June 18, 2013

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Google Challenges Gag Orders Relating to Surveillance Programs, Citing First Amendment

posted by Babak Siavoshy

Google has decided to back up its calls for more transparency regarding government surveillance with a legal challenge to the gag orders that forced it into silence. The Washington Post reports:

Google asked the secretive Foreign Intelligence Surveillance Court on Tuesday to ease long-standing gag orders over data requests it makes, arguing that the company has a constitutional right to speak about information it’s forced to give the government.

The legal filing, which cites the First Amendment’s guarantee of free speech, is the latest move by the California-based tech giant to protect its reputation in the aftermath of news reports about sweeping National Security Agency surveillance of Internet traffic. [...]

In the petition, Google is seeking permission to publish the total numbers of requests the court makes of the company and the numbers of user accounts they affect.

The challenge is not uncharacteristic—Google recently filed another lawsuit challenging gag provisions in government National Security Letters on First Amendment grounds.  Query whether any of the other eight companies named in recent leaks will join Google’s latest suit. Read the rest of this post »

  June 18, 2013 at 5:18 pm   Posted in: Uncategorized   Print This Post   Comments (1)

Questioning Performance Pay

posted by Kelli Alces

Performance pay is tricky. At a very basic level, it challenges the notion that corporate managers, as fiduciaries of the firm, should “renounce all thought of self” as it places their self-interest at the forefront of the decisions they make on behalf of the corporation. Performance pay is designed with the hope that it will align those managers’ personal interest with the goal of shareholder wealth maximization as we concede that we cannot simply trust managers to selflessly pursue the interests of others. Indeed, it may do more harm than good to the extent it gives managers both the permission and the means necessary to profit personally from corporate success without suffering in the face of corporate failure.

Last week, at the National Business Law Scholars’ Conference in Columbus, Ohio, I heard Michael Dorff present his book, Indispensable and Other Myths: The True Story of CEO Pay, forthcoming from the University of California Press this spring. In it, he argues that performance pay for CEOs is not effective to enhance firms’ values. This is true, he claims, in part because CEOs generally do not strongly influence corporate return and in part because performance pay is not effective to improve the performance of creative or analytical tasks, that is, exactly the kinds of tasks we expect CEOs to carry out. He cites numerous empirical and psychological studies to support his thesis that performance pay is ineffective at best and harmful at worst.

Read the rest of this post »

  June 18, 2013 at 5:17 pm   Posted in: Uncategorized   Print This Post   Comments (1)

Taxonomy of Innovation Incentives

posted by Andrew Blair-Stanek

IP folks don’t talk enough with tax-law folks, and vice versa. This has some unfortunate results. IP has become a leading tax-avoidance vehicle, without drawing sufficient notice from IP scholars and practitioners. And R&D tax incentives are rarely evaluated alongside patents, prizes, and research grants as effective ways to foster innovation.

An insightful article forthcoming in the Texas Law Review, by Daniel Hemel and Lisa Larrimore Ouellette, takes a big step in bridging this gap. They observe that all innovation incentives can be broken down along three dimensions: (1) who decides (government vs. the market), (2) when paid (ex ante vs. ex post), and (3) who pays (government vs. users). For example, patents are market-driven, with money delivered ex post, from users of the patented technology. By contrast, R&D tax incentives are market-driven, with money delivered ex ante, from the government.

These three dimensions lead to a 2 x 2 x 2 matrix, suggesting a total of eight types of innovation incentives. But only five are currently used: patents, prizes, research grants, R&D tax incentives, and patent boxes (which provide favorable tax rates on patent income). As a result, Hemel and Ouellette’s taxonomy suggests three new mechanisms to encourage innovation. Their taxonomy also teases out some exciting new insights on the relative merits of existing innovation incentives, including some previously overlooked benefits of R&D tax incentives.

 

  June 18, 2013 at 4:15 pm  Tags: Daniel Hemel, innovation, IRC 174, IRC 41, Lisa Larrimore Ouellette, r&d, taxes  Posted in: Intellectual Property, Law Rev (Texas), Tax, Technology   Print This Post   Comments (0)

Grading Lessons from Cognitive Psychology

posted by Aaron Zelinsky

We’re (hopefully) nearing the end of law school grading season. Personally, I take the Macbeth approach: “if it were done when ’tis done, then ’twere well it were done quickly.” In part, this is because I find grading unpleasant. I’m nervous about being unfair and inconsistent (and I also don’t want to get trolled by my students for being late).

There’s no avoiding that the grades we give make a substantial difference in our students’ near-term career prospects. While this adds to the stress to “get it right,” there is relatively little discussion in legal academia about how we grade. And although there are many different ways to grade, cognitive science provides at least two suggestions that seem broadly applicable.

First, grade by question, not by exam.

In his recent book, Thinking, Fast and Slow, Daniel Kahneman discusses grading. He describes how early in his career he would grade exams in the “conventional” way, “pick[ing] up one test booklet at a time and read[ing] all that student’s essays in immediate succession, grading them as I went.”

The problem with grading by exam is that it leaves the professor at the mercy of the “halo effect,” where the “first question . . . scored had a disproportionate effect on the overall grade.” Since Kahneman won a Noble Prize for his behavioral economics research while I once read a book about it, I’ll just quote him a bit more:

“The mechanism was simple: if I had given a high score to the first essay, I gave the student the benefit of the doubt whenever I encountered a vague or ambiguous statement later on . . . if a student had written two essays, one strong and one weak, I would end up with different final grades depending on which essay I read first.”

Khaneman’s solution: grade by question, not by exam.

Kahneman goes on to note that even knowing how well a student did on earlier questions on that same exam (for instance by writing the points earned on the front of the exam) can influence the grader, and therefore it’s best to put the point score somewhere not readily visible, like on the inside page. This all dovetails with why we grade exams blind: we don’t want to be influenced by our preconceived notions of student performance. Similarly, we should grade each question “blind,” uninfluenced by the students past performance on the exam itself.

Second, randomize the grading order across questions.

While grading by question eliminates the halo effect, it doesn’t eliminate another cognitive bias: the desire for regular distributions. For instance, if you are scoring a question out of five points, and you’ve given out fives to the past three exams, you’re more likely to give the fourth exam a lower score, regardless of how good the answer is. (Full disclosure: the author of the prior link, Jacoba Urist, is my sister).

Robert Shiller (who taught me behavioral economics), provides the solution: randomize exam order across question. That means that once you’ve graded all of the question ones, shuffle the papers and reorder the exams to grade the question twos.

These techniques won’t necessarily make grading any less nerve-wracking (or more fun), but they might make it a little more fair.

Anyone else have further grading tips?

Photo Credit: Wikipedia.

  June 18, 2013 at 12:59 pm   Posted in: Uncategorized   Print This Post   Comments (2)

June 17, 2013

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Unintended Consequences of Scholarship

posted by Lawrence Cunningham

Steven Davidoff, Barbara Black and Eric Chaffee gave me the honor of delivering the keynote address at the fourth annual National Business Law Scholars Conference at Ohio State University last week.

Now, Gordon Gee, president of Ohio State, had just announced his retirement. This followed several bad jokes he’d made that had become public—about Notre Dame, Catholic priests and relative literacy across the Southeastern Conference.  Besides encouraging his retirement, I understand that the board of trustees have now banned attempts at public joke telling on the OSU campus, including at conferences.  Which was a relief, because I didn’t have any good jokes to start with, I told the audience.

After that obligatory bit of humor, it was on to remarks based on one of my recent books, The AIG Story, which I wrote along with the company’s long-time chairman Hank Greenberg. One of the book’s themes that I wanted to highlight is the dangers of a one-size-fits-all approach to corporate governance.  For the assembled audience of young business law scholars, moreover, I wanted to intersect that with some thoughts on scholarly life, my notes on which follow.

It is wonderful to be able to write law review articles that other scholars respect as well as books for a general audience, I said.  They are connected.  Both require networks. I felt little need to tell those assembled about the value of participating in conferences; they were there. It takes work and is worthwhile.

Frank Partnoy reminds me of my advice to him when he entered teaching: hit on all cylinders. Teach well, help your students, write articles, books, op-eds, essays, white papers; give workshops and lectures; testify and run host conferences; meet the press; today I extol blogging as well—as I do here at Concurring Opinions. Read the rest of this post »

  June 17, 2013 at 5:09 pm   Posted in: Law School (Scholarship), Law School (Teaching)   Print This Post   Comments (3)

Sole Motives and University of Texas Southwestern Medical Center v. Nassar

posted by Katie Eyer

I wanted to call to readers’ attention a civil rights case that in the midst of all of the blockbuster cases of this term has not attracted quite as much attention, but has the potential to very significantly impact the practical implementation of many of the nation’s civil rights laws – University of Texas Southwestern Medical Center v. Nassar.

What is formally at stake in Nassar is whether retaliation claims under Title VII—and perhaps any civil rights statute that does not explicitly provide for “mixed motives” burden-shifting—are subject to the mixed motives test first developed in Price Waterhouse v. Hopkins and codified in the Civil Rights Act of 1991. Based on the Supreme Court’s opinion in Gross v. FBL Financial, it seems fairly likely that the Court will find the answer to this question to be no (although there are also many strong arguments for why the result should be a “yes,” see e.g., here).

This outcome in and of itself would likely further depress the already dismal success rates of anti-discrimination plaintiffs. But far more troubling is the possibility that Nassar—like Gross before it—will further entrench the conceptual sloppiness that the use of the term “mixed motives” to describe a particular burden-shifting paradigm has allowed to slip into the law. In short, there is a real possibility that the Court’s decision in Nassar may encourage or require lower courts to require something approaching “sole” causation in many federal civil rights cases (i.e., that disability, age, retaliation, etc. be the “sole” cause of the employer’s actions)—a virtual impossibility in practical terms.

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  June 17, 2013 at 9:59 am   Posted in: Uncategorized   Print This Post   Comments (3)

June 14, 2013

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The state secrets privilege in challenges to government surveillance programs

posted by Babak Siavoshy

As the Washington Post reports, one of the legal obstacles the ACLU may face in its lawsuit challenging NSA surveillance of telephony metadata is the state secrets privilege.  In recent years, the government has used the state secrets privilege with increasing frequency to block lawsuits and prevent discovery on national security grounds. According to Professor Donohue, between 2001 and 2009 “the government has invoked the state secrets privilege in more than 100 cases, which is more than five times the number of cases previously considered.”

It’s not clear whether the government will invoke the privilege in the ACLU’s case—the DNI already acknowledged the existence of the challenged surveillance program, though not all of its details. But the scope of the state secrets privilege is the keystone issue in another important surveillance case, Jewel v. NSA. The plaintiffs in Jewel, represented by the the Electronic Frontier Foundation, have weathered a number of challenges to their suit against the NSA (including a win on standing before the Ninth Circuit), putting the issue of state secrets front and center.  The question before the court is whether FISA’s procedural mandates displace the privilege in the context of civil litigation over national-security surveillance. Read the rest of this post »

  June 14, 2013 at 1:07 pm   Posted in: Uncategorized   Print This Post   Comments (1)

Sherrilyn Ifill on Race v. Class: The False Dichotomy

posted by Danielle Citron

My amazing colleague, guest blogger, and now President and Director-Counsel of the NAACP Legal Defense and Education Fund Inc. Sherrilyn A. Ifillhas a superb Op-Ed in the New York Times about the impending decision in Fisher v. Texas:

 

The decision is in. All consideration of race in college admissions is over.

No, the Supreme Court has not yet announced its decision in the landmark case of Fisher v. University of Texas; that ruling is expected any day now. But an alarming number of scholars, pundits and columnists — many of them liberal — have declared that economic class, not race, should be the appropriate focus of university affirmative-action efforts.

How can we explain this decision to throw in the towel on race-based affirmative action? Are we witnessing a surrender in advance of sure defeat? Or just an early weariness with a debate that, a decade ago, Justice Sandra Day O’Connor predicted would last another 25 years?

  June 14, 2013 at 11:34 am   Posted in: Civil Rights, Constitutional Law, Race   Print This Post   Comments (15)

June 13, 2013

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The Humble Justice Scalia

posted by Dave Hoffman

Justice Scalia isn’t often justly lauded for his humility.  Today’s opinion in Molecular Pathology v. Myriad (the gene patenting case) provides an opportunity. His concurrence reads, in its entirety:

“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am un-able to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.”

There’s something heart-warming about this short opinion — a bit like Justice Steven’s ode to jalopies and country roads in Scott.  It’s also a useful model of rhetorical humility in the face of pretty complex science. Justice Scalia is ordinarily celebrated for his caustic wit & slashing attacks: we should be happy when he takes a different approach.

  June 13, 2013 at 10:41 am   Posted in: Supreme Court   Print This Post   Comments (14)

June 12, 2013

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Interview with Marvin Kalb: The Road to War, Presidential Commitments Honored and Betrayed

posted by Danielle Citron

I could not have timed my chat with Marvin Kalb better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power:  the NSA’s PRISM program and leaked FISA court Verizon order.

Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:

[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.

Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.

The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegant synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.

Here are some highlights from our conversation:

DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?

MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?

DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?

MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.

DC: What do you think of this week’s revelations about PRISM and the Verizon order?

MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read the rest of this post »

  June 12, 2013 at 10:09 am   Posted in: Administrative Law, Constitutional Law, Government Secrecy, History of Law, Interviews, Political Economy, Politics   Print This Post   Comments (1)

Purdy on Civil Disobedience

posted by Frank Pasquale

The “Moral Monday” protests at the North Carolina legislature have included religious leaders, teachers, and many concerned citizens. Law professor Jedediah Purdy reflects on his participation here:

Because North Carolina refused the Obamacare Medicaid expansion, I ended up in handcuffs in the Wake County Detention Center. That was my trigger, anyway. Statistically, next year more than two thousand people in the state will die who would have lived if North Carolina had accepted federal money to give health insurance to low-income families. (That’s our share of an estimated 19,000 preventable deaths nationwide in the 14 states that have rejected the expansion.) Because the state legislature was doing that in my name, I decided I needed to stand in front of it, at least until they took me away.

I can’t add much to Purdy’s article, except to say: what are own personal “red lines,” or government/corporate activities (and let’s not kid ourselves—that merger is the core, fused nature of power these days) that seem too egregiously wrong to let pass without personally protesting them? And given how frequently both right and left lament the “brokenness” of government, is Bernard Harcourt right to suggest that political disobedience is gradually displacing civil disobedience?

  June 12, 2013 at 9:47 am   Posted in: Civil Rights, First Amendment   Print This Post   Comments (10)

June 11, 2013

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Tall Latte with a Double Shot of Tax Avoidance

posted by Andrew Blair-Stanek

Intellectual property has become a major tax-avoidance vehicle for multinationals. Front-page articles in the New York Times and Wall Street Journal have detailed how IP-heavy companies like Apple, Google, and Big Pharma play games with their IP to avoid taxes on a massive scale. For example, Apple uses IP-based tax-avoidance strategies to reduce its effective tax rate to approximately 8%, well below the statutory 35% corporate tax rate (and well below most middle-class Americans’ tax rates).

Two characteristics of IP make it the ideal tax-avoidance vehicle. First, the uniqueness of every piece of IP makes its fair market value extremely hard to establish, allowing taxpayers to choose whatever valuations result in the least tax. Second, unlike workers or physical assets like factories or stores, IP can easily be moved to tax havens via mere paperwork.

But Starbucks is a bricks-and-mortar retailer dependent upon physical presence in high-tax countries. It wouldn’t seem to be in a position to use these IP-based tax tricks. Yet in an excellent, eye-opening paper, Edward Kleinbard (USC) delves into the strategies that Starbucks uses to substantially reduce its worldwide tax burden. Most interestingly, Starbucks puts IP like trademarks, proprietary roasting methods, operational expertise, and store trade dress into low-tax jurisdictions. Kleinbard cogently observes that the ability of a bricks-and-mortar retailer like Starbucks to play such games demonstrates how deep the flaws run in current U.S. and international tax policy.

 

  June 11, 2013 at 5:01 pm  Tags: Intellectual Property, Kleinbard, Starbucks, tax law  Posted in: Intellectual Property, Tax   Print This Post   Comments (0)

Sherlock and the Law

posted by Dave Hoffman

Like many, I’ve been watching the BBC’s Sherlock, a modern re-telling of Arthur Conan Doyle’s detective series. I’m only mostly finished the first series, but thus far it has been striking how little role law (and its constraints) play in the narrative.  Basically, although Sherlock is a “consulting detective” (and under US rules, certainly an agent of the State), he routinely behaves in unlawful ways.  He often breaks into dwellings (and cellphones, and cars) to get information; he is resistant to writing up his methods (and consequently, a defense attorney would not be able to effectively examine them); he browbeats suspects and witnesses; etc.  In the States, quite obviously, all of the confessions produced by his methods would be thrown out as poisoned fruit.

There’s nothing earth-shaking here – and it’s not the only time that law is devalued by storytellers – but I wondered whether and to what extent a series based primarily in the UK can avoid barnacled procedural discussions in a way that a series based in the US obviously can not.  That would then suggest that Elementary, a CBS show that apparently apes Sherlock in many ways, would spend more time talking about law (and the rules of criminal procedure) than Sherlock does. I haven’t seen the former show, so I’d love to be disabused of my fear that Elementary’s Sherlock spends most of his time filling out paperwork and discoursing on the complicated rules of electronic surveillance.

  June 11, 2013 at 11:45 am   Posted in: Criminal Law   Print This Post   Comments (10)

Certiorari Studies and the Blackmun Digital Archive

posted by Katie Eyer

For those who may not be aware of it, I wanted to call attention to a fantastic resource put together by Lee Epstein, Jeffrey Segal, and Harold Spaeth, the Digital Archive of the Papers of Justice Harry A. Blackmun (available here). For anyone interested in integrating certiorari denials in their research, this is a wonderful resource. It provides access to the docket sheets, showing how the Justices voted individually on certiorari, Justice Blackmun’s annotated copy of the cert pool memo, and, occasionally, other documents that Justice Blackmun attached.

The archive has some limitations. Most notably, it is for the 1986-1993 Terms only. In addition, it only provides Justice Blackmun’s records, so it doesn’t provide access to records that any of the other Justices may have maintained. It also occasionally has images that cut off parts of the text. But for someone looking to examine a pattern of certiorari denials during that time frame (or a particular certiorari denial), it is an excellent “getting started” resource. From the comfort of one’s own desk, one can get access to the vote, the cert pool memo, and—from other electronic sources like Westlaw—the petition-stage filings. If something interesting emerges, it is always possible then to search out other, less accessible sources.

To give readers a more concrete sense of what the archive has to offer, I give links to some documents after the jump.

Read the rest of this post »

  June 11, 2013 at 9:30 am   Posted in: Uncategorized   Print This Post   Comments (1)

The Problems and Promise with Terms of Use as the Chaperone of the Social Web

posted by Woodrow Hartzog

The New Republic recently published a piece by Jeffrey Rosen titled “The Delete Squad: Google, Twitter, Facebook, and the New Global Battle Over the Future of Free Speech.” In it, Rosen provides an interesting account of how the content policies of many major websites were developed and how influential those policies are for online expression.  The New York Times has a related article about the mounting pressures for Facebook to delete offensive material.

Both articles raise important questions about the proper role of massive information intermediaries with respect to content deletion, but they also hint at a related problem: Facebook and other large websites often have vague restrictions on user behavior in their terms of use that are so expansive as to cover most aspects of interaction on the social web. In essence, these agreements allow intermediaries to serve as a chaperone on the field trip that is our electronically-mediated social experience.

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  June 11, 2013 at 1:09 am   Posted in: Contract Law & Beyond, Cyberlaw, Privacy   Print This Post   Comments (0)

June 10, 2013

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Does the Fourth Amendment regulate the NSA’s analysis of call records? The FISC might have ruled it does.

posted by Babak Siavoshy

A striking (and underreported) feature of the NSA’s recently-revealed surveillance programs is the government’s claim that there is judicial oversight of the analysis and querying of telephony metadata acquired under the program.  As Orin Kerr pointed out last week, the DNI’s statement about the NSA programs states that a court-imposed reasonable suspicion standard governs government “queries” into call records collected from Verizon and other providers:

By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. [My emphasis.]

This judicially enforced standard—which some commentators appear to have overlooked—could, in theory, impose practical limitations on the government’s access to private information from call records collected by the NSA.  The DNI’s description suggests that before government agents can query those records, they must comply with a court-imposed standard that requires specific facts reasonably tying the query to data associated with a foreign terrorist organizations. I’m speculating on the specifics of the standard here; the language is ambiguous, including [as discussed in the comments to this post] as to whether the FISC approves queries ex ante or reviews them ex post, if at all.

Details aside, the statement suggests that while the collection of telephony metadata is indiscriminate, its analysis is circumscribed and is overseen by the FISC.  Indeed, the reasonable suspicion standard described by the DNI is the same legal standard used to limit law enforcement discretion in other contexts.

That is not to say that a “downstream” reasonable suspicion standard is, by itself, sufficient to protect legitimate privacy interests. It may not be; and whether it is may depend on a variety of facts we don’t know, including how “queries” are constructed, the specific application of the reasonable suspicion standard in this context, and the FISC’s process in overseeing queries. Still, commentators writing about the NSA programs should not leave out this crucial feature, which suggests the NSA’s surveillance of telephony metadata is something less than indiscriminate.

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  June 10, 2013 at 8:37 pm   Posted in: Uncategorized   Print This Post   Comments (11)

June 9, 2013

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Patent Troll Reform

posted by Gerard Magliocca

As someone who wrote about the problems posed by patent trolls (or opportunistic licensing) years ago, I was heartened by the Obama Administration’s recent set of proposals on that issue.  I’m not sure when we decided to start calling patent trolls “patent asserting entities” (Were cave trolls offended?), as any firm that brings an infringement action could be so classified.  Nevertheless, administrative remedies and the possibility of further legislation are welcome.

To a large extent, the Administration and Congress are dancing around the real problem–software patents.  In my 2007 article, I said that the abolition of software patents would be the best way to deal with trolls.  At the time, I thought that was a pipe dream.  Maybe it still is, but my sense is that people are more leery of software patents now and are more open to considering a reform in that area.  It’s worth waiting and seeing if the new proposals work, but I’m skeptical that they will succeed  any more than the America Invents Act of 2011 did.

  June 9, 2013 at 11:12 am   Posted in: Intellectual Property, Uncategorized   Print This Post   Comments (1)

June 7, 2013

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Suicide and Legal Liability

posted by Gerard Magliocca

A recent study indicates that more Americans committed suicide last year than were killed in car accidents.  This could be good news for auto safety, but it may also be bad news about the suicide rate.  This raises an interesting question–should the law do anything directly to discourage suicide?

At common law, suicide was a crime.  The penalties ranged from prison for attempted suicide that failed, being barred from burial in a cemetery, or escheat of the suicidal estate.  These sanctions were abolished in the twentieth century (at least in Anglo-American law).  A libertarian argument can be made that suicide should not be a crime because we have a right to end our life. (Assisted suicide presents more problems.)  Or you might say that suicide is a mental health issue and hence should not be punished at all.  Or you could say that punishing suicide only hurts the victim’s surviving family members.

Still, I wonder if the current hands-off posture is a little too sanguine.  Maybe there are some people who could be discouraged from suicide by legal consequences.  Complete escheat of the victim’s estate to the state is rather harsh, but what about partial escheat?  In effect, what if we said that you will pay a higher estate tax if you commit suicide?  Would that be so wrong?  Not all problems have a legal solution, but is this one of them?

  June 7, 2013 at 5:04 pm   Posted in: Criminal Law, Uncategorized   Print This Post   Comments (21)

Views on Surveillance May Depend on Degree of Responsibility

posted by Lawrence Cunningham

In the uproar over the U.S. surveillance program, at first it is not easy to classify the sides.  One-time lefty veep Al Gore is horrified by the program while the young right-winger Rand Paul fulminates about it as an “assault on the Constitution.” The seasoned Democrat Diane Feinstein calmly defends the program as lawful, authorized by three branches of government in different ways; the ACLU responds that this a pox on all the branches.  The editors of the New York Times are outraged by the governmental excesses (a “dragnet”) while the White House demurs.  The press and blogosphere are viral, though it is too soon to gauge the public’s net view (something that in any event can be opaque or fickle,e.g. this and this).  

I admit being torn about the correct policy in this situation, the balance between privacy and security, or even how to think about their relationship if there is not a trade-off.  But reading the papers and reports in the fury of this moment, one salient feature that seems to divide the viewpoints is the degree to which a person is in a position of responsibility for government administration.  It is a lot easier for those without such responsibility to criticize governmental actions.  If a terrorist slips through the cracks, blame will not be assigned to bloggers, journalists, policy wonks, citizens, former government officials or even disgruntled government officials who do not believe in government.  Blame will be assigned to, and the burden of guilt borne by, those in office who believe that government has some responsibility to protect the country.

  June 7, 2013 at 9:50 am   Posted in: Current Events   Print This Post   Comments (10)

June 6, 2013

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LSA Retro-Recap Days 2-3: Leisure, Law & Econ, and Liberalism

posted by Stephen Galoob

Day 2 of the conference saw a spirited panel (featuring Scott Shaprio, Ken Ehrenberg, Michael Guidice, and Brian Tamanaha) about the (ir)reconcilability of legal anthropology and sociolegal studies with analytic jurisprudence. Much of the discussion (not to mention the spirit) here concerned the appropriate definition of a “concept.” If that kind of question does not induce somnolence for you, then read on! Read the rest of this post »

  June 6, 2013 at 5:28 pm   Posted in: Conferences, Criminal Law, Economic Analysis of Law, First Amendment, Legal Theory   Print This Post   Comments (2)

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