Archive for May, 2009
posted by Gerard Magliocca
“No one really understands the true nature of fawning servility until he sees an academic who has glimpsed the prospect of money or personal publicity.”
“The surprising thing about academics is not that they have their price, but how low that price is.”
posted by Danielle Citron
Showtime’s new series “Nurse Jackie” features Edie Falco as a Percocet-snorting nurse with a bad back and questionable judgment. If art imitates life, you may be pleased to know that hospitals are automating certain nursely duties. PC World reports that a Thai hospital is now using robots to move around pills and lab test samples such as blood and urine. The robot PillPicker sorts pills and dosages into individual plastic bags and affixes them with barcodes that identify the contents. A BoxPicker robot picks out the medicines that a patient needs, labels them with barcodes, and packages them. The hospital uses a tube system to send the medicine packs to the patient’s floor. (Unfortunately, the article reports that the robots bear no resemblance to beloved fictional robots like C3PO or R2D2).
The robots reportedly have improved the accuracy of medicine-giving at hospitals. The Institute of Medicine published a study called “To Err Is Human,” which noted that approximately 98,000 people die each year in the United States because hospital employees gave patients the wrong medicine. The automated nurses eliminate human mistakes caused by, say, exhaustion, overwhelming workloads, and maybe even Nurse Jackie-style drug addictions.
A note of caution is in order. First, when machines get things wrong, they get things wrong in a big way. While a tired nurse may screw up a few patients’ medicines, machines mess them up consistently. That is both the promise and the peril of automated systems. Second, as we increasingly trust machines, human beings lose the motivation to check them for mistakes. The phenomenon of automation bias bears relevance here. We trust computers to get things right. Right now, the PillPicker and its ilk are expensive and so hospitals in the U.S. have not yet embraced the trend. But as costs drop, we may see these robots replace our nurses and orderlies in the future, at least as to certain tasks. Time may tell whether we would rather have Nurse Jackie pick our pills or not.
Wikimedia Commons Image
posted by Danielle Citron
It is my great pleasure to introduce my colleague Robert Percival who will be guest blogging with us this month. Professor Percival joined the Maryland faculty in 1987 after serving as senior attorney for the Environmental Defense Fund. He is internationally recognized as a leading scholar in environmental law. He is the principal author of the country’s most widely used casebook in environmental law entitled Environmental Regulation: Law, Science & Policy, now in its sixth edition. He has written extensively on several topics, including environmental law, regulatory policy, federalism, presidential powers, and legal history. Percival taught as a Visiting Professor of Law at Harvard Law School this past spring and in 2000 and at Georgetown University Law Center in 2005. He currently teaches Environmental Law, Comparative Environmental Law, Constitutional Law, and Administrative Law at Maryland. In 2007, he was named the University’s “Teacher of the Year.”
During the Spring of 2008, Percival taught as a J. William Fulbright Distinguished Lecturer at the China University of Political Science and Law in Beijing. He previously taught as a Fulbright scholar at Comenius University Law School in Slovakia. Percival has lectured and presented environmental law workshops on six continents in countries such as Australia, Chile, India, Iran, Japan, Mongolia, Uganda, Ukraine, and the former Soviet Union. He also lectured at 15 universities and before several professional associations and government agencies in China. In 2009, he served as Citizen Ambassador to China for the U.S. Department of State. Percival has served as the Natural Resource Law Institute Distinguished Visitor at Lewis & Clark College of Law and as a Visiting Professor of Law at the University of Chile where he helped establish South America’s first environmental law clinic. He also has taught summer courses at the University of British Columbia and at the University of Aberdeen in Scotland.
Percival currently is working on the first casebook on “Global Environmental Law.” He maintains a website developed for the casebook on which his weekly blog appears. The blog is available here. Percival is a member of the IUCN Commission on Environmental Law. In April 2009, he delivered Pace Law School’s Lloyd K. Garrison Lecture on “The Globalization of Environmental Law.” Percival has served on the Board of Directors of the Environmental Law Institute and as co-chair of the Steering Committee of the D.C. Bar’s Section on Environmental Energy and Natural Resources Law. He is an elected member of the American Law Institute.
Percival attended Stanford Law School where he was Managing Editor of the Stanford Law Review. He was named the Nathan Abbott Scholar for graduating first in his class. Percival served as a law clerk for Judge Shirley M. Hufstedler of the U.S. Court of Appeals for the Ninth Circuit and for U.S. Supreme Court Justice Byron R. White. He also served as a special assistant to the first U.S. Secretary of Education.
Select recent publications include:
“Massachusetts v. EPA: Escaping the Common Law’s Growing Shadow,” 2007 Supreme Court Review 111 (2008).
“Who Is Afraid of the Precautionary Principle?,” 23 Pace Environmental Law Review 801 (2006).
“The Clean Water Act and the Demise of the Federal Common Law of Interstate Nuisance,” 55 Alabama Law Review 717 (2004).
“‘Greening’ the Constitution–Harmonizing Environmental and Constitutional Values,” 32 Environmental Law Journal 809 (2002).
“Presidential Management of the Administrative State: The Not-So-Unitary Executive,” 51 Duke Law Journal 993 (2001).
posted by Daniel Solove
I’m very pleased to introduce Michael Abramowicz, who will be visiting with us for the next month. Michael is my colleague at George Washington University Law School. He graduated summa cum laude from Amherst College, where he majored in economics and served as editor-in-chief of the campus newspaper. After spending a year as a research assistant at the Federal Reserve Board, he attended Yale Law School, where he served as executive editor of the Yale Law Journal and as a co-director of the landlord tenant clinic. After law school, he clerked for the Honorable Patrick E. Higginbotham of the U.S. Court of Appeals for the Fifth Circuit.
Before coming to GW, Michael served for a year as a visiting assistant professor at Northwestern University School of Law, and three years as an assistant and then associate professor at George Mason University School of Law. He teaches and does research in areas including intellectual property, civil procedure, administrative law, insurance law, and corporate law. His work has been published in the California Law Review, Columbia Law Review, Iowa Law Review, Michigan Law Review, Stanford Law Review, UCLA Law Review, University of Chicago Law Review, Vanderbilt Law Review, Yale Journal on Regulation, and Yale Law Journal, among others.
A few of Michael’s many publications include:
* PREDICTOCRACY: MARKET MECHANISMS FOR PUBLIC AND PRIVATE DECISION MAKING (Yale Univ. Press, 2008)
* Citation to Legislative History: Empirical Evidence on Positive Political and Contextual Theories of Judicial Decisionmaking, J. LEGAL STUD. (forthcoming 2009) (with Emerson H. Tiller)
* Ending the Patenting Monopoly, U. PA. L. REV. (forthcoming 2009) (with John F. Duffy)
* Notice-and-Comment Judicial Decisionmaking, U. CHI. L. REV. (forthcoming 2009) (with Thomas Colby)
* Privatizing the Public Domain, in PERSPECTIVES ON COMMERCIALIZING INNOVATION (F. Scott Kieff & Troy A. Paredes eds., Cambridge Univ. Press forthcoming 2009)
* Intellectual Property for Market Experimentation, 83 N.Y.U. L. REV. 337 (2008) (with John F. Duffy)
* The Uneasy Case for Patent Races over Auctions, 60 STAN. L. REV. 803 (2008)
posted by Corey Yung
In my last post, I briefly described the major approaches to studying activism. In this post, I will outline my measure for the concept as well as the contours of my dataset.
Since judicial activism at its core is about substituting judgment of other constitutional actors, for federal appellate courts it makes the most sense to study where they do most of their work: reviewing the judgments of district courts. That ensures large sample sizes, wide coverage of different areas of law, and decisions that are still restrained so some non-activist baseline can be derived.
To that end, standards of review offer a powerful tool to understand judicial decision making at the federal appellate level. There are deferential (i.e. clear error) and non-deferential (i.e. de novo) reviews of district court judgments. As you can see from the chart below derived from my dataset, standards of review do affect reversal rates.
posted by Dave Hoffman
I’m happy to announce that Robert Hillman, of Cornell Law School, will be joining us a guest-blogger this June. Bob is one of the country’s leading contract law experts. Indeed, he was the Reporter for the just-adopted Principles of Software Contracts, a topic which I imagine he might blog a bit about with us. This past winter, I learned he was to boot a generous and friendly colleague, as his office was right down the hall from mine.
Bob has written extensively on contracts and contract theory, the Uniform Commercial Code, and related jurisprudence. (You can find a smattering of his work on SSRN.) A 1972 graduate of Cornell Law School, Professor Hillman clerked for the Hon. Edward C. McLean and the Hon. Robert J. Ward, both U.S. District Judges for the Southern District of New York. After private practice with Debevoise & Plimpton in New York City, he began his teaching career at the University of Iowa College of Law. Hillman joined the Cornell Law School Faculty in 1982, and, in addition to teaching and authoring or co-authoring several major contracts and commercial law works, he served as Associate Dean from 1990-1997. He teaches contracts, commercial law, and the law of e-commerce. He also teaches a class on the nature, functions, and limits of law for Cornell University’s Government Department.
posted by George Washington Law Review
The George Washington Law Review, Issue 77:3 (April 2009)
Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562 (2009) [PDF]
Anthony J. Colangelo, “De facto Sovereignty”: Boumediene and Beyond, 77 Geo. Wash. L. Rev. 623 (2009) [PDF]
William W. Bratton, Unentrapped, 77 Geo. Wash. L. Rev. 677 (2009) [PDF]
Lawrence A. Cunningham, The New Federal Corporation Law?, 77 Geo. Wash. L. Rev. 685 (2009) [PDF]
M. Todd Henderson, Two Visions of Corporate Law, 77 Geo. Wash. L. Rev. 708 (2009) [PDF]
Robert B. Ahdieh, The (Misunderstood) Genius of American Corporate Law, 77 Geo. Wash. L. Rev. 730 (2009) [PDF]
Christopher Carlberg, Cooperative Noncooperation: A Proposal for an Effective Uniform Noncooperation Immigration Policy for Local Governments, 77 Geo. Wash. L. Rev. 730 (2009) [PDF]
Andrew Croner, A Snake in the Grass?: Section 798 of the Espionage Act and Its Constitutionality as Applied to the Press, 77 Geo. Wash. L. Rev. 766 (2009) [PDF]
Evan Mayor, The “Bong Hits” Case and Viewpoint Discrimination: A State Law Answer to Protecting Unpopular Student Viewpoints, 77 Geo. Wash. L. Rev. 799 (2009) [PDF]
Christopher Meeks, The Pollution Delusion: A Proposal for a Uniform Interpretation of Pollution in General Liability Absolute Pollution Exclusions, 77 Geo. Wash. L. Rev. 824 (2009) [PDF]
posted by Corey Yung
In my last post, I offered a new definition of judicial activism as applied to federal appellate judges. In this post, I will discuss some of the existing research on the subject.
The existing empirical scholarship is largely focused on two things: activism by the U.S. Supreme Court and judicial review of the other federal branches. While there is a lot of interesting work within those studies, I think the focus on Supreme Court review of other branches offers an extremely narrow view of judicial activism.
The Supreme Court is an unusual body in American courts. It is not subject to any higher review. The Justices are largely free to decide a case however they feel. As a result of the unrestrained nature of the Court, “activism” is a hard concept to measure. There is difficulty in finding a baseline against which to measure the Justices. A Justice who is an outlier on one Court might have regularly been in the majority during a different era. The problem of measuring activism is compounded by the Court’s very small docket. Because there are so few cases, the sample sizes are not large. Further, because the docket is self-selected, the cases are not random and are concentrated in just a few areas of law.
posted by Dave Hoffman
A blockbuster decision from the Wikipedia arbitration committee, ruling on a long-festering dispute about articles regarding the Church of Scientology. The problem, according to the Committee, was an organized campaign to control the content of articles about Scientology. From the findings of fact:
3.0) This longstanding dispute is a struggle between two rival factions: admirers of Scientology and critics of Scientology.
A) Editors from each side have gamed policy to obtain advantage and disputes have spilled over into, for example, articles for deletion, the reliable sources noticeboard, the conflict of interests noticeboard, and sometimes the administrators’ noticeboard.
B) Aggravating factors have been (i) the presence of editors openly editing from Church of Scientology equipment and apparently coordinating their activities; and (ii) the apparent presence of notable critics of Scientology, from several Internet organisations, apparently editing under their own names and citing either their own or each other’s self-published material.
The key remedy:
2) All IP addresses owned or operated by the Church of Scientology and its associates, broadly interpreted, are to be blocked as if they were open proxies. Individual editors may request IP block exemption if they wish to contribute from the blocked IP addresses.
Want to know more about the arbitration committee and the process it used to reach this outcome? I’ve a law review article just for you.
posted by Michael Madison
I just came back from seeing the new Pixar animated film Up . It’s a charracteristically charming Pixar effort; all thumbs up! Plus, I got these neat-o 3D glasses. There’s a little IP angle to the film, though, and I want to use that to anchor this last of my guest posts.
Read the rest of this post »
posted by Corey Yung
First off, I wanted to thank Dan and the rest of the Concurring Opinions bloggers for having me back so soon. My last stint was cut a bit short by some unexpected family issues. As it turns out the subject I wanted to blog about then, judicial activism by federal appellate judges, is more timely now because of the Sotomayor nomination. She is already being attacked as an activist judge as a basis for rejecting her nomination (even if those attacks are just part of some inevitable game we play). For some time, I have been working on a project that attempts to provide an effective measure of judicial activism by federal appellate judges like Sotomayor. Over the next few posts, I will explain my measure and show some preliminary results. However, I need to do a bit of work defining the concept first.
posted by Deven Desai
Space the final frontier. These are the voyages of … ah, you know the rest. Exploration and the idea of frontiers seem to capture an important part of the human experience. The possibility of finding something new, of entering uncharted territories excites people. And, although one may want to keep the secret of the Northwest Passage or the Straits of Magellan a secret, sooner or later a map is created to increase the amount of benefit that can be extracted from the discovery. Yet with the world seeming to collapse into one connected place, the role of maps has changed. In short, maps are a new frontier for property and privacy.
As Jacqueline Lipton noted Google Maps has enabled the persistence of race discrimination. Google Maps has also spawned some other curious creations and connections. For example, I wrote about the flap over what is a true IMAX screen and that folks put together a map of IMAX screens with information about the screen size. The H1N1 (aka swine) flu epidemic revealed an interesting dual use for maps. One person created a frequently updated map with information about claimed incidents. I was curious about the source and found that one person at, what else, a bitotech company focused on recombination and disease, was behind the map. In addition, a group called Health Map seeks to offers a map that connects “disparate data sources to achieve a unified and comprehensive view of the current global state of infectious diseases and their effect on human and animal health.” On the light side, Total Film has a feature that uses Google Street view to show 25 favorite film locations.
As seems always to be the case, folks will probably soon argue about who owns what. The more interesting point might be the way maps show the malleability of information. In some hands, maps show fun things like where a film was shot. In other hands, maps provide useful epidemiological information. Yet, certain home owners may not be pleased about having tourists show up to gawk at what had been a quiet abode. Cities, counties, and even states may be upset if lay people assume that suspected or even confirmed outbreaks mean they should create a de facto or quasi-quarantine. Last, knowing where specific racial, religious, and other groups are can all too easily lead to mob behaviors.
The information mill churns. We have to sort it out. Old tools have new impacts. Today maps pose challenges. Tomorrow it will be something else. I am never certain that the law is the best way to manage these changes. Nonetheless, we have to consider what they are and how they function in case the law is asked to do so. On that note, please share any other creative and/or challenging uses of maps of which you are aware.
Last here is a little music for the trip:
May 29, 2009 at 3:42 pm Tags: copyright, Google maps, H1N1, IMAX, maps, Privacy, property Posted in: Google & Search Engines, Health Law, Intellectual Property, Privacy, Privacy (Medical), Property Law Print This Post 2 Comments
posted by Gerard Magliocca
During the Bush Administration, there was a lot of concern expressed about how religious faith was distorting policy judgments on issues such as stem-cell research. I think these fears were overblown (with apologies to Andrew Sullivan). What surprises me, though, is that people do not talk much about the opposite problem — how science can distort the law.
There are two reasons why this should be of concern. First, science can be . . . er . . . wrong. It is more accurate to say that science is always incomplete, but sometimes that incompleteness can be so serious that the conclusions drawn are unreliable. Second, science cannot answer ethical issues. Something could well be scientifically valid but morally wrong. Here are a few examples:
posted by Frank Pasquale
Former Fed Vice Chair Alan S. Blinder’s column “Crazy Compensation and the Crisis” offers a sensible perspective on some origins of the current economic crisis:
Take a typical trader at a bank, investment bank, hedge fund or whatever. . . .[W]hen they place financial bets [they face the following odds]: Heads, you become richer than Croesus; tails, you get no bonus, receive instead about four times the national average salary, and may (or may not) have to look for a new job. These bright young people are no dummies. Faced with such skewed incentives, they place lots of big bets. If tails come up, OPM [other people's money] will absorb almost all of the losses anyway.
[Now] let’s consider the incentives facing the CEO and other top executives of a large bank or investment bank (but, as I’ll explain, not a hedge fund). For them, it’s often: Heads, you become richer than Croesus ever imagined; tails, you receive a golden parachute that still leaves you richer than Croesus. So they want to flip those big coins, too.
After this flash of insight, Blinder retreats into quietism, counseling that “fixing compensation should be the responsibility of corporate boards of directors and, in particular, of their compensation committees.” I don’t know why he doesn’t consider the power of an income tax system that’s much more progressive at the very top income levels. As David Leonhardt observes,
Today . . . the very well off and the superwealthy are lumped together. The top bracket last year started at $357,700. Any income above that — whether it was the 400,000th dollar earned by a surgeon or the 40 millionth earned by a Wall Street titan — was taxed the same, at 35 percent. This change [from the past] is especially striking, because there is so much more income at the top of the distribution now than there was in the past.
posted by Minnesota Law Review
Now that the Minnesota Law Review has moved to its new internet home, Minnesota Law Review Headnotes, we will begin clearing our backlog of Table of Contents entries covering the past year of publication. We will be bringing our entries up to date over the next few weeks.
posted by Lawrence Cunningham
It took only two hours to read Richard Posner’s breezy, odd and disjointed new book, A Failure of Capitalism. This awkwardly compact volume (346 pages in a trim size of 5×7) reassembles meditations first surfaced on his blog. It describes well-known points about the global financial crisis and offers little new. It contains a few statements commentators see as startling rebukes to free market capitalism unlikely from this conservative pioneer of law and economics (see, e.g., Solow, NYT, WaPo). Underappreciated in the excitement capitalism’s critics see in a devotee’s rebuke are insights on pragmatism, greater hallmarks of Posner’s work.
Although the book is disjointed, repetitious and disorganized, one may discern two themes, one I share and one I don’t. The one I share is that pragmatism is the way to approach financial policy. The diagnostic take from the financial crisis is subordination of pragmatism to ideology. This is due to free-market ideologues who deregulated too much by over-confidence in market capacity for self-correction. But this is no endorsement of extensive government intervention into the economy that equally ideological opponents of free markets may equally culpably prescribe.
Second, primary responsibility for the global financial crisis is with markets and market participants. Although I share this viewpoint, I part company when Posner argues that they did not act irrationally. He says there is no place in critique for insights from behavioral economics concerning limited cognition or biases. Government is to blame only in failing to protect against dangers that arise from market failure and inept responses once crises manifested, Posner argues. He says the principal justification for government regulation of economic activity is to prevent disruptions like recessions from turning into crises like depressions.
In short, this is rightly not a call for ideologically-driven government intervention on one side or ideologically-based laissez faire non-intervention on the other. It is a clarion call to pragmatic balancing that allows markets vast space for self-operation with government oversight and a regulatory system available to avert excesses when necessary to prevent challenges from becoming crises. The following review gives chapter-by-chapter accounts of this little book’s contents, including notes on the book’s awkward style in content, writing, documentation and publishing. Read the rest of this post »
posted by Andrew Taslitz
Our emotions can surprise us sometimes. When Obama named Sonia Sotomayor as his nominee to replace Justice Souter on the United States Supreme Court, I was intellectually pleased that he had nominated an apparently outstanding candidate who would be another woman, and the first Hispanic woman, to sit on the Court. But I found that what really enthused me about Sotomayor was her Bronx roots — just like me! Her biography is well-known by now, but I reiterate here a few relevant high points: she grew up for part of her early life in the South Bronx, near Yankee stadium; she came from modest means; she is probably a Yankees fan; and she, or at least her mother (the newspaper stories I have read have been a bit unclear on this point) moved “up” at one point to live in the East Bronx in the subsidized housing project known as Co-op City.
I too grew up in the West Bronx, not too far from Yankee Stadium. My maternal grand-dad, Joe, lived only three blocks from the stadium. Unlike Sotomayor, I was lucky enough to have my parents both alive until I hit middle age (my dad is still alive and kicking at 86!). My mom was a full-time, stay-at-home mom. My dad was the sole breadwinner, first as a delivery man for a dry cleaning store, then, in later life, as a shirt salesman. My memories as a young kid are of scully (a bottle-cap game played on the hot summer tar in the middle of the street when cars weren’t approaching), stoop-ball, open fire hydrants gushing water in August, bullies, and gangs. In 6th and 7th grade I was routinely beaten up and threatened at knife point. So much so in 7th grade that I was terrified to go to school.
But I also loved school and worked hard at it, helped by my dad’s baby brother, Eugene, who had managed to go to college with the aid of the federal government as a Korean War Vet and who taught junior high school. Money was tight but not impossible. We ate three squares a day, had a loving home, and friends and neighbors passed their time chatting on the sidewalk, visiting each other’s apartments for coffee and danish, or even occasionally going out to the local Chinese restaurant. When I was 12, we moved to Co-op City, and I couldn’t believe my good fortune! Yes, Co-op City was subsidized housing, but it was then quite safe. The bullying stopped, and we lived in a brand new apartment. Otherwise, life was pretty much the same. Read the rest of this post »
posted by William & Mary Law Review
Andrew Koppelman, Corruption of Religion and the Establishment Clause
Matthew J. Tokson, The Content/Envelope Distinction in Internet Law
Aaron C. Garrett, New Theories of Guilt on Appeal in Virginia Criminal Cases
posted by Frank Pasquale
Yale Global Online Magazine has been publishing some interesting articles on the global economic crisis. I found Branko Milanovic’s observations on the origins of the crisis a refreshing new take on the matter:
In the United States, the top 1 percent of the population doubled its share in national income from around 8 percent in the mid-1970s to almost 16 percent in the early 2000s.* That eerily replicated the situation that existed just prior to the crash of 1929, when the top 1 percent share reached its previous high watermark. . . . . . But the richest people and the hundreds of thousands somewhat less rich, could not invest the money themselves. They needed intermediaries, the financial sector. Overwhelmed with such an amount of funds, and short of good opportunities to invest the capital (as well as enticed by large fees attending each transaction), the financial sector became more and more reckless, basically throwing money at anyone who would take it. . . . The increased wealth at the top was combined with an absence of real economic growth in the middle. . . . [as] household debt increase[d] from 48 percent of GDP in the early 1980s to 100 percent of GDP before the crisis.
The root cause of the crisis is not to be found in hedge funds and bankers who simply behaved with the greed to which they are accustomed (and for which economists used to praise them). The real cause of the crisis lies in huge inequalities in income distribution which generated much larger investable funds than could be profitably employed. The political problem of insufficient economic growth of the middle class was then “solved” by opening the floodgates of the cheap credit.
In other words, rather than being directed toward concrete projects that would satisfy real human needs, the money went round and round in speculative games, as the notional value of global OTC derivatives doubled three times between 2000 and 2008. As Martin Wolf observes, those able to skim compensation from those games “now sit on fortunes earned in activities that have led to unprecedented rescues and the worst recession since the 1930s.” Why would they invest in, say, renewable energy here, or infrastructure in Africa, or heating equipment for China when they could make a quick buck on the US housing bubble?
Read the rest of this post »
posted by Virginia Law Review
VOLUME 95 MAY 2009 ISSUE 3
|The Common Law Prohibition on Party Testimony and the Development of Tort Liability||
Kenneth S. Abraham
|Managers, Shareholders, and the Corporate Double Tax||
|Chevron Has Only One Step||
Matthew C. Stephenson and Adrian Vermeule
|Chevron’s Two Steps||Kenneth A. Bamberger and Peter L. Strauss|
|Deciding on Doctrine: Anti-miscegenation Statutes and the Development of Equal Protection Analysis||