« April 2007 | Main | June 2007 »

Three Critiques of a Duty to Be Healthy

I've been attending a conference on health care rationing, and the extent of a so-called "duty to be healthy" has been a provocative theme. From a solidaristic perspective favoring universal coverage, Professor Wendy Mariner has suggested that "wellness programs" designed to keep employees healthy may seem good for everyone, but have a darker ideological undertone. They undermine support for social insurance that spreads the costs of illness, and instead inculcate the idea that individuals themselves are responsible for sickness. In another presentation, Leonard Glantz quoted the 2004 book The Cost of Smoking, which suggested that savings arising out of premature deaths might actually save the government more money (on average) than smoking-related illnesses would cost it (on pages 156 and 161). (Kip Viscusi made a similar argument in 1997.)

With a libertarian angle, Jacob Sullum is even more critical of any "duty" to maintain one's health:

Maximizing health is not the same as maximizing happiness. The public health mission to minimize morbidity and mortality leaves no room for the possibility that someone might accept a shorter life span, or an increased risk of disease or injury, in exchange for more pleasure or less discomfort. . . . But even if certain habits do, on balance, increase taxpayer costs, the problem is not that some people do risky things; it’s that the government forces other people to pay their medical bills. People who don’t want to pay for the consequences of such dangerous behavior shouldn’t support taxpayer-funded health care. (emphasis added).

I disagree; I think that Sullum's position is tempting mainly because a) we overestimate the degree to which our own behavior influences our health, and b) because those with good habits tend to give themselves a bit too much credit for the inculcation of those habits. As for a), consider this cancer risk assessment tool--not too much is asked about behavior under one's control. As for b)--I admit that this is an area of fundamental philosophical disagreement on the degree to which one's will is free to change harmful habits. But given recent books like Gina Kolata's, I think we'd all be well advised to think "there but for the grace of God go I" when contemplating those we'd blame for poor health. Our healthcare non-system is often stacked against them.

Posted by Frank_Pasquale at 10:01 PM | Comments (1) | TrackBack

Don't Apply for Asylum in Atlanta

That's the advice savvy immigration lawyers will probably be giving applicants after the publication of a new analysis of 140,000 immigration decisions. The Atlanta office granted asylum to only 12% of applicants, compared to a national average of 40%. Intracourt disparities were also astonishing:

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

The study reminds me of a fascinating documentary entitled "A Well-Founded Fear," which looks inside one immigration office and records cases presented to staff there. My main impression of the process (or lack thereof) was that the judges were often tasked with a near-impossible job of figuring out whether a given applicant was "credible" on the basis of a very informal "hearing"--basically, just listening to their story and asking questions designed to provoke inconsistent statements. Only a thick paper file documenting trauma or home country conditions had the potential to deter a snap judgment of "not credible." The disparity among judges is also quickly in evidence--one appears to be a classic "bleeding heart," but she is easily outnumbered by others who appear ready to dismiss just about any narrative of persecution as unbelievable.

Will Article III courts intervene to supervise this "agency under stress"? Early indications are grim. Consider this language from a First Circuit opinion in Albathani v. U.S.:

the Board member who denied Albathani's appeal is recorded as having decided over 50 cases on October 31, 2002, a rate of one every ten minutes over the course of a nine-hour day. . . . We are not willing, however . . . to infer from these numbers alone that the required review is not taking place. . . . [W]orkload management devices . . . . do not, either alone or in combination with caseload statistics, establish that the required review is not taking place.

Which leads me to wonder--would one minute of review be enough? Fifteen seconds? When would such nanoreview cease being a "matter committed to agency discretion," and threaten our sense of the rule of law?

Posted by Frank_Pasquale at 05:11 PM | Comments (3) | TrackBack

Can the TB Patient Be Sued?

I've been pondering whether the TB patient with the rare hard-to-treat form of the disease who flew on so many flights can be sued by those other passengers whom he may have exposed to the illness. From the New York Times:

The man with a dangerous and hard-to-treat form of tuberculosis, who potentially exposed several hundred airline passengers to the disease, was moved early today from a hospital in Atlanta to one in Denver that specializes in treating respiratory illnesses.

The man, described as a 31-year-old lawyer in Atlanta, was escorted by federal marshals as he walked under his own power from an ambulance to National Jewish Medical and Research Center in Denver. . . .

The man was the first to be placed in forced isolation in over 40 years by federal public health authorities after he traveled to Europe for a wedding and honeymoon after being advised that he had the disease. Health authorities said he posed a risk to airplane passengers, particularly on long, trans-Atlantic flights.

The man isn't being charged with any crime, since there was no official order for him not to fly. However, he was strongly advised not to fly, but chose to fly to Europe to get married. He then flew on several flights around Europe. And finally, after being informed by the CDC that his TB was even more dangerous than he had thought, he flew back to the US so he could get better treatment:

The man, whose name has not been disclosed, has said he was advised not to travel, but not specifically forbidden. The wedding and honeymoon had apparently been planned for a long time. . . .

Meanwhile public health officials were trying to locate the passengers that sat closest to the man on the trans-Atlantic flights, who are said to be at the most risk for infection. They will be asked to undergo testing for presence of the disease. . . .

Officials of the federal Centers for Disease Control said they contacted the man while he was on vacation in Italy after they learned that he carried the dangerous strain of the disease and advised him to turn himself into Italian health authorities.

Instead, he made his way to Prague and flew from there to Montreal to avoid a United States no-fly list. He drove from there into this country until persuaded to go to a hospital in New York City.

I would think that the people who were near him on those flights would have a decent cause of action against him. If they test positive for the form of TB the man has, I assume he could be sued for negligently spreading a contagious disease. But I wonder how far such a theory might go. Could a person be sued for going to work with the flu and spreading it to others? And even if the passengers don't test positive, the man's actions have caused the passengers to suffer considerable fear and anxiety, as well as the time and expense of getting tested. I wonder whether this could give rise to a cause of action as well. Any tort law experts care to opine?

Posted by Daniel Solove at 01:12 PM | Comments (13) | TrackBack

Anuj Desai on the Post Office and the First Amendment

Professor Anuj Desai (U. Wisconsin Law School) has posted his forthcoming article, The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine, on SSRN. Anuj's paper is a fascinating history of the early Post Office and how statutory protection of letters influenced constitutional law. From the abstract:

We typically think of constitutional law as the product of text, structure, constitutional history, ethical and moral philosophy, or common law doctrine. At times, though, constitutional law comes directly from societal institutions; those institutions in turn are often rooted in legislative, not judicial, choices. In this article, I tell an intriguing story of constitutional lawmaking in which policy choices about an institution developed into constitutional law. I look at two important areas of First Amendment doctrine: First Amendment constraints on government spending, i.e., "unconstitutional conditions"; and what is known in First Amendment jurisprudence as "the right to receive." I argue that the genesis of both doctrines can be found in legislative choices made during the formation of one of the nation's first "administrative agencies," a communications network that was viewed as the internet of its day: the United States Post Office. When the twentieth century Supreme Court held that the First Amendment can constrain government spending and then later, in a separate line of cases, established "the right to receive," the Court initially relied on specific attributes of the post office. Those attributes in turn had been established by choices made by policymakers during the late eighteenth century. In short, the Court incorporated aspects of the early postal statutes into First Amendment doctrine. Legislative choices in effect became constitutional law.

I really enjoyed reading this article -- it's a very interesting piece, especially for anybody interested in legal history and First Amendment law.

Posted by Daniel Solove at 12:33 PM | Comments (0) | TrackBack

Why Watters Matters: An Early Lesson from the First Circuit

Even in a quieter Term, the Supreme Court's 5-3 decision in Watters v. Wachovia Bank, N.A. would hardly go down as one of the more significant, noteworthy, or even interesting rulings handed down, and that will certainly prove to be the case as the present Term races toward its (increasingly controversial) end. That's not to say, though, that Watters won't turn out to have a substantial impact on federal and state commercial regulation in a large class of cases, and we have a First Circuit decision from yesterday as proof of that. [Hat tip to How Appealing.]

First, Watters. I've blogged extensively about the issue and the decision before (see, e.g., here, here, and here), but the short of it is that the Office of the Comptroller of the Currency is entitled to preempt state consumer regulation of "national banking activities" even when those activities are conducted by entities other than "national" banks. In Watters itself, the issue was whether the OCC could preempt state regulation of national banks' operating subsidiaries, and the Court affirmed decisions of the Second, Fourth, Sixth, and Ninth Circuits, all answering that question in the affirmative (although, as I noted at the time, the Court adopted the Ninth Circuit's Chevron-free analysis, rather than the Chevron-laden views of the other three circuits).

The problem is that by focusing on the activity rather than the actor, the Court endorsed a broad understanding of the OCC's preemptive authority, and one that could possibly extend to oust state regulation of all kinds of commercial actors, none of whom are actually "national banks," and none of whom are therefore expressly protected by federal statute. Justice Stevens, in his eloquent dissent, raised the specter of such a possibility, and the First Circuit, yesterday, proved Justice Stevens prophetic. More about the decision below the fold...

At issue in the First Circuit case, SPGGC, LLC v. Ayotte, was whether the OCC could preempt New Hampshire's regulation of gift cards sold by the operator of New Hampshire's three largest malls, given that the cards were "issued" by Bank of America, a "national" bank under the National Bank Act. Specifically, New Hampshire, via a consumer protection statute, sought to prohibit the sale of such gift cards when the cards contained both an expiration date and less-than-obvious administrative fees that would ultimately reduce the face value of the card. Thus, put another way, the case raises the question whether the OCC can preempt state regulation of third parties when the third parties are selling gift cards issued by national banks.

Writing for a unanimous panel, Judge Torruella held that the New Hampshire statute was preempted by an OCC regulation. In the opinion's critical passage, the court, understandably, relied upon Watters:

Because the National Bank Act confers on national banks the power to issue stored value gift cards like those at issue here and to market and sell them through third party agents, we consider whether the New Hampshire CPA frustrates the exercise of that power. The New Hampshire CPA prohibits the sale of a giftcard with a value of less than $100 that carries an expiration date or administrative fees. Ayotte argues that this regulation does not conflict with the National Bank Act or OCC regulations because it regulates only Simon, a company that is not a bank. Ayotte notes that no enforcement action was brought against USB. But this analysis is too formalistic: the question here is not whom the New Hampshire statute regulates, but rather, against what activity it regulates. See Watters v. Wachovia Bank, N.A., No. 05-1342, slip op. at 13, 550 U.S. __ (Apr. 17, 2007) ("We have never held that the preemptive reach of the [National Bank Act] extends only to a national bank itself. Rather, in analyzing whether state law hampers the federally permitted activities of a national bank, we have focused on the exercise of a national bank's powers . . . ." (emphasis in original)).

In other words, it is irrelevant whether the entity being regulated by the state is a national bank or isn't; it matters only whether it is conducting "national banking activities."

This may sound entirely reasonable, save one small problem: There is no support in the National Bank Act for such an activity-specific view of preemption. Quite to the contrary, the Act repeatedly relies upon the special and unique nature of national banks as justifying the preemption of state law. And so, whether the state law or the federal preemption is the wiser policy, there is absolutely zero evidence of congressional intent (which used to matter) supporting preemption of regulation such as that attempted by New Hampshire in this case.

Justice Stevens put it best at the end of his dissent in Watters:

Almost invariably the finding of preemption has been based on this Court’s interpretation of statutory language or of regulations plainly authorized by Congress. Never before have we endorsed administrative action whose sole purpose was to preempt state law rather than to implement a statutory command.

Just over one month later, we begin to reap the consequences.

Posted by Steve_Vladeck at 04:14 AM | Comments (0) | TrackBack

Quarantines (and Law?)

The news has, understandably, been saturated the last two days with the story of the U.S. citizen infected with a drug-resistant form of TB who has been quarantined by the federal government, the first time in over four decades that the feds have invoked such an important and exceptional authority.

Missing from nearly all of the accounts that I've read, though, is any discussion on the law of quarantine, an essential aspect of national security law, and yet one that has been largely neglected in the aftermath of 9/11. The seminal case, of course, is Jacobson v. Massachusetts, in which Justice Holmes held that the state's compelling interest in protecting the public health outweighed an individual's Fourteenth Amendment-based liberty interest. But Jacobson is over a century old, and there are lots of subsequent developments that suggest that Holmes's open-ended reasoning may not be quite so limitless today.

All of this raises the question of why we seem indifferent to the legal implications. Don't get me wrong -- I'm not suggesting that the government lacks the authority to quarantine individuals infected with TB. 42 U.S.C. 264 seems to expressly provide to the contrary. But on the theory that every case is precedent (except Bush v. Gore, anyway), shouldn't this case provoke at least some discussion of the current legal authorities vis-a-vis quarantine, and the constitutional issues that invocation of such a sweeping power to detain naturally raise?

Posted by Steve_Vladeck at 12:07 AM | Comments (5) | TrackBack

Underwood and Punishment

Listening to a popular voice discuss theories of punishment lately, I noticed an interesting interplay between retributive versus deterrent theories. I'm talking, of course, about the country/pop singer Carrie Underwood.

Underwood's latest all-over-the-radio crossover hit, Before He Cheats, discusses her own somewhat violent reactions to an unnamed Low Down Cheatin' No Good Scoundrel. Of particular interest is how she connects her reaction to a particular theory of punishment. She sings:

I dug my key into the side of his pretty little souped up 4 wheel drive,
Carved my name into his leather seats,
I took a Louisville slugger to both headlights,
Slashed a hole in all 4 tires --
Maybe next time he'll think before he cheats.

As any criminal law theorists can attest, there are many different theories of punishment. Punishment may be intended to be retributive -- that is, a deserved punishment, proportionate to the offense, based on past actions. Retributive justice is backward-looking -- that is, it focuses on past acts, not on likely future acts -- and it is often couched in terms of merit or dessert. Or, punishment may be consequentialist -- intended to bring about good future consequences. Deterrence -- preventing future bad acts -- is one type of consequentialist rationale. Consequentialist approaches are forward-looking rather than backward-looking -- intended to influence future acts, not punish past acts. To oversimplify, the difference is between "I punish you because it would be wrong for your bad acts to go unpunished" (retributive) versus "I punish you to influence your future decisions" (deterrent version of consequentialist). (And of course, many times, arguments for punishment will combine aspects of retributive justice, deterrence, and other ideas.)

Underwood explicitly states that her actions were motivated by a deterrrent theory of punishment. She has vandalized his car, and the reason that she did so is to deter future bad behavior: "Maybe next time he'll think before he cheats." This is a clearly deterrent approach. The stated reason why she has treated the car so rudely is to deter future bad behavior. However, Underwood's stated deterrence rationale is unconvincing.

As she notes in her song, she has already ended her relationship with the No Good Scoundrel in question. Thus, it is questionable what sort of deterrent message he is supposed to receive from her actions. It can't be "don't cheat on Carrie, or else she will destroy my car" (which would be a message of deterrence) -- because he is no longer linked to Carrie.

Underwood seems to suggest that a broader deterrent message has been sent -- "don't cheat on a woman in general, or she might destroy your car." The problem with this approach is that deterrence must be credible in order to be effective. Underwood's actions were relatively unusual in nature, and thus unlikely to provide much in the way of future deterrence. There is also the question of why Underwood would risk criminal prosecution herself to engage in an act intended solely to reform a No Good Scoundrel who she is no longer dating.

The more likely motivation, really, is retributive -- Underwood is simply angry with the No Good Scoundrel in question, and her mistreatment of his pretty-little-souped-up-four-wheel-drive is intended to express that anger. Cast as retribution, her actions are understandable. Her mockery of the No Good Scoundrel also supports this idea.

This leaves us to explain Underwood's desire to couch her actions as deterrent. Instead of simply saying, "I trashed your car because you treated me badly and I disliked that treatment," -- a perfectly respectable chain of logic -- she offers the more convoluted and less convincing, "I trashed your car because I hope to deter future bad behavior." Apparently, deterrent actions are more respectable than retributive actions, and so Underwood chooses to frame her acts as deterrent, despite the implausibility of the label. What's really odd is that all of this is taking place in the context of a country song. If you can't be retributive in a country song, where can you be retributive?

I really hope that this post deters future misapplications of theories of punishment in country songs.

Posted by Kaimipono at 07:12 PM | Comments (13) | TrackBack

Death Not So Different?

Hugo Bedau's classic book Death is Different commented on the qualitative difference between capital punishment and other penalties. But there appears to be a growing trend to blur the distinctivenss of crimes provoking the death penalty. Consider the following examples:

1) At least five states now authorize the death penalty for child rape.
2) China has sentenced a former drug regulator to death for corruption and bribery charges.
3) Doug Berman has noted that the logic of the hard-core cost/benefit approach of Sunstein and Vermeule may well justify the death penalty for drunk driving.

Even death penalty advocate Robert Blecker concedes that the penalty may have grown too expansive given the way felony murder expands its scope.

What are the cultural trends driving an expanding scope for executions? I can think of a couple offhand. First, at least in America, there is a growing sense that prison is a living hell for just about anyone in it, and there must be some way of isolating out the "worst of the worst" with an even more gruesome penalty.

Second, and far more speculatively, I wonder if secularization of society has anything to do with it--not just in the sense that churches have been eloquent voices for mercy and redemption, but in a fading social conviction that there is some "ultimate justice" done after death. Without such reassurance, it may make perfect sense to seek an "eye for eye," a settling of accounts in the only reality that matters.

Posted by Frank_Pasquale at 12:32 PM | Comments (6) | TrackBack

An Insider’s Critique of the War on Terror

Harvard law professor Jack Goldsmith will soon be offering up his own critical account of the Bush Administration’s post-9/11 legal justifications for the war on terror. Here’s the abstract of his forthcoming book, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” courtesy of Amazon.com:

A central player's account of the clash between the rule of law and the necessity of defending America.

Jack Goldsmith's duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do...legally. Goldsmith took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed.

Goldsmith is a conservative lawyer who understands the imperative of averting another 9/11. But his unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. Goldsmith's fascinating analysis of parallel legal crises in the Lincoln and Roosevelt administrations shows why Bush's apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history.

Should make for a fascinating, and no doubt controversial, read. Thanks to Peter Spiro over at Opinio Juris for calling this to my attention.

Posted by Melissa_Waters at 11:24 AM | Comments (1) | TrackBack

The Law Reviews vs. the Courts

I've just posted to SSRN the near-final version of a short essay I wrote for "CONNtemplations," the soon-to-debut online companion to the Connecticut Law Review, titled "The Law Reviews vs. the Courts: Two Views from the Ivory Tower." The essay advances the (perhaps somewhat counterintuitive) claim that part of the reason why federal judges have found law reviews increasingly unhelpful is because their own discretion, both procedurally and substantively, has been substantially cabined in recent years...

I explain in somewhat more detail in the essay, which I (shamelessly) encourage you to check out -- it's a quick read, too. But I wanted to blog about it here to see if folks think there's any possible connection. As Congress and the Supreme Court have narrowed the scope of review in all kinds of cases, as courts have relied that much more frequently on harmless error and the like, etc., is there something to be said for _that_ trend having an impact on the utility vel non of legal scholarship? Or, are we just, as Second Circuit Chief Judge Jacobs recently suggested, hopelessly out of touch?

Posted by Steve_Vladeck at 12:40 AM | Comments (7) | TrackBack

Two Interesting AALS Paper Calls

First, my apologies for the two-week hiatus, something bad enough for a regular blogger, but perhaps inexcusable from a guest (as Stephanie would say on Full House, "how rude!"). As I noted over at Prawfs, I blame a combination of packing, grading, and moving (three of my least favorite activities), but, c'est la vie.

Anyway, while I was away, two of the AALS sections to which I belong -- the Section on National Security Law and the Section on New Law Professors -- issued interesting paper calls for the 2008 AALS Annual Meeting. By way of disclosure, I'm on the reviewing committee for the New Law Professors. The National Security Law section call is available here; the New Law Professors' call is reprinted beneath the fold. Of course, I'm happy to answer questions about the topics.

It separately begs the question, though, of the role of paper calls in the annual meting... to me, it's a great way to add fresh (or at least unpredictable) insights to an issue where the temptation may be to go with the "experts," but I wonder if others have a different view.

More below the fold...

AALS Section on New Law Professors:
The Section on New Law Professors is sponsoring a Call for Papers. The authors of the selected papers will present their work as part of the section program at the Annual Meeting. The topic is “New Law Faculty as Catalysts for Change,” which is intended to add the perspectives of new law professors to the overall theme of this year’s conference, “Reassessing Our Roles in Light of Change.” We invite all “new” law professors (as defined below) to submit a paper on a topic with a connection to our theme. A Review Committee comprised of Section Officers and Executive Board members will select up to five of the submitted papers for inclusion on the program.

Deadline: To be considered in the competition, please send an electronic version to Professor Jennifer Kreder at krederj1@nku.edu no later than August 17, 2007. Please also send one hard copy of the manuscript postmarked no later than August 17, 2007 to: Professor Jennifer Kreder, NKU, Chase College of Law, Nunn Hall, Highland Heights, KY 41099.

Anonymity: The manuscript should be accompanied by a cover letter with the author’s name and contact information. The manuscript itself, including title page and footnotes, must not contain any references that identify the author or the author’s school.

Form and Length: The manuscript must be typed, double-spaced, on 8 1/2” by 11” paper in 12-point (or larger) type with ample (at least 1”) margins on all sides. Footnotes should be 10-point or larger. There is a 75-page limit.

Eligibility: Faculty members of AALS member and fee-paid schools who have been full-time law teachers for five years or fewer as of July 1, 2007 are eligible. (For these purposes, one is considered a full-time faculty member while officially “on-leave” from the law school.) Papers are not eligible for consideration if they will have been published before the annual meeting (papers accepted for publication prior to the meeting are eligible).

Statement of Compliance: Please include in the cover letter a statement verifying: 1) the author holds a faculty appointment at a member or fee-paid school; 2) the author has been engaged in full-time teaching for five years or fewer as of July 1, 2007; 3) all information identifying the author or author’s school has been removed from the manuscript; and 4) the paper has not been previously published and is not committed for publication prior to January 2008. The author must also agree to notify the section if and as soon as s/he learns that the submitted paper will be published before the date of the meeting.

Posted by Steve_Vladeck at 12:01 AM | Comments (1) | TrackBack

Debt, Status, and Fatherhood

Professor Maldonado's thoughtful post on fathers reminds of me of one area where the distinction between status and contract in the family still has a huge bite: Debt. In particular the debts created by child support obligations.

Most debts are created in one of two ways. The first method is by contract. I borrow money, I buy on credit, I breach a contract that gives rise to damages, etc. The second method is by committing some tort that gives rise to an award of damages. Interestingly, once these debts are reduced to a sum certain they are more or less treated in the same way. The failure to pay the debt is not a crime. Furthermore, we do not generally allow injunctive relief for debt collection. (In other words, a court will not order a debtor to pay on pain of contempt.) By and large, the debts are even treated in comparable ways in bankruptcy.

Not so for debts of child support. In some jurisdictions failure to pay child support is a crime. Child support debts receive preferred treatment in bankruptcy. In the Old Dominion they try to hit deadbeat dads were they really live, revoking their hunting licences if they refuse to pay. Indeed, some courts have even upheld injunctions requiring unemployed fathers to accept offered employment so as to comply with child support obligations, claims that such work-on-pain-of-contempt-and-imprisonment violates the Thirteenth Amendment's prohibition on "involuntary servitude" notwithstanding. In short, we treat the debts created by the status of "fatherhood" as being quite different than the debts created by contract or even by harm to others.

I'm not sure what to make of this. Mainly, I suspect that it simply reflects the desire to protect the rights' of children to the economic support of their parents. But it is more than that. For example, other debts for the benefit of children -- say those created by contract such as insurance policies -- are not given anything like the same kind of treatment. In other words, it is not simply about making sure that kids get paid. Rather, I suspect that Maine's claim about the progress of the law notwithstanding, we view a father's obligation of economic support as changing his status. He is not simply a citizen with a debt. He is a father, something different than an ordinary person, and thus subject to certain intrinsic obligations. In this sense, I think, the law insists that fathers are more than simply income sources. They certainly are not treated like other income sources. Rather, the law insists that the failure to support one's children is an action of particular blameworthiness that we are willing to accept extra costs to avert and that we are willing to punish with greater severity than other kinds of non-payment of debt. This doesn't respond to the sorts of concerns raised by Professor Maldonado's post, of course, but it does suggest that we are willing to treat the obligations of fatherhood as being more than accidental to one's legal personhood.

Fathers aren't like everyone else.

Posted by oman at 12:34 PM | Comments (1) | TrackBack

Why Have Fathers Disappeared?

For years, policymakers have known that a significant proportion of fathers have little contact with their children once their relationship with their children’s mother ends. Although fathers today are less likely to disengage from their children than divorced fathers in previous decades, 20% to 30% of children have little or no contact with their fathers. Disengaged fathers—those who have had no contact with their children in the past year—pose a significant problem for society, especially their children. Although some studies suggest that children are no worse off when they have no contact with their fathers, other studies suggest otherwise. These latter studies have found that children who have regular “quality contact” (defined below) with their fathers tend to

■ adapt better to their parents’ divorce
■ have higher self-esteem
■ suffer lower rates of depression
■ experience fewer behavioral problems
■ enjoy higher levels of cognitive development, and
■ are more emotionally stable than children who have little or no contact with their fathers.

There is also evidence suggesting that children who share close relationships with their fathers might be less likely to

■ use drugs
■ attempt suicide
■ drop out of school
■ be unemployed
■ engage in early sexual activity and become pregnant at a young age
■ engage in anti-social and criminal behavior, or
■ disengage from their children--become absent fathers themselves

Just as important or perhaps even more so, children want to see their fathers and feel rejected when contact is infrequent. They blame themselves for their fathers’ absence, believing that their fathers abandoned them because they were “bad” or because they are simply unlovable.

Not surprisingly, fathers who rarely see their children tend not to pay child support. Until recently, policymakers and scholars were primarily concerned with figuring out ways to make “deadbeat” fathers pay. However, scholars and policymakers have recently begun exploring the reasons why so many fathers, including those that were very involved in their children’s lives when they lived with them, have little contact with their children once they no longer live with them. The University of Wisconsin just sponsored a conference on “Noncustodial Fatherhood: How Law and Policy Influence Men’s Connections to Their Children” and the AALS Mid-year Meeting next month will hold a panel on “Maintaining Children’s Relationships with Both Parents.” Later this year, the New Zealand Family Law Society will begin their conference with a keynote address on paternal disengagement.

Why do so many fathers disengage from their children? It is not because they do not love their children; at least that is not the reason in the vast majority of cases. It appears that fathers disengage, at least in some cases, because the law has made it difficult for them to parent their children. Many fathers complain that the typical visitation arrangement of one evening a week and alternating weekends and holidays does not allow them to be effective and involved parents. They claim that by relegating them to the role of visitor, the law has taken away their parental authority and has made them into “Disneyland Dads.” Disneyland Dads entertain their children by taking them to fun places such as amusement parks and theme restaurants, buying them unnecessary toys and clothing, and basically showing them a good time. However, they fail to interact with them in the way that custodial parents do. They do not engage in authoritative parenting or do routine activities with their children such as reading, homework, watching TV, doing chores, running errands, or visiting friends and family. This Disneyland-type contact is not beneficial to children. It is also not very appealing to fathers who dislike the superficial nature of the relationship and hate feeling that they are more like friends or fun relatives than actual parents.

Many fathers blame their children’s mothers for their lack of involvement in their children’s upbringing. Above, I stated that children benefit from “quality” contact with their fathers. “Quality” contact refers both to the type of interaction between fathers and their children (Disneyland v. authoritative parenting) and the level of conflict between the nonresidential father and the child’s mother. The benefits of paternal involvement are minimal or non-existent when parents do not cooperate with each other and father-child contact takes place in a high-conflict setting. Unfortunately, approximately 25% of divorced or separated parents seem unable to be civil to each other and as many as 25% of mothers admit to interfering with fathers’ access to their children. Fathers in these cases sometimes walk away from their children, permanently.

I believe that fathers disengage from their children, in part, because legal and social norms of fatherhood have made it possible for them to do so. The social and legal norm of post-divorce fatherhood is primarily economic. Nonresidential fathers must pay child support but there is no expectation that they will nurture their children, help raise them, or continue to play a significant role in their lives. In many communities, a father who pays child support is a viewed as a good father even if he does nothing else for his children precisely because society expects and accepts that many fathers will abandon their children once they no longer live with them. In contrast, mothers are expected to nurture their children and those who do not are demonized.

Fathers themselves have defined their parenting roles after divorce in mostly economic terms. Many fathers believe that they have little influence on their children and that by paying child support and visiting sporadically, they are fulfilling their parental responsibilities. They compare themselves to fathers who do not pay child support and never see their children. By this standard, fathers who do anything for their children seem like good fathers. As Professor Terry Arendell discovered in her interviews with divorced fathers, instead of seeing their minimal level of involvement with their children as deviant, any level of contact evoked a “stance of self-congratulation” because they felt were doing better than most fathers.

In future posts, I will discuss what the law should do to change this norm of economic fatherhood and facilitate fathers’ involvement with their children.

Posted by Solangel_Maldonado at 10:56 PM | Comments (15) | TrackBack

Google, Google on the Wall. . .

Troubled and don't know what to do with your life? Ask a search engine!:

Eric Schmidt, Google’s chief executive, said gathering more personal data was a key way for Google to expand. . . . "The algorithms will get better and we will get better at personalisation. The goal is to enable Google users to be able to ask the question such as ‘What shall I do tomorrow?’ and ‘What job shall I take?’ ”

Guidance counselors may well go the way of the Maytag Repairman. It reminds me of a recent WSJ article on family "naming strategies" to assure Google-able children:

Attempting to counteract her own anonymity on the Web, Ms. Wilson now goes by "Abigail L. Garvey Wilson" when she publishes scientific papers. And recently she has been running names through search engines in anticipation of the arrival of her second child, a daughter due at the end of this month.

If search engines become the key filter through which we see the world, why not? But it is a little worrisome that they are taking on such importance as the search marketplace gets increasingly concentrated. Consider this piece from the WSJ on Microsoft's acquisition of aQuantive:

The deal . . . follows recent acquisitions of Web-ad companies by Google Inc., Yahoo Inc. and traditional advertising agencies. The emerging consensus: The online-ad market is maturing around an oligopoly of huge companies that sell and place the ads users see online. Placing those ads is increasingly seen as the business model that will fund almost everything on the Internet -- from search portals, news sites and video downloads to Web-based software services such as word processing. (emphasis added)

As far back as 2000, researchers predicted that "some search engines may dominate the search engine market." Admittedly, I have to plead guilty here to contributing to a self-fulfilling prophecy--the more that idea is pushed, the less likely it is that investors will fund potential rivals. But I think it important we realize its implications as search engines take on an ever more important cultural role. Just as Habermas has argued for state support for a quality press to provide alternatives to market outlets, I hope some government or foundation funds a viable open-source and open-access alternative to commercial search portals funded by ads.

Lastly, here's a funny anecdote about a rocker's struggle for name recognition:

A Los Angeles singer-songwriter ... in 2003 abandoned his given name and began going by his initials, "AM." At the time, he was launching a solo career and hoped the approach might help him stand out.

But even as AM began to experience some success, he soon realized that fans had trouble finding him on the Web. Google returned an estimated 2.3 billion results for "AM" -- ranging from American Greetings Corp. (ticker symbol: AM) to AM radio stations and a site called I-Am-Bored.com -- but no links to the long-haired L.A. singer within at least the first 20 pages.

AM titled a first self-released album "AM" -- which didn't help. "How much bad luck can a guy have when he's just blindly coming up with his image and he has no idea what the impact will be down the line?" asks AM, who declines to provide his age or real name.

Should have tried "AM Dawn".

Photo Credit: Flickr/Gegjohnson.

Posted by Frank_Pasquale at 02:35 PM | Comments (2) | TrackBack

Three Generations of Mormon Legal History

In the shameless self-promotion category, I have a new paper up on SSRN for your enjoyment. I have put up a couple of posts in the past here and elsewhere on Mormon legal history. My new SSRN paper -- "Three Generations of Mormon Legal History: A Historiographic Introduction" -- is meant as a primer on the subject for legal scholars interested in legal history or law and religion, as well as an argument about how I think the practice of Mormon legal history could be improved. Here is the abstract:

This is an essay on the past practice and future possibilities of Mormon legal history. For most legal scholars, the fact that there even is such a thing as “Mormon legal history” comes as a surprise, and the idea that it “should be proved . . . to be worthy of the interest of an intelligent man” may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of Mormon legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of Mormon legal history lies mainly in the idiosyncratic intellectual development of Mormon legal historiography itself. By explaining that development and introducing the work that has already been done on Mormon legal history, I hope to assist future scholars to better integrate Mormon legal experience into the mainstream discussions of the legal academy.

Posted by oman at 07:59 AM | Comments (1) | TrackBack

The Almost French Thirteenth Amendment

Here is a story that ought to fill don't - cite - foreign - law - to - construe - the - constitution conservatives with horror. Of late I have been reading the legislative history of the Thirteenth Amendment. The language ultimately adopted was lifted virtually verbatim from the Northwest Ordinance of 1787. Senator Sumner of Massachusetts, however, did not like this langauge and proposed instead that the amendment should read:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States and the jurisdiction thereof.

The "all persons are equal before the law" language, however, also had a history. Sumner traced it back to the various declarations of rights contained in the constitutions of the French Revolution. He went on to note that "this article has been adopted in the charters of Belgium, Italy, Greece; so that is is now a well-known expression of a commanding principle of human rights." Sumner's language was defeated, of course, but not before Senator Howard had taken a swipe at Sumner's Francophilia (and his knowledge of French history):

The learned Senator from Massachusetts, I apprehend, has made a very radical mistake in regard to the application of this language of the French constitution. The purpose for which this language was used in the original constitution of the French republic of 1791, was to abolish nobility and privileged classes. . . . It was never intended there as a means of abolishing slavery at all. The Convention of 1794 abolished slavery by another and separate decree expressly putting an end to slavery within the dominions of the French Republic and all it colonies.

Now, sir, I wish as much as the Senator from Massachusetts in making this amendment to use significant language, language that cannot be mistaken or misunderstood; but I prefer to dismiss all reference to French constitutions or French codes, and go back to the good old Anglo-Saxon language employed by our fathers . . . .

Indeed.

Posted by oman at 04:01 PM | Comments (1) | TrackBack

Concurring Opinions' Intern Contest

Inspired by Opinio Juris and Bill Simmons, Concurring Opinions is pleased to announce that it is in the market for an unpaid summer intern. Our thought is that some of you may be underemployed during the summer, or wish to add an interesting conversation starter to your resume. Or, perhaps, you are simply a huge fan of Nate Oman's history of law posts and want to contribute to the next one.

1. The Job Description

Let's start by repeating a key aspect of this job. It is unpaid, except in "prestige points," which you can probably can't even monetize on Berkman Island. In return for being associated with this Blog, and getting to know its authors, we'd expect you to work at least ten hours a week over the summer. We'd also expect the position to run until school starts again in late August.

The Concurring Opinions intern will help us on projects ranging from law school rankings, to the next edition of the law professor blogger census, to upgrading the technical aspects of the site, to collecting legal stories of interest to our readers in an informative and interesting way. We imagine that if you have interest and ability, you will draft several posts over the summer, though some of your work will be behind the scenes.

2. How to Apply?

Draft a blog post on why you deserve to be our Intern (400 words or less) and forward it,along with any supporting materials you think would help, to any of us by June 1, 2007. If you have any specialized technical expertise, be sure to brag about it.

Posted by hoffman at 03:59 PM | Comments (13) | TrackBack

Speech vs. Defiance

After hearing a very interesting discussion between Jay Sekulow and Kenneth Star on the "Bong Hits for Jesus" case, I had a few thoughts.

1) This case strikes me as the reductio ad absurdum of the classic "liberal autonomy" case for free speech. The plaintiff by his own admission has virtually no message except for "I want to show that I can exercise my free speech rights" . . . begging the great question posed by John H. Garvey in his book What are Freedoms For? As Garvey argues,

We should understand freedom . . . as a right to act, not a right to choose; and furthermore, we should view freedom as a right to engage in actions that are good and valuable. This may seem obvious, but it inverts a central principle of liberalism--the idea that the right is prior to the good.

2) Given the ambiguity of this message, Starr tried to make the case about an admin law issue; who is to decide a) whether a student's speech is part of a school activity and b) whether the student's message contradicts the school's educational mission?

3) Expect the question raised by 2a to be increasingly important as schools start scouring MySpace and other social networking sites for objectionable speech. Consider this suspension for a YouTube video: "A model student is in court this week over a 40-day suspension for posting a mocking in-class video to YouTube of 'Mongzilla', a high school english teacher." The administration is careful not to say that the speech itself is being punished, but rather, that the suspension "was punishment for the disruption created by the students secreting a video camera into [the teacher's] class and dancing in a mocking, disrespectful manner while her back was turned."

4) Following Garvey (and perhaps Collins and Skover), I think cases like Mongzilla & Bong Hits can be distinguished from more protectible advocacy. The former seem to be more about defiance than a real message. The students involved could learn a lot from Martin Buber's basic idea of stressing "mutual, holistic existence without qualification or objectification of the other." Perhaps the old "speech/conduct" distinction will prove useful here.

Posted by Frank_Pasquale at 02:36 PM | Comments (5) | TrackBack

Symposium on Televising the Supreme Court

The Michigan Law Review’s companion journal First Impressions today published an online symposium discussing the televising of Supreme Court proceedings. The symposium takes place against a backdrop provided by legislation pending in the House and Senate that would require the Supreme Court to televise its proceedings.

A diverse group of authors explores the implications of the prospective legislation and considers potential risks and benefits of televising the Court’s proceedings. The extended post contains a more complete description of the symposium as well as the full text of the essays.

The Honorable Boyce F. Martin, Jr. of the U.S. Court of Appeals for the Sixth Circuit contends that televising Supreme Court proceedings would help educate Americans about how their government works and heighten awareness of important legal issues.

University of Michigan Law Professor Christina B. Whitman argues that televising Supreme Court proceedings would mislead viewers by only randomly telling them something useful about the Court and is unnecessary because the Court is already more open than the government’s other branches.

Supreme Court Correspondent for the Legal Times Tony Mauro believes that Senator Specter’s legislation is worthwhile but contends the bill would have greater appeal if Senator Specter changed the focus of his efforts to see it enacted. Specter, he argues, should emphasize the benefits of televising to the public’s right to know rather than justifying the legislation as punishment for the Justices’ questioning of congressional motives.

Corporate Vice President and General Counsel for C-SPAN Bruce D. Collins describes C-SPAN’s past efforts to televise Supreme Court proceedings and clarifies how C-SPAN, if given the opportunity, would approach televising the Court.

Appellate litigator Kenneth N. Flaxman provides a practitioner’s perspective, explaining why televising Supreme Court proceedings would make his job as arguing counsel easier.

Fairleigh Dickinson University Professor of American Politics and the Judicial Process Bruce Peabody assesses whether Senator Specter’s legislation would breach constitutional etiquette.

University of Michigan J.D. Candidate Scott C. Wilcox proposes a compromise: to forestall congressional action, the Justices should consider voluntarily introducing archival video recording to be available for viewing at the National Archives.

To download a PDF of the entire symposium, click here. Additional First Impressions content is available at http://www.michiganlawreview.org/.

Posted by LR_Michigan at 12:53 AM | Comments (1) | TrackBack

"The Largest NGO in the World is in DC"

So claims Paul Hawken, referring to the current administration's laissez-faire approach to environmental regulation. His new book suggests that thousands of smaller groups are going to have to take the government's place, offering small-scale solutions for sustainability. Hawken's remedy reminds me of the "new governance" theory that's been hot in admin circles for the past two decades. NG emphasizes flexible and fluid relationships between public and private bodies to develop pragmatic policy responses to intractable problems.

I find a lot to admire in this work, but a recent interview with corporate environmental evangelist Ray Anderson highlights some limits to the approach:

Mr. Anderson is . . . proud to say that as a member of an advisory council at Georgia Tech, he persuaded the institution to modify its mission statement to proclaim the goal of “working for a sustainable society.” But there is a lot that even business cannot accomplish on its own, he said. For example, he said, the tax code is “perverse,” in that it puts heavy taxes on good things, like income and capital, and leaves a lot of bad things, like energy use, relatively unscathed. And economists typically underestimate the true cost of doing business because they exclude “externalities,” like environmental damage from pollution.

Anderson's story of building a sustainable carpet manufacturer was a major highlight of the film The Corporation, and he makes a lot of sense here. As Carol Rose pointed out in The Several Futures of Property, some authoritative institution has to set some initial allocation of "rights to pollute," etc. And someone has to come up with an agreed way of measuring externalities, a notoriously difficult process. If, as Ed Glaeser proposes, "American and European carbon taxes [should] provide funding that could be used to reward poorer countries for cutting emissions," some government has to impose the tax.

Of course, the NG theorists realize these things. I just bring them up to chasten any optimism about "small-scale" solutions making the crucial contribution to solving environmental dilemmas. It's no wonder why the "average building in the U.S. uses roughly a third more energy than its German counterpart;" our "federal government has yet to establish universal efficiency standards for buildings."

Posted by Frank_Pasquale at 02:37 PM | Comments (6) | TrackBack

Politics, Private Space, and Total Persuasion

A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government's defunct secret possibly ongoing program to gather reams of information about its citizens and corporations' desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we're rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.

These claims are easy to overdraw, so let me give you an example and a theory to help set the stage for the discussion. In today's Journal, John McKinnon has a interesting article about Sara Taylor's decision to leave her job as the White House's political director to join the private sector. Taylor is an expert in microtargeting, a marketing technique developed by corporations to segment their consumer markets by mining data to learn more about the structure of consumer’s preferences. According to McKinnon, microtargeting was "honed" by political operations to "more effectively zero in on voters' emotion triggers," and uncover groups of voters that are susceptible to future efforts. Taylor sees a "big future" for taking such political lessons back to the corporate world by "helping corporations focus on potential customers' . . . feelings about buying a product or service."

There are some roadblocks in this prosperous path, as the article points out. Most salient, businesses are "more constrained in the claims they can make" than politicians, presumably by the law of fraud (in its various guises). But there is a solution to this problem: encourage consumers to make their own persuasive advertising by creating "social networks around products and brands . . ." In the future, we should anticipate that such social persuasion will become an increasingly prevalent aspect of corporate marketing efforts, just as politicians have worked to co-opt social networking sites for their own ends.

Why? Because consumers have fewer defenses to social persuasion, and aren’t cynical about it yet. Moreover, social persuasion is probably less subject to legal sanction in the general case (indeed, it may be immune under circumstances where the same language if spoken by the corporation would be actionable). It is also, obviously, cheaper to produce. The downside (loss of control over message) is probably something that corporations will learn to live with. (I thank my lunch companion for pointing this problem out to me!)

What's wrong with a society in which most speech that you hear is designed to persuade you to consume? When framed that way, some might immediately respond: nothing! After all, no one is being compelled to any particular purchase. If the consumer market is efficient, and consumers had a taste not to consume, wouldn't savvy marketers satisfy the taste with a unpersuasive campaign? (The idea is silly on its face, but isn't it sort of what Saturn and Berkshire Hathaway were/are up to?) Even assuming that the consumer product market is somehow irrational, marketers would presumably compete to satisfy whatever inefficient desires are extant.

But I doubt that market rhetoric is going to provide satisfying answers to whether the law should work to hinder a total persuasion society. I haven't fully thought this issue through, but my starting point is an essay by Jonathan Franzen called Imperial Bedroom, in his book How to Be Alone. Franzen attacks privacy advocates for focusing on privacy as just problem of being from free from others' (corporations, the government, space aliens, the U.N., etc.) prying eyes and grasping hands.

Instead, the real loss of privacy in modern society is the "public sphere." He argues that Americans increasingly do not differentiate between public matters and private ones, that there are few places where "codes of dress and behavior are routinely enforced, personal disclosures are penalized, and formality is still the rule." Elsewhere, private life is "brutally invading" public spaces, through the media, cellphones, public conversations about private matters, and, in short, a "pajama-party world."

Franzen contrasts this world with a "genuine public space," a place where "every citizen is welcome to be present and where the purely private is excluded or restricted." He suggests, interestingly, that legal spaces are among our few remaining public places: courtrooms and jury pools, along with art museums and some workplaces, are the rare place where discussions about personal matters are generally missing. (Incidentally, one of unforeseen losses in my move from law practice to the academy is that this public-sphere workplace model is less present. There are compensations for this loss, to be sure, but it is felt.)

There is a connection between total persuasion and the loss of public space. This connection is deeper than the mere fact that public places are being renamed in service of persuasion. I’m not the first to note that the problem with persuasion's ubiquity is that it makes us unable to walk in public without feeling like a targeted consumer. To the extent that our fellow citizens are harnessed to this persuasive effort, this lack of noncommercial space will be all the more keenly felt.

Is the right to be un-persuaded, to develop preferences that are all yours, one that the law recognizes? Not currently, although the movement to get advertising out of school suggests that there is a something to this. Stay tuned.

(Art Credit: Kenney Mencher, Austen's Persuasion, 2005)

Posted by hoffman at 08:50 PM | Comments (3) | TrackBack

The Future of the Supreme Court

Over at SCOTUS Blog, Tom Goldstein wonders what would happen to the Supreme Court if a Republican were to win the presidency in 2008:

As a consequence, whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President. If two or three of the moderate-to-liberal votes were replaced with genuine conservatives, the existing constraints on more radical doctrinal shifts created by swing votes like Kennedy or O’Connor would be lifted. . . .

In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.

Orin Kerr replies:

I look at things differently, and a thought experiment explains why. Imagine the year is 1969, the end of a decade of 5-4 constitutional blockbusters, and Chief Justice Warren has recently announced his retirement. A time-traveler from 2007 comes back and tells you the dramatic news about who would nominate the Justices of the next four decades. He explains to you that American politics would shift sharply to the right in the future, and that that in the next four decades 12 of the 14 new Justices — over 85% — would be nominated by Republicans.

Orin is right that predicting the future of the Supreme Court based on elections is fraught with peril. Yet there is a fundamental difference between today and 1969 that makes Orin's hypothetical not very apt. Today, the appointments process is much different -- is is far more partisan. Partly because Republican presidents appointed justices who turned out to be liberal, there has been a backlash that has resulted in far more vetting of candidates. Is it possible for more Souters or Blackmuns to slip through a Republican administration? Certainly, anything is possible. But I doubt that it is likely. The lessons of the past will weigh heavily on every president, whether Republican or Democrat. With the Court hanging in the balance, I bet most presidential administrations will carefully vet their nominees.

The days where Supreme Court nominees turn out to be ideological surprises are largely gone. This is due, in part, to the widespread acceptance of the legal realist notion that justices are not neutral interpreters of the law; to the increasing involvement throughout the twentieth century of the Court in the political and social issues of the day; to the increasingly bitter confirmation battles that now have become a hollow ritual of empty rhetoric; and to the lessons of history that nominees not thoroughly vetted can turn into longstanding sources of regret. I wish we could go back to the more innocent age of 1969, but I doubt that we can recover such lost innocence.

The only transformation I see capable of changing the appointments process is a major realignment in political thought. For example, during the New Deal, it was the liberals who were calling for judicial restraint. It took a while before attitudes realigned, with conservative justices (such as Felix Frankfurter) continuing to advocate for judicial restraint while the liberal justices pressed for Warren Court expansion of rights. We're still living in this paradigm, and until it shifts, we won't be seeing any more surprise justices.

Therefore, I agree with Tom Goldstein that the next election is pivotal for the Supreme Court.

Posted by Daniel Solove at 08:25 PM | Comments (19) | TrackBack

Law Podcasts

If law reviews and blogs just aren't enough for you (or if your eyes readily tire), try some law podcasts! Here are a few I've enjoyed recently:

--Margot Adler, Justice Talking. I've been impre