Archive for April, 2009
posted by Gerard Magliocca
Well, I’m glad someone finally read my post from two weeks ago. If I only had the same kind of information about the Kentucky Derby.
posted by Vanderbilt Law Review
Vanderbilt Law Review, Volume 62, Number 3 (April 2009)
Tomer Broude & Doron Teichman, Outsourcing and Insourcing Crime: The Political Economy of Globalized Criminal Activity, 62 Vand. L. Rev. 795 (2009).
Terry A. Maroney, Emotional Common Sense as Constitutional Law, 62 Vand. L. Rev. 851 (2009).
Caren Myers Morrison, Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records, 62 Vand. L. Rev. 921 (2009).
Lesley R. Attkisson, Putting a Stop to Sprawl: State Intervention as a Tool for Growth Management, 62 Vand. L. Rev. 979 (2009).
Lauren Gaffney, The Circle of Assent: How “Agreement” Can Save Mandatory Arbitration in Long-Term Care Contracts, 62 Vand. L. Rev. 1017 (2009).
Georgia Lee Sims, The Criminalization of Mental Illness: How Theoretical Failures Create Real Problems in the Criminal Justice System, 62 Vand. L. Rev. 1053 (2009).
Interested in writing a response to one of these articles? Check out En Banc to find out how.
posted by Sonja Starr
Thanks again to Danielle and Dan for inviting me to blog here this month. I didn’t expect, when I started this guest-blogging stint, that same-sex marriage would be a primary focus of my posts–it’s something I care about as a citizen, but not one of my academic research fields. But my posts have been largely driven by events, and it seems clear that April 2009 will be looked back upon as a turning point in this civil rights movement. The month started with major developments in Iowa, Vermont, and DC, and today it ends with what strikes me as even bigger news: the Washington Post and ABC News released what I think is the first nationwide poll showing that more respondents support same-sex marriage than oppose it. The split (49% to 46%) is within the poll’s margin of error, but even so, it represents a pretty dramatic shift–less than three years ago, the same poll split 58% opposed and 36% in favor.
The Post article treats this as being largely a story about demographics, and of course that is part of the explanation: young people are much more likely to support marriage equality than older people. But the composition of the population hasn’t changed fast enough to explain shifts of this magnitude in a few years–it’s also got to be that a lot of people, young and old, have changed their minds. As I suggested in an earlier post, court decisions might have contributed to that change–by direct persuasion, by starting a statewide or nationwide conversation that gets people to question traditions, or simply by allowing gay and lesbian couples to begin to marry (which could shape public opinion as people realize that fears about the effects on marriage as a social institution have not panned out).
In any event, whatever the role of courts in bringing about this cultural shift, now that it’s happening, it suggests that the courts will probably play a less central role in pushing the movement toward marriage equality forward in the future. This is increasingly becoming a battle that marriage equality advocates can win in legislatures and at the ballot box. As the poll numbers shift, we’re likely to see increased support for same-sex marriage from politicians who might have been reluctant to take that stand previously. (I suspect this will eventually include President Obama.) That support may be led by Democrats, but it will cross party lines. Of course, this cultural shift is far from being complete, as California voters demonstrated a few months ago. There are still a substantial number of energetic opponents (like the National Organization for Marriage, which I’ve noticed seems to have dropped its priceless “2M4M” slogan). But the road ahead may not be that long. Check out statistician Nate Silver’s state-by-state projections–a few weeks ago, he predicted that every state will have majority support for marriage equality by 2024. Silver also projected that marriage equality would achieve majority support nationwide by “sometime in the 2010s”–so if the Post/ABC News poll is correct, Silver’s projections may have been on the conservative side.
Increasing public support matters, and not just because it is likely to affect the ultimate state of the law–I suspect that given a choice between achieving marriage equality through the courts and achieving it through the democratic process in the same timeframe, just about every equality advocate would prefer the latter (even if the court decisions couldn’t be overturned by referendum). That’s because the battle over same-sex marriage is ultimately one about social meaning–it’s about the expressive power of the law. Sure, it’s about the various legal benefits attached to marriage too, but if that were all it was about, then both sides of the struggle would treat civil unions as being interchangeable with marriage, and they don’t. The recognition of committed same-sex unions as marriages is a social statement that such unions, and the men and women in them, are worthy of respect rather than stigma. So if the ultimate goal is to foster inclusive social norms, then changing public opinion isn’t just a sign that the movement may achieve its goals–in an important sense, changing public opinion is the central goal. Court decisions, in contrast, can only ever be a step along the way.
posted by Columbia Law Review
Ronald J. Gilson, Charles F. Sabel & Robert E. Scott
Ryan Scott Reynolds
M. Todd Henderson & Anup Malani
posted by Gerard Magliocca
A litigant challenges a state statute as unconstitutional under the Due Process Clause. The Supreme Court rejects this claim in spite of powerful evidence that the statute is inconsistent with the original understanding of the Constitution. In part, they rest this conclusion on European law, which sanctions the state practice at issue and “informs” the meaning of due process. According to the Court:
“The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.”
So who wrote this internationalist claptrap? Justice Kennedy? Justice Breyer? Harold Koh?
posted by Neil Richards
I recently rediscovered George Orwell’s wonderful essay “Politics and the English Language,” which I read years ago in college but had essentially forgotten. Rereading it years later, I was struck by how much it had to say about the business of writing legal scholarship. In the essay, written in 1946, Orwell makes the case that over-complex and vague language in nonfiction writing leads to laziness of thought and poverty of discourse. (A copy of the essay is here, but Orwell is better read, I think, on paper than on a computer screen.)
Orwell makes the case for simplicity and directness in nonfiction writing, for the avoidance of tired and misleading metaphor, and the rejection of words chosen to confuse the reader or create deliberate ambiguity. Reading the essay made me think immediately of law scholarship, especially scholarship written by beginning legal scholars (including some of mine). Law professors often adopt tired or jargony metaphors (“slam dunk,” “atmospherics”) or use needlessly complicated words (many uses of “deontological”). Part of this trend, I think, is the feeling among untenured scholars to appear smart and able to use fancy words – to sound like a scholar. This can be a reinforcing trend – when your colleagues use needlessly complicated words, there’s often a feeling that you need to as well, in order to seem as scholarly as everyone else. Another overuse of complicated words can occur to hide meaning, or to avoid engaging in serious analysis. Lots of euphemisms (“transaction costs”) would seem to fall into this category.
Orwell concludes his essay with a summary of his rules for good nonfiction writing:
(i) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
(ii) Never use a long word where a short one will do.
(iii) If it is possible to cut a word out, always cut it out.
(iv) Never use the passive where you can use the active.
(v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
(vi) Break any of these rules sooner than say anything outright barbarous.
My point is not to pick on legal scholarship, as much as to suggest that a simpler and more direct style in legal scholarship (and legal discussion generally) should be the way to go, and that there’s a lot for all of us to learn in Orwell. As he puts it, language should be “an instrument for expressing and not for concealing or preventing thought.” When we make our arguments simply and directly, and we don’t hide behind euphemism or wordiness, readers can undersand what we say and agree (or disagree) more readily. There’s a lot to like in such an approach, and it reminds me of some scholars whose work I admire whose work really embodies this approach to writing. Orin Kerr (GW) and Eugene Volokh (UCLA) come to mind. I often disagree with the arguments in their work, but their plain style makes disagreement more obvious, and allows for a more direct, lively, and constructive disagreement.
posted by Danielle Citron
President Barak Obama has 6,239,925 Facebook friends. To be sure, this friendship has its privileges. FOPs can post questions on the economy and vote on others’ submissions and questions. Have we awoken to a new era of participatory democracy where Web 2.0 technologies mediate conversations between the Executive Branch (and maybe the President himself as he reportedly reads selected public mail weekly) and the interested Facebook friendly public? Do these social media technologies tap public participation in ways that e-Rulemaking proponents envisioned but to date has not? Quite possibly. But before we rush headlong into social networking political nirvana, we need to think about the privacy implications of friending (or watching You Tube videos of) the President, Senators, or your favorite Councilwoman.
When we interact with Government on private social media sites like Facebook or YouTube, have we implicitly forsaken any privacy in those communications? Does the President and his helpers get to collect personal data we post on our Facebook profiles and scurry back to agency information systems for processing, say data mining programs looking for threats to critical infrastructure or data matching programs looking for dead beat dads? On the one hand, we gave up that information voluntarily: if we set our privacy settings on Facebook accordingly, we know that what we tell our friends is “out of the bag” so to speak. On the other hand, do we really expect that the President, as my friend, is going to take my data and use it for purposes other than what his Facebook page promotes: conversations with the President about public policy, not whether we pay child support or engage in antisocial activities?
posted by Daniel Solove
Earlier this year, I blogged about Justice Scalia’s remarks about privacy at the Institute of American and Talmudic Law. According to media accounts:
“Every single datum about my life is private? That’s silly,” Scalia [said]. . . .
Scalia said he was largely untroubled by such Internet tracking. “I don’t find that particularly offensive,” he said. “I don’t find it a secret what I buy, unless it’s shameful.”
He added there’s some information that’s private, “but it doesn’t include what groceries I buy.” . . . .
Considering every fact about someone’s life private is “extraordinary,” he said, noting that data such as addresses have long been discernible, even if technology has made them easier to find.
At a recent conference at Fordham University sponsored in part by the Center on Law and Information Policy, Professor Joel Reidenberg discussed an assignment he gave to his class this past semester — find any public information about Justice Scalia and compile it into a dossier. As Kashmir Hill reports at Above the Law:
“Justice Scalia said he doesn’t care what people find out about him on the Internet,” said Reidenberg during his presentation on the transparency of personal information. “So I challenged my class to compile a dossier on him.”
Now four months later, at the end of the semester, the dossier (available online somewhere, but password protected) is 15 pages long. Among its contents are Nino’s home address, his home phone number, the movies he likes, his food preferences, his wife’s personal e-mail address, and “photos of his lovely grandchildren.”
“When the discrete bits of personal information were assembled at the end of the semester, the extent of the overall dossier and some of the particular items of readily available information on the web concerning his family and family life were astonishing to the class,” Reidenberg wrote to us.
Before the news of the dossier was reported by Above the Law, Reidenberg had sent a letter informing Justice Scalia about the dossier and offering to allow him to see it if he desired. The dossier was not made public.
Justice Scalia recently responded to the Above the Law post about Joel Reidenberg’s experiment:
posted by Gerard Magliocca
Today I’m fielding last-minute questions from students about the exam, so I’ll be brief. On Monday, GM proposed its 438th restructuring plan. One sticking point is that GM has far too many dealerships given its future production (brands are being eliminated) and as compared to its competitors. The problem with cutting those excess dealerships, though, is that state franchise statutes make it very difficult for firms to close some dealerships rather than others within a state and gives dealers a cause of action for damages if they are closed wrongfully.
My question is this: Are these laws vulnerable to a Dormant Commerce Clause challenge? It seems like a plausible argument can be made that they place a substantial burden on interstate commerce, but I am unaware of any case law on the issue. I’d be interested to hear your thoughts.
posted by Sarah Waldeck
As an aside, I recently suggested that breast-feeding advocates organize a public information campaign about how breast-feeding can promote weight loss. An article from last week’s New York Times reminds me that such a campaign could point to other potential benefits as well. A recent study of 139,681 women enrolled in the Women’s Health Initiative showed that:
Women who reported a lifetime history of more than a year of breast-feeding were 20 percent less likely to have diabetes, 12 percent less likely to have hypertension, 19 percent less likely to have high cholesterol and 9 percent less likely to have had a heart attack or a stroke by the time they enrolled in the Women’s Health Initiative.
The word “potential” is important. The Women’s Health Initiative study showed an association between breast-feeding and reduced risk; it did not demonstrate a causal relationship. The study was not able to account for all differences in the lives of women who breast-fed and women who didn’t. In this regard, the study suffers from the same deficiencies as those that attempt to evaluate the effect that breast-feeding has on babies. Researchers cannot account for all the differences in the lives of children who are breast-fed and children who are not.
The idea that breastfeeding is beneficial for women is not new. For example, the association between breast-feeding and lower risks of breast cancer, ovarian cancer, and osteoporosis have been known for some time.
All of this brings me to back to the question of why public health organizations that are eager to promote breast-feeding don’t focus more on the potential benefits for women. I suspect that it has something to do with an overly-simplistic take on the maternal mind: mothers want to do what is best for their children, period. The reality, however, is that most maternal decisions involve trade-offs between what is best for the mother and what is best for the child.
posted by Columbia Law Review
Columbia Law Review‘s Sidebar is pleased to announce the publication of a response to The Federal Common Law of Nations by Anthony J. Bellia Jr. and Bradford R. Clark.
In their Article Professors Bellia and Clark describe the role that the law of nations has played throughout American history. They argue that federal courts have not viewed enforcement of the law of nations as an Article III power to fashion federal common law, but have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach, they contend, best explains the most important federal cases involving the law of nations across American history.
Professor Ernest Young’s Response questions the historical account provided by Bellia and Clark on two grounds: first, that the debate over reception of the common law at the federal Constitutional Convention shows greater early skepticism about judge-made common law than Bellia and Clark suggest; and second, that the jurisdictional provisions of Article III covering cases implicating foreign affairs were not intended fully to centralize power over such cases in federal courts because they left concurrent jurisdiction in the state courts. In addition Professor
Young questions the extent to which the Founding Era history is directly relevant to contemporary debates about how to treat customary international law (CIL). He contends that what does the real work in the Bellia and Clark approach is simply constitutionally-grounded concerns about the separation of powers in foreign affairs cases, not anything about CIL per se.
posted by Daniel Solove
The New York Times has an interesting story about the slow dwindling audience share of CNN:
Since the beginning of March, CNN has fallen behind both the longtime ratings leader, Fox News Channel, which, as the voice of disaffected conservatives, again has an imposing lead, and the upstart MSNBC, which has tried to mirror Fox’s success by steering to the left.
CNN has even dipped behind its sister network HLN (formerly Headline News) on many occasions. Since the beginning of 2009, CNN has finished fourth in prime time among the cable news networks on 35 out of 84 weeknights.
The development raises an obvious question: With its rivals stoking prime time with high-octane political opinion and rant, can CNN compete effectively with a formula of news delivered more or less straight?
Executives of competitors and even some of CNN’s own staff members say recent trends suggest the answer may be no.
According to the article, here are the latest cable TV news ratings:
In March, CNN averaged 328,000 viewers in prime time among the audience that most news advertisers seek: viewers aged 25 to 54. Fox doubled that with 628,000. MSNBC averaged 375,000.
In April, CNN has been fourth. Fox has 668,000 viewers; MSNBC has 300,000; and CNN has 271,000. HLN has 277,000.
We’re witnessing the death of print journalism, which is being replaced by blogs (many of which are highly partisan) and cable TV news, which the above trends indicate is becoming more partisan.
In Discovering The News: A Social History Of American Newspapers, Michael Schudson argues that journalism in the early days of the Republic used to be a highly partisan endeavor. In the 20th Century, the ideal of neutral unbiased reporting came into vogue. This ideal has long been challenged, especially by the Right, which has contended that there’s a “liberal bias” in the media. Of course, it is impossible for media to be perfectly neutral, as complete neutrality is impossible, but the very ideal of neutrality now seems to be fading. News media entities like Fox News pretend to be “fair and balanced,” but this is just spin. In practice, Fox News knows where its bread is buttered — appealing to a partisan audience and telling them what they want to hear.
We’re being overloaded with talk radio, cable TV shout fests, endless tirades in the blogosphere — what strikes me as endless blather, screeching, shouting, ranting, and raving.
posted by Jennifer Collins
I am really happy to announce that my book with Dan Markel and Ethan Leib, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is now officially out and available at Amazon and at Oxford University Press’s website. If you are interested in obtaining a copy at a discount from the quite high cover price (the high price of law books is a topic for a blog post in itself!), check out Dan’s post on Prawfs about the book for some suggestions.
In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn. Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. We will have more info on these panels and discussions in the coming weeks. There are many people who helped make this book possible, and we are profoundly grateful for their assistance and encouragement. I also want to give a shout-out to my wonderful co-authors Dan and Ethan — working with them on this project has truly been an amazing experience (indeed, the benefits of co-authoring can be the subject for yet another blog post!)
posted by Georgetown Law Journal
John T. Parry
Symbolic Expression and the Original Meaning of the First Amendment
Shareholder Liability for Corporate Torts: A Historical Perspective
Daniel R. Kahan
An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity
Jennifer M. Smith
posted by Gerard Magliocca
How should we think about George W. Bush’s Administration? This is a subject that I (perhaps foolishly) tackle in “George W. Bush in Political Time: The Janus Presidency” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155870), which comes out next month. In part, this is a review of superb books by Steven Skowronek and Keith Whittington, who categorize various presidents according to their relationship with the prevailing party system. After examining their framework, I try to apply that analysis to President Bush.
Consider two types of Presidents. The first inherits an existing coalition from a glorious predecessor. Examples include Harry Truman, George H.W. Bush, or Martin Van Buren. These are the “Stay The Course” leaders. Their interest is in stability, as radical change could threaten the winning formula for their party. A second type of president creates that dominant coalition. Examples here would be Andrew Jackson, Abraham Lincoln, Franklin D. Roosevelt, and (probably) Barack Obama. These are the “We Can’t Go Back” presidents. They are in the business of repudiating past practice and introducing sweeping changes that create a new set of stable first principles.
posted by Kaimipono D. Wenger
Does the advent of the new Google Profiles service solve the thorny online identity problems discussed by Danielle, Deven, and others? As Danielle notes, one of the many serious problems in cases like Autoadmit harassment was the attempts to co-opt or silence the person’s online persona, causing victims to effectively lose ownership of their online identity:
The attackers waged a “Google-bombing” campaign that would ensure the prominence of offensive threads in searches of the female students’ names. Posters made plain the goal of their Google-bombing campaign: “We’re not going to let that bitch have her own blog be the first result from googling her name!”
Deven has also discussed the importance in having some control over one’s online persona. And Frank has suggested a standard of Fair Reputation Reporting much like the Fair Credit Reporting Act.
What does a Google Profile provide? Google’s own description is this:
A Google profile is simply how you present yourself on Google products to other Google users. It allows you to control how you appear on Google and tell others a bit more about who you are. With a Google profile, you can easily share your web content on one central location. You can include, for example, links to your blog, online photos, and other profiles such as Facebook, LinkedIn, and more. You have control over what others see. Your profile won’t display any private information unless you’ve explicitly added it. You can also allow people to find you more easily by enabling your profile to be searched by your name. Simply set your existing profile to show your full name publicly.
Google profiles will appear as results in searches (if you elect them to); this is sporadic at the moment, but profiles are expected to become a top window in a google search.
Does this change address Danielle’s and others’ concerns about mob seizure of a victim’s online self-identity? It just might. In an ideal world, Google profiles fill the gap perfectly. It puts top billing on a person’s self-description, thus restoring a portion of online self-ownership to its rightful place. (It sounds a lot like Frank’s approach, doesn’t it?)
On the other hand, Wired has a more doubtful take, suggesting that this isn’t really about self-ownership, but about Google ownership. Google will take your profile and monetize it for marketing.
Is that better than the alternative? Maybe.
Or maybe we just need a national, state-owned web profile for everybody. After all, we can always trust the state.
posted by Sonja Starr
Like most academics, I attend conferences fairly often, and enjoy some of them more than others. I wanted to share a few thoughts on format features that tend to make conferences a better experience from my perspective, and to invite commenters to share their views. I have enjoyed conferences that follow a variety of different formats, and I think format diversity is good, for reasons discussed below. Still, there are a few features that I tend to prefer and would like to see more often:
posted by Deven Desai
Ann Bartow’s post about the Espresso on demand printing press highlights that change takes time. Ann’s post notes a Guardian article touting the machine as revolutionary and that a publisher in the U.K. launched a service based on the machine in the past few days. Yet, I wrote about the machine (and more importantly Time magazine did) in November 2007. That post compared Kindle and Espresso. So where did Espresso go in the interim?
According to the article, it has been catching on and now a larger publisher is taking a stab at using the device. Yet, the on demand print world has been growing and claiming viability for some time. Amazon has embraced on demand printing with its Book Surge service (rival to Lulu and Blurb) for more than a year (Blurb has been around since 2006). So is the on demand print world still just getting out of the blocks? If so, why hasn’t it caught on more quickly? It may be that this time frame is short for a new technology. Heck, the guts of the Internet were around for quite some time until a few pieces clicked and the hockey stick growth began. I hope we are verging on the same for on demand publishing.
I, for one, would love the ability to print books on demand. If we had a more coherent copyright system (see my paper on descendible copyright for an example of one way copyright is incoherent), one could perhaps find a work, then the copyright holder, and order a book with royalties reaching whomever was entitled to them. Public domain works could be printed in a low cost way. As Time put it Espresso “can churn out a 300-page paperback on demand, complete with color cover, in just 3 min. The $50,000 machine could transform libraries into minibookstores, making hard-to-find titles as accessible as cappuccinos. At $3 a book they might be cheaper too.” So maybe the time has come for universities and/or cities to invest in a machine (or maybe the universities and cities in say San Diego county would invest in and share one machine) so that anyone could find the text and get a copy. One study suggests that inter-library loans costs alone justify spending the money on a machine (total annual cost was above $100k for one university; and another school claimed a cost of $45 per ILL request).
As I write this post, I find I want to learn more about these questions, because I am excited. It seems to me that with on demand printing, we could see a huge cost savings and breakthrough in access-to-knowledge. There should be opportunities and really a market that would drive better copyright clearing systems for print matter. There will of course be some problems and questions (e.g., cost to user, disparity in ability to check out a book for free (or because of taxes) and the possible shift to a pure pay to use model). Nonetheless, we may be seeing a the start of a digitally driven, print revolution.
posted by Deven Desai
On Friday I was in lovely Madison, Wisconsin for the Creativity, Law and Entrepreneurship Workshop which Shubha Ghosh put together and was sponsored by UW Law School, the Institute for Legal Studies, the Initiative for Studies in Technology Entrepreneurship (INSITE), and the Global Legal Studies Center. I’m afraid I don’t have the ability to capture everything that happened, but I will try and call out what each panel did (although the link above sets out the program and speakers).
Those details are below the break. Before that, I want to say that Wisconsin was a great host. The group was excellent. Each paper linked in some way to the other papers in its session. In addition, the pace was perfect. Three papers per session allowed one to present the core ideas of the paper and have plenty of time to get into the discussions. Furthermore, it was a a great pleasure to have the business school folks attend. I, for one, was able to get valuable feedback and learn about some literature that looks like it will help my work in general. In short, thanks to Wisconsin and all those who put together the event for a job well done. Now on to the panels.
posted by Nate Oman
Crooked Timber is going to be hosting an online symposium on Steve Teles book The Rise of the Conservative Legal Movement. They have what looks to be a good line up and first out of the gate is Jack Balkin. Check it out.