Archive for February, 2006
Suckering in New Collectors
posted by Dave Hoffman
The WSJ (free version) has a great article today on efforts made by collectors to try to maintain the market value of their goods by reducing costs for young entrants. Here is a taste
If new generations of collectors don’t materialize, the value of items will plummet. That’s why marble clubs, to generate enthusiasm, send free marbles to schools. The U.S. Mint has a Web site with cartoons and computer games to entertain kids about the thrills of coin-collecting. Indeed, children have shown considerable interest in the state quarters program . . . Some collecting groups have created unstated policies. The 650-member National Milk Glass Collectors Society — a group devoted to opaque glass — holds an annual auction. When the rare young person shows up to bid on an item, older collectors lower their hands. “We back off and let the young person buy it. We want them to add to their collections,” says Bart Gardner, the group’s past president.
Worth reading in full, if only to learn what the Oughtred Society does.
February 28, 2006 at 12:04 pm
Posted in: Weird
Print This Post
No Comments
The Unraveling of the Market for Law Review Submissions
posted by Dave Hoffman
Professors, start your engines: it is time for the spring rush of law review papers. For those of you who are not law professors, aspiring professors, or student editors, you will be unfamiliar with the spectacle of thousands of professors submiting articles to dozens and sometimes hundreds of journals simultaneously, and, having received offers, attempting to expedite “up the ladder” under short time deadlines. Professors’ goals in this process are varied: maximizing characteristic X of the journal for citation/tenure/lateral movement purposes; maximizing quality of editing required (or minimizing it, depending on mood); obtaining “lead article” status; minimizing time to publication; selecting for generous copyright permissions; etc. Editors and journals simultaneously are competing to get the “best” articles, judged by a variety of measures (author individual prestige/author’s institutional prestige/expected citation by journals or important courts); beating a competing journal for quality work; making a statement on an issue of public importance; etc.
In any event, this is all old news. What is clearly new is that the time for submitting law review articles is creeping backwards. Just ten years ago, my colleagues tell me, late March was the beginning of the cycle and articles were routinely submitted and accepted in May. Now, as Kaimi’s post has highlighted, late February is the beginning of the cycle and many journals will be filled (at least for this round) by late March. Moreover, anecdotally, journals are increasingly “exploding” offers, trying to reduce competition through segmenting the market; and moving up board transitions to before Spring Break.
So what’s up? It seems to me [and, no, I can't seem to find someone else who has said this although it isn't earth-shattering] that we are experiencing what Alvin Roth called the “unraveling” of a sorting market. Classic examples of unraveling occur in the labor context – the judicial law clerk market is the paradimatic case – where the time the market begins to operate slowly is pushed back in time as the relevant actors try to get a first-mover advantage. As a result of this market failure, relevant information is not disseminated, and sub-optimal decisions are made.
In our law review example, similarly, the moving back of decisions has multiple pernicious effects. Authors may not be able to get any sense at all of the “market value” of their article (loosely reflected, the myth goes, by multiple offers at a variety of journals). Conversely, journals feeling pressure to move quickly will increasingly resort to proxies for quality like letterhead, prior publication, and the eminences listed in the article’s first footnote (which tell you who an author’s friends and professional contacts are).
Roth posited four stages of such markets:
Stage 1 begins when . . . the relatively few transactions [in the market] are made without overt timing problems. By the middle of stage 1 . . . some appointments are being made rather early, with some participants finding that they don’t have as wide a range of choices as they would like–students have to decide whether to accept early job offers or take a chance and wait for better jobs, and some employers find that not all of the students they are interested in are available by the time they get around to making offers. The trade journals start to be full of exhortations urging employers to wait until the traditional time to make offers, or at least not to make them any earlier next year than this year. Towards the end of stage 1, the rate of unraveling accelerates, until sometimes quite suddenly offers are being made so early that there are serious difficulties distinguishing among the candidates. There is no uniform time for offers to be made nor is there a customary duration for them to be left open, so participants find themselves facing unnaturally thin markets, and on both sides of the market a variety of strategic behaviors emerge, many of which are regarded as unethical practices. Various organizations concerned with the market may have proposed guidelines intended to regulate it, without notable success. As stage 1 ends, influential market participants are engaged in a vigorous debate about what can and should be done.
(Roth & Xing 1994, p. 996). By my reading, we’re in the middle of a stage 1 market. (Taking blogs for “trade journals,” check out Christine Hurt’s posts flagging the issue and exhorting others not to play the expedite game).
February 28, 2006 at 12:02 am
Posted in: Economic Analysis of Law
Print This Post
6 Comments
More on Blogs as Scholarship
posted by Daniel Solove
Recently, I blogged about a National Law Journal article about law blogs and scholarship. Doug Berman points out that blogs and blog posts are even being cited by judicial opinions. Indeed, Berman’s blog was recently cited by the Ohio Supreme Court, and in the past it has even been cited by the U.S. Supreme Court.
Mike at Crime & Federalism observes:
Scholarship is something that moves our legal knowledge forward. If x-article or blog post helps us understand something we hadn’t understood, then it’s scholarly. . . .
Anyhow, I’d love to hear those who disapprove of blogs to explain what separates Doug Berman’s blog from his casebook or a sentencing treatise. If Orin Kerr writes a lengthy entry about the PATRIOT Act, is it not scholarly because he publishes it online?
Larry Ribstein observes:
[S]ome blogs have a lot to do with scholarship in the sense of importantly contributing to the process. My blog, for example, conveys scholarship-relevant information, and I learn the same from other blogs. I also use my blog to germinate and develop ideas that eventually appear in polished scholarship.
Rick Garnett at PrawfsBlawg notes:
Look, of course it is true that most blogging looks a lot more like “chit chat” than like “scholarship.” But isn’t there a pretty big chunk of middle ground here? My sense is that — at least in the law-blogger world — a fair bit of what gets blogged and blogged about does “have [something] to do with scholarship”: People blog about what others are writing about, about what they are writing about, about what they plan to write about, or what they tried to write about. No one thinks that blogging could or should take the place of scholarship. But it seems quite a stretch to suggest that law-blogging does not have — unlike, e.g., enthusiastic and engaged conversations around the lunch table, or during a workship? — anything at all to contribute to the scholarly enterprise.
And here’s a link to the lineup at Paul Caron’s conference on blogging at Harvard this April.
February 28, 2006 at 12:01 am
Posted in: Blogging, Law School, Law School (Scholarship)
Print This Post
2 Comments
Congratulations to Nate Oman
posted by Daniel Solove
It is my pleasure to announce some good news. Nate Oman will be joining the faculty at William & Mary School of Law this fall. Congratulations, Nate! And congratulations to William & Mary, which is getting a first-rate legal mind.
February 27, 2006 at 10:18 pm
Posted in: Administrative Announcements
Print This Post
One Comment
It’s February 27. Do you know where your Articles Committee is?
posted by Kaimipono D. Wenger
Colleagues are talking about it in the hallway. How many boards have switched over? Where exactly are the windows, and when exactly is the “sweet spot” for sending a piece out?
I’m hoping to solicit some responses from our readers, in the comments to this post, to help provide our readers with the information that may help them answer those questions. Are you affiliated with a law review? Has your board turned over? If so, please indicate this in the comments. If enough readers comment, we may be able to collect some useful information. (I believe this could be useful both for the authors, who will send their pieces out at the best time, and for the editors, who will hopefully see fewer premature articles).
Details — “the West Dakota Law Review board turns over on March 1″ — are particularly appreciated. Thanks!
February 27, 2006 at 2:50 pm
Posted in: Articles and Books
Print This Post
40 Comments
Law School Lateral Hiring Report
posted by Dan Filler
Brian Leiter has been very helpful in sharing information about lateral moves by law faculty. Due to time constraints, however, he is limiting his list only to faculty moving to/from schools that figure in his faculty rankings. Since many of us want to learn about ALL faculty moves, Concurring Opinions has decided to emulate Professor Solum’s Entry Level Hiring Reports. As a public service, we – OK, I, Dan Filler, the new kid on the blog (and no, this assignment is not part of normal Co-op hazing) – will collect all your news about law school lateral movement.
Let me know:
Current School
Future School
Teaching Areas
Current Law School Webpage Address
Any Other Details (chair or administrative titles, etc.)
If you have heard of others’ moves, feel free to alert me to those as well. I’ll double check before posting.
Please send this information to danielmfiller@gmail.com.
I’ll post results shortly, and update as necessary.
February 27, 2006 at 12:55 pm
Posted in: Law School, Law School (Hiring & Laterals)
Print This Post
One Comment
The Decline of Blogging?
posted by Daniel Solove
A WSJ article (free online content) tries to debunk rumors of the demise of blogs:
Maybe you’ve heard: Blogs are a vanishing fad — this year’s digital Pet Rock. Or a business bubble about to pop. Or a sucker’s bet for new-media fame seekers.
Recent weeks have seen the rise of a cottage industry in Whither Blogging? articles.
I find it hard to believe that rumors of blogging’s demise have even surfaced. It strikes me as ridiculous to presume anything about whether blogging has peaked given how early in the game it is. The WSJ article debunks these rumors, but concludes by reaching some middle ground:
But blogging will no longer be a phenomenon. When people talk about it, they’ll often be referring to tools for putting up simple Web sites easily, or a certain style of Web publishing: brightly written, frequently updated and inviting reader conversation. That may feel a long way from the claims of blogging’s first heady days, but then that’s the way most such things turn out: Wikis aside, today’s Web looks very little like Tim Berners-Lee’s original idea for a kind of digital whiteboard. Blogging is easier, faster and more conversational than traditional Web publishing, but that doesn’t change the fact that relatively few people actually yearn to be publishers. Nor do they particularly care what category the things they read fit into, or what technological tools produced them. That may not sound like the stuff of revolution or VC riches, but it also doesn’t sound like a fad or a failure.
The author should have also looked at social network chat sites such as MySpace, Xanga, and Facebook. Members of the upcoming generation are living their lives online, and blogging is the way that many are communicating with each other. These sites are growing at a phenomenal rate. MySpace boasts 50 million users.
Hat tip: Bashman
February 27, 2006 at 10:31 am
Posted in: Blogging
Print This Post
No Comments
About Blogging and Legal Scholarship
posted by Daniel Solove
An article today in the National Law Journal discusses blogging and legal scholarship. Doug Berman and Paul Caron are quoted on the pro side of blogging. According to the article:
Berman said he is not suggesting that law professors blog “24/7,” but that exchanging ideas with other scholars and practitioners and keeping as current as possible on specific topics can enhance traditional scholarship.
John Eastman and Kate Litvak come out against blogging, which they don’t find intellectual enough to be considered as much more than a diversion. There’s a lot of law review bashing going on in the piece, including Ann Althouse and Berman. It seems from the article that many praising blogging attack law reviews, but Litvak manages to bash both law reviews and blogs:
“[Blogs] have nothing to do with scholarship,” said Katherine Litvak, a professor at the University of Texas School of Law. . . .
“Blogging has the presumption that you write something thoughtful, important and valuable. I don’t think the medium allows that,” she said. . . .
The amount of time professors devote to blogging is not the real problem with blogs, said Litvak, of the University of Texas. She added that if faculty members want to pass the time on nonscholarly pursuits, they will find a way to do it, blogging or not. Calling the traditional law review system “fundamentally corrupt,” she said that scholars might better spend their time writing for peer-reviewed journals. . . .
While blogging is not a replacement for scholarship, I agree with Berman that it is a useful form of sharing ideas and staying current. More of my thoughts on blogging and scholarship are here. I also diverge from Litvak on law reviews, which I do consider valuable; I just wish we professors could write better.
The article also discusses the upcoming conference at Harvard in April that Paul Caron is organizing about blogs and scholarship. I will be participating along with many others. Additionally, the article mentions my law professor blogger census.
February 27, 2006 at 9:35 am
Posted in: Blogging, Law School
Print This Post
One Comment
Paper Discovers Trove Of Unseen Civil Rights Photos
posted by Dan Filler
Today the Birmingham News published a treasure trove of photographs documenting the Civil Rights movement. These absolutely remarkable photos, featuring Martin Luther King, Thurgood Marshall (pictured at right in a group that included Constance Baker Motley), and other significant individuals and events from that era, can be accessed here. While some appeared at the time, many of these images have not been published previously. According to the account in today’s News, the photos were found accidentally:
[The discovery was] the result of research by Alexander Cohn, a 30-year-old former photo intern at The News. In November 2004, Cohn went through an equipment closet at the newspaper in search of a lens and saw a cardboard box full of negatives marked, “Keep. Do Not Sell.”
The accompanying article includes interesting interviews with News photographers and others discussing why many of these images never saw the light of day. One photographer recalled that “the editors thought if you didn’t publish it, much of this would go away.”
The News has changed over the years naturally. In 1988, it offered a tempered self-critique of its civil rights coverage saying: “The story of The Birmingham News’ coverage of race relations in the 1960s is once marked at times by mistakes and embarrassment but, in its larger outlines, by growing sensitivity and acceptance of change.” That remains a fair characterization of the broadsheet. The editorial board is iconoclastically conservative. It is anti-abortion and solidly Republican but unafraid to confront ideological inconsistency and social injustice. For example, the News recently reversed course on the death penalty, calling for its abolition. Why?
February 27, 2006 at 12:12 am
Posted in: Civil Rights, Culture
Print This Post
One Comment
Total Information Awareness Strikes Back
posted by Daniel Solove
Government surveillance and data mining programs, it seems, never die. They just get renamed. So it has been with the much maligned airline screening program, which was originally called “CAPPS II.” It was canned, and a new program was started called “Secure Flight.” Recently I blogged about Secure Flight being canned, and I predicted that it would soon be reincarnated. That hasn’t happened just yet . . . but wait . . . it will. It’s a pattern.
Remember back in 2002, when a program called Total Information Awareness (TIA) came to light. TIA was a plan to create a massive government database of personal information which would then be data mined. The project had a website, and its logo (pictured) had the words “knowledge is power” in Latin. There was a considerable public outcy when news of TIA made its way through the media. William Safire wrote a blistering op-ed in the New York Times attacking TIA. In 2003, Congress voted to deny it funding. The program was ended.
But I was skeptical. In my book, The Digital Person
While public attention has focused on the Total Information Awareness project, the very same goals and techniques of the program continue to be carried out less systemically by various government agencies and law enforcement officials. We are already closer to Total Information Awareness than we might think.
I hate to say “I told ya so,” but TIA lives. It has been broken up into pieces with nifty names like Genoa II, Basketball, and Topsail. As the National Journal now reports:
Research under the Defense Department’s Total Information Awareness program — which developed technologies to predict terrorist attacks by mining government databases and the personal records of people in the United States — was moved from the Pentagon’s research-and-development agency to another group, which builds technologies primarily for the National Security Agency, according to documents obtained by National Journal and to intelligence sources familiar with the move. The names of key projects were changed, apparently to conceal their identities, but their funding remained intact, often under the same contracts.
February 27, 2006 at 12:02 am
Posted in: Privacy, Privacy (Law Enforcement)
Print This Post
No Comments
Dan Filler Signs on the Dotted Line
posted by Daniel Solove
I’m delighted to report that Dan Filler has agreed to stay on permanently here at Concurring Opinions. He probably doesn’t fully appreciate the fact that he has just signed away his life for nearly nothing in return. He’ll spend eons of time producing content for the blog and get no financial rewards or otherwise.
But his loss is our gain. We think that Dan is a terrific blogger, and he’ll continue to add greatly to this site. We couldn’t be more pleased. Welcome aboard, Dan!
February 27, 2006 at 12:01 am
Posted in: Administrative Announcements
Print This Post
5 Comments
Becker, Posner and the Purpose of the University
posted by Dave Hoffman
Richard Posner and Gary Becker, over at their eponymous blog, have been blogging about the Summers resignation. They both come out for Summers, and against tenure. The discussion is worth checking out in full.
I wanted to focus in on what seemed to me to be an underlying issue that neither Becker nor Posner really nails down: what good is the university supposed to maximize? Or, clearer put, what is the purpose of a university? Posner argues that faculty and university incentives and capabilities are misaligned:
The faculty are interested primarily in their own careers, and what is good for their careers and what is good for Harvard are only tenuously connected . . . What is more, [a replacement president] might be more inclined to kow-tow to faculty, enhancing their careers at the expense of the long-run health of the institution.
But this does not tell us what success or “long-run health” means. Both eminent economists turn quickly to market measures of value. Posner claims that “our universities are the best in the world” [Ed.: Now is the time to remind the reader that such puffing claims are not to be trusted, and to suggest that they look for this paper on that very topic.] Becker is more explicit:
Still, I believe the only satisfactory way to evaluate how universities (or businesses) are run is by their success or lack of it in the long run. Although there is no simple way, like profitability, to judge universities, there is an effective way to judge a university system. The American college and university system is widely accepted as the strongest in the world. This is why American universities are filled with students from abroad, including those from rich nations with a long history of higher education, like Germany and France.I conclude from this that the American university system must be doing many things right, at least relative to the other systems. And what is right about this system is rather obvious: several thousand public and private colleges and universities compete hard for faculty, students, and funds. That the American system of higher education is the most competitive anywhere is the crucial ingredient in its success.
This argument confuses me. Is the claim that because our universities attract foreign students at higher rates than foreign graduates attract U.S. students our universities are “successful” and should do more of what they are already doing? That claim would seem tough to swallow given that our universities allow entry into our economy and (through marriage to fellow-students) citizenship, and thus attending Harvard isn’t necessary a proxy for endorsing its governance structure. Or is the claim that our success is a product of competition itself? In that event, who cares what internal governance looks like as long as we have established a market for private education?
More generally, it seems to me that without a good account of what the university should be doing (and not what the market is rewarding it for doing) arguments about proper governance structure are founded on quicksand. After all, there are a significant number of more autocratic colleges than Harvard extant. Almost all such schools are traditionally seen as less successful in many ways. Should we chalk Harvard’s success up to path-dependence? The distorting effects of tenure and labor unions? Does this internal market not matter to our evaluation of Harvard’s success? Because if it does, how can we say that the faculty governance model that Harvard has long followed is inversely related to “long term health” of that institution?
(Hat Tip: Todd Z.)
February 26, 2006 at 7:50 pm
Posted in: Current Events
Print This Post
3 Comments
Shameless Plug
posted by Dave Hoffman
As multiple teasers in this space have hinted, I’ve been working on an article about vivid commercial lies and boasts. That article is now out to the law reviews, under the heading: The Best Puffery Article Ever. Given the title,further description seems sort of unwise, but for the curious, perhaps an abstract would be in order:
This Article provides the first extensive legal treatment of an important defense in the law of fraud and contracts: “puffery.” Legal authorities commonly say they make decisions about whether defendants should be able to utter exaggerated, optimistic, lies based on conclusions about buyer behavior, concluding that consumers do not rely on such speech. However, as the Article shows, such conclusions are proxies for a deeper analytical question: does the speech encourage or discourage a type of consumption activity that the court deems welfare maximizing.The Article presents a novel constitutional analysis of puffery doctrine that focuses on the meaning of “misleading” speech, a term of art at the heart of the Supreme Court’s contested and still evolving commercial speech jurisprudence. Missing from that jurisprudence is a satisfactory account of how consumers and investors react to speech that is not literally false but which has false implications. I present such an account, focused on the incentives and capabilities of sellers to exploit buyers’ cognitive vulnerabilities. I draw on economic, marketing, psychology and consumption literatures.
I conclude by offering a novel liability proposal. Because legal authorities are incapable of satisfactorily drawing a line between harmful and innocuous puffery, the law should make sellers presumptively liable if their speech contains exaggerated, but vague boasts. This approach would place the onus on sellers to balance the costs and benefits of puffery, and thus lead both to more satisfying doctrine and a more optimal level of fraud.
I’ll be putting a draft up on SSRN shortly. And, now, I can return to my regular quota of blogging!
February 26, 2006 at 1:17 pm
Posted in: Administrative Announcements
Print This Post
3 Comments
Starbucks’ Secret Menu
posted by Dan Filler
Everyone has a different perspective on Starbucks. In a place like San Francisco, with a strong independent cafe culture, it’s seen as Corporate Joe. In Birmingham, though, Starbucks helped balloon the city’s tiny pre-existing cafe community. Enough cultural commentary. My main goal with this post is to alert interested Starbucks consumers to a few attractive menu items that have inexplicably been left off the menu. (I speak primarily for the Birmingham stores, but in my experience these items are generally available nationally.)
For for the frugal and/or low intenisty addict: the Short coffee. It’s served in the same cup as the kid’s hot chocolate. And you always thought that it was nonsensical that Starbuck’s small was called tall. It isn’t; they just don’t want to explain matters to you.
For cafe au lait lovers: the Misto. Cafe au lait fans will love the Misto because, well, it is a cafe au lait. Half cup of coffee, topped with steamed milk. Ask for it extra foamy.
For people who have strong coffee preferences: the French Press. They don’t tell you this, but for 3 or 4 bucks, they’ll serve you up a french press made of any coffee in stock. So when the coffee of the day is House, and you just gotta have Sumatra…it’s your choice. And you’ll have enough to share with a friend.
Take control of your Starbucks experience. Order off menu.
February 25, 2006 at 9:53 pm
Posted in: Culture
Print This Post
109 Comments
John Paul Stevens In Picture And Song
posted by Dan Filler
If you haven’t heard this Air America spoof of Hang on Sloopy – retitled Hang on Stevens – it’s worth a click. I can’t imagine that Stevens, a Republican (OK, a Hyde Park Republican, but still…) would have predicted this fate 30 years ago.
And if you haven’t yet seen this wonderful childhood photo of the Justice at his dad’s hotel (known, eponymously, as The Stevens, but since transformed first into the Conrad Hilton, and later the Hilton Chicago, and shown at right) take a look. According to this article, he’s the kid on the left.
UPDATE: It seems that you can’t create a permanent link to the photo. To see an enlarged version go here and search keywords for “Stevens Hotel Two Boys”. The photo is entitled “two young boys playing a games, sitting at a small table in a playroom at the Stevens Hotel.” But the picture actually has three boys, and the aformentioned descriptive sentence actually has a grammatical error.
UPDATE 2: I’ve altered the pictures so that everyone can now see both the kid-pic and the hotel.
February 24, 2006 at 1:32 am
Posted in: Culture
Print This Post
5 Comments
Government Issue Porn
posted by Dan Filler
It’s no surprise that the Attorney General is turning up the heat on pornography. (Christine started us talking about DOJ recordkeeping rules last week, and the Google issue bubbled up a few weeks before.) Porn is an anathema to the GOP’s base, and with few supporters (other than those card carriers over at the ACLU and the 34 million (soon to be 40 million) anonymous consumers hunkered down behind their monitors), such attacks are an easy way to satisfy social conservatives. Perhaps Alberto Gonzalez will take the same approach as Reagan’s AG, Edwin Meese: preparation of a Porn Report. The Attorney General’s Commission on Pornography Final Report (available, at least in part, here) was more than a condemnation of pornography; it was a complete reference volume on the field. History, law, a feminist critique of objectification – everything was there in one intimidating tome. To prove that world was filled with truly porny porn, the Commission produced serious evidence: loads of material extracted from genuine dirty books and magazines. This was one racy government document; I can only imagine the lines at those designated library repositories. Sales must also have been solid. Just as happened with The Starr Report, a commercial publisher stepped in and republished the fat government document. (The flashy book cover, to the right, is the reprint.)
The moment is ripe for a new update – Porn 2K, perhaps – but times and technology have changed a great deal in the interim. Nowadays, a report need not take the form of a paper book that gathers dust in the Government Document Collection. Like many government publications, it can be distributed on the web – complete with hypertext links to sources. Imagine the manifold ways that a Gonzalez Report might show the nature and extent of pornography in America. If the Meese Report soldiered through, making its case through the use of dry text, a new hi-tech report could provide readers with link after link to graphic, vulgar, offensive, genuinely nasty smut. And the nature of this smut has changed! Pornography, like everything else, has gone the way of the celebrity. So what atrocities might be exposed in this report?
February 24, 2006 at 12:01 am
Posted in: First Amendment
Print This Post
One Comment
The end is near, and so I face my final curtain
posted by Mike Dimino
Many thanks to the regular crew at CO, particularly Dan and Dave, for inviting me to comment this past month. I have had a wonderful time and look forward to returning. Thanks also to the many readers who have taken the time to contact me, comment on my posts, or simply to read them. It is wonderful to be part of the electronic community of legal scholars, students, and the interested public, and I am indebted to those who asked me to take a role. Best wishes, and please continue to call and e-mail.
Mike
February 23, 2006 at 4:46 pm
Posted in: Administrative Announcements
Print This Post
2 Comments
Hallucinogenic Tea with Chief Justice Roberts
posted by Robert Tsai
Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?
February 23, 2006 at 1:56 pm
Posted in: Constitutional Law
Print This Post
4 Comments
When Punishment Breeds Crime
posted by Dan Filler
The NY Times has an important article today about the extent to which ex-offenders are burdened by court costs. There have been some further comments on the issue here. I know what many folks will say: criminal offenders, not society, should pick up the secondary costs of their behavior. Clearly, it is appropriate for people who have money to pay for court costs and perhaps even the cost of incarceration. But most people who commit crimes are poor. So while justice may demand offenders to pay, common sense requires that courts be very careful in assesssing such charges.
There are at least two reasons why indigent offenders should be assessed minimal, if any, costs. First, as a practical matter, these individuals will take a very long time to pay up. In many cases, this means that they will remain on probation – with all the associated administrative costs – for longer than the sentence otherwise demands. (Probation often remains open until all costs are paid, irrespective of the underlying sentence.) Aggressive judges actually incarcerate offenders for non-payment when they find (sometimes incorrectly) that the offender had money but simply didn’t share it with the courts. Incarceration is incredibly pricey. It’s a reasonable expense to stop serious crime, but excessive when the only “crime” is a failure to contribute $100 to the public fisc.
A second problem with these fees, even for those who can marginally afford them, is that they can tip poor offenders over the brink. Among the poor, criminal convictions and incarceration create very dark economic futures. There has been some important literature showing that incarceration – and particularly the poverty that follows when offenders leave jail – damages offender communities and leads to further crimes spikes. This in turn leads to more incarceration. Ex-offenders are already saddled with a large bundle of economic and social sanctions, often termed collateral punishment or civil disabilities. They have trouble getting jobs, housing, licenses, and other things essential to earning a living. Earning a living, in turn, is typically a precondition for staying out of trouble. To the degree that these fees make economic survival more difficult, they are counterproductive: they produce crime.
This is not a bleeding heart versus tough love issue. It is a matter of pragmatism. Bernie Ebbers should share the costs of his trial and punishment if he has some cash lying about. But while there may be moral arguments for dunning the average John Doe, practical considerations suggest we shouldn’t.
February 23, 2006 at 1:16 pm
Posted in: Criminal Law
Print This Post
2 Comments
Straw Men In Advertising
posted by Dan Filler
I recently noticed that Rite Aid’s prescription bag sports the following headline: “One in two women dies from heart disease. One drugstore is taking a stand.” What is Rite Aid suggesting? Have CVS, Walgreens and Osco gone soft on heart disease? Do they condone the illness? It reminds me a bit of Outback’s flummoxing motto: “No Rules, Just Right.” Just what are the regulatory structures handcuffing the eager steak lover? What does a fellow have to do to get a Porterhouse over at Ruth’s Chris?
I’m waiting to see what straw men will be identified next. Will Southwest Airlines boast that their cargo holds are mold-free? Will we learn that Crest does not cause teeth to turn indigo? It’s time to have a talk with the marketing folks here at Alabama Law. I’m going to suggest that we stand up against irrational jury verdicts. Take that, Harvard!
February 22, 2006 at 12:11 pm
Posted in: Advertising
Print This Post
3 Comments
