Archive for March, 2008
posted by Frank Pasquale
Are those who are concerned about inequality really members of the “radical malcontent left?” Turns out that some of our most prosperous citizens are also affected. As David Lat at Above the Law notes, some lawyers in NYC are tired of being vastly outclassed earnings-wise by bankers–and may be happy to see a Wall Street meltdown. Lat wonders if “lawyers [will] move up a notch or two in the Gotham caste system thanks to the recession?” The NYT reports on “fantasies of New York returning to a pre-Gilded Age, before the average Manhattan apartment cost $1.4 million, SAT tutors charged $500 an hour and dinner entrees crossed the $40 threshold.”
It may seem absurd to take this kind of “relative deprivation” seriously. Nevertheless, we may be hard-wired to object to economic arrangements that grant some people vastly more than they appear to deserve–even if everyone generally is doing all right. Here’s some evidence for that proposition, which a perceptive commenter made earlier to me:
[H]uman behavior is not solely driven by material outcome; fairness and equity matter as well. In a recent neuroimaging study, fair offers led to higher happiness ratings and increased activity in several reward regions of the brain compared with unfair offers of equal monetary value. Other neuroimaging studies have similarly shown activation in reward regions in response to cooperative partners or cooperative play.
posted by Frank Pasquale
The state of Delaware has just won a major dispute with New Jersey in the Supreme Court, over a vigorous dissent by Justice Scalia. The dispute concerned New Jersey’s plan to build a “huge gas-processing plant on the Jersey side of the Delaware River.” As the NYT reports,
New Jersey has threatened to pull state pension funds from Delaware banks. Delaware officials, meanwhile, talked about calling up its National Guard to guard its border. . . . [A] New Jersey legislator wondered aloud about recommissioning the battleship New Jersey, now a museum on the Camden waterfront, just in case.
The majority agreed . . . that New Jersey could not authorize activities “beyond the exercise of ordinary and usual riparian rights in the face of contrary regulation by Delaware.” Justice Antonin Scalia . . . professed to be flabbergasted by the majority’s reasoning. What was so “extraordinary” about a wharf to unload liquefied natural gas, he asked. “Would a pink wharf, or a zig-zagged wharf qualify? How about one for the transfer of “tofu and bean sprouts”?
It all reminds me of a classic 2002 article by Jon Chait charging Delaware with persistent disregard for other states’ interests. . . .
posted by Dave Hoffman
I’m delighted to welcome Dan Kahan as a guest blogger for the month of April.
Dan is the Elizabeth K. Dollard Professor of Law at Yale Law School. In addition to risk perception, his areas of research include criminal law and evidence. Prior to coming to Yale in 1999, Professor Kahan was on the faculty of the University of Chicago Law School. He also served as a law clerk to Justice Thurgood Marshall of the U.S. Supreme Court (1990-91) and to Judge Harry Edwards of the United States Court of Appeals for the D.C. Circuit (1989-90). He received his B.A. from Middlebury College and his J.D. from Harvard University. He is a founder of the Cultural Cognition Project, and a blogger at the Situationalist and Balkinization. You can find a list of Dan’s publications here, and some working papers here.
posted by Cornell Law Review
State Courts Unbound
Frederic M. Bloom
Frances H. Foster
Katherine Y. Barnes
posted by Sam Kamin
Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.
I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:
“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”
In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.
Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.
posted by Deven Desai
New Century Financial was once the second largest subprime lender in the country. It is now in bankruptcy. Michael Missal is the chief examiner in this case and served in the same capacity on the Worldcom bankruptcy. Here is a link to the report. Warning it is a pdf and 581 pages. Apparently the report finds that then general counsel explicitly told his fellow senior managers that the lending practice of evaluating ability to pay based on teaser rates and relying on refinance bets in the following years was unsound and would result in “sticker shock.” The question has become whether he and other attorneys should have done more after such an analysis.
So Enron-type discussions will likely flow in the near future. For now I wanted to share the link to the report in case those who write in this area could use it. Still if folks have thoughts on this one or the big changes in financial regulations, please share them in the comments.
posted by Georgetown Law Journal
Wayne A. Logan
Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony
Julie E. Seaman
Molly Shaffer Van Houweling
Stitching Together the Patchwork: Burlington Northern‘s Lessons for State Whistleblower Law
Courtney J. Anderson DaCosta
Kathryn L. Einspanier
Discriminatory Condemnations and the Fair Housing Act
posted by Dave Hoffman
We’re delighted to welcome guest blogger Sam Kamin for the month of April.
Sam is an Associate Professor at the University of Denver, Sturm College of Law, where he has taught since 1999. Prior to arriving at DU, Professor Kamin received his Ph.D. from UC Berkeley’s Jurisprudence and Social Policy Program and his law degree from Berkeley’s Boalt Hall School of Law. Professor Kamin teaches Criminal Law, Criminal Procedure and Federal Courts; he has written extensively in the areas of capital punishment, privacy law, and civil rights litigation. You can find some of his research here.
posted by Daniel Solove
I’m very pleased to announce that Professor Elaine Chiu will be guest blogging with us this month. Elaine is an associate professor of law at St. John’s University School of Law. Prior to coming to St. John’s, Elaine was a Research Fellow at Columbia University School of Law from 2000-2001 and a Climenko-Thayer Teaching Fellow at Harvard Law School from 1999-2000. From 1994 to 1998, she was an Assistant District Attorney in Manhattan in the Trial Division where she specialized in both domestic violence and welfare fraud cases. She also taught as an Adjunct Professor at Yeshiva University’s Cardozo Law School as part of their legal writing and research faculty from 1998-1999.
Elaine is a cum laude graduate of Cornell University (A.B. 1991) and Columbia University School of Law (J.D. 1994) where she was a Senior Editor of the Columbia Law Review and a Harlan Fiske Stone Scholar.
Elaine writes about multiculturalism and the law, domestic violence, and criminal law. She teaches criminal law and family law. Some of her recent publications include:
* The Culture Differential in Parental Autonomy, 41 U.C. Davis L. Rev. (forthcoming 2008)
* Culture as Justification, Not Excuse, 43 American Crim. L. Rev. 1317 (Oct 2006)
* Culture in Our Midst, 17 U. Fl. J. L. & Pub. Pol’y 231 (Summer 2006)
* The Role of Motive in the Criminal Law, 8 Buff. Crim. L. Rev. 653 (2005)
posted by Daniel Solove
I’m very pleased to announce that Alice Ristroph will be returning for a reprise guest visit with us for the next month. Alice is an Associate Professor at the University of Utah, S.J. Quinney College of Law. Her research and teaching interests include contemporary penal practices, violence, political authority, and other topics in criminal law, constitutional law, and political theory. Before joining the University of Utah, Alice was an Associate in Law at Columbia and a Visiting Assistant Professor of Government at Dartmouth College. From 2002 to 2004, she was a litigation associate at Paul Weiss in New York. She has a J.D. and a Ph.D. from Harvard University.
This fall, Alice will be moving to Seton Hall Law School.
Recent publications include:
* Desert, Democracy, and Sentencing Reform, 96 J. Crim. L. & Criminology 1293 (2006)
* Sexual Punishments, 15 Colum. J. Gender & Law 139 (2006)
* Proportionality as a Theory of Limited Government, 55 Duke L.J. 263 (2005)
posted by Bruce Boyden
Washington & Lee’s revision of its third year into a practice-based curriculum has attracted a considerable amount of attention in the law prof blogs, including a fascinating post from Deven Desai below suggesting that even W&L’s program may not go far enough. Over on one of Brian Leiter’s blogs, Leiter’s post drew several interesting comments, including several from Washington & Lee faculty members and students commenting on the theory and thought process that went into the decision. My wife and I both taught at W&L as visitors last year, and while we weren’t part of this debate, I was very impressed by the school and in particular with how W&L handles its first-year curriculum to address similar concerns.
But I was most interested to read two comments critical of W&L’s effort on Leiter’s blog, the first from an anonymous correspondent of Leiter’s quoted in his post: “If 100% practice is the way to run the third year, isn’t the obvious answer to make a J.D. program a two year affair?” Sam Bagenstos followed up in the comments in a similar vein:
This seems like a low-road strategy to me. Even if we stipulate that the major goal of our pedagogy is to train lawyers … the question is what kind of lawyers are we training our students to be. The best schools have or should have as their goal training people to be outstanding lawyers (and ethical, responsible professionals?) over the course of a career. The new Washington & Lee approach, I hate to say, is more closely directed to training students to be the best first-year associates they can be. I’m quite sure that a student who goes through that program will, to coin a phrase, be “ready on day one” for the kinds of tasks that new lawyers do on day one. But I’m far less certain that a student who goes through that program will be a better lawyer over the course of a career. I doubt that law schools have much of a comparative advantage over practitioners in the kind of on-the-job, practical training that is the focus of the new W&L third year.
I believe both of these comments are profoundly mistaken. I believe it is crucial in legal education to go beyond simply asking students to read cases and instead require students to apply those lessons in practical settings. The understanding of an appellate decision that comes from simply reading and discussing a case is a hollow form of understanding. It is understanding without context, and pedagogical studies have shown that context is critical to forming long-term memories. The student cannot begin to incorporate cases or doctrines into their broader context until the practical significance of the holdings or rules is made clear.
posted by Paul Secunda
[Cross Posted on Workplace Prof Blog]
From Inside Higher Ed today:
Many professors hate grading, and like most human beings, they often put off what they don’t like. So at many colleges, the end of a term results in some proportion of the faculty turning their grades in late, much to the dismay of the registrars whose job it is to process the grades and make them available to students. The outcome can be more than just annoying to the registrars; late grades can delay diplomas, disrupt the awarding of financial aid, or get students into academic trouble . . . .
Florida State University once had a major problem with late grades, Kimberly Barber, the interim registrar there, told a large group of interested registrars and deans Wednesday at the annual meeting of the American Association of Collegiate Registrars and Admissions Officers. About a decade ago, instructors in an average of 10 to 15 percent of the 8,000 course sections Florida State offered each semester at the time missed the deadline for turning in student grades, driving registration officials there nuts. Processing grades after the end of the normal process (which formerly involved scanning, and is now entirely electronic) was costly, and forced administrators to spend significant time telling students (and parents) why they couldn’t have their transcripts or financial aid or, in extreme cases, diplomas . . . .
As Barber explained to a somewhat incredulous audience Wednesday: Florida State is what she believes to be the only institution in the country that fines its professors when they turn grades in late at semester’s end. The tab: $10 per grade.
“We charge for every grade for every student that is not turned in by our deadline,” Barber said, adding, slowly for emphasis: “I’ll say that again: Every grade for every student that is not turned in by our deadline.”
With that, the crowd broke into a wave of spontaneous applause.
First, I wonder if this applies at the FSU law school (Lesley Wexler, Dan Markel or someone else, can you confirm or deny?). Also, there may be some academic freedom issues here (I’ll leave that to the Paul Horwitz’s of the world), but what I really wonder is if this practice a violation of the Fair Labor Standards Act (FLSA) or similar state wage and hour law?
Usually, an exempt, salaried employee may not be docked for pay for work rule violations without putting their exemption at risk. In other words, docking pay may turn your salaried worker into an inadvertent hourly, non-exempt worker. Depending on how often FSU has been doing this, this might be an expensive mess that FSU doesn’t even realize and one that does not inspire applause.
Here is an explanation of the salary basis test for exemption under the FLSA from the Wage and Hour Division of the Department of Labor:
Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.
I don’t see where the grade penalty fits in, do you?
posted by Yale Law Journal
In this issue, Murad Hussain discusses his recent Note, in which he proposes that the Free Exercise Clause doctrine of “hybrid situations” be used to encourage judicial recognition of group harms resulting from “governmental burdens upon religiously motivated exercises of secular constitutional rights.” Hussain argues that this strategy could be useful to American Muslims who bear the brunt of certain forms of counterterrorism profiling.
In response, Bernadette Meyler questions the immediate impact of the strategy, but notes that it could “eventually afford judges greater insight into the harms occasioned by the governmental action at issue and encourage them to weigh these in the balance against the national security interests that they invoke.” Frederick Mark Gedicks questions whether “hybrid rights” exist at all, and even if they did, why religious groups should be “more deserving of constitutional protection” than secular ones. R. Richard Banks, however, argues that Hussain does not go far enough, especially as his theory regards “the legitimate anxiety about the judicial role that may underlie courts’ disinclination to invalidate antiterrorism measures that impose group harms.” Hussain responds to each of these authors.
posted by University of Pennsylvania Law Review
PENNumbra‘s featured works are now available at www.pennumbra.com.
Susan A. Bandes, Peter H. Huang, and Michael Stocker each respond to Dan M. Kahan’s Two Conceptions of Emotion in Risk Regulation, 156 U. Pa. L. Rev. 741 (2008). In his article, Professor Kahan mainly examines two competing theories of risk perception, the “irrational weigher” theory and the “cultural evaluator theory.” Kahan prefers the latter theory, which suggests, in part, that “individuals are cognitively motivated to reject information about risk when they perceive that accepting it would threaten their defining group commitments.” He argues that “[t]o avoid this reaction . . . information about risks must be framed in a way that affirms rather than denigrates recipients’ cultural identities . . . .”
posted by Deven Desai
As Mike Madison has noted almost two years ago, in general innovations in law school curriculum have not kept pace with business schools. That may be changing.
Washington & Lee has made a splash by changing its curriculum to an experiential model. Irvine says it will embrace it. Vanderbilt, not to mention Harvard, University of New Mexico, Georgetown and others have versions of the idea in place. (Note that Northeastern’s Co-Op system has used an experienced-based approach for some time). These shifts may open the door to even more innovation. Still, underlying this move is a fundamental question: What should a law school be?
Many views can drive the analysis. Law firms, clients, students, and law faculties all have opinions on the matter. One answer is seen in a comment to Leiter’s post about W&L. The idea seems to be that a law student will be ready to practice on day one. In other words there seems to be a training gap. Law firms and clients want first year associates to be ready to go. Indeed, law practice might be shifting. As I noted before, some firms have changed how they handle first year associates by reducing or eliminating the billable hour requirement as way to improve associate retention. In its place comes a requirement to shadow associates and partners as a way to learn the job. Part of this change comes from large corporate clients who refuse to pay to train first year associates.
So law firms might be happier if students were fully trained. Clients have much the same view. Students are in the same place. Yet these demands may be irrational. A reflection on medical education helps see why. There is much to say regarding the way the two professions differ and how training varies. For now one reflect on these points. Medical students graduate with more debt than law students, enter residencies of about three to seven years at around $40,000/year, and then are fully trained to be in practice (note: a true general practice doctor takes one year of training though such physicians are increasingly rare).
Yes, I am suggesting that the idea that medical students’ clinical work is vastly superior to the externships, clinics, and the like that many law students undertake is a myth. Medical school may be more formal about these issues, but it is not a substitute for the internship and residency years. None of these points argues that law schools cannot improve these opportunities and their curriculum. Indeed, insofar as these changes will improve how the law is taught I applaud and hope to be part of them. Still, the point is to what end?
In short, a demand that law schools train a law student so that future employers will not have to train them is odd, for few, if any, professional schools operate on this model. Yet there may be a solution: a teaching law firm. Such a firm would have live cases and full time attorneys who teach as part of their jobs much like medical professors at teaching hospitals. Indeed, I believe there is a labor pool that would like such a position (think: of counsels). Ironically, big firms, small firms, and students may not like such an institution.
A teaching law firm will be a competitor. In some cases it may take on the high-profile cases of that a big firm might. In others, it may take on cases that solo and small firms might take. Students may not be pleased as they may be making less for the first few years. (Of course often one career path is to take a position with a D.A. or P.D., be paid a decent amount compared to a medical resident, be trained along the way, and then go to private practice for the big money).
Overall, however, insofar as there are gaps in service be they in public or private sector areas (i.e. more megafirms and more solo firms with fewer middle-sized firms able to help the business and legal needs of individuals and small businesses), a teaching law firm could fill that gap. Each firm would be able to meet market needs in the region. Furthermore, it may generate capital that could reduce fees for law school.
The possibilities are present. Will a law school take the chance and start one or affiliate with an existing practice? I think someone will in the near future. More on this idea and the general issue of legal education later.
Image 1: WikiCommons
License: Public Domain
Image 2: Wikicommons
License: GNU Free Documentation license, Version 1.2
cross-posted at Madisonian
Hat Tip and thanks: Mike Madison, Mike Carroll, Frank Pasquale, and Al Brophy have all induged me with time and feedback as I thought through these ideas. So I offer my thanks.
posted by Boston College Law Review
Boston College Law Review, Issue 49:2 (March 2008)
Jonathan H. Adler, Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land Use Controls, 49 B.C. L. Rev. 301 (2008) [PDF]
Nancy Levit, Megacases, Diversity, and the Elusive Goal of Workplace Reform, 49 B.C. L. Rev. 367 (2008) [PDF]
A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. Rev. 431 (2008) [PDF]
Courtney P. Fain, What’s in a Name? The Worrisome Interchange of Juvenile “Adjudications” with Criminal “Convictions”, 49 B.C. L. Rev. 495 (2008) [PDF]
Jessica L. Lambert, Developing a Legal Framework for Resolving Disputes Between “Adoptive Parents” of Frozen Embryos: A Comparison to Resolutions of Divorce Disputes Between Progenitors, 49 B.C. L. Rev. 529 (2008) [PDF]
William Trunk, The Scourge of Contextualism: Ceremonial Deism and the Establishment Clause, 49 B.C. L. Rev. 571 (2008) [PDF]
posted by Daniel Solove
Last month, Yale University Press allowed me to put my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet online for free. The experiment has gone quite well. The book’s website received a big bump in traffic, with many people downloading one or more chapters. The book’s sales picked up for several weeks after it was placed online for free. Sales have now returned to about the same level as before the book went online.
I’m delighted to announce that NYU Press has allowed me to put my book, The Digital Person: Technology and Privacy in the Information Age (NYU Press, 2004) online for free.
Here’s a brief synopsis of The Digital Person from the book jacket:
Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. These databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases–which Daniel J. Solove calls “digital dossiers”–has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.
Digital dossiers impact many aspects of our lives. For example, they increase our vulnerability to identity theft, a serious crime that has been escalating at an alarming rate. Moreover, since September 11th, the government has been tapping into vast stores of information collected by businesses and using it to profile people for criminal or terrorist activity. In THE DIGITAL PERSON, Solove engages in a fascinating discussion of timely privacy issues such as spyware, web bugs, data mining, the USA-Patriot Act, and airline passenger profiling.
THE DIGITAL PERSON not only explores these problems, but provides a compelling account of how we can respond to them. Using a wide variety of sources, including history, philosophy, and literature, Solove sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.
Book reviews are collected here.
March 27, 2008 at 12:08 am Posted in: Articles and Books, Book Reviews, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (National Security) Print This Post No Comments
posted by Frank Pasquale
I recently heard from a colleague of Maxwell L. Stearns that he and Todd J. Zywicki are seeking comments on their draft of a new cousebook, Public Choice Concepts and Applications in Law (which is presently scheduled for publication in the fall 2009 with West Publishing). Here’s an excerpt of a letter they’ve sent out:
The book is designed for classroom instruction either as a complete course in public choice and the law or as a complement to, or substitute for, a traditional course in law and economics. Because we have one full year prior to submission to the publisher (the manuscript is due in late March 2009), we are writing now to see if you might be interested in a pre-publication adoption of the present manuscript, either to teach in the fall 2008 or spring 2009 term (essentially either term in the upcoming academic year).
Dean Saul Levmore has also just completed a course using these materials at University of Chicago School of Law. Each of us has thoroughly enjoyed teaching with these materials and is enthusiastic about the book and the value of using it in the classroom. Given that this will be the only book of its type in the market, we are very interested finding professors willing to teach with these materials prior to publication and to provide us with valuable feedback on such matters as scope, organization, and presentation. . . . Even if you choose not to teach this course at this time, we still encourage your review of the materials and any comments that you are able to provide
I think it’s a very good idea to make texts like these “open to comment” from members of the broader legal community. I look forward to the further development of web based “communities of interest” around coursebooks, where profs can share teaching tips, illustrative materials, and other instructional materials. More details on this particular project below the fold. . .
posted by Daniel Solove
Over at TaxProf blog, Paul Caron has posted his annual list of law teaching fellowships, with links to the websites.
posted by Jeffrey Lipshaw
Over at Conglomerate, Gordon Smith has a quick and dirty analysis of the just-filed lawsuit in which pension fund shareholders (Wayne County, Michigan and the Detroit Police and Fire Retirement Funds) seek to enjoin the proposed (and amended) Bear Stearns – J.P. Morgan Chase deal. As does Larry Ribstein at Ideoblog. One of Larry’s points is that companies can avoid this kind of mess by selecting an organization form that simply excises the kinds of the duties that are the basis for the litigation. The prime example of this is Blackstone’s publicly-traded partnership, in which the disclosures are belt-and-suspenders clear that the unit holders have waived just about anything it’s possible to waive.
These latter investments are, in some respects, beyond the law. You buy them because you believe the managers’ interests are completely aligned with the equity owners, or because you believe, in a consequentialist way, that managers will do the right thing because they can’t afford not to. Indeed, the WSJ has an article this morning about the unchecked ability of Blackstone’s managers to set their own compensation, something with which this unit holder has no problem, according to the WSJ:
“I don’t have any problem with their compensation system,” says Robert Olstein, head of Olstein Capital Management, which owns 1.4 million Blackstone units. “These guys are the crème de la crème. If they make money, I make money.”