Archive for November, 2007
posted by Jack Chin
Like Cinderella’s, my adventure ends at midnight when my temporary password vanishes in a shower of electrons. I thank all of the editors for the opportunity to guest-blog here. I want to offer a substantive post on a serious legal topic before I go. I’ve been spending some time in court lately; I tried a felony jury case with my students in October. I’ve been in the academy since 1994, so being in court on a regular basis is a novelty. I’ve seen many domestic violence cases now, and observed first-hand the truth of the conventional wisdom that some victim-witnesses do not wish to participate in a prosecution of their boyfriends or husbands. Prosecutors then face the unappealing alternatives of dropping the charges in a case involving a violent crime, or going forward by putting the victim of a crime under threat of prosecution or contempt.
Something occurred to me that would make these cases more prosecutable; it may well already be in the literature, I offer it more as a notion flowing from a war story than a proposal or fully-baked idea. Here it is: Why not take victim-witnesses directly from the scene of the arrest to a court reporter, with a magistrate present or available, put them under oath, and take their testimony while it is still fresh? Call it a domestic violence preliminary hearing. Then, if the victim recants, the prior testimony can be used at trial (or to induce a plea).
There are a number of objections, none of which seem insurmountable.
posted by Anita Krishnakumar
For my final guest post, I want to talk about a case argued before the Supreme Court on Monday (November 26): LaRue v. DeWolff, Boberg, & Assoc. The case involves the appropriate interpretation of ERISA provisions governing individual pension plan participants’ right to sue the fiduciaries who administer their plans. While the subject might bore the average lawyer, as one who teaches courses both on statutory interpretation and on trusts, I find it intriguing. So, here goes: LaRue is a participant in an ERISA-covered Section 401(k) pension plan that is sponsored by his employer, DeWolff. DeWolff administers the plan and so qualifies as an ERISA fiduciary. Under the plan, participants may choose among several investment options and may direct DeWolff, as plan administrator, to invest the amounts allocated to their individual accounts in specified percentages. LaRue claims that DeWolff breached its fiduciary duties to him by failing to follow his investment allocation instructions, resulting in a loss of approximately $150,000.
Enter ERISA Sections 502(a)(2) & (a)(3), 29 U.S.C. 1132(a)(2) & (a)(3), under which LaRue seeks to have the plan reimbursed for that alleged $150,000 loss (after which the plan would allocate the funds to his individual account). ERISA Section 502(a)(2) authorizes a participant and others to sue a fiduciary (like DeWolff) to recover “losses to the plan” resulting from a breach of fiduciary duty. Section 502(a)(3) is a catch-all provision that authorizes a plan participant and others to sue for, among other things, “appropriate equitable relief . . . to redress” “any act or practice which violates” ERISA.
The issues thus become: (1) Does Section (a)(2) authorize a plan participant to sue for recovery that would inure to his individual account rather than to the benefit of the plan as a whole?; and (2) Does LaRue’s claim to recover the alleged $150,000 loss constitute a claim for equitable relief (as opposed to a legal claim for compensatory damages), as required under (a)(3)?
posted by Frank Pasquale
There have been almost 3000 news stories on the bizarre Teddy Bear affair in Sudan. The AP notes that “Sudan’s Islamic government, which has long whipped up anti-Western. . . hard-line sentiment at home, was balancing between fueling outrage over the case of Gillian Gibbons and containing it.” Given the diversity of implementations of Sharia law, the case appears to be yet another sad example of religion misappropriated to crass political ends. Law prof Haider Ala Hamoudi makes the following point:
[W]ould a medieval jurist know what a teddy bear even was? Does it matter at all to the conventional wisdom that the crime under Article 125 of the Sudanese criminal code is NOT blasphemy, it is “publicly cursing or insulting, any of the religions or their religious customs or its sacred matters . . . ?” Does anyone believe that medieval jurists actually cared about protecting the “religious customs and sacred matters” of religions other than Islam as this law at least purports to? Would medieval jurists of any religion have phrased anything so ecumenically? Does anyone at all reporting on the shari’a crime of blasphemy care in this absurd case about this actual law, under which this poor actual woman is being judged, instead of some academic construction of what is happening based on sources the Sudanese judges and lawyers aren’t reading? . . . . [Given the] disinterest of respected religious scholars in supporting the Sudanese verdict, I tend to conclude nobody thinks the shari’a, as opposed to Sudanese politics, has very much to do with any of this.
In other news, in an upcoming conference on Christian legal theory, “Judge Michael McConnell will deliver an address with the provocative title ‘Asking Muslims to be Moderate.’”
posted by Dave Hoffman
We just past our 2,000,000th visitor, a bare 11 odd months after our million-hit milestone. We also (relatively recently) quietly celebrated our second birthday as a blog.
We’re all very grateful to have such an engaged and thoughtful readership, and we look forward to seeing some of you again in person at our upcoming happy hour.
posted by Adam Kolber
In my first post here as a guest blogger, I mentioned a New York Times op-ed that quite straightforwardly accepted the existence of ghosts. As my guest blogging stint draws to a close, I thought I’d relay my own “Close Encounter with People Apt to Believe in Close Encounters”.
A few weeks ago, I saw a performance of sleight-of-hand and mentalism by Steve Cohen, “The Millionaire’s Magician.” Magicians fall on a spectrum from those like Uri Geller, who purport to have genuine psychic powers, to those like Penn & Teller, who make quite clear that they are performing illusions (and sometimes even reveal their methods). Cohen fell into the middle of this spectrum. Before moving into a mind-reading portion of the program, he would say something like, “Now, you’ve seen me do some sleight-of-hand. But what you will see next is very mysterious and powerful.” As he acknowledges in his book, Cohen tries to create the illusion that he has mystical powers without actually saying so. Perhaps, it’s classic magician misdirection. Perhaps, it’s beneficent deception. Or, perhaps, it just pulls the wool over some people’s eyes.
After the show, I was in an elevator with some other spectators. We all expressed agreement that it was a fine show and a very entertaining evening. One spectator seemed particularly impressed. I asked her if she thought that Cohen had real magic powers or was just creating the illusion that he did. She said she believed he had real magic powers. Zoinks! Now have I restored your confidence in the jury system?
posted by Frank Pasquale
The WSJ has a superb article on the shadowy world of “lifetime limits” on health insurance policies. It focuses on a man (Dawson) who “maxed out his plan’s $1.5 million lifetime cap halfway through his long hospital stay.” The hospital and doctors aggressively moved to collect the rest:
CPMC discharged Mr. Dawson on July 26, and Mrs. Dawson drove her husband home. As they entered their house, Mr. Dawson lost his balance and fell. Mrs. Dawson was trying to help him up when the phone rang. It was Ms. Beronilla, the hospital’s financial counselor. Mrs. Dawson says Ms. Beronilla . . . .told her the hospital would start billing immediately. With her husband still splayed out on the floor, Mrs. Dawson remembers replying: “Do what you have to do.”
The story foregrounds the sad state of privatized American health care: we frequently force people at their most vulnerable to negotiate with implacable bureaucracies. But a harder question for advocates of universal coverage lurks in the background: what are the limits of collective responsibility? I doubt many would be argue for state coverage of Dawson if his bill reached $500 million. One or two million dollars is far more reasonable, but what should the limits be?
posted by Jeffrey Lipshaw
Non-sequitur alert. Try to figure what the next two segments have to do with each other. I will get back to you about it below the fold.
* * *
The other day I posted what at the time I thought was a grumpy comment to a post by Jennifer O’Hare of Villanova over at Conglomerate. The gist of her post was whether the failure of a corporation to have a “succession plan” for the CEO position could be laid at the doorstep of the board of directors in the form of liability for breach of fiduciary duty – I suppose either the duty of care or the duty of loyalty in the sense of the more recent Delaware decisions. The genesis for Professor O’Hare’s post was a report in the Wall Street Journal that only 50% of public and private corporations had “succession plans.” I remind my students from time to time that I’m an ex-corporate shill, and to take any view I profess with that in mind, so readers here are advised similarly.
* * *
I seem to have gotten fixated over the last few weeks on the words “Justice” and “Rule of Law.” This all started back in July at the Law & Society Association annual meeting in Berlin, first at an “Author Meets Readers” session about Brian Tamanaha‘s Law as a Means to an End, and later at a roundtable on which I was honored to participate about the New Formalism. Larry Solum organized both sessions, so it’s appropriate to hearken back to my paraphrase at the time of his words capsuling the issue: “We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism.” Or to put it in the context of the sociology of Niklas Luhmann (about which there was a concurrent series of sessions going on): it’s only within the legal system that the participants operate under the delusion there is Justice or Rule of Law. From the outside looking in, the paradox is obvious: we want to believe there is either a transcendent or immanent, but more importantly, objective right answer, even while we argue from subjective and instrumental positions. The only way the legal system works is with a kind of doublethink; believing in this dialectic that objective truth can somehow arise out of the clash of instrumental interests (to which, of course, Brian Tamanaha objected).
We are, like everyone else, in the faculty appointment job talk part of the year, and I have now heard the idea of Justice and Rule of Law discussed several times in different contexts. One set of job talks had to do with the idea of juvenile justice. Juvenile lawyers (and in our case, juvenile legal clinicians) have to deal with two competing concerns, the best interest of the child, and the obligation of zealous representation in delinquency trials. To put it more plainly, confession may be good for the soul, for healthy development, and for the making of good citizens, but it’s bad for the juvenile defendant and his lawyer.
The idea surfaced again in a job talk about school desegregation, and the fact that Brown v. Board of Education (Brown I) was cited in support of three different positions in the recent Supreme Court case on school desegregation (i.e. colorblindness, integrationist, and a hybrid view). The candidate had an interesting thesis: that Brown has a colloquial or popular meaning apart from its technical legal holding. I like that idea, but it seems to me all it is saying is that Brown has become a shorthand reference for “Justice” or the “Rule of Law” in the context of racial equality. So it’s no more surprising that everybody cites Brown than than everyone insists, in an instrumental way, that its view is the one consistent with justice or the Rule of Law.
* * *
Well, I have some street cred on the subject of corporate governance, and almost none on juvenile justice or school desegregation, but I am still fixated on these paradoxes in the ideas of Justice and the Rule of Law. So below the fold, I’m going to ramble a bit about corporate governance, the paradoxes of the Rule of Law, and glimpses of the Infinite.
posted by Daniel Solove
I’m quite pleased to learn that Facebook has come to a privacy epiphany. I’ve been blogging a lot lately about the privacy problems with Facebook’s new features — Beacon and Social Ads:
Facebook recently announced that it is changing the way it obtains people’s consent before it uses or discloses their personal information. In particular, its change in policy involves Beacon. According to the AP:
More than 40 different Web sites, including Fandango.com, Overstock.com and Blockbuster.com, had embedded Beacon in their pages to track transactions made by Facebook users.
Unless instructed otherwise, the participating sites alerted Facebook, which then notified a user’s friends within the social network about items that had been bought or products that had been reviewed.
Facebook thought the marketing feeds would help its users keep their friends better informed about their interests while also serving as “trusted referrals” that would help drive more sales to the sites using the Beacon system.
But thousands of Facebook users viewed the Beacon referrals as a betrayal of trust. Critics blasted the advertising tool as an unwelcome nuisance with flimsy privacy protections that had already exasperated and embarrassed some users.
Some users have already complained about inadvertently finding out about gifts bought for them for Christmas and Hanukkah after Beacon shared information from Overstock.com. Other users say they were unnerved when they discovered their friends had found out what movies they were watching through purchases made on Fandango.
Peter Lattman of WSJ blog was one of the ones caught off guard by Beacon, when he discovered to his dismay that Facebook announced to his friends that he bought tickets to Bee Movie on Fandango.
According to the New York Times:
Under Beacon, when Facebook members purchase movie tickets on Fandango.com, for example, Facebook sends a notice about what movie they are seeing in the News Feed on all of their friends’ pages. If a user saves a recipe on Epicurious.com or rates travel venues on NYTimes.com, friends are also notified. There is an opt-out box that appears for a few seconds, but users complain that it is hard to find.
posted by University of Pennsylvania Law Review
PENNumbra‘s featured November responses are now available at www.pennumbra.com.
This month, Frank O. Bowman, III, Michael M. O’Hear, and Daniel Richman each respond to Ronald F. Wright’s article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005). In his article, Professor Wright addresses the challenges to the judicial system from the rise of plea bargaining rates in the United States. He argues that reform is best accomplished through a “mid-level” regulatory strategy—what he calls the “trial distortion theory”—that neither condemns nor endorses the plea bargaining process, but asks if pleas are distorting the pattern of outcomes that would result from a “healthy” system in which trials were the norm.
Professor Bowman, in his Response, American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, picks up on one of Professor Wright’s key findings: “the curious fact that the rate of acquittals in federal criminal cases has declined even faster than the rate of guilty pleas has increased.” Professor Bowman goes on to suggest that “acquittals may be vanishing in part because a once-common courtroom denizen—the true trial lawyer—is becoming an endangered species,” and worries that the system has created “ever-greater disincentives to trying the kind of cases in which acquittal is a live possibility.”
Professor O’Hear, in his response, What’s Good About Trials?, questions whether trial distortion represents a significant problem. Professor O’Hear
believes our main focus should be on “mak[ing] plea bargaining processes look more like trial processes.” According to Professor O’Hear, “The trick is to find ways of injecting the values of voice, neutrality, and respect into the plea bargaining process without robbing plea bargaining of its efficiency advantages over the trial process.”
Finally, Professor Richman, in his Response, Judging Untried Cases, applauds Professor Wright for attempting to determine whether “the inexorable reduction in trials actually reflects an impairment of the federal criminal system’s truth-finding function.” However, he notes that Professor Wright overlooked one important factor in his analysis: the extent to which “the vanishing acquittal rate reflects an increase in the [federal] adoption of well-established ‘local’ cases.” Without more information, Professor Richman concludes, “aggregrate caseload statistics are . . . hard to interpret.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
posted by Dave Hoffman
Check out this magazine piece by Jacob Hale Russell of 02138. Russell pulls an old chestnut from the fire: professors at Harvard Law School are (gasp!) using research assistants to draft sections of articles. According to Russell, HLS “is particularly known for this practice, probably because lawyers are used to having paralegals and clerks who do significant research and writing.”
Forgive me, but this is an unbearably silly argument. To the extent that HLS professors have practice experience, it isn’t at firms where paralegals do much (if any) substantive legal work. Plus, the hit job on Dershowitz is very undersourced.
But the real kicker is at the end, when Russell seems to argue that using RAs has reduced the aggregate quality of professors’ work:
Harvard professors writing quietly and alone have penned some of the most significant books of the last century. At 538 pages of dense prose, John Rawls’ Theory of Justice, first published in 1971, could hardly have been designed to be a bestseller, but his concepts, like a “veil of ignorance,” have permeated modern politics and law. Michael Walzer’s Just and Unjust Wars, published in 1977, before he left Harvard for the Institute for Advanced Study, is now in its fourth edition and stands as one of the most significant ethical analyses of war. More such great and lasting books will surely emerge from Harvard. But will we really know for sure who wrote them?
Russell seems to imagine a past consisting of a brave cohort of lonely geniuses working in Langdell’s stacks. Today, by contrast, professors are, at best queen bees in hives of workers slowly advancing the ball.
Does this feel like an accurate representation of the current state of the world to you folks?
(Image Source: Wikicommons)
posted by Frank Pasquale
I just wanted to announce that the annual AALS law blogger happy hour (that PrawfsBlawg and Concurring Opinions sponsor) will run 8:30 to 10:30 on Thursday, Jan. 3, at the fireplace room of the Library Bar at the Sheraton. Here are the details:
Thursday, Jan. 3, 2008, 8:30-10:30PM
Sheraton New York Hotel & Towers
811 7th Avenue (at 53rd Street)
Fireplace Room within Library Bar
For all the night owls (or dilatory ducks) out there, I’m pretty sure festivities will continue in the Library Bar outside the fireplace room after 10:30. Should be a fun event!
As a resident of almost-but-not-quite-New-York, I’ll also be doing a few posts in December on 1) transportation options in NYC and 2) good restaurants at various price levels. If anyone wants to suggest some restaurant ideas, feel free to comment below.
Photo Credit: Wallyg.
posted by Frank Pasquale
The WSJ has a great story on a jellyfish invasion in Japanese waters:
Fisherman Ryoichi Yoshida pulled in his nets before dawn one morning, hoping for lots of yellowtail and mackerel. But the fish were overwhelmed by a heaving mass of living pink slime. The creatures, called Nomura jellyfish, can measure six feet across and weigh up to about 450 pounds.
Fish poisoned by jellyfish tentacles die with their mouths agape. That mars their appearance and reduces their value by as much as 20%. “When their mouths are wide open, it means they’ve died going, ‘I’m in pain! I’m in pain!’ ” explains Mr. Yoshida.
The jellyfish could lead to an international incident–either over Chinese industrialization, or global warming:
[A] computer model of ocean currents suggests the jellyfish are breeding off the Chinese coast near the mouth of the Yangtze River. One theory is that pollution, perhaps linked to industrialization in China, is helping create more algae in the sea. The algae are food for plankton, which is food for jellyfish. . . . [But the] dean of the Ocean University of China [says] “Floating jellyfish are mostly in the Sea of Japan….That’s Japan and Korea’s problem.”
One fear among scientists is that the creatures are multiplying in a “jellyfish spiral.” Shinichi Uye, a leading jellyfish researcher at Hiroshima University in western Japan, thinks overfishing off China has led to fewer plankton-eating fish, leaving more plankton for the jellyfish to suck up. This growing army of jellyfish then also eats fish eggs, resulting in even fewer fish.
If China is helping to generate giant pink jellyfish, it will be interesting to see if any international body can do anything to control the problem. On the other hand, the new popularity of “vanilla-and-jellyfish ice cream” shows that the industrious can turn even the most noxious pests into a blessing in disguise.
Photo Credit: Flaming Lips, Yoshimi Battles the Pink Robots.
posted by Jeffrey Lipshaw
This seems like an auspicious occasion to announce that, following in the Larry Solum model of developing a paper from blog post to short idea piece to full-blown article, I’ve posted on SSRN the complete version of what was known in a prior iteration as “Aboutness, Thingness. . . .” The last thing to go was the old title, and the second to last were the first several paragraphs of the old introduction, I suppose because the words are like children, these particular words had been around since I first put fingers to keyboard, and, if truth be known, I thought they were really clever. But these are all aspects either of self-deception or unwillingness to make choices, and who of all people inspired me but Katie Holmes (or at least her character in Wonder Boys, Hannah Green) who observed to Michael Douglas (as Grady Tripp) that writing was about making choices and he had made none in the manuscript of his second novel.
The gist of the piece, if I were to put it blog-colloquially, is how some modes of making sense of cause-and-effect, particularly in the realm of human behavior, just plain miss the boat. In natural science, an example would be trying to explain dog behavior and conditioning at the level of physiology. That level of explanation might suffice for a physiologist who is interested in measuring muscle contractions at feeding time, but it doesn’t tell the microbiologist much, nor does it do much to explain at the level of operant conditioning. In the social sciences, the distinction would be (courtesy of historian Thomas Haskell), the difference between explanatory cause and attributive cause. If you ask the thug why he beat the old man, an answer that involves neural pathways and muscular contractions may explain cause and effect at one level, but it doesn’t make sense in the same way this answer does: “because I wanted his wallet full of money.”
The part of the piece with which I had the most fun was where I applied the foregoing to the 2003 Yale Law Journal article by Alan Schwartz and Bob Scott on contract interpretation. In a nutshell (but you will have to read the piece to see why), my claim was that their mode of explanation simply missed the boat in the same explanatory versus attributive way.
The article is Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists. The abstract follows the fold.
posted by Daniel Solove
From CNN comes this bizarre story of a judge in Niagara Falls who had 46 people in his courtroom thrown into jail. Why? A cell phone rang and interrupted his court proceedings:
A judge in Niagara Falls, New York, has apologized for jailing nearly four dozen people over a ringing mobile phone in his courtroom, his attorney said Wednesday.
In removing City Court Judge Robert Restaino from office Tuesday, the state Commission on Judicial Conduct called his decision to lock up 46 people after no one claimed ownership of the phone “a gross deviation from the proper role of a judge.” . . .
“We conclude that respondent’s behavior … warrants the sanction of removal, notwithstanding his previously unblemished record on the bench and the testimony as to his character and reputation,” the panel ruled.
According to the commission report, Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device.
About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. When no one admitted to owning the phone, Restaino heard the remaining cases and then recalled the cases of defendants who had already been released to question them about the phone, according to the commission report.
After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours.
According to the report, Restaino decided to release defendants only after learning reporters were inquiring about their incarceration.
I guess inconsiderate cell phone man has met his match.
posted by Deven Desai
The Associated Press reports that after 9/11 43 so-called fusion centers were established to improve information flow in part of an anti-terrorism strategy, but according to the Government Accounting Office only two centers, one in Kansas and one in Rhode Island, focus exclusively on antiterrorism. “Other centers focus on all crimes, including drugs and gangs GAO found [sic].” As the article details the centers operate via state police or other law enforcement agencies and often are in the same buildings as federal agencies.
Perhaps most odd is that each center is supposed to be independent and not controlled by the federal government but the Bush administration now has guidelines encouraging a more general sharing of information about criminal activity under the theory that terrorists need funding and will use criminal activities as sources of income. Of course the system raises privacy concerns and even if one thought that using information gathering and sharing techniques with some reduction in privacy was justified to fight terror, the system is now being used under the theory of preventing anything that could cause harm, an immature idea.
Ironically, the article also notes that information technology problems currently hinder the ability to have a Tom Clancy-style, perfect tech center. In addition, the bureaucracy sounds like an updated version of the Keystone cops as reports are often duplicated, staff is hard to find and train, and clearances take time to process and are often not honored by federal agencies. Nonetheless, it is probably better to assume that these glitches will be reduced if not essentially eliminated and that the larger privacy issues will increase in their impact and importance as the systems become more efficient. Put differently, is there a reason to fully realize the Digital Person? For it seems that although better systems to fight crime could be a good thing in the abstract, when the threat is not a more fully realized version of an attack on our society, the sacrifice in terms of freedom is massive. One book to read on an era with similar issues is Secrecy: The American Experience by Daniel Moynihan. Its reflection on Cold War policies in the face of real threats and how the policies made little sense offer an analog to some the issues faced today in the terror context.
posted by Sarah Waldeck
Before my guest visit at Concurring Opinions ends, I want to comment on a case that received media attention in September and October: Currier v. National Board of Medical Examiners. The Massachusetts appeals court granted a preliminary injunction ordering the National Board of Medical Examiners (NBME) to allow Sophie Currier additional break time so that she could pump breast milk during a medical licensing exam. The Supreme Judicial Court denied the NBME’s request for further judicial review. This was undoubtedly a victory for Currier, but what about for other breastfeeding mothers?
Over at slate.com, Dahlia Lithwick asked why more female columnists did not comment on Currier. She speculated that women are so beaten down by the Mommy Wars that they chose to remind quiet; or that some women silently wondered why a mother of two small children would start a medical residency; or that many women believed that because they breastfed and worked without accommodation, Currier should as well. I’ve found it difficult to discuss Currier, but not for any of the reasons that Lithwick suggested. I usually applaud policies and legal results that help women balance families and careers . But here I’m concerned that Currier’s legal victory will ultimately undermine the goal of widespread accommodation of breastfeeding employees.
posted by Daniel Solove
I’m very pleased that Concurring Opinions has been selected for the ABA Journal’s Blawg 100. According to the ABA Journal’s site, it is listing “the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal.”
The ABA Journal is also asking readers to vote for their favorites on their list, and we’d be delighted if you voted for us. Click the graphic below to go to the voting page.
posted by Deven Desai
When one encounters the local, local rules, the ones that a judge may put in place just for her court, or watches the withering comments a counsel receives or worse yet suffers under such reprimands, the image of judges as irrational or dictatorial law makers seems correct. Unfortunately that image probably undercuts the deference judges deserve if not the respect the bench requires. A New York case and a Florida-based blog present some light on the topic. The New York Law Journal reports that a city judge went into a two hour tirade to find one person whose cell phone went off in his court and then took 46, yes 46, people into custody. The Commission on Judicial Conduct has recommended the judge’s removal from the bench. “‘In causing 46 individuals to be deprived of their liberty out of pique and frustration, respondent abandoned his role as a reasonable, fair jurist and instead became a petty tyrant, abusing his judicial power and placing himself above the law he was shown to administer’.” The judge in the case attributed his behavior to stress in his personal life, but only one commissioner thought the argument merited a sanction less than removal.
In Flordia the chief judge of the Broward County circuit court has stepped down in part because JAA Blog has documented the bad behaviors of judges under his supervision including “a judge arrested for smoking pot in a park, another judge making an off-color sexual remark and another judge allegedly taking a loan from a defense lawyer appearing before him.” The National Law Journal reports that several blogs in South Florida document the in courtroom and out of courtroom deeds of judges. Some argue that the blogs provide a spotlight on how the courts work and have effected change. Others note that some of the blogs allow anonymous posts “about judges routinely not showing up for work, judges and lawyers having affairs with each other and other salacious rumors.” Regardless, it appears that attorneys and judges are reading the blogs.
All of this attention on judges and courtrooms reminds me of the opening to Tarzan Lord of the Jungle the animated series by Filmation (click here for the audio file). It was a long intro but the key was “This is my domain, and I protect those who come here; for I am Tarzan, Lord of the Jungle.” A judge’s independence is supposed to be part of protecting everyone who enters the court. The examples above show that judges are after all human, but we expect them to be a little better than the average person. The blogs offer more information about acts in which judges should not engage and that could improve the bench. Yet, society’s willingness to gossip and smear almost anyone could easily further politicize the bench and interfere with the independence judges require to protect all who enter a court. At a more abstract level the trend in having more information about judges online raises privacy and autonomy concerns. Several people including Dan and his recent work The Future of Reputation examine this idea. An excellent article about the need for privacy and its relationship to autonomy is Julie Cohen’s Examined Lives: Informational Privacy and the Subject as Object which appeared in the Stanford Law Review.
[Ed. note previously I had thought the voice over for Tarzan was from the Ron Ely version of the show. A comment noted that this recollection was incorrect. The text now reflects the proper source of the memory].
posted by Jeffrey Lipshaw
Thanks so much to Dan Solove, Frank Pasquale, and the rest of the distinguished group for allowing me to sully the Concurring Opinions cyberspace.
I was all set to introduce myself with something really serious (the posting on SSRN of a new piece) when I saw Nate Oman’s post on the poetry of law. I am always humbled by Nate’s thoughts on just about anything, because he is a scholar in ways I will never be. I thought not of great poetry (but if I had it would have been Robert Burns’ great piece on lawyers, To A Louse*), but of parody, including Jeremy Telman‘s regular limerick fare over at Contract Law Prof Blog. Two weeks ago, NPR’s Morning Edition did a story on BU law prof Mark Pettit, the “singing prof,” who puts contracts cases to the tune of popular songs. Not to be outdone, I spent most of that day writing a musical (and I’d like to think, poetic) version of Pinter v. Dahl, the securities regulation chestnut we just happened to be studying. For all of the non-securities lawyers out there, this is the case in which the Supreme Court stretched to the limit the use of the English language in finding a party other than the issuer to be liable under Section 12(a)(1) of the Securities Act of 1933. And, despite the fact that (to steal a line from the Tappert Brothers, Click and Clack, of Car Talk, also on NPR) man-eating sharks lose their appetite when they hear me sing, I sang it to my class.
So without further ado, and to the tune of the theme from The Beverly Hillbillies:
Come and listen to my story bout that guy Maurice,
California boy just a-waitin’ to be fleeced.
Then one day put some money in with Bill
Out in Oklahoma where the wildcatters drill.
Oil, that is, black gold. Texas tea.
Well, the next thing you know Maurice is on the dole,
Askin’ lots of friends he knows to throw cash down the hole
Said Beej Pinter is the guy you wanna see
And they each put some money in without an SEC
Filing, that is. Form S-1.
Well, now it’s time to figure out if anyone can claim
That someone not the issuer can bear part of the blame
For selling shares unregistered with no gratuity,
To share a heapin’ helpin’ of some liability.
Section 12(a)(1) that is. 33 Act. Write a check.
Y’all invest now, hear?
The question is how many times the act got recorded on cell phones.
* “O wad some Power the giftie gie us
To see oursels as ithers see us!”
posted by Adam Kolber
Nature News reports on a study that found a correlation between certain brain wave measurements and pain intensity. The not-yet-published study will add to a growing body of neuroscience research that correlates the experience of physical pain with objective findings in brain images and other diagnostic media. This particular study was highly invasive, but a great deal of research involves non-invasive brain imaging. For example, a group of German researchers have reported finding tiny structural changes in the brain associated with chronic back pain using a technology called diffusion tensor imaging.
New pain assessment tools have tremendous potential to improve court and administrative proceedings that relate to personal injury and disability. Right now, juries are frequently called upon to assess damages for pain, even though many people exaggerate symptoms; some claims are entirely malingered. On the other hand, people can also have quite genuine claims for which they have little objective proof. And people with certain mental or motor difficulties may be incapable of telling us about the pain from which they nevertheless suffer. Juries and administrative law judges sometimes have little more to go on than hocus pocus. While we’re a long way from having technologies ready for the courtroom, it’s only a matter of time before courts are confronted with new neurotechnologies purporting to demonstrate the presence, absence, or intensity of pain symptoms.
I discuss these issues in more detail here and will present on these and other issues tomorrow at the University of Pennsylvania’s Neuroethics Talk Series.