Archive for July, 2007
In Today’s Legal News
posted by Sam Yospe
Indian law is being added to the bar in some western states.
Instructors and students at Idaho Law School offer free legal representation to illegal aliens facing deportion. A former Idaho official claims that providing such aid is a felony.
The N.J. Supreme Court has ruled in favor of a homeowners association which sought to ban residents from displaying political signs on their property.
The Houston Chronicle discusses the perception that most lawyers make six figure salaries.
July 27, 2007 at 10:38 am
Posted in: Current Events
Print This Post
No Comments
Money-Driven Medicine, MRSA Edition
posted by Frank Pasquale
Hospital infections are a huge problem, “now linked to more deaths than diabetes or Alzheimer’s disease.” Some of the worst cases in the US result from methicillin-resistant Staphylococcus aureus (MRSA)–but “several European countries, including the Netherlands and Finland, have all but eliminated MRSA.” It turns out that one corner of America’s already-socialized medicine–the VA–has radically reduced MRSA infections:
Dr. Rajiv Jain, the [Pittsburgh VA] hospital’s chief of staff, said its infection control program cost about $500,000 a year . . . . But the hospital . . . realized a net savings of nearly $900,000 when the number of infected patients fell . . . .
Fortunately, the accounting is starting to work out for other hospitals to start following the VA’s lead. For example, one doctor
was able to show administrators that the average infection cost the hospital $27,000. He demonstrated that reimbursement payments for weeks of extended treatment were not keeping pace with actual costs. “I think it was assumed that hospitals didn’t mind treating these infections because they were getting paid for it,” Dr. Shannon said.
Some states are starting to force hospitals to publish infection rates. I’d be sure to check these out before going in for any procedure.
July 27, 2007 at 8:49 am
Posted in: Health Law
Print This Post
One Comment
Friday Fun: Thriller, Remixed
posted by Dave Hoffman
It’s the end of a long week. Why not relax by watching 1500 Filipino prisoners do a wee little dance routine.
(h/t: Nesson)
July 27, 2007 at 12:01 am
Posted in: Weird
Print This Post
5 Comments
Court Citation of Blogs: Updated 2007 Study
posted by Dave Hoffman
Our terrific intern, Sam Yospe has put together an update of Ian Best’s very useful 2006 study on Courts’ citation of blogs.
Sam ran a search for court citation of law blogs in the last twelve months. I asked him to lump citations into three categories: sources of legal argument, sources of facts, and sources of documents. Here’s what he came up with.
Legal Sources
• Trenwick America Litigation Trust v. Ernst & Young, et. al., 2006 906 A.2d 168; 2006 Del. Ch. LEXIS 139
o Citation to and in depth discussion of a post appearing on Professor Bainbridge’s blog.
• U.S. v. Presley, 2006 U.S. Dist. LEXIS 95063 *
o Citation to a post on Sentencing Law and Policy Blog.
• U.S. v. Kandirakis, 2006 441 F. Supp. 2d 282; 2006 U.S. Dist. LEXIS 53243
o Cites Prawfs Blawg, discussing a post by Dan Markel.
• Boxer X, a/k/a Stanley Farley v. Harris, 2007 U.S. Dist. LEXIS 45149
o Cites a legal argument in Crime and Federalism
• Desimone v. Barrows, et. al 2007 Del. Ch. LEXIS 75
o Cites argument from Professor Bainbridge’s blog post .
o Cites argument from Larry Ribstein’s blog post at Ideoblog.
o Cites argument from a post on Eric Chiappinelli’s blog.
• In Re Tyson Foods, Inc. Consolidated Shareholder Litigation, 2007 919 A.2d 563; 2007 Del. Ch. LEXIS 19
o Cites argument fro Professor Bainbridge’s blog post.
o Cites argument from Larry Ribstein’s blog post at Ideoblog:
Factual Sources
• U.S. v. Kandirakis, 2006 441 F. Supp. 2d 282; 2006 U.S. Dist. LEXIS 53243
o Cites Sentencing Law and Policy (generally and an entry of July 31, 2006) as a factual authority (regarding how many criminal cases in which the sentences were within the Guideline were reversed as unreasonable).
• Ohio v. Foster, 206 109 Ohio St. 3d 1; 2006 Ohio 856; 845 N.E.2d 470; 2006 Ohio LEXIS 516
o Cites Sentencing Law and Policy generally for updates on Blakely and general material on sentencing.
Sources of Documents
• U.S. v. Grier, 2006 475 F.3d 556; 2007 U.S. App. LEXIS 2483
o Citation to memorandum on www.federaldefenders.org.
• U.S. v. Alvarado, 2007 U.S. Dist. LEXIS 24816
• U.S. v Martinez, 2007 U.S. Dist. LEXIS 23601
• U.S. v. Sorto, 2007 U.S. Dist. LEXIS 7937
o Citation to memorandum on Law and Sentencing Policy.
• U.S. v. Willis, 2007 479 F. Supp. 2d 927; 2007 U.S. Dist. LEXIS 23290
o Citation to legislative briefing on Law and Sentencing Policy.
Total Citations
Sentencing Law 7
Bainbridge 3
Ribstein 2
Prawfs 1
Chiappinelli 1
Federal Defenders 1
Crime and Federalism 1
Overall, if these data are accurate, this seems like a bit of a slowdown in the citation rate of blogs by Courts, maybe due to a slight lowering of the boil on the sentencing revolution. It is also worth noting that the federal and state courts have not yet felt a need to cite this Blog, which has to signal something (good) about the continuing acuity and judgment of our hard-working judges.
[Update: We missed (at least) one cite, and have made a change above.]
July 26, 2007 at 6:52 pm
Posted in: Blogging, Corporate Law
Print This Post
3 Comments
Why I Like Blogging About the Washington Post
posted by Frank Pasquale
Despite their awful lawsuit against the Freepers, the Washington Post does spark conversations about their articles in creative ways. For example, they alert readers to bloggers’ commentary on their articles–such as the “Obesity Epidemic” one I blogged on yesterday. As a result of such links, people like [er--readers of--see correction below] Kate Harding can make sure that they get the word out on stories they disagree with. . . and let other bloggers know about it, as she did in the comments to my post.
I’ve called for these “trackbacks” to go on editorial pages. Of course, it’s no wonder the NYT doesn’t want such links attached to David Brooks. . . .
July 26, 2007 at 10:25 am
Posted in: Blogging
Print This Post
6 Comments
The Genius of Metaphor: Obesity “Epidemic”
posted by Frank Pasquale
A fascinating recent study has found that obesity “can spread from one person to another like the flu or a fad:”
The researchers found that when one spouse became obese, the other was 37 percent more likely to do so in the next two to four years, compared to other couples. If a man became obese, his brother’s risk rose by 40 percent. The risk rose even more sharply among friends — between 57 and 171 percent, depending on whether they considered each other mutual friends.
The study reminded me of the troubled place of metaphor in contemporary reasoning. I recall reading many libertarians who dismissed the idea of an obesity “epidemic”–who felt this designation unduly alarmist and politically manipulative. An “epidemic” unfortunately calls to mind quarantines, panic, and an uncontrollable disease vector. But the ideas of “contagiousness” and “communicability” provide useful frames for thinking here, like Dawkin’s translation of natural genetics into cultural memetics. (For the legal implications, check out Balkin or Cotter.)
July 25, 2007 at 8:36 pm
Posted in: Behavioral Law and Economics, Health Law
Print This Post
4 Comments
How Not to Argue Against Inequality
posted by Frank Pasquale
Like his previous work, Robert Frank’s new book Falling Behind makes much of “happiness surveys” to demonstrate that once a country reaches a certain level of prosperity, one’s relative position in the economic hierarchy may do more to determine one’s happiness than one’s absolute level of buying power. As he stated in a 2001 piece coauthored with Cass Sunstein,
Such surveys have found that happiness levels within a country at a given moment are strongly positively correlated with relative position in the country’s income distribution. But the same studies find only weak long-term trends in average reported happiness levels, even for countries whose incomes have been growing steadily over time.
Sunstein and Frank argue that such studies demonstrate the importance of equality, or at least of collective action designed to prevent “arms races” for relative position.
This is perhaps the most controversial of Frank’s arguments for equality, and for good reason. As Gregory Besharov has argued, the most important question here is “what is the relevant group to which people compare themselves?” Certainly I might resent my neighbor’s purchase of a $10,000 gas grill when I can only afford an aluminum charcoal plate on a tripod. But should I really be comparing myself to him? Why not just be grateful that I have a BBQ apparatus at all?
Gregg Easterbrook’s book The Progress Paradox makes that point compellingly:
Our forebears, who worked and sacrificed tirelessly in the hopes their descendants would someday be free, comfortable, healthy and educated, might be dismayed to observe how acidly we deny we now are these things.
In short, mere subjective feelings of resentment oughtn’t count for much in the social calculus–a point Rawls made foundational in his treatment of the original position in A Theory of Justice. Many spiritual traditions counsel against resentment. Though Frank is often at pains to discuss the objective bases of the dismay of those at the bottom of the economic pyramid, those objective problems (such as suffering a higher likelihood of injury in a car crash when they can’t afford the larger cars driven by wealthier drivers) are what really matters. As I have argued elsewhere, the reverse finding–that “happy slaves” are perfectly satisfied with preventable injustices done to them–should not count in favor of a social system.
Ultimately, Frank’s subjectivism is part of a larger, and disturbing, trend in philosophy: an emphasis on brute feelings where our true concern is with the rightness, the appropriateness, of such feelings.
July 25, 2007 at 2:10 pm
Posted in: Behavioral Law and Economics, Economic Analysis of Law, Philosophy of Social Science
Print This Post
6 Comments
Teaching Non-Lawyers
posted by William McGeveran
In the last few days I’ve been at two gigs involving teaching about law to non-lawyers. It is an eye-opening and highly recommended experience.
Last week I was on the faculty of the annual Summer Doctoral Programme sponsored by the Oxford Internet Institute and this year hosted in the U.S. by the Berkman Center at Harvard Law School. (That’s “Programme” as they spell it and “Center” as we spell it.) SDP is an intensive two-week seminar for doctoral candidates from all over the world studying the internet through a range of methodological approaches and disciplinary perspectives. Almost none are lawyers. This week I taught cyberlaw topics at the annual Institute for Computer Policy and Law, cosponsored by Cornell University and EDUCAUSE. It’s aimed at professionals responsible for IT infrastructure in higher education, mostly librarian-types and computer-types. Again, few are lawyers.
Teaching in these settings is quite different from doing it in law school or presenting Continuing Legal Education courses to practicing lawyers, which I’ve also done. Among the fun challenges: my audiences in these two venues knew quite a lot about specific law applicable to their field. A doctoral student studying the social construction of privacy thinks deeply about its legal construction. A techie who runs course management software for a university has learned a lot of copyright rules. But they were not always familiar with basic legal concepts like the difference between statutory, judge-made, and regulatory law, or the interplay between state and federal requirements. More importantly, some of what they thought they knew was wrong. And there were some huge gaps. For example, I discovered that very few attending the higher ed IT event knew about 47 U.S.C. 230, a crucial immunity provision that generally protects from liability those who provide open online fora for user contributions, as many of their schools do (recent cases involve everyone from MySpace to Wikipedia). Finding the right level of specificity without assuming too much (correct) background knowledge was tricky.
Another challenge is finding reading material that is sophisticated yet accessible. Many cases are fine, especially if you edit them to cut out procedural folderol irrelevant to your main point. But appropriate secondary analysis is hard to come by. Most short summaries are too facile for these crowds. But most legal scholarship ventures way too far in the other direction. For the privacy session, I used Privacy in Atlantis, a great journal article by Jerry Kang and Benedikt Buchner in the form of an imaginary and sometimes humorous Socratic dialogue about the definition of privacy. For the IT folks, I used Larry Lessig’s Code (Version 2.0) and also told them about James Gibson’s sharp analysis of doctrinal feedback in IP law from the Yale Law Journal this spring. (Gibson’s punchy prose and straightforward presentation made it highly quotable, and I hope many in the audience will now go back and read the whole piece)
When the audience is composed of legal academics, lawyers, or law students, there are comfortable assumptions and expectations. Teaching non-lawyers can keep us on our toes. (Blogging has some of the same positive effect.) Overall, the experience was a great antitdote to excessive retreat into the shell of legal academia. And now I can return, refreshed, to my natural summer habitat, crafting law review prose.
[Cross-posted at Info/Law]
July 25, 2007 at 11:50 am
Posted in: Intellectual Property, Law School (Scholarship), Law School (Teaching), Privacy
Print This Post
2 Comments
Some Thoughts on the Supreme Court’s Reversal Rate
posted by Daniel Solove
Every term, commentators attempt to predict the outcomes of the cases in the Supreme Court docket. The statistics, however, suggest that the betting person’s answer should be reversal. According to a recent article in Slate, and based on SCOTUSBlog data (2004 term, 2005 term, 2006 term):
Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively.
It is interesting how remarkably constant the reversal percentage is — 75%. It suggests that the Supreme Court primarily takes cases it wants to reverse, with only a few exceptions. Assuming the Court takes about 70 cases a term, it will only affirm in about 17 of them. So perhaps the new game for commentators should be listing those 17 lucky cases that will get affirmed.
Much ado has been made of the 9th Circuit’s dubious honor of having the most cases reversed or vacated — 19 out of 22 this term. But the 9th Circuit decides an incredibly large number of cases, and it typically has the most cases of any circuit before the Court. So it is likely to be victorious every year in terms of numbers of cases reversed. One must look at its reversal percentage to get a better picture, and it typically exceeds the average of about 75% by being between 80 and 90%. However, as the Slate article points out, in 2004 and 2005, “the 9th was reversed 84 percent and 88.9 percent of the time, or about a case or two more each year than it would have been if it had conformed to the reversal rate of the other circuits.” In other words, the 9th Circuit’s bad reversal reputation is largely earned because it’s big.
I wonder whether the Supreme Court’s reversal rate of 75% is a recent phenomenon or existed throughout its history. Does anybody know of where to find stats on reversal rates beyond recent times?
Another interesting statistic, but surely not one easily compiled, would be to examine the percentage of cases contrary to Supreme Court precedent that lead to a grant of cert. Judging from the 9th Circuit statistics, it decides about 6000 cases per year, and the Court takes about 20. That’s 0.3%. If that rate holds true generally — that the Court is taking just a fraction of one percent of cases, it can mean one of two things: (1) the Court is ignoring many cases in which lower courts depart rather overtly from Supreme Court precedent; or (2) lower courts are doing a remarkable job of staying in line with the Court.
It is doubtful that a statistic exists for cases that depart overtly from Supreme Court precedent and their likelihood to result in a grant of cert, and such a tally would necessarily involve some subjectivity, but it would be interesting to find out. Assuming that the Court takes about 70 cases per year, and reverses in 75% of them, that’s only about 53 cases. Many of those cases are reversed not because lower courts clearly contravened Supreme Court precedent, but for other reasons such as circuit splits or issues of first impression. Only a handful, then, are reversed for involving significant departures from Supreme Court precedent. Can it be that there are only a handful of such cases? Or is the Court just ignoring the others?
July 25, 2007 at 12:04 am
Posted in: Supreme Court
Print This Post
7 Comments
Volokh on Blogs, Libel, and Insurance
posted by Daniel Solove
Over at the VC, Eugene Volokh has a very thoughtful post about blogs, libel, and insurance. He notes: “It turns out that homeowner’s insurance policies, and possibly also some renter’s insurance policies, generally cover libel lawsuits.” The “policies generally don’t cover punitive damages, but they do cover both compensatory damages and litigation defense costs.” However, Volokh notes:
[T]hese policies generally explicitly exclude liability related to “business pursuits.” The exclusion and the definition of “business pursuits” may vary from policy to policy, so check yours (and again check both the homeowners’ insurance and your umbrella policy, if you have it). Still, I’m told that most policies just say “business pursuits,” and sometimes define them as referring to a “trade, occupation, or profession.”
If your blog is entirely noncommercial — you neither have ads nor solicit donations for a tip jar, and you don’t systematically use your blog as primarily promotion for your business — then you should be covered for libel lawsuits arising out of your blog posts, because the blogging wouldn’t be a business pursuit. (Possible exception: If your primary occupation is a professor or a journalist, then even noncommercial posting on topics related to your specialty may conceivably be seen as part of your main occupational “business pursuit”; I know of no precedents one way or the other about this.)
But if you make some money out of it, even a small amount, then in many states you probably won’t be covered.
Check out the entire post for useful advice on blogger liability issues.
July 24, 2007 at 10:33 pm
Posted in: Blogging, Tort Law
Print This Post
No Comments
Having obstetric/gynecological surgery anytime soon at one of the hundreds of teaching hospitals around the country?
posted by Melissa Waters
Then be forewarned that, while you are under general anesthesia, medical students may be performing “practice” pelvic exams on you without bothering to first notify you or obtain your consent. Instead, the hospital assumes that you “consented” to the exam when you signed the general pre-operative surgery consent form, even though these forms typically do not mention the procedure. A few years ago, a short-lived media firestorm led to federal hearings on the issue; the American Association of Medical Colleges (which represents most of the nation’s medical schools and over 400 teaching hospitals) issued a statement condemning the practice as “unethical and unacceptable.”
But according to my colleague Robin Fretwell Wilson, who has done extensive research on the issue, the practice lives on at many teaching hospitals around the country. Incredibly, many doctors justify the practice by simply asserting that women will not consent if asked. Since medical students need to practice pelvic exams, they argue, the needs of the medical establishment should trump a woman’s right to be asked for permission before unnecessary medical procedures are performed on her. (In fact, their assumption that women won’t consent if asked is dubious; one study indicates that at least 50% of women do give permission when asked in advance.) According to Professor Wilson, some teaching faculty bluntly assert that poor patients who receive free or subsidized care at a teaching hospital “owe it to the facility and society” to participate. For more information on the controversy, see Professor Wilson’s article, Autonomy Suspended: Using Female Patients to Teach Intimate Exams Without Their Knowledge or Consent (available for download here at SSRN).
If you live in the great state of Virginia, you’re in luck. Thanks to Professor Wilson’s hard work and advocacy efforts, the Virginia legislature just enacted legislation requiring specific informed consent for the practice. (California has also enacted similar legislation.)
By the way, if you’re a man thinking that this issue doesn’t affect you, you might think again. If you ever go in for prostate surgery, think twice before you sign that general consent form: You may be signing up for a free rectal exam or two (or three), courtesy of whatever medical students happen to be on rotation that day.
July 24, 2007 at 11:15 am
Posted in: Health Law
Print This Post
28 Comments
In Today’s Legal News
posted by Sam Yospe
Time Magazine has paid a Canadian man $96,500 for misleading him in a promotional letter. The man returned the letter, thinking that he had won a sweepstakes, but instead was subscribed to Time Magazine.
Strike Tactic: A Union hires homeless people to picket. These “temporary workers” are paid $8 an hour.
A resort at Bryce Canyon in Utah has become its own town, and will now collect $300,000 in annual sales tax revenue from tourists.
July 24, 2007 at 11:00 am
Posted in: Current Events
Print This Post
No Comments
Looking for Lawyers in all the Wrong Places?
posted by Frank Pasquale
I’m usually at a loss when friends and acquaintances ask me for a lawyer to deal with their car accidents or neighborhood nuisances. I just don’t happen to know that many people in those practice areas. But now I can at least refer them to some online services:
[O]nline services like Nolo.com and Lawyers.com [and Avvo.com] make it easier to be an informed consumer. At the same time, states have passed rules designed to curb some of the more outrageous attorney advertisements, though free-speech groups (and some law firms) oppose the movement.
Of course, as Eric Goldman observes, caveat emptor:
[T]he first generation of Avvo isn’t very confidence-inspiring. The distillation of attorneys into a single numerical rating is inherently fraught with peril, and the media has picked up on numerous examples where the ratings are out of sync with common sense. . . . . [T]he numerical ratings look much more like a work-in-progress than a finished product, and I sure hope consumers aren’t actually relying on the numerical ratings.
But Goldman believes sites like Avvo may improve over time.
July 23, 2007 at 3:28 pm
Posted in: Law Practice
Print This Post
3 Comments
Pomegranate Juice and the War on Terror
posted by Dave Hoffman
The blogs are abuzz this morning talking about the Times’ profile of Stephen Abraham, an Army reserve officer who filed a crucial affidavit in the latest Guantanamo litigation. The article explains Abraham’s unique role:
As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies and served on one three-member hearing panel.All of which has left Colonel Abraham, 46, a civilian business lawyer who has lately been busy with a lawsuit between makers of pomegranate juice, with a central role in the public debate over Guantánamo. His account has been widely discussed in Congress, the administration and the press. On Friday, a federal appeals court judge took note of it in describing what she said were problems with the Pentagon’s hearing process.
I thought I’d do some digging into that aspect of this story that will interest our non-constitutional readers: why are pomegranate juice sellers suing each other?
PACER searches disposed of the mystery quickly. POM Wonderful LLC v. Purely Juice, Inc. et al., CV 07-2633 (C.D. Ca.) was filed on April 20, 2007. POM lawsuit against Purely Juice alleges that Purely Juice violated the federal Lanham Act (and its state analogue) by falsely marketing its product as “all natural, consist[ing] of 100% pomegranate juice” with “NO added sugar or sweeteners.”
Abraham represents Purely Juice. Just a few days ago, his client won an important victory in the case. On July 11, 2007, Judge Christina Snyder denied POM’s TRO. The order itself (download the PDF here) is notable for its length and careful attention to the law. POM had independently tested Purely Juice’s product, and allegedly found that “it is clear that consumers of ‘Purely Juice . . .’ are not receiving the nutrients and antioxidant polyphenol health benefits that one would expect from 100% authentic pomegranate juice.” [Editorial comment: anytime you are asking a judge to make a claim about “antioxidant polyphenol health benefits” on a TRO, you seem likely to be in for a tough fight.] But, Abraham argued that, basically, the FDA hasn’t yet made clear what constitutes 100% pomegranate juice, and it was otherwise compliant with 21 CFR 101.30, regulating percent juice claims. The Court agreed with Abraham. As for the plaintiff’s claim that the “NO added sugar” was misleading, the Court found that there was insufficient evidence to find that defendant had added sugar, accepting Abraham’s defense that “the laboratory results could have been caused by the natural variation in the pomegranate fruit, growing conditions, harvesting, storage conditions or processing conditions.” (Notably, this seems like a non-denial denial to me.)
Abraham’s good lawyering saved his client a significant chunk of change. According to a declaration filed in the case, Purely Juice has 800,000 bottles in its inventory, each of which retails for $3.79. ($3.79! For juice!)
So what’s the moral here? You can be a busy commercial lawyer and a participant in the great issues of constitutional moment at the same time? Or, perhaps, as various players seek to control the last lucrative, non-commodity, juice market, the great Pomegranate Wars have begun.
July 23, 2007 at 1:41 pm
Posted in: Antitrust, Civil Rights, Constitutional Law, Consumer Protection Law, Current Events, Food
Print This Post
One Comment
Is Inequality Bad in Itself?
posted by Frank Pasquale
As the AMT debate heats up, there are a lot of efforts to justify the trend in income distribution represented in the chart above (which appears to only be getting more pronounced). But few economists have chronicled the rise of inequality in America as insightfully as Robert Frank.
Twenty years ago, Frank’s groundbreaking Choosing the Right Pond focused on the importance of status in everyday life, eloquently documenting the hidden injuries of class. Ten years later, in The Winner Take All Society, Frank questioned the myths of merit so often used to justify high levels of inequality. He showed how technology could exponentially increase returns to “superstars” who were marginally (or perhaps not at all) better performers than “also-rans.” Frank’s Luxury Fever chronicled the disastrous effects of “spending cascades” unleashed by the new inequality: as the near-rich strived to emulate the ever-wealthier rich, so the middle class strived to emulate the near-rich, leading to extraordinary levels of indebtedness. Each book developed the theme of “positional competition“–the wasteful race for goods that are valued to the extent others are denied them.
Between these books, Frank has also published fascinating works on moral psychology (such as Passions Within Reason and What Price the Moral High Ground), and has formalized his insights in leading economics journals. In the tradition of Albert O. Hirschman and Jon Elster, Frank is one of few leading social scientists capable of enriching economic thought with philosophical, psychological, and sociological insight.
But Frank’s work has also attracted an array of critics. . . .
July 22, 2007 at 10:30 pm
Posted in: Articles and Books, Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Law and Inequality
Print This Post
12 Comments
Robert Frank Series
posted by Frank Pasquale
I’ve just read Robert Frank’s latest book, Falling Behind: How Inequality Harms the Middle Class. I have earlier promoted Frank’s work here, and I found this most recent installment compelling.
However, I also found some shortcomings. Rather than try to get at them all in one blog post, I’m going to try something a little different. I’m doing a series of posts on the book, focusing on how Frank challenges orthodox economic analysis. I also want to respond to some of Frank’s critics, including Tyler Cowen, Virginia Postrel, Will Wilkinson, and Kip Viscusi. While I think each scores some points against Frank, his work more than survives their challenges.
I hope you’ll find that Frank’s work relevant to current debates over regulation, taxation, and consumption. Frank has a Sunstein Number of 1, so he must be on to something!
July 22, 2007 at 10:00 pm
Posted in: Economic Analysis of Law
Print This Post
No Comments
Panel on Practice Management and Blogging
posted by Dave Hoffman
Last Thursday, I participated in a program on Lawyer Blogging, hosted by the Technology Committee of Philadelphia Bar Association’s Law Practice Management Division. The other panelists were Jocelyn Gabrynowicz and Abbie DuFrayne, of PhiLAWdelphia; Charles Meyer of Fox Rothschild’s Pennsylvania Family Law; and Alex Urevick-Ackelsberg, of Young Philly Politics. We talked about why lawyers might want to blog, and the resulting landscape of legal and practical risks. We even talked a bit about my stagnation thesis.
If you are interested, check out the podcast here. I start talking at about 14 minutes in.
[Update: While you are in the mode for meta-blogging, check out Simple Justice's good recent post, New Residents of The Blawgosphere ]
July 22, 2007 at 4:19 pm
Posted in: Blogging, Law Practice
Print This Post
One Comment
Whining & Dining
posted by Frank Pasquale
The Chowhound discussion board offers the following contractually charged dilemma:
A small fly landed in my friend’s glass of wine (it was maybe two thirds full) so we asked for a new glass. She was given a new glass and the remaining wine from our bottle was poured into the glass. The full cost of the wine was on our bill . . . . My question is, should they have comped my friend a glass of wine? What is the norm for when a fly lands in your wine glass?
What’s the best way to legally frame the problem? Has the patron taken on the responsibility to safeguard her own wine once it’s been delivered? Or should some implied warranty of merchantability guarantee a fly-free experience? The unlucky patron here had “two more flies land[] in her new full wine glass shortly.”
Let’s hope it wasn’t too expensive a wine….especially if she’s not a celebrity.
July 22, 2007 at 2:08 pm
Posted in: Economic Analysis of Law, Food
Print This Post
10 Comments
The Marketized Epistemology of Not-so-Random Ads
posted by Frank Pasquale
Via Brian Leiter: Scholars including Michael Fischl and Angie Littwin are disturbed by the Google-served ads that appear next to their papers on SSRN. Littwin states:
I would strongly prefer not to have ads for credit cards running next to my paper arguing for major changes in the credit-card market. And that subject-matter mismatch will often be the case.
The ads raise a number of interesting issues addressed by both Leiter and Lipshaw commenters. On the one hand, I agree with Hal Varian’s point that marketing in general can create a great deal of value by connecting people to products in unexpected ways.
On the other hand, I think it’s important to realize who is permitting these “potential rebuttals” and who is not. Many have called for a “norm of trackback” on newspaper editorial pages that would give some small platform to critics of their contents. But it’s not really catching on. By and large, the people who will have to give a “right of reply” to critics (via served ads) are people that can’t afford to run their site without such funds.
So though we’ve gotten a bit beyond Liebling’s old bromide “freedom of the press belongs to one who owns one,” inequalities of influence persist in unexpected ways. The credit card companies can easily afford to saturate served ads with their content by, for example, bidding up the price of adwords like “loan” or “luxury splurge.” I very much doubt Prof. Littwin could buy her way onto the MBNA site….though ISP-inserted advertising might provide a way around that.
July 21, 2007 at 7:26 pm
Posted in: Advertising
Print This Post
2 Comments
Separation of Powers: Pushing the Envelope
posted by Frank Pasquale
Frank Askin of Rutgers has a very interesting take on Congressional options in the face of executive non-cooperation in investigations. Here’s his view:
Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate — i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.
Askin argues that “no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative,” and describes some fascinating precedents involving the limits of the pardon power. I had always thought of the sergeant-at-arms office as a bit of a relic, but Askin’s piece demonstrates that Congress may well need to expand it in order to deal with an executive branch unwilling to respect the legislature’s inherent powers.
July 21, 2007 at 12:41 pm
Posted in: Constitutional Law
Print This Post
No Comments
