November 20, 2009
Privacy and Tattletales
posted by Kaimipono D. Wenger
What happens when a commenter’s privacy expectations collide with a would-be tattletale? This recent news story raises that question, with some interesting facts.
The story began when a pseudonymous commenter stopped by the St. Louis Post-Dispatch site and left a vulgar comment in the reader commentary section. The site admin deleted the comment, and the commenter re-posted it. At this point, the site admin decided to do some basic sleuthing. He traced the commenter’s IP address to a local school, and then he alerted the school (which turned out to be the commenter’s employer) that the vulgar comment had originated from its IP address. The school’s sysadmin was able to trace it from there, and the commenter ultimately lost his job.
I don’t know that any legal privacy rights have been violated here. (Dan?) But this does seem like overreaching by the site admin. Penalties like comment deletion or even banning are within the norms of site administration. Ratting someone out to their boss? I’m not so sure. Read the rest of this post »
November 20, 2009 at 7:51 pm
Posted in: Blogging, Privacy
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Ricci: Color-Blind Standards in a Race Conscious Society?
posted by Michael Zimmer
While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.
The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:
“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”
The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:
“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”
In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed. (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably. Read the rest of this post »
November 20, 2009 at 8:49 am
Posted in: Civil Rights, Constitutional Law, Employment Law, Supreme Court
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Negligent Corpse Mishandling
posted by Gerard Magliocca
One of my favorite exotic torts (especially as we reach the end of the semester) is the negligent mishandling of corpses. This cause of action constitutes an exception to the principle that recovery for the negligent infliction of emotional distress is limited to those who observe an accident in which someone close to them is injured or killed. Under the Restatement (Second): ”One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.” Classic examples would include spilling the body from the casket or putting the wrong one in the grave.
Of course, one could say that this is a claim by the deceased for their interest in the proper disposition of their remains that is being brought by the estate. But it probably makes more sense to think about this as an emotional distress claim of the living that is just one step removed from witnessing a death.
November 20, 2009 at 6:11 am
Posted in: Tort Law
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November 19, 2009
At CELS, Hoping to Blog
posted by Dave Hoffman
I’m at the annual Conference on Empriical Legal Studies, hosted by USC. Though I’m not expecting a repeat of last year’s fireworks, if anything noteworthy happens I’ll be sure to blog it. In the meantime, if you are interested many of the panels (but not mine, sadly) will be webcasted here. I imagine that the Law and Politics channels in particular will be of interest to those who like that sort of analysis.
November 19, 2009 at 10:56 pm
Posted in: Uncategorized
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And Justache For All at GW Law
posted by Lawrence Cunningham
The global movement to promote men’s health issues, Movember, led GW Law students to adapt it to raise money to support public interest law service. The idea behind the Movember movement is that men grow moustaches in November to raise money and awareness for men’s health issues, especially prostate and testicular cancer.
A group of wonderful GW Law students (some pictured) tweaked that in an awareness- and fund-raiser, called Justache, to make it about the Equal Justice Foundation, which funds stipends for law students working in the public interest. Begun last year, Justache invites participants to register in early November clean-shaven. For the rest of the month, men have to let the upper-lip grow and keep the rest of their face relatively clean. Women participate using fake mustaches, glued, drawn or otherwise.
Participants must raise pledges of at least $15 weekly during the month. The participant raising the most money wins first prize in the competition. Last year, most contributions came from friends passing along a dollar or two, but there were a couple big donations. With about ten competitors in 2008, Justache raised about $3,000. The fund-raiser winner was Katie Taylor, winning a $150 prize. The honor of best mustache went to Jeremy Abbott.
This year, more funds are expected. There are 35 participants signed up, including 4 women and 3 professors, with pledges raised and photographs appearing here (and rules are here). There is also a gala dinner this year, tomorrow night, where a couple dozen guests, mostly GW Law students, are paying $75 each to attend.
I was the lucky recipient of an invitation and look forward to a delightful evening with this group. (I wasn’t asked to pay the entrée fee but how can I resist contributing at least that for this wonderful cause?) Rumor is other guests may include Members of American Mustache Institute and selected Members of Congress sympathetic to the cause.
The only other school GW Law’s Justache promoters are aware of that’s done anything similar is Georgetown, although it seems to have been abandoned. An old post on mustaches from the WSJ Law Blog has a defunct link to their competition. Also, as GW Law student Dan Martin put it to me, “they apparently did it in the spring, rather than the sacred month of Movember.”
Kudos to all GW Law students behind this, with special thanks to Dan Martin (on the right in the photo here) and Greg Crespo (in the center) for the leadership and Dan for the information and dinner invite!
November 19, 2009 at 6:26 pm
Posted in: Law School
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Rep. Garrett Meddling with FASB
posted by Lawrence Cunningham
On Monday, I criticized political interference with US accounting standard setting and this morning I referenced innovative securitization deals that contributed to the credit crisis. Now I read that Rep. Scott Garrett (R-NJ) yesterday offered an amendment to the House financial reform bill to require the accounting standard setter to prepare a written study on the effects of its new accounting standards for securitizations!
The current financial crisis, plus the Enron calamity earlier this decade, made clear the vitality of having accounting standards, for securitization and similar financial transactions, that make a company’s debt obligations transparent to investors. The Financial Accounting Standards Board has done just that by issuing two new accounting standards governing such deals. As always, FASB did so after extensive study, deliberation, solicitation and evaluation of comment letters from anyone interested in providing them.
Garrett’s proposed amendment would now impose a legal obligation on FASB to do a more particular study, in cooperation with various federal regulatory agencies, on the effects of the new standards on companies who do securitization deals. This is objectionable for at least the following reasons: (1) it is inherently objectionable political intermeddling into the independent accounting standard setting process; (2) it is the result of lobbying campaigns by banks and others in the business of securitization; and (3) it caters to those lobbying interests rather than focusing on those for whom accounting standards are written: investors.
Rep. Garrett says he’s worried that making securitizations more transparent to investors would make it more difficult for banks and other financial institutions to do them. That would, in turn, mean reduced availability of consumer credit. It is as if the Representative has not read a single newspaper in the last two years. After all, it does not appear that the biggest problems in the country the past decade were consumers borrowing too little or banks doing too few opaque financing deals.
November 19, 2009 at 10:45 am
Posted in: Accounting
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KSM on Trial
posted by Gerard Magliocca
The decision to try some of the ringleaders of 9/11 in the District Court for the Southern District of New York raises many interesting questions. Here are a few below the fold:
November 19, 2009 at 6:17 am
Posted in: Current Events
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Must Law Practice and Scholarship be Exciting?
posted by Lawrence Cunningham
Causes of the worldwide credit crisis include, perhaps dominantly, the proliferation of innovative financial contracts, purportedly devices that would reduce financial risk but that instead backfired to concentrate and intensify it on a galactic scale. What role did corporate law culture play in this part of the cause? Was it too exciting? Should it be duller?
Beginning in the late 1980s, when I was in practice, I and other lawyers participated in incubating the market for financial derivatives and securitization transactions. In the beginning, these deals were nowhere near as exciting as the same period’s newly-exciting mergers and acquisitions and finance practices. We would prepare one-off interest rate swap form contracts on a small scale. We would package credit card accounts receivable into pools for sale to investors. But this practice area became increasingly exciting through the 1990s and 2000s as derivatives and securitization deals proliferated and came to form whole departments in law firms, rivaling mergers and acquisitions groups in glamour and revenue.
In the early 1990s, when I entered corporate law teaching, there was much exciting academic work being done, the culmination of what Yale corporate law scholar Roberta Romano heralded as a “revolution” in corporate law scholarship which, in the 1960s and 1970s, at least, had been dull. In that earlier period, the focus, in practice and the academy, was merely on positive, doctrinal law, mostly statutes, and on the old-fashioned duties managers owed to shareholders, often meaning practicing lawyers telling creative clients “no” when innovative ideas would violate longstanding duties. Read the rest of this post »
November 19, 2009 at 5:57 am
Posted in: Corporate Law, Culture, Law School (Scholarship), Law School (Teaching)
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November 18, 2009
Yes, Prime Minister on Political Loyalty
posted by Gerard Magliocca
“Gratitude is merely a lively expectation of favors to come.”
November 18, 2009 at 7:53 pm
Posted in: Humor
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Ozymandias Lessons for Copyright
posted by Deven Desai
Ann Bartow’s post about Paul Zukofsky, son of Louis and Celia Zukofsky, and his attempt to exert extreme control over his parents’ work reveals that heirs are problem for copyright. Mr. Zukofsky asserts some untenable points about his power over the material and the need for academics to seek his approval. The full letter is on his site. Here are some choice quotes:
Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of “fair use”. “Fair use” is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights. …
Next, other than for the following, I am not trying to censor you. I hardly give a damn what is said about my father (I am far more protective of my mother) as long as the name is spelled properly, and the fees are paid. My interest is almost purely economic. That being said, I do not approve of delving into the personal lives of my parents. If you wish to spend your time worrying if LZ did or did not shtupp alligators, that is your problem, but I will not approve quotation. That is not scholarship. That is gossip, and beneath contempt. …
Finally, when all else fails, and you remain hell-bent on quoting LZ, but you really, really REALLY do not want to deal with me, or you have been stupidly advised to try to circumvent me — remind yourself again and again, and yet once more, what Lyndon Baines Johnson’s said about J. Edgar Hoover i.e.: “I’d rather have him inside the tent pissing out, than outside pissing in”.
Although these statements may seem like ravings, Mr. Zukofsky is not alone in having these perspectives. As some know, the Joyce, T.S. Elliot, J.R.R. Tolkien, J.M. Barrie, Sylvia Plath, Samuel Beckett, and Bertolt Brecht estates have expressed similar views. What strikes me here is that although Louis and Celia Zukofsky are important figures in American poetry, I would bet that many are unaware of who they are. Their son’s perspective of wanting extreme control, little discussion, and rent extraction indicates his interest in, well, his interests. Those do not seem to include aiding people who wish to keep the artists in question alive as part of our culture. All of which makes me think Mr. Zukofsky might take a lesson from another poet, Percy Bysshe Shelley, for I think that not even the pedestal may remain for his parents if he maintains this posture.
OZYMANDIAS
I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them, on the sand,
Half sunk, a shatter’d visage lies, whose frown
And wrinkled lip, and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamp’d on these lifeless things,
The hand that mocked them and the heart that fed.
And on the pedestal these words appear:
“My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!”
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.
IMAGE: WikiCommons. Thought to have inspired the poem.
License: GNU Free Documentation License, Version 1.2 or any later version published by the Free Software Foundation
Description: The British Museum, Room 4 – Colossal bust of Ramesses II, the ‘Younger Memnon’ From the Ramesseum, Thebes, Egypt 19th Dynasty, about 1250 BC. One of the largest pieces of Egyptian sculpture in the British Museum. Weighing 7.25 tons, this fragment of his statue was cut from a single block of two-coloured granite. He is shown wearing the nemes head-dress surmounted by a cobra diadem.
Author: Mujtaba Chohan E-mail: m.chohan@gmail.com Source: British Museum Visit
November 18, 2009 at 2:18 pm
Tags: copyright, heirs, Ozymandis, Zukofsky
Posted in: Intellectual Property
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The Lead Brief in McDonald v. Chicago
posted by Gerard Magliocca
On Monday, the petitioners in the Second Amendment incorporation case filed their merits brief and asked the Court to overrule Slaughterhouse, United States v. Cruikshank, and Presser v. Illinois. While I agree with their view that the Second Amendment should apply to the States and think the brief’s discussion of the Fourteenth Amendment’s original understanding is excellent, the case analysis is flawed.
As I explain in my forthcoming article, which should be out any day now, Slaughterhouse is not hostile to incorporation. It only acquired that meaning in Maxwell v. Dow, a 1900 case that reread Slaughterhouse in light of recent political events (i.e., the defeat of William Jennings Bryan). Indeed, the brief just adopts Maxwell’s faulty claim that using the Privileges or Immunities Clause for incorporation would require the overruling of Slaughterhouse and Cruikshank. Cruikshank can be distinguished on state action grounds — it’s holding is not inconsistent with incorporation–and Presser is irrelevant as the Second Amendment claim there was not properly pled. The real case that needs to be overruled (or modified) is Maxwell.
Finally, what does “overruling Slaughterhouse” mean exactly? Would I now have a constitutional right to be a butcher?
November 18, 2009 at 1:45 pm
Posted in: Constitutional Law
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November 17, 2009
Ricci and Briscoe as Disparate Impact Cases
posted by Michael Zimmer
UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.
The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used. The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.
Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.
November 17, 2009 at 4:58 pm
Posted in: Civil Rights, Employment Law, Race, Supreme Court
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Email: Fear mongerer or neighborhood policing’s best friend?
posted by Sarah Waldeck
Last week I received at least twenty different emails forwarding the same story about a house in my town that was almost burglarized. A man with a rake who appeared to be looking for work knocked on a front door and realized it was open. He went to the sidewalk and consulted with his friends. The owner, who was in the house, locked the door. After the men returned to the front door and found it locked, they tried to open a back door and then a basement window. The owner called 911 and the police caught one of the men. Not exactly high drama, but plenty scary for the owner inside the house.
Each email contained the same information: soliciting is illegal and police want residents to report all solicitors because these individuals might be casing houses.
Almost every email also contained either a subtle or not-so-subtle ratcheting up of the fear. Some emails lamented that our blocks weren’t safe. Others warned that criminals need money for the holidays. One advised that we consider this story as our children start to get older and move around the town without parents. Another suggested that we watch the movie “Taken” because it would make us rethink letting students travel to Europe.
The upside is that I now know that soliciting is illegal and that the police want me to report it. I’m also being more careful about locking my doors, a good habit in any event.
But here’s the downside to this email flurry. I am discomforted as I move about my town and house in a way that I have never been before. This is true even though I know about the availability heuristic, i.e., the tendency to think events are more probable if we can recall such an event occurring. I also know how bad humans are at processing information about low-risk occurrences. Email only exacerbates this faulty reasoning. The Rakeman story is significantly more available to me than it would have been had I heard about it once or twice through old-fashioned word-of-mouth.
Many would argue that discomfort is good. They are probably right, to a point. But here is what I would have said if I had allowed myself to respond to all those emails: Lock your doors. Be smart. And relax, because you are a lot safer than you think you are.
November 17, 2009 at 12:10 pm
Posted in: Behavioral Law and Economics
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Counterfactual Legal History
posted by Gerard Magliocca
About ten years ago a popular series of books called “What If?” — consisting of a series of essays by historians — came out that looked at key turning points in world or military history and tried to describe plausible counterfactuals. I’ve often thought that asking that question about law would make for a fun conference. Proposing the idea, though, points up a major difference between lawyers and historians.
Historians (except for the folks who participated in those books) are generally not fans of counterfactuals. In part, that is based on a methodological preference in favor of describing reality rather than speculating. But another reason is that historians tend to be very sensitive about the complexity of events and thus very skeptical about causal arguments of any sort.
Lawyers, by contrast, use counterfactuals all the time. After all, “but for” causation or “harmless error” is asking a jury or court to figure out alternative paths for litigation. In part, this is justified because we view causation as a more probable than not question. A looser standard for causation leads to a greater willingness to think about what might have occurred if the facts were changed.
Once again, this raises the question of what a legal historian should do. My own work is chock full of counterfactual experiments, which may explain why some historians might not like my scholarship. Straightforward legal history is important and worthwhile, but it seems to me that law (especially constitutional law) is more contingent than we generally think, and thus we need more work exploring lost paths. There are some terrific examples — Risa Goluboff’s book on “The Lost History of Civil Rights” comes to mind — but that’s not enough.
November 17, 2009 at 9:58 am
Posted in: Jurisprudence
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BRIGHT IDEAS: Barry Friedman’s The Will of the People
posted by Danielle Citron
Gerard recently blogged about Barry Friedman’s exciting new book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, and lucky for us at CoOp, I had a chance to talk to Friedman about the book. Friedman is the Vice Dean and Jacob D. Fuchsberg Professor of La
w at New York University School of Law whose vast and impressive scholarship focuses on constitutional theory and judicial decisionmaking in constitutional cases. He answered several questions about the book; I produce his remarks below.
SO, WHAT LED YOU TO WRITE THIS BOOK?
FRIEDMAN: The proper role of judicial review has always been one of the real challenging questions in constitutional law. The goal of most scholars has been to find a theory that reconciles judicial review with democracy, necessarily seeing the two as inconsistent. From the time I began teaching I hoped to jump into that debate – except that I never saw the two as inconsistent. Whether it was Planned Parenthood v. Casey, Furman v. Georgia or Bowers v. Hardwick, I saw the Court as responsive to public opinion. As some readers of the blog no doubt know, I wrote several (infelicitously named) law review articles looking at the question of when the “counter-majoritarian difficulty” took hold. I then read a lot of political science. Finally I decided a book was in order.
THERE ARE A LOT OF HISTORIES OF THE SUPREME COURT, AND OF JUDICIAL REVIEW. WHAT MAKES YOURS DIFFERENT?
FRIEDMAN: Well, the focus of most histories is on what the Court is doing at any given time – as well as why, and what the impact is on constitutional law. Instead of focusing on the Court, my book is about how the public responded to judicial decisions, and how the interaction between the Court and the public shaped both the institution of judicial review, and the meaning of the Constitution.
DO YOU HAVE ANY PARTICULAR INTELLECTUAL ASPIRATION FOR THE PROJECT, BESIDES TELLING THE STORY?
FRIEDMAN: Besides selling books? 
Seriously, though, my hopes depend on the audience. I certainly would like to put to rest what has been the dominant criticism of judicial review, that it necessarily trumps majority will. That applies both in the general public and the academy (though I’m certainly more skeptical of success in the former). But the book differs from a lot of books in one notable respect – the theory animating the history is at the end of the book, not the beginning. There are two reasons for that. First, on the advice of friends I came to understand that it was easier to “get” the theory having seen all the evidence. But more important, I intended the book to suggest a research agenda. We’ve been asking the wrong questions about judicial review for a long time; it is an auspicious moment for legal academics and their counterparts in the social sciences to pursue some new avenues, ones I believe are more apt. Read the rest of this post »
November 17, 2009 at 9:18 am
Posted in: Uncategorized
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November 16, 2009
Book Review: Henry Kaufman, The Road to Financial Reformation
posted by Lawrence Cunningham
About 1 in 5 people I know expert in financial policy has written, is writing, or wants to write a book about the prevailing crisis. Every editor at commercial publishers I know is salivating to get such books under contract and sold to a voracious public. The result is and will be many books that should be not be written, published or read.
One of these is the product released late summer by the “anything-for-a-buck” John Wiley & Sons, to the discredit of its “author,” famed Wall Street denizen and critic, Henry Kaufman (The Road to Financial Reformation: Warnings, Consequences and Reform, 2009, 240 pp.).
I like Kaufman, nicknamed “Dr. Doom,” having read many of his writings. But this contains virtually no current analysis of the present situation, instead repackaging old pieces in the veneer of current commentary.
A guess is editors at Wiley reached out to many potentially successful “authors” and that Kaufman, among them, said he could not write a fresh comprehensive account but would let them republish old stuff, stitched together in a new guise. Pity that many are spending $30 for 240 pages of text (double-spaced) that contains essentially nothing new—but many old pieces that enable the current packaging to say “I told you so.” Wiley editors may think that a selling point, but I don’t (nor did The Economist’s reviewer).
The volume’s only important idea is this: business schools are culprits in the crisis for their excessive devotion, for forty years, to research and teaching of models of modern finance theory, and subordination or exclusion of research and teaching in economic and financial history. I endorse the rebuke, which I also repeatedly say includes the elevation of elegant finance by subordination of sturdy old-fashioned principles of accounting.
Following is a summary of this digest, which I discourage anyone to buy. Shoppers more astute than I may detect the absence of value from three squibs Wiley managed to include on the outside jacket: (a) journalist Amity Shlaes says “buy it for Figure 12-1 alone;”* (b) former Senator Bill Bradley says Kaufman has “consistently and correctly warned us of the dangers;” and (c) former Fed Chair Paul Volcker notes the volume is “drawing in part on earlier writings” (an understatement and revealing to the discerning). Read the rest of this post »
November 16, 2009 at 7:26 pm
Posted in: Book Reviews
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BRIGHT IDEAS: John Temple on The Last Lawyer
posted by Deven Desai
John Temple is Associate Dean of the P.I. Reed School of Journalism. His new book, The Last Lawyer, follows Ken Rose as he handles a post-conviction death penalty case. Whether one is for or against the death penalty, the book reveals how any system with capital punishment must face the problems of inadequate defense, mental retardation, mental illness, and sketchy witness testimony. John is not, however, a lawyer. His post today explains what drew him to this story and the difficult choices the story made him face as writer. For those interested in chronicling major social issues and for those who want to know the details of what it takes to do capital defense work, this book should be a great place to start.
THE LAST LAWYER
By John Temple, author of The Last Lawyer
Unlike many authors who set out to write about hot-button issues, I was not motivated by ideology, but rather by a journalistic impulse — what Tom Wolfe calls the desire to chronicle “the way we live now.”
About 10 years ago, I saw a news brief about a team of lawyers who were flying in to Texas to defend a man who faced a looming execution date. It had never occurred to me that there were lawyers who specialized in last-minute capital appeals. That was a book, I thought. It would have the scope, the ticking-clock narrative, the characters with goals.
In 2004, I began looking for the right setting. I settled on North Carolina. It had a large death row, an organization exclusively devoted to fighting death sentences (the Center for Death Penalty Litigation), and it was within driving distance of my home in West Virginia. I contacted Ken Rose, the executive director of the CDPL, and explained my plan. He helped me arrange a visit to Durham to meet some attorneys who might have a case I could follow. He was clear that he thought the attorney should be someone other than himself.
In May of that year, I drove to Durham and spent the first couple of days interviewing CDPL attorneys, including Ken. None of the other lawyers were litigating cases that seemed quite right for my idea. Meanwhile, I was growing more interested in Ken, a self-effacing, driven man who’d been doing the work for more than a quarter-century. But Ken brushed aside my queries about his own cases.
At Ken’s request, I had carried along a manuscript of my then-unpublished first book, Deadhouse: Life in a Coroner’s Office. I was nervous to give it to him because it was a book about courts and homicide cases, Ken’s area of expertise. I worried he’d find something offensive – or worse, incorrect – and cut off my access.
But he read the manuscript in one night, and the next day, he gave it back to me without much comment. Whatever he’d thought, he had apparently come to a conclusion. He sat back on his couch and said the words I’d been hoping to hear: “You know, I have a case you might be interested in.”
“Tell me about it,” I said.
That was the beginning of my four-and-a-half year journey into the world of capital post-conviction law. But just because Ken was willing to share the story of one of his cases for me didn’t mean that I had gained full access to the case. For the next several months, Ken and his co-counsel and I negotiated an agreement that would give me the detail I needed to write a full and honest account of the case.
We eventually struck a deal. They agreed to give me full access to their case files and allow me to shadow them during strategy sessions and witness interviews.
In exchange, I made several concessions. I agreed not to publish the book until the case had reached some sort of conclusion, whether that meant a reduced sentence, exoneration, or execution. This was difficult because capital post-conviction cases can drag on for decades, and I had not yet earned tenure. It was a gamble, but one I was willing to take, because I simply didn’t want to write a book about an unfinished case.
I also agreed to let the CDPL lawyers read the book before I published it, though I would retain full editorial control. As a former newspaper reporter, I’d been trained to never allow sources to read your work before publication. However, I didn’t think the rationale behind this journalistic tradition applied to a book of this scope. Why not give sources the chance to correct factual errors, I thought, especially when I had retained editorial control on a story that was years in the making? It wasn’t a difficult concession.
After all the years of work, the book is now finished, and we all adhered to our agreement. When I sent Ken Rose the completed manuscript last year, I was very concerned about his reaction. Some parts of the book paint him in an unflattering light, and he’s not a guy who loves the limelight in the first place.
Though he was initially concerned about a few aspects, and clearly uncomfortable in the role of the book’s protagonist, Ken has handled the book’s publication in the most gracious manner. He recently participated in a panel discussion with me at West Virginia University, and has invited me to North Carolina to speak together.
It’s impossible to sum up what I learned over this five-year journey, but from a writer’s standpoint, I’ll offer what I deem to be the biggest lessons. First and above all else, choose a subject that fuels your passion, because when things break down or seem like they might not work out (as was the case for an almost 18-month span during my reporting), you’ll need that inner strength to continue. Second, don’t be afraid to jump outside of your comfort zone. It felt awkward and “unjournalistic” to allow the characters in my book to read the manuscript before publication, but the product was much more accurate as a result. Finally, a little luck can never hurt — and a happy ending is the icing on the cake.
November 16, 2009 at 2:04 pm
Tags: Capital Punishment, journalism, The Last Lawyer
Posted in: Bright Ideas
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Cultural Evolution?
posted by Deven Desai
You be the judge.
1976
Pastime Paradise – Stevie Wonder
1995
1996
By the way, I suggest that anyone wanting a great album acquire Stevie Wonder’s Songs in the Key of Life.
November 16, 2009 at 2:01 pm
Posted in: Intellectual Property, Just for Fun
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A Legal Historian’s Dilemma
posted by Gerard Magliocca
This weekend I attended the Annual Meeting of the American Society of Legal History, which is always a great event. The best line came from Jack Rakove, who said that the search for original understanding in constitutional law is increasingly an inquiry into what “Joe the Ploughman” thought in 1787 or 1791.
A legal historian (a role I play on a semi-regular basis) faces a problem that is common to folks who straddle different disciplines. Unlike real historians, there is an expectation that legal historians should make their work relevant for current issues. When I present papers or try to make them more marketable for law reviews, there is always a temptation — that I don’t always resist — to have a final section that tries to draw lessons from the history and apply them to current doctrine. If you don’t do that, then lawyers will often ask, “What’s the point of this?” If you do take this on, though, then those with a history training will say that you are doing law office history. I’ve never come up with a great solution to this problem,
I’ll talk about a related issue — the use of counterfactual history — in a post tomorrow.
November 16, 2009 at 1:43 pm
Posted in: Jurisprudence
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Against Politics and Finance in Accounting
posted by Lawrence Cunningham
An old joke says every financial crisis needs an accounting culprit to blame. The current crisis may be attributable instead to the dominance of modern finance theory and subordination of traditional accounting principles. Two generations of finance theorists—in business and law schools—developed elaborate models to measure and manage risk in a theoretical world of efficient markets where accounting is not relevant.
Yet two strange twists have arisen—one showing the intellectual limits of the finance story and the other the dark art of making accounting into a political issue. Both concern debate over how to measure financial assets on a balance sheet—the so-called fair value debate.
First, for decades, proponents of modern finance theory urged standard setters to direct asset measurements using fair value rather than applying traditional accounting conventions. The prescription was based on assertions that emphasized the reliability of efficient markets to reveal relevant values. Proponents said traditional accounting conventions, using acquisition cost adjusted over time, were comparatively impoverished.
Amid the crisis, those same people shift their stance, now saying fair value measures in stressful markets are either misleading or put downward pressure on values that could render owners of impaired assets, especially banks, insolvent. On its face, this is an admission about the limits of markets to reveal reliable asset values, that modern finance theory is impoverished.
Second, without opining on the merits of measuring assets at fair value or using historical cost accounting conventions, this issue, once again, is turning accounting standard setting into a political expression rather than a professional one. Politicians in Congress, under heavy bank lobbying, pressured the US standard setter [the Financial Accounting Standards Board] to adopt bank-friendly approaches to asset measurement. Now, Congressional bills (here, for example, and noted here) contemplate empowering politicians and/or a new federal agency to oversee US accounting standard setting, equipping them with veto rights over any accounting standards the political power consensus disfavors.
November 16, 2009 at 11:48 am
Posted in: Accounting, Corporate Finance, Corporate Law, Current Events, Politics
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