Archive for February, 2009
posted by Jason Mazzone
Another report on hyperparenting. The New York Times reports the emergence of children with such strongly instilled food concerns they are afraid to eat. Doctors have coined the term orthorexia for the phenomenon.
Recently, I passed a mother and child of about 3 or 4 years old standing before a pretzel vendor. Here is the conversation I overheard:
Child: “Mommy, I want a pretzel! I want a pretzel!”
Mother: “Jennifer, a pretzel is 300 calories. Are you sure you want to spend 300 calories on a pretzel?”
Child: “I want a pretzel! I want a pretzel!”
Mother: “Jennifer, I want you to think about this. If you spend 300 calories on the pretzel, you won’t have those calories left for later.”
Child: “I want a pretzel! I want a pretzel”
I don’t know whether the child received the pretzel. But whatever happened to “No, you’ll spoil your appetite”?
posted by Sarah Waldeck
On Tuesday President Obama announced that by 2020 the United States will have the highest proportion of college graduates in the world. This admirable goal will be difficult to deliver. The National Center for Public Policy and Higher Education recently reported that college tuition and fees rose 439 percent between 1982 – 2007, while median family income rose only 147 percent. The Center’s president commented, “If we go on this way for another 25 years, we won’t have an affordable system of higher education.”
Something has got to give. Yesterday’s Times reported that some colleges are experimenting with three-year programs that enable students to save a year’s tuition. I’ve often thought that the number of freshmen who “go away to college” will shrink dramatically in coming years, because students will be forced to stay closer to home to avoid room and board fees. But something more dramatic will be required to really address the problem of runaway costs.
On-line or distance learning, which reduces labor costs and pretty much eliminates the need for a physical plant, is one way to tackle the problem. I’ve always had a hard time even contemplating on-line learning. But I’m beginning to suspect that this is a failure of imagination on my part.
posted by Helen Norton
Yesterday a unanimous Supreme Court ruled that a city did not violate the First Amendment’s free speech clause when it rejected a religious organization’s request to erect a monument commemorating the “Seven Aphorisms of Summum” (a series of statements that Summum adherents believe that God gave to Moses) in a city park that already featured a number of monuments, including a Ten Commandments monument donated to the city by the Fraternal Order of the Eagles.
Among the issues presented by this case was whether the city can claim its choice of monuments as its own expression – i.e., as government speech. In past cases, the Court has made clear that government’s own speech is “exempt from First Amendment scrutiny,” leaving the government generally free to adopt and deliver whatever message it chooses when it speaks on its own behalf. Those unhappy with their government’s expressive choices can appropriately seek redress through political accountability measures — like lobbying the government to change its position or voting for new government decisionmakers — rather than through First Amendment litigation.
Writing for eight members of the Court, Justice Alito concluded that “the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. . . . Government decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture. The monuments that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech.”
But this still leaves the question of how courts should, as a general matter, decide whether contested speech is actually the government’s. For this reason Justice Souter separately concurred to express his “qualms” about “accepting the position that public monuments are government speech categorically” and urged the Court to “go slow” in defining the bounds of government speech. Cautioning against a per se approach to government speech disputes, he suggested that courts should instead ask “whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech . . . .”
In an article in last year’s Boston University Law Review, I proposed a test that seeks to address the concerns of Justice Souter (and others) about an uncabined and undertheorized approach to goverment speech. I urge that a public entity seeking to claim the government speech defense should establish that the contested expression is governmental in origin both formally (i.e., that the government claimed the speech as its own when it authorized the communication) and functionally (i.e., that onlookers understand the speech to be the government’s at the time of its delivery). This approach identifies two points at which government must expose its expressive choices to the public — when it decides to express a certain idea and when it actually communicates that idea — and thus seeks to maximize prospects that members of the public will have the information necessary to hold their government accountable for its expressive choices if they so desire.
Under this framework, I agree that the city’s choice of monuments should be considered its own speech. Like other speakers, government may use its own property for its own expressive purposes and, indeed, such choices provide valuable information to the public about its government’s values. The city can — and, in my opinion, did — claim the speech as its own when it transparently took ownership of certain monuments and selected them for permanent display in its own park (the respondent urged that the city be required to enact an official resolution publicly adopting “the message” to be conveyed by its monuments; while I agree that this is especially transparent, I do not agree that this is the only means by which the city may claim speech as its own in a way that facilitates political accountability). And absent express indications to the contrary, onlookers generally understand a message to spring from the owner of the property on which it appears. For this reason, a city’s choice to honor Robert E. Lee but not Ulysses Grant in a city park remains transparently governmental expression, as does a mayor’s decision to display only art advocating racial equality for its observance of Dr. King’s birthday.
Note, however, that constitutional constraints other than the free speech clause may still limit governmental speech. For this reason, even if a government’s choice of monuments is government speech exempt from free speech clause scrutiny, that government may run afoul of the establishment clause if it uses its speech to celebrate majority but not minority religions. (The Summum plaintiffs, however, did not allege a federal establishment clause violation in their complaint.)
posted by Lawrence Cunningham
Yesterday afternoon President Obama outlined his approach to financial regulation reform that is undoubtedly coming our way. He named the following seven goals
1. Enforce strict oversight of financial institutions that pose systemic risks
2. Strengthen markets so they can withstand both system-wide stress and failure of large firms
3. Encourage a financial system that is open and transparent.
4. Supervise financial products based on “actual data on how actual people make financial decisions”
5. Hold participants accountable for their actions, “starting at the top”
6. Overhaul regulations so they are comprehensive and free of gaps and do not result in regulatory competition
7. Recognize that the challenges are global
The President said: “Iif we all do our jobs, if we once again guide the market’s invisible hand with a higher principle, our markets will recover. . . . Our economy will once again thrive, and America will once again lead the world in this new century as it did in the last.”
The President also emphasized the following:
“The choice we face is not between some oppressive government-run economy or a chaotic and unforgiving capitalism. Rather, strong financial markets require clear rules of the road, not to hinder financial institutions, but to protect consumers and investors, and ultimately to keep those financial institutions strong. Not to stifle, but to advance competition, growth and prosperity. And not just to manage crises, but to prevent crises from happening in the first place, by restoring accountability, transparency and trust in our financial markets.”
Hat Tip: Don Marlais
Photo: Official White House Photo taken during the President’s remarks
posted by Lawrence Cunningham
Inspired by Frank’s post, one wonders who, exactly, are the “moneyed elite” in the United States?
Andrew Sullivan uses the term suggesting a reference to people whose annual incomes run to multi-millions of dollars and whose net worth is accordingly in excess of some $10 million or so.
Another reference appears to the new book Richistan, where the threshold of even the least among the moneyed elite seems to contemplate a net worth of least $1 million (ranging up to $10 million). Annual income is unspecified but supposes average home values of $810,000 which implies incomes of some small multiple of that, certainly exceeding $1 million.
If these are the right parameters to think of the “moneyed elite,” then one wonders about cheering President Obama’s reported tax plan. It reportedly targets tax increases, and reduced tax deductions and credits, at individuals whose annual income is $100,000 (no tax credit) or $125,000 (highest tax rate and least deductions).
Are these really the “moneyed elite” in this country? To be sure, President Bush and Congress ran up an extraordinary deficit the past several years (the figure $1 trillion is heard); President Obama and Congress just passed a nearly $1 trillion stimulus package; and the President and his Treasury Department, with Congressional support, are sustaining the commitment, running to nearly another $1 trillion, to rescue the financial system.
Somebody has to pay for all this. But is it fair to say that imposing higher taxes on people whose incomes are $100,000, $125,000 or even $250,000 (the figure President Obama used in his speech Tuesday night), putting the burden on “the moneyed elite”? It is doubtful that such earners had anywhere near a net worth of $1 million even at the height of the market last year; with the plummeting of asset values since September, moneyed elite, or even affluent, as the New York Times puts it, may not be the best way to describe their financial condition.
posted by Frank Pasquale
I just wanted to put up a note of congratulations to co-blogger Danielle Citron, whose work Cyber Civil Rights was just published by the B.U. Law Review. I’ve seen Citron present the piece at a conference, and I think it really breaks new ground in applying venerable laws to the online environment. As recent controversies have shown, it’s easy for online mobs to inflict real injuries on their victims–and women bear a disproportionate share of the abuse. Citron argues that “acting against these attacks . . . helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.”
David Hoffman and I tried to organize an online symposium here at Co-Op last fall to discuss Citron’s work, but we couldn’t get the schedules of participants worked out. This year we’re going to try again, hopefully for early April. If you’d like to suggest possible commentators, please email me.
One good side effect of the delay is that we’ll also be able to discuss some of Danielle’s more recent work. Online attacks are getting more attention in the media. Evoking Catharine MacKinnon’s work to end sexual harassment, Citron argues that naming and recognizing the gendered nature of many online threats is crucial to developing common cultural understandings that enable real democratic culture and participation online.
I really value that kind of historical perspective, especially after listening to Fred Strebeigh discuss his work Equal: Women Reshape American Law. Strebeigh “tells the story of the female lawyers who took on sexual harassment, sexual discrimination and violence against women,” and the most remarkable part of the podcast was how many women resigned themselves to sexism in the legal profession even as they were beginning their careers in the extraordinarily discriminatory environment of the 1950s and 60s. I see Citron’s work as another step in the consciousness-raising that brave feminists began decades ago.
posted by Jason Mazzone
I live near the Strawberry Fields memorial with the mosaic of the word “Imagine” that is in Central Park opposite the Dakota. Yoko Ono Lennon funded and maintains the memorial. Almost every day, somebody asks me for directions to the site.
Yoko Ono Lennon, along with Lennon’s sons Sean and Julian, vigorously protect their copyrights in John Lennon’s works. Most recently, the Lennons sued the producer of a movie about intelleigent design that included 15 seconds from the song Imagine. Judge Sidney Stein (S.D.N.Y.) ruled in Lennon v. Premise Media that the producer was likely to prevail on a fair use defense and he denied the Lennons a preliminary injunction.
One can only guess how the Lennons feel about Justice Alito reproducing the entire lyrics to Imagine in footnote 2 of his opinion for the Court today in Pleasant Grove City v. Summum.
If the Supreme Court were not a slow adapter, Alito might have attached an audio file.
posted by Frank Pasquale
I’m afraid I missed the President’s speech last night, but I’ve found Andrew Sullivan’s reactions to it well worth reading . . . especially his litany of the chief problems we face as a country:
Here are my concerns: a moneyed elite whose estrangement from the center of American life, proved by their obscene indifference to minimal propriety . . . has destabilized the critical middle of American polity, and begun to feed a cynicism about government that is corrosive of democracy; a culture of debt that has pervaded public and private America that bespeaks deep contempt for future generations; a physical infrastructure that is in obvious disrepair; an empire that seems to be running on auto-pilot, which keeps adding new provinces, with no way to sustain them in the long run; a healthcare system that seems to have built up as much waste as innovation and as much bureaucracy as the worst form of socialized medicine; an energy policy that keeps us in hock to Arab dictators and abuses our responsibility to be careful stewards of God’s creation. (emphasis added)
I couldn’t have put it better myself. Obama’s plan to tax that “moneyed elite” in order to get some leverage on the health care leviathan seems an ideal first step toward tackling these problem, even if it does inevitably hit some of the more virtuous denizens of lower Richistan.
Hopefully administration leaders will get a chance to see the film version of Maggie Mahar’s Money-Driven Medicine. The book brilliantly chronicles the wasteful complexity of our current health care non-system. I am thrilled to see it adapted by a documentarist of Alex Gibney‘s stature (he directed “Enron: The Smartest Guys in the Room” and “Taxi to the Dark Side”). I’ll be hosting a screening at Yale in April.
posted by Kaimipono D. Wenger
I use M&M’s, of course.
posted by Danielle Citron
In an article published in Harper’s Weekly in December 1913, Louis Brandeis prescribed “publicity” to remedy the financial system’s ails: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” As Wired reporter Daniel Roth explains, those words resonated for President Franklin Delano Roosevelt, when he wrestled with our last shattering financial crisis, leading him to support a bill that required companies to file detailed accounts of their financial health and activity.
Fast forward to our current financial crisis where the problem is not a dearth of information, but a broken system of disclosure. According to Roth, we may be awash in information about our financial system (e.g., 200 gigabytes of Edgar filings each year), but that information is so complex despite the SEC’s plain-language efforts that quick and easy answers to simple questions like “How much is my bank’s capital tied up in risky debt obligations” elude us. Part of the problem is that the information appears in plain text format, preventing cross analysis and easy searchability. Our financial data diet is like a box of chocolates: it looks good, but offers little value and risks serious problems.
Fixing our broken system of disclosure will involve new technology: by 2011, public companies will have to submit their financial filings in a standardized format (Extensible Business Reporting Langage aka XBRL) that can be easily searched, exported, and mashed up for analysis. This creates an open-source(ish) dynamic: the interested public can crunch the financial data, creating “an army of citizen-regulators.” This technology-enabled participation may allow users to contribute to the analytical and factual mix. This is something that Archon Fung and his co-authors call “collaborative transparency.” Of course, the success of such collaborative transparency depends upon the public’s participation and the the willingness of government officials to respond to the public’s valid concerns. It also may have a limited impact as only public companies must use the XBRL, excluding hedge funds, pension funds, and other non-publicly traded entities. Moreover, effective disclosure may require the reporting of data more frequently than on a quarterly or annual basis. But XBRL would surely liberate data and, in that regard, has great potential to transform the transparency of the financial system.
posted by Lawrence Cunningham
Scholars often detect a strengthening of Delaware corporate law amid national crises that can ignite interest in having the federal government increasingly preempt state corporation law. Two recent cases may support that conjecture, allowing some surprising claims to withstand motions to dismiss:
(1) a claim against AIG’s directors asserting that they presided, with sustained and systemic neglect to control, over what was essentially a “criminal enterprise”; and
(2) a claim against Citigroup’s directors asserting that they committed waste in approving a lavish payout to a departing CEO who presided over the destruction of billions of dollars of wealth at the corporation.
The opinions coincide with rising public outage over executive compensation and strict federal laws capping executive compensation for scores of public companies, mostly banks, but also automobile companies and finance affiliates. They coincide with ongoing frustration over the government’s injection of more than $120 billion into AIG while it continues to report staggering losses reportedly exceeding $50 billion this quarter alone.
Calls will continue for federal legislation that limits corporate executive compensation, taking away Delaware corporation law’s role on the subject; calls may heat up for broader federal preemption of a wide range of state law, certainly in banking and insurance, and just possibly corporation law as well, at least for institutions of systemic significance.
Whether Delaware is really responding to those threats or simply taking the cases on the merits, the two opinions are of considerable interest, even though written merely by the trial court and merely addressing motions to dismiss.
posted by Lawrence Cunningham
Inspired by Dan’s post on the tort of breach of confidentiality: can a unionized baseball player win breach of contract claims if information the collective bargaining agreement requires to be kept confidential or destroyed is neither destroyed nor kept confidential?
The issue arises concerning public disclosures earlier this month of 2003 steroid test results for Alex Rodriquez that the CBA required the union and/or the league to destroy or keep confidential. Numerous issues appear, both factual and legal.
First, a threshold factual issue: exactly how was the information disclosed? The information was generated in 2003, kept at a third-party lab through April 2004, when federal agents with warrants seized it. The information is evidence in an ongoing government investigation and appears to be under seal by court order. It does not appear that either the union or the league were responsible for the public disclosure, which was reported by Sports Illustrated earlier this month.
posted by Jason Mazzone
Please, please, please, let there be the Jindal-Palin ticket in 2012.
Bonus question: which MSNBC commentator (or 30 Rock character?) says “Oh, God” just before Jindal speaks?
posted by Lawrence Cunningham
Treasury Secretary Timothy Geithner swept into office announcing tough rules restricting lobbying by bank officials of public officials in connection with distribution of federal funds to the banking sector. At the same time, talk continues about how Treasury may yet determine that it is necessary to nationalize some banks. A conflict would appear.
The lobbying rules assume that public officials and bank officials are different categories of people. But if Treasury assumes control of a bank by nationalizing one, Treasury (or some other public official) will appoint bank officials. Then it will be difficult to distinguish between public officials and bank officials. Bank officials will be public officials.
Of course, this is just one of endless anxieties that would accompany any decision to nationalize US banks. Perhaps it is a sign that the Treasury Secretary means it when he says that nationalizing banks is not a desirable course.
posted by Daniel Solove
Over at Emergent Chaos, Adam Shostack raises an interesting issue regarding Alex Rodriguez (A-Rod) and confidentiality. According to the rules in place about the baseball steroid testing back in 2003, the results of these tests were supposed to be confidential. According to Gregg Doyel at CBS:
In 2003 the deal was simple: The players would submit to anonymous steroid testing, and if more than 5 percent tested positive, real testing with real penalties would begin in 2004.
But in 2003, the tests were going to be (A) anonymous and then (B) destroyed.
Shostack suggests that A-Rod might have an action for breach of contract. He might also have an action for the breach of confidentiality tort. Professor Neil Richards and I have written extensively about breach of confidentiality. The tort is recognized in most states, and it provides for liability whenever one owes a duty of confidentiality and breaches that duty. We observed, however, that the tort has remained “relatively obscure and frequently overlooked” in American law. In contrast, in England, the tort is robust and applies quite broadly. We suggested in our article that the American tort could develop more along the lines of the English tort, and it is, in fact, already beginning to head in that direction. See Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. 123 (2007).
I believe that A-Rod would have a strong case for breach of confidentiality. The A-Rod situation demonstrates why an action under the tort of breach of confidentiality might be preferable to an action for public disclosure of private facts. The public disclosure tort doesn’t apply to newsworthy information, and the fact A-Rod took steroids is newsworthy. The breach of confidentiality tort doesn’t have a newsworthiness limitation. The reason why it doesn’t is that the tort remedies a different kind of harm than the public disclosure tort. Breach of confidentiality protects confidential relationships, which often involve highly newsworthy information. Businesses hire workers and depend upon their keeping information confidential. Doctors, lawyers, accountants, and others form confidential relationships with patients and clients. In a lot of cases, the information is newsworthy, such as when it involves public figures. The law protects patient confidentiality even when the patient is a public figure because of the value of protecting the patient-physician relationship. The public disclosure tort ensures that people’s private information which is not of legitimate concern to the public be protected from disclosure. On the other hand, breach of confidentiality is not only about shielding one’s private life — it is primarily about ensuring trust in relationships and ensuring that promises and expectations of confidentiality are maintained and respected.
The breach of confidentiality tort has significantly different First Amendment implications from the privacy tort of public disclosure of private facts. There’s a fascinating set of First Amendment issues raised by the breach of confidentiality tort, as well as by contracts requiring confidentiality. In fact, these issues raise a much broader and deeper set of issues about how the First Amendment deals with civil liability. Neil and I have just written a new article that explores these issues. We just started to submit it to law reviews and plan to post it on SSRN soon.
A related issue involves the LAPD’s leaked photo of a beaten and bruised Rihanna. According to ABC News:
posted by Daniel Solove
Over at Legal Theory blog, Larry Solum is gathering data for this year’s entry level hiring report.
posted by Helen Norton
Fed Chair Ben Bernanke testified before Congress today on the state of the economy. Striking a tone alternatively grim and hopeful, his testimony posed challenges for those required to sum things up in a pithy takeaway. Whether 2010 is a long time to wait for a recovery thus depends on whom you ask: The New York Times leads gloomily with “Fed Chief Says Recovery May Wait Until 2010 Or Later” while the comparatively cheery Washington Post reports that “The U.S. recession could end this year, paving the way for a ‘year of recovery’ in 2010.”
posted by Jason Mazzone
Today, publisher Rupert Murdoch apologized for the recent New York Post cartoon that some viewed as racially offensive in its attribution of Congress’ stimulus bill to a chimp. “Today I want to personally apologize to any reader who felt offended, and even insulted,” Murdoch, said. “I can assure you — without a doubt — that the only intent of that cartoon was to mock a badly written piece of legislation.”
Let’s not let chimps get stuck with a reputation for making bad laws.
As Jane Goodall and Frans de Waal have documented chimpanzees are highly social creatures. Among other things, chimps have long-lasting familial ties and they live in communities governed by complex social norms. Chimps cooperate in hunting and maintain social order through sophisticated forms of communication. They adopt orphaned siblings. They use tools for a variety of purposes. They mourn death. They have phenomenal memories. They can learn to complete complex tasks. They have highly individualized personalities. They engage in diplomacy and other political behavior. They patrol the boundaries of their communities (and sometimes they engage in warfare with outsiders).
Chimp law works quite well.
posted by Dave Hoffman
A few weeks back, Matt Bodie put up a thread on the winter law review submission season at Prawfs. It didn’t get too many responses, suggesting to me that the season hadn’t yet arrived. Time having passed, I’m putting this post up to inquire of our student law review readers:
1. Has your board turned over?
2. If not, when will it?
3. Do you want new articles on the day the new board moves in, or would you prefer to get used to the new digs first?
4. If you have already turned over, are you planning any theme issues that folks ought to consider submitting specialized pieces for?
5. What format do you want pieces in (especially if you are changing your previous policies).
6. Do you (still) take cash?
I will bump this thread weekly.
posted by Lawrence Cunningham
Citigroup and other banks face populist rebuke for executive compensation and lavishness amid a financial crisis the banks may have fomented and resulting undercapitalization that puts them and the financial system on the brink of collapse.
The demotic backlash reaches particularly to Citi’s deal with The New York Mets concerning branding rights associated with the team’s new stadium, Citi Field, scheduled to open this baseball season. Citi has a 20-year contract with the Mets for various marketing programs, including naming the stadium, in exchange for $20 million in annual payments.
Other banks have similar sports-branding deals with other teams. Barclays, the British bank, signed a contract in 2007 on terms substantially similar to the Citi-Mets deal. It agreed to pay $20 million annually for 20 years in connection with promoting the New York Nets basketball team and naming their new arena.
Bank of America has a contract with the Carolina Panthers football team, under which it pays $7 million annually for marketing rights at that team’s stadium, including naming it. Notably, on a per-game basis, that figure is 4 times higher than Citi’s Mets deal and twice as a high as the Barclays deal.
Pressure on Citi heated up in late January when some in Congress demanded that Citi terminate its contract. Citi reportedly gave some thought to terminating the agreement, but promptly quashed speculation that it would do so. Others in Congress support that decision, emphasizing that the contract and marketing arrangements involve business decisions that it is not the job of Congress to second guess or micromanage.
Nevertheless, pressure remains, with a New York Times reporter suggesting the money would be better spent retaining workers, while others defend the deals on the grounds that they help the banks’ economic positions, both through improved branding and associated merchandising transactions.
How should informed people think about the Citi-Mets arrangement, and others, and assess the competing political, business and economic issues implicated?