Tuesday, September 02, 2008
Check-Box Experience
I'd like to thank Dan M and the rest of the PB crew for having me back again. For those of you who don't know who I am (most of you, most likely), I'm an associate professor of economics at the University of Arizona. I'm very interested in law and in law & economics, though I don't have any formal legal training. I'll try to be clear in my posts about what I know and when I'm speculating/wondering. I should also note that, in addition to blogging here for the month, I'm also an occasional contributor to the Economists For Obama blog. Check it out if you're interested
We've heard a lot in this presidential election campaign about experience. Hillary Clinton said she had 35 years of it, John McCain's supporters say he has more than anyone elsee in galactic history, and both of them have at various times slammed Barack Obama (my guy, to be clear) for supposedly not having enough. Obama's response has regularly been that what matters is judgment, which of course he says he's got and McCain doesn't. Anyone with the most basic sense of politics would tell you that this is the obvious retort, and frame, for Obama to use, so no one should be surprised that he's doing so.
I happen to agree that judgment, rather than experience per se, is the more important issue. If you're not convinced on that point, then Sarah Palin would like to sell you on a bridge to nowhere. Maybe I'll write more about the distinction later, but for this post, I want to focus on why the argument about Obama's experience is wrong-headed.
Let me start by digressing. It happens that, in terms of academic achievement, professional acclaim, and so on, Paul Krugman is one of the leading international trade economists of his time, and also a top macroeconomist (health and tax policy, about which he writes frequently, were never his academic focus, but I digress from my digression). As an economist who does applied research on a variety of public-policy issues, I frequently run into other economists who say something like this:
Continue reading "Check-Box Experience"
Posted by Jonah Gelbach on September 2, 2008 at 02:50 PM in Current Affairs | Permalink | Comments (8) | TrackBack (0)
Goodbye, Del Martin
Our beautiful city’s light is dimmed this week, for loss of a wonderful citizen. We have lost Del Martin, who passed away this week at the age of 87, leaving behind her wife and partner of fifty-five years, Phyllis Lyon (image source: New York Times), as well as family and friends.
The NYT piece provides a good overview of Martin’s amazing life, the many organizations she formed and contributed to (such as the pioneering Daughters of Bilitis), her crucial contributions to the demedicalization of homosexuality, and her important work on aging. In fact, her lifetime involvement in GLBT activism virtually offers an overview of organizations, goals, and agendas the movement has had since the early 1950s. Anyone seeking more information about the history of GLBT organizations can find a great account in Elizabeth Armstrong’s excellent Forging Gay Identities. My take on this, however, focuses more on the personal than on the public; namely, on Martin's long-term relationship with Lyon, including their marriage in 2004 and, again, in 2008.
The marriage equality struggle has generated so much scholarly and online chatter that it’s difficult to find a fresh angle, so what I have to say may not be as polished and original as one would hope. My point is, mainly, that a relationship that spans fifty-five years seems somehow to trump any of the ordinary pros and cons about the debate.
Continue reading "Goodbye, Del Martin"
Posted by Hadar Aviram on September 2, 2008 at 02:13 PM | Permalink | Comments (1) | TrackBack (0)
Meta guest
So, as I undertake another guest stint at this fabulous blog, I wonder (aloud) about the motivations of serial guest blogging. Some guests (Rick Hills leaps first to mind, as does my colleague Jeff Harrison over at Moneylaw), by dint of voice and intellect, make an impression. The vast majority of the rest of us, however, don't. I begin to get a sense of some guests over the course of their visits, but then, once I get a handle on their interests and personality and voice, poof they're gone. I suppose this is in part because if we (and I suppose I should really be using I) had the time, gumption, and creativity, we/ I could start a new blog or achieve permanent status. Most of us don't, and so don't.
Meanwhile, some guests present their work, some focus on their particular academic interest, some reflect on the legal academy, some discuss personal or political interests -- and a guest's particular focus only emerges after, say, her third or fourth post. To prawfs' credit, I think, its guests vary widely, as do the topics of their posts. As someone who relies on his RSS reader as a means to recreate and relax (a/k/a kill time) and suffers from undiagnosed ADD, I like that quality of prawfs.
Assuming that, like me, most guest bloggers here don't have a single agenda in guesting, I'll speak only for myself and say that I enjoy the genre of blog writing, in the same way that I enjoy writing shorter-form essays and thinking about longer-form books, all as a complement to the law review articles that are the coin of the realm. Obviously, there's also an element of wanting to speak up and be noticed. But ultimately I don't enjoy the enterprise enough to aspire to permanent blogger status.
And, in case you couldn't tell, I tend to engage in (way too much) meta-blogging for a guest, and those who know me know I do way too much meta-navel-gazing in my life. Which is just another way to kill time, and another undiagnosed symptom of something. But if any other current guests or alumni wish to speak up about motivation, I'd love to hear their/ your thoughts, as well as those of any readers who want to discuss their thoughts on trying to follow a site with lots of guests.
Posted by Mark Fenster on September 2, 2008 at 11:31 AM | Permalink | Comments (1) | TrackBack (0)
Who "owns" airport access?
The brawl among administrative agencies over who controls valuable airport access continues. (See my prior post about Auctioning Airport Slots here .) Part of the story's attraction is that it pits local/regional authorities against federal ones - the Port Authority of New York and New Jersey against the Federal Aviation Administration.
The latest moves include the FAA's announcement that slots at Newark Airport will be auctioned on September 3 - tomorrow - with bids accepted immediately. The Port Authority has moved to intervene in an existing suit filed against the FAA to stop the auction. It argues that the FAA lacks congressional authority and that it started but didn't complete a rulemaking process proposing slot auctions. The FAA seems to be relying on procurement statutes and regs that allow it to lease property. But whose property?
Posted by Verity Winship on September 2, 2008 at 10:20 AM in Corporate | Permalink | Comments (0) | TrackBack (0)
Launch Day at Marquette
Today marks the launch of a new faculty blog by our friends at Marquette Law, including Prawfs veterans and soon-to-be guests: Michael O'Hear, Bruce Boyden, Paul Secunda, and Richard Esenberg. Keith Sharfman has a nice post up on the "decanal encouragement" of prawf blogging. I'm curious what reactions of prawfs would be if their deans "actively encouraged" more blogging by law professors.
In any event, I'm excited that I'll actually be visiting Marquette (and indeed Wisconsin) for the first time later this week to present my new paper, How Should Punitive Damages Work?, which I blogged about a couple days ago here. I'm hoping fans of the 'Kee can direct me to the best places to satisfy my jonesing for that Wisconsin cheese Gordon Smith perennially exalts. P.S. Congrats (belatedly) to Usha Rodrigues from UGA on joining the Glom. Her posts are wonderful.
Posted by Administrators on September 2, 2008 at 09:16 AM in Article Spotlight, Blogging | Permalink | Comments (0) | TrackBack (0)
Getting a job in the law teaching market
With Labour Day behind us, and all its delusions that summer may still be enjoyed, it's important to address the interests of those on the market for a law teaching job, or those who are thinking of making that move in the next couple years. Past prawfs guest Glenn Cohen (who himself nicely transitioned from a fellowship at HLS to a professorship at HLS) extended lots of advice during his past visits, which I thought I'd gather in one spot for those thinking about making the transition. Also check out Paul Caron's post which aggregates lots of useful links to various programs and resources for aspiring prawfs.
Posted by Administrators on September 2, 2008 at 08:46 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (2) | TrackBack (0)
Monday, September 01, 2008
The feds' commandeering of local governments to enforce immigration law
Hadar Aviram's post on San Francisco's battle with the feds over immigration policy highlights one of the gaping holes carved in state autonomy by the 1996 amendments to federal immigration and welfare laws. Those amendments bar state and local governments from restricting their agencies or employees from sending or receiving information about an individual's immigration status, thereby allowing state and local officials to defy the laws that create their offices and instead employ their state-conferred powers for federal purposes. (§434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1644, and §642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C.A § 1373).
Such federal laws are, in my view, a sneaky end-run around constitutional doctrines protecting state and local autonomy. It is well-established that the Congress itself cannot order a state to implement federal immigration law. How, then, can Congress delegate to state or local employees the power to use the state's legal authority and tax dollars in defiance of state law? That those employees themselves are acting voluntarily is irrelevant: They are acting on city time, using the city's powers and money, in defiance of state law. Such employees, therefore, are themselves commandeering state powers for federal ends. If Congress could not itself commandeer state legal authority, how can Congress delegate such commandeering power that it lacks to a third party like a state employee? (Shameless self-promotion: I defended this view of state autonomy in "Dissecting the State," 97 Mich. L. Rev. 1201 (1999)).
To my astonishment, however, Judge Ralph Winter wrote an opinion for a Second Circuit panel upholding the '96 amendments on the ground that the feds were not "commanding" anyone to do anything: federal law simply stopped non-federal officials from interfering with other people's decision voluntarily to cooperate with the feds. To construe Printz v. United States as barring such federal authorization for voluntary cooperation would, in Judge Winter's view, "turn the Tenth Amendment's shield ... into a sword allowing states and localities to engage in passive resistance that frustrates federal programs." City of New York v. United States, 179 F.3d 29, 35 (2nd Cir 1999).
Judge Winter's reasoning, I think, is transparently preposterous. It would be nice if San Francisco could be induced to re-litigate the Printz issue decided by City of New York. To my knowledge, the Ninth Circuit has not yet ruled on the question, and it would be a shame for the issue to be decided by reasoning as casual as Judge Winter's. It is possible that the Ninth Circuit might uphold the '96 amendments under Reno v. Condon, as a permissible command to share data rather than exercise "sovereign" regulatory powers. I think that such a result would be a mistake, but it would be a far narrower exception to state sovereignty than the gap in state autonomy created by Judge Winter's reasoning.
Posted by Rick Hills on September 1, 2008 at 01:48 PM in Constitutional thoughts | Permalink | Comments (5) | TrackBack (0)
Sanctuary City: They Say It Like It's a Bad Thing...?
Hi, PrawfsBlawg readers! And, for those of us who have started teaching this week or who will start on the next one, have an enriching, interesting, productive and sane semester.
We could start with a smooth, easy, welcoming first post, but, as Kima Greggs says on The Wire, sometimes things just gotta play hard. So, we'll get started by discussing something that has been making frequent and alarmed headlines here in San Francisco for the last few days: our Sanctuary City policy.
Upon receiving our Sunday papers a few weeks ago, we learned from an alarmed exposé in the Chronicle that the City has been systematically avoiding the deportation of undocumented immigrant juvenile offenders. Instead, the system has referred these offenders to social services, a practice that, apparently, has been abused in a number of cases. In the original article, SF Mayor Gavin Newsom linked this policy to San Francisco's "proud tradition as a haven for immigrants." However, after what must have been an incensed reaction to the discovery, the city changed its policy, and will, from now on, deport undocumented juveniles.
The two latest developments are as follows:
Continue reading "Sanctuary City: They Say It Like It's a Bad Thing...?"
Posted by Hadar Aviram on September 1, 2008 at 10:48 AM in Criminal Law | Permalink | Comments (0) | TrackBack (0)
Sunday, August 31, 2008
Rotations
A word of great gratitude is in order for our August crew of guest-bloggers: thanks much to Brooks Holland, Verity Winship, Lesley Wexler, Bruce Boyden, James Grimmelmann, Adam Kolber, Brian "Zoom" Galle, and Adil Haque. Some of them may be lingering around for a little while longer this coming month, but we also have some new folks to welcome to our conversation.
To that end, please welcome for the first time to Prawfs: Hadar Aviram (crim/Hastings) and Marc Blitz (OKCU/con law). Additionally, please welcome back Mark Fenster (Florida, property and cultural theory); Carissa Hessick (crim/Arizona State); and Jonah Gelbach (law and econ/UArizona B. School). There's an outside chance we'll have wonderblogger Birdthistle back too, depending on how the person-to-person defense is going. Welcome all!
Posted by Administrators on August 31, 2008 at 11:48 PM in Blogging | Permalink | Comments (0) | TrackBack (0)
Aviram and Scott Chatting
My superstar colleague, Hadar Aviram, was just interviewed by Law & Policy's editor Colin Scott about her recent article, "How Law Thinks of Disobedience: Perceiving and Addressing Desertion and Conscientious Objection in Israeli Military Courts." You can listen in here.
I'm looking forward to having Hadar blog with us soon.
Posted by Ethan Leib on August 31, 2008 at 04:08 PM | Permalink | Comments (2) | TrackBack (0)
How Should Punitive Damages Work?
Update 8/31: I'm moving this up to save having to write a new post. I just wanted to share the exciting news that I've just accepted an offer to publish this piece in the University of Pennsylvania Law Review in volume 157 (spring 2009 sometime). Interestingly, the piece didn't get picked up through an expedite, which should hearten those authors who wonder whether and how much "law review strategery" is necessary. I owe a giant thanks especially to Jason Solomon and the attendees at Prawfsfest! at Hofstra, who helped me see the need to restructure the piece entirely in the last month. Once I get some more revisions on that death penalty paper done in the next few days, I will blog about this paper some more.
***
I'm very excited to announce that I've recently uploaded to SSRN a working draft of my new paper, How Should Punitive Damages Work? You can download it here. It's still a work in progress but I hope to have solved a few policy and constitutional issues in it. As the sequel to my Retributive Damages piece coming out this January in Cornell LR, it tries to lay out in more careful detail how to build a better punitive damages regime. This particular piece focuses on issues common to all kinds of punitive damages cases.*
After providing some background, I explain that there are three normative goals that punitive damages can and should achieve:
1) the public interest in retributive justice, which is vindicated through what I call "retributive damages."
2) empowering victims with a mode of recourse that permits but does not obligate the victim to vindicate the injury to his/her dignity interest, an interest that is not otherwise compensated under traditional compensatory damages, and which I, following some Commonwealth jurisdictions, call "aggravated damages."
3) the pursuit of cost-internalization or "optimal deterrence" the extent to which it is permitted after Philip Morris. These are called "deterrence damages."
To make punitive damages work well, I argue that we have to separate retributive damages from damages meant to achieve deterrence or to vindicate the victim's dignity and autonomy interests. Because these purposes are distinct, a jurisdiction that conflates them risks both under- and over-protection of various defendants. Once we correctly understand these distinct purposes, our institutional design for civil damages should map these values appropriately.
The Article begins that task, first by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages vindicate, and second, by addressing the critical implementation issues associated with this pluralistic scheme of extra-compensatory damages: insurance, settlement, and taxation.
The argument is largely a prescriptive one: that is, if you agree with these rationales, which have been separately defended in the literature, then here's how to build an attractive pluralistic damages regime. However, I also want to ensure that this pluralistic extra-compensatory damages regime is in fact consistent with the Supreme Court's various cases, so there's an element of doctrinal analysis too.
Indeed, there are a number of constitutional arguments I make that counter, on the one hand, arguments by those like Tom Colby, who thinks that "retributive damages" would require the panoply of criminal procedural safeguards, and on the other hand, arguments by those like Marc Galanter and David Luban, who think the fact of privately initiated lawsuits for punitive damages means that relatively nothing in the way of procedural safeguards are constitutionally required or normatively justified.
My own view is that both of these positions are wrong. I explain why after the jump.
Continue reading "How Should Punitive Damages Work?"
Posted by Administrators on August 31, 2008 at 03:35 PM in Article Spotlight, Criminal Law, Dan Markel, Retributive Damages, Torts | Permalink | Comments (0) | TrackBack (0)
Electoral College ties
Sandy Levinson and others have, in recent years, been calling attention to what they regard as the Constitution's failures. One such failure, it is often contended, is the Electoral College. Well, today a good friend of mine sent in some thoughts about a "fascinating, and utterly absurd" electoral (theoretical) possibility . . . .
Continue reading "Electoral College ties"
Posted by Rick Garnett on August 31, 2008 at 03:19 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack (0)
Saturday, August 30, 2008
Palin & the structural protections of federalism
The blogs are abuzz with whether or not Palin ought to be regarded as sufficiently experienced to serve as VP. The typical defense of Palin's nomination emphasizes that she is the only one of the four nominees for Prez or veep with 'executive" experience, having served as a mayor of a small town and, briefly, as governor of a small state.
Naturally, opinions on the merits of Palin's candidacy correlate heavily with partisan prior commitments. But, as a federalism nut with weak partisan loyalties, I am much more interested in what Palin's nomination says about the structural protections for federalism in America. The argument that her experience trumps that of three Senators because it is "executive" in nature is, as a practical matter, an enormous boost to state politicians in the federal system, simply because there are obviously far more elected non-federal executives than federal ones. Thus, mayors and governors will gain an advantage over members of Congress in competing for the Presidency. If one buys the notion that these politicians will carry with them an affection for their old role as non-federal office-holder, then one might argue that the Presidency will tend to reflect state politicians' point of view.
The argument that executive experience is superior to legislative experience might even give mayors and governors an advantage over congress persons when running for congressional office. The reason is that executive experience tends to be less ideologically divisive than legislation. A chief executive can take credit for good economic performance in his or her state without alienating blues or reds; moreover, an executive can make lots of managerial micro-decisions that are not ideologically freighted and, thus, win a non-partisan reputation for competence: Think of Mayor Bloomberg's pressing for hybrid cabs or making the clean-up of the East River a top priority.
These are just theoretical speculations. As I have observed in an earlier post, the dominance of governors as candidates for the Presidency is a relatively recent affair, dating from Watergate, when claiming the mantle of an outside untainted by Washington's ways was an electoral advantage that boosted the candidacies of Jimmy Carter, Ronald Reagan, Bush II, and Bill Clinton. (By contrast, Truman, Ike, Kennedy, Johnson, and Nixon were all federal politicos or, in Ike's case, a federal bureaucrat). The Watergate-derived outsider's advantage might be waning. Therefore, I'll be curious to see how well the "executive experience" argument fares in Palin's campaign. Quite apart from its partisan ramifications, its success promises to be an aid to federalism. And nowadays I am inclined to think that federalism needs all the help that it can get.
Posted by Rick Hills on August 30, 2008 at 12:31 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack (0)
Sarah Palin and Union Politics
In all the hubbub about the Republican VP pick, I have seen little on something that I thought was quite remarkable: the populist rhetoric in McCain's introduction. Here are some excerpts from his speech:
I'm very happy today to spend my birthday with you and to make a historic announcement in Dayton, a city built on hard, honest work of good people. Like the entire industrial Midwest, Dayton has contributed much to the prosperity and progress of America, and now, in these tough, changing times, after all you've done for our country, you want your government to understand what you're going through, to stand on your side and fight for you. . . .
Friends, I've spent the last few months looking for a running mate that will who can best help me shake up Washington and make it start working again for the people that are counting on us. . . . And it's with great pride and gratitude that I tell you I have found the right partner to help me stand up to those who value their privileges over their responsibilities, who put power over principle, and put their interests before your needs. . . .
The person I'm about to introduce to you was a union member and is married to a union member and understands the problems, the hopes and the values of working people, knows what it's like to worry about mortgage payments and health care and the cost of gasoline and groceries . . . . She's fought oil companies and party bosses and do-nothing bureaucrats and anyone who puts their interests before the interests of the people she swore an oath to serve.
Many have suggested that McCain selected Palin to help win over Hillary Clinton voters -- middle- and working-class folks who live in the heartland and are feeling the brunt of our economic woes. And indeed, if you were reading the above speech without any other context, you'd probably think it was a Democrat talking. McCain seems willing to take his campaign on a much more populist turn. He's going after the union vote.
The real question, in my view, is whether policy will follow rhetoric. Will McCain-Palin advocate for greater restrictions on trade? Will they adopt a more restrictive position on immigration policy, or will they drift back towards McCain's more pro-immigration views? And given that Palin is a former union member, and her husband is a Steelworker, will they support the Employee Free Choice Act?
Posted by Matt Bodie on August 30, 2008 at 12:51 AM in Current Affairs | Permalink | Comments (11) | TrackBack (0)
Friday, August 29, 2008
The West Wing: 4-for-4?
Earlier in the week, I wrote about the idea that The West Wing's final season seemed to have predicted three of the four players in the 2008 presidential election: the young, charismatic, relatively inexperienced minority Democrat; his older, establishment, foreign-policy-steeped running mate; and his moderate, anti-GOP-establishment, foreign-policy-focused Republican opponent.
So how does Sarah Palin (anti-choice and very socially conservative, beloved by the Religious Right and chosen to appeal to the unenthusiastic conservative base, governor of a small state) compare with The West Wing's Ray Sullivan (socially conservative and anti-choice, intended to appeal to a suspicious and unenthusiastic conservative base, governor of a small state (West Virginia))? The obvious difference, besides gender, is in experience (the Sullivan character was a former U.S. Attorney and a two-term governor) and [ed.: apparent, at this point] intellectual heft. Frankly, had the show's writers written Sarah Palin as the GOP nominee for vice president they would have been ripped apart by commentators as liberals stacking the narrative deck and making Republicans look unrealistically unserious.
Posted by Howard Wasserman on August 29, 2008 at 10:00 PM | Permalink | Comments (14) | TrackBack (0)
Thanks Again, and Tune in Next Week...
Thanks to Dan and the Prawfsblawg crew for inviting me back for a return visit, I've really enjoyed it. In fact, I'm excited to announce that beginning on Tuesday, you will be able to find me blogging on a permanent basis at Marquette University Law School's new faculty blog, along with former Prawfs guests Michael O'Hear and Paul Secunda and other Marquette faculty members. Come visit! To find the blog next week, visit Marquette Law's home page and look for the link.
Posted by Bruce Boyden on August 29, 2008 at 03:59 PM in Blogging | Permalink | Comments (0) | TrackBack (0)
Will Sarah Palin suffer the same fate as Harriet Miers?
So, despite my apparent hostility to Obama's selection of Biden, and my sense that Obama was not at the top of his game during most of last night's acceptance speech, I think the election is now the Dems to lose for the reasons illuminated in Prof. Russell Korobkin's post:
The homepage of the town of Wasila, Alaska (population 5469 as of the
last census), has links to three news stories. The lead story, as you
might expect, is that the town's former mayor, Sarah Palin, has been
named John McCain's running mate. The second story announces the
town's new website. The third advertises the "Baby and Me Lap
Sit-Program at the Library."
Before serving as Wasila's mayor, Sarah Palin earned a B.A. at the
University of Idaho, worked as a sports reporter for an Anchorage
television station, and did commercial fishing with her husband.
At age 72, John McCain has already lived longer than his father, John
McCain Jr., who died at age 70.
Sarah Palin looks like an interesting woman, but let's hope she
doesn't have to stare down Vladamir Putin any time soon.
Whether it's warranted or not, I suspect Palin's selection is a big area of political opportunity for the Dems. I wonder if enough GOPniks will think of her the way some did of Harriet Miers. I also doubt that disgruntled Clinton supporters will now feel more comfortable with the GOP simply because Palin is pro-life/anti-choice, and if you're upset about the sexism in the campaign against Clinton you're not likely to feel welcomed by Palin's pro-life commitments. These are just my untutored reactions. What are yours?
Posted by Administrators on August 29, 2008 at 03:55 PM in Current Affairs | Permalink | Comments (20) | TrackBack (0)
It's Official: Judge Kent Is Not Funny
Judge Samuel Kent, once the sole district judge in the Southern District of Texas, Galveston Division, has been indicted on sexual abuse charges after an investigation lasting several months. He is alleged to have assaulted a member of his court staff in 2003 and again in 2007. Judge Kent is widely known as the author of a number of humorous procedural decisions, such as his opinions denying a motion to transfer venue, transferring a case sua sponte, and criticizing the quality of the parties' briefs on a motion for summary judgement (that last one got him a reprimand). Two of those opinions are in my Civil Procedure textbook, which means I'll be teaching them again next spring.
I've always enjoyed reading these opinions, but I've always felt a little guilty about that. While amusing in the abstract, they are distinctly less amusing when you recall that the rights of real parties were affected by the outcome. The pervasive use of humor in the opinions, in that light, seems more cruel than light-hearted. (For more, see Steven Lubet's article in the Green Bag.) Nevertheless, they make for a good break in the middle of an otherwise dreary chapter on venue.
So, how should I teach the two Kent cases? Should I skip over them? Not mention the indictment? A sexual abuse charge is certainly a mood-killer. Here's my tentative plan: I'll use the case as a teaching moment, much as I did once when teaching J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc., a great opinion on the avoidance of forfeiture doctrine by Chief Judge Sol Wachtler of the New York Court of Appeals. I.e., someone's being funny, or brilliant, or famous, does not necessarily mean that they are entitled to respect, or not evil. Mood-killer or no, I think my students may get more out of that than "Alas, this Court's kingdom for a commercial airport!"
Posted by Bruce Boyden on August 29, 2008 at 01:16 PM in Teaching Law | Permalink | Comments (2) | TrackBack (0)
Why don't feminists like federalism?
I might be mistaken, but my impression from the work of Reva Siegel (on the 19th Amendment), Anne Dailey, Jill Hasday, Kristi Collins (on the domestic relations exception to Article III diversity jurisdiction), and others, is that scholars sympathetic to feminism do not like judicially enforced federalism very much. In particular, it is sometimes claimed that relegating family law to the states is like treating family relations as a private matter beyond governmental control law as a private matter -- in effect, licensing private patriarchy. (See, for instance, Reva Siegel, She the People, 115 Harv. L. Rev. 947, 1000-1001 (2002)).
Feminist dislike of federalism seems odd to me for two reasons. First, women have done pretty well by the states. It was, after all, entrepreneurial western states that first enfranchised women in the late 19th century as a way to entice them westwards: Tiebout-style competition for mobile citizens seems, at least in this case, to have benefited women. And women fare well in voice as well as exit at the state level: The National Conference of State Legislators that women hold roughly 22% of state legislative seats, a number that has steadily risen over the last forty years. By contrast, there only 16 women in the Senate and 78 women in the House (roughly 16-17%).
So why the skepticism about states and the general complacency about broad national powers? True, some states can be nastily patriarchical -- but so can the feds: Males dominate both institutions, after all. The difference is my second reason for why feminists ought to like federalism: States provide far cheaper and more abundant access to elected office than Congress. The cost of running for state legislative office outside of California in the mid-1980s generally ran under $50,000, according to Thad Beyle's 1993 report for the Congressional Quarterly -- far lower than the cost of running for the U.S. House of Representatives, I'm guessing. If one assumes that women have less access to money and power than men, then why would want to allocate more power to an institution -- Congress -- that is likely to be costlier to access?
Of course, I could be wrong on my assessment of feminist scholarship: There might be lots of decentralizing feminists out there that I have overlooked. (And I'd be obliged to anyone who points them out to me). But, assuming my initial cursory survey is correct, I am curious why feminists are not more fond of an institution that, more or less, has done well by women.
Posted by Rick Hills on August 29, 2008 at 12:06 PM in Constitutional thoughts | Permalink | Comments (8) | TrackBack (0)
Why course packets ought to be fair use
Yesterday I received a set of "scholarly perspectives" from UCLA Law School -- a handy little reprint containing digested versions of their faculty's scholarship. Doug Lichtman's contribution contained the following statement about publishers' desire to facilitate the creation of course packets -- an assertion that is, from my experience, so wildly implausible that it makes me suspect that Lichtman has never actually spoken with an employee of a publisher's "permissions department" in person.
Here is the statement: "Without fair use, copyright holders would for the most part license [course packet excerpts from their copyrighted works], anxious to earn the additional royalties associated with classroom adoption and cognizant of the fact that a faculty member can always assign other reading if a given copyright holder asks for an unreasonable price or imposes unreasonable terms."
As someone who has done a bit of casual field research in this area, this statement seems to me an especially egregious example of economoid tendencies to mistake a model for reality. In fact, in my several interactions with the permissions departments of various publishers, I have never detected the slightest hint of anxiety to negotiate a plausible price. The reason, as I'll explain after the jump, is that assembling material for a course packet is like assembling parcels for a New York City skyscraper: The transaction costs destroy the possibility of a voluntary assembly even when the assembly value obviously exceeds the value of the disassembled pieces. This is why I'd argue that course packets ought generally to be "fair use."
Continue reading "Why course packets ought to be fair use"
Posted by Rick Hills on August 29, 2008 at 10:47 AM in Property | Permalink | Comments (2) | TrackBack (0)
Thursday, August 28, 2008
Io v. Veoh: Harmful to YouTube?
Yesterday's decision in Io Group, Inc. v. Veoh Networks, Inc. is generally being hailed around the blogosphere as a win, or at least a bit of good news, for YouTube in its ongoing infringement fight against Viacom. See the L.A. Times, CNet, Wired, Silicon Alley Insider, Techdirt, TechCrunch. Certainly Google is trumpeting the case as a win.
The piece of the decision most commenters are focusing on is the holding that Veoh's automated reformatting of uploaded materials does not create copies for which Veoh is responsible. That's clearly a good precedent for ISPs that process uploaded content somehow (and follows on the heels of the Second Circuit's similar decision in the Cablevision case).
But there's a key component of the decision that is not at all helpful to YouTube.
Continue reading "Io v. Veoh: Harmful to YouTube?"
Posted by Bruce Boyden on August 28, 2008 at 06:57 PM in Information and Technology, Intellectual Property | Permalink | Comments (3) | TrackBack (0)
Human "dignity" and relationships
My fellow "Mirror of Justice" blogger, and legal-ethics scholar, Rob Vischer, had an interesting post the other day about David Luban's new-ish book, Legal Ethics and Human Dignity. In particular, Rob focused on this passage:
"I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans -- between, so to speak, the dignifier and the dignified. To put it another way, 'human dignity' designates a way of being human, not a property of being human."
Rob continued:
This reminded me of the following passage from Gaudium et spes:
"God did not create man as a solitary, for from the beginning 'male and female he created them.' Their companionship produces the primary form of interpersonal communion. For by his innermost nature man is a social being, and unless he relates himself to others he can neither live nor develop his potential."
For my own part, I was reminded by David's thoughts of two things: Steven Pinker's recent essay, "The Stupidity of Dignity" and the concluding chapters of Nicholas Wolterstorff's latest book, "Justice: Rights and Wrongs".
Continue reading "Human "dignity" and relationships"
Posted by Rick Garnett on August 28, 2008 at 11:53 AM in Legal Theory | Permalink | Comments (6) | TrackBack (0)
Why do courts keep getting this stuff wrong?
Before my current video evidence fascination, the focus of my procedure scholarship had been the distinction between subject matter jurisdiction and substantive merits in federal question cases. I have tried to construct arguments for clear distinctions between them, where jurisdiction should not be affected by the ultimate validity of the claim under substantive federal law. In particular, my argument was that merits (and not jurisdiction) turns on the question "who can sue who for what conduct and what remedy." We also can put it in Hohfeldian terms--merits alone turn on whether the applicable law imposes a duty on defendants and grants rights to plaintiffs as to some conduct. Thus, when a plaintiff's claim fails because the applicable federal law does not reach and regulate the actors and/or conduct at issue based on the facts and evidence adduced, that claim fails on its merits, not for want of subject matter jurisdiction.
So I continue to be disheartened by cases such as In re DRAM Antitrust Litigation from the Ninth Circuit, where the court found that the FTAIA was not satisfied in the factual situation at issue, then dismissed for lack of subject matter jurisdiction, rather than for failure to state a claim or summary judgment.
Continue reading "Why do courts keep getting this stuff wrong?"
Posted by Howard Wasserman on August 28, 2008 at 10:13 AM in Law and Politics | Permalink | Comments (6) | TrackBack (0)
The Morality of Our Friends in Brooklyn
Well, that's not quite the topic under investigation, but some number of the Friends of Prawfs will be hosting or participating in a fascinating symposium at Brooklyn Law School on Friday Sept. 26th on the topic of Is Morality Universal and Should the Law Care?
I've posted the description and agenda after the jump. Sadly, I'll have to miss it. That day I'll be presenting this new paper -- How Should Punitive Damages Work? -- at the Canadian Law and Econ Association annual conference in Toronto. I'll have more to say about that article in a separate post, but one should never miss an opportunity to invite others to be among the first 1000 downloaders of a new article... In any event, I look forward to reading the remarks of the Brooklyn conference attendees; I suspect that they will appear in the Brooklyn Law Review, which is a co-host for the event.
Btw, I found out about the conference from the LSN Professional Announcements email. But folks, why spend big bucks on SSRN when you can run these paid announcements for CFPs, jobs, conferences, etc. on Prawfs?? We're here for you too :-)
Continue reading "The Morality of Our Friends in Brooklyn"
Posted by Administrators on August 28, 2008 at 07:52 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)
Wednesday, August 27, 2008
Co-authorship & Tenure Regs
Hastings has what I take to be an antiquated regulation about co-authorship in its tenure standards:
"Co-authored works will be considered to the extent that the candidate's contribution can be separately evaluated."
I can only guess that this kind of thinking came out of an age where casebook authors assigned one another separate chapters that could be sent out for review individually. But this regulation is clearly out of date, in my humble opinion. Thankfully, we're about to revisit the issue and I would be very curious about what modern standards look like on the question of co-authorship. And if you were writing tenure standards anew, how would you handle the issue?
Posted by Ethan Leib on August 27, 2008 at 09:30 PM in Life of Law Schools | Permalink | Comments (7) | TrackBack (0)
The symbolism of procedure
It appears I thought more highly of Hillary Clinton's speech than Paul did. I thought she said pretty much all the right things in the right way; there are some more things I would have liked to have been made more explicit, but overall I thought it did the trick.
But I actually found more meaning and expressive impact in the roll call procedures tonight. Obama agreed to a roll call vote in which some Clinton delegates could vote for her (through New Mexico, about 340 delegates had voted for Clinton, the rest, having been released this afternoon, voted for Obama), then Clinton moved to cut-off the roll call, suspend procedures, and nominate Obama by acclamation. Through the use of procedure, both got some form of what they wanted and it ended in an unequivocal, unanimous endorsement of Obama.
This strikes me as a good object lesson in the power of procedure and in the way it can be used to send messages and form meaning around and about the events it governs. I am trying to figure out how to use this in any or all of my procedure classes.
Posted by Howard Wasserman on August 27, 2008 at 08:51 PM in Current Affairs, Law and Politics | Permalink | Comments (0) | TrackBack (0)
Signing off
It's always a great pleasure to do guest stint at Prawfs, and this time was no exception. Thanks to Dan et al. for having me around, and to commenters and readers for being part of the conversation.
Of course, no Prawfs visit would be complete without at least a little shameless self-promotion, so let me take this final moment to mention a new work in progress I just posted to SSRN, Property Rhetoric and the Public Domain. This is the companion piece to an earlier work, Crystals in the Public Domain. Both parts of this two-part project seek to show that the much-maligned propertization of intellectual property may have unforeseen benefits for the preservation of the common entitlements in information. It went live on SSRN literally moments ago, so if you go now, you may have the (admittedly not that exciting) distinction of being the first downloader (!).
Until next time, happy trails, y'all.
Posted by Dave_Fagundes on August 27, 2008 at 07:44 PM in Blogging | Permalink | Comments (0) | TrackBack (0)
Graceful? Well....
I didn't watch Hillary Clinton's speech last night; I'm not a huge pomp-and-circumstance fan, and in any event I was busy spooking myself (not for the first time) with Jacob's Ladder, and seeing with a parent's eyes just how beautiful Macauley Culkin was as a young child. I understand that the notices have been quite positive and that the consensus was that she made much more than a tepid effort at salving the wounds of her disappointed supporters.
On the other hand, the second paragraph of the Times coverage of the speech today was this:
Mrs. Clinton . . . also took steps on Tuesday — deliberate steps, aides said — to keep the door open to a future bid for the presidency. She rallied supporters in her speech, and, at an earlier event with 3,000 women, described her passion about her own campaign. And her aides limited input on the speech from Obama advisers, while seeking advice from her former strategist, Mark Penn, a loathed figure in the Obama camp.
The story doesn't give much evidence of Clinton's efforts to keep the door open for 2012/2016 beyond what it offers in that paragraph. But that first sentence is telling. When "aides" are telling the paper of record that their boss took "deliberate steps" to keep open her route to the presidency, two things seem clear: it is unlikely that the aides are freelancing, and it seems evident that someone in her camp wanted this to be the second paragraph of the story.
Does that erase the job she did with her speech? No, and by all accounts she went to the mat for the victor in her speech. But it does suggest that, as usual with the Clintons, it's still all about . . . the Clintons.
Posted by Paul Horwitz on August 27, 2008 at 10:26 AM in Current Affairs | Permalink | Comments (4) | TrackBack (0)
Bivens and telecom immunity
I previously have written about the congressional grant of retroactive immunity to the telecommunications companies for assisting the federal government with warrantless domestic surveillance. I have argued that the immunity grant appears constitutionally valid, at least as to a challenge under United States v. Klein and other arguments about retroactive changes to the law.
But a conversation yesterday suggested one possible basis for challenge that I had not considered: the Bivens doctrine. Bivens is the implied right of action to recover damages against federal officials (and others acting under color of federal law) for past constitutional misconduct. The argument appears to run as follows: the absolute grant of immunity (upon an easily made showing) leaves the victims of domestic surveillance without any remedy for having been spied upon--there is no other statutory remedy, no one was prosecuted based on the information uncovered, and, since the program was discontinued, no one has standing to enjoin it. For these plaintiffs, as Justice Harlan wrote concurring in the judgment in Bivens, "it is damages or nothing."
Continue reading "Bivens and telecom immunity"
Posted by Howard Wasserman on August 27, 2008 at 09:57 AM | Permalink | Comments (6) | TrackBack (0)
Using Class Blogs
This semester I'm experimenting with a class blog in my civil procedure class. It is primarily for civil procedure in the news and is available only to students in the course. Each student must blog once during their assigned week, but may blog more. They are not graded on their posts. In an ideal world, blogging might help them recognize procedural issues around them and practice making the main point concisely. I've also told them that they should feel free to raise questions to which they don't know the answer.
I would love to hear about others' experience with using blogs in a course. (And is it the same as using discussion boards?) In particular, I'm concerned with getting students to read it regularly and with integrating it with the rest of the class. One thought (although it might cause more problems than it would solve) would be to use one post in the semester as the basis for an exam question, a policy that I would announce up front with an eye to encouraging students to read and comment on the blog. I also would like to use these news stories to mix up my two-hour, early morning Friday class. Maybe by student presentations? Maybe I would pick a story to highlight? Your thoughts are welcome.
Posted by Verity Winship on August 27, 2008 at 09:52 AM in Teaching Law | Permalink | Comments (10) | TrackBack (0)
We've Been Framed
Have you been watching the recent commercials for General Motors? (See here.) In an audacious move to celebrate GM's 100th anniversary, the company decided to stop giving employees a discount on GM cars. Not only that, they are spending millions and millions of dollars to advertise the decision to end (at least for a while) a substantial employee perk. The people in the commercial are supposed to be GM employees. What are they so happy about?
No doubt, you are already familiar with psychological framing effects. For example, stores typically tout their cash discounts, though they could just as easily tout their credit card surcharges. Similarly, though GM bills its plan as the "Employee Discount for Everyone," it could also be billed as a discount for no one. Shhh!!!!
As it happens, GM has halted employee discounts in the past. The last "Employee Discount for Everyone" was quite successful, and they have no doubt returned to it with an even bigger promotional budget. And their cars probably are selling at good prices. But pitching that the cars are well priced is apparently less enticing than pitching GM's decision to stiff its employees. Mad men, indeed!
Posted by Adam Kolber on August 27, 2008 at 07:45 AM | Permalink | Comments (4) | TrackBack (0)
Tuesday, August 26, 2008
Measuring Teaching Success
With the start of the new school year, I’ve seen a lot of interesting a valuable discussion about teaching methods, such as whether to use the Socratic method or PowerPoint, or whether to ban or limit laptops in class. What I sometimes wonder most, though, as a relatively new teacher with no formal training in education, is how I should measure my success at achieving my ultimate goal: student learning … which of course is itself a loaded concept, since from what I can tell different law professors prioritize different things to be learned: doctrine, theory, critical thinking skills, professionalism, and so on. But whatever I want my students to learn, how should I measure my success at getting students to learn it through whatever methods I've chosen?
I’ve detailed a few thoughts and ideas of my own below the jump, but would love to hear others.
Continue reading "Measuring Teaching Success"
Posted by Brooks Holland on August 26, 2008 at 04:07 PM in Teaching Law | Permalink | Comments (2) | TrackBack (2)
Why are non-profits, well, not for profit?
I've started a few blog posts on non-profits and politics, but it's hard to get far into that swamp before you end up asking the question, "Hey, what's the point of having these non-profits around, anyway?" So maybe it makes more sense to start at that end. The classic economic account, per Henry Hansmann, is that some firms must find a device for credibly signaling that they will not shirk. For example, since no one can tell easily whether health care is of high or low quality, customers will be reluctant to pay for it unless they have some guarantee the hospital won't cut corners in order to maximize revenues. So non-profit status is a commitment device for providers of credence goods. Since the pledge makes it hard to raise capital, these goods can only be provided if they come with a subsidy.
Recently, Malani and Posner have cast some doubt on Hansmann's story by pointing out that many non-profits seem uninterested in advertising their non-profit status. They then leverage this insight into a claim that the subsidy for charitable works should be open to for-profit firms. One could quibble with Malani & Posner's premise here. For example, their big example is hospitals, but it may be that hospitals were overwhelmingly non-profit for so long that customers now assume they are for-profit, or that hospitals choose names, like "City Hospital" or "University Hospital" or "St. Jude's" that themselves signal a commitment to health care over profit.
In any event, there are a couple of other strong economic justifications for the non-profit sector, and I think they both demand that subsidy recipients be non-profits. Neither would be undermined by the Posner/Malani claim that non-profits do not signal their status. Both are, like Hansmann, market failure stories. The first is a coordination problem.
Continue reading "Why are non-profits, well, not for profit?"
Posted by BDG on August 26, 2008 at 03:05 PM in Corporate | Permalink | Comments (4) | TrackBack (0)
Anyone Starting with Heller?
The editors of the widely-adopted Stone Seidman Con Law book have decided to frontload Heller -- and include it in their 2008 supplement to read in connection with page 8. That is, before Marbury. Is anyone out there who uses Stone Seidman following their suggestion? I'm not this year: I don't have enough time to get through all I need to in Con Law I -- and all the hype associated with Heller notwithstanding, I can't justify putting it into the course, nor putting it first. I understand how it could be pedagogically useful if I had the time but I am not ready to take the plunge. You?
Posted by Ethan Leib on August 26, 2008 at 12:17 PM in Teaching Law | Permalink | Comments (8) | TrackBack (0)
U.S. News and Part-Time Program "Gaming"
The front page of today's WSJ has an article about a possible change in the U.S. News law school ranking formula. The change, which has already been much discussed, might require law schools to count the LSAT scores and GPA of part-time students in schools' overall LSAT and GPA numbers.
I'm sure others will have more to say about this than me. I just want to draw your attention to one curious sentence in the article: "Mr. Morse of U.S. News says the magazine will run tests of how the change would play out in rankings, and then decide in January." Now, the sentence does not precisely say that the U.S. News formula decision will depend on "how the change would play out in rankings," but it sure seems to imply it. Otherwise, why are they running the tests?
Presumably, U.S. News wants to be sure that such a change in methodology would not make the rankings seem less legitimate. But if there is some gold standard that U.S. News uses to see how well its tests come out, then just show us the gold standard law school rankings! Perhaps there is some other explanation. Perhaps one can test the "stability" of the rankings or some other set of criteria that are neutral with respect to the rankings of particular schools. But, it will not be shocking to suggest that the primary impetus for the testing may have more to do with the business goals of U.S. News rather than the development of an unbiased, careful approach to measuring law school quality.
Posted by Adam Kolber on August 26, 2008 at 08:49 AM | Permalink | Comments (7) | TrackBack (0)
Monday, August 25, 2008
Arts as Game
A couple of weeks ago I did a four-part series on the Scrabulous litigation (Part I, Part II, Part III, Part IV), which ended with musings about the relationship between games, expression, and copyright. Games, like copyrightable works, can be "played;" but despite this similarity in terminology, I argued that games are fundamentally different from other forms of expression, a fact that justifies the traditional rule that games are not copyrightable. The artistic expression in games does not encompass the actual gameplay, which crucially depends on the involvement of the player; the expression only sets the conditions for game play. Therefore, a game that "plays the same," but does not sufficiently copy the individual elements of another game (board, pieces, rules sheet), is not infringing. The art in games is in the environment, not in the game itself.
Yesterday's New York Times Book Review flips that analysis around. In a review of Michael S. Gazzaniga's Human: The Science Behind What Makes Us Unique, Daniel Levitin notes Gazzaniga's intriguing hypothesis concerning the evolutionary purpose of art:
Gazzaniga doesn’t shy away from hard problems, like why humans, alone among species, have art. The attraction to stories, plays, paintings and music — experiences with no obvious evolutionary payoff — is puzzling. “Why does the brain contain reward systems that make fictional experiences enjoyable?” he asks. Part of the answer, he argues, is that fictional thinking engages innate “play” modules that enhance evolutionary fitness (that is, the ability to propagate one’s genes) by allowing us to consider possible alternatives — hypothetical situations — so that we can form plans in advance of dangers or even just unpleasant social situations. “From having read the fictional story about the boy who cried wolf when we were children,” he writes, “we can remember what happened to him in the story and not have to learn that lesson the hard way in real life.” Art may be more than a leisure activity. Artistic, representational thinking could have been fundamental in making us the way we are. As Gazzaniga concludes, “The arts are not frosting but baking soda.”
So putting my argument and Gazziniga's together, play is not art, but art is play. What gives?
Continue reading "Arts as Game"
Posted by Bruce Boyden on August 25, 2008 at 01:01 PM in Intellectual Property | Permalink | Comments (0) | TrackBack (0)
In Defense of Biden: A Reply
Wes Oliver, a former Biden campaigner and a prawf at Widener, writes in with the following response to my post on Biden. Here's his reaction, which I also respond to after the jump:
First, let me say that I appreciate the invitation to respond. Much like the candidate I went to Iowa to support, I appreciate hard-hitting yet respectful debates. Before I respond to your specific points, let me just offer a couple of observations about Joe Biden that may not be apparent to folks who only watched the meager coverage he received in the coverage of the primary. This is one charismatic campaigner – with an extraordinary depth of knowledge -- two characteristics that manage to display themselves simultaneously. Previous campaigns have led us to believe that a very sophisticated discussion of policy is not something candidates are supposed to do – that the public will be turned off. The problem has been that the candidates who have taught us this “lesson” were not blessed with a great measure of charisma in the first place. Joe Biden has the remarkable ability to be fired up – and fire up a crowd – while he is explaining details about a matter of national security or economic policy.
One
quick example – the one that first made me a Biden
fan: On September 10, 2001, I was sitting in an apartment in Portland,
Maine flipping channels and saw Biden on C-SPAN. I always thought he
was
insightful, so I stopped and watch. Biden began explaining that we
were
prepared to meet the threats of the Cold War era, but that our defense
strategy
did not account for the threats of the modern era – that a small
cell terrorist group like al Qaida, not the threat of thermo-nuclear
destruction,
posed the greatest threat to American security. I was drawn in and I
am
not a foreign policy guy – his account made sense and it was gripping and conveyed a real sense
of urgency. Anyone could get his head around what Biden was saying and yet
his analysis lacked nothing in sophistication. THEN, he said, “the
next attack on this nation will come in the hull of a ship or the belly of a
plane.” My second thought after the towers came down: “My
God, Joe Biden was right.” (My first thought was the same mix of
horror, anger, sadness and disbelief that I am certain I shared with everyone
reading this.) This is, of course, a dramatic example, but I’ve
seen him hold an audience of ordinary, hard-working Iowans in the palm of his
hand as he dissected Bush’s Roadmap to Peace in the Middle East or
explained how government development of infrastructure is the key to economic
revitalization. He is the rare politician who can take complicated,
important ideas, make them accessible and make people who lack expertise in the
area he’s describing care passionately about the ideas. He does it
without dumbing down his discussion – he teaches using the advice Oliver
Houck gave me when I started teaching – teach with enthusiasm, everything
else will take care of itself.
To address the specifics of Dan’s post. And Dan,
while I like and respect you greatly, I strongly disagree on your points,
offering the specifics that follow:
Continue reading "In Defense of Biden: A Reply"
Posted by Administrators on August 25, 2008 at 11:12 AM in Law and Politics | Permalink | Comments (7) | TrackBack (0)
Laboratories of Democracy: Some questions for skeptics
I ignore this blog for just a couple of weeks, and what do I find gets posted in my absence? Brian Galle's and Joseph Leahy's working paper defending Susan Rose-Ackerman's thesis that state politicians do not innovate because they are risk-averse and seek to free-ride off of each other's innovations. Being this blog's resident federalism fan, I have mixed feelings about their paper. On one hand, the paper is admittedly an outstanding contribution, confirming my suspicion that all of the best work on federalism is done by tax and environmental law folks: Galle, being a tax guy, predictably integrated the best economics (e.g., Besley & Coate, Breton, etc), while all of the constitutional law folks are still parsing the punctuation of some squishy preemption opus from the SCOTUS.
On the other hand, sometimes I think that federalism gets a lot of unfair knocks from scholars who compare federal regimes to some idealized "socially optimal" world and, unsurprisingly, find that federalism falls short of their imaginary ideal. Galle and Leahy, I think, fall prey to this tendency when they conclude that "state and local governments ... are unlikely to innovate in all instances at the optimal social level" (page 7). To which I respond: So what? Neither will Congress.
In particular, why do Galle & Leahy assume that federal politicians are immune from the "information externality" that allegedly afflicts non-federal politicians? Rose-Ackerman's claim is that non-federal politicians will not innovate because they are all hanging back like penguins at the edge of a glacier, waiting for some hapless penguin to dive in first and reveal the presence of some lurking predator below. No one wants to be the first mover when they can reap the benefits of other first mover's experiment by being a copycat -- make a big splash, catch some fish -- without the risk of being eaten if the innovation flops.
But why is not Congress just another gaggle of penguins, so far as the information externality is concerned? Federal politicians act as individuals when they innovate, staking out areas of policy expertise through hearings and bills, trying to win visibility on an issue so that they can run (for instance) for President. Think of Estes Kefauver and organized crime, Edward Muskie and environmental law, Abe Ribicoff and auto safety. The information externality afflicts these politicians every bit as much as it afflicts governors. If it turns out, for instance, that environmental regulation is a bust with voters, then the Senator who championed it will look bad, making it risky for any federal politician to get out in front on the issue. If, by contrast, environmental regulation is successful, then it will be easy enough for rivals to jump on the bandwagon after success is proven in the field.
So how exactly will federalization of any issue ever internalize any information externality? Why are not members of Congress, governors, mayors, etc., all a bunch of penguins -- some of whom are less risk-averse than others and jump off the ice berg first, in hopes of catching more fish?
Posted by Rick Hills on August 25, 2008 at 11:11 AM in Constitutional thoughts | Permalink | Comments (2) | TrackBack (0)
Request for Information: Changes in American Religious Demographics
I wonder whether I can appeal to my reader(s) -- hi, Mom! -- for some research assistance. I'm looking for basic information on changes in American religious belief -- what religions Americans profess, how deeply, and so on -- over the last 50 years or so. I'm sure there are some very basic sources here that will give me all I need, but for some reason I've come up a cropper in my quick searching. Can someone point me where I need to go? Feel free to use the comments or to email me directly. Many thanks....
Posted by Paul Horwitz on August 25, 2008 at 09:31 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack (0)
What We Talk About When We Talk At Length And Tediously
No, that's not a reference to the Socratic-vs.-lecturing debate. Rather, I commend to readers today's "schedule" for the Democratic National Convention, penned by hit-and-miss humorist Christopher Buckley, who hits on this occasion, in the Times. I'm not sure what my favorites are, but up there would have to be the description of the "interfaith gathering," in which "Democrats of many interfaiths" will gather, "just as Republicans do on Sundays in actual churches with spires and vast parking lots," Bill Clinton's "lower-lip-biting demonstration," and, of course, Michelle Obama's keynote address: "Don't You Think I'd Know if My Husband Were a Muslim?"
Good stuff. Clip it and keep it on your calendar to help keep track of events this week.
Posted by Paul Horwitz on August 25, 2008 at 09:07 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack (0)
Sunday, August 24, 2008
A Cautious Dissent On Biden
I hate to pee rain on the upcoming parade, but yesterday morning's news that Obama picked Biden to be his Veep was pretty disappointing to me. Here are any number of things that come to mind as reasons why he shouldn't have been chosen, at least based on my quick and untutored reactions.
a) Like the majority of Dems in the Senate during the first Iraq war, he voted against the effort to liberate Kuwait. This strikes me as an obviously wrong decision. By contrast his vote for authorizing the second Iraq use of force resolution is one that I think reasonable American politicians could disagree about. The fact that Obama voted against it and Biden voted for it may be a kind of triangulation device but I can't tell.
b) While he was recently running for the Dem nomination for POTUS, Biden dissed Obama as not ready for prime time. Now we get to hear that statement over and over again. Not to mention his other bone-headed comment about Obama as a nice mainstream articulate black guy. Thanks JB. I'm looking forward to more of your insights into a diverse America.
c) As a professor, I can't help but notice that Biden had (at best) an utterly mediocre academic background, and he was busted for plagiarism as a student and as a presidential candidate. Really, do academic achievement and intellectual integrity matter so little??
d) Notwithstanding the coverage in the Times today about Biden's foreign policy chops -- but see supra a) -- Biden brings little identifiable talent or credentials of the sort that will help Obama secure the election, or persuade the voters that he's above politics as usual. Who does he pick as his running mate? A six-term senator.
I know Biden's supposed to be a great guy and that he's gone through lots and also improved over time in terms of his legislative abilities. And I'm genuinely open to learning more about Biden as the next few days and months come around. (Wes Oliver, come educate me gently!)
But I can't believe we had to wait so long to find out that Biden's the VP selection. I can only imagine that Biden's public skeletons were the least evil of the others under consideration. And in terms of whether he's "ready" to be President, sure, he's been in the Senate since he was 29. But is there any plausible sense that he's got the game to be POTUS? I'm looking forward to being proven wrong, but I worry that if Biden's indicative of Obama's judgment on serious matters, the Dems need to worry more. I suspect that the race just got even tighter.
Update: Wes Oliver and I continue an exchange here.
Posted by Administrators on August 24, 2008 at 09:35 PM in Law and Politics | Permalink | Comments (15) | TrackBack (0)
The Political Clairvoyance of The West Wing
Like most youngish, over-educated lefties of the past decade, I was a big fan of The West Wing. I even wrote about the many issues of presidential succession that the show portrayed during its seven-year run. This election cycle has been interesting for different West Wing reasons: The show's rough political clairvoyance.
For non-viewers, the last two seasons of the show were devoted to the race for the Democratic nomination and the general election to replace President Bartlet. The featured candidate was Matthew Santos (played by Jimmy Smits), a young, charismatic, relatively inexperienced minority member of Congress, who comes from nowhere to win the nomination against the sitting Vice President following a contentious and wide-open Convention and, ultimately, a close election that came down to the popular vote in one Mountain West state, maybe Nevada or New Mexico.
Continue reading "The Political Clairvoyance of The West Wing"
Posted by Howard Wasserman on August 24, 2008 at 02:58 PM in Culture, Law and Politics | Permalink | Comments (0) | TrackBack (0)
D.C. Cab and Fairness vs. Welfare
My trip home from the airport yesterday was my first ride in a metered D.C. cab. As reported at the CoOp by Larry Cunningham, the D.C. taxi system recently switched over from their infamous "zone" system to computerized metering by time and distance. This produced much bellyaching from cabbies, not because they enjoyed swindling tourists, but rather because they now have to pay taxes. Their incomes are newly subject to audit -- the meters produce a record of receipts (minus tips), while the zone system was a cash business. This means as much as a 30+% cut in take-home pay. (Well, except for the one(s?) who were reporting their income voluntarily.)
For me, as a former tax-enforcement official, the most interesting question here is why the D.C. Cab story isn't more popular (and it can't all be Mr. T's acting). That is, why don't governments require industries to structure their transactions in ways that facilitate tax enforcement ? That would distribute the true tax burden more equitably, instead of randomly favoring people who are self-employed or work in all-cash industries. But, as Kaplow & Shavell would remind us, in exchange for this increase in fairness there would be some welfare losses from changing the market's most-preferred transaction structure.
Or would there? What the D.C. story illustrates for me is that the scheme the market has chosen might itself be driven by tax-avoidance, not efficiency. Changing to meters might be *both* more fair and more efficient. And fairness sometimes has welfare benefits: reducing evasion would allow lower rates on those of us who pay all our taxes now, which should diminish what economists call the "excess burden" or deadweight loss of the tax.
Lesson: Let's all grow mohawks and wear large gold chains.
Posted by BDG on August 24, 2008 at 12:30 PM in Law and Politics | Permalink | Comments (1) | TrackBack (0)
Saturday, August 23, 2008
Notre Dame Law Review symposia
This is a bit shameless, I know, but I cannot help it. The Notre Dame Law Review has released two symposium volumes: "Separation of Powers as a Safeguard of Federalism" and "Stare Decisis and Non-Judicial Actors". (The latter volume also includes our own Paul Horwitz's outstanding paper, "Three Faces of Deference".) "Separation of Powers" includes papers by Justice Scalia, Brad Clark, Bill Eskridge, Beth Garrett, John Manning, Peter Strauss, Carlos Vazquez, and Ernie Young. "Stare Decisis" features articles by Amy Barrett, Thomas Healy, Mike Paulsen, Kim Roosevelt, and Mark Tushnet. Congrats to the outgoing Editorial Staff. You did great work on these volumes, and you've made your teachers proud.
Posted by Rick Garnett on August 23, 2008 at 05:04 PM in Rick Garnett | Permalink | Comments (7) | TrackBack (0)
Laptops and perverse incentives
Among those who want to ban laptops because of a dislike of stenographic notetaking, any proposal always includes some mechanism to enable students to obtain mostly-stenographic notes. Eugene Volokh's new policy provides that one volunteer student in each class will take notes that will be made available to the class. I am experimenting this semester with recording and providing audio files for each class (when i can get my MP3 player to work). Others make PowerPoint slides available, etc. Two common themes in all this.
One is an assumption that banning laptops will not break students of their (what we believe problematic) addiction to verbatim notes, which is what we are using to justify prohibiting each student from taking (verbatim) notes on her own. Is the assumption that forcing students to take "better" notes (danger quotes intentional) will not work and they will need to get their transcripts some other way? And the only way to sell a no-laptops policy is to ensure they get their stenographic fix another way? If so, I think the paternalism objection falls away somewhat--we no longer are doing iit "for their own good" (i.e., teaching them how to take notes the "right way"), but only to create the discussion environment we (as professors) want, which we can do however we think best (through our choice of classroom styles or through our choice to look at faces and not laptop backs). The assumption seems to be they are not going to learn to take notes any differently.
Second, as an e-mailer noted about my use of audio recording, these alternatives create the perverse incentive to skip class. Students need not go to class to get the notes they need--they can just download the audio file or get the common notes from the designated notetaker. I believe (and hope) that some combination of grading class participation, rigorous attendance policy, and my conducting an interesting and entertaining class on an interesting subject takes care of that. But it is an interesting example of unintended consequences--in taking steps to enhance the quality of the in-class experience, we give some students a reason/justification not to show up for the experience.
Posted by Howard Wasserman on August 23, 2008 at 07:35 AM in Life of Law Schools | Permalink | Comments (6) | TrackBack (0)
Friday, August 22, 2008
Hi, My Name Is Bruce, and I Use the Socratic Method
If it's August, law professors must be talking about teaching. Much of the discussion this time around has focused on the Socratic method, and almost all of it is negative (Orin Kerr offers that it should at least be part of the mix). This definitely makes me feel a little retrograde and unimaginative, since I use some modified version of the "Socratic method" in almost all of my classes. (Well, I think I do; I suppose there's a question of definition here.) It's not through lack of interest in doing something different; I've been searching teaching materials for a while now looking for new ideas. But I have to admit I think it works tolerably well. Here's my response to the standard critiques:
1. "Socratic method" is a demonstrably poor teaching technique. I think the answer to this depends on what we're talking about. If it's Kingsfieldian grilling, I agree, particularly if the aim is to purposefully confuse or intimidate the students. But if the objection is to any in-class discussion, I disagree. I started off teaching in another field (history). Specifically, I led discussion sections for a large history class, and quickly came to the conclusion that producing a good discussion is really hard. But it also seemed to me a good way to teach, if pulled off correctly.
Continue reading "Hi, My Name Is Bruce, and I Use the Socratic Method"
Posted by Bruce Boyden on August 22, 2008 at 05:53 PM | Permalink | Comments (3) | TrackBack (0)
PCAOB is constitutional
So says a 2-1 majority on the D.C. Circuit. The 92-page opinion is here. HT to Jay Brown, who already has three four posts up (one, two, three, and four).
Posted by Matt Bodie on August 22, 2008 at 02:10 PM in Corporate | Permalink | Comments (2) | TrackBack (0)
Abusive e-mails from students
Gordon Smith has shared a student e-mail and his response over at The Glom. Maybe it is just me, but I was pretty surprised that Gordon has only gotten three confrontational e-mails from students in his time. And I thought the student's e-mail was very mild relative to some crazy student e-mail I've received in my much shorter time. But then it doesn't surprise me that I might provoke students just a bit more than Gordon, who seems like a really nice guy.
Posted by Ethan Leib on August 22, 2008 at 11:28 AM in Life of Law Schools | Permalink | Comments (5) | TrackBack (0)
A Provocative Take on No-Laptop Policies
Doug Berman is surprised by Eugene Volokh's one-laptop policy (in which one student takes notes for the rest of the class):
Indeed, though I am disinclined to assert that this alone shows how quickly professorial power can corrupt philosophical commitments, I do find remarkable the dramatic move to collectivism here. Not only is Eugene severely restricting laptop liberty, but he also is mandating that individuals share the fruits of their labor with a student collective all for purported good of the UCLA School of Law.
Are laptop bans incompatible with a libertarian philosophy?
Posted by Matt Bodie on August 22, 2008 at 11:15 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack (0)
Changing books
It seems like every semester I give serious thought (at least, I tell myself I do) to changing my courses by (among other things) changing my casebooks. But, I almost always end up staying pat. Let's indulge, for present purposes, the hopeful premise that this pattern does not merely reflect laziness. Why not change? Well, why change? The books I use for my large courses (e.g., Dressler's Criminal Law, Volokh's First Amendment, Garvey et al's Religion and the Constitution) are, I think, very good. I'm used to them. I know how (I think) to get a lot, for my students' benefit, out of them.
But . . . who am I kidding? Changing books would (wouldn't it?) shake things up, make it likely that I'd rethink some things or see some things in a new light, provide new vehicles for teaching old questions and concepts (which might not, when taught with the new vehicle) seem so "old" after all. And so on.
I'd love to hear from prawfs who have switched -- not so much because of a serious problem with the old book, but just in order to get the perceived, or hoped-for, benefit, of new-ness -- and also from students who might have had the chance to experience both "old book" classes (i.e., classes where the instructor is working with a text that she has been using for many years) and "new book" classes. Any thoughts?
Posted by Rick Garnett on August 22, 2008 at 11:05 AM in Teaching Law | Permalink | Comments (0) | TrackBack (0)