Archive for April, 2008
Crimtorts at Widener Law
posted by Dave Hoffman
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.
April 27, 2008 at 9:36 pm
Posted in: Criminal Law, Tort Law
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How Inequality Drove the Subprime Mess
posted by Frank Pasquale
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.
April 27, 2008 at 8:06 pm
Posted in: Consumer Protection Law
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Introducing Guest Blogger William McGeveran
posted by Daniel Solove
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)
April 27, 2008 at 7:07 pm
Posted in: Administrative Announcements
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Introducing Guest Blogger David Fontana
posted by Daniel Solove
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)
April 27, 2008 at 6:39 pm
Posted in: Administrative Announcements
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The Yale Law Journal Pocket Part: Congressional Ethics
posted by Yale Law Journal
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.”
April 25, 2008 at 1:07 pm
Posted in: Law Rev (Yale), Law Rev Forum
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Financial Products Safety Commission
posted by Frank Pasquale
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:
April 24, 2008 at 2:42 pm
Posted in: Consumer Protection Law, Current Events, Securities
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A Tortured Dialogue on John Yoo’s Tenure
posted by Dave Hoffman
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 firing. And isn’t it pretty obvious that tenure is a cross-subsidy, protecting the job security of non-mobile professors at the expense of those who are productive scholars? Not to mention a spur to vice. Forget pot. Why do Spitzer and most public school teachers lose their jobs for soliciting prostitutes, when professors can (apparently) do so at will?
PY: Slippery adjudicative slopes.
AY: I hate those guys.
PY: What about the pro-knowledge, pro-civic, pro-dissent, aspects of academic freedom?
AY: Show me data supporting the view that tenure promotes civic engagement & ideas, and I’d be more comforted. I bet that in a world where tenure wasn’t mandated by the Bar, we’d have better scholarship, fewer bad teachers, and we’d be under significantly more pressure to respond to well-founded student dissatisfaction about their job prospects. Tenure enables complacency, not risk-taking. Claims about the pro-social aspects of academic freedom seem romanticized, at best, given research showing that tenure doesn’t significantly affect the research output of successful scholars. Basically, good scholars don’t need tenure to take risks and innovate. Bad scholars are helped to see the path toward the deeper, deader, part of the woods.
April 24, 2008 at 10:38 am
Posted in: Law School (Teaching)
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Boston College Law Review, Issue 49:3 (2008)
posted by Boston College Law Review
Boston College Law Review, Issue 49:3 (May 2008)
Articles
Steven A. Dean, The Incomplete Global Market for Tax Information, 49 B.C. L. Rev. 605 (2008) [PDF]
Jonathan Remy Nash, Economic Efficiency Versus Public Choice: The Case of Property Rights in Road Traffic Management, 49 B.C. L. Rev. 673 (2008) [PDF]
Katherine J. Strandburg, Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B.C. L. Rev. 741 (2008) [PDF]
Notes
Jonathan K. Geldert, Presidential Advisors and Their Most Unpresidential Activities: Why Executive Privilege Cannot Shield White House Information in the U.S. Attorney Firings Controversy, 49 B.C. L. Rev. 823 (2008) [PDF]
John A. Kupiec, Returning to Principles of “Fairness and Justice”: The Role of Investment-Backed Expectations in Total Regulatory Taking Claims, 49 B.C. L. Rev. 865 (2008) [PDF]
Contents of current and past issues are available at our website
April 24, 2008 at 8:01 am
Posted in: Law Rev (Boston College), Law Rev Contents
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The Complications of Justification in the Sean Bell Trial
posted by Elaine Chiu
Tomorrow a judge will deliver his verdict in the most watched criminal trial of 2008 in New York City thus far. Three police officers are on trial for manslaughter, assault and reckless endangerment for killing Sean Bell in a botched up undercover operation at a night club in Queens. The crux of the defense strategy is a justification defense. Were the defendants justified in using deadly force in their jobs as law enforcement officers? The prosecutor has the burden to prove beyond a reasonable doubt that there was no such justification in order to secure guilty convictions.
This is a complicated decision for the judge. Fifty bullets were fired from the guns of the police officers that night and the evidence in the trial has described a plethora of different emotions. In their grand jury testimony, the officers expressed how they felt fear, shock, anxiety, and panic when they confronted Mr. Bell and his friends outside the night club and when Mr. Bell drove his car twice into their unmarked police van. They also testified that they believed that at least one of the occupants of Mr. Bell’s car was armed with a gun and thus, were scared for their own lives when they began shooting at Mr. Bell and his friends.
The State’s version of the events is somewhat similar but of course also different. Undermining the emotions expressed in the defense strategy, the prosecutor explained that the police officers were primarily angry and that their anger is what drove them to shoot repeatedly at Mr. Bell and his friends. The implication of this argument is that angry police officers are not in fear for their lives and that anger precludes justification but neither is true. It is entirely possible to be angry while also justified in using deadly force. While fear and shock may be more sympathetic emotions, a justification defense does not require them. As the prosecutor said in his closing argument, the truth about the emotions lies somewhere between the defense case and the State’s case. The formal doctrine of the criminal law though does not mandate any particular emotions; it is only concerned with the reasonable use of deadly force.
April 24, 2008 at 2:24 am
Posted in: Criminal Law
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Who Wants to Think They’re Millionaires?
posted by Frank Pasquale
Lots of Americans, apparently:
A Time Magazine poll in 2000 found that 19 percent of those surveyed believed themselves to be among the richest 1 percent of Americans. Another 20 percent said they expected to one day be among the richest 1 percent.
But as Citizens for Tax Justice estimates, “This year, the best-off one percent will have an estimated average income of $1.5 million each. Just to get into this elite group requires an income greater than $466,000.” And the middle class of, say, ABC debate moderator Charlie Gibson is also pretty expansive–it includes people with adjusted gross income over $250,000, though CTJ notes that only about 2% of taxpayers fit that category.
As the “millionaire’s amendment” in our tattered campaign finance laws comes under attack, misperceptions about wealth feed into Supreme Court arguments as well:
Consider Tuesday’s oral arguments over the so-called Millionaires’ Amendment, the federal law that lifts some political fundraising limits for candidates facing wealthy self-funded opponents, defined as those who pour at least $350,000 of their own cash into their campaign.
Justice Antonin Scalia suggested that practically anybody had that cash available for political activism, if he or she really wanted to tap some family assets. “Are we talking wealthy people here? What’s the average price of a home in the United States? I think it’s a good deal above $350,000, isn’t it?” he said.
Actually, it’s nowhere near that. According to provisional figures from the National Association of Realtors, the average single family home price last month was $246,000. And falling.
As I noted two years ago, even the assumption that everyone has $200 to spare for a political campaign is pretty objectionable. And it is downright nonsensical to deny that donating $200 “hurts” a poor family far more than one with disposable income to spare (just think of the parable of the widow’s mite). The legitimacy of our current “dollar primary” politics probably rests in large part on the erroneous perception of 38% of the population that they are (or someday will be) in the top 1% of earners.
UPDATE: Given my title, I should note that about 3% of the US population are millionaires (i.e., have assets over and above principal residence that are worth over a million dollars). Nevertheless, given that the median net worth of the top 10% in the U.S. was $833,600 in 2001, and that of the bottom ten percent was below $7,900, Americans live in very different economic worlds.
April 23, 2008 at 8:38 pm
Posted in: Behavioral Law and Economics, Tax
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The Candidates on Disability
posted by Frank Pasquale
Having criticized the mainstream media for failing to discuss substantive policy issues in the presidential election, I should commend coverage that actually explores what the candidates will do. Michael Berube’s analysis of the disability policies of Obama/Clinton/McCain appears here (and here). Of particular interest to lawyers may be this part from the section on Obama:
[Barack Obama’s plan] pledges support for Tom Harkin’s ADA Restoration Act, which would “overturn the Supreme Court decisions [such as University of Alabama v. Garrett or Sutton v. United Air] that limit the ADA’s coverage and effectiveness.”
And for those in education, this comment by Berube is interesting:
In recent years I’ve had many fine students at Penn State – twenty-year-olds with dyslexia, or Asperger’s Syndrome, or arthritis, or mild cerebral palsy – request “reasonable accommodation” from me on final exams. And I’ve been amazed and appalled at how many of my colleagues (here or elsewhere) seem to believe that they’re under no obligation to provide reasonable accommodation for everyone. (Guess what? If you teach in the United States, you have that obligation! It’s a real federal law!)
The whole post is highly recommended.
April 23, 2008 at 8:35 am
Posted in: Health Law
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A Recommendation Rationing Problem
posted by Dave Hoffman
From a well-placed source, I’ve heard that some federal judges discount clerkship recommendation letters written by professors who are supporting more than three to four students in a given clerkship cycle. If this practice were widely followed (and I’m curious to know if it is) it poses a pretty serious problem for me. I’ve fielded the requests of well more than five students for clerkship letters this spring. Through advising, writing seminars, research assistance, and otherwise, I know all of these students well enough to write positive letters. For this season, then, I’m committed to writing letters to anyone who asks me. I think this is the generally the right policy assuming that it doesn’t hurt the students, who shouldn’t be penalized that my recommendation-writing time has started to look like an overgrazed commons.
I dislike the idea of rationing recommendations, because I can’t, at least on first glance, come up with a good way to choose who to support and who not to support when they come in the door. The easy proxy – the students I know best – don’t work all that well when I’m not initiating the recommendation transaction. Most students who approach me do so because they’ve some kind of connection, besides having gotten a good grade in one of my classes, and I’ve never been in the unhappy position of having said yes to a student who I think couldn’t be a good clerk. Other methods (first-come; best-grades; etc.) are unpalatable.
So, two questions for you: (1) do you ration recommendations; and (2) how?
April 22, 2008 at 10:34 pm
Posted in: Law School (Teaching)
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The Blackstone Ratio at the Supreme Court
posted by Frank Pasquale
My colleague David Feige makes the following observation about the role of the Blackstone Ratio in our criminal justice system:
[In Kansas v. Marsh, Scalia] concluded that “The rate at which innocent people are convicted of felonies is less than three-hundredths of 1 percent – .027 percent, to be exact”. Scalia sleeps well knowing our system works so brilliantly. The problem, of course is that .027 percent is a hoax, and . . . I [am] struck once again that a justice generally considered to be so bright could get something this important so fundamentally wrong. But one need only look at the study Scalia cites (by Joshua Marquis, a stalwart of the prosecutorial lobby) to understand the error of his ways.
Marquis came up with the number that Scalia adopted much like a toddler solving a problem in a kindergarten math workbook: He took the total number of exonerations, (north of 200 now) picked a gratuitous multiplier (10 purely for rhetorical purposes), and then divided by 15 million—the total number of convictions during the period of years he considered. . . . As I’ve previously pointed out, here’s why that’s a ludicrous methodology.
So how should one “do the math?” Another colleague of mine, Michael Risinger, was recently cited in Justice Stevens’ concurrence in Baze v. Rees for his work on the issue.
April 22, 2008 at 9:37 pm
Posted in: Capital Punishment, Criminal Law
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The Libertarian Temptation
posted by Frank Pasquale
Having authored an outstanding series of posts at Slate’s Convictions blog, Doug Kmiec today reflects on the following choice quote from a tycoon well-accustomed to enjoying easy access to Congress:
“I think [land deals are] what Congress people are supposed to do for constituents. When you have a big, significant businessman like myself, why wouldn’t you want to help move things along? What else would they do? They waste so much time with legislation.”
Though the quote’s pretty brazen, it won’t surprise anyone familiar with David Cay Johnston’s work. It also reminded me of Dana Milbank’s priceless reporting on the recent Bear bailout:
Fortunately for [Bear executive] Schwartz, he had a sympathetic audience in the banking committee, whose members have received more than $20 million in campaign contributions from the securities and investment industry, according to the Center for Responsive Politics. “I want the witnesses to know, and others, that as a bottom-line consideration, I happen to believe that this was the right decision,” Chairman Chris Dodd (D-$5,796,000) said before hearing a single word of testimony.
“You made the right decision,” Sen. Evan Bayh (D-$1,582,000) told the regulators who worked out the loan guarantee.
“The actions had to be done,” agreed Sen. Chuck Schumer (D-$6,162,000).
Only a minority of senators, particularly those with smaller pieces of the campaign-cash pie, dissented. “That is socialism!” railed Sen. Jim Bunning (R-$452,000). “And it must not happen again.”
And consider the recent “$6 billion tax break for money-losing home builders — who threatened not to give any more campaign money when they got shut out of the economic stimulus bill in February”. . . inserted into a bill that offered precious little direct relief to troubled homeowners. Or the private equity tax dodge.
A string of stories like this help me understand the appeal of libertarianism–the sense that the state needs to be minimized because of all-pervasive rent-seeking, public choice problems, and corruption. If the US is culturally “tracked” to stay on its current course, I might well become a libertarian myself. But as a I try to argue (albeit too briefly) toward the end of this paper, there are other models for controlling the interface between the state and centers of economic power. As in the health care debate, studying the campaign finance systems of other countries might broaden our horizons.
April 22, 2008 at 8:22 pm
Posted in: Politics
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Any Explanations for Incarceration Statistics Outliers?
posted by Frank Pasquale
Via Doug Berman and Patrick S. O’Donnell, here are some provocative facts about prisons in the U.S.:
The US incarcerates the largest number of people in the world.
The incarceration rate in the US is four times the world average.
Some individual US states imprison up to six times as many people as do nations of comparable population.
The US has less than 5% of the world’s population but over 23% of the world’s incarcerated people.
The NPR program “Justice Talking” recently featured some excellent discussions of the role of the private sector in the US prison system. Critics of privatization included former prisoner Alex Friedmann (who is the vice president of the Private Corrections Institute) and Liane “Buffie” McFadyen, a State Representative from Colorado. Friedmann claimed that cost-cutting at private prisons put prisoners and public safety at risk (by, for example, leading to high turnover of guards). McFadden argued that private prisons “skimmed the cream” by serving only the healthy and “easy” prisoners, and dumping back to the state any mentally ill, violent, or otherwise costly-to-incarcerate offenders. Currently the mix of public and private prisoners is about 95/5, with only a small minority of offenders in private prisons.
As political debate on figures like the ones above heats up, we should pay attention to the role that private firms play in supporting or opposing certain reactions. As usual, Doug Berman is on top of the economics of prison reform. Though Sasha Volokh doubts that prison privatization leads to longer sentences, the US’s outlier status should lead to renewed scrutiny of exactly whose interests it serves. If it happens that the real driver is fear-mongering politicians or rural areas “importing constituents,” well, that’s one more strike against politics. And if it happens that the US really is objectively far more violent and depraved than other nations, we may well have to question the Pollyannas churning out apologias for a culture of violence and economic policies that lead to such widespread hopelessness and feelings of aggrieved humiliation.
April 22, 2008 at 6:23 pm
Posted in: Criminal Law
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Posner on Immigration Courts and Judges
posted by Deven Desai
Judge Posner has previously voiced his displeasure with immigration judges “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” This week he has re-stated this view in a speech to the Chicago Bar Association. Judge Posner has called the system “inadequate.” Per the National Law Journal, Posner identified several areas of concern
–better training in international law
–reliance on the State Department for information about international issues
–a need for clinics to improve the immigration bar
–expanded membership of the Board of Immigration Appeals
–conferences so that judges can compare experiences and improve the system
–barriers to understanding the applicant including a lack of familiarity with body language and the need for interpreters
These problem add up to Judge Posner’s conclusion that “personal values and biases” drive the decisions and that “perfunctory review” is often all that occurs.
Despite the problems specific to immigration judges, the basic question of judges relying on instinct seems to haunt all judges. In other words, Judge Psoner may be onto a problem that has both subject matter sources and has its roots in the way judges make decisions in general. There is some good literature on the general question of judicial decision making.
One of the fun parts of my job is co-chairing my school’s colloquium committee which means inviting folks to share their work. Last week Chris Guthrie of Vanderbilt Law School presented his work “Inside the Trial Judges Mind.” The work questions whether formalist or realist understandings of decision making properly explain judging. In their stead, the paper offers an “’intuitive-override’ model of judging. According to this model of judicial behavior, judges generally make intuitive decisions, but sometimes override their intuitive responses with deliberation.” It was a fascinating talk and the work opens many questions about how our system of justice works. For those wishing to read more of Chris’s work here is his SSRN page. The piece that may be of most interest is Blinking on the Bench: How Judges Decide Cases co-authored with Jeffrey J. Rachlinski and Andrew J. Wistrich. The article just came out in the Cornell Law Review.
Image: WikiCommons
Author: Roland Zumbühl (Picswiss), Arlesheim
License: GNU Free Documentation License, Version 1.2
April 22, 2008 at 2:17 pm
Posted in: Immigration
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Vanderbilt Law Review, Volume 61, Number 2 (March 2008)
posted by Vanderbilt Law Review
Vanderbilt Law Review, Volume 61, Number 2 (March 2008)
ARTICLES
Randall S. Thomas, The Evolving Role of Institutional Investors in Corporate Governance and Corporate Litigation, 61 Vand. L. Rev. 299 (2008).
Stephen J. Choi & Jill E. Fisch, On Beyond CalPERS: Survey Evidence on the Developing Role of Public Pension Funds in Corporate Governance, 61 Vand. L. Rev. 315 (2008).
James D. Cox, Randall S. Thomas, Lynn Bai, There Are Plaintiffs and . . . There are Plaintiffs: An Empirical Analysis of Securities Class Action Settlements, 61 Vand. L. Rev. 355 (2008).
Kenneth B. Davis, Jr., The Forgotten Derivative Suit, 61 Vand. L. Rev. 387 (2008).
Jesse M. Fried, Hands-Off Options, 61 Vand. L. Rev. 453 (2008).
Jeffrey N. Gordon, Proxy Contests in an Era of Increasing Shareholder Power: Forget Issuer Proxy Access and Focus on E-Proxy, 61 Vand. L. Rev. 475 (2008).
Lyman Johnson, A Fresh Look at Director “Independence”: Mutual Fund Fee Litigation and Gartenberg at Twenty-Five, 61 Vand. L. Rev. 497 (2008).
Elliot J. Weiss, The Lead Plaintiff Provisions of the PSLRA After a Decade, or “Look What’s Happened to My Baby”, 61 Vand. L. Rev. 543 (2008).
NOTES
Leah Bressack, Small Claim Mass Fraud Actions: A Proposal for Aggregate Litigation Under RICO, 61 Vand. L. Rev. 579 (2008).
Sybil Louise Dunlop, Are an Empty Head and a Pure Heart Enough? Mens Rea Standards for Judge-Imposed Rule 11 Sanctions and Their Effects on Attorney Action, 61 Vand. L. Rev. 615 (2008).
Elizabeth C. Minogue, Increasing the Effectiveness of the Security Council’s Chapter VII Authority in the Current Situations Before the International Criminal Court, 61 Vand. L. Rev. 647 (2008).
Uta Oberdörster, Why Ratify? Lessons from Treaty Ratification Campaigns, 61 Vand. L. Rev. 681 (2008).
SYMPOSIUM
Click here for links at our website to listen to audio files from our recent Conference on Judicial Reputation: Neglected Supreme Court Justices!
April 22, 2008 at 1:31 pm
Posted in: Law Rev (Vanderbilt), Law Rev Contents
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What is a judicial fiat, anyway?
posted by Alice Ristroph
Justice Scalia’s strong words in Baze v. Rees, directed at Justice Stevens’s concurrence in the same case, attracted praise at the Volokh Conspiracy (and from Dave Hoffman here) last week. In Baze, Justice Stevens announced that he now believes the death penalty to be cruel and unusual punishment and a violation of the Eighth Amendment. Justice Scalia replied that “[p]urer expression cannot be found of the principle of rule by judicial fiat.” To which my esteemed colleague former-Judge-and-now-again-Professor Paul Cassell (guest-blogging at Volokh) replied, “Amen.”
I’m surprised that most discussions of the Scalia-Stevens dispute (like Scalia’s own concurrence) fail to mention the last paragraph of Stevens’s opinion, or the way Stevens actually voted. After explaining his view that capital punishment is unconstitutional, Stevens concurred in the judgment that Kentucky’s method of execution was constitutionally permissible. Here’s how Stevens concluded:
The conclusion I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents … I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.
What constitutes judicial fiat? Is the argument that a judge musn’t even say that he thinks a practice violates the constitution, even if he is then going to recognize and follow precedents to the contrary?
April 22, 2008 at 10:45 am
Posted in: Constitutional Law
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The Culture of Cynicism Eats Its Own
posted by Frank Pasquale
Americans, so we have been told endlessly by the media, hate politicians. . . and their natural henchmen, lawyers. The press fearlessly confronts official misdeeds, subtly educating the populace about the rottenness of its elected leaders. And once wasteful lawsuits are finally cleared out of the courts, captains of industry will be free to exercise the innovative genius that can make the country great again.
Yet this acid cynicism about politicians and lawyers, like a sorcerer’s apprentice, is tough to control. And it now appears to be blowing back onto the very journalists and business leaders that have deployed it so successfully over the past few decades.
April 22, 2008 at 12:23 am
Posted in: Culture
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Facebook Frenzy: Faking Friendships?
posted by Frank Pasquale
Thoreau was famously skeptical of communications technology, wryly observing that when the telegraph connected Maine and Texas, citizens of each state could find they have little to say to one another. Shannon Vallor, Professor of Philosophy at Santa Clara University, struck a similarly cautious note at a fascinating discussion of the ethics of social networking at Stanford. Mining the rich tradition of virtue theory in moral philosophy, Vallor observed that social networking can both undermine and reinforce the persistent dispositions of character that promote human flourishing. Here are some similar observations of Vallor’s from another panel:
[W]hat impact is social networking technology having on the ways that people build and sustain close interpersonal relationship and, in particular, the communicative virtues that help such relationships to flourish? I will identify five communicative virtues that I believe warrant careful reflection in connection with social networking technology.
First is patience. Patience is, without a doubt, one of the most important virtues for sustaining close relationships. It develops through communicative activities such as listening. For example, listening to a friend tell a story or recount a lengthy anecdote without jumping in and finishing the story oneself or interrupting with hey, that reminds me of this thing that happened to me yesterday. Patience, once it becomes not just a momentary indulgence of the other, but an enduring part of one’s own character, that is, a virtue, allows one’s relationships with others to manifest deeper, mutual understanding, greater and more lasting commitments and a feeling on the part of others that you are willing to connect with them on their terms and not just yours; that your interest in them does not end with their ability to keep you constantly amused or fascinated.
Yet the style of communication favored by digital natives and fostered by social networking sites like Facebook and MySpace, privileges brevity and directness. And, thus, we must ask whether, and in what ways, such technologies can also encourage and reward patience as a virtue.
April 22, 2008 at 12:00 am
Posted in: Cyberlaw, Privacy (Gossip & Shaming), Social Network Websites
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