Archive for September, 2008
posted by Michigan Law Review
Senator John McCain, the current Republican Party nominee for President, was born in the Panama Canal Zone in 1936. The circumstances of his birth raise the question of whether he is a “natural born citizen” as required by Article II, section 1 of the Constitution. The symposium contributors explore both the substance of this issue and the methods used to resolve it.
The extended post contains a more complete description of the symposium and links to the essays.
posted by Daniel Solove
I’m very pleased to introduce Professor Miriam Cherry, who will be returning for a repeat guest visit with us this month.
Miriam is an associate professor at University of the Pacific – McGeorge School of Law. She teaches Employment Law, Business Associations, and Contracts, among other subjects. She received her B.A. from Dartmouth College and her J.D. from Harvard Law School.
Prior to entering law teaching, Miriam clerked for Justice Roderick Ireland of the Supreme Judicial Court of Massachusetts, and for Judge Gerald Heaney of the Eighth Circuit Court of Appeals. She was a corporate attorney at Foley Hoag in Boston, and, in the wake of Enron and Worldcom, litigated accounting fraud cases on behalf of pension funds at Berman DeValerio & Pease, also in Boston. She recently co-authored a book, Global Issues in Employment Law, along with Professor Samuel Estreicher.
Some of Miriam’s representative publications include:
* Prediction Markets and the First Amendment, 2008 U. ILLINOIS L. REV. 833 (2008) (with Robert L. Rogers)
* Tiresias and the Justices: Using Information Markets to Predict Supreme Court Decisions, 100 NORTHWESTERN UNIVERSITY L. REV. 1141 (2006) (with Robert L. Rogers).
* Decentering the Corporation: Using the Limited Liability Company to Organize Low Wage Immigrant Workers, 39 U.C. DAVIS L. REV. 787 (2006)
* Whistling in the Dark? Corporate Fraud, Whistleblowers, and the Implications of the Sarbanes-Oxley Act for Employment Law, 79 WASHINGTON L. REV. 1029 (2004).
posted by Dave Hoffman
I’m pleased to welcome October guest-blogger Geoffrey Rapp.
Geoff is an Associate Professor at the University of Toledo College of Law, where is has taught since 2004. Geoff teaches and writes primarily in the areas of substantive tort law and business associations. He has also taught Sports Law, and is a permanent contributor to the Sports Law Blog. Before teaching, Geoff was an Associate at Miner, Barnhill & Galland in Chicago. He clerked for Judge Cornelia G. Kennedy on the U.S. Court of Appeals for the Sixth Circuit after graduating from Yale Law School and Harvard College. He was a Notes Editor on the Yale Law Journal.
Recent publications include:
* The Wreckage of Recklessness, 86 WASH. U. L. REV. (forthcoming 2008)
* Beyond Protection, 87 BOSTON U. L. REV. 91(2007)
* Gouging, 94 KENTUCKY L.J. 525 (2005-2006)
posted by Dave Hoffman
I’m happy to welcome Susan Kuo, of South Carolina Law, as a guest-blogger this month.
Before joining the faculty at the University of South Carolina School of Law, Susan taught as an associate professor at Northern Illinois University College of Law, and as a visiting assistant professor at the University of Toledo College of Law. Her teaching areas include criminal law,criminal procedure, federal practice, conflict of laws, and race and the law. She has published articles on civil rights, privacy law and policy, and criminal law and procedure. Prior to entering into teaching, she was a Special Assistant United States Attorney with the United States Attorney’s Office in Atlanta, Georgia. She also completed two judicial clerkships with the federal courts. She clerked for the Honorable Eugene E. Siler, Jr., United States Court of Appeals for the Sixth Circuit and served as a law clerk for the Honorable Robert H. Hall, United States District Court for the Northern District of Georgia.
posted by Robert Ahdieh
I haven’t listened to all of it, but the Yale School of Management’s recent roundtable on the bailout has a good collection of folks, including Bill Donaldson, Nancy Peretsman, Steve Schwarzman, and Robert Shiller.
Of course, some of it is already ancient history, with a very busy week having passed since.
posted by Lawrence Cunningham
People are wondering about personal finance. Many ask me: is now a good time to apply time-tested principles of value investing, buying stocks at low prices compared to long-term value? Maybe, but one must be cautious as a practical matter; curious persons may also be interested in a bit of value investing history.
The most famous value investor, Warren Buffett, wrote to his fellow Berkshire Hathaway shareholders in 1986:
“Occasional outbreaks of those two super-contagious diseases, fear and greed, will forever occur in the investment community. The timing of these epidemics will be unpredictable. And the market aberrations produced by them will be equally unpredictable, both as to duration and degree. Therefore, we never try to anticipate the arrival or departure of either disease. Our goal is more modest: we simply attempt to be fearful when others are greedy and to be greedy only when others are fearful.”
[The quote appears on p. 157 of my collection of Buffett’s letters, The Essays of Warren Buffett: Lessons for Corporate America (2nd ed. 2008).]
Recent Buffett investments may suggest he is attempting to be greedy now amid prevalent fear, with recent large capital allocations to Goldman Sachs ($5 billion) and Constellation Energy ($5 billion) and a smaller one in BYD, the Chinese battery maker ($230 million). But he said that the prudence of his Goldman investment depends on Congress passing legislation authorizing government intervention in the crisis. Congress failed to do so yesterday but promises another try.
posted by Dave Hoffman
I’ve gotten lots of great comments to this post, including an unusually large number of emails from liberal bloggers who think I’ve pulled a Colin Powell. As I read over their extremely angry letters, I started to have the sense that as many folks who opposed the bailout went to bed last night, they had a sudden, terrible, thought. Which went something like this:
“What if I don’t know what I’m talking about, and we just deliberately hit an iceberg for the sake of short-term political gain?” And what if people, you know, held me to my words?
This morning, such doubts happily put aside as the stock market rose on bargain hunting and the still strong odds that we’ll get some kind of bailout, the blogosphere has erupted in defensiveness. We’re not celebrating Congressional fecklessness, we just hate bush/socialism!
As I’ve written back to these many commentators, this problem increasingly strikes me as one that facts won’t help to resolve. Individuals’ views of the risks of nonaction, and the costs of action, are bound up in their priors. So, it is with no expectation that I will convince any naysayer of the magnitude of the crisis that I simply call your attention to a little number that functions as the economy’s DEFCON.
Go ahead, read the writing on the wall.
And now, you should feel free to return to your regularly scheduled diversions.
posted by Timothy Zick
So Mayor Michael Bloomberg wants a third term. Unfortunately, New York voters have twice passed term limits laws. No matter. Hizzoner apparently plans to end-run the voters and have the City Council, many of whose members are also term-limited, to revise the term limits law. While detractors say the mayor should honor the term limits (he once called an effort to overturn them “disgusting”), supporters of a third Bloomberg term suggest that in this time of “crisis” the city needs his steady hand.
I have no particular bone to pick with Mayor Bloomberg. As far as I could tell from my stint living in Brooklyn, he did a fine job. He’s a popular mayor — today. But the hypocritical and self-serving nature of this decision is extraordinary. Apparently, Bloomberg believed that term limits were necessary — until he was subject to them. This was the story in April: “The mayor is absolutely not seeking a third term,” said Bloomberg spokesman Stu Loeser. Asked if the mayor would promise to leave at the end of 2009, Loeser replied, “Yes.” Then came the crash. So limits on incumbency must give way to the great financial crisis? Yes, say supporters of a third term. Only Bloomberg — and of course the rest of the term-limited officials who would benefit from the revision — can save us now.
Is it any wonder the public is cynical about its political leaders? It’s as if they think the world could not get along without them. Worse, fear has now become a common — and for many an accepted — rationale for continued governance. Just as a terrorist attack requires that we “stay the course,” so too does a financial crisis. Here’s a populist notion: Politicians should get over themselves. Instead, they are acting more and more like aging athletes. When the lights start to fade, they seek an “I’m back!” moment. True, some such comebacks have been successful. But others have failed miserably. The team generally seems to get along fine without the departed star. As for term limits themselves, there may well be sound public policy arguments on both sides of the issue. But at this point they are the law in the city. At the very least, officeholders should respect their constituents enough to allow them to decide whether twice deciding to impose incumbency restrictions was a mistake. It’s no answer that they could vote Bloomberg out — entrenched incumbency and its advantages are among the principal reasons term limits exist.
posted by Virginia Law Review
In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Stephen F. Smith’s article The Supreme Court and the Politics of Death, published in the April 2008 Issue of the Virginia Law Review:
Professor Darryl K. Brown’s response, The Multifarious Politics of Capital Punishment: A Response to Smith , suggests “that the politics of death are not quite as bleak as Smith believes them to be,” and highlights “some significant developments in the moderation of capital punishment policy achieved through the democratic process” before closing with some thoughts regarding “the significance of the Court’s recent forays into capital punishment regulation.”
In Get in the Game or Get out of the Way: Fixing the Politics of Death, Professor Adam M. Gershowitz agrees with Professor Smith that “the Court has politicized the death penalty and in doing so inadvertently stymied reform efforts,” but takes a less optimistic view of the Court’s latest jurisprudence, instaed arguing, “If the Court desires to eliminate the arbitrariness of the death penalty, it needs to either take a major step forward or get out of the way so that the political actors can take responsibility.”
Finally, in What’s Wrong with Democracy? A Critique of “The Supreme Court and the Politics of Death”, Professor Paul G. Cassell and District Attorney Joshua K. Marquis take issue with the need for judicial reform, arguing that “[c]apital punishment is a proper punishment in the American criminal justice system, whose popular support should not mark it for judicial undermining, but rather judicial support,” and that “Professor Smith should be more trusting in the outcome of democratic processes.”
posted by Jaya Ramji-Nogales
For those junior law firm serfs toiling away in the dungeons of document discovery drudgery, some good news is coming your way. Apart from thanking your lucky stars that you chose to be a lawyer rather than an investment banker, you can be happy about the recent promulgation of Federal Rule of Evidence 502. This new rule ensures that the unintentional disclosure of a privileged document does not result in automatic waiver of the attorney-client and work product privileges on all documents concerning the same subject matter. Rather than the current standard that allows for no human error, under the new rule, as long as you take “reasonable steps” to prevent disclosure and to rectify the error once discovered, the privilege will not be waived on related documents. Moreover, the rule applies not only to proceedings in federal court, but also to disclosures made to a “federal office or agency” — thus encouraging corporations to comply with federal investigations without needing to worry about broad waiver of privileges.
posted by Sarah Waldeck
A recent article in Newsweek reads like it was pulled straight from a Criminal Law lecture on the necessity doctrine:
Would you drive your boat faster to save the lives of five drowning people knowing that a person in your boat will fall off and drown? Would you fail to give a drug to a terminally ill patient knowing that he will die without it but his organs could be used to save three other patients? Would you suffocate your screaming baby if it would prevent enemy soldiers from finding and killing you both, along with the eight others hiding out with you?
Harvard psychologists are collecting answers to questions like these on the Moral Sense Test, which you can take on-line at moral.wjh.harvard.com. The answers are consistent with what one would expect from 1Ls:
[M]ost people say that it is acceptable to speed up the boat, but iffy to omit care to the patient. Although many people initially respond that it is unthinkable to suffocate the baby, they later often say that it is permissible in that situation.
Why these patterns? Cases 1 and 3 require actions, case 2 the omission of an action. All three cases result in a clear win in terms of lives saved: five, three and nine over one death. In cases 1 and 2, one person is made worse off, whereas in case 3, the baby dies no matter what choice is made. In case 1, the harm to the one arises as a side effect. The goal is to save five, not drop off and drown the one. In case 2, the goal is to end the life of the patient, as he is the means to saving three others.
The interesting part is what psychology is teaching us about why we tend to have similar reactions to the questions posed in the Moral Sense Test:
What is remarkable is that people with different backgrounds, including atheists and those of faith, respond in the same way. Moreover, when asked why they make their decisions, most people are clueless, but confident in their choices. . . . Surprisingly, our emotions do not appear to have much effect on our judgments about right and wrong in these moral dilemmas. A study of individuals with damage to an area of the brain that links decision-making and emotion found that when faced with a series of moral dilemmas, these patients generally made the same moral judgments as most people. This suggests that emotions are not necessary for such judgments.
The Newsweek article also discusses new studies of psychopaths that shed light on the role that emotion has on their actions. At least one conclusion is relevant for formulations of the insanity defense:
New, preliminary studies suggest that clinically diagnosed psychopaths do recognize right from wrong, as evidenced by their responses to moral dilemmas. What is different is their behavior. While all of us can become angry and have violent thoughts, our emotions typically restrain our violent tendencies. In contrast, psychopaths are free of such emotional restraints. They act violently even though they know it is wrong because they are without remorse, guilt or shame.
posted by Neil Buchanan
In the first presidential debate last Friday, the moderator’s first question was addressed to John McCain: “[A]re there fundamental differences between your approach and Senator Obama’s approach to what you would do as president to lead this country out of the financial crisis?” McCain’s reply began as follows: “Well, the first thing we have to do is get spending under control in Washington. It’s completely out of control.” He soon added: “I’m going to veto every single spending bill that comes across my desk.”
Different viewers surely had different moments during the debate when their jaws dropped. Sen. McCain’s assertion that Pakistan was “a failed state” caused at least one knowledgeable commentator to drop a stitch. (Sorry for the mixed metaphor.) For me, though, it was that first answer about cutting government spending that left me staring in wonder. McCain’s comments indicated a complete disconnect from even the most basic understanding of macroeconomics and a mindless commitment to an orthodoxy that would make matters much worse. Perhaps worse still,
posted by Virginia Law Review
VOLUME 94 SEPTEMBER 2008 ISSUE 5
by Richard C. Schragger
|Patent Claim Construction||
by Tom Chen
by Elizabeth Katz
by Adam F. Scales
posted by Yale Law Journal
Authors Mitchell M. Gans, Bridget J. Crawford, and Jonathan G. Blattmachr previously “suggested in [The Pocket Part] that post-death publicity rights could be excluded from the decedent’s estate for tax purposes if state legislation precluded the decedent from exercising post-death control.” In the latest issue of The Pocket Part they respond to Professor Joshua Tate’s rebuttal of their original piece. The authors argue that Tate’s contention “that under current law, estate tax inclusion would be required regardless of the decedent’s ability to exercise control. . . .[meaning] the estate tax would apply even if the legislation vested those rights in the decedent’s oldest daughter and even if the decedent had no right to alter this outcome” represents an unsupportable view of the law. Gans, Crawford, and Blattmachr argue that “Tate’s analysis misconstrues fundamental estate tax principles and misunderstands the precedents on which he relies.”
posted by Timothy Zick
The First Amendment Center has released the results of its annual nationwide survey regarding First Amendment liberties. As usual, respondents expressed general support for free speech and other First Amendment liberties. But when asked about specific situations, the answers suggest a willingness to accept a substantial measure of governmental control.
As usual, a number of survey questions related to broadcast and other media. There was substantial support for content restrictions and even some government directives with regard to media. For example, 66% of respondents said the government should require television broadcasters to allot equal time to liberal and conservative broadcasts (62% would extend that requirement to newspapers); 39% of respondents would extend the indecency regulations applied to broadcast television to cable and satellite media; and 38% would permit government to require broadcasters to report a specified amount of “positive news” in return for licenses to operate. These numbers are relatively consistent over the past several years. One number that did creep up a bit–the number of respondents who agree with the statement “the falsifying or making up of stories in the American news media is a widespread problem” (66%).
Various other content regulations also garnered substantial support. For example, nearly a third of respondents disagreed that musicians should be allowed to sing songs with lyrics that others might find offensive; 42% responded that speakers should not be allowed to say things in public that might offend religious groups; 54% said the same thing with respect to racial groups. And 50% thought schools ought to be able to discipline students for posting (while off campus) entries on social networking sites that may be “disruptive” to school classes. These numbers, too, seem relatively consistent across time.
These, however, were not the most interesting (or disturbing) results of the survey.
posted by Dave Hoffman
As you probably know, the Great Bailout just went down in the House, failing for lack of support on both right and left. This, despite the (glaring) fact that companies need to float an enormous amount of paper tomorrow. And payroll day.
In any event, in the face of this shocking loss, Chris Bowers, at Open Left, comments:
Yes! (0.00 / 0)
It has been a long time since we won something like this. Great news. Hopefully, it will be pushed until after the election now.
Every day that passes when we don’t hand this much power to Paulson is a good thing. Any bill that Bush would sign would suck. Let’s do this after the election.
For now, yey!
by: Chris Bowers @ Mon Sep 29, 2008 at 12:58:12 PM CDT
This frame (Bush lied/people died/let the economy fail) has been all over the liberal blogs of late. I obviously think it is rank foolishness, by people who either don’t understand how the economy works, or who hope that an economic contraction will help them advance their policy agenda. It suggests to me that political progressives aren’t serious about governance, and aren’t to be trusted with even the barest hint of power.
It’s been a sobering education. I had thought that generally one ought not to be terribly concerned with federal politics, because most of the issues decided on the federal level are symbolic. That is, the differences between the parties are minor, and governance happens through the professional bureaucracy, which can be trusted to muck-things-up on a random, and thus not systemic, level. Now I understand that if the bloggers had their way, we’d see real change. In the direction of a socialist banana republic, or a crony capitalist autocracy. Shucks, until the last few weeks, I thought these folks were mostly kidding!
posted by Danielle Citron
Government officials are increasingly adopting Web 2.0 technologies to connect with citizens. Governors and mayors are blogging and posting videos on You Tube. See here. The State Department has an internal wiki called Diplopedia, which it presented at the Wikipedia conference in Alexandria, Egypt. Perhaps agencies will similarly embrace Web 2.0 platforms to transform their e-Rulemaking efforts, which to date have simply reproduced offline NPRMs and comments online. Rumor has it that the ABA has a committee working on potential e-Rulemaking projects. If the ABA produces a report, it might interest the new administration, but only if online tools would cheaply and effectively bring together stakeholders and the public to discuss proposed agency action.
posted by Frank Pasquale
A recent study concluded that John McCain’s proposed health reform, which includes “the elimination of the income tax preference for employer-sponsored insurance,” “would cause twenty million Americans to lose such coverage.” It’s hard to imagine how such a prescription could be so counterproductive. Luckily, Thomas L. Greaney, Director of St. Louis University’s Center for Health Law Studies, explains in clear terms the myopia of now-modish market-driven reforms:
The conservative prescription [for health care is straightforward:]: Take away the tax subsidies, reduce the role of insurers and employers and place decisions in the hands of you, the consumer. Give families health savings accounts so they have — as the gambling-sports cliche du jour puts it — “skin in the game.” And once we improve information technology so they can shop for the best and cheapest care: Voila! Problems solved.
Unfortunately, a host of pesky facts interfere with that rosy scenario: 1) Most cost inflation is caused by advanced medical technology and therapies that are used by a relatively small number of people: the very sick and the very old, who often are one and the same. 2) Shopping at the point of care is unrealistic in many, if not most, costly episodes. Your physician does not and cannot know the full costs of treatments when she makes a diagnosis or referral. 3) And very few of us, sorry to say, know enough about the benefits, costs and risks of alternatives to make informed decisions, even if we were provided with computerized data.
Particularly troubling to me is the McCain plan’s reliance on the individual market for health insurance, given the demonstrated inefficiencies of such nongroup plans. As the study cited above notes:
posted by Lawrence Cunningham
Congress is signaling belief that accounting standards are a cause and may be a vital component of the cure for the current credit crisis. Slipped into Congress’s bailout bill is a short but potentially pivotal authorization to the Securities and Exchange Commission to suspend accounting standards applicable to many of the troubled assets at the heart of the credit crunch.
Those assets are reported at current market prices, which have declined precipitously and resulted in freezing credit markets. The bill envisions the SEC allowing these troubled assets to be reported at values higher than current market price, such as their value if held to maturity and collected in accordance with contractual terms. If the assets can be reported at higher values, banks face less pressure maintaining capital required by counterparties or regulations. But if reported at lower values, current pressures may continue or worsen.
Government transactions in these assets will be a basis for determining market value and thus how they are reported under fair value accounting standards. Government will wish to reflect lower prices in the name of protecting taxpayers; but higher valuations, by increasing apparent capital strength of enterprises continuing to hold related assets, may promote chances that the program succeeds in stabilizing credit markets. If fair accounting standards are suspended, it won’t matter what prices government support reveals. The upshot is that accounting standards may play a pivotal role in this policy discussion. Should they?
posted by Georgetown Law Journal
Nan D. Hunter
Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals
Beth Van Schaack
Steven L. Schwarcz
Preserving the Value of Unanimous Criminal Jury Verdicts in Anti-Deadlock Instructions
Emil J. Bove III
The Elusive Value: Protecting Privacy During Class Action Discovery