retribution and the Experience of Punishment," BBM responded to our challenges. This essay of ours now assesses the impact of their responses, again from the perspective of retributive justice. We remain unpersuaded by their conceptual and normative responses. We also use this essay to explain further the wrong turns associated with BBM's decision to endorse subjectivist concerns as the principal measure and justification for the infliction of retributive punishment. 

Markel and Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Punishment, http://papers.ssrn.com/abstract=1587886 

Gray, Punishment as Suffering, http://ssrn.com/abstract=1573600 

BBM, Retribution and the Experience of Punishment, http://ssrn.com/abstract=1692921

Posted by Administrators on July 14, 2011 at 04:55 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink | Comments (0) | TrackBack

Wednesday, July 13, 2011

Why do we want judges to be great lawyers?

In the rhetoric of judicial nomination fights, two things that just about everyone agree on are: (1) judges should be great lawyers, and (2) judges should not engage in results-oriented decision-making, that is, they should not first come to a predetermined outcome based on extra-doctrinal considerations and then dress up that outcome in legalistic mumbo-jumbo.

But it seems to me that the very definition of a great lawyer is someone who can take a predetermined outcome based on extra-doctrinal considerations (my client should win because he is paying me), and dress it up in legalistic terms in the most persuasive manner.  Sure there are other attributes associated with a successful lawyer, but the ability to twist legal doctrine to reach your client's desired result seems to be the defining trait.

One reason to have judges be great lawyers is that they would then be able to call out the lawyers who appear before them for doing this.  This is rather akin to having the best thief in the world design your safe.  But if you get a thief to design your safe, you better make sure you have some way of controlling him afterward.

Posted by Tun-Jen Chiang on July 13, 2011 at 05:16 PM | Permalink | Comments (20) | TrackBack

Victory for Pastafarians Everywhere!

I'm not one of the law and religion folks, so I'll refrain from legal commentary.  But, I couldn't resist using the Prawfs platform to pass this gem along: Austrian Man Wins Right To Wear Pasta Strainer in License Photo.

As NPR reports:

In Austria one of the strangest fights for religious freedom has come to an end: Niko Alm, a self-described "Pastafarian," fought for three years for the right to wear a pasta strainer on his head in his driver's license photo.

His argument? Alm claimed he belonged to the Church of the Flying Spaghetti Monster and wearing the strainer was part of his religion.



Posted by Robin Effron on July 13, 2011 at 04:48 PM in Culture, Religion | Permalink | Comments (1) | TrackBack

Proxy Detention and the Habeas Statute

Bobby's post from yesterday about the potential habeas petition arising out of the CIA's "proxy" detention of non-citizens in Somalia raises a host of interesting jurisdictional questions, some of which I've addressed previously.  For now, though, let me offer one slight quibble--not with the larger thesis of Bobby's post, but with one of the analytical threads contained therein:

Bobby assumes that whether Abu Ali (the 2004 D.D.C. decision sustaining jurisdiction in a proxy detention case) applies to non-citizens held outside the territorial United States turns on the scope of the Suspension Clause in light of Boumediene.  I'm not so sure that's true.  Congress in the Military Commissions Act of 2006 did not take away statutory habeas jurisdiction over all non-citizens held outside the United States, but rather only over petitions by "an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (emphasis added).  In other words, the MCA only withdraws habeas jurisdiction over individuals who are formally detained by the United States under the auspices of the AUMF. Based on what we know about the Somalia detention operation, there seems to be at least an argument that this is not such a case...

Ultimately, for non-citizens who are detained outside the United States for other purposes (whatever they may be), the MCA simply doesn't apply, and instead the question is the same as that which the Court addressed in Rasul, i.e., whether the federal courts may exercise jurisdiction over a proper respondent.

Posted by Steve Vladeck on July 13, 2011 at 04:01 PM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (5) | TrackBack

Securities Regulation versus Secured Transactions

What I really want to do is continue the travelogue, which I will in another post, but first a quick question of legal etymology or trivia.  (My access to our library's subscription to the O.E.D. seems to be blocked when I am off campus.)  Here in the Budapest LL.M. program, I am teaching Securities Regulation in the morning, and my wonderful colleague Mike Rustad is teaching the same students Secured Credit in the afternoon.  With only one or two exceptions, there are no native English speakers.  Several have asked the etymological question:  what is the relationship between the word "security" as it is used to describe an investment and the word "security" as it describes an interest in personal property by which that property is collateral for an indebtedness.  I certainly understand the idea of security as "safety" in the latter case, and I can only speculate that there is something similar in the idea of a certificate or document that makes an investment safer by creating a tangible record of it.

Inquiring Hungarian minds would like to know.  Feel free to chime in online or offline.

For more travelogue, however, stay tuned.

Posted by Jeff Lipshaw on July 13, 2011 at 01:46 PM | Permalink | Comments (3) | TrackBack

Questions About the McConnell Plan

So after all the noise about the moral imperative of cutting the deficit, yesterday the Republican leader in the Senate, Mitch McConnell, proposed a new plan for what you might call a "dirty clean debt limit bill". Here's a description from Jackie Calmes of the NYT:

Mr. McConnell’s proposal would give Mr. Obama sweeping power to increase the government’s borrowing authority, in increments, by up to $2.4 trillion — enough, it is estimated, to cover federal obligations through next year — only if Mr. Obama specified spending cuts of equal amounts. But Congress would not have to approve the spending cuts prior to the debt-limit increase.

Over at Balkinization, Sandy Levinson characterized this plan as "delegation run riot," but he seems to have misunderstood the proposal. McConnell's plan wouldn't actually give the President "the unrestricted power to cut whatever governmental programs he wishes, with no consultation with Congress, so long as his cuts reach the magic number of $2.4 trillion." Rather, the plan would simply require the President to propose such cuts and take the political heat that would presumably attach to such a proposal. Descriptions of the plan include other gimmicks, like allowing Congress to vote against the increase in the debt limit it will have voted to give the President the power to effect. But let's leave those aside. Let's also leave aside the question of whether such a proposal could get a majority in the House, much less a filibuster-proof 60 votes in the Senate. And finally, let's leave aside the question of whether delegating an increase in the debt limit is itself a constitutional delegation.

What I'm more interested in is, what happens if the plan passes and the President uses his delegated power to increases the debt limit and simply disregards the requirement that he propose spending cuts equal to the attendant increase?

How could anyone have standing to challenge such an action? The result of said action would be to ensure that duly appropriated funds were actually spent, honoring entitlements and contractual obligations, so it seems that only the President's failure to increase the debt limit would cause anyone a particularized injury. Perhaps GOP presidential candidates might argue that by refusing to play along, the President had made it more difficult for them to run against them, but that doesn't seem like it would be a winning argument in court. And what relief could anyone seek? Specific performance?

Now, you might say, the fact that a president can get away with breaking the law because there is no power able to stop him or her should not make anyone, least of all the president, think it's ok to do that. But what if the President determined that the name-your-cuts requirement was itself unconstitutional, because (say) it isn't a valid exercise of Congress's oversight powers and threatens to unconstitutionally change the structure of the federal government? Then he would be forced to increase the debt limit by budget laws and other statutes that require him to spend appropriated money, and he would be required by his own constitutional determination not to honor the name-your-cuts provision. But what if the McConnell plan's statutory language involved a non-severability clause? 

Anyway, suppose the President did announce proposed cuts, but gave very optimistic estimates as to the amount involved. Would that be ok, and if not, who would say so? And what if he proposed to cut only spending in districts represented by GOP members of the House, or states with two GOP senators or GOP governors who had declared their distaste for federal spending? (And what if he proposed to reduce what are known as tax expenditures, rather than direct spending from government accounts?)

Such a fascinating plan!

Posted by Jonah Gelbach on July 13, 2011 at 11:59 AM | Permalink | Comments (3) | TrackBack

Court Jesters: attempts at humor in judicial opinions

The Wall Street Journal recently ran an article on what appears to be a growing trend for judges to season their judicial opinions with "puns, rhymes, attempts at humor and cultural references."  Do readers of PrawfsBlawg agree that this behavior is increasing?  Do you think it is a good thing or a bad thing?  I am curious.  My quick take on it -- and my nomination for the cleverest judicial opinion -- after the break.



Understand that I am a fan of legal humor.*  I coedited a book collection of humorous law review articles titled "Amicus Humoriae: An Anthology of Legal Humor."  But on the subject of humor in judicial opinions, color me dubitante.  More often than not, judges simply are not as funny as they think they are.  I would advise judges to get a second opinion, so to speak, from a candid law clerk or a colleague to determine if the reader is going to laugh at the joke or at the judge.

My nomination for the most clever judicial opinion is United States v. Syufy Enterprises, 903 F2d 659 (9th Cir. 1990), an otherwise obscure appeal in a government antitrust action against movie theaters.  Alex Kozinski, currently the Chief Judge of the Ninth Circuit, wrote more than 200 movie titles into the opinion's prose and signaled a challenge to his readers with a footnote citation to a popular movie guide.  The BYU Law Review took the challenge and published "The Syufy Rosetta Stone" which carefully parsed the opinion to find the movie titles.

*Addendum: if you want to read further elaboration of my views of humor in judicial opinions -- complete with a top 10 list of clever opinions, see Thomas E. Baker, A Review of Corpus Juris Humorous, 24 Tex. Tech L. Rev. 869-89 (1993) (download the PDF here).


Posted by Thomas Baker on July 13, 2011 at 07:00 AM | Permalink | Comments (17) | TrackBack

Tuesday, July 12, 2011

Dwarf Planets and the Law

Astronmers, doing astronomy.
(Photo: IAU / Lars Holm Nielsen)

The practice of astronomy and the practice of law are virtually the same, except that what lawyers do is a lot less silly.

Well, that's the only conclusion you can draw from reflecting upon the work of the International Astronomical Union (IAU). This summer marks the fifth anniversary of the IAU's demotion of Pluto to the status of "dwarf planet." The final determination of that matter was made on August 24, 2006 under the Resolutions B5 and B6 of the 26th General Assembly. What amazes me about it is not the outcome of the vote, but the fact that there was a vote at all.

I find it astounding that, as a profession, astronomers have submitted themselves to the jurisdiction of what is essentially a make-believe government. What's really crazy is that not only do astronomers recognize some sort of sovereign authority in the IAU, so do actual lawmakers.

The legislature of New Mexico passed a resolution decreeing that "as Pluto passes overhead through New Mexico's excellent night skies, it be declared a planet."

Are you kidding me? Think about what the New Mexico legislature is saying here: (1) The IAU can legislate scientific fact. (2) The New Mexico legislature can overrule the IAU as to matters of scientific fact. (3) But (incredibly!) only when Pluto is in New Mexico's jurisdiction!!!!!!!!!

Holy freaking cow. Okay, well, I've got to jump off the blog now. I need to finish my grant application. I'm working on a space probe that will beam back to Earth the clearest pictures we've ever had of the rule against perpetuities.

Posted by Eric E. Johnson on July 12, 2011 at 04:36 PM in Science | Permalink | Comments (3) | TrackBack

Judges: Ask not what legal academics can do for you, but what you can do for legal academia!

Apropos Chief Justice Roberts' kvetching about the irrelevance of legal scholarship not long ago, y'all might be interested in this post I received from a prawf at Harvard Law School. Use the comments to guess who wrote it.

The Growing Disjunction between Legal Scholarship and Judicial Practice:

A Profession in Crisis?

Not so long ago, legal scholars and practicing judges had a healthy and mutually beneficial professional relationship.  Indeed, there was a time when academics and judges saw themselves as part of a common enterprise devoted to the understanding and improvement of law.  Over the last generation, this has changed profoundly.  Unfortunately, the last several decades have witnessed the emergence of a large and ever-widening disjunction between legal scholarship and judicial practice.  It is fair to say that this disjunction has reached crisis proportions.  Of course, there are those who, either out of complacency or personal investment in the existing system, do not see this growing disjunction as a serious problem.  But it is a serious problem, and unless we honestly recognize it as such and take steps to fix it, the productive and symbiotic relationship between legal academics and practicing judges may break down completely.

That a disjunction between legal scholarship and judicial practice exists is self-evident.  If you leaf through any volume of the U.S. Reports or the Federal Reporter, you will hardly ever find any judicial opinions of the slightest use to legal scholars.  Most published judicial opinions are on obscure, mundane, and basically uninteresting topics like whether a dredge counts as a “seagoing vessel,” or whether some bankrupt coal company can unload its pension obligations on a successor, or whether the admission of some piece of meaningless evidence in a trivial case was properly excluded under an exception to an exception to the hearsay rule.  Even when judges do take on issues that are relevant to academic practice, their opinions are typically written in such a way that makes them unhelpful for legal scholarship.  Indeed, most academics – who are working to better understand and predict the practical consequences of legal institutions for human welfare, to elucidate how the law operates and evolves as a social institution situated in a particular historical context, to delve deeply into the moral and ethical dimensions of legal decision-making, and indeed to better understand the concept of law itself – will find little to help them in the turgid, arcane, and essentially irrelevant discussions in most published judicial opinions.  In fact, I have many colleagues in the legal academy who no longer even bother to read judicial opinions, they have become so useless for serious legal scholarship.

Things have gotten so bad that it’s not clear that anyone reads most judicial opinions these days, except for other judges. 

When judges write only for one another, rather than for a broader audience of legal academics, the practice of judging threatens to become insular, self-indulgent, and intellectually irrelevant.  Of course, judges may still be performing a useful function, in that they can help resolve mundane, or very occasionally consequential, legal disputes.  So I suppose the increasing insularity of the judicial community may not matter if the only role of the judge is to be a kind of bureaucratic functionary.  But many of us subscribe to the old idealistic notion that judging can be something more than that – that judges can contribute, in a very real way, to the scholarly enterprise (though admittedly as junior partners).  In order to do that, however, judges need to stop writing just for other judges, and to start writing in a way that their opinions will be useful to academics.


In order to figure out what to do about the growing disjunction between the legal academy and the bench, we must understand the reasons this disjunction exists.  While it is hard to give a definitive explanation (and there are probably many causes), a few possibilities stand out.  One is that these days fewer and fewer judges join the bench with serious academic experience.  In days gone by, a larger fraction of judges had spent significant time in academic practice (not just one or two summers as a research assistant) before becoming judges, and as a result these judges had both better academic training and a greater sensitivity to the needs and interests of professional scholars.  These days, however, most judges are much likely to have backgrounds as practicing lawyers rather than as academics.  This is a problem.  Those who are responsible for appointing and promoting judges should give prospective candidates much more credit for serious academic experience than they currently do.  Yet today – hard as this is to believe – there seems to be some discrimination against judicial candidates with serious academic credentials.  If we are serious about narrowing the gap between legal scholarship and judicial practice, the thumb should be on the other side of the scale: we should be willing to appoint judges with meaningful academic experience, even if they don’t have all the conventional hallmarks of achievement as practicing lawyers.


A second explanation for recent trends may have to do with the fact that judicial practice these days places less and less emphasis on “interdisciplinary” judicial reasoning than it did in earlier times, when judges would routinely draw on ideas from moral philosophy, history, and social science when making their decisions.  As judicial decisions have become ever more doctrine-oriented, they have had less and less relevance to legal scholarship.  This may have less to do with any essential requirements of judicial practice, though, and more to do with the current preferences and proclivities of judges, as well as the people who hire and promote them.


These two explanations may both be manifestations of a larger, and troubling, cultural trend in the judiciary.  Most judges do not self-identify as scholars, but rather as legal practitioners.  Indeed, even those judges with serious academic abilities consider themselves judges first, and only scholars by happenstance.  Moreover, even those judges who do have an interest in writing opinions that are useful to legal academics – opinions that engage with serious intellectual problems using rigorous research methods – face daunting social and professional pressure not to do so.  I gather that some judges will quietly complain to friends and colleagues that they are worried that their prestige and chances of career advancement may be harmed if they are seen as “too academic” or “not practical and doctrinal enough.”  Changing a culture is hard, but doing so may be necessary if the current crisis is to be redressed.


Of course, not everyone agrees that there is really such a crisis.  “So legal academics don’t find much useful in published judicial opinions,” these skeptics say, “So what?”  While some of the skeptics take the obviously untenable position that judges and legal academics have fundamentally different jobs (so that it would be unfair to judge one profession by how much it is helping the other profession do its job), a few of the skeptics do raise some objections that are worth taking seriously.


First, some of the skeptics assert that it is wrong to blame the judges for their failure to write for an academic audience, because the judges rightly believe that academics do not really care what judges think.  Those holding this view often lament that the legal academy is so politicized – with scholars determined to reach particular preferred conclusions – that legal academics will at best selectively quote only those judicial opinions that support the academics’ preconceived notions, rather than really engaging deeply with judicial opinions that might argue cogently for a contrary position.  On this view, the disjunction between legal scholarship and judicial practice is indeed a problem, but the fault lies with the academics for not being willing to listen, rather than with the judges.  There may be something to this, but most academics I know would be thrilled to read a really good judicial opinion that engaged directly and intelligently with their latest research project.  It seems to me that the real problem is that such opinions are so rare.


Another skeptical objection is that academics do not really need judicial assistance these days in the same way that they might have in earlier generations.  After all, legal academics have access to advanced computer search engines (including Lexis and Westlaw), as well as paid research assistants and professional support staffs (much as judges have law clerks and similar administrative and research support).  These skeptics would assert that academics can do their own research, and it’s a sign of narcissism or laziness when scholars complain that the judges aren’t doing enough to help the scholars do their jobs.  This is profoundly unfair to legal academics, and it also reflects a fundamental misunderstanding of the role of the judge, which is to contribute useful material for academic progress.


In sum, this short comment is really a plea from a representative of the legal academy to the bench: You have the potential to make a real contribution to a vital social enterprise – the advancement of human knowledge about the nature, purposes, and effects of law.  This potential has been realized in the past, and can be again if you are willing to make the effort.  Resist the temptation to retreat into the comfortable cocoon of writing only for other judges and practicing lawyers, as this will eventually lead to the total irrelevance of the judiciary to the scholarly enterprise.  Rather, you should strive to write opinions in a way that will inform, enlighten, and – yes – even influence practicing legal academics.


Posted by Administrators on July 12, 2011 at 03:45 PM in Article Spotlight, Blogging, Constitutional thoughts, Current Affairs, Legal Theory, Life of Law Schools | Permalink | Comments (7) | TrackBack

The Sesame Street Effect

I have experimented in recent years with giving feedback to my students in my large, first-year class during the academic year. I have done this primarily by giving them the opportunity, two or three times during the semester, to do a practice exam question. They can hand this in to me and I mark it up with my comments and corrections, but I do not give any sort of grade. I also agree to meet with any student who seeks me out to discuss it. My thinking is that it would be helpful for students not only to get a sense of how they are doing in terms of the substance of the course, but also to have an opportunity to practice and get feedback on their exam-writing skills. I make it voluntary, however, on the assumptions that 1) it would be very onerous to review in detail 80 such answers at two or three points in the semester, especially when 2) not all students would have the time or the inclination to put any real effort into the exercise if it were mandatory but ungraded, and 3) some students don't really need the practice anyway.

I have found, however, that this strategy creates what I call a "Sesame Street effect." It is my understanding that the idea behind Sesame Street at its inception was to create an opportunity for children who did not have access to a preschool program to still get some of the benefits and to learn some early preschool material through watching TV at home, preferably with a parent/caregiver. As it turns out, I gather, the children who benefitted most from Sesame Street were affluent children who were already going to preschool, and then getting further enrichment by also watching the program (often with a parent or caregiver). The children who didn't have access to preschool often also did not watch the program, or they didn't get as much benefit from it as they could because they weren't able to watch it with a parent or caregiver. In other words, metaphorically and no doubt literally as well, the rich got richer and the poor got poorer. 

I don't intend to compare law students to preschoolers, but I do find that this effect holds to some extent when I offer voluntary feedback opportunities during the semester. The students who end up performing very well in the class often take advantage of these opportunities, whereas I rarely receive optional papers from the students who performed the worst. One possibility, of course, is that the feedback I give them is particularly helpful, and that's why those students perform well, but I doubt that very much - the high performers usually submit very good papers for the practice exercise. Instead, I suspect that the students who ultimately perform worse are overwhelmed, pressed for time, feeling like they don't know the material well enough to answer a practice question, and/or not prioritizing this particular class, and that's why they don't take the opportunity that is offered to them, and that they probably know would benefit them.

Does anyone have any thoughts on how to minimize the Sesame Street effect, without making these exercises mandatory (and graded)?


Posted by Jessie Hill on July 12, 2011 at 10:48 AM | Permalink | Comments (15) | TrackBack

Monday, July 11, 2011

Something new under the sun: Actors for hire to read depositions

ActorsatLaw This was news to me. But it is an ingenious idea.  Hire a professional actor to read a deposition instead of some law office staffer. The actor performs the role of the deponent in character. More interesting. Attention holding. There is a local production company (Actors at Law) here in Miami that specializes in casting readers.

I do wonder -- comments are welcome -- what evidentiary and procedural limits and objections might apply.

Thomas E. Baker

Posted by Thomas Baker on July 11, 2011 at 11:27 AM | Permalink | Comments (5) | TrackBack

TNR Online Review of The Agnostic Age

Here is a review of my book The Agnostic Age in The New Republic online.  Unlike the critical review left by a reader on Amazon, it actually discusses my book.  I should add that it was written by a friend, Marc DeGirolami, so you're welcome to discount its words of praise.  As it turns out, however, everything it has to say is spot-on, except maybe for the critical parts.  Like everything Marc writes, it's well-written, enjoyable to read, and perceptive.  Read it!  (And, it goes without saying, please buy my book.)

Posted by Paul Horwitz on July 11, 2011 at 07:34 AM in Paul Horwitz | Permalink | Comments (6) | TrackBack

Sunday, July 10, 2011

"Ausfahrt" Moments in Budapest

IMG_0176 I arrived yesterday in Budapest (left*) to teach U.S. Securities Regulation for two weeks in our LL.M. in U.S. and Global Business at the Eotvos Lorand Faculty of Law here.  I was here in 2009, but I taught every day from 2:30-4:3o p.m.  As my colleague here this year Gabe Teninbaum put it aptly for himself, I have a hard time beginning my personal day until my professional one is over, so I was not much of a tourist last time.  I'm teaching the early morning session this time (I did a better job negotiating), so I intend experiencing more of the city this time. 

The big challenge in Hungary is Hungarian, which bears only marginal relationships to either Romance or Slavic languages.  I studied Spanish for four years in high school, took a year of college Russian, and did enough business around the world to be polite in a lot of languages.  Cognates are rare.  ("Utca" is street versus "ulitsa" in Russian, for example.) If you know even basic tourist phrases in Hungary, you are perceived as something even more than polite.  "Köszönöm" (keh SIN em) is "thank you."  There was a whiskey seller around the corner, and I said "köszönöm" as I was leaving with my two bottles of palinka, and she said, "oh, do you speak Hungarian?"

But I like languages, and figuring out words here by where they continue to appear (e.g., "bolt" is store; "konyvesbolt" is bookstore; "szabo" is tailor).  Survival words are "csapolt sör:"  draught beer.  But I still make what I refer to as "Ausfahrt" mistakes.  This comes from when I was in business, and we were in a cab on the autobahn from the airport in Munich, and one of my fellow Americans observed, "there sure are a lot of cities named Ausfahrt in this country."  Mine here last time was realizing that all the souvenir shops in Budapest weren't owned by a fellow named Ajandek.

*From my iPhone on the St. Gellert hill.  Pest is on the right bank, Buda is on the right.  The bridge in the foreground is the famous Szechenyi Chain Bridge (Lanchid).

Posted by Jeff Lipshaw on July 10, 2011 at 02:48 PM | Permalink | Comments (0) | TrackBack

Enjoying my day of rest

Greetings from Berlin, where I am prawfing this summer.  Sundays here are very quiet, thanks to the Ladenschlussgesetz, the laws that keep most businesses closed on Sundays.  Coming from New York, where I am accustomed to being able to acquire just about anything at any hour of any day, these rules always take a bit of adjustment on my part.

The store closing laws in Germany vary from state to state.  All states have exceptions for pharmacies, gas stations, restaurants, and stores at train stations and airports, and Berlin (which is a state as well as a city) has some of the more relxed store closing laws, allowing stores to stay open six days a week, 24 hours a day.  Other states have more restricted hours during weekdays and on Saturdays, but Sunday has remained closed.  The German Constitutional Court ruled in 2004 that Sundays are a day of rest, and that states are not free to expand store openings beyond the federal laws governing business closings on Sundays.

This all makes for Sundays are are lovely, quiet, and peaceful.  

I always look forward to a day devoid of shopping and working mania and knowing that most other people are doing so as well.  I remember similar feelings about Saturdays in Israel, when life is even quieter (especially in less secular places such as Jersusalem) since the business closings are accompanied by a lack of cars on the streets and mobile phones glued to people's ears.  Inevitably, at some point during my stay, I find myself wishing that we could force a collective day of rest upon ourselves in the U.S.  I could try to do it on my own, I tell myself, but it's just so much easier when all of society is resting along with you!

But these laws are not without costs, not the least of which are the costs of shutting down a large sector of the economy for one day per week.  Although I enjoy the day of rest, I am usually here on vacation, as a student, or writing, so it's not difficult for me to get my shopping and business done during weekday hours.  People who work "real" jobs, particularly women with children, can find that their evenings and Saturdays become particularly frantic as they scramble to get the shopping and errands done that can't be accomplished on Sundays.  

When I find myself longing for a legislated day of rest, I remind myself of when I lived in Lower Saxony in 2001, stores were only open past 6:00 PM on Thursday nights and closed at 2:00 PM on Sundays.  As you can imagine, getting groceries after work hours on Thursdays was a nightmare, and Saturdays were actually worse than a Sunday at the Brooklyn Trader Joe's.

For now I will enjoy the quiet, and try to bring it back with me to New York weekends.  I'm pretty sure I'll make it through about three hours on a Sunday before I realize that I need to buy bread for a peaceful Sunday picnic...


Posted by Robin Effron on July 10, 2011 at 09:44 AM | Permalink | Comments (1) | TrackBack

Friday, July 08, 2011

Injunction Ruling Against NFL Lockout Overturned

The opinion is here.  The Eighth Circuit rescinded the district court's lockout based solely on the Norris-LaGuardia Act.  As to the other arguments, the majority said:

Given our conclusion that the preliminary injunction did not conform to the provisions of the Norris-LaGuardia Act, we need not reach the other points raised by the League on appeal. In particular, we express no view on whether the League’s nonstatutory labor exemption from the antitrust laws continues after the union’s disclaimer. The parties agree that the Act’s restrictions on equitable relief are not necessarily coextensive with the substantive rules of antitrust law, and we reach our decision on that understanding. 

I think this narrow holding preserves the players' longer-term arguments, as I discussed in this earlier post.  This decision only dissolves the injunction.  As I said at the time:

Let's say the court holds that Norris-LaGuardia prohibits the injunction.  Well, that only removes the injunction against the lockout; it does not mean that the NFL won't ultimately be liable for antitrust violations.  In fact, Judge Benton seemed to indicate that antitrust damages would continue to accrue even if the lockout could not be enjoined under the NLA. 

Perhaps these still-open possibilities are pushing the parties to settle.  The named players in the suit may want to blow up the existing system, but it's not clear to me that the lower-paid players want that.  And it would likely take at least a year, and likely two or three, for the antitrust case to render the league crippled from a massive antitrust award.  So the two sides seem to be stepping away from the precipice. 

The fact that the NFL is negotiating at all, however, indicates to me that its lockout strategy was not as effective as predicted.  The typical lockout strategy is to lock out and then wait until workers to come crawling back, after they've missed a big chunk of their salaries.  I don't know how things will end up, but a deal should come soon.  And I expect that the final deal will be much more favorable to the players than most folks would have predicted six months ago.

One final question: why isn't the NBPA pursuing this strategy as well?

Posted by Matt Bodie on July 8, 2011 at 02:43 PM in Corporate, Current Affairs, Sports, Workplace Law | Permalink | Comments (2) | TrackBack

Banning Brises and Baby Botox

(I apologize if I've offended anyone with the flip tone of this title --I couldn't resist the alliteration--but I suspect I'll offend even more with what I'm about to suggest.) Those of you who follow these things may have heard of the recent attempt of the city of San Francisco to ban circumcision; perhaps fewer of you have heard the recent news stories about Kerry Campbell, the mother who has openly acknowledged (and then denied) injecting her eight-year-old daughter with Botox in order to improve her chances in the cut-throat world of child beauty pageants. The San Francisco circumcision law has apparently been challenged, but it sounds like the challenge is primarily on the grounds that the city lacks authority under state law to pass such a measure.

To me, these two stories raise one common question: what are the limits on parents' rights to medically and surgically alter their children's bodies for nontherapeutic reasons, and how may the state intervene to enforce such limits? 

Would anyone blink an eye if states banned Botox for minors, even those who have parental consent? Then what is so troubling about the circumcision ban? Let's put to one side, for now, claims that the anti-circumcision campaign is motivated by anti-semitism. It certainly appears that some of the publicity in support of it is anti-semitic, and I am in complete agreement that this fact would raise serious constitutional issues.

But if we were to assume a non-discriminatory motive, I don't see the San Francisco law as being obviously aimed at Jews or any other religion. Doctors routinely circumcise newborns at the parents' request, and I doubt that anywhere near a majority of those circumcisions are driven by religious reasons, as opposed to cultural reasons, custom, and/or perceived health benefits. At the same time, there appears to be little evidence that there is actually any significant medical benefit to be derived from the procedure for most children (except reducing likelihood of transmitting HIV).
So, do the constitutional rights of parents to control their children include the right of parents to cut their children's genitals, with virtually no apparent medical benefit? And if so, why don't such rights include injecting them with Botox for nontherapeutic reasons? I realize that the intrusion represented by circumcision is relatively minimal, but it is still a medical procedure performed on a child for, in many cases, essentially cosmetic reasons. Thoughts?

Posted by Jessie Hill on July 8, 2011 at 09:38 AM | Permalink | Comments (18) | TrackBack

Nice Work if You Can Get It

I was somewhat fascinated by Randy Barnett's post yesterday touting a short propaganda film from The Fund for American Studies that explains how capitalism makes everyone rich.  One example, he writes about the film, is that rich people serve as early adopters of new technologies like the Internet, thus lowering their costs for everyone else.  (I haven't seen the movie yet, but I trust it mentions that vast amount of public money that went into the development of the Internet.)  My view on this would only be worth a comment on the post, but since Randy has disabled comments I must perforce post here instead.  

The post was so complimentary that I was driven to look up the Fund and its Form 990, only to discover that its president, Roger Ream, has one of those classic Washington career paths that involves working for Congress, then for various funds, foundations, and think tanks, then a brief stint back in Congress and then right back to the nonprofit sector.  I'm sure it doesn't make the film any more or less correct.  But I still find a certain amusement in being lectured on the glories of the market by someone who, as far as his bio makes out, has never worked a day in the private sector in his life!  Now, as a pro-capitalist academic, I can hardly criticize him; each of us, it seems, enjoys lecturing others on markets and competition while doing our level best to avoid both.  But, as I say, I can still find it amusing.  Although I do envy him his salary, which is around $250,000.  Clearly I need to find a richer group of donors to flatter.

Posted by Paul Horwitz on July 8, 2011 at 06:25 AM in Paul Horwitz | Permalink | Comments (16) | TrackBack

Thursday, July 07, 2011

How Can We Fix Personal Jurisdiction?

The Supreme Court heard two personal jurisdiction cases this term, Goodyear (general jurisdiction) and Nicastro (specific jurisdiction).  The Nicastro case could have resolved an open question in civil procedure, namely whether defendants in products liability cases can be subject to personal jurisdiction based on the "stream of commerce" test, whereby placing an article in the stream of commerce and knowing that it might end up in the forum state is sufficient for personal jurisdiction, or whether defendants should be subject to personal jurisdiction under the "stream of commerce plus" test whereby the defendant also must have targeted the forum or purposefully availed itself of the forum state.  Each of these theories commanded a four Justice plurality in the Asahi case.

Alas, the Supreme Court could not bring itself to resolve this question in Nicastro.  In a 4-2-3 decision, the court found that New Jersey could not exercise jurisdiction over a foreign company which sold machines to a U.S. distributor (the distributor then sold the machines, and the machine which caused plaintiff's injury ended up in New Jersey).  A four justice plurality led by Justice Kennedy basically endorsed the "stream of commerce plus" test, while the three dissenters would have found jurisdiction based on Justice Brennan's stream of commerce theory.  

But Justices Breyer and Alito held resolution at bay, agreeing that NJ lacked jurisdiction, but refusing to sign onto the plurality's reasoning.  The Breyer opinion suggests that this case does not reflect the modern realities of commerce and therefore is a poor vehicle to make broad conclusions and pronouncements about jurisidiction.  

There is much to be said about the merits of each position and the reasoning in the opinions in this case, but I'd like to use this post to raise a small structrual question:  In the absence of a clear statement from the Court about personal jurisdiction, is there any way to move forward with clearer jurisdictional rules?  Should we expect more from the Court in this area of law?

The outer boundaries on personal jurisdiction come from the due process clauses in the Fifth and Fourteenth amendments to the Constitution.  They are not rules that were drafted by Congress, or by another legislative or regulatory body.  Does this mean that we are stuck with uncertainty until the Court sees fit to resolve the issue?  Maybe, and maybe not.  Congress and/or the drafters of the Federal Rules of Civil Procedure could expand the possibility of nationwide service of process which is currently available in federal question cases in which the defendant is not subject to jurisdiction in any one forum.  In other words, it cover situations in which the "aggregate" contacts with the U.S. might be sufficient when contacts with individual states are not.  Perhaps this rule could be expanded to include cases brought under diversity jurisdiction.  This might be possible under the analysis that it is the "sovereign" (here, the U.S.) that must have power over the defendant, but such a rule would noticeably leave state courts out of the solution.  Furthermore, interpreting such a rule would probably land us rather quickly back to the central due process questions from Asahi and Nicastro anyhow.

So, given that a solution to this problem is almost entirely in the hands of the Court, should we have expected better of them in terms of giving an answer?  I am skeptical of Justice Breyer's search for the "better" case in which to announce a rule.  If there is one reality of modern commerce, it is probably that transactions are so intricate and diverse in nature, and that there is not a prototypical case.  District courts will regularly confront cases in which a product ends up in a forum state with the help of a distributor and without the help of the Internet or e-commerce, and they would benefit from clarity in this area.  Yes, each case will look a little different, but that is what has bedeviled personal jurisdiction from its modern International Shoe origins.  It would not have been impossible to give an answer in Nicastro and then further clarify it in later cases in which e-commerce raises genuinely unique questions.

Each opinion stresses the primacy of the due process analysis in personal jurisdiction cases.  But, due process is at the heart of every case precisely because personal jurisdiction must be present in each case.  In an area of law which touches virtually every single civil case that is filed, is it not itself a problem for the Court to deprive us of answers?  

Posted by Robin Effron on July 7, 2011 at 05:55 PM in Civil Procedure | Permalink | Comments (4) | TrackBack

Can the President just print money to pay the debt?

Following on my last post, a commentator raised an argument that has also been making the rounds (pioneered by conservative law professor Larry Rosenthal).  The argument is that when Congress appropriates more spending than taxes, it necessarily authorizes borrowing to cover the difference.  And since the most recent appropriation statute came in April, this later statute would supersede the debt limit statute.

This argument is not a section 4 constitutional argument, but rather a statutory one.  It does not say that the President can ignore the debt limit in defiance of Congress, but that Congress has already raised it for him.  While the argument is therefore less extreme and less devastating in its consequences, it seems equally implausible to me.  When Congress appropriates more spending than taxes, there is no reason the difference must be covered by borrowing.  More directly, the difference can simply be covered by printing money, which of course Congress has the power to do.  When Congress is entirely silent between these two choices, I don't see any reason to say that they necessarily chose borrowing over printing.

Of course, printing money to cover a deficit is a really, really bad idea from an economic perspective.  But that is an economic argument, not a statutory interpretation one.

[Update: I have been informed that Professor Rosenthal is a former clerk for Justice Stevens, and that his general views cannot be reliably characterized as conservative.]

Posted by Tun-Jen Chiang on July 7, 2011 at 05:25 PM | Permalink | Comments (13) | TrackBack

Does the President have the power to seize property to pay the debt?

The crux of the Fourteenth Amendment argument these days seems to be that, because Section 4 makes default unconstitutional, the President has his unfettered pick of options to avoid default, including by issuing new debt.

But if we are talking about doing something unconstitutional anyway, like borrowing money without the consent of Congress, why not go the whole hog?  The president can just send soldiers to seize money from the nearest bank in downtown DC.  Yeah that is a flat out violation of the Fifth Amendment.  But so what?  If Section 4 of the Fourteenth Amendment overrides Article I, it overrides the Fifth Amendment, too.

[Update: This is what I get for not reading the NYT since they started the paywall.  I now see that Laurence Tribe made almost exactly the same argument on the same day I posted this.]

Posted by Tun-Jen Chiang on July 7, 2011 at 02:05 PM | Permalink | Comments (9) | TrackBack

Wal-Mart v. Dukes and the Heterogeneity Problem: Part 2 of 2 (Implications of the Court's Emphasis on "Dissimilarity")

My prior post discussing Wal-Mart v. Dukes introduced three terms on which this post builds.  First, the "Homogeneity Problem" in class actions arises because class members usually are not identically situated in all material respects, which complicates collective resolution of their claims.  Second, the "Aggregability" inquiry determines the extent of heterogeneity within the class by examining the record and considering whether applicable substantive law tolerates aggregate resolution of particular questions.  Third, the "Resolvability" inquiry determines the significance of heterogeneity by considering whether the presence of non-aggregable questions within a proposed class action precludes collective resolution of even the aggregable claims.  I contended that the holding in Wal-Mart primarily addressed Aggregability, but may have signaled a new approach to Resolvability.

This post considers how Wal-Mart's seemingly oblique references to Resolvability might make certification more difficult to obtain in future cases, even if those cases do not implicate the specific rule that the Wal-Mart opinions interpreted.

Resolvability is usually an issue in cases involving certification under Rule 23(b)(3) of class actions seeking damages.  When the class seeks an injunction, Rule 23(b)(2) applies, and Resolvability is less salient due to the relative simplicity of adjudicating requests for injunctive rather than monetary remedies.  (Prior to Wal-Mart, plaintiffs could complicate Rule 23(b)(2) cases by attempting to piggyback monetary claims onto injunction claims, but a unanimous portion of the Wal-Mart holding made that sort of remedial maneuvering more difficult to accomplish.)

Wal-Mart was a 23(b)(2) case rather than a 23(b)(3) case, so the opinion did not directly address Resolvability in the 23(b)(3) context.  Indeed, in a footnote the Court professed not to address the "applicability" of Rule 23(b)(3) (which the dissent noted might be a live issue on remand).  Yet some language in the opinions seems relevant to the Heterogeneity Problem in 23(b)(3) cases.

The key words in the opinion are "dissimilarity" and "resolution of the litigation," which appeared when the Court, quoting an article by Richard Nagareda, stated: "What matters to class certification . . . is not the raising of common 'questions'—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.  Dissimilarities within the proposed class are what have the potential to impede the generation of common answers."  Slip op. at 9-10 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).

The phrase "resolution of the litigation" is significant because it clarifies the object of the Resolvability inquiry. What needs to be resolved is not an isolated issue or question, but rather the entire "litigation."  A case can therefore feature many important aggregable issues and still not be resolvable as a class action, depending on the nature of lingering individualized questions.

The Court's reference to "dissimilarity" is significant for several reasons. First, the word is novel.  Until Wal-Mart, the Court had never used the word "dissimilarity" (or its variants) in the context of analyzing class cohesion.  Lawyers are justifiably attuned to new terminology addressing old problems.  "Dissimilarity" may be the sort of disruptive semantic interjection in the 23(b)(3) context that "plausibility" was in the pleading context, although the consequences will not be clear until subsequent opinions revisit the issue (just as Iqbal clarified Twombly's implications).

Second, "dissimilarity" has interesting origins that may inform its meaning.  The article by Richard Nagareda from which the Court extracted the "dissimilarities" quote addressed the "confusion" (p. 130) that has arisen because of how Rule 23(b)(3)'s text seems to fixate on "similarity at some unspecified level of generality" (p. 131).  The article went on (at pp. 131-32) to advocate an approach to the predominance requirement focused more directly on salient differences between class members' claims.  Likewise, in an article discussing resolvability, I proposed reorienting certification analysis away from its emphasis on common questions, arguing that Rule 23(b)(3) "conflates the similarity and dissimilarity inquiries into a single balancing test, thus obscuring the practical and theoretical importance of dissimilarity standing alone."  Allan Erbsen, From "Predominance" to "Resolvability," 58 Vand. L. Rev. 995, 1005 (2005).  The "dissimilarity" language that the majority and dissent seized upon thus resonates with critiques of contemporary interpretations of Rule 23(b)(3) that generated recommendations for rethinking how certification standards should operate.

Third, Justice Ginsburg seems to have recognized that "dissimilarity" is a loaded word.  Her opinion refers to the "'dissimilarities' inquiry," "a dissimilarities analysis," "The 'dissimilarities' approach," and "a 'dissimilarities' notion."  This expansive language suggests that the word "dissimilarities" is a placeholder for a broader (albeit unspecified) test, perhaps informed by the origins noted above.  Of course, Justice Ginsburg may have overemphasized the majority's use of the term for rhetorical effect.  But if so one might expect the majority to have denied that its new word signaled a new "inquiry, analysis, approach, or notion."  Yet the majority was silent on this point.

Fourth, both the majority and Justice Ginsburg seemed to agree that focusing on dissimilarities is appropriate in Rule 23(b)(3) cases.  The majority did so by favorably quoting Professor Nagareda and by not denying (as the dissent correctly contended) that his discussion of dissimilarities arose in the context of Rule 23(b)(3).  Justice Ginsburg apparently agreed when she observed that: "The Court errs in importing a 'dissimilarities' notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry."  If "suited" means "appropriate for" (rather than the more neutral "designed for"), then Justice Ginsburg seems to embrace a "dissimilarities" test of some sort.  Elsewhere in her opinion Justice Ginsburg observed that the effect of such a test is to "train [judicial] attention on what distinguishes individual class members, rather than on what unites them."  She clearly believed that this focus was inappropriate in a 23(b)(2) case, but arguably endorsed it (or left the door open for endorsing it) in 23(b)(3) cases.

The Court's novel use of the loaded term "dissimilarities" therefore seems significant.  Going forward, defense lawyers have an incentive to ask if the "dissimilarities inquiry" heralds a more restrictive approach to Resolvability that embraces academic critiques of the predominance test.  The Court may have either signaled such a restrictive approach, or given lower courts an opportunity to experiment.  Either way, the certification inquiry in proposed class actions seeking damages may begin to focus more directly on the consequences of heterogeneity within the class.

-Allan Erbsen

Posted by Allan Erbsen on July 7, 2011 at 11:46 AM in Civil Procedure | Permalink | Comments (0) | TrackBack

The Centenary of the Modern Federal Trial Courts

This press release from the Federal Judicial Center will be of interest to all federal court geeks:

Landmark Federal Court Legislation Marks 100-Year Anniversary
July 6, 2011

It could be said that the modern federal trial courts took shape 100 years ago this year, when Congress enacted the Judicial Code of 1911.

The law, which took effect January 1, 1912, did away with the dual trial court system established by the Judiciary Act of 1789. Under it, both district and circuit courts were authorized to hear trials, although the circuit courts served as the most important federal trial courts for more than a century.

The 1911 legislation abolished those circuit courts, and transferred their authority to the district courts under a system that featured only one type of trial court.

You can read more about this historic legislation on the Federal Judicial Center’s website.

Posted by Thomas Baker on July 7, 2011 at 10:10 AM | Permalink | Comments (0) | TrackBack

Wednesday, July 06, 2011

The Legality of Public Pension Reform

State pension systems have been in the news lately. For good reason: Novy-Marx and Rauh’s paper last year noted that the states themselves report unfunded liabilities for state pensions as totaling $1.2 trillion (p. 10).

But that number depends on a crucial assumption: that the pension systems’ assets will grow at about 8% per year indefinitely. If you make the safer assumption that assets will grow at the risk-free Treasury rate, the unfunded liabilities more than double to $2.49 trillion (p. 28). Either way, there’s a lot of money that states need to contribute to their pension systems over the next few decades.

Many states have been passing pension reform laws. (Handy and thorough summaries of both proposed and enacted legislation are available through the National Conference of State Legislatures.) In many cases, states merely change the pension terms applicable to newly hired employees. These changes are much easier to enact, given political realities, but they do nothing to remedy any financial shortfall until decades in the future.

A few states, however, have been enacting more ambitious legislation, touching not only current workers but even occasionally the benefits given to people who are retired right now. Colorado and Minnesota are prime examples: in both states, the legislatures reduced the cost-of-living adjustments that were being given to current retirees.

As might be expected, these states were promptly sued on the theory that changing the terms of pensions for existing retirees violates the Contracts Clause (and associated state constitutional provisions). But in both Colorado and Minnesota, plaintiffs recently lost.

The Colorado state judge held that “while Plaintiffs unarguably have a contractual right to their PERA pension itself,” in light of the long history of changes to the cost-of-living adjustment (or COLA), “they do not have a contractual right to the specific COLA formula in place at their respective retirement, for life without change.” The Minnesota judge went further, explaining that a court order guaranteeing a particular pension formula for life would strip “the legislature’s ability to respond to fiscal integrity concerns, which in turn would be an extraordinary expansion of the Contract Clauses of the United States and Minnesota Constitutions.” (The Minnesota judge also curiously referred several times to the plaintiffs’ burden to demonstrate unconstitutionality beyond a reasonable doubt, see pp. 2, 3, 14).

We’ll soon see what happens with the similar pension lawsuits pending in New Hampshire, Rhode Island, Florida, South Dakota, and Cincinnati. I suspect that whatever the merits of a Contracts Clause argument, few state judges will be willing to order large expenditures at a time when state budgets are in so much trouble.

Posted by Stuart Buck on July 6, 2011 at 12:39 PM | Permalink | Comments (0) | TrackBack

The Ethics of Being a Commentator

Today's NYT quoted Cheney Mason, one of the defense lawyers in the Casey Anthony case, who criticized commentators in the media: “I can tell you that my colleagues coast to coast and border to border have condemned this whole process of lawyers getting on television to talk about cases they don’t know a damn thing about.”

Are there ethical restraints on lawyers and law professors who comment on the controversies of the day?  Should there be?  What would be the appropriate ethical restraints?  How should they be enforced?  These are all good questions, made timely by today's headlines but relevant to past and future "trials of the century" and other important public controversies.

Our colleagues, Erwin Chemerinsky and Laurie Levenson, have explored these questions in a series of thoughtful articles culminating in The Ethics of Being a Commentator III, 50 Mercer L. Rev. 737 (1999).  A PDF is attached here: 50 Mercer L Rev 737.

These articles are must reading for any lawyer or law professor who is regularly appearing in the media to comment on the legal issues of the day.

Thomas E. Baker

Posted by Thomas Baker on July 6, 2011 at 10:59 AM | Permalink | Comments (0) | TrackBack

Wal-Mart v. Dukes and the Heterogeneity Problem: Part I (the Aggregability/Resolvability Distinction)

Thanks to Dan for inviting me to be a July guest.  I will first discuss the Supreme Court's recent decision in Wal-Mart v. Dukes reversing certification of a nationwide class alleging that Wal-Mart violated Title VII by discriminating on the basis of sex in pay and promotions.  The decision has already received ample and insightful academic scrutiny, including from Sergio Campos on this blog.  I will try to avoid redundancy by focusing on aspects of what I call the 'Heterogeneity Problem' in collective adjudication.  In particular, this post highlights two distinct strands of the problem—Aggregability and Resolvability—that courts and commentators often blur, and that are helpful in assessing Wal-Mart's implications.  I will also explore a subtle dimension of the Court's analysis of "dissimilarity" and class cohesion that has largely escaped notice, and that may influence how courts apply Rule 23 in future cases.  The scope of Rule 23 in turn affects the judiciary's role in enforcing a wide range of private entitlements in fields such as securities law, civil rights, mass torts, and consumer protection.

A central problem in all proposed or certified class actions involves identifying and coping with heterogeneity among the class.  At a high level of abstraction, classes often seem materially homogenous.  The carefully worded class definition might appear to encompass a group in which each member suffered an identical injury caused by the same actor in the same manner that creates equivalent entitlements to a remedy.  If scrutiny confirms that homogeneity is present, then class certification will generally be appropriate: the substantial economy of scale that collective adjudication of identical claims provides often justifies the cost and complications of group litigation.

The Heterogeneity Problem arises because substantive legal rules frequently require detailed inquiries that reduce the operational level of abstraction and expose differences between ostensibly homogenous class members.

For example, individual people who meet the class definition might have behaved differently, encountered different types of conduct by the defendant, suffered different kinds or degrees of injury, or possessed different levels of justification for their conduct in light of their knowledge and circumstances.  Alternatively, the class may define similarly situated people, but identifying those people might require individualized inquiries.  Consider a hypothetical class action against a pharmaceutical manufacturer alleging that drug X causes heart attacks in a subset of users. Assume that every victim of X-induced heart attacks has a valid claim under the applicable law, that victims of heart attacks caused by other factors do not have valid claims, that compelling evidence establishes who ingested the tightly controlled drug and which of them suffered heart attacks, but that evidence of causation is debatable in each case.  Now imagine two class definitions: (1) "all people who ingested Drug X" and (2) "all people who ingested Drug X and as a result suffered a heart attack."  The first definition encompasses people without valid claims, while everyone in the second class has a valid claim, yet is not easily identifiable.  Both definitions encounter essentially the same heterogeneity problem: distinguishing people with valid claims from those without valid claims requires an individualized inquiry.  Playing shell games with the class definition shuffles the heterogeneity problem around, but cannot make it disappear.

Coping with heterogeneity in class actions can be costly.  Heterogeneity may require holding numerous hearings, modifying otherwise applicable procedures to streamline litigation, prioritizing the interests of some class members at the expense of others, challenging the trier-of-fact's cognitive ability to distinguish dissimilar claims presented concurrently, or tolerating settlements that emerge more from the defendant's fear of a large judgment than acknowledgment of actual liability to all class members.  At some point, heterogeneity becomes impossible to manage in a single proceeding without either undue burden or sacrificing values that the judicial system deems sufficiently central to the enterprise of public adjudication.  Identifying that tipping point by defining the relevant values and determining their elasticity implicates interrelated concerns at the heart of Rule 23.  When heterogeneity is manageable, class actions can be costly but useful procedural tools for enforcing substantive rights; when heterogeneity is excessive, class actions are not viable.

Deciding when heterogeneity is excessive requires two distinct inquiries: determining when heterogeneity exists and determining how heterogeneity matters.  The first inquiry requires determining what class members allege and how they must prove their claims in light of the applicable substantive law.  The goal of this inquiry is to see how much the class really has in common.  This inquiry overlaps with assessment of claims on the merits, merging the pleading, certification, and summary judgment stages of litigation in awkward ways that Richard Nagareda addressed in an article on "Aggregate Proof" (which the Court cited in Wal-Mart).  See Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009).  I call this the Aggregability inquiry, as it requires considering when a court may provide the same answer to multiple iterations of similar questions raised by different people. The court must ask, in essence, whether issues or claims are aggregable based on the record and the governing law.  The second inquiry requires determining if courts can accommodate non-aggregable components of a case within a class action setting.  In prior work I have called this the "Resolvability" inquiry because it requires assessing whether individualized questions preclude final resolution of the entire case.  See Allan Erbsen, From "Predominance" to "Resolvability," 58 Vand. L. Rev. 995 (2005).

The distinction between Aggregability and Resolvability is useful in analyzing Wal-Mart.  The Court in Wal-Mart primarily addressed Aggregability, but may have laid the groundwork for significant changes in how lower courts address Resolvability.

In Wal-Mart, the Heterogeneity Problem arose because a large number of employees requested an injunction against allegedly discriminatory employment practices.  The plaintiffs sought to find commonality in the allegation that they were all victims of a tainted corporate culture that infected ostensibly decentralized decisionmaking.  But the Court disagreed, concluding that the plaintiffs had not identified a "general policy of discrimination" and therefore had not established even a single classwide common question that could justify certification under Rule 23(a)(2)'s "commonality" requirement.

The Court's holding primarily addresses Aggregability.  The majority concluded that the record revealed distinctions that the substantive law deemed meaningful.  This heterogeneity precluded the district court from providing identical answers to questions raised by different class members.  Commentators have extensively discussed this holding, often faulting the Court for not reading Title VII in a way that would vindicate its purposes.  Their argument generally posits that Title VII aspires to eradicate discrimination, that discrimination often manifests in subtly different ways as corporate culture permeates a decentralized corporate structure, and that effective statutory enforcement therefore requires providing remedies that look past variations in individual facts to the basic underlying problem.  Criticism of the Court's approach to rights and remedies cuts to the heart of the Aggregability problem, which entails deciding when substantive law should adapt to the procedural realities of the environment in which it operates.  The Wal-Mart holding is thus important for what it says about Title VII, and for what it implies about the Court's potentially stingy approach to Aggregability in other contexts.

Wal-Mart's Aggregability holding is controversial, but its Resolvability holding is not. Accepting the Aggregability holding (for the sake of argument) requires concluding that the case was not resolvable as a class action.  If the plaintiffs did not raise even one common question, then collective adjudication would serve little purpose in light of its costs.  The Resolvability problem is interesting only when some questions are common to the class, and some are not.  The common questions weigh in favor of certification, while the individualized questions weigh against certification.  At that point, courts must decide whether Rule 23 permits bundling the homogenous and heterogeneous aspects of the case into a single class proceeding (or cluster of proceedings).  Wal-Mart was thus an outlier case—a rare example of a purely heterogeneous class that nevertheless obtained certification (at least according to the Court's assessment of the record and applicable law, which I am not analyzing here).  The holding in Wal-Mart is thus not really "about" class actions as a procedural device so much as it is about how substantive law accommodates the available procedural methods for enforcing it.

However, Wal-Mart may say more about Resolvability than is apparent at first glance and that may generate future controversy.  In several instances, the Court referenced the concept of "dissimilarity" between class members as an obstacle to collective adjudication.  I will consider the significance of this language in a subsequent post.

-Allan Erbsen

Posted by Allan Erbsen on July 6, 2011 at 09:55 AM in Civil Procedure | Permalink | Comments (4) | TrackBack

A post about Casey Anthony? Seriously?

Thanks to Dan and the others for having me back. Having taken an extended Fourth-of-July holiday from my blogging responsibilities, I'm now delighted to be back, and I look forward to sharing a barrage of half-baked ideas, as usual.  

I can't resist making my first post about the Casey Anthony trial. (For those of you who have been living under a rock, this is the Florida murder trial of a young woman for allegedly killing her toddler daughter.) Not because I have been following the case or anxiously awaiting the verdict -- I haven't -- and not because I'm  an expert in criminal law -- I'm not. But I'm always amazed at the popular outrage that flows when such a closely-watched case, in which the media and popular opinion have already judged the defendant guilty, results in a not-guilty verdict (see, e.g., OJ Simpson).

Again, to be clear, I haven't followed this case and pretty much have no opinion about the outcome -- other than that the truth of the matter, whatever it is, is undeniably tragic. But what is underlying this popular outrage? After all, our criminal cases are decided by juries of ordinary people, (usually) nonlawyers, not elite technocrats in some ivory tower. If those individuals reached a not-guilty verdict after hearing all the evidence, how is it that so many people can be absolutely convinced they were wrong? Is it simply the case that it's easy to sit back and judge from in front of one's TV but not when another person's actual life and liberty are on the line? Or do they think that the defense lawyers played some dirty tricks? Or perhaps just that the jurors were unreasonable and therefore deeply mistaken? Anyone have any armchair psychologizing about this armchair judging?


Posted by Jessie Hill on July 6, 2011 at 09:37 AM | Permalink | Comments (5) | TrackBack

Congrats to Paul Caron

Paul Paul just posted his 20,000 post on the pioneering Tax Prof Blog* (perhaps one of the very few law blogs more pioneering than PrawfsBlawg).  Congratulations!

I hope he is more efficient than I.  It takes me about 45 minutes on average to do one of these.  At 20,000 of them, I would have spent 1.7 years of continuous blogging, without breaks for sleep, food, or the call of nature.

I'm also hoping he's got a nice gift in store for the 15,000,000th visitor (kind of like the 2,000,000th fan of the year at Comerica Park).  Maybe a framed and signed set of the old proposed regs to Section 704(c) of the Internal Revenue Code on the contribution of appreciated property and curative allocations?

*A Member of the Law Professor Blogs Network, where you can also find the incomparable Legal Profession Blog.

Posted by Jeff Lipshaw on July 6, 2011 at 07:24 AM | Permalink | Comments (1) | TrackBack

Another Quick Thought on Tenure Denial

Lyrissa's post on tenure denial elicited some interesting comments.  MS wrote: "there is a good argument that tenure denials should be higher in law school than in other departments because of the absence of PhDs or any other indicator of a successful academic career."  Brian wrote: "I would have thought the problem in the legal academy is far too few tenure denials, including (esp.) at the very top law schools, whose faculties (esp. Yale's) are notorious for the tenure mistakes who could not be appointed anywhere else," and noted that "the law teaching market has a very high rate of false negatives at the entry-level," so that "it would be surprising if it didn't have at least as high a rate of false positives."  And an anonymous commenter wrote, in a similar vein, "It seems the rate of false positives/negatives is a direct result of the way law schools hire, rather than tenure, their faculty."  

I thought it might be worth adding another note on why there might be false negatives in hiring, especially at the very top law schools, and why that trend might be diminishing.  All three comments seem linked to me.  The very top law schools once had a habit of hiring on the basis of what they saw as sheer intelligence, measured by a small number of factors, particularly a top performance at an elite law school and a Supreme Court clerkship.  A lot of that hiring happened off-market -- indeed, pre-market.  That is a high-risk, high-gain type of hiring decision.  Having been a law school superstar is an imperfect proxy for qualities that might distinguish an academic in the long term: a commitment to teaching and scholarship, an actual research agenda and the ability to get it down on paper, and so on.  Don't get me wrong: some of my best friends are former Supreme Court clerks, and of course some of those hires worked out splendidly, especially when legal scholarship was more doctrinally oriented and thus demonstrating the quality to be an outstanding young lawyer and clerking on the Court was a good indicator that someone could churn out high-quality doctrinal pieces.  But it also brings in people who are not necessarily committed to being legal scholars in the long run, or to doing something more than straight doctrinal work.

But now hiring, certainly at non-elite schools and also at the elite schools, relies on a larger set of proxies and predictors that are closer to MS's vision of Ph.D's in other disciplines: fellowships, VAPs, extensive pre-market publication records, and so on.  More people entering the market at every level have already demonstrated a willingness to give up other opportunities to work in the academy, have already worked extensively in the academy, and have a track record of scholarship that consists of more than just glorified case comments.  The proxies are getting more reliable.  There is still a degree of shallow credentialism out there, such that we can still expect false positives (and false negatives: to the extent that elite schools still look for a narrow range of elite credentials along the lines of a Supreme Court clerkship, they may ignore others who don't meet all those schools' credential requirements, but who end up writing their way up the food chain).  But on the whole I should think that the shift in proxies that even elite law schools look at in the hiring process is becoming more rational, and the quality and reliability of hiring decisions should go up.  (This is leaving aside the fact that the elite law schools are relying more on lateral than entry-level hiring these days.)  

That doesn't mean I think tenure decisions should be easy or automatic.  I don't.  But I do agree with "anonymous" that hiring and tenure are different things, and in theory a low rate of tenure denials might say less than a better system for hiring does.  (In theory, anyway.  In practice, it's still the case that legal academics lack a strong standard for evaluating work, and in any event often don't like to say no to their friends.)  



Posted by Paul Horwitz on July 6, 2011 at 07:20 AM in Paul Horwitz | Permalink | Comments (14) | TrackBack

A Guilty Pleasure for Writers

We all are subscribed to email services and updates.  Here I recommend one of my long time favorites: "Garner's Usage Tip of the Day" from Oxford Press -- here is the link to subscribe.  Try it and see if you like it -- if not, it is easy to unsubscribe.

Bryan Garner is a writing guru of the first rank. His tip of the day provides useful and interesting comments on good writing in general and legal writing in particular.  The tips are brief and include an interesting daily quotation on the art of writing. 

(Full and fair disclosure: I met Bryan when I was a member of the Standing Committee and we worked together on the project to redraft all the sets of federal rules of procedure in plain language.  Since then, I served on the Panel of Academic Contributors of "Black's Law Dictionary" and the Panel of Critical Readers of "Garner's Modern American Usage" -- both of which he edited.  My service was voluntary and I received no payment or royalties.)

Thomas E. Baker

Posted by Thomas Baker on July 6, 2011 at 07:00 AM | Permalink | Comments (3) | TrackBack


Larry Ribstein, with whom I'm privileged to co-author Unincorporated Business Entities 4th (2011 Cumulative Supplement forthcoming in hard copy and on Larry's webpage), has a brief post up at Truth on the Market entitled Being a Business Lawyer.  It links a neat commentary by Peter Mahler, who writes a blog called New York Business Divorce.  Larry's summary of Mahler's post:  "Bottom line:  you have to know not just law, but 'hand-holding,' 'your client’s business,' accounting and valuation, and 'the purposes and limitations of litigation.'  Of course this applies to all business lawyering."

In an essay I've just posted on SSRN entitled "Contract as Meaning," I've suggested this kind of practitioner is a "lawyer-theorist."   The essay will serve as the introduction to the issue of the Suffolk Law Review containing the papers from our recent symposium centered on Charles Fried’s iconic book, “Contract as Promise at 30: The Future of Contract Theory.”  Authors contributing to the issue will be Charles Fried, Randy Barnett, Gregory Klass, Barbara Fried, Jean Braucher, Richard Craswell, Juliet Kostritsky, Avery Katz, Daniel Markovits and Alan Schwartz, George Triantis, Curtis Bridgeman and John C.P. Goldberg, Nathan Oman, Henry Smith, and Roy Kreitner.  (Many of these papers are already posted on SSRN.)

I confess to substantial temerity in view of the intellectual horsepower and academic starpower of these and the other presenters and discussants (T.M. Scanlon, Seana Shiffrin, Carol Chomsky, Rachel Arnow-Richman, Lisa Bernstein, and Robert Scott).  Nevertheless I was inspired by the theoretical exchange on the philosophical justifications for the institution of contract law, and have presumed (gingerly, I hope) to reflect on theory itself as a practical as well as an academic undertaking, particularly for the kinds of transactional lawyers Larry Ribstein describes.

My capacious view of theoretical orientation, whether or not so conceived by the practitioner herself, is that it is fundamental to that practitioner making good judgments.  Theorizing—imposing coherent and correspondent conceptual order on events in the real world—is not as unrelated to the ordinary work of lawyers (and others) as some critics of legal academy would suggest.  The essay considers the role of meaning in contract theory; in other words, how both descriptive and normative theory, whether directed to the legal institution of contract or to other phenomena, are all ways of making sense of the human condition, and thus an essential part of what practicing “lawyers-theorists” do every day.  And to top it off, I try to illustrate the points with examples from my own practice experience as well as some of the plot twists in The Social Network.

The entire symposium (less the Q&A) is available on podcast at Suffolk iTunes

Posted by Jeff Lipshaw on July 6, 2011 at 06:57 AM | Permalink | Comments (0) | TrackBack

Tuesday, July 05, 2011

One Hand Clapping: Saying Hello, and the Activity-Inactivity Distinction

Hello, PB readers, and thanks to Dan and the crew for having me back. The last time I blogged here, I was an associate professor of economics at the University of Arizona. Since then, I have regressed, progressed, and become a rising 2L at Yale.* So while I'm no longer a "prawf," I guess I fit the "law" part of the blawg better than I used to. I'll try not to embarrass myself too much on that front over the next month. But since I'll probably fail in that endeavor, I've decided to ease into this round of posts by making a simple economic point about the supposedly important distinction between activity and inactivity that undergirds much of the ACA litigation.

To put it simply, the activity/inactivity distinction makes sense only if one hand can clap.

The amicus brief filed by Ilya Shapiro on behalf of the Cato Institute and Randy Barnett in the Sixth Circuit's Thomas More Law Center, et al., v. Barack Hussein Obama (gotta get that middle name in there!) tells us that

If allowed to stand, the individual  mandate would collapse the traditional distinction between acts and omissions by  characterizing a failure to act as a “decision” not to act—thereby transforming  inactivity into activity by linguistic alchemy.

I doubt it's an accident that this sentence reads so defensively. If "inactivity" is just the flip side of "activity," then it must be impossible to regulate any activity without also regulating inactivity. And of course, that conclusion is lethal to the "inactivity" argument, because even Cato and Randy Barnett concede that the Constitution gives Congress the power to regulate some things. Therefore, either inactivity has a life separate from activity or the Cato/Barnett argument is specious. 

So let's linger a bit on the sentence above. It states that the mandate cannot be allowed to stand, because otherwise acts and omissions would become one and the same. But so what? Compare the act of defrauding someone by telling them that your car works great, when you know it won't start, to the omission of remaining silent in response to the person's statement that "I will assume this car works great, and buy it from you for your asking price, unless you tell me otherwise before we execute the purchase contract." Does anyone think anything important turns on the distinction between "act" and "omission" here? Yes, we use different words for the fraudulent behavior in the two examples, but it strikes me that the reason is simply to avoid having to argue with linguistically gifted fraudsters (or their attorneys) that remaining silent is not an act. 

In any event, the need to avoid collapsing the act-omission distinction is thin gruel as a reason for not "characterizing a failure to act as a 'decision' not to act." It's not alchemical, but rather common sense, to point out that any "decision to do" something is a "decision not to not do" the same thing. Just as any "decision to not do" something is a "decision not to do" it. If I save money by stuffing it in my mattress, then I haven't saved it by buying financial instruments, and I haven't spent it on consumption. If I choose to spend time in leisure activities, I don't work for pay; indeed, anyone who has thought carefully about models of labor supply that take account of home production and child care understands that the most tractable definition of "leisure" in microeconomics is time not spent working. While we're at it, if I grow my own wheat for my own consumption, I haven't sold it. 

I understand that these are not legal arguments as such, but the law isn't blind to common sense. And common sense dictates that decisions are choices, and that meaningful choices necessarily involve more than one option. So it is impossible to "decide to be inactive" without rejecting some other course of...well, action. In this sense, familiar to anyone who understands the concept of opportunity cost, any regulation of any activity also regulates inactivity.


*I admit that if I'd known this guy was leaving Tucson, I might have stayed--the equilibrium price of good food in the Old Pueblo has surely dropped as a result.

Posted by Jonah Gelbach on July 5, 2011 at 03:09 PM | Permalink | Comments (3) | TrackBack

The Costs of Tenure Denial

Tenure denials are devastating to the person who is denied, his or her family and friends, and other supporters. Tenure denials are terrible for academic institutions, too, because they create rifts among colleagues that carry forward for years, and they often generate undue paranoia among those on the tenure track but not yet tenured; they also upset students and alumni who knew the professor denied tenure, particularly if the person denied was a great teacher.  And this account doesn't even factor in the litigation that tenure denials sometimes generate.

Some of the personal costs of tenure denial are recounted in this interesting and poignant article by Daniel and Erika Drezner, who look back on Daniel's tenure denial five years after the fact.  One of the insights from Daniel's piece that struck me was this one:  "People who earn tenure tend to have strong allies who lobby fiercely on their behalf. I didn't have any of those."  Daniel's insight struck me as correct, though I'm almost glad I didn't realize it when coming up for tenure.

Posted by Lyrissa Lidsky on July 5, 2011 at 11:30 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (13) | TrackBack

A Constitutional Crisis for Liberals and Libertarians: The Declaration of Independence and the Mythologocial Side of American Constitutional Culture

Constitutional meaning is hotly contested in the United States today.  This is hardly an unprecedented state of affairs.  Questions of constitutional fidelity and constitutional restraints on policy making have figured prominently in each of the nation’s several epochs of heightened constitutional awareness, as Bruce Ackerman and many others have reflected.  Indeed, supposed periods of relative constitutional quiescence and consensus can be described as such only in comparative terms, by contrast to other periods such as the Civil War and Reconstruction or the early Neal Deal when constitutional politics were obviously especially freighted and enthused and indeed even dangerous.  Whether or not government under the Constitution has actually been imperiled in these phases of constitutional ferment, during each of them a great many people have gone on record as fearing the imminent demise of the Constitution they love.  Perhaps the phrase constitutional crisis is exaggerated or at least lifted infelicitously from British political usage where it was employed with reference to constitutional impasses surrounding the Parliament Act of 1911 and the Abdication of Edward VIII in 1936.  Crisis implies to me at least the possibility of the collapse of the existing system, and even during the American Civil War (surely the greatest of this country’s alleged constitutional crises) only the geographic scope of governmental operations under the United States Constitution was at stake, not government under the Constitution per se.  Still, the concept of constitutional crisis resonates with millions, and there seems to be a mounting sense in many quarters that this nation is sliding towards a renewed constitutional crisis of truly epic moment.

But what is it about the Constitution that appears under threat to so many vocal devotees of varying constitutional stripes?  What are the terms of the great constitutional contest just around the corner?  Is there truly more at stake than the choice between divergent political outcomes and policy options favored by rival votaries?  What parts of the Constitution as we know it will be annulled if either side wins the battle to repeal the Affordable Health Care and Patient Protection Act lovingly known as Obama Care?  Is text under threat?  Structure?   Whole Articles destined for the scrap heap if one or the other side prevails?  Or is it a favored strand of Supreme Court case law that is in jeopardy?  Or a cherished academic theory about the Constitution?   More than any of these fine things, I think, what those animated by contemporary constitutional politics fear is repudiation of a mythological vision that depends more on constitutional culture and iconography than on constitutional text and structure.  From Sarah Palin and Glen Beck on television and at camp meetings to Michelle Bachmann and Ron Paul in debate and on the campaign trail, those who warn that the Constitution as we know it faces imminent or ongoing attack are generally quick to invoke the founding fathers, the Spirit of 1776, and the full panoply of origination myths surrounding the creation of the American Republic.  They do so generally not just for the sake of rhetorical flourish, but rather to appeal to the highest authorities in their constitutional value system. 

Independence Day does not tend to focus the patriotic mind on high political theory so much as on celebration of the distinctive national character, and like all national characters that of the United States is as much artificial as it is organic, and as much fluid as it is stable.  For better or worse, nationalism anchored in backward looking myth is a human construct, and conscious effort is required to prop it up.  Some people openly acknowledge and cherish instability, laden as it is with potential for success or failure, and a plasticity that invites intervention by the shaping hand.  Change we can believe in as the slogan went.  Others chafe at their own rootlessness and the rootlessness about them, and yearn to see change fenced in and controlled.  I have oscillated fairly sharply between these opposite poles at different stages of my life, sometimes yearning for government empowered to facilitate radical change, sometimes for government constrained to do no more than stay the courses and maintain the policies adopted by its direct and distant predecessors.   My urges along these lines have generally been more visceral than theorized or philosophical, and on a very basic level, I think this bipolar tension between tendencies to embrace or shun activist government mirrors the tectonic clashes driving popular constitutional politics today.   Lawyers and legal academics tend to think constitutional law is a product of text and doctrine, but I strongly suspect a more common sense of the Constitution for someone who does not identify as a lawyer and legal academic takes roughly the following two part form:  (1) The Constitution mandates political outcomes I desire, and prohibits those I dislike.  (2) The legitimacy of those outcomes is measured by testing them against the political principles embodied in the foundation of the United States (which fortunately coincide with my own principles).

It’s natural enough perhaps for professional lawyers to scoff at this condensed short form version of constitutional essentialism on the grounds that it leaves out text, structure, and case law, but it has a powerful popular appeal, and a prestige pedigree, coming very near to the (admittedly more self-effacing, theoretically grounded, and historically rooted) positions Thomas Jefferson assumed during his struggles with Chief Justice John Marshall during the first three decades of the nineteenth century.   Marshall’s tactically shrewd maneuver in Marbury and McCulloch was to insist that the Constitution reduced to written form in a single instrument was particularly part of the realm of law, amenable to judicial supervision, interpretation, and enforcement.  As axiomatic as that postulate seems to us today, it was just as easy for members of his generation to view that same Constitution as something inherently political and contested, not chiefly or even at all within the province of the judiciary, and not wholly reduced or reducible to written form in a single instrument.  Jeffersonian departmentalism (under which each department of government is the supreme constitutional arbiter within its own sphere) and popular sovereignty (in which the political will of the living generation is the ultimate constitutional authority) seemed as self-evidently correct to many of his contemporaries in the Revolutionary and Early National scene as Marshall’s celebration of the distinctions between the American constitutional republic with judicial review from the British system of legislative omnipotence under natural law does to most inward looking American constitutionalists today.   There is nothing inherently right or wrong about constitutionalism in the styles of A.V. Dicey (legislative omnipotence), Thomas Jefferson (departmentalism and active popular sovereignty that does not go dormant in non-Ackermanian moments), James Madison (a system of checks and balances reduced to a short code), or John Marshall (judicial supremacy based on an instrument that did not say a word about judicial supremacy when he wrote Marbury and continued silent on that point when his successors affixed each of their signatures to Aaron v. Cooper some 150 years later).  One can coherently operate as a constitutionalist in the American tradition without obsessing over text and case law.   Jefferson’s retirement letters to Madison belabor the theme of constitutional threats and violations at the hands of Marshall, but the reader soon discovers that the constitutional touchstone Jefferson refers to in measuring Marshall’s constitutional infidelity is neither the seven articles written in 1787 nor Bill of Rights written in 1789, but rather a set of Whiggish principles and conventions respecting legislative supremacy that crystallized during the English constitutional crises of the seventeenth century.  Indeed Jefferson was not above getting misty eyed and mystical about seventeenth century English Whigs, in much the fashion that a great many popular constitutionalists today are prone to look with almost spiritual reverence towards the image of our founding fathers rather than to text and case law when extolling constitutional fidelity on the part of reprobate nation.    

What then is the source of those core foundational beliefs that comprise foundation mythology, those principles and stories associated with the text and its creation that resonate so deeply with those who fear that the Constitution is under assault by its deontological enemies?  For writers as diverse as Abraham Lincoln and Louis Henkin, the constitutionalism behind the constitution has been Jefferson’s Declaration of Independence.   I submit that it matters profoundly whether those of us who cleave to the Declaration in contemporary constitutional conflicts think principally in terms of the Declaration’s general part or special part, which is to say in the first place its description of the natural law principles according to which just government is practiced and self-determination fulfilled, and in the second place its list of grievances against British imperial authority.   Those who focus on the general part I view as my fellow travelers, internationalists in the tradition of the Enlightenment who cherish human progress and read their Declaration like Harvard historian David Armitage in his 2008 study The Declaration of Independence: A Global History.   In contrast, those who focus on the Bill of Particulars, the special part detailing perceived imperial wrongs, worry me profoundly, for I can’t help but think they cherish rebellion as a wonderful thing in its own right, a doorway to adolescent thrills, primitivism for primitivisms sake, imaginary conflict with parent figures, and war with Europe to purge the soul and get back to American-kind’s pure and violent essentials.  As suggested Saturday by E.J. Dionne in Washington Post editorial , some among this camp that worships the special part drift away even from the concrete character of the enumerated grievances in the Declaration towards a broader claim (wholly divorced from the Declaration’s text) that government is always a bad thing.  I sometimes wonder whether Clarence Thomas doesn’t come close to adding a special theoretical veneer to the radical school’s atomistic claims by proclaiming that the real constitutionalism behind the Constitution is not the Declaration of Independence but the Articles of Confederation, in the incoherent sense that the framers found the non-existent federal government under the Articles so terrifyingly strong that they assembled a new constitutional edifice featuring a federal government with very substantial enumerated powers in order to ensure that the states were better protected against federal over-reaching than they had been under the constitutional system of the Articles which featured no federal government at all.   Without having in mind or perhaps being aware of the Articles, Rick Perry and Ron Paul approach the same result in insisting that the Constitution was made by the states for the states, not by the people of one nation embracing one new national government.

Ever since my days as an at least slightly jingoistic high school nerd in the 1980s, my favorite part of Independence Day has been reading and reflecting on the Declaration of Independence.   The first two paragraphs explaining the Continental Congress’s theory of just government, natural rights, equality, and the right to self-determination have retained all their luster as I’ve aged, although I’ve grown to appreciate them differently since I began teaching comparative constitutional law and international law about five years ago.  I can no longer think of Jefferson’s general outline of legitimate grounds of secession of one nation from a larger empire without  comparing his criteria for justified secession with those outlined in the Canadian Supreme Court’s famous advisory opinion In. Re. the Secession of Quebec. More recently still, as I prepare to move to the University of South Carolina for the coming academic year, I find myself often mulling over the general theories of secession outlined in the Declaration in the broader context of recent scholarly efforts to offer a global theory of self-determination, such as those explored in Secession: An International Phenomenon, a series of provocative essays edited by University of South Carolina historian Don H. Doyle comparing the secession of the American South to other secession movements in modern history.  From the perspective of the global history sketched by David Armitage or the perspectives of law and philosophy developed by Don Doyle and his colleagues, the principles in those two opening paragraphs of the Declaration have help up very well indeed.  Whether the cause that Jefferson advocated was just or otherwise, the measures he described for judging its justice echo and endure.  In marked contrast, the Bill of Particulars, developed in the succeeding 27 paragraphs of the Declaration and reciting concrete grievances with British imperial authority, troubles me more with each Independence Day than it did the year before.   I am in no position to pass judgment, but I cannot say that I find all 27 paragraphs of charges convincing.

There are no official casualty figures on the imperial side of the Anglo-American civil war of 1775-1783, so estimating total deaths during the War of American Independence  is by its nature inexact, but it is no gross exaggeration to suggest that in the vicinity of 40,000 colonial rebels, loyalists, Native Americans, imperial forces from Britain and Europe, and others lost their lives in the eight year war, and that at least 100,000 loyalist were driven into exile in Canada.   The thirteen rebellious British North American colonies in 1775 had a non-Native American population of about three million compared to the U.S. population of some three hundred million today, so in relative terms the human toll of the War of Independence had an impact equivalent to that of an American war in our time costing four million lives on American soil and driving ten million compatriots into exile today.  What wrongs of 1763-1776 were vindicated at this enormous cost from 1775-1783?  Let us return to the list of grievances in the Declaration to help aid our memory.  

This essay has grown far too long already for this forum, so I will not recite each point laid out in the 27 paragraphs charging British authorities with alleged offenses warranting secession from the Empire and war to establish a new nation.  Rather, I will point out a few major themes among them, and focus on a few violations the singers of the Declaration considered particularly grievous.  On one basic level that only began to resonate widely with the population until the months immediately preceding the Declaration, colonial grievances reflected the simple insight put famously by Thomas Paine in Common Sense, namely that it was absurd for an island to rule a continent.   In 1763, the overwhelming majority of politically active residents who thought about such things supported the subject matter jurisdiction of the Westminster Parliament over the British North American colonies, in part because that jurisdiction was exercised rather lightly respecting internal matters of the mainland provinces.  Once jurisdictional conflict arose over taxation and tax enforcement issues, increasing numbers drifted gradually into the independence camp, with wide circulation of Paine’s manifesto in the winter and spring of 1776 dramatically quickening the pace and lending incipient self-determination sensibilities a strong anti-monarchical hue.  While Paine’s claims have their logic, it took the coming of civil war in British North America in 1775 to ripen the patriotic mind for their reception in 1776.   But given that imperial taxes were light – in fact far lighter in the colonies than in the home islands – it is fairly hard to move from the claim that their abolition demands self-determination to the claim that once self-determination was favored by a bare plurality of the politically empowered population its attainment without the consent of others affected (Native Americans, enslaved Africans, loyalists, pacifists, Canadians) justified a war costing 40,000 lives.  Apart from rejection of Parliamentary jurisdiction to tax and measures taken by the King’s government to enforce that jurisdiction, colonial grievances concerned imperial constraints on colonial efforts to appropriate lands for purposes of exploitation.  Here more than an absence of proportionality causes me to wonder about the legitimacy of the resort to arms to support what Armitage calls mere settler grievances.   Concrete charges in the Declaration of Independence justify the use of armed force to attain unilateral secession in order to nullify the Quebec Act and the Proclamation Line, and the sales pitch here is not just nationalist and racist, but what today would be considered at least border line genocidal. To speak plainly, principal grievances enumerated in the Declaration’s Bill of Particulars include imperial interference with Indian removal and imperial toleration of French speaking Catholics.   These are not grievances worth fighting for, worth 40,000 lives, worth driving at least 100,000 from their homes.  One cannot in good faith argue in retrospect that a self-determination movement by a political minority (or even plurality) and the defense of the movement by extreme violence is justified in order to repulse imperial efforts to partially protect racial and religious minority populations against settler aggression.  At least one cannot do so consistently with the universal and enlightened claims about equality and human rights invoked in the Declaration’s general part.

Over the past twenty years I have enjoyed a great many things, including reading nearly all of Jefferson’s surviving 19,000 letters while working on my PhD, learning about human rights from Louis Henkin and legal theory from George Fletcher while I was a student at Columbia Law School, teaching at Washburn Law School from 2005-2011, and for these last few weeks making a few longer than average entries on this first rate Blawg.   I have also enjoyed many wonderful and warm Fourth of July celebrations with friends in England, New York City, Baltimore, Arlington, Monticello, and Kansas.   I look forward to many more, with lots of spectacular explosions and grilled meat, and perhaps if Whiggish optimism is not yet wholly exhausted two hundred and more years after the Enlightenment has run its course, a little more celebration of universalism, human rights, and aspiration for happiness, and a little less celebration of collective violence among tribes and peoples.

Posted by Bill Merkel on July 5, 2011 at 08:41 AM in Constitutional thoughts, Culture, Current Affairs, Law and Politics, Legal Theory | Permalink | Comments (0) | TrackBack

Monday, July 04, 2011

Happy Fourth of July

Declaration_of_Independence_200pxOur annual patriotic celebrations are centered on the occasion of the completing of work on a legal document. I kind of like that. Very civilized.

It suits me better than commemorating the day a riotous crowd destroyed a prison. I'm not trying to pick on France. If we had had a granddaddy prison-break as an option for our big patriotic day, you know, who knows, maybe we would have gone for that. But the completion of a legal document is a very calm corner of the calendar upon which to pin a patriotic celebration. And I think that's cool.

Now, following up on Howard Wasserman's post about how the centrality of the Declaration of Independence, and mindful of Tun-Jen Chiang's careful-what-you-wish-for advice about novel constitutional arguments, I must say that I would like to see the U.S. Supreme Court recognize legal force to the words "pursuit of happiness." I think the Declaration of Independence ought to and does have continuing legal force. I mean, really, it has to. Whether it is or is not more extensive than the Bill of Rights and the 14th Amendment is a different question. But after all, the Declaration of Independence is a lot of things – beautiful prose, a memorialization of a historical moment, a hortatory summons – but it's also a legal document. And, of course, I like that.

Posted by Eric E. Johnson on July 4, 2011 at 09:43 PM in Constitutional thoughts, Current Affairs | Permalink | Comments (2) | TrackBack

The meaning of the 4th of July

Like Tom, I enjoy the Fourth of July for the centrality of the prose and courage of the Declaration of Independence. As I wrote a few years ago, one of my favorite scenes from the HBO mini-series John Adams came immediately after the Continental Congress adopted the Declaration and the camera panned the silent room to show the stunned faces of the delegates. Plus, there is the fact that this is the only holiday that we name this way (after all, we don't call Halloween "the 31st of October").

Today Mark Kleiman, citing Mark Twain, argues that we would benefit from reviving the practice of reading the Declaration as part of our celebrations (although he questions whether we should excise the more racist portions in the airing of grievances). I have attended only one such celebration--in Philadephia in 2001 (the country's 225th birthday) [Ed: My wife points out that a state park in Miami does a reading every year, although we never have attended].  Kleiman's concern is that "[u]nless there is a conscious and sustained effort to reaffirm the meanings of our customary observances, those meanings tend to be eroded away: as Christmas now means bad music, heavy food and the worship of material possessions, so the Fourth of July is now a celebration of beer and fireworks."

Or worse. This afternoon we attended the festivities in a small beach town in Delaware, which included tire and barrel races, a pie eating contest, rides on a fire-truck cherry picker, and a boat parade. At one point, the MC of the event said something to the effect of "While we're out here having fun, let's not forget what this day is really all about--honoring the men and women who serve our country and keep us free."


I may have been bothered that the source of this error was the person designated by the city government to preside over this celebration and even he had no clue. If official designees have no clue, it is hard to expect the public at large to do any better. It is telling that, having no idea, his default meaning was the military and the men and women who serve. I respect the military and those who serve. But I am not a fan of the way we fetishize military service so that every holiday and every discussion of our nation becomes about the military. The only military people this holiday might celebrate are George Washington, the Minutemen, and everyone else who fought 235 years ago.

This holiday is about a political and expressive act. And while the military was certainly necessary to effectuate and preserve that political act, the political has its own inherent value. Particularly when, at least on its face, the political and expressive act was grounded in highly theoretical and philosophical terms of consent of the governed, the law of nations, and the purposes of government, and human rights--all decidedly non-militaristic ideas. That act be honored and celebrated on those terms.


Posted by Howard Wasserman on July 4, 2011 at 03:18 PM in Howard Wasserman | Permalink | Comments (1) | TrackBack

Be Careful What You Wish For and Novel Constitutional Arguments

As Mark Tushnet has noted, we have recently seen both the left and the right launch novel constitutional arguments in response to political developments.  On the right, it is the argument that the Commerce Clause does not permit Congress to regulate inactivity.  On the left, it is the argument that Section 4 of the Fourteenth Amendment prohibits default.  As with all novel arguments, the proverb “be careful what you wish for” is apt.

Take the Section 4 argument.  The argument is that Section 4 prohibits defaulting on the debt.  But it is important to understand that there is no real risk of defaulting on the debt, if we understand “the debt” as meaning only U.S. Treasury bonds.  There are more than enough tax revenues coming in to cover the interest payments on existing bonds.  What there is not enough to do is to pay the interest and all the other government expenses, like Social Security payments.  And it is the Republicans who have been trying to make sure that bondholders get paid first.

Is Social Security also a “debt” that is inviolable under Section 4?  Liberal scholar Garrett Epps (who pioneered the § 4 argument) argued that it is.  But that is pretty hard to square with (1) Fleming v. Nestor, 363 U.S. 603 (1960), which held that Congress can pretty much change social security at will, (2) the fine print that comes with your social security statement that says Congress can cut benefits at any time, and (3) the fact that Congress has cut benefits, such as by raising the retirement age.  So assuming Social Security is not an inviolable “debt,” at least one plausible result of the Section 4 argument is that when the government cannot pay all of its expenses, the constitutionally mandated solution is to pay disproportionately-wealthy bondholders first while throwing people reliant on Social Security and Medicare to the wolves.  What’s not for a conservative to love?

Now lets take the Commerce Clause argument.  The argument is that the individual mandate is unconstitutional.  But if the individual mandate dies while the rest of the law survives (only one court has bought the inseverability argument), then the result is that insurance companies must still take all applicants without regard to preexisting conditions, and poor people still get subsidies to purchase health insurance.  The big losers are the insurance companies, who will be plagued by crippling adverse selection effects.  What’s not for a liberal to love?

Posted by Tun-Jen Chiang on July 4, 2011 at 02:07 PM | Permalink | Comments (10) | TrackBack