Archive for August, 2007
Names and Values
posted by Frank Pasquale
Just a couple updates on topics I’d blogged earlier this year:
1) The cultural battle over naming is spreading to Thailand:
For as long as people here can remember, children have been given playful nicknames — classics include Shrimp, Chubby and Crab — that are carried into adulthood. But now, to the consternation of some nickname purists, children are being given such offbeat English-language nicknames as Mafia or Seven — as in 7-Eleven, the convenience store.
The trend worries Vira Rojpojchanarat, the permanent secretary of the Thai Ministry of Culture. . . . [who] is embarking on a campaign to revive the simple and often more pastoral nicknames of yore.
Perhaps names, like clothes, are becoming a part of the fashion cycle. And as with fashion, it may be impossible for governments to effectively intervene–or unwise/unfair.
2) Transvaluation of Values Watch: I’ve covered vanity; here are some thoughts on (what some may call) gluttony.
August 31, 2007 at 4:13 pm
Posted in: Culture
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Paternalism and Compulsory Attendance
posted by Dave Hoffman
Should professors force law students to come to class?
It’s a species of the pedagogy/paternalism debate that has otherwise been batted around in the banning laptops and mandating preparation kerfuffles. And yet, requiring attendance is different. It is much harder to see how missing class, unlike using a laptop or being unprepared, produces negative externalities for the remaining students. After all, it only takes only one student surfing the web to distract a whole row of her colleagues, but a student who isn’t there really isn’t a problem. So long as the remaining students are engaged they will each probably get marginally better educational experiences if their classmate- who would otherwise be compelled to virtue, and probably indifference – is instead permitted to stay home.
The reasons ordinarily adduced to require attendance don’t stand up to sustained scrutiny:
1. Coming to Class Improves Student Grades: As Seattle Law Prof. Rafael Pardo pointed out here last year, there is minimal support for the baseline empirical intuition supporting a paternalistic attendance policy: present students do only marginally better on final exams. Indeed, apocraphal data (!) are to the contrary. It has been long rumored that many of the outlines on reserve in Gannett House have, as their first page, a photograph with a comment: “This is X. S/he is the Professor in this course.”
2. Coming to Class Embodies Professionalism: The problem here is if lawyers should not be measured simply for showing up, law students shouldn’t either.
3. It Prevents Students From Being Engaged in Other Pursuits, Like Making Money, and Thus Increases the Effective Cost of Legal Education. Ok, this isn’t a defense of the current system, but can you explain the current ABA stance in any other way? Unlike the laptop policy, or preparation, the ABA actually requires law schools to make attendance mandatory, through regulation 304-d. Thus, teachers (like those at Harvard, at least when I was there) – who do not enforce any attendance requirements put the school potentially in danger of ABA sanctions. Most law professors probably would like to follow HLS’ model, not only to avoid charges of hypocrisy, but because they have grown less enchanted by a paternalistic pedagogy the more they’ve taught. But, being risk-averse rule-followers, they hold their noses and enforce strict attendance policies.
Law school teaching is premised on the idea that our students are adults, able to self-motivate and generate a great deal of the learning themselves, or in combination with their study groups. This orientation justifies the Socratic method’s open-ended character, and is strongly in tension with paternalistic educational policies in the absence of negative externalities.
RESOLVED, THEREFORE: Regulation 304-d should be eliminated.
Discuss.
August 31, 2007 at 3:42 pm
Posted in: Uncategorized
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Saving the Earth, 24 Hours at a Time
posted by Nate Oman
The New Republic, a serious magazine for right thinking people not noted for its humor, has a very funny article up on their website that confirms all of your suspicions about the possibilities of combining Jack Bauer, Al Gore, environmentalist jokes, and a Simpson’s writer It begins:
EPISODE 1: 12:00 AM – 1:00 AM
Int. CTU – day
JACK BAUER talks to JANIS GOLD.
JANIS GOLD
Our source tells us that the terrorists’ plan is blow up Broward Dam. This would create mass flooding, cut power to the entire state, and destroy the habitat of the tidewater goby.
JACK BAUER
Dammit! Without that goby, what will our local heron population eat?
JANIS GOLD
Try not to think about that.
JACK BAUER
I can’t help it! Every link in the food chain matters!
Jack punches his hand through a wall.
And so on. I cried during the Al Gore part…
August 31, 2007 at 10:02 am
Posted in: Culture, Environmental Law, Humor
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Nicholas Mosley: Style and Substance
posted by Frank Pasquale
I was happy to see the British magazine Prospect carry an interview/review of the work of the fascinating novelist Nicholas Mosley. Mosley’s Hopeful Monsters is an extraordinary novel of ideas. It’s easy to make a hash of that genre, but Mosley’s protagonists are so viscerally committed to their fields of study (one’s a physicist, the other an anthropologist) that it’s easy to see why they care about the interplay of philosophy and science in the mid-twentieth century. The book can even be taken as an extended meditation on the degree to which the model of natural sciences can be extended to social science.
(That theme is more explicitly treated in his autobiography, Efforts at Truth. This memoir also contains one of the most bizarre accounts of an alleged “defamation by fiction” I’ve ever seen.)
A few more thoughts after the break. . .
August 31, 2007 at 7:40 am
Posted in: Law and Humanities, Philosophy of Social Science
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Debating the New FISA Law
posted by Daniel Solove
Over at Slate, Patrick Radden Keefe, Orin Kerr, David Kris, and Marty Lederman are having an interesting debate about the new FISA law — the Protect America Act — which was passed to authorize the Bush Administration’s NSA surveillance program. It’s definitely worth checking out.
August 30, 2007 at 3:04 pm
Posted in: Privacy (National Security)
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How Much Should a Dog Consume?
posted by Frank Pasquale
In his provocative book How Much Should a Person Consume, Ramachandra Guha asks “can the world as a whole achieve American levels of car ownership? Can there be a world with four billion cars?”
I don’t have any easy answers there, but I do think there are some limits on what a person should consume. And the case of Leona Helmsley’s will suggests some for dogs, as well. Consider her $12 miillion bequest to a puffball named Trouble:
Trouble . . . has expensive tastes. According to the Post, Ms. Helmsley would order her hotel chefs to drop what they were doing to prepare special meals for Trouble when she was hungry. Still, $12 million is a lot of money for an eight-year old dog — even if her kibble is made from kobe. If Trouble invests her money in a diversified portfolio, she’ll earn at least $600,000 a year — without dipping into her principal!
Is $600,000 per year too much to spend on a dog? Or is this another happy story of growing incomes for dog butlers, “five-star kennels, doggy sitters and paw manicurists?” Given that hundreds of millions of people who live on less than a dollar a day, perhaps over $1600 per day of pet care is troubling, however much it expands the GDP.
August 30, 2007 at 1:10 pm
Posted in: Tax
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Financing Arms Races, Health Edition
posted by Frank Pasquale
As the subprime mortgage meltdown continues, we’re seeing the ugly side of credit expansion. Consider how Countrywide approached its customers:
[T]he company’s commission structure rewarded sales representatives for making risky, high-cost loans. For example, according to another mortgage sales representative affiliated with Countrywide, adding a three-year prepayment penalty to a loan would generate an extra 1 percent of the loan’s value in a commission. While mortgage brokers’ commissions would vary on loans that reset after a short period with a low teaser rate, the higher the rate at reset, the greater the commission earned, these people said.
Though many celebrated ever-rising home prices, more discerning commentators (like Schiller, Frank, and Warren) saw the run-up in paper wealth in a darker light. Buyers may be getting a bit more house for their money, but they were also fiercely competing in an auction for space and position. The gap between housing haves and have-nots widened, giving the latter ever more worry about their chance of owning a piece of the American dream.
Now we might be seeing a similar dynamic in cosmetic health interventions. As patients turn to no-interest loans for health care, we can expect ever more demand for “$3,500 laser eye surgery, $6,000 ceramic tooth implants or other procedures not typically covered by insurance.” Just as the leverage behind a 30-year mortgage accelerates a bidding war for houses, this new frontier of financing will increase the social pressure to conform–to ditch those glasses, get rid of even minor dental imperfections, etc. As the article notes, “consumer debt experts warn that as more people try to bridge widening gaps in their health insurance, paying for medical care on credit could plunge the unwary into a financial crisis.” But as more begin to do so, the phenomenon becomes self-reinforcing: physical imperfection starts to signal financial distress and thus becomes ever more stigmatic.
Though the loans described in the article are small, I have a sense they are part of a larger trend in the marketization of health care. Presently, US health expenditures are much higher than other countries’ due to (inter alia) extraordinary administrative costs, doctors’ political power to limit their supply, and a third-party payment system that obscures costs for patients. If “consumer-directed” health care manages to shift those costs directly to patients, health providers may well turn to financing options to “spread the pain” of a big bill over five, ten, or even thirty years.
Moreover, libertarians who want to get rid of Medicare might see the financing plans as an ideal way of moving responsibility for health care finance from the state to individual families. As parents enter retirement, they could set up a reverse mortgage on their house to pay for health care. If those assets run out, I assume libertarians would want to see the parents turn to their children for help–say, asking each to take out a $300,000 health care mortgage for their parents’ care. Perhaps big finance can perfect the libertarian dream of complete personal/familial responsibility for health care.
August 30, 2007 at 8:25 am
Posted in: Culture, Economic Analysis of Law, Health Law, Intellectual Property, Sociology of Law
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The FBI’s New Surveillance System
posted by Daniel Solove
Remember the good old days, when the FBI used tools such as Carnivore, the device that sifted through email traffic at ISPs. The FBI renamed the device DCS-1000 to sound less ominous and mean, but the name Carnivore stuck. Later on, Carnivore no longer became necessary, as ISPs could deliver the goods to the FBI without its help. Attention then shifted to the NSA, the new king of surveillance.
Ryan Singel at Wired News has a very interesting article about the FBI’s new surveillance system. It is based on documents obtained by the Electronic Frontier Foundation via the Freedom of Information Act. According to the article:
The FBI has quietly built a sophisticated, point-and-click surveillance system that performs instant wiretaps on almost any communications device, according to nearly a thousand pages of restricted documents newly released under the Freedom of Information Act.
The surveillance system, called DCSNet, for Digital Collection System Network, connects FBI wiretapping rooms to switches controlled by traditional land-line operators, internet-telephony providers and cellular companies. It is far more intricately woven into the nation’s telecom infrastructure than observers suspected.
It’s a “comprehensive wiretap system that intercepts wire-line phones, cellular phones, SMS and push-to-talk systems,” says Steven Bellovin, a Columbia University computer science professor and longtime surveillance expert.
It seems as though the FBI naming guy has been fired, and the new devices are all in the DCS family. And it appears from the names that the devices are many generations more advanced than Carnivore (DCS-1000):
August 30, 2007 at 12:04 am
Posted in: Privacy (National Security)
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Lessons From Japan
posted by Frank Pasquale
Japan’s technological prowess is so noted as to be the subject of jokes. We probably prefer laughing to the crying that may be induced by the statistics in this article :
Accelerating broadband speed in [Japan] — as well as in South Korea and much of Europe — is pushing open doors to Internet innovation that are likely to remain closed for years to come in much of the United States. The speed advantage allows the Japanese to watch broadcast-quality, full-screen television over the Internet, an experience that mocks the grainy, wallet-size images Americans endure.
Japan enjoys what Gerschenkron called the “benefits of backwardness;” it had to rewire completely after WWII. But it also has a much wiser dirigiste approach to assuring fast and universal access:
In sharp contrast to the Bush administration over the same time period, regulators here compelled big phone companies to open up wires to upstart Internet providers. In short order, broadband exploded. . . . [T]he story of how Japan outclassed the United States in the provision of better, cheaper Internet service suggests that forceful government regulation can pay substantial dividends. (emphasis added)
In Japan, you’ll pay about $37 a month for 100 mbps. In the U.S., on average, you’d pay about $40 for 5 mbps (yes, 5, twenty times less).*
Why the policy divergence? Here’s one part of the story:
The Center for Public Integrity compiled a list of the top 100 money-givers to Congress between 1998 and 2005, and telcos dominate the list: Verizon Communications: $81,870,000, SBC Communications: $58,035,037, AT&T Corp.: $53,349,499, Sprint Corp.: $47,276,585, BellSouth Corp.: $33,732,827, Qwest Communications: $24,523,480
Very impressive lobbying numbers. . . . not so impressive download speeds.
August 29, 2007 at 10:42 am
Posted in: Intellectual Property, Technology
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The Countermajoritarian Difficulty, Turkish Style
posted by Nate Oman
Turkish politics are interesting. One of the largest Islamic countries on earth, it is — by Middle Eastern standards — an extremely stable and even moderately liberal regime. You wouldn’t want to get too gushy about Turkey. They do all sorts of nasty things from time to time in the Kurdish regions of the country, for example. Still, they have regular and more or less contested elections and moderately smooth transfers of power from one party to another, not something that you can say about too many countries in their neighborhood. Things, however, are a bit more complicated than this. The recent election of Abdullah Gul to the presidency illustrates why. Gul is the standard bearer for the Justice and Development Party, a moderate Islamicist group. Back in the day, he was the foreign minister of an earlier Islamicst government that was deposed by a military coup. The question is whether the Turkish Army will now oust him from power.
The Turkish military does this from time to time. They see their role — when not suppressing the Kurdish minority — as safe-guarding the secular constitution set up by Kamal Ataturk after the fall of the Sultanate at the end of World War I. Accordingly, they feel fully justified from time to time in deposing duly elected governments that get too enthusiastic about political Islam. It is easy, of course, for Americans to get sanctimonious about such things. For all of the anxiety that some feel about the military-industrial complex, the American military does a pretty good job at maintaining political neutrality and subservience to civilian leadership. No one but conspiracy-theory wingnuts expects the Pentagon to mount a coup if they are unhappy with election results. How horrible, we say, that the Turkish military feels justified in thwarting the will of the people.
August 29, 2007 at 9:58 am
Posted in: Constitutional Law, International & Comparative Law
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Look Left, Look Right, Look at 100 People Around You and There Are Guns for 90 of Them
posted by Deven Desai
A new study shows that the U.S. has 90 guns per 100 people. Let me say that again 90 per 100. That makes us the most armed country in the world. As Reuters reports there are other ways to think about firearm ownership: People in the U.S. own 270 million of 875 million arms in the world and of about 8 million firearms made each year, 4.5 million are bought in the U.S. Leaving aside the whole gun control question, exactly what are Americans worried about? I mean that is a large amount of guns. Do these people know something the rest of us don’t? Furthermore, I am fairly certain that the people I tend to encounter do not own arms. Maybe I need to get out more and meet some new people (likely a true statement), but really who owns all these guns? My guess is that a gun owner in the U.S. tends to own several guns rather than just one. If so, are there a whole bunch of people packing concealed heat? Or perhaps there are enclaves where Cold War-style bunkers are filled to the brim with arms. All jest aside the report shows that some of the presumptions about firearm ownership may be off.
For example, Yemen (61/100) is second to the U.S. on a per capita basis and Finland (54/100) is third. Finland? I suppose Russia next door is something to worry about but still. The article notes that the perception that many poor countries are armed and violent is misleading. As the director of the Survey noted “Firearms are very unevenly distributed around the world. The image we have of certain regions such as Africa or Latin America being awash with weapons — these images are certainly misleading.” In fact the director pointed out that there is a correlation between wealth and firearm ownership. So it may be that as countries develop the demand for and acquisition of firearms in those countries may increase. (Oh yeah, new markets!) Last, the numbers about the recent increase in overall firearm quantity and lack of registration are impressive if not chilling. Five years ago there were about 640 million firearms, now there are 875 million. In addition, of the current 875 million firearms, about 650 million are in civilian hands and only around 12 percent are registered.
I’d like to say more on the topic, but the last shootout in Mr. and Mrs. Smith is on and man, it has some booms. The Blues Brothers riff (Girl From Ipanema playing in the elevator while mayhem awaits outside) mixed with the pseudo-Butch Cassidy ending — the shed in the Costco-style warehouse instead of South America, a battle that has a complete array of weapons from knives to handguns, shotguns, machine guns, and a grenade launcher, and all to Joe Strummer & the Mescaleros’ “Mondo Bongo” as Brad and Angelina survive the absurd odds (can’t kill heroes in modern film) — is just too cool.
August 28, 2007 at 11:54 pm
Posted in: Current Events
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Intellectual Privacy
posted by Neil Richards
Late last week, I finally sent my latest article out to the law reviews. It’s called “Intellectual Privacy,” and it’s about the ways that certain kinds of privacy protections advance, rather than inhibit, First Amendment values. I’m really excited about the project, which I believe has something useful to say about both a number of recent legal issues (involving the War on Terror and also the War on Pornography) as well as our understandings of First Amendment theory. I’m hoping to post it on SSRN shortly, but in the meantime, here’s the abstract:
The use of information about intellectual activity has become central to a wide variety of modern legal problems. In this paper, I offer a theory of intellectual privacy, the critically-important interest lurking beneath the surface of these disputes. Intellectual privacy refers to the zone of protection necessary for free thought and cognition in which individuals can make up their minds about a wide variety of issues both important and trivial. Unlike many other notions of privacy, which are in tension with free speech, intellectual privacy safeguards critical First Amendment values. First, I show how intellectual privacy has been underappreciated in a number of contemporary disputes, including warrantless wiretapping and data mining by government, private-sector uses of personal information relating to intellectual activity, and the introduction of reading habits as evidence in criminal trials. Second, I present a theory of intellectual privacy having four elements – the freedom of thought and belief, spatial privacy, the right of intellectual exploration, and the confidentiality of communications. Third, I show how and why intellectual privacy should be an essential part of our First Amendment theory, and suggest some ways in which it could be better incorporated into both constitutional doctrine and the fabric of our legal culture more generally.
August 28, 2007 at 10:13 pm
Posted in: Anonymity, Constitutional Law, First Amendment, Google & Search Engines, History of Law, Law School (Scholarship), Legal Theory, Privacy, Privacy (National Security), Technology
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Larry Tribe’s Lochner?
posted by Frank Pasquale
The net neutrality debate is heating up as an epic battle between Google and carriers like Verizon, SBC, and Comcast. Now Larry Tribe is weighing in to cut off the debate, apparently arguing that virtually any regulation of the big carriers’ treatment of content could violate the First Amendment (according to this report):
Professor Tribe was asked . . . whether he thought broadband providers should be allowed to censor music lyrics critical of the President of the United States. Tribe rephrased the question: Can [broadband providers] be forced to act as common carriers? [and. . . ] cited Hurley . . . 515 U.S. 557 (1995) as the decision that “would probably apply here.” In that case, the organizers of a parade did not want to include among the marchers a group espousing a view with which the organizers did not agree. The Supreme Court ruled that the parade was not merely a conduit for the speech of participants.
The Court contrasted the parade organizers with cable operators who were the subject of Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) by noting that cable, unlike a parade permit, confers a “monopolistic opportunity to shut out some speakers.” But guess what? Like it or not, cable doesn’t confer a monopolistic opportunity anymore.
Um, does Comcast have a “message” when it brings me 500 channels? I’m mystified by the parade analogy.
As our guest blogger Neil Richards has noted, (and as Oren Bracha and I argue in our piece on search engine regulation), the First Amendment is the 800-pound gorilla in the room of equitable information policy. Many First Amendment absolutists would like to see it eviscerate the public’s rights to privacy and cultural self-determination. Following Richards’ work, I’m going to explore why an absolutism like Tribe’s might seem tempting, and why it is so crucial that courts resist it. In a nutshell: Tribe would do for information policy what Lochner did for economic regulation….a sad result for a thinker who so compellingly recognized “speech as power” in his book Constitutional Choices.
August 28, 2007 at 9:24 pm
Posted in: First Amendment
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Happy 800th Birthday Liverpool!
posted by Neil Richards
Today is the 800th birthday of my home town, the city of Liverpool. Most Americans that visit Britain don’t get to see Liverpool, which is a shame because it’s an interesting place. Liverpool is best known as the home of the Beatles and Liverpool FC, the most successful soccer team (by far) in England. It’s also the home of the dialect of scouse, the much-maligned but musical patois of the area (think of the Beatles’ accents, especially Ringo’s for an example). Scouse is also the name of the local signature dish, a kind of stew made of lamb and potatoes. There probably aren’t many Scousers that read Co-op, but you never know. In any event, it’s an important milestone for a city that has contributed a great deal to music and football, and is the European Capital of Culture for 2008. The image is the front page of the Liverpool Echo, the local newspaper, and is worth noting for three reasons. First, the bird on the paper’s logo is the mythical Liver Bird (pronounced to rhyme with “diver” rather than “sliver”). Second, the cover was designed by the same artist who put together the Beatles’ iconic Sgt. Pepper album cover. Third, if you look closely, in true Scouse fashion as an inducement to buy the commemorative issue (at only 45p!) is the promise of a “free pint” with the purchase of the issue. Cheers, la!
August 28, 2007 at 6:18 pm
Posted in: Culture
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Fair Use Excuse Abuse on the Loose?
posted by Frank Pasquale
Given the comments on my last post, I should probably stop blogging the Nixon Peabody contretemps. But now that it’s hit VH1′s Best Week Ever as Best Jam of Summer ’07, I want to give as sympathetic a view as I can for the law firm’s plight.
First, fair use expert Matthew Sag has offered this view on legality of Lat’s making the song available:
ATL appears to be on pretty safe ground here in terms of fair use. The initial song is an unwitting (and cruel) self-parody and there is clear public interest in revealing it to the world. ATL’s release of the video is not commercial in the relevant sense because it does not compete with the law firm’s own exploitation of its IP.
Sag believes that a second user has an even stronger claim for protection. One question, though–are we comfortable with a world in which any embarrassing music/video that a company creates can be instantaneously distributed as soon as someone makes a fair use of it? Richard Epstein has argued that “the success of both personal and business endeavors depends on our ability to respect confidences and to keep private information private” (52 Stanford L. Rev. 1003). Epstein complains that the First Amendment has run roughshod over contracts that try to protect privacy.
So perhaps it should be no surprise that copyright–which consistently trumps First Amendment claims–should be invoked by Nixon Peabody. And fair use, as we were reminded in Eldred v. Ashcroft, is one of the few places where copyright tends to give way to First Amendment concerns. Perhaps firms of the future will classify their theme songs as trade secrets and contractually bind employees never to reveal them. It’s not exactly clear where the rock/scissors/paper game of IP/privacy/First Amendment would lead in such a case; Pam Samuelson’s piece on the topic offers some clues.
August 28, 2007 at 4:01 pm
Posted in: Uncategorized
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Repressing Erie’s Myth
posted by Dave Hoffman
My colleague (and former Co-Op Guest-Blogger) Craig Green has posted Repressing Erie’s Myth, 95 Cal. L. Rev. ___ (2008) on SSRN. From the abstract:
This Article seeks to alter basic perceptions of Erie v. Tompkins. Everyone knows Erie’s requirement that federal courts apply state substantive law in diversity cases. But for some scholars and judges, Erie means much more. The case has been enlisted to serve such wideranging causes as positivism, federalism, and separation of powers. And in 2004, the Supreme Court used Erie to restrict the availability of human rights lawsuits in U.S. courts.My goal is to limit exaggerations of Erie’s importance and forestall resultant threats to judicial power. This critique of Erie’s myth has three parts:
First, I attack the old myth (espoused by Brandeis, Friendly, John Hart Ely, and others) that Erie is based on constitutional federalism.
Second, I criticize the new myth claim (advanced by Curtis Bradley, Jack Goldsmith, and Sosa v. Alvarez-Machain) that Erie is based on separation of powers. In this analysis, I compare Sosa with Hamdan v. Rumsfeld, which denied the new myth’s broadest consequences.
Third, I offer a new model for federal common law, which analyses common-lawmaking consistently with other judicial work. My model parallels Jackson’s account of exeutive power in Youngstown Steel. Specifically, I suggest that federal common law should (i) be favored when authorized by Congress, (ii) be disfavored when proscribed by Congress, and (iii) occupy a zone of twilight when Congress has not addressed the issue.
Erie is a fine ruling in its original context, but it is implausible as a general theory of judicial power. Only by seeing Erie for what it is can one resist modern efforts to draw strong anti-judicial ideas from this iconic case’s shadows.
I’ve read this paper several times in draft, and think it is terrific. Check it out!
Related Links:
1. If You Were At Temple Law Today
August 28, 2007 at 2:39 pm
Posted in: Constitutional Law
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Flying the Stratified Skies
posted by Frank Pasquale
Travel has always served to remind us of the divisions our “classless society” tries so hard to downplay. Sam Walton may have driven an old truck, but you’d be hard-pressed to find most top executives or trust-funders flying in less-than-first-class digs. As the song in Chitty-Chitty Bang-Bang put it,
O the posh posh traveling life, the traveling life for me
Pardon the dust of the upper crust – fetch us a cup of tea
Port out, starboard home, posh with a capital P. . .
Admittedly, for those of us crushed into coach, there was always a happy flipside to the narrative: the profligates up front were paying so much more for their seats, effectively subsidizing the rest of us.
But that subsidy effect has been on the wane in recent years. And now wealthy fliers have found a new way to effectively assure that the rest of us are subsidizing them:
Corporate jets pay a fraction of the taxes and fees that commercial airliners do. The F.A.A. estimates that private planes, which include both corporate jets and weekend fliers, account for 16 percent of the air traffic control system’s overhead but contribute only 3 percent of the fees earmarked to run the system.
***
The Air Transport Association has . . . created a Web-based ad campaign featuring a fictional traveler, Edna, complaining about the fee disparity while the computer screen displays waves of corporate jets filling the skies before and after sporting events like the Kentucky Derby and the Masters golf tournament.
It’s enough to wilt the mint in your julep. As the campy YouTube ad sloganeers, travelers like “wearing big wigs, not subsidizing them!” Edna (pictured above) wonders “Why should the rest of us pay ten times more using the same services?”
Fortunately, the FAA has heard her pain, and is planning on “sharply increasing the fuel tax for private jets and also hitting corporate fliers with extra charges to land at any of the country’s 30 most congested airports.”
August 28, 2007 at 9:45 am
Posted in: Administrative Law, Admiralty, Law and Inequality, Tax
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Virginia and the Birth of Corporate Law
posted by Nate Oman
I enjoy reading local history, and one of the great advantages of living a mile from Jamestown, Virginia is that lots of people have written about my local history. In addition to stories of starving colonists and massacred (and massacring) Indians, Jamestown is also a story of corporate law. The colonization of America was not a government funded operation. Rather, it was an exercise in high risk venture capital, funded by private investors in the hope of big profits. In the end, of course, the Virginia Company failed to pay big and the government ultimately bought the investors out, taking over the colony, somewhat like a bail-out of a hedge fund. Along the way, Virginia made some interesting corporate law.
The company’s third charter, in particular, is interesting. Virginia was organized by a royal charter that gave the company a corporate existence, set up its governing structure, and defined the scope of its business. Originally, the number of investors was sharply limited and the governing structure was largely independent of their control. The company found it necessary, however, to return to king and parliament to tinker with their charter. The third charter was provoked by the desire of the company to extend its jurisdiction to take in most of the western Atlantic. In particular, they wanted control of Bermuda, where a Virginia-bound ship had wrecked, living about 120 colonists to live on the island for nearly a year while they built a ship to take them to Virginia. (The incident served as the inspiration for Shakespeare’s play The Tempest.) The new charter, however, did several things beyond giving the company control over “The Devil’s Isles.”
First, it massively broadened the investor base of the company, essentially creating a market in Virginia Company shares where none had existed before. Second, it revamped the governance structure so that the board of governors was elected by the shareholders rather than being appointed by the crown. Thirdly, and most interestingly in my view, it dispensed with the oath of supremacy for investors. This meant that Catholics would be allowed to buy shares in good conscience. The last move is interesting because while the colony remained militantly Protestant and anti-Catholic (or at least anti-Spanish), the innovation does mark the beginning of a shift toward a view of commerce as a realm in which religious differences need not be an impediment to peaceful cooperation. A small move, to be sure, but done several decades before the Peace of Westphalia, it was a not insignificant innovation.
August 28, 2007 at 7:47 am
Posted in: Corporate Law, History of Law
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Intermediary Liability and Animal Cruelty: Humane Society Sues Amazon
posted by Deven Desai
It seems that everyone wants to stop information that is allegedly bad. The present example: the NY Times reports that the Humane Society of America has sued Amazon for selling the cockfighting magazines The Feathered Warrior and The Gamecock (seriously, those are the names). The magazines carry ads “for blades that attach to birds’ legs” and the Society claims that in essence Amazon is selling a catalog for illegal goods. Amazon has offered the online cha-cha 1) censorship and 2) can’t ask us to police what we sell. As of next summer when Louisiana’s ban goes into effect, cockfighting is illegal in all states. Nonetheless, “possessing cockfighting paraphernalia is legal in 39 states, while possessing fighting birds is legal in 17.” Which might be why a lawyer for one of the magazine’s asserts that “federal law prohibit[s] promoting cockfighting or shipping birds or gear across state lines, [but] the advertisements themselves were aboveboard.”
I have no idea how one distinguishes between fighting birds and non-fighting birds. Furthermore I don’t think I want to know exactly what qualifies as paraphernalia as the oddities of blades or who knows what attached to animals for sport. Nonetheless, it seems that pinning down what qualifies as either is hard to do. As far as the claim that the Humane Society does not want to censor, the article notes that the Society’s president has named Amazon as facilitator of the activity stating in an op-ed “if ‘your passion in life is watching tormented birds tear each other to pieces, in a bloody pit,’ then “Amazon is the place to go.’” The tactic at issue seems to conflate information with people’s behavior. It forgets a key point about information.
August 27, 2007 at 11:00 pm
Posted in: Uncategorized
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Opening Day
posted by Neil Richards
Today is the first day of classes at many law schools around the country (including mine). I always get a real sense of excitement with the start of a new law school year – it’s nice to see students (and colleagues) that I have not seen all summer, and each year, as in professional sports, hope springs eternal for the home team. And I always get a thrill the first time I start speaking in a new course – the beginning of a new collaborative adventure with a new group of students, many of whom I’ve not met yet but will get to know well. It’s a wonderful sense of the new and the familiar which reminds me how much I enjoy my job.
By my count, this is my eighth first day of the law school year (counting my time as a law student, faculty fellow and now full-time law teacher). But if the first day of classes is familar to me today in part because of the routine, my very first first day of law school in 1994 had excitement mixed with lots of terror – a nerve-jangling combination of fear of the unknown, fear of failure, and fear of making a fool of myself. I remember that I had to drop some form off at the law school the afternoon before the first day of classes, and walked around an essentially empty law school wondering what would happen over the next three years. I had no idea then what my law school career would bring, or that it would be a little longer than the three years I’d signed up for. But it does make me think, as someone on the other side now, that there are thousands of starting first-year law students out there now with the same sense of trepidation and excitement, about to embark on three months they will remember vividly for the rest of their lives. It’s something that’s easy for those of us who have been doing this for a number of years to forget, even though we were all once terrified first years on our first day, hoping that someone else would be the one to get called on by the scary professor.
August 27, 2007 at 1:46 am
Posted in: Law School
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