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Saturday, November 10, 2012

Score 1 for Quants, but Score 5 for Pollsters

There's been a lot of talk after the election about how one big winner (after Obama, I imagine) is Nate Silver, of the FiveThirtyEight blog. He had come under fire in the days/weeks leading up to the election for his refusal to call the race a "toss up" even when Obama had only a narrow lead in national polls. He even prompted a couple of posts here (in his defense). Turns out that Silver called the election right - all fifty states- down to Florida being a virtual tie.

But that's old news. I want to focus on something that may be as, or even more, important. The underlying polling. We take it for granted that the pollsters did the right thing, but their methodology, too, was under attack. Even now, there are people - quants, even - who were shocked that Romney lost because their methodology going in to the election was just plain wrong.

So, that's where I want to focus this post after the jump - not just on "math" but on principled methodology.

It's easy to take the pollster methodology for granted. After all, they've been doing it for many, many years. That, plus the methodology is mostly transparent, and past polls can be measured against outcomes. Taking all of this methodology information into account is where Silver bettered his peers who simply "averaged" polls (and how Silver accurately forecasted a winner with some confidence months ago). Everybody was doing the math, but unless that math incorporated quality methodology in a reasonable way, the results suffered. 

It didn't have to be that way, though. As Silver himself noted in a final pre-election post

As any poker player knows, those 8 percent chances [of Romney winning] do come up once in a while. If it happens this year, then a lot of polling firms will have to re-examine their assumptions — and we will have to re-examine ours about how trustworthy the polls are.

This is the point of my title. Yes, Silver got it right, and did some really great work. The pollsters, however, used (for the most part) methodologies with the right assumptions to provide accurate data to reach the right answers. [11/11 addition: Silver just added his listing of poll result accuracy and methodology discussion here.]

The importance of methodology to quantitative analysis is not limited to polling, of course. Legal and economic scholarship is replete with empirical work based on faulty methodology. The numbers add up correctly, but the underlying theory and data collection might be problematic or the conclusions drawn might not be supported by those calculations.

I live in a glass house, so I won't be throwing any stones by giving examples. My primary point, especially for those who are amazed by the math but not so great at it themselves, is that you have to do more than calculate.  You have to have methods, and those methods have to be grounded in sound scientific practice.  Evaluation of someone else's results should demand as much.

Posted by Michael Risch on November 10, 2012 at 12:51 PM in Law and Politics, Legal Theory | Permalink | Comments (5) | TrackBack

Friday, November 09, 2012

Review Granted in VRA Case

The Supreme Court has granted review in Shelby County v. Holder, the Voting Rights Act case where the DC Circuit by a 2-1 vote upheld the preclearance provisions of the Voting Rights Act.  Looks like it's going to be a big year for race at the Court.  Any tentative predictions/thoughts?

Posted by Bill Araiza on November 9, 2012 at 07:01 PM | Permalink | Comments (0) | TrackBack

Making and Taking

David Brooks is not my favorite New York Times columnist, though he’s certainly not the worst (I’m looking at you, Gail).  And sometimes he says things that are both right and really important.  He said something like that today, when he advised Republicans to start thinking about ethnic groups (in my own experience, Latinos) in ways that transcend this foolish and disgusting makers-takers/"they want stuff" theme that is oozing into the post-election discussion.

What he points out is that many ethnic groups (again, I’m thinking personally about Latinos) have immense respect for hard work, but also immense appreciation for the good government can do.  Without spilling too much of my unabridged biography here I’ll just say that I have a lot of personal experience with people working exceptionally hard.  And valuing it.  My father used to tell me that his father, a barber, would say “If I don’t cut hair, we don’t eat.”  My father got that lesson.  My other grandfather started as a dishwasher in a hotel restaurant and eventually bought a Mexican restaurant: he used his wife and his daughter (my mother) as waitresses and cashiers, and he did all the cooking and purchasing himself.  The only outside person who did any work there was a bookkeeper he used at tax time. 

But a lot of whatever success we achieved as a family could not have happened without government programs.  I’ll start with the biggest program of them all: the military, which, while nearly killing my father more than once, nevertheless ended up providing us housing, discounted groceries, education (from first grade to, in the case of my father, vocational education), and yes, the biggest evil of all, government-run health care (which was excellent, by the way).  We also benefitted from food stamps, Pell Grants and guaranteed student loans, state universities, Medicare, and Medicaid.  I’m sure I’m leaving something out.

Anyway, enough detail.  As a matter of setting the record straight I’m glad David Brooks explained all this to the blowhards and self-righteous titans of white American industriousness who think that a vote for Obama was a vote for government cheese and a chance to sit around and keep sucking on the government teat.  Although personally I don’t really care if they get the message: if they keep talking like they talked this time around (and are still talking) at least I won’t have to spend two months every four years refreshing 538.com rather than, well, working.  Because I won’t have to worry about how the election will turn out.

Posted by Bill Araiza on November 9, 2012 at 11:02 AM in Culture, Current Affairs | Permalink | Comments (9) | TrackBack

Thursday, November 08, 2012

Interesting News Out of Florida

According to this Miami Herald news story it seems like President Obama nearly won the Cuban-American vote in Florida. (Thanks to Pedro Malavet for the tip.)  I'm not sure how big a deal it is that the President lost by "only" 52-48, but the people quoted in the article think it's significant.   Any thoughts from people who follow this issue on how significant this is, either this time around or long-term? 

Posted by Bill Araiza on November 8, 2012 at 02:05 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Recognizing Your Biases

In Brown v. Board of Education, the Supreme Court held that segregation in public schools violated the Equal Protection Clause.  Brown was a major blow to the separate but equal regime ratified by the Supreme Court’s decision in Plessy v. Ferguson.  Brown is (rightfully) one of the most important constitutional cases ever decided, but it is still contested to this day whether Brown is consistent with the original understanding of the Fourteenth Amendment.  Nonetheless, any legitimate theory of constitutional interpretation has to justify Brown, or it will not be taken seriously. 

This is true for many of the decisions that we often view as "progressive" or that significantly changed the way in which society operates.  In the years after Brown, various minorities groups turned to
the Court to effectuate broad changes in society.  Civil rights, women’s rights, fairness in the
criminal justice system – the Warren Court, in particular, remade the landscape of America in a series of decisions in the 1950s and 1960s.  As an African-American and a woman, I am especially proud of what they accomplished, but for constitutional law theorists, it is often difficult to justify many of these decisions as consistent with the "original" understanding of the Constitution or the Court's decision to intervene as consistent with the constitutional text and structure.  Some scholars have been successful (in my view), but we still argue over these issues in the legal scholarship. 

Despite my pride in certain Warren Court decisions, I have to be honest and admit that when I teach cases like Plessy v. Ferguson or the Civil Rights Cases or Parents Involved or Washington v. Davis, I question whether it is wise to give courts the ability to "remake" the landscape of America.  Talk about outcome oriented expedient, right?   Not surprisingly, like most people (though they won’t admit it), I only like the Court to intervene when it furthers something I believe in.  But I find this view to be problematic for a legal scholar, and as a result,  I go to great lengths when I am writing to try to neutralize this bias. 

Indeed, my scholarship is my attempt to overcome this weakness and be as intellectual honest as I can.   Sometimes, the result is that I make "liberal" and "conservative" arguments, but at the end of the day, it is my honest assessment of what I think the constitutional text and structure require rather than advocating for judicial intervention to achieve my desired outcome.  Plessy and cases like it make me realize that the Court does not always get it right, and sometimes, because of the limitations of its power, cannot get it “right” (see Giles v. Harris as a particularly egregious example).   The problem for me and my particular bias is that, if one is intellectually honest, you have to take the good with the bad.  Take the Plessy with the Brown, so to speak.  This does not mean that I have to believe Plessy was decided correctly; rather, in advocating for judicial intervention, one has to recognize that sometimes you might get a Plessy.  Other times, you might get a Brown but you have to believe that judicial intervention is justified in both instances (Lochner and Roe is another tough one).    

But the risk of a Plessy makes me wonder why we, as a society, are comfortable with the idea of the Supreme Court as being the change agent and in the process, promoting judicial intervention in lieu of the political process.  I am always taken back by how pro-Court my students are.  After teaching constitutional law for almost four years, it is not immediately obvious to me that this is right - that the Court, rather than the political process, should be the one to effectuate change.  And that is why, in my scholarship, I focus on the constitutional text and the structure so I won’t have to decide if this is right (because I fear that my answer might be “yes, it is right if I like the outcome”).  I recognize that the text and structure will only get us so far in deciding tough questions, but I leave it to others braver than I to formulate theories of constitutional interpretation to fill in the gaps.         

Posted by Franita Tolson on November 8, 2012 at 12:52 PM | Permalink | Comments (5) | TrackBack

Reforming Legal Education's Finances: Let's Debate Specifics

This fall a lot of law schools are talking about finances.  While the blawgosphere and even the national press have addressed the basic market changes driving these discussions, I have not seen a lot of specifics about the difficult financial choices at stake.  Next week, I'll be posting a series of questions comparing different strategies for dealing with the new market realities.  The intent of these questions is to get folks talking about the costs and benefits of different approaches, so we may have a better handle of how to address them at our own institutions.

Here are the questions I was thinking of posing:

  • Is it better to cut tuition or class size?
  • If tuition is to be cut, is it better to cut the sticker price or increase the scholarship pool?
  • If a school is cutting costs, is it better to cut positions or cut salaries?
  • If salaries are to be cut, is it better to have an across-the-board cut or cuts based on different principles?
  • Should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration?

Obviously, these questions are not exclusive -- one can cut tuition and class size, for example, or cut salaries both across the board and based on certain principles (teaching load, etc.).  But the purpose of these dyads is to pit them against one another and talk about their specific strengths and weaknesses.  If a school has $X in potential savings, would that savings be better spent on reductions in tuition or class size?  The questions are intended to get readers and commenters to debate the relative merits in specific terms.

If you have an idea for a dyadic question like the ones framed above, please feel free to leave it in the comments.  I'll start up with the questions on Monday.

Posted by Matt Bodie on November 8, 2012 at 11:34 AM in Life of Law Schools | Permalink | Comments (12) | TrackBack

Cease and Desist

For nearly 10 years, scholars, commentators, and disappointed downloaders have criticized the now-abandoned campaign of the Recording Industry Association of America (RIAA) to threaten litigation against, and in some cases, sue downloaders of unauthorized music. The criticisms follow two main themes. First, demand letters, which mention of statutory damages up to and including $150,000 per infringed work (if the infringement is willful), often lead to settlements of $2,000 - $3,000. A back of the envelope cost-benefit analysis would suggest this is a reasonable response from the receipient if $150,000 is a credible threat, but for those who conclude that information is free and someone must challenge these cases, the result is frustrating.

Second, it has been argued that the statutory damage itself is unconstitutional, at least as applied to downloaders, because it is completely divorced from any actual harm suffered by the record labels. The constitutional critique has been advanced by scholars like Pam Samuelson and Tara Wheatland, accepted by a district court judge in the Tenenbaum case, dodged on appeal by the First Circuit, but rejected outright by the Eighth Circuit. My intuition is that the Supreme Court would hold that Congress has the authority to craft statutory damages sufficiently high to deter infringement, and that there's sufficient evidence that Congress thought its last increase in statutory damages would accomplish that goal. 

We could debate that, but I have something much more controversial in mind. I hope to convince you that the typical $3,000 settlement is the right result, at least in file-sharing cases.

The Copy Culture survey indicates that the majority of respondents who support a penalty support fines for unauthorized downloading of a song or movie. Of those who support fines, 32% support a fine of $10 or less, 43% support fines of up to $100, 14% support fines of up to $1,000, 5% support higher fines, 3% think fines should be context sensitive, and 3% are unsure. The average max fine for the top three groups is $209. Let's cut it in half, to $100, because roughly half of survey respondents were opposed to any penalty.

How big is the typical library of "illegally" downloaded files? 10 songs? 100 songs? 1,000? The Copy Culture study reports the following from survey respondents who own digital files, by age group:

18-29: 406 files downloaded for free

30-49: 130 files downloaded for free

50-64: 60 files downloaded for free

65+: 51 files downloaded for free

In the two cases that the RIAA actually took to trial, the labels argued that the defendants had each downloaded over 1,000 songs, but sued over 30 downloads in one case, and 24 downloads in the other. As I see it, if you're downloading enough to catch a cease and desist letter, chances are good that you've got at least 30 "hot" files on your hard drive.

You can see where I'm going here. If the average target of a cease and desist letter has 30 unauthorized files, and public consensus centers around $100 per unauthorized file, then a settlement offer of $3,000 is just about right.

Four caveats. First, maybe the Copy Culture survey is not representative of public opinion and that number should be far lower than $100. Second, misfires happen with cease and desist letters: sometimes, individuals are mistargeted. One off-the-cuff response is to have the RIAA pay $3,000 to every non-computer user and the estate of every dead grandman who gets one of these letters.

Third, this doesn't take fair use into account, and thus might not be a fair proxy for many other cases. For example, the Righthaven litigation seems entirely different to me - reproducing a news story online seems different than illegally downloading a song instead of paying $1, in part because the news story is closer to copyright's idea line, where more of the content is likely unprotectable, and because the redistribution of news is more likely to be fair use.

Fourth, it doesn't really deal with the potentially unconstitutional / arguably stupid possibility that some college student could be ordered to pay $150,000 per download, if a jury determines he downloaded willfully. I'd actually be happy with a rule that tells the record labels they can only threaten a maximum damage award equal to the average from the four jury determinations in the Tenenbaum and Thomas-Rasset cases. That's still $43,562.50 per song. Round it down to the non-willful statutory cap, $30,000, and I still think that a $3,000 settlement is just about perfect.

Now tell me why I'm crazy. 

Posted by Jake Linford on November 8, 2012 at 09:30 AM in Information and Technology, Intellectual Property, Music, Web/Tech | Permalink | Comments (1) | TrackBack

Marriage equality in the Supreme Court

With the success of marriage equality at the ballot box on Tuesday, nine states and the District of Columbia, now allow marriages between same-sex partners. And the failure of the ballot initiative in Minnesota, which would have preemptively halted any judicial or legislative allowance of marriage equality, could be taken as a reflection of new societal views.

The question is how that affects the SCOTUS's decision as to whether to take any of the marriage-equality cases currently pending before it and, if it does, how to resolve them. One view has been that SCOTUS would not take the lead on this; instead, (as it did with anti-miscegination laws), it would await some critical mass of states getting to equality on their own, then step in to yank the remaining states into line. Of course, we do not know what that critical mass would be.

Before Tuesday, I would have said this would mean the Court denying cert in Perry (the Prop. 8 case), especially in light of the narrowness of the Ninth Circuit decision. But is 9 states, and some momentum on ths issue, enough? And is it enough for the Court to take the leap and say that barring same-sex marriage violates the Fourteenth Amendment (assuming there are five votes for that position)?

The DOMA cases present a much trickier issue on this point, because the Court is virtually obligated to take one of these cases. It cannot leave a situation in which a federal statute is unconstitutional, and thus inappicable, in just the Second Circuit (where two of the nine equality states are and a third recognizes same-sex marriages performed elsewhere). No we're back to the question of whether nine states is sufficient to give the Court popular cover (again, assuming five votes for marriage equality).

Posted by Howard Wasserman on November 8, 2012 at 08:33 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Wednesday, November 07, 2012

Co-religionist Commerce

Since I'm no expert on election politics, I figure I'll leave those posts to the election law gurus like Franita Tolson and my Pepperdine colleague Derek Muller.  

Instead, I wanted to spend a couple of posts discussing what I take to be the rise of "co-religionist commerce" (full disclosure: my soon to be co-author Barak Richman coined the phrase).  What I mean by the phrase is the relationships and interactions between members of the same religious community that are simultaneously religious and commercial.  Prime examples of co-religionist commerce include various types of religious legal instruments such as sharia compliant financial insturments, employment agreements with religious institutions, Islamic mahr contracts, and wills that divide up money in accordance with religious principles.  

Of course, once you have these various forms of religious legal instruments, it's only natural that litigation over religious torts comes next.  The recent class action lawsuit against Hebrew National for having insufficiently kosher hotdogs serves as a great example of how co-religionist commerce spills over into the tort context - as does the recent allegation leveled against the Rabbinical Assembly for functioning as a cartel.  If you have religious legal insturments then you'll invariably have religious torts too.

The challenge of co-religionist commerce is that it poses a host of unique private law and public law questions each of which threaten to destabilize the predicatbility and enforceability of legal arragnements that simultaneously touch upon religious and commercial interests - questions that I plan on exploring in my next batch of posts.

Posted by Michael Helfand on November 7, 2012 at 09:05 PM | Permalink | Comments (0) | TrackBack

Religion and Politics, circa 2012

At the New Republic, Amy Sullivan has a pretty good takeout on why religion didn't figure as much, at least in terms of public discussion, in the 2012 election. The relationship between religion and politics, of course, is of perennial interest to law and religion scholars, so I hope this post is at least tangentially related to "law" and not just politics. Sullivan certainly has a point of view in other posts and pushes it, and I don't always agree with that viewpoint, but she has also done a lot of good reporting in this area and this is a pretty decent piece.

One thing I think she underemphasizes is that both parties, in addition to what I hope was the fundamental decency of their nominal leaders on this issue, had good reasons to bilaterally disarm with respect to each others' religion. There was also some plain old cognitive dissonance involved: some evangelical voters who really do hold strongly negative views about the LDS were forced to reconcile themselves to it in this cycle. (And I should add that those views, for all I know, may have affected their turnout; and, for that matter, that every now and then I saw an anti-Mormon letter in the local paper, or fairly anodyne but quite unnecessary Mormon jokes from Democratic friends on Facebook.) Still, in general it is interesting how little of a real role religion played in this race.

Given the circles I travel in, many of my friends may find most interesting, and perhaps irksome, the third part of Sullivan's article, titled "The Catholic Bishops' Religious Liberty Campaign Has Flopped" and linking in part to an interesting essay written by a local priest in Washington, DC. I've pasted it in full below the fold. Here I think she is a little too forceful, and would add some counterpoints: 1) Catholic doctrine isn't, and by its lights shouldn't be, determined by vote; 2) that doctrine may legitimately hold that specific life issues are more doctrinally central than a variety of "seamless garment" issues; and 3) some of the reactions to the Church's views on these issues still held more than a little whiff of anti-Catholic sentiment, or at least ignorance about Catholicism.

But...I think Sullivan, and the writer she links to, make two important points, points that are relevant both for observers of these issues and for the leadership. The first is that the "religious liberty campaign," with specific regard to the contraception mandate, takes place in a context in which Americans seriously distrust many institutions, often including their own institutions and certainly including the Church. The second is that, although I happen to think the scope of exceptions to the mandate should be wider and that there are real religious liberty issues involved here, there is genuine room for reasonable disagreement about how religious liberty doctrine should be structured: whether generally applicable laws should require or merely permit accommodations, about whether those accommodations should be absolute or subject to a balancing test, about which entities should be able to claim those accommodations, and so on. I'll let the priest's op-ed speak for itself here, as Sullivan does, while noting that it's possible to agree with him on this and still support greater accommodations in this area:

“Bishops and Catholic publications used words like ‘alarming,’ ‘unprecedented’ and ‘unconscionable’ about the HHS mandate. But most people did not see it as an existential threat to our religious liberty. They saw it as a disagreement over government policy.”    

"3. The Catholic Bishops’ Religious Liberty Campaign Has Flopped. Despite focusing its nearly-undivided attention on opposition to Obamacare and the accompanying contraception mandate, the U.S. Conference of Catholic Bishops has not managed to convince a majority of American Catholics that this is the issue that should determine their decision in the voting booth. Nor have they even won the ideological debate over whether this issue (referred to by the bishops with the much broader term “religious liberty”) should be the top priority of the U.S. Catholic church. In a recent poll by the Public Religion Research Institute (PRRI), a majority of Catholics thought that the church’s public statements and engagement on public policy should “focus more on social justice and the obligation to help the poor, even if it means focusing less on issues like abortion and the right to life.” A majority of Catholics—that includes Catholics who attend Mass at least weekly, as well as Catholics who support Romney.

At the same time, Barack Obama opened up a large lead over Romney among Catholics in the months that followed the bishops’ “Fortnight for Freedom”—a national teach-in about threats to liberty that focused on Obama’s contraception coverage policy. Nor does the Fortnight campaign appear to have moved Catholic opinions regarding the contested policy. According to PRRI polls taken both before and after the Fortnight, white Catholics are split precisely down the middle when asked whether “religiously-affiliated colleges and hospitals should have to provide employees with no-cost contraception coverage.”

What happened to the bishops' influence? One problem they face is the continuing erosion of trust in institutions—including religious institutions—that has taken place across American society. The Catholic church and its slow response to clergy sex abuse scandals has suffered a particular serious blow to its reputation for moral leadership. But it has also severely bungled its opposition to the Obama administration. A local Washington, DC priest penned an essay for the National Catholic Reporter this week with his thoughts about the religious liberty campaign's failure. It’s worth reading in full, but I want to quote his observation about the hyperbolic rhetoric of Catholic leaders: “Bishops and Catholic publications used words like ‘alarming,’ ‘unprecedented’ and ‘unconscionable’ about the HHS mandate. But most people did not see it as an existential threat to our religious liberty. They saw it as a disagreement over government policy.”

The bishops also seem not to have recognized that they have lost the edge they once held in the media as well. Not so long ago, if the Catholic bishops came out against a Democratic administration with the energy they have marshaled against several aspects of Obamacare, the story would not only make headlines but would dominate the storyline about that administration. But while journalists made note of the Fortnight for Freedom and have duly covered the bishops’ objections, the coverage is more pro forma, the way reporters cover a Glenn Beck rally or provocative remark from Pat Robertson. Whether they realize it or not, the bishops risk being seen as just another arm of the Religious Right, saved only by their occasional statements supporting anti-poverty programs or immigration reform." 

Posted by Paul Horwitz on November 7, 2012 at 08:50 AM in Paul Horwitz | Permalink | Comments (11) | TrackBack

The Libertarian Case for Positive Educational and Welfare Rights

OK, not exactly. I'm not sure whether he'd consider it a post about his libertarianism. And he doesn't argue for positive educational and welfare rights, constitutional or otherwise. Apart from that, though...

What spurred this post is Ilya Somin's argument on the VC yesterday that knowledgeable children ought to be allowed to vote. He addresses some standard objections in his post, but a number of his commenters wrote to argue that such a rule, if enforced by knowledge or literacy tests, would end up privileging some groups and disadvantaging others (as, indeed, previous tests have done in the United States). Indeed, given massive educational inequality in this country, it's hard not to see how this proposal wouldn't give much more electoral power to the wealthy, well-educated, mostly white elite. Unless....perhaps Ilya would welcome a trade-off: knowledgeable children get the vote, in exchange for guarantees of massive public/private efforts to assure meaningful educational and welfare rights to ensure that the opportunity to be a knowledgeable child voter is fairly and widely distributed among the entire population rather than limiting that vote to enclaves with better resources. I'm just going to go ahead and consider this Ilya's very subtle case for overruling San Antonio School District v. Rodriguez. 

Posted by Paul Horwitz on November 7, 2012 at 08:23 AM in Paul Horwitz | Permalink | Comments (9) | TrackBack

Some thoughts on the election

My political views have been made obvious in this forum in the past, so I'm pretty happy this morning. A couple of random thoughts.

1) My confidence level picked up around 5 p.m. yesterday afternoon when I picked my daughter up from school; that's when I heard the results of the "election" at her school, which went 125-75 for Obama. As we all know, as Temple Beth Am Day School goes, so goes the country.

2) We had a split decision on sports predictors. A National League team won the World Series, which means a Democratic President; this is now 17/27 (62.9%). On the other hand, the Redskins lost at home on Sunday, their final home game before the Election, but the incumbent party retained the White House; this is now 17/19 (89 %). I have to admit, my anxiety level actually rose after that game.

3) Does this result suggest that independent expenditures by outside groups are not all there is to elections? And that Citizens United is not the death knell of democracy and otherwise the root of all that is wrong with the country? Republican Super PACS threw big money at six races--five Senate races and the presidency--and lost all six. Perhaps running non-stop ads for two months is not the way to appeal to voters, so simply throwing lots of money into the mix does not ensure electoral success. Or is Obama uniquely successful in organizing on the ground and at gathering large numbers of small donations? So while that organization could overcome unlimited individual and corporate PAC money, perhaps massive spending will make all the difference in four years, when Obama leaves the scene.

4) What happens with the Supreme Court? Do Scalia and Kennedy try to hang on until 2017? Does Ginsburg step aside after OT 2013 (in June 2014) to give Obama the appointment? And does Obama (potentially with 56-seat support and the possibility of filibuster reform in the Senate) make judgeships a higher priority in his second term?

5) Speaking of the Court: A comment on one poll-aggregation blog said that Obama owed his reelection to John Roberts. While the direct causation is dubious, of course, there is a point there. Popular or not (and I still believe the law will increase in popularity as it is implemented over the next several years), this was a signal legislative achievement; to have it invalidated would have left a gaping hole in his record that the public might not have forgiven. Unless he had run against the Court (something Democrats don't do well), he would have been hit hard with charges of "he rammed through this unpopular law that also was unconstitutional."

6) Finally, I must admit to one personal/professional perspective on this election. FIU's outstanding dean is Alex Acosta, an Assistant Attorney General and U.S. Attorney under George W. Bush. He might have been (I'm guessing at this completely--he and I have never spoken about it) a potential short-lister for either a high executive position or a judgeship under a President Romney (Alex is a pragmatist and, I believe, would be a great trial judge). So I'm happy that this election means four more years--of our current deanship and thus continued advancement for this law school.

Posted by Howard Wasserman on November 7, 2012 at 01:51 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

Tuesday, November 06, 2012

Naming Rights Gone Wild?

When I had some free time during a conference I attended this past weekend in Chicago I wandered over to Millennium Park, the beautiful downtown park adjacent to the Art Institute.  While looking for directions I ran across this sign, which startled me for the sheer number of corporate names attached to various parts of the park:

Millennium Park

I know naming rights have been handed out pretty freely over the last couple of decades or so, starting, I guess, with sports arenas.  (I still remember the Simpsons episode about 10-15 years ago where Federal Express bought the naming rights to the Constitution.)  But is this this park an extreme version of that phenomenon?  Or have I missed a major ratcheting up of corporate naming? Or is this just a case of the changed face of philanthropy?  I mean, Central Park has Wollman Rink, and (on a different scale) a large number of bench plaques that you can buy.  But this seems different: I mean, you take the BP Bridge to the Exelon Pavilion to the Boeing Gallery, ending at AT&T Plaza?  Really?

Posted by Bill Araiza on November 6, 2012 at 03:54 PM | Permalink | Comments (4) | TrackBack

An Election Day Question: Is Joe Biden Demented?

Yesterday, I linked to a nonprofessional's diagnosis suggesting that the Republican leadership is sociopathic. Today, I thought it only fair to link to a story providing further diagnoses, one by a nonprofessional and the other by a professional (which is not to say he was acting in a professional fashion). They suggest, respectively, that Mitt Romney is suffering from mental problems and/or that Vice President Joe Biden is suffering from dementia. The story containing those diagnoses, as it turns out, is actually about the increasing partisanship and bitterness of cable news networks. Talk about burying the lede! What if one or more of those diagnoses are right?

Admittedly, others might take other lessons from this rash of diagnoses, such as: 1) practicing politics through long-distance DSMification is unhelpful, both as politics and as psychology; or 2) just as we might look for structural and environmental causes and cures if a large number of people in some particular area turned out to suffer from mental illness, so if we conclude that large numbers of politicians are crazy, we might focus more on the pathologies of the entire American political and cultural system than on partial analyses--analyses that also, coincidentally, confirm our own sense that we are rational and just, while the only explanation for our opponents' beliefs and conduct is that they are not. Granted, the latter approach is something that even those Americans who usually focus on structural pathologies of American politics sometimes forget. You Americans must get tired of commentary from foreigners that begin "You Americans..." Still, I've got to say it: From my perspective, it sometimes seems to me that you Americans are all crazy, or at least that many aspects of your political structure and culture are.  

And with that, have a great Election Day!

Posted by Paul Horwitz on November 6, 2012 at 08:26 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack

Monday, November 05, 2012

An Open Letter from Seth Barrett Tillman to Professor Saikrishna B. Prakash (and other defenders of the unitary executive theory)

Dear Professor Prakash et al.,

Back in 2008, you and I had a short exchange in the Duke Journal of Constitutional Law & Public Policy. You may remember that in that exchange I argued that the Constitution’s varying usage in regard to office and officer was meaningful. Specifically, I argued that the Incompatibility Clause, using “Office . . . under the United States” language, did not reach the presidency (and vice-presidency), and as a result, that clause did not bar a sitting Senator (e.g., Clinton, McCain, or Obama) from simultaneously holding the presidency. In other words, the Incompatibility Clause bars Senators and Representatives from simultaneously holding appointed office (in any of the three branches), but it is not a bar to other elective positions (e.g., the vice presidency and the presidency).

In 2008, you did not agree with my theory. 

Today, in 2012, we face a nearly identical question . . . should Representative Ryan win re-election to his House seat and be elected to the vice presidency, can he hold both offices? My position is “yes, he can (at least as far as the Incompatibility Clause is concerned).” I am wondering if your current position is the same as it was in 2008: i.e., the Incompatibility Clause applies to the presidency (and, by implication, to the vice presidency).

Part of the reason I ask is that I now have some additional evidence relating to the events of 1787-1797 – evidence which I did not put forward in our 2008 debate. And although you can still maintain that you are correct about the Incompatibility Clause, if you do, I think the consequence of your maintaining your 2008 position is that you will have to give up on the unitary executive theory (about which you have published from time-to-time). It seems to me your two positions contradict one another.

Let me explain. 

In 2008, I noted that President Washington accepted a gift (the key to the Bastille) from LaFayette (then a French government official). The Foreign Emoluments Clause prohibits anyone holding an “Office . . . under the United States” from accepting, absent congressional consent, a gift from a foreign government. Washington accepted the key; he never asked for congressional consent; he never received congressional consent. You responded that LaFayette was (practically, even if not technically or legally) Washington’s “adopted son” and so the gift was not from a foreign state, but was a personal gift.

 

But it turns out Washington received other such gifts. For example, President Washington accepted a framed full-length portrait of Louis XVI from the French ambassador. The ambassador was not Washington’s “adopted son.” Here too, Washington never asked for or received congressional consent to keep the gift. My position is that the presidency is not an “Office . . . under the United States” (as used in the Foreign Emoluments Clause and the Incompatibility Clause) and so Washington was constitutionally permitted to keep the gift, even absent congressional consent.

 

Surely, you are not going to argue that the French ambassador was (like LaFayette) Washington’s “adopted son,” right? Surely, you are not going to argue that this too was a personal gift, as opposed to a gift from a foreign state, are you?

 

I suppose you could argue that either: (1) Washington made an inadvertent mistake; or (2) Washington was knowingly violating the Constitution. But, if you embrace either of these two possibilities, then is not your version of the unitary executive theory dead? Your version of the unitary executive theory depends on the precedents established by George Washington and his administration. It seesm to me that you cannot rely on those precedents if Washington was unaware of the Foreign Emoluments Clause or was unwilling to abide by its express command.

 

The same is true for Alexander Hamilton. In 1792, during Washington’s administration, Secretary of the Treasury Hamilton was ordered by the Senate to compile a list of “every person holding any civil office or employment under the United States” and their salaries. After nine months, he returned a 90-page list which omitted the President and Vice President. But, it did include appointed or statutory officers in each of the three Branches. For example, Hamilton included non-elected Legislative Branch officials: e.g., the Secretary of the Senate and his staff, and the Clerk of the House and his staff. For Hamilton, on this occasion, “Office . . . under the United States embraced only appointed or statutory officers, not the President or VP, i.e., holders of elected or constitutionally-created positions.

 

What do you think of this Washington-era documentary record? Do you think Hamilton (like Washington above) just forgot (!) to include the President and Vice President? Why does your position require that so many forgot so much so frequently? Is not the better view that Hamilton thought “Office . . . under the United States” did not reach the presidency and vice presidency?

 

I suppose you could maintain that Hamilton erred. But how could Hamilton have erred in this fashion? In 2008, you argued that it was plain, clear, obvious, etc., etc. that the presidency was an “Office . . . under the United States” (and, so, clearly subject to the Incompatibility Clause). But, if you are correct, if it were obvious circa 1789 that the presidency was an “Office . . . under the United States,” then Hamilton’s error is very troubling. And if it is troubling, then your reliance on the Hamilton and Washington-era precedents is misplaced.

 

In other words, the unitary executive hypothesis (at least, that variant developed by you, and Steven Calabresi, and Akhil Amar) relies on Hamilton and on other Washington-era precedents. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 642 n.450 (1994) (“Moreover, Washington was acutely aware that the precedents established in the beginning would influence posterity. Accordingly, [President Washington] ‘devoutly wished’ that ‘these [Executive Branch] precedents may be fixed on true principles.’” (quoting Washington to Madison correspondence from May 5, 1789)); Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 120 n.185 (2006) (favoring Hamilton’s position on removal which he announced during the Washington administration over Hamilton’s position during ratification); see also, e.g., Akhil Reed Amar, America’s Unwritten Constitution Chapter 8 Following Washington’s Lead: America’s “Georgian” Constitution 319-27 (2012) (expressly relying on Washington-era precedents in defense of the unitary executive theory).

Professor Prakash, I think you (and the others who have defended the unitary executive theory based on the Washington-era precedents) really need my view of the past. Because if you reject it, then, it seems to me, the unitary executive hypothesis is dead.

 

Posted by Ethan Leib on November 5, 2012 at 07:48 PM | Permalink | Comments (11) | TrackBack

An Election Eve Message

Elections can be emotional times, I know, so I thought a quick personal message might be appropriate and help provide some balm in this season. This is what I told my Facebook "friends," at least:

My own position on whom to vote for is fully thought-out, rational, and virtuous, most evidence of human limitations to the contrary. If you choose to vote for the other candidate, it cannot come down to a different but reasonable set of priors, priorities, and judgments. It must mean that you are ignorant at best, and possibly evil.* And although this country's two-party system and government structure is subject to a wide range of pathologies, those considerations are irrelevant to the basic fact that my position on any given candidate, although it necessarily involves a host of complex considerations and an overall balancing of interests, is wholly right and yours wholly wrong. Now let's have a clean, civil fight and remember our ultimate common brotherhood.

 

* After posting this, I realized I had misspoken. Apparently I should have said, ignorant, evil, and sociopathic.

Posted by Paul Horwitz on November 5, 2012 at 03:47 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Underneath the Law Review Submission Process: Part XII The Elusive Fall Cycle

During my last visit to Prawfs I did a series of posts on the Law Review submission process.  With a little help from the BYU Law Review, I did a bit of research into submissions and the timing of submissions.  I also did some interviews with articles editors with tips for faculty and some interviews with faculty members with tips for current articles editors. 

Several people asked if I could do something similar to investigate the elusive fall law review submission period.  I've done a little research on this and will do a few posts, though I don't think I've really learned as much as I had hoped about this cycle.  And unfortunately I don't think this information will conclusively resolve any of the questions some of us have: which cycle is better fall or winter? when is the best time to submit my piece? what is with all of the rejections or (worse?) silence from the law reviews?  But I think the information may be helpful to some people who want to get a sense of the volume of articles submitted during each cycle and when the submissions occur.  That way, we can continue to be superstitious and submit on the day/week we always submit and now how some numbers to back up our superstition.

As always, some disclaimers before I give you the numbers.  BYU Law Review was again willing to give me some numbers during their fall submission window (Thanks especially to Heath Waddingham and Joe Orien for this).  BYU may be unique and is just one law review, so take this for what it is.  Obviously, a study of a random sample of law reviews would be better.  Or better yet getting data from Expresso.  Also, BYU's submission window was relatively short this year.  They "opened" submissions from Expresso from August 11-August 31.  Those three weeks were all they needed to pick up the articles necessary to fill their volumes.  Certainly the fall submission cycle goes beyond August 31 but BYU closed by labor day and so I don't have any numbers beyond August 31 (I think that in itself can be a lesson to some of us who tend to submit after labor day that some law reviews fill their issues before we have even submitted).  If any other law reviews want to give us information on submission numbers later in the fall, that would be really great.  I'm happy to post them or if you want to just give us information in the comments, that would be helpful.  In my next post, I'll compare the fall numbers with the winter numbers just so we can get a sense of the difference in volume.

Ok, so here is a chart of the numbers of submissions during three weeks of the Fall law review submission cycle:

Fallsubmissionsbydate

And here is another one just showing which days of the week (during this three week period between Aug 11-31) the submissions were most prevalent:

Submissionsbydayofweek

And the final chart in this post:

Submissionsbyweekfall

I was surprised at how early the fall submission cycle started.  While some of us are still in August vacation mode, others are busy churning out law review articles for submission.  Impressive.  More next time with comparisons.

 

 

Posted by Shima Baradaran Baughman on November 5, 2012 at 11:39 AM | Permalink | Comments (0) | TrackBack

Stealing signs

FrontThis sign is on a house in my neighborhood in Miami-Dade County. The owners had been displaying an Obama sign for a couple of weeks, which was no longer there on Saturday (Jen and I noticed it and actually discussed whether the owner had taken it down or it had been stolen). This new sign, with the added message, was back this afternoon. This is not the sole example of alleged sign theft I have seen. Another house, displaying a number of Romney signs, included a homemade one reading "Obama Vandals, stealing only stiffens our resolve," which I infer means they also had signs stolen or destroyed.

I do not know what it means for something to be Un-American or American; I certainly do not want anyone defining for me (nor do I have any interest in defining) what is or is not "American." I am reading the sign to say something like "stealing signs is inconsistent with the freedom of speech, which so many think of as a core American value." If so, I want to push back on that.

I previously descibed what I call symbolic counter-speech, in which one counter-speaks (in the Brandeisian sense) to a symbol using the symbol itself as the vehicle for the counter-speech. I identified three forms of symbolic counter-speech: 1) disengaging from the symbol (think Barnette); 2) confronting it with a competing, overriding symbol; and 3) attacking, often by destroying or eliminating, the symbol itself. Stealing a yard sign falls within the third category. The homeowner was obviously expressing his support for President Obama by displaying the sign (in a medium that the Supreme Court has recognized as uniquely important). Whoever took the sign was counter-speaking, expressing his opposition to Obama, by attacking and eliminating the supporting symbol. That is an unquestionably expressive act.

This does not mean the expressive act is unconditionally protected by the First Amendment, of course. Were they to find the thief, he could not successfully assert the First Amendment as a defense to a charge of theft, vandalism, or some other neutral, non-speech legal rule. So his expressive interests yield, in this situation, to the homeowner's interests in his private property. But that does not mean the person who stole the sign was not exercising that core American value of free speech.

One other thing. The new yard sign is two-sided, placed so that both sides can be seen by someone on the street. But the added message only was placed on one side; it was printed out on a sheet of white see-through printer paper. The resulting effect, which you can see after the jump, is obviously unintended, but highly ironic in light of much of the dislike for President Obama.

Back


 

Posted by Howard Wasserman on November 5, 2012 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Jingle deprivation and other afflications at the center of the political universe

Here in the ultimate swing state, where Barack Obama and Mitt Romney are waging a pitched campaign for the Presidency of Ohio, the barrage of ads has even many adults weeping from exhaustion. And as we near the end of the race, a period in which dirty tricks are unlikely to attract enough media attention to be tactically unwise, the ambush political marketing has begun -- the paper inserted in an office printer that has a political flyer on its back side computer virus that causes the backside of every printed page of an outlook email to be a political ad; the unwanted "advisory" emails from the church webmaster; the post-it notes attached to gas pumps asserting some policy position; and of course, the classic sign stealing.

The Justices that signed on to Citizens United -- and any clerks that helped draft the opinions -- should be sentenced to spend eight weeks in front of a TV in Ohio during the next presidential election.

Perhaps the hardest thing about the end of this race is that I am suffering from an intense bout of jingle deprivation.

In ordinary times, TV and radio space in the Toledo market isn't that expensive.  So lots of businesses put up ads that have been executed with, let's say, less than a "Mad Men" level of flair.  It seems as if almost every business -- and, I'm embarrassed to admit, even every institution of higher education -- has a jingle. 

Although I'm a bit surprised to be feeling this way, I miss those catchy and unsophisticated melodies.  The remote car starter installation song.  The disaster clean-up song that reminds me what number to call if I have a flood or fire to clean up at home or a dead raccoon under the porch.

As a parent, I've found those tunes quite useful when adapted to sing to a toddler or infant about the benefits of eating food, going potty, etc.  And my quiver of melodies has gone empty thanks to the Presidential campaign.  At the very least, these candidates should do a better job of reducing their message to a three-note, two-measure jingle.

Posted by Geoffrey Rapp on November 5, 2012 at 09:07 AM | Permalink | Comments (4) | TrackBack

Sunday, November 04, 2012

Why Buy Insurance, Anyway?

Of the many criticisms I thought I might receive in response to my last post about the link between health insurance and job creation, I didn't expect to receive the primary criticism that I did: that buying insurance -- of any kind -- is simply a fool's errand. Jimbino makes the point in comments, and despite the somewhat "trollish" nature of the comments, there are enough good points in there that I started a reply. The reply grew so long that it became a new post.

Long story short, Jimbino points out that on average, people in the aggregate only get back 60% of their insurance premiums (and most never get anything). I have no idea if that's true, but it sounds reasonable enough.  They would never tolerate such odds at the casino (though people, for some reason, seem to think that 98% payout slots are a good deal). My gut, unsupported by empirical evidence, is that most people who think this way have no dependents and have never suffered a catastrophic event outside of their control. Indeed, Jimbino notes how insurance helps aging widows and hypochondriacs at the expense of young, healthy black men. Jimbino also asks about all the suckers in Illinois who pay for insurance but never get hit by hurricanes (apparently Jimbino has not heard of fire). There is at least a kernel of truth here, but only a kernel, since insurance is priced higher for those more likely to use it. Insurance costs more in New York and Florida than in Illinois, I suspect. If it doesn't there is a problem with the market. 

Here are some more general thoughts on why one might (or might not) buy insurance, after the jump.

It is true that insurance payouts are less than intake. They would have to be, or no one would do it, at least privately. It's why you see large entities self-insuring. Indeed, it's why my own firm self-insured all but catastrophic health events. My current employer self-insures dental insurance - the expenses are much more calculable and catastrophes are rare.  It is just cheaper to self insure sometimes. Of course, a way to improve the payouts is to make such insurance public, so that payouts equal all but the expenses of running the system.

Even though insurance usually winds up being a net negative, I'm not so sure that going without and self insuring works for three reasons:

1. Self insurance takes financial planning that most families cannot achieve in practice. An automatic payroll deduction makes health insurance happen. A mortgage escrow makes property insurance happen. With self insurance, you can't bank on families saving that same money for a rainy day. Indeed, think of all the people who let their auto insurance lapse. If you don't "force" it through an automatic deduction of some sort, it just won't happen as a practical matter, even though it should. This is tied to the same irrationality that causes people to buy insurance in the first place rather than simply save, I suppose, but there you have it. 

2. Self insurance requires liquidity and credit. Most people don't have cash in the bank for catastrophic illness or home destruction. So they have to borrow. Is it more rational to wait until the illness or destruction, and then borrow? Sure, I suppose, but only if you can borrow the money when you need it, and only if you can pay it back. If the primary wage earner is the one struck with health, disability, or life (death!) issues, forget that loan. Even if credit is available, a $100 a month home insurance premium may be thrown away if nothing happens, but the $1000 a month on a second mortgage sure will be painful if you house burns down. Of course, maybe you'll never have to pay it, but Jimbino significantly discounts risk aversion. Some would rather pay $100 a month now, than risk paying $1000 a month later.

 In a similar vein, I've added up all the money I expect to have wasted on life insurance when it runs out and I'm still alive. It's no small amount. It's worth every penny knowing that my wife, who's been out of the job market for years so she can spend time at home with the kids, won't have any trouble paying the bills if I get hit by a bus.  Jimbino says that, like work, nobody wishes they had more insurance on their deathbed. This may be true for him/her, but I would certainly be concerned if I were dying and uninsured. My first major purchase when she first got pregnant? A new car. My second major purchase? Life insurance.  A scam by the insurance company? Maybe so, but I'll sleep just fine tonight.

 3. The bargaining/shopping power of insurance is important. My $150,000+ bill was negotiated down to $35K by the insurance company. Why? If the hospital doesn't agree, the insurer will send folks to other hospitals. Could I have negotiated it down? Maybe, maybe not. Could I have gone to Mexico or Czech Republic and paid less, as Jimbino suggests? Actually, no. Turns out that the expert in my issue (afflicting 60 people or so in the last 20 years) is here at Penn, half an hour away. Boy did I get lucky. People come from around the country to see him. And they take the train, because you aren't supposed to fly with what I had. So there's no shopping around in some cases, and it's not about being a hypochondriac.

Even for more run of the mill stuff, is it really an answer to say, "Well, you could get this cheaper, if you fly to Brazil." Really? Perhaps some of that percentage that the insurance company gets to keep is worth not having to fly my autistic kid to Brazil to see a developmental pediatrician - and borrow to pay for it, as well.

Perhaps I've given Jimbino too much credit by giving the self insurance point too much credit. I don't think so, though. Jimbino's views suffer from a common economic misconception - that because something makes economic sense in some circumstances and for some people, it must obviously work for everyone, all the time. I want to make clear that self insurance really does make sense, but in very narrow circumstances. For others, high deductible catastrophic insurance might be the way to go. But not for everyone, and not just for hypochondriacs.

Posted by Michael Risch on November 4, 2012 at 06:11 PM | Permalink | Comments (11) | TrackBack

Stupid Wistfulness About a Running Competition

This story is collossally stupid.  Many parts of the greater New York metropolitan area, including large swaths of Long Island and Westchester County, continue to be without electricity and heat, with the weather getting colder and colder and the estimate for lights to go on sometime next weekend.  I do not live in New York City itself, but there are large numbers of people (particularly the poorer residents) struggling there too.  There is a large storm forecasted for Wednesday which is expected to bring more water to a devastated area.  My own family has been without heat and electric power since last Monday (I'm at a coffee shop writing this, where I have gone every day to juice up).  Many of my students and colleagues have suffered far worse than that.

I do not feel any regret or wistfulness at all that a running race got cancelled.  The government's resources, state and local, are needed elsewhere.  In our area, exactly one Con Edison crew has been dispatched for a town of nearly 30,000 people.  One.  I like running too, and even ran in a couple of marathons in Boston many years ago.  I understand that maybe there might be some money that might come in to the City as a result of this race.

But many portions of the southern New York area are -- notwithstanding what one hears about how great a job the government is doing -- still in a state of disaster.  Grow up.

Posted by Marc DeGirolami on November 4, 2012 at 10:03 AM | Permalink | Comments (16) | TrackBack

Saturday, November 03, 2012

"The past is never dead. It's not even past."

Hello all and a tremendous thank you to Dan and the PrawfsBlawg crew for having me this month! I'm usually thinking about patent law, but today I've got a short note on other IP...

Last week, the estate of William Faulkner filed two lawsuits over quotes from Faulkner works – one against Sony for the movie, Midnight in Paris, featuring a misquote of the above quotation from Faulkner's novel, Requiem for a Nun, the other against the Washington Post and Northrop Grumman for an ad featuring a quote from a Harper’s piece on civil rights. The complaints can be found here and here. Both suits allege three causes of action: copyright infringement, trademark infringement and misappropriation for commercial advantage of Faulkner’s likeness and image. I’m guessing that the suits spark a little surprise and outrage in most folks, folks who feel like this shouldn’t be actionable copyright or trademark infringement because the use seems like a fair (and quite common) one. And I believe these mildly outraged folks would be right—both copyright and trademark fair use doctrines appear to protect this sort of use. We might give Faulkner his due on the misappropriation count, however—after all, the movie and ad are clearly commercial endeavors. Yet without delving too deeply into right of publicity torts, it seems reasonable that an incidental use in works of entertainment like a movie does not trigger liability. The ad may be a more difficult case because it’s not an entertaining work of fiction.

This is really interesting to Faulkner (and Woody Allen) fans. But an IP fan might have a couple more questions.

If everyone but the Faulkner estate thinks this case is a slam-dunk loser, why file it? And why pick these as your first suits ever in defending the estate’s intellectual property? One hypothesis: These suits are a shot across the bow to moviemakers, ad men and other creative types who want to quote (or misquote) Faulkner (a suggestion made by BU's BC's Dave Olson here) without getting the estate's permission. 

Another hypothesis: Assume the misappropriation claim with respect to the Northrop Grumman ad has a chance (however slim) of winning for the estate. Perhaps buttressing the state tort claim with two federal infringement claims frames the case as one of intellectual property rights and, in doing so, legitimizes and strengthens the state claim. Having a conversation about the quotes as protected expression or as protected marks (however weak those claims may be) may set up the misappropriation conversation more favorably for Faulkner than if it stood alone. The movie case (and others in the future) have to be filed to keep the momentum going—building a case for respect for their IP rights, whatever they may be.

As an aside, the estate appears recently to have licensed a quote to the television show, Modern Family. This is a question I usually ask my students. Should the fact that some people get and pay for permission inform our decision on whether those who do not seek permission and/or do not pay for similar uses are using fairly? For example, Weird Al usually gets permission for his songs even though they seem like fair uses after Campbell v. Acuff-Rose and when Lady Gaga would not grant permission, he created a parody of her song anyway, relying on fair use.

Looking forward to a great month here!

Posted by Amelia Rinehart on November 3, 2012 at 07:37 PM in Culture, Intellectual Property | Permalink | Comments (7) | TrackBack

Signing On, and a Shout-Out

I'm delighted to be back on Prawfs for the month.  It's been quite a week or two, and more interesting times appear to be on the horizon.  In addition to talking about some legal scholarship I've done and heard about recently I hope to be talking this month about the broader world around us, and specifically, what's been in the news.  As always, thanks to Dan for creating this wonderful community for making that type of exchange possible.

For now I want to just sign in, but also to give a shout-out to the con law faculty at Loyola-Chicago (Juan Perea, Alex Tesis, Mike Zimmer and the inimitable John Nowak) for hosting their fantastic annual con law colloquium, from which I just returned home.  Like Prawfs, the Loyola conference is a wonderful opportunity to share ideas and hear what others have to say, and I'm grateful to them like I am to Dan for providing such a great forum.

 

Posted by Bill Araiza on November 3, 2012 at 07:29 PM | Permalink | Comments (0) | TrackBack

Paul Caron's (beautiful) post on the occasion of his son's "last game"

My own sons are 11 and 3 mos., so I won't have the occasion to write such a note for a while, but I thought this letter, from LawBlogKing Paul Caron to his son, who just played his last college soccer game, was beautiful.

Posted by Rick Garnett on November 3, 2012 at 11:21 AM | Permalink | Comments (1) | TrackBack

Friday, November 02, 2012

Belated rotations

With apologies for the late start--i'm doing some solo parenting and travel in Toronto right now--let me take a moment to thank all our October guests and briefly signal the arrival of our November friends. Welcome back to Shima Baradaran (BYU); Franita Tolson (FSU); Michael Helfand (Pepperdine); Geoffrey Rapp (Toledo); Michael Risch (Villanova); Amelia Rinehart (Utah); and Bill Araiza (BLS). All but Amelia are old hands here, so let's make an especially warm welcome to Amelia, who writes about IP and patent in particular.

While I have my paws on these inter-webs here, let me reiterate many thanks I owe to François Tanguay-Renaud for a wonderful afternoon of companionship and insights regarding my shitty short draft on retributive justice in "wicked" regimes at Osgoode. (Notwithstanding having lost my voice a couple days ago, the miracle elixir of hot water with honey made possible a few words during my talk today as part of Francois' series.) I was also glad to see and hang out with Ben Berger, Danny Priel, and Lindsay Farmer, among others. I'm now puzzled, more than ever, why Toronto's tourism bureau doesn't do more to advertise all the punishment theorist jewels in its lovely crown!

Posted by Administrators on November 2, 2012 at 11:36 PM in Blogging | Permalink | Comments (0) | TrackBack

Bishop Jenky's Letter

Bishop Daniel Jenky received some attention today for his order to priests in his diocese to read a letter this weekend, on the verge of the election. The letter can be found in full here. Some relevant excerpts:

Since the foundation of the American Republic and the adoption of the Bill of Rights, I do not think there has ever been a time more threatening to our religious liberty than the present. Neither the president of the United States nor the current majority of the Federal Senate have been willing to even consider the Catholic community’s grave objections to those HHS mandates that would require all Catholic institutions, exempting only our church buildings, to fund abortion, sterilization, and artificial contraception.

This assault upon our religious freedom is simply without precedent in the American political and legal system. . . .  

I therefore call upon every practicing Catholic in this Diocese to vote. Be faithful to Christ and to your Catholic Faith. May God guide and protect his Holy Church, and may God bless America.

I should be clear that I don't agree with much of the hyperventilating that this letter has occasioned. But the bishop does some hyperventilating of his own. His letter strikes me as a document that wavers between wrong and bizarre--and I say that as a critic of the mandate.

Let me offer a few examples of things that either distress or bewilder me about the letter. First, I find the suggestion that "there has [n]ever been a time more threatening to our religious liberty than the present" in American history astounding, especially for a one-time history student. Leaving aside the pregnant phrase "Know Nothing," I must imagine that many native Americans, Jehovah's Witnesses, and Mormons, to say nothing of more historically aware Catholics, would have to take issue with Bishop Jenky on this one. I grant that this involves a matter of opinion as to which there can be no final resolution; I think I could make an equally strong case that the years 1980-1992 represented a greater threat to religious liberty than the present day, but I wouldn't expect to persuade the bishop to change his mind. That said, he is quite obviously wrong. For similar reasons, I'm not sure what to make of the claim that "This assault upon our religious freedom is simply without precedent in the American political and legal system," except that it is either wrong or silly.

Finally, I find the closing statement urging the faithful to vote fairly remarkable for a number of reasons. The letter is about the mandate, not about abortion or contraception themselves. I could full well understand a letter urging every member of the faithful to vote against any politician who supports either abortion or contraception, and arguing that a vote to the contrary would be a mortal sin. But the subject of this letter is a contested and contestable issue concerning the scope of government power to promulgate generally applicable (in a colloquial rather than technical sense) regulations and the extent to which the government, having already accommodated churches to some extent, is obliged to go further. I'm not one of the faithful, but this strikes me as moving well beyond either the bishop's expertise or his flock's obligations. Indeed, I'm surprised that he calls upon the faithful to vote at all. Again, I can understand him commanding the faithful not to cast a vote that constitutes mortal sin, but are they not free in good conscience to refuse to vote at all--if, say, they believe (and I don't necessarily share this view) that the President's leading opponent would repeal the mandate but otherwise act in ways that increased human suffering?  

 

 

 

Posted by Paul Horwitz on November 2, 2012 at 10:19 PM in Paul Horwitz | Permalink | Comments (9) | TrackBack

Supreme Court 2012: Bailey v. United States and Detention During a Search Warrant

Thanks to Danny and the Prawfs folks for having me back this month.  I plan to post a little on the fall law review submission process like I did on my last stint, but first I wanted to report on an interesting (and potentially important) criminal procedure case that the Supreme Court heard yesterday.

The Supreme Court heard arguments in Bailey v. United States (Docket No. 11-770) yesterday rescheduled from October 30) that presented the question of whether a police officer, incident to the execution of a search warrant, may detain a former occupant who has left the immediate vicinity of the premises.

The real question in this case is how far with the Court will expand or limit the rule set out in Michigan v. SummersMichigan v. Summers adopted a categorical rule that police may detain an occupant of the immediate premises incident to the execution of a search warrant. The Court is now asked to decide whether to extend the Summers rule to allow police to detain, incident to the execution of a search warrant, a former occupant who has left the immediate vicinity of the premise and has driven almost a mile away and handcuff and return him to the premises while executing the warrant.

The brief facts here are that detectives obtained a “no-knock” warrant to search a basement apartment based on a tip from a confidential informant that the apartment was occupied by an individual known as “Polo, a heavy set black male with short hair” who had a .380-caliber handgun, which was the object of the warrant. Before the warrant was issued, two detectives arrived at the house in an unmarked police vehicle to survey the premises. Another team of officers arrived shortly after to execute the warrant.  When detectives saw two men fitting the description of “Polo” leave the premises, they followed them out of the driveway and pulled their car over about a mile down the road.  They conducted pat-down searches of both men and then returned them to the basement apartment in handcuffs in the back of the police car.  The search of the apartment revealed ammunition, drugs and drug-related paraphernalia in plain view, though no .380-caliber handgun was found.  In determining whether the evidence should be suppressed, the Court considered whether these individuals were properly detained under Michigan v. Summers even though they were apprehended about a mile away from the premises.

The rationale under Michigan v. Summers for detaining individuals while executing a search warrant included officer safety, facilitating the orderly completion of the search, and the interest in preventing flight.  The major dispute in this case is how broadly to interpret the Summers rule and whether its purposes still apply to an occupant who is no longer at the place the warrant is executed. Petitioner contends that the three justifications underlying the adoption of the categorical rule in Summers are not applicable here, because a person who has left the immediate vicinity of the premises poses minimal risk to officers executing the warrant. 

During oral arguments, the Justices pressed the government on this issue.  The government argued that the officers face a risk when they see individuals leaving the location of a search that they may return at any time to the premises while the officers are conducting the search.  But during arguments, Justice Sotomayor pointed out that there is always a threat that the owner of a home will return while police are effectuating a warrant and this is precisely the reason why officers may employ two teams of officers—as they did in this case—one to survey and the other to conduct the search. 

The government on the other hand focused its briefs and arguments on the realities for law enforcement not being consistent with strict limitations of the Summers rule. First, the government notes that Summers in dicta rejected a geographic limitation on the detention of individuals at the premises by viewing “the fact that [the defendant] was leaving his house as lacking any constitutional significance.” This means that the detention may take place outside the residence itself, rendering the petitioner’s argument to the contrary moot. Second, the government argued that, under the reasoning set forth in Summers, when officers observe an occupant depart the premises, they have an articulable suspicion to detain the occupant because the existence of a valid search warrant gives rise to the inference that someone inside the home is committing a crime. Both these explanations undermine the need for a geographic limitation on Summers.  In oral argument, though, the Justices pressed petitioner and the government on this issue to determine what standard should apply in limiting police in detaining
individuals when effectuating a search warrant.

The Court’s decision in Bailey v. United States is likely to have a number of meaningful ramifications. From the outset, it will resolve a deepening divide in the circuit courts. In addition to the Second Circuit in the opinion below, three courts— the Fifth, Sixth, and Seventh Circuits—have chosen to extend Summers based on fact pattern substantially similar to that of the case at bar. Two courts—the Eight and TenthCircuits—have read Summers narrowly and held that the rule does not apply outside the fact pattern presented in that case. 

It is somewhat unclear what practical impact a holding in either direction would have on police work. The government lists several cases and evidence from FBI reports which document instances of individuals coming to a location where a search warrant is being executed and causing serious injury or death to one or more of the law enforcement officials on site. However, as the petitioner notes, the government does not cite an instance in which an individual who once occupied a premises returned during the execution of a search warrant. Further, the government argues that cabining Summers to its facts would require that police take a “now-or-never” approach to warrant execution and detention; that is, either execute a warrant prematurely to detain occupants of the premises, or allow the occupants to leave outright. This may or may not be a completely accurate depiction of the law enforcement landscape, however. As the ACLU notes in its amicus brief, police have several alternatives, including surveilling and following the suspect until they develop probable cause to detain and subsequently search the individual for contraband, or making a Terry stop based on reasonable suspicion for erratic driving or for obvious attempts to avoid police contact.  Because the government does not present much by way of firm, reliable evidence of how this rule would disrupt (or enhance) police practice, the impact on subsequent police activity is difficult to predict.  Regardless, it appears from oral argument that the Supreme Court is looking for a rule that may give clear guidance to officers on when they can and cannot detain individuals while executing a warrant.

Posted by Shima Baradaran Baughman on November 2, 2012 at 02:40 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

More on defending Nate Silver

Piling on Franita's post about the recent conservative attacks on Nate Silver: Deadsin offers (in the typical language of Deadspin, so be warned) a largely non-political explanation: Silver is being criticized (or at least questioned) by the political class (both activists and the mainstream media) for being a nerd relying on statistics, numbers, and math, rather than the "gut feelings" and "knowhow" and "real-world" experience that they have brought to the table for all these years. In other words, the political world is experiencing the same dynamic that the sports world (especially baseball) has been going through for about 15 years, since the rise of Moneyball and advanced metrics. Silver, of course, got his start writing for Baseball Prospectus. And as with many in baseball, the current guard in the political world either does not get it or does not want to get it. And as the math gets better, this will only intensify. By the way, Joseph Slater makes a similar point in a comment on Franita's post.

Thus, Chris Chilliza of WaPo could move Ohio into the "toss-up" category, despite the showing of fourteen polls for the past two weeks, in part because of the "absolute necessity for Romney to win the state if he wants to be president." So because Romney really wants/needs it, the state must be a toss-up. This does not sound much different from baseball announcers who insist that average-but-"scrappy" players are better than superstars who produce big statistics because they "want it more" and "will do whatever it takes to win."

By the way, for those of you who can't get enough of this poll aggregation stuff, check out the Princeton Election Consortium, run by Dr. Sam Wang, a neuroscientist at Princeton. He uses a different model than Silver (and actually has criticized Silver's approach), but with similar accuracy.

Posted by Howard Wasserman on November 2, 2012 at 11:19 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7) | TrackBack

Whither the Jewish vote?

Has anyone heard or seen much about polls indicating how the Jewish vote is expected to go this time? Jews have historically leaned strongly Democratic, even as they, as group, have gained in socio-economic power (the famous paraprase of Milton Himmelfarb is that "Jews earn like Episcopalians and vote like Puerto Ricans."). In 2008, Obama won around 74 % of the Jewish vote--this despite initial fears over older Jews, which prompted the Great Schlep in which younger Jews were encouraged to go visit their grandparents in Florida to encourage them to vote for Obama. And while the profile and influence of a Jewish conservative movement has risen in the past decade, the numbers have remained fairly stable since 1972. Georgetown's Program for Jewish Civilization sponsored a symposium on the subject last week (videos included); interesting stuff. One of the speakers at the symposium identified data howing Obama ahead of where he was in the polls four years ago.

So I was surprised to learn of one recent, admittedly non-scientific poll: The first-graders in my daughter's Reform Jewish day school (n=37) seem to be about equally divided between Obama and Ryan, with one class heavily for Romney. This presumably means their parents are similarly divided--or my daughter is in a preternaturally conservative and independent cohort. Needless to say, I was surprised; I expected something like a 75-25 split, maybe higher. Predictions that the Jewish vote would change have generally focused on the increasing populations of Orthodox Jews (who, like many religiously observant groups, tend to vote Republican) and of more-conservative immigrants from the former Soviet Union. But neither of those population points explains this result (which admittedly will not make it  into the 538 calculations).

Posted by Howard Wasserman on November 2, 2012 at 10:53 AM in Howard Wasserman, Law Review Review | Permalink | Comments (2) | TrackBack

The Unappreciated Link between Health Insurance and Job Creation

Thanks to Prawfs for having me back. I hope to blog about a variety of things this time around, mostly in my primary areas of interest. But first, I've got a post that I've been thinking about for a while, and while I've got the bully pulpit, I'll try it out.

After two presidential debates (three if you count the “foreign policy” debate), a vice-presidential debate, and eighteen months of campaigning, the candidates seem to be missing a critical link between health care reform and job creation. This link undermines Governor Romney’s plan to create jobs through tax cuts as much as it represents a missed opportunity by President Obama to defend his signature legislation. I have views about the best way to bring affordable health insurance to everyone, but I won’t express those here. I don't want my main point to get bogged down in the details of how you get there. Instead, I’ll only point out the importance of widespread availability of such insurance.

More than tax cuts, and more than abandoned regulation, small businesses need customers. Health insurance is a critical but unappreciated link to provide these customers. I’ll give a personal example. In May of this year, my wife and I committed to a modest renovation of a part of our home. A couple months later, just before work was to start, I was diagnosed with an extremely rare condition that took two surgeons about six hours to repair . The bill for my five day stay at the hospital was about $133,000, and the doctor’s bills, CAT scans, and MRIs will easily put the total over $150,000. But I was insured. We had to pay for a chunk of the operation – about $2000 after all copays.

Coincidentally, work started on the house the day I came home from the hospital. We could continue with the plan, and our contractor and his employees, subcontractors, and supply houses will all see business. Our contractor may make over $250,000 per year, but I doubt it based on what we are paying for this work and what we are getting in return. He’s just a decent guy doing good work, but he needs customers – especially in a tough economy – and we would have been one less job. Our project isn’t the biggest one in the world; indeed, it’s a fraction of what I would have owed the hospital if I were uninsured. My insurance created jobs, and I am sure my insurance is not alone in that respect.

Insurance not only creates customers, it can help directly create jobs. Just last month, my sister—a podiatrist—seriously considered selling her practice for almost zero equity to become an employee at a large practice. This would have likely cut her lifetime earnings in half and forced her to lay off her three staff, one of whom is our mother! Why would she do such a thing? To get health insurance, of course. She has been denied several times due to a “preexisting condition” that is related to her sex, essentially healed, and never life threatening. In other words, she cannot get insurance at any price. Her staff is all insured by other means, so she can’t form a group, and even if she did her coverage would likely be limited by preexisting conditions. She is holding on for the ability to buy insurance under the new law, and we are all hoping it will come soon. She is surely not alone.

My sister’s story ties to a bigger job creation issue. Without the ability to obtain affordable healthcare, people will simply not form businesses and hire other people. They will remain employees. This is a much bigger implication of insurance cost reduction. I know how much small group insurance plans can cost; I used to negotiate them for my law firm. We wound up having to purchase major medical insurance while self-insuring the first $5,000 of medical expenses because our premiums rose at astronomical rates. My partners and our employees were not happy with the bureaucracy this created, but the alternatives were daunting. This is not an incentive to form a business, and shaving some percentage points of my top tax rate won't get me to create a business if I think I can't get insurance at any price. That's me, by the way. Not that I would ever quit being a professor (the greatest job in the world), but because of my condition I won't be able to get insurance without. I would be an employee for the rest of my life, without even the ability to take a year off that isn't a sabbatical that includes coverage. So much for harnessing bright ideas to hire others.

Maybe it would be better to have more expensive insurance available to fewer people like we do now, but justifying the status quo should take into account all the effects of insurance. Accessible, affordable health insurance creates jobs in ways no one is talking about, but they should be.

 

Posted by Michael Risch on November 2, 2012 at 09:29 AM in Law and Politics, Workplace Law | Permalink | Comments (8) | TrackBack

In Defense of Nate Silver

Glad to be back at prawfs.  This month, I will be talking about the election (at least until November 6 and then I never want to talk about it again…seriously burned out) and then I will focus on the constitutionality of the Voting Rights Act.  But first, let’s talk polls.

One thing that is notable about this election cycle is attempts by politically minded folks to either “unskew” polls that are unfavorable to their side or dismiss them outright because of “shady” methodology.   Nate Silver, who runs the 538 blog at the New York Times, is the most recent victim of attacks from the right because his model gives President Obama a 80% chance of winning an election that everyone (including Silver) believes is a tie at this point.  One of the reasons that President Obama fares so well under Silver’s model is because the model weighs state polls more heavily than national polls.   Since Obama is ahead in battleground states like Ohio, Iowa, Michigan, New Hampshire, and Wisconsin and tied or slightly behind in others, he does exceptionally well in Silver’s model.  Not surprisingly, this has generated a lot of outrage and accusations on the right, leading Silver to recently bet Joe Scarborough, former GOP congressman and current host of MSNBC’s Morning Joe, $1000 that Obama will win reelection next Tuesday (and by implication betting his reputation on the outcome of the election) after Scarborough criticized him (without mentioning Silver by name) on Morning Joe

I am by no means a statistician, but like every one else that studies or writes on elections, I am obsessed with polls.  However, I think that one thing that has gotten lost in these attacks on Nate Silver is that Silver never said that Romney had a 0% chance of winning the presidency.  He is not saying that Obama is guaranteed to win next Tuesday.   Why does this trouble me when it is probably a matter of semantics?  Because even if Romney wins, it is not entirely clear to me why Silver’s reputation should be tarnished since his model does not predict a winner, just a probability.  Silver gave Romney a little less than a 1 in 5 chance of winning; to listen to the Romney campaign and his surrogates, Romney’s chances far exceed 20%.  In reality, I don’t think that anyone actually believes that this race is not tight (it is probably going to be a nail biter).   But the interesting point in all of this is that Gallup has Romney ahead by 4-7 points nationally in recent polls but I have yet to hear anyone say Gallup’s reputation will be tarnished if Obama is reelected on Tuesday.  Similarly, no one suggests that Rasmussen, also polling Romney favorably in many of the battlegrounds, would have to stop conducting polls if Romney does not pull out a win on Tuesday.  In contrast, if Obama loses, there is a strong possibility that Silver’s reputation will not be able to recover because of all of the pushback that he is getting for the fact that his model gives Obama such a high probability of winning (rather than any actual flaws in his model, surprisingly enough). 

In any event, I guess we will see who is right on Tuesday.  Can’t wait.

Posted by Franita Tolson on November 2, 2012 at 12:14 AM | Permalink | Comments (18) | TrackBack

Thursday, November 01, 2012

Greetings from the West Coast

It's good to be back at Prawfs for the month to blog a bit about some issues I've been thinking about lately - like, can you really bring a class action lawsuit against Hebrew National for having insufficiently kosher hot dogs and could a piece of string really violate the Establishment Clause.

But before jumping into all that, I did want to say that most of my week has been focused on family and friends back on the East Coast.  Having grown up on the Upper West Side of Manhattan, the pictures and video from Sandy have simply been astonishing.  So I thought I'd post a short video shot by Casey Neistat who was out and about in New York during the hurricane.  I hope all of you back East are doing okay!

 

Posted by Michael Helfand on November 1, 2012 at 01:55 PM | Permalink | Comments (0) | TrackBack

In a Galaxy Far, Far Away...They All Lived Happily Ever After

Yesterday's news that Disney will be absorbing Lucasfilm -- and releasing "Episode 7" of the Star Wars series in 2015 -- has prompted strong reactions along multiple fronts.  I've never thought of myself as a "fan boy," and I've never been to a convention. Still, the original Star Wars series certainly was a formative part of my childhood -- helping to define a generation and a moment in historyEmpire was the first movie I ever saw in a "theater" (although it was a second-run on a military base, so it was some time after the original screening).  I had the Millenium Falcon toy and an imperial walker, and a number of little plastic humanoids that provided hours of entertainment.

Like most people of a certain age, I hated the "new" trilogy (although I personnally didn't really have any feelings about reworking of the originals).  Frankly, if there is going to be a new trilogy set in the Star Wars universe, the fact that anyone other than George Lucas would call the shots is a good thing. 

But Disney isn't just anyone.  This is Team Rodent

They say that parenthood changes one's worldview.  I am still too sleep deprived three and half years into that adventure to have a worldview.  But I will say that parenting changes one's view of Disney.

Without Baby Einsteins, I don't think I could have ever convinced my 10 month old to eat food.  Without Jake and the Neverland Pirates, my three-year-old would be far less handy to have around for boarding parties.

One thing I will say about Disney movies is that, even though they are "family oriented," these things are dark.  (And the DVD settings aren't aligned perfectly to allow fast-forwarding past, say, the kidnapping scene in Tangled or the "bad bear" attacks in Brave).  So I think we can expect some of the sadness of the original Star Wars and less of the silliness of the prequels.

And wonderfully, we will now perhaps have a trilogy of Star Wars movies that merits "The Force and the Law" conferences and speculation about the impact of a personhood amendment on Wookiees.

Posted by Geoffrey Rapp on November 1, 2012 at 01:26 PM in Current Affairs, Film | Permalink | Comments (0) | TrackBack

Am I Getting What I Want?

I want to thank the good folks at Prawfsblawg for allowing me to blog here this month.  I apologize for not posting more, but I was unusually busy with projects this semester.  

One reason why I was so busy is because I was asked by SCOTUSBlog to cover Comcast v. Behrend, a class action case involving whether admissible, common proof of injury is necessary to certify an antitrust class action.  My argument preview is already up, and can be accessed here.

I had promised to blog on the filibuster, but you will have to wait for my paper to come out, which is co-authored with filibuster expert Greg Koger.  I want to end my stint with a bit of intellectual honesty.  

I have argued in prior articles for the use of mandatory class actions when the stakes are asymmetric, such as in mass tort litigation, where thousands of plaintiffs have to prove some or all of the same elements of liability against a single defendant.  Very briefly, collective actions prevent the plaintiffs from using economies of scale to invest in common issues, and defendants do not have those problems because they are the only one who has to disprove common issues.  The class action solves this problem of asymmetric stakes by empowering the attorney to dispose of all the plaintiffs' claims and giving her a percentage interest in the net recovery.  In doing so, the class attorney has the same incentives to invest in common issues as the defendant.  

The same problem arises in litigation involving small claims, such as antitrust litigation.  Thus, I have argued that courts should not require proof of classwide injury for class certification purposes because the class needs certification to invest in the merits.  Thus, class certification should occur before any merits determination, not after.  

I continue to believe this, but, in an odd way, a requirement of proof of classwide injury for litigaiton involving small claims may result in the very mandatory class action I have argued for in my articles.  Here's how.  The main problem with a nonmandatory, opt-out class action is that class members can opt out and free ride on investments in common issues, thereby reducing the incentives of those who actually invest in those issues.  Because freeriders can't be taxed for benefiting from common investments, the actual investors have less incentive to invest.  But freeriding in a small claims class action is nonexistent - either the case is litigated as a class action or no litigation occurs at all.   "[O]nly a lunatic or fanatic sues for $30."  Moreover, my sense is that competing class actions in small claims litigation rarely occur, at least for class actions based on federal law like antitrust class actions, and thus "reverse auctions" are not prevalent, but I could be wrong on this.

Finally, because the class attorney cannot settle all of the plaintiffs' claim prior to getting class certification, the class attorney has to litigate all the way to class certification.  Because courts after Wal-Mart are requiring proof of the merits for certification purposes, an award of class certification is effectively a merits determination, akin to summary judgment.  If that's the case, then the parties are forced to litigate the class action entirely, which avoids situations where the defendant settles the claim solely to avoid litigation costs unrelated to the merits.  In fact, by preventing settlement prior to the de facto summary judgment hearing, the plaintiff is prevented from filing a meritless class action to extract a blackmail settlement from the defendant.  

Thus, counterintuitively, requiring proof of the merits in a small claims class action may work.  It may result in a de facto mandatory class action where the parties are required to litigate at least through summary judgment.  But, that said, a lot of things have to go right.  Again, there can't be competing class actions to create free-riding opportunities.  Moreover, the class attorney must not sell out the de facto class prior to certification by agreeing to drop the suit for a payment, which, if he is rational and has adequate financing, she would not do.  The class respresentative also cannot agree to drop the suit, which would destroy the de facto mandatory class action I envision, but that is much, much harder (maybe even impossible) to guarantee.   Finally, the de facto merits determination at the time of certification must really be based on the merits.  However, many courts have noted the distinction between proof of classwide injury and proof that "common issues predominate," which is usually how proof of classwide injury comes in.  If courts want something more than the merits, something that effectively makes it impossible to certify a class in a certain area, then this de facto mandatory class action cannot possibly work.

But, if all of these things hold up, and this is a big if, this results in two ironies.  First, mandatory class actions are necessary for mass tort litigation, but not for small claims litigation.  Thus, it should be easier to certify mass tort litigation than small claims litigation, not harder.  Second, defense attorneys have to be careful about what they wish for.  Requiring stricter requirements for certification may result in the very thing plaintiffs' attorneys have wanted for years.  

It has been a pleasure, as always, to blog here.  And I am doubly blessed because I have a job where I think about these issues freely.  I look forward to your comments.

Posted by Sergio Campos on November 1, 2012 at 12:27 PM | Permalink | Comments (0) | TrackBack

Mrs. Coach speaks

Still more on the dust-up over Mitt Romney using Clear Eyes, Full Hearts in his campaign and speeches: Actress Connie Britton (who played Tami Taylor, a/k/a Mrs. Coach) and Sarah Aubrey (an executive producer on the show) wrote an op-ed in USA Today criticizing Romney for using the slogan, insisting that the women of Dillon, Texas would not approve. The piece particularly focuses on issues of health care and women's rights--ACA, equal pay, the future viability of Planned Parenthood (they point out that the single mother of star running back "Smash" Williams worked there, a detail I did not know or remember).

Anyway, draw your own conclusions.

Posted by Howard Wasserman on November 1, 2012 at 10:31 AM in Culture, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Jurisprudential homonyms

Today I was writing about the Supreme Court's decision in Hicks v. Miranda, a 1975 Younger abstention case. This, of course, is only the Court's second most-famous Miranda case. This Miranda, who was the plaintiff in the case, owned and operated a theatre in California trying to show "Deep Throat".

This got me thinking: What are some examples of pairs or sets of SCOTUS cases featuring parties with the same or similar names, especially where one case is much more famous than the others. Note that I'm thinking of cases involving different parties who happen to have the same names. So this will not include the multiple habeas cases involving Louie L. Wainwright, the long-time Secretary of the Florida Department of Corrections. Nor will it include Harry Connick, Sr., the long-serving District of Attorney for New Orleans, who helped give us execrable law in both public-employee speech and municipal liability. Different spellings are ok--for example, Ginsberg and Ginzburg.

Have at it in the comments.

Posted by Howard Wasserman on November 1, 2012 at 09:31 AM in Howard Wasserman | Permalink | Comments (5) | TrackBack