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Computers, Freedom, and Privacy

I just wanted to announce that the preliminary program for the 2008 Computers, Freedom, and Privacy Conference (in New Haven, CT) has been announced. The theme this year is "Technology Policy '08," and it includes several topical panels for the election year:

Presidential Technology Policy: Priorities for the Next Executive
States as Incubators of Change
Activism and Education Using Social Networks
Network Neutrality: Beyond the Slogans

Discounted early bird registration closes this Friday, but general registration is open until 5/23. The conference is also looking for bloggers!

Posted by Frank_Pasquale at 05:54 PM | Comments (0) | TrackBack

Context for the Voter ID Case: Machines Old and New

Having written compellingly on the topic, Rick Hasen has a good roundup of materials on the recent Voter ID case decision. John Fund (via Jonathan Adler at the VC) suggests that Justice Stevens's experience with the Daly machine may have led him to be sympathetic to fraud-prevention measures. It strikes me that more recent history provides just as (or perhaps more) relevant context for deciding the case. Consider this excerpt from Steven Rosenfeld's essay in the book Loser Take All:

The Brennan Center for Justice at New York University Law School has found that 25% of adult African-Americans, 15% of adults earning below $35,000 annually, and 18% of seniors over sixty-five do not possess government-issued photo ID. . . .

Jim Crow has returned to American elections, only in the twenty-first century, instead of men in white robes or a barrel-chested sheriff menacingly patrolling voting precincts, we are more likely to see a lawyer carrying a folder filled with briefing papers and proposed legislation about "voter fraud" and other measures to supposedly protect the sanctity of the vote. . . .

While various studies -- such as a 2006 Election Assistance Commission report by Tova Andrea Wang and Job Serebrov, and a 2007 study by Lorraine Minnite of Barnard College -- have found modern claims of a voter fraud "crisis" to be unfounded, that has not stopped states from adopting remedies that impose burdens across their electorate and on voter registration organizations. "Across the country, voter identification laws have become a partisan mess," Loyola University Law Professor Richard Hasen said in an Oct. 24, 2006 Slate.com column. . .

***

According to a Brennan Center and Lawyers' Committee for Civil Rights Under Law report, there were four "connected pieces of strategy" to politicize the enforcement of voting rights by the Department of Justice from 2004 through 2007: "fomenting fear of voter fraud;" "dismantling the infrastructure of Justice;" "restricting registration and voting;" and "politically motivated prosecutions." . . .

[In 2004,] thousands of African-Americans wait[ed] for hours outside in a cold rain to vote the previous November in Ohio's inner cities. Many elected Democrats and voting rights attorneys saw the delays as intentional voter suppression resulting from partisan election administration. To some, it stirred memories of the segregated south.

I'm glad Justice Stevens has a long historical memory--perhaps that's the upside of an aging Supreme Court. But current events are key here. With the recent Voter ID case, the old Ely-an ideal of a "representation-reinforcing" Supreme Court takes one more step into the twilight.

Photo Credit: Uncounted: The Movie.

UPDATE: For the case's privacy implications, check out Bill McGeveran here; for the inadequacy of current remedial schemes, see Howard Wasserman.

Posted by Frank_Pasquale at 04:36 PM | Comments (0) | TrackBack

What is Comparative Constitutional Law?

Much of my blogging this next month will be about the field of comparative constitutional law. What is the field? What projects are people working on in the field? What does it matter?

For now, though, I wanted to write one brief thought that has occurred to me as I have taught my comparative constitutional law class at GW the past two spring semesters: Is comparative constitutional law just an example of constitutional theory or constitutional design?

Some parts of comparative constitutional scholarship help us understand a particular country more, perhaps. So, if you have something interesting to say about the German Basic Law, that might help us understand Germany a little more than we did previously. This is particularly so if perhaps we compare the German Basic Law and the American Constitution, assess their differences, and through this assessment we gain a better understanding of both countries.

But part of what comparing constitutions does is force us to ask first-order questions about constitutions--what they are and what they should do. If one country uses abstract review, and one country uses concrete review, we can compare their experiences, and see how different systems of judicial review operate, which countries each system works best for, and so on. This is partly about comparing countries, but just as much it is about having more data points about how different constitutional regimes work. There is nothing necessarily "comparative" about this--perhaps, then, there is just something more systematic about it than other forms of scholarship, and that might be what comparative constitutional law can contribute to constitutional scholarship--a more empirically informed version of answering some of the same questions.

Posted by David_Fontana at 01:46 PM | Comments (6) | TrackBack

The Yale Law Journal Pocket Part: How “Swingers” Might Save Hollywood from a Federal Pornography Statute

“Section 2257 of title 18 of the U.S. Code requires that ‘producers’ of photographs and films of ‘actual sexually explicit conduct’ create and maintain records documenting the age of the performers depicted in those performances. The statute’s purpose is to ensure that the performers are not minors. This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For over two decades, the statute has withstood numerous constitutional challenges by the adult film industry and civil libertarian organizations. On October 23, 2007, however, the U.S. Court of Appeals for the Sixth Circuit held that § 2257 was overbroad on its face and therefore unconstitutional.”

This week The Pocket Part takes a look at how this case, recently vacated for rehearing, could impact the free speech claims of the adult and mainstream entertainment industry in addition to the constitutional rights of individual adults that engage in private conduct implicated by the record keeping requirement of § 2257.

Posted by LR_Yale at 01:09 PM | Comments (1) | TrackBack

Science, Math, and the Essence of All Things

Last week Thomas Jefferson had Professor James Hackney of Northeastern University School of Law as our last speaker in our colloquium series. His talk focused on his book, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (featured at this past year’s AALS conference) and about his next steps on this topic. The book traces the way that science lurks behind the law and how law and economics has used the appearance of a scientific approach to justify its claims on jurisprudence. As the book’s site puts it “Hackney demonstrates how legal-economic thought has been affected by the prevailing philosophical ideas about objectivity, which have in turn evolved in response to groundbreaking scientific discoveries.” Now Science News reports that the June issue of the European Mathematical Society Newsletter has a debate over whether “new mathematical truths discovered or invented?” (annoyingly, the link to the Newsletter does not have the recent issue available as yet)

According to ScienceNews, one of the participants, Rueben Hersh of the University of New Mexico, “rejects the Platonic view, arguing instead that mathematics is a product of human culture, not fundamentally different from other human creations like music or law or money.” So as Hackney’s work makes a case that law and economics is not as objective as it seems, this group of articles about math suggests that even the science (or here related math) that provides the cover Hackney describes, lacks the objectivity it claims. The recent work on governance by Robert Ahdieh, Orly Lobel, and Mike Madison among others may be a response to the idea that law is not so objective. Rather it may be that the law seeks objectivity but faces complex and less than ideal situations. Governance ideas may fill that gap. We shall see.

Image: Title page of the second edition of Nicolaus Copernicus' De revolutionibus orbium coelestium, printed 1566
Source: WikiCommons
License: Public Domain

cross-posted at Madisonian

Posted by Deven_Desai at 12:08 PM | Comments (9) | TrackBack

Welcome Guest Blogger William Birdthistle

I'm pleased to welcome William Birdthistle, of Chicago-Kent, as a guest-blogger this month.

William is an assistant professor in his second year at Chicago-Kent, where he teaches Business Organizations, Securities Regulation, and International Business Transactions. His primary research interest is in collective investment vehicles, such as mutual funds, exchange-traded funds, private equity funds, and hedge funds. Previously, he spent several years practicing at Ropes & Gray in Boston, where he was a corporate associate in their investment management division. He clerked for Judge Diarmuid O’Scannlain on the Ninth Circuit after receiving a bachelor’s degree from Duke University and a J.D. from Harvard Law School.

Aside from his academic pieces, which you can find here, William has also written book reviews and op-eds for the Wall Street Journal, Chicago Tribune, and Christian Science Monitor.

Selected Publications:

The Fortunes & Foibles of Exchange-Traded Funds, 33 Delaware Journal of Corporate Law (forthcoming 2008)

Football Most Foul, Green Bag 2d, Vol. 10, No. 2, pp. 159-172, Winter 2007

Compensating Power: An Analysis of Rents and Rewards in the Mutual Fund Industry, 80 Tulane Law Review 1401 (2006)

The Bejaysus Factory, Wall Street Journal, Dec. 13, 2002, at W1

Posted by hoffman at 09:29 AM | Comments (0) | TrackBack

Crawford and ID Creep

Thanks to the Concurring Opinions gang for inviting me back for another visit!

I will leave it to the likes of the incredible Rick Hasen and SCOTUSBlog's Lyle Deniston -- among many, many others -- to talk about the important election law elements of Monday's Supreme Court decision on voter identification in Crawford v. Marion County Election Board. But if you are a hammer everything is a nail, and if you are a privacy scholar every newspaper story is about privacy. And the privacy implications here are rather clear.

Quite appropriately, the case was briefed, argued, and decided on the basis of the burden that Indiana's identification requirements placed (or didn't place) on the right to vote. The seminal cases were Harper v. Virginia Board of Elections, which held the poll tax unconstitutional, and its progeny. Other key sources cited in the opinions included the Carter-Baker Commission report and two recent federal electoral reform statutes, the motor voter law and the Help America Vote Act. The burdens considered by both the lead opinion and the dissents were pragmatic ones, largely monetary cost and inconvenience.

What about privacy burdens?

Election law doctrine does not leave much room for their consideration. In other contexts, identification requirements are viewed as potential privacy intrusions. The continuing controversy and the backlash in state legislatures against the federal Real ID Act (see, e.g., here and here) is one such area. Likewise, the 2004 decision in Hiibel, though it upheld state "stop-and-identify" laws allowing police officers to demand that a suspect disclose his or her name, was also analyzed primarily as a privacy issue.

But in Crawford, there is no mention of the privacy impact of turning voting into yet another important activity that you cannot accomplish without "showing your papers." And since it is now basically impossible to board an aircraft, enter a federal building, or cash a check without showing ID, voter ID requirements become just another event in an accelerating trend toward an ID society.

I'm not necessarily saying that Crawford was wrongly decided. But it is remarkable that "ID creep" has played such a small role in both the legal argument and the news coverage related to this controversial case. Indeed, I suspect that crabwise movement toward a de facto ID requirement, through individual rules that necessitate ID in more and more settings, is worse than a straightforward debate on a national ID card. Great Britain is going through that debate now (see, e.g., here and here); if the end result is a true national ID then at least all the arguments for and against will be fully aired. Just a thought.

[Cross-posted at Info/Law.]

Posted by William_McGeveran at 10:46 PM | Comments (8) | TrackBack

Remember Invisible Ink? How About Vanishing Ink?

CNET reports that PARC (formerly Xerox Parc) the folks who have had a large hand in "laser printing, distributed computing and Ethernet, the graphical user interface (GUI), object-oriented programming, and ubiquitous computing" have invented vanishing ink. For those interested in the environmental side of things, it seems that making ONE SHEET of paper requires "about 204,000 joules" or "about the same amount of power required to run a 60-watt light bulb for an hour." Recycling the paper requires "about 114,000 joules." Printing on either new or recycled paper takes about another 2,000 joules.

If PARC's technology is successful, the ink fades out in 16 to 24 hours. One can then reuse the paper. If one wants to run the paper through the printer before the ink has vanished, the printer can erase it. Here's the key: erasing and printing requires about 1,000 joules; so half the energy of printing in general. Using the vanishing ink to print on blank paper requires only 100 joules.

So think about the menus, memos, maps, etc. that we use and then discard or recycle depending on whether a recycle bin is available. Now the paper can be reused. The energy cost of using obtaining a usable, blank paper is incurred once. And if one waits to print, the energy cost is even less. There is, however, a possible catch here: "The paper and the printer will be a little bit more expensive than their conventional counterparts." So what is a little bit? Who knows? Given how expensive printing is right now this whole thing could simply shift money from energy to toner.

Still there are some things about PARC's development that make it interesting from a law and policy perspective as well. PARC's success stories are famous in part because PARC was not so great at making money on them (that GUI you use is one of them). Still, Xerox's committment to a think tank where people ponder the future and pursue basic science "to create 'the architecture of information'" seems to have paid off. In its current incarnation (it is now a whooly owned subsidiary of Xerox), PARC seems to be a bit more focused on licensing and the like. Yet, it had tremendous success before that focus was in place. So are the incentives that are often offered to explain innovation really the full story? PARC's history seems to be an example of a more realistic approach. The business managers at Xerox set up a place which fostered an increase in the number of possible innovations. In some cases, they capitalized on them and in some they did not.

Research purely directed at capitalizing on an invention is limited research. It can of course yield great returns. Still in the words of William Goldman, "Nobody knows anything."

Goldman said that to explain the lie that movie executives know what will be a hit. So too for truly ground breaking or "think outside the box" work. One might argue that the innovator who runs against the current cool way of thinking and doing will naturally be missed by the mainstream because the work is so new that many don't see or understand the work for what it is. (I think Kuhn goes into this idea but someone correct me if I am wrong please). As Frischmann and Lemley have investigated in their piece Spillovers (Polk Wagner has looked at the idea as well and both draw on Kenneth Arrow's work), we should think about creating environments that generate spillovers.

So PARC has recently focused on clean tech and energy. This move did not occur in a vaccuum. Society indicated an interest in energy and the environment. PARC has begun to think about the issue and will of course try to make some money from its work. Still, it may be that PARC will stay with its system of setting a general goal and seeing where the scientists go with it. If Xerox can make money in house it will. If Xerox is better off licensing the technology, it will do that. The question is what will happen if the technology has no clear, immediate purpose? Will it rot somewhere? Will PARC tag it with a patent and try and stop the next Apple from taking something that PARC and/or Xerox don't know how to use? That move would be a way to address the problem of not seeing where the technology applies (remember nobody knows anything), but in a way that says its our ball and no gets to play. All of which brings me the question of time. Perhaps it is the best lever for intellectual property. By keeping the duration of an IP right short, one can at least ensure that works are available for others to play with. Let enough people tinker and something really great may come out like Wikipedia. Keep information locked down, and the innovative cycle is more likely to be stunted. Put differently, as the rest of the world enters the innovation game, maintaining a more nimble system that generates large amounts of creation may be just as, if not more, important than the intellectual property claims that will go with that creation.

Image: Aerial Shot of Silicon Valley and surrounding area
Source: WikiCommons

cross-posted at Madisonian

Posted by Deven_Desai at 12:25 PM | Comments (5) | TrackBack

Fantasy Authors, Tax Policy & Veil Piercing

Pat Rothfuss, author of the best-selling fantasy novel "The Name of the Wind," and an interviewee in my "Law and Hard Fantasy" series, has a post up on his blog ruminating about tax policy and incorporation.

Up until this year, I've always gotten money back because I've lived well below the poverty line. This year, I got to give them money. It was, as they say, more fun than getting kicked in the throat. Mostly.

Don't get me wrong, I'm not against taxes. Everyone loves to bitch about them, but taxes pay for schools, and roads, and snowplows, and sewage treatment plants. My friends have a son who is autistic, and the government helps them by bringing in well-trained people.

These things are important. If that's all my taxes went toward, I would pay them gladly. I would sing a song while writing out the check.

However, we all know that's not the case.

So, under the advice of several wise people, I've decided to start a corporation. This is supposed to prevent the government from taking quite as big a bite out of my ass for next year's taxes.

It doesn't seem right, honestly. The corporation is just me: I own it. And this corporation (let's call it Me-corp) will be employing me. That, apparently, is different from being actually self-employed. Sorry? What? How does that work?

I guess what it comes down to is that the government is really, really dumb. Dumb enough so that if I put on sock on one of my hands and use it as a puppet, it will be convinced that the puppet is actually paying the taxes, not me.

But I'm not above exploiting a loophole in the system. So all that remains is to figure out what to call this corporation. I having trouble picking a name. Names are important things, you know. They tell you a great deal about a... a corporation.

I'm not an expert in tax law, so I'll leave discussion of the income-sheltering aspects of this structure to the experts, but I know something about corporate veil piercing. And I'll just say that calling a corporation a "puppet" would seem to make it less likely that a court would consider it a bona fide entity for the purpose of shielding a shareholder's personal assets in any suit against Me.corp.

Posted by hoffman at 10:02 AM | Comments (2) | TrackBack

Kevin Phillips on Money Politics

What explains the simultaneously record-low approval ratings of a President and the very-low approval ratings of a Congress controlled by his political enemies? One simple answer is that a party without 60 votes in the Senate does not actually control Congress, as this Lithwick piece on the filibuster of the Lilly Ledbetter Fair Pay Act makes clear. But Kevin Phillips's new book Bad Money suggests a darker possibility:

Most office holders on both sides seem to rest easier if everyone stays away from uncomfortable themes, even ones in the headlines, like costly U.S. overreach in the Middle East; the reckless expansion of private debt, as well as the federal budget deficit variety; the new economic (and political) dominance of the financial sector; and the mounting probability that the nation will have to choose between desirable energy supplies and global warming measures. . . .

Washington, D.C., Ottawa, and Canberra. . . have become shorthand in their respective electorates for (1) metropolitan areas with strikingly high (and recession-resistant) per capita incomes; and (2) hothouses of seething interest-group concentration where elected representatives, shedding whatever grassroots fealty they may once have possessed, often train to retire after ten or twelve years to triple or even quintuple their salaries by becoming lobbyists. . . .

[T]he United States has progressed to a new kind of interest-group influence: the simultaneous entrenchment in Washington of the used-up, don't-want-to-go-back-to-Peoria elites of both major parties. This electoral duopoly is in turn protected by various state and federal election and campaign-finance laws that make it hard for new parties to take hold or flourish. It's not that there aren't differences between the parties; it's just that they are limited differences and ones often reflecting cultural polarization.

So what's next, in Phillips's view? Here's a summation drawn from a positive review of Bad Money:

"My summation," Phillips writes, "is that American financial capitalism, at a pivotal period in the nation's history, cavalierly ventured a multiple gamble: first, financializing a hitherto more diversified U.S. economy; second, using massive quantities of debt and leverage to do so; third, following up a stock market bubble with an even larger housing and mortgage credit bubble; fourth, roughly quadrupling U.S. credit-market debt between 1987 and 2007, a scale of excess that historically unwinds; and fifth, consummating these events with a mixed fireworks of dishonesty, incompetence and quantitative negligence."

Phillips bases those worries on, among other things, the fact that over "three decades, financial services have expanded from 11% of America's gross domestic product to a record 21%, while manufacturing has declined from 25% to 13%." I look forward to reading the book to seeing how he critiques these comparative numbers (a theorist like Richard Rosencrance would likely see a rise in financialization as a good thing). But given the current crises in food, oil, and even some water supplies, and the extraordinary unemployment greater globalization could bring to the US, a more autarkic economy may have to be "on the table" for serious policy analysts.

Posted by Frank_Pasquale at 09:03 AM | Comments (0) | TrackBack

Eagles Sue T.O.

The Philadelphia Eagles have sued Terrell Owens to force him to repay nearly $770,000 in bonus money that an arbitrator determined that he owes the team. I downloaded the complaint, given my long-standing interest in this particular contract dispute. Turns out, it looks like a relatively routine request to enforce an arbitration award, rendered in January 2008.

Still, the clerks for Judge Tucker must be hoping that there are enough unexpected and interesting legal issues in the suit to merit at least one appearance by T.O. in the courtroom. (I'd imagine that his sharpie maneuver wouldn't play all that well in federal court, but you never know, signatures sometimes really matter.)

Posted by hoffman at 01:28 AM | Comments (0) | TrackBack

Fordham Law Review, Issue 76:5 (April 2008)

Fordham Law Review, Issue 76:5 (April 2008)
(Contents of past issues are available at our website)

ESSAY

Melissa B. Jacoby, Home Ownership Risk Beyond a Subprime Crisis: The Role of Delinquency Management, 76 Fordham L. Rev. 2261 (2008).

ARTICLES

John Bronsteen, Brendan S. Maher & Peter K. Stris, ERISA, Agency Costs, and the Future of Health Care in the United States, 76 Fordham L. Rev. 2297 (2008).

Kevin K. Washburn, Restoring the Grand Jury, 76 Fordham L. Rev. 2333 (2008).

NOTES

Gregory Apgar, Prudential Standing Limitations on Lanham Act False Advertising Claims, 76 Fordham L. Rev. 2389 (2008).

Jennifer A. Gniady, Regulating Direct-to-Consumer Genetic Testing: Protecting the Consumer Without Quashing a Medical Revolution, 76 Fordham L. Rev. 2429 (2008).

Amanda L. Houle, From T-Shirts to Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech?, 76 Fordham L. Rev. 2477 (2008).

Lauren E. Sasser, Waiting in Immigration Limbo: The Federal Court Split over Suits to Compel Action on Stalled Adjustment of Status Applications, 76 Fordham L. Rev. 2511 (2008).

James M. Shea, Jr., Who Is at the Table? Interpreting Disclosure Requirements for Ad Hoc Groups of Institutional Investors Under Federal Rule of Bankruptcy Procedure 2019, 76 Fordham L. Rev. 2561 (2008).

Andrew V. Trask, “Obvious to Try”: A Proper Patentability Standard in the Pharmaceutical Arts?, 76 Fordham L. Rev. 2625 (2008).

Posted by LR_Fordham at 08:59 PM | Comments (0) | TrackBack

Fordham Law Review, Issue 76:4 (March 2008)

Fordham Law Review, Issue 76:4 (March 2008)
(Contents of past issues are available at our website)

ESSAY

Judith S. Kaye & Anne C. Reddy, The Progress of Women Lawyers at Big Firms: Steadied or Simply Studied?, 76 Fordham L. Rev. 1941 (2008).

ARTICLES

Robert P. Bartlett III, Taking Finance Seriously: How Debt Financing Distorts Bidding Outcomes in Corporate Takeovers, 76 Fordham L. Rev. 1975 (2008).

Roger A. Fairfax, Jr., Harmless Constitutional Error and the Institutional Significance of the Jury, 76 Fordham L. Rev. 2027 (2008).

NOTES

Frank D'Angelo, Turf Wars: Street Gangs and the Outer Limits of RICO's "Affecting Commerce" Requirement, 76 Fordham L. Rev. 2075 (2008).

George A. Mocsary, Explaining Away the Obvious: The Infeasibility of Characterizing the Second Amendment as a Nonindividual Right, 76 Fordham L. Rev. 2113 (2008).

Amanda Sue Nichols, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausability Pleading Standard of Bell Atlantic v. Twombly?, 76 Fordham L. Rev. 2177 (2008).

Katherine A. Rocco, Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure: In the Interest of Full Disclosure?, 76 Fordham L. Rev. 2227 (2008).

Posted by LR_Fordham at 08:36 PM | Comments (0) | TrackBack

One more thought on methods of execution

Medellin v. Texas is the recently decided case involving a Mexican national on death row in Texas and a dispute about when the international commitments of the country as a whole bind individual states within it. In particular, one of the key questions was whether a decision by the International Court of Justice was “self-executing,” or if instead further Congressional action would be required to impose obligations on the state of Texas. (The U.S. Supreme Court decided that the ICJ judgment was not self-executing.) After the Court announced its opinion, a colleague said to me, “Of course, none of this would be a problem if we only had self-executing prisoners.”

Gallows humor, literally. Interestingly, though, self-executing prisoners are not entirely unknown to history. As made famous by Socrates, hemlock was a standard method of execution for a time in ancient Athens: the condemned would be presented with a cup of hemlock and “persuaded” to drink it. Hemlock stands in stark contrast to the other methods of execution reported in Danielle Allen’s study of Athenian punishment: stoning, death by sword, and a form of suffocation or crucifixion in which the prisoner was attached to a board by iron collars. Unlike these gruesome and starkly physical punishments, hemlock seemed to preserve the bodily integrity of the citizen and avoided bloodspilling. It may have also been attractive as a means to preserve at least the image of consent: the executioners and other Athenians could claim that the condemned person consented to be punished.

Now, it’s plausible that the historical Socrates actually consented to self-execution. (He was 70 years old, and by some accounts had something of a death-wish.) But the limited available evidence suggests that most Athenians who swallowed hemlock did so only to avoid a more painful and bloody alternative. And no one pretends that Texas could solve a problem like Medellin just by offering him a lethal cocktail instead of strapping him down and injecting him with one. (I say a little more about Socrates and hemlock, and a lot more about the nonconsensual nature of punishment, in Respect and Resistance in Punishment Theory.)

In contemporary discussions of the death penalty, some seem to believe that it is especially important that the state kill the prisoner rather than the prisoner kill himself (or die of natural causes--thanks to Doug Berman for this link). When Gary Gilmore was on death row in Utah, he overdosed on drugs that his girlfriend had smuggled into the prison. State officials rushed him to the hospital, pumped his stomach, and only later—once he’d been brought back to health—executed him.

Allen’s book reports that those who introduced hemlock to Athens also moved executions out of the public view and behind prison doors. Not only was no blood spilled, but the public couldn’t witness any bullying that was required to make the prisoner “consent” to poison himself. Hemlock, possibly the first effort to introduce a humane method of execution, appears to have been part of a broader campaign to make punishment more palatable by disguising it and removing it from public scrutiny.

All of this makes me wonder if there aren’t some complicated political side effects to campaigns to ensure humane methods of execution. It’s been argued, and not just by me, that special legal procedures in capital trials might actually entrench support for capital punishment by giving it the appearance of orderliness, predictability, and rationality. Might a new jurisprudence of execution methods do the same thing?

Of course, opponents to the death penalty are usually pursuing many different goals. It’s rational to hope that the death penalty is abolished, and at the same time to try to ensure that as long as capital punishment is legal, it take place in the most humane way possible. But it’s worth noticing that success on one front might undermine progress on the other.

Posted by Alice_Ristroph at 06:10 PM | Comments (1) | TrackBack

Thank You

Thank you to Dan for his very kind introduction, and for giving me the opportunity to blog here for the next month. I hope to talk about a bunch of things, from the Supreme Court in the war on terror, to a few recent developments in comparative constitutional law, to a host of other topics. I hope it is a fun month!

Posted by David_Fontana at 05:08 PM | Comments (0) | TrackBack

April Responses

PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to two articles from the print edition of the Law Review.

John Gardner and R.A. Duff both respond to Michael S. Moore’s Causing, Aiding, and the Superfluity of Accomplice Liability. In his article, Professor Moore rejects the notion that a separate desert basis must be created for accomplice liability, by focusing on the actus reus of accomplice liability and asking “what does one have to do in order to be an accomplice to someone else’s crime?”

Professor Gardner, in his Response, Moore on Complicity and Causality, notes that, though he and Professor Moore agree “that causal wrongs exist,” they “part company [when they] turn to the question of which moral and legal wrongs are causal wrongs.” Gardner argues that “the wrongs of accomplices are all causal wrongs,” in that “aiding, abetting, and counseling are all straightforward ways of making a causal contribution to the wrongs that are aided, abetted, or counseled.” Gardner argues for a view of accomplice liability that incorporates “causal pluralism,” or that “causing something is not the only way of making a causal contribution” to an outcome. Human agency, Gardner asserts, involves a causal complexity that is “not visible to the experimental sciences,” and that this difference “explains both the significance and the importance of causal contributions that are distinguished, causally distinguished, with respect to their directedness and indirectedness.” He concludes that “the types of causal contributions made by accomplices to and through the acts of their principals vary” in ways that Moore’s account fails to provide for.

Professor Duff, in his Response, Is Accomplice Liability Superfluous?, explores the “third and fourth desert bases Moore identifies” and argues “that there is still some room for a distinctive doctrine of complicity and thus for accomplice liability as a distinctive type of liability.” Duff focuses on the mens rea of accomplice liability, specifically that of intentionality and foresight, and ultimately claims “that, even if all that Moore says about the actus reus is right, it does not warrant his conclusion” that there is no unique desert basis for accomplice liability.

Responding to Barak D. Richman’s Antitrust and Nonprofit Hospital Mergers: A Return to Basics, James F. Blumstein examines Professor Richman’s account under the two different “ways of thinking about the product and the industry – the traditional professional/scientific and the market-oriented model.” Professor Blumstein, in his Response, Antitrust Enforcement in the Health Care Industry: A Battleground of Competing Paradigms, describes the history of the struggle between these two paradigms, in the industry and in the courts, and how the “[a]pplication of the antitrust laws to the greater healthcare marketplace has . . . contributed toward a greater emphasis on the market-oriented paradigm,” leading to “push back in antitrust doctrine . . . in the context of judicial hostility to applying traditional antitrust orthodoxy to some components of health care.” Recognizing that the health care industry developed according to the professional/scientific model, Blumstein emphasizes Richman’s assertion that antitrust doctrine can play a “constructive role” in the context of hospital mergers, by “build[ing] accountability into an economic sector that has inadequate accountability mechanisms.” Blumstein concludes that “[a]ntitrust doctrine does not necessarily stand in the way of nonprofit hospitals that seek to merge, but it imposes an analytical metric that focuses on competition and efficiency.”

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 LR_Penn at 04:46 PM | Comments (0) | TrackBack

Want to Vote? Identify Yourself

The Supreme Court has just upheld Indiana's law requiring voters to have photo identification. The case is Crawford v. Marion County Election Board (thanks SCOTUS blog for the coverage). This area of the law is quite complicated. I suggest reading the SCOTUS coverage and Rick Hasen's commentary. Prof. Hasen wrote an amicus supporting the challengers of the law. His introduction to the detailed post demonstrates his ability to see the result and analyze rather than rant about the decision:

Today’s much anticipated decision in Crawford v. Marion County Election Board is a significant win for those who support stricter voter identification laws, even if they support such laws for partisan purposes. It will encourage further litigation, because it relegates challenges to laws imposing onerous burdens on a small group of voters to “as applied” challenges, but those challenges will be difficult to win. The lack of a majority opinion, moreover, injects some uncertainty into the appropriate standard for reviewing other challenges to onerous election laws. The Court’s specific split in this case will blunt charges that this is a politicized 5-4 decision — and it is significant that the Court, once again, has failed to cite to its opinion in Bush v. Gore. More on each of these points below.

So read the full post. It details some implications of the decision and the oddities of the 6-3 split in this case.

Image: A New York polling place, showing booths on the left, published in 1912
Author: E. Benjamin Andrews
Source: WikiCommons

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Encouraging Vanity and Misogyny

Just in time for Mother's Day, the book My Beautiful Mommy offers to explain for kids how "mom is getting a flatter tummy and a 'prettier' nose" via a trip to the plastic surgeon. Meanwhile, the new reality TV show Bulging Brides encourages participants to lose weight with the slogan "The perfect day is just pounds away." Ann Friedman of Feministing calls the show "size-shaming meets the bridal-industrial complex."

The mass media has dropped the ball in its coverage of both shows, generally focusing on the best "techniques" of accommodating women and their children to plastic surgery, or the spectacle and tastelessness of the bridal show. Some outlets have given feminist critics of plastic surgery a bit of time to put their case to the public, but by and large are drawn in by the slickness of each effort.

Media coverage of the children's book and the show reveal once again the bankruptcy of old concepts of "objectivity" in journalism. At this point, there are at least three "narratives" of plastic surgery that are coherent (on their own terms): 1) a libertarian narrative that values increasingly instant and cheaper gratification of desires (and safety only secondarily), 2) a moral narrative that questions the vanity at the heart of the plastic surgery boom, and 3) a feminist narrative that critically examines the types of economic and cultural pressures that make women particularly susceptible to the appeals of cosmetic surgeons. It's very hard to work all three narratives into a given story. Instead, we're treated to inarticulate exclamations of "how cute and fun" or "how repugnant"--one more symptom of MacIntyre's famed characterization of modern thought as a "moral Babel." This superficial "balance," unmoored from any larger understanding of what makes for a good (or at least unoppressed) human life, ends up promoting the very phenomena it claims merely to be covering.

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Law & Lit Smorgasborg

Literature with implications for law and politics is the topic of this special issue of the Law and Politics Book Review. It has many bite-sized reviews/reflections. I particularly liked these thoughts from Simon Stern on Dr. Jekyll and Mr. Hyde:

Much of the interest in Stevenson’s tale lies in its status as a moral allegory about the human character, not as an exploration of Jekyll’s uniquely conflicted psyche. If Jekyll’s “underlying illness” is universally shared, should it be taken into consideration when we ask whether Hyde’s crimes were brought about by a voluntary act? Jekyll and Hyde thus opens up extensive vistas for discussion of different degrees of criminal liability.

And there are some provocative reflections on Brave New World from Tracy Lightcap:

What Huxley was trying to point out about the World State, is not that happiness and stability are undesirable, but that happiness and stability have to be achieved by societies that put individuals, not institutions, first. As Huxley says, “In this community economics would be decentralist and Henry-Georgian, politics Kropotkinesque cooperative. Science and technology would be used as though, like the Sabbath, they had been made for man, not . . . as though man were adapted and enslaved to them. Religion would be the conscious and intelligent pursuit of man’s Final End . . . And the prevailing philosophy of life would be a kind of Higher Utilitarianism, in which . . . the first question to be asked in every contingency of life being ‘How will this thought or action contribute to or interfere with, the achievement, by me and the greatest number of other individuals, of man’s Final End’” (pp.ix-x).

There is a good deal of food for thought in these and the 20 or so other reviews in the issue.

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Georgetown Law Journal, Issue 96.4 (April 2008)

Georgetown Law Journal, Issue 96.4 (April 2008)

Articles

The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan
William N. Eskridge & Lauren E. Baer

The Hanging Chads of Corporate Voting
Marcel Kahan & Edward Rock

Writing, Cognition, and the Nature of the Judicial Function
Chad M. Oldfather

Notes

When Clarity Means Ambiguity: An Examination of Statutory Interpretation at the Environmental Protection Agency
Susannah Landes Foster

Hearsay at Guantanamo: A "Fundamental Value Determination"
Martin A. Hewett

The dataset for Eskridge & Baer's The Continuum of Deference is available here.

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Crimtorts at Widener Law

Chris Robinette passes along this nice website, highlighting Widener Law School's recent Crimtorts symposium. With guests including Thomas H. Koenig (Northeastern-Anthropology), Michael L. Rustad (Suffolk), Kenneth W. Simons (Boston), Martha Chamallas (Ohio State), Jeffrey O'Connell (Virginia), Byron G. Stier (Southwestern), Frank J. Vandall (Emory), Mark Geistfeld (NYU), Keith N. Hylton (Boston), Anthony J. Sebok (Cardozo), and Catherine M. Sharkey (NYU), it looks like they put together a great event. If you are interested in this area of merging law, and missed it, check out the videos here.

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How Inequality Drove the Subprime Mess

A few months ago I worried that many subprime borrowers were concerned parents terrified of losing a bidding war for places in good school districts. Today Robert H. Frank, with his usual perspicuity, explains that dynamic in a concise and convincing op-ed:

In a well-intentioned but ultimately misguided move to help more families enter the housing market, borrowing restrictions were relaxed during the [decades leading up to the subprime meltdown]. Down payment requirements fell steadily, and in recent years, many houses were bought with no money down. Adjustable-rate mortgages and balloon payments further boosted families' ability to bid for housing.

The result was a painful dilemma for any family determined not to borrow beyond its means. No one would fault a middle-income family for aspiring to send its children to schools of at least average quality. (How could a family aspire to less?) But if a family stood by while others exploited more liberal credit terms, it would consign its children to below-average schools. Even financially conservative families might have reluctantly concluded that their best option was to borrow up.

Todd Zywicki faults Frank for failing to acknowledge that rising tax burdens have caused middle income families to lose as much (or perhaps more) financial ground as a home finance arms race. I hope that Prof. Zywicki will take a look at the proposed progressive consumption tax at the end of Frank's book Falling Behind, which would likely address many of his concerns. We might also query why recent administrations have done so much to alleviate the tax burden of the top 1% and 0.01% of taxpayers, while doing relatively little to reduce the tax burden of the vast middle class. Frank's work has consistently faulted those policies.

Of course, if school district quality were not so disparate, the desperation that fueled the subprime spree may not have been so intense. But given the stranglehold big donors have over the legislative process currently, I don't expect the US to move in a Finnish direction any time soon.

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Introducing Guest Blogger William McGeveran

I'm pleased to announce that Professor William McGeveran will be doing a reprise guest visit with us for the next month. Bill is an associate professor at the University of Minnesota Law School. He is teaching civil procedure and data privacy. His current research focuses on trademark law and data privacy. He blogs at Info/Law.

Before joining the Minnesota Law School faculty, Bill was a fellow at the Berkman Center for Internet and Society at Harvard Law School. While there, he studied the impact of the copyright regime on educational uses of digital content. That work culminated in a white paper (coauthored with Professor William W. Fisher III at Harvard) entitled The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age.

Earlier in his career, Bill practiced at Foley Hoag LLP in Boston; clerked for Judge Sandra Lynch on the First Circuit; and, before law school, served as a legislative aide in the House of Representatives for six years. He has a J.D. magna cum laude from NYU Law School and a B.A. magna cum laude from Carleton College.

Some of his publications include:
* Rethinking Trademark Fair Use, 94 Iowa L. Rev. (forthcoming 2008).
* Four Free Speech Goals for Trademark Law, 18 Fordham Intell. Prop., Media & Ent’mt L.J. (2008) (forthcoming)
* Mrs. McIntyre’s Checkbook: Privacy Costs of Political Contribution Disclosure, 6 U. Pa. J. Const. L. 1 (2003)

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Introducing Guest Blogger David Fontana

I'm delighted to announce that Professor David Fontana will be joining us as a guest blogger for the next month. David is my colleague at the George Washington University Law School, where he is finishing his second year on our faculty. He writes about constitutional law and comparative constitutional law. His latest essay--on the failures of the American Supreme Court since September 11 and how that compares to the performance of the highest courts of other countries--was just published in Dissent (online version not yet available).

David graduated from Yale Law School and clerked for Judge Dorothy W. Nelson on the U.S. Court of Appeals for the Ninth Circuit. He currently is completing a doctoral degree in socio-legal studies at Oxford University.

David teaches constitutional law, comparative constitutional law, and criminal law.

David's publications include:

* The Current Generation of Constitutional Law, 93 Georgetown Law Journal 1061 (2005)
* Thomas Jefferson Counts Himself Into the Presidency, 90 Virginia Law Review 551 (2004) (with Bruce Ackerman)
* Refined Comparativism in Constitutional Law, 49 UCLA Law Review 539 (2001)

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The Yale Law Journal Pocket Part: Congressional Ethics

Congressional ethics scandals have appeared frequently on the front pages of newspapers for the last several years; in March 2008, the House of Representatives approved "one of the most significant changes to its ethics rules in decades, creating for the first time an independent panel empowered to initiate investigations of alleged misconduct by members of the chamber." This issue of The Pocket Part addresses a related proposal made last year in The Yale Law Journal by Josh Chafetz; Chafetz calls for "a new congressional oversight body, modeled on the British Parliamentary Commissioner for Standards."

In his Reply, Paul M. Thompson argues that Chafetz's proposal is unnecessary, and that the recent ethics scandals that have plagued Congress are signs that a system that is functioning well, rather than one that is in "disrepair." "Like the fever that accompanies a virus," Thompson argues, "they are a sign that our body politic can heal itself." Furthermore, according to Thompson, Chafetz's proposal would "replace a system that works with one that is redundant, at best, and prone to partisanship and gridlock, at worst."

Chafetz responds to Thompson's criticisms by arguing that Thompson's position relies on the inapplicable paradigm of criminal law as a model for ethics enforcement. Instead, Chafetz claims, "Congressional ethics is not simply about punishing rulebreakers; rather, it aims to promote public trust in Congress and its members." Under this framework, "it is clear not only that our current system is in shambles, but also that the creation of Congressional Commissioners would be a useful corrective."

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Financial Products Safety Commission

As we deal with the consequences of housing and consumption arms races, Elizabeth Warren's article on "Making Financial Products Safer" is a must-read. Warren notes:

It is impossible to buy a toaster that has a one-in-five chance of bursting into flames and burning down your house. But it is possible to refinance your home with a mortgage that has the same one-in-five chance of putting your family out on the street—and the mortgage won’t even carry a disclosure of that fact. Similarly, it’s impossible for the seller to change the price on a toaster once you have purchased it. But long after the credit-card slip has been signed, your credit-card company can triple the price of the credit you used to finance your purchase, even if you meet all the credit terms. Why are consumers safe when they purchase tangible products with cash, but left at the mercy of their creditors when they sign up for routine financial products like mortgages and credit cards?

Warren proposes that a new federal agency start regulating credit from a consumer safety perspective:

[W]hy not create a Financial Product Safety Commission (FPSC), charged with responsibility to establish guidelines for consumer disclosure, collect and report data about the uses of different financial products, review new products for safety, and require modification of dangerous products before they can be marketed to the public? The agency could review mortgages, credit cards, car loans, and so on. It could also exercise jurisdiction over life insurance and annuity contracts. In effect, the FPSC would evaluate these products to eliminate the hidden tricks that make some of them far more dangerous than others, and ensure that none pose unacceptable risks to consumers.

An FPSC would promote the benefits of free markets by assuring that consumers can enter credit markets confident that the products they purchase meet minimum safety standards. A commission could collect data about which financial products are least understood, what kinds of disclosures are most effective, and which products are most likely to result in consumer default. It could develop nuanced regulatory responses; some credit terms might be banned altogether, while others might be permitted only with clearer disclosure. A commission could promote uniform disclosures that make it easier to compare products, and to discern conflicts of interest on the part of a mortgage broker or seller of what are now loosely regulated products. For example, an FPSC might review the following terms that appear in some—but not all—credit-card agreements: universal default clauses; unlimited and unexplained fees; interest-rate increases that exceed 10 percentage points; and an issuer’s claim that it can change the terms after money has been borrowed. It would also promote such market-enhancing practices as a simple, easy-to-read paragraph that explains all interest charges; clear explanations of when fees will be imposed; a requirement that the terms of a credit card remain the same until the card expires; no marketing targeted at college students or minors; and a statement showing how long it will take to pay off the balance, as well as how much interest will be paid if the customer makes the minimum monthly payments on the outstanding loan balance.

As I've noted here and here, the federal CPSC may not exactly be a model here. It could easily turn into one more preemption machine. But given the "race to the bottom" dynamics common generally, federal regulation may be the only solution.

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A Tortured Dialogue on John Yoo's Tenure

Everyone else has taken a whack at the Yoo-tenure-pinata. I felt left out, so here goes, in irritating dialogue form.

Pro-Yoo: What Leiter said.

Anti-Yoo: But would those arguments stand had Yoo actually participated in state-sanctioned torture?

PY: Probably, so long as he held his belief in the legality of the conduct in "good faith."

AY: This seems like an extraordinary barrier to fi