Author: Dave Hoffman

5

Your Daily Provocation

From Daniel McCarthy:

“As a guideline, originalism clearly has merits: it leaves most politics to the political branches, even if it might not succeed in leaving all politics to them; and it may encourage, at least up to the point, a degree of modesty on the part of the judge—relative, that is, to theories that loudly assert the scope that judges actually have in rendering opinions. In some ways, originalism and the broader backlash against the activism of the pre-Rehnquist court may have disguised just how bad the alternatives could be: the Supreme Court has been less adventurous in the last 30 years, and conservatives who remember how adventurous it was earlier in the 20th century may be frustrated that the danger they perceive isn’t felt as strongly by someone like me.

But I remain skeptical. Jurisprudence is an area where I find very little conservative self-examination as searching as that on display in various schools of economics and foreign policy. Indeed, traditionalists and libertarians who reject conservative-movement talking points on economics or foreign policy sometimes sound like just like Rush Limbaugh or Bill Kristol when it comes to the courts. This consensus may exist for a good reason—because it’s formed around a correct doctrine—but it may just mean that the best minds of the right have yet to turn sufficient attention to this area.”

McCarthy doesn’t add the more cynical supposition that criticism of originalism on the right is a sure way off the greased (federalist) career path that the last thirty years has carved out. But the buried argument in this paragraph is worth excavating: the success of the counterrevolution has blinded those who came after to how adventurous – and wrong – the original Warren-court’s premises about judicial and national power and competency turned out to be. A version of this argument is now the CW, at least in some circles.  And so I wonder…how many lawyers born after 1970 would actually want to live in a world governed by Earl Warren and his band again? Could it possibly be more than 20%?

0

CELS 2013: Up Close and Personal.

This weekend is CELS VIII, to be held at Penn Law.  As our readers know, it’s my practice to provide a summary of the conference – or at least those bits I attend. (See here for CELS VII and links to 3-6). This year is no different. You can find the program and papers up on a very, very cool looking webpage here. I intend to go to everything, including the talk by Bill James.  Who I hope will spend his time talking about my extensive writings on the interaction of sabermetrics and ELS.  But who likely will talk about how the Red Sox are awesome and the Phillies are not.

6

The Economics of the Baby Shortage: A Horrifying Counter-example

In Landes and Posner’s famous, The Economics of the Baby Shortage, the authors consider the possibility that baby buyers are likely to self-selecting monsters.  Not so, they argue, as

“Moreover, concern for child abuse should not be allowed to obscure the fact that abuse is not the normal motive for adopting a child.  And once we put abuse aside, willingness to pay money for a baby would seem on the whole a reassuring factor from the standpoint of child welfare. Few people buy a car or television set to smash it.  In general, the more costly a purchase, the more care the purchaser will lavish on it.”

I’ve always found these lines to be particularly bizarre  (even in the context of an otherwise famously provocative, probably misleading, essay). In any event, they came to mind when a student in my L&E class forwarded on this chilling story.

“KIEL, Wisconsin, Sept 9 (Reuters) – Todd and Melissa Puchalla struggled more than two years to raise Quita, the troubled teenager they’d adopted from Liberia. When they decided to give up the 16-year-old, they found new parents to take her in less than two days – by posting an ad on the Internet…”

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0

IRBs and Mission Creep?

I’ve written several times in the past about the intersection of IRBs and the legal academy. (Blogging; Caselaw Research; Zach Schrag interview) Consider this an update in that series.

My university (Temple) has an interesting set of new IRB guidelines. Essentially, Temple’s IRB (for all subjects) is now requiring department head sign-off for all protocols:

“In addition to the PI, every individual listed on the approval route on an IRB submission is required to approve the submission before it can reach the IRB for review. The electronic approval takes the place of a hard copy signature. Department Heads and all research personnel are required to approval Initial Submissions. Individuals can also be manually added to the approval route. Everyone listed on the approval route must view and approve the submission in order for it to reach the IRB. Please see the instructions for Providing Approval in eRA on the IRB’s website.”

When I inquired as to why this regulation was required, I was told that department heads knew the financial health & needs of the institution, and would therefore be able to tell if particular projects’ execution was financially possible.  Because department heads are best positioned to know if research is too expensive (and consequently that human subjects wouldn’t be cared for), IRB review will be denied if they refuse to sign the application. The IRB acknowledged that the regulation was not required by HHS regulations or the common rule, but was essentially a way to improve the quality of the University’s research.

To me this is a deeply problematic requirement. Academic freedom is a slogan which almost always signifies rent seeking. But here, there are significant risks that the IRB could be used as a way to cloak gamesmanship inside of departments.  Imagine that you are on the outs from your boss. She or he can now simply refuse you the right to do research by stating that the department can’t support it.  The IRB enforces that refusal, with its full array of punitive sanctions. What avenue of relief could you possibly have, apart from an incredibly cumbersome university grievance process, or a First Amendment lawsuit against the University?

Ultimately I dropped my objections to the regulation and got sign-off, in large part because I trust the powers that be.  Also, who wants to poke the bear?  But I thought I’d throw it out there to see whether any of you have seen similar regulations, and whether (or not) they’ve been challenged successfully.

2

The Dignity of the Minimum Wage?

[A brief note of apology: it’s been a terrible blogging summer for me, though great on other fronts.  I promise I’ll do better in the coming academic year. In particular, I’d like to get back to my dark fantasy/law blogging series. If you’ve nominations for interviewees, email me.]

WorkDetroitThis is one I’ve been meaning to write for a while.

One of the major lessons of the cultural cognition project is that empirical arguments are a terrible way to resolve value conflicts. On issues as diverse as the relationship between gun ownership and homicide rates, the child-welfare effects of gay parenting, global warming, and consent in rape cases, participants in empirically-infused politics behave as if they are spectators at sporting events. New information is polarized through identity-protective lenses; we highlight those facts that are congenial to our way of life and discounts those that are not; we are subject to naive realism.  It’s sort of dispiriting, really.  Data can inflame our culture wars.

One example of this phenomenon is the empirical debate over minimum wage laws. As is well known, there is an evergreen debate in economics journals about the policy consequences which flow from a wage floor.  Many (most) economists argue that the minimum wage retards growth and ironically hurts the very low-wage workers it is supposed to hurt. Others argue that the minimum wage has the opposite effect. What’s interesting about this debate -to me, anyway- is that it seems to bear such an orthogonal relationship to how the politics of the minimum wage play out, and the kinds of arguments that persuade partisans on one side or another. Or to put it differently, academic liberals in favor of the minimum wage have relied on regression analyses, but I don’t think they’ve persuaded many folks who weren’t otherwise disposed to agree with them. Academic critics of the minimum wage too have failed to move the needle on public opinion, which (generally) is supportive of a much higher level of minimum wage than is currently the law.

How to explain this puzzle?  My colleague Brishen Rogers has a terrific draft article out on ssrn, Justice at Work: Minimum Wage Laws and Social Equality. The paper urges a new kind of defense of minimum wages, which elides the empirical debate about minimum wages’ effect on labor markets altogether. From the abstract:

“Accepting for the sake of argument that minimum wage laws cause inefficiency and unemployment, this article nevertheless defends them. It draws upon philosophical arguments that a just state will not simply redistribute resources, but will also enable citizens to relate to one another as equals. Minimum wage laws advance this ideal of “social equality” in two ways: they symbolize the society’s commitment to low-wage workers, and they help reduce work-based class and status distinctions. Comparable tax-and-transfer programs are less effective on both fronts. Indeed, the fact that minimum wage laws increase unemployment can be a good thing, as the jobs lost will not always be worth saving. The article thus stands to enrich current increasingly urgent debates over whether to increase the minimum wage. It also recasts some longstanding questions of minimum wage doctrine, including exclusions from coverage and ambiguities regarding which parties are liable for violations.”

I’m a huge fan of Brishen’s work, having been provoked and a bit convinced by his earlier work (here) on a productive way forward for the union movement. What seems valuable in this latest paper is that the minimum wage laws are explicitly defended with reference to a widely shared set of values (dignity, equality). Foregrounding such values I think would increase support for the minimum wage among members of the populace.  The lack of such dignitary discussions in the academic debate to date has level the minimum wage’s liberal defenders without a satisfying and coherent ground on which to stand. Worth thinking about in the waning hours of Labor’s day.

 

 

1

Temple Law Hiring Announcement

On behalf of this year’s committee, I pass along the following:

Temple University James E. Beasley School of Law invites applications from both entry-level and lateral candidates for full-time, tenure-track faculty positions to commence in the Fall Semester 2014.  We welcome applications from candidates with a wide variety of interests.  Although areas of need are subject to change, priority areas are likely to include health law, business and commercial law, civil procedure, intellectual property, law and technology, trust and estates, torts, and employment law/employment discrimination.

Lateral candidates should contact Professor Gregory Mandel, Lateral Faculty Appointments Subcommittee (gmandel@temple.edu).  Entry level candidates should contact Professor Donald Harris, Faculty Appointments Subcommittee (donald.harris@temple.edu).  Temple University is committed to a policy of equal opportunity for all in every aspect of its operations.  The University has pledged not to discriminate on the basis of an individual’s age, color, disability, marital status, national or ethnic origin, race, religion, sex (including pregnancy), sexual orientation, gender identity, genetic information or veteran status.

 

0

Guest Post: Jonathan Lipson on the Mess in Detroit

Lipson_WebPhotoSorry to interrupt the symposium, but this is in the way of a breaking law-news update.  I asked Jonathan Lipson (Temple), a former guest blogger here and all-around bankruptcy superstar, to offer our readers some thoughts on the recent decision out of the Detroit bankruptcy.  Here are his views:

Detroit: Kicking the Federalism Question Down the Rhodes

Yesterday, Bankruptcy Judge Steven Rhodes stayed a state court suit to derail Detroit’s chapter 9 bankruptcy.  While Judge Rhodes may ultimately dismiss the bankruptcy petition on his own, the decision forestalls one of the harder questions underlying the filing: To what extent may an Article I bankruptcy judge approve a bankruptcy plan that (may) conflict with state constitutional protections for municipal union members?

The answer will be difficult for several reasons, mostly having to do with the recursive interactions between federal and state law in this context. Bankruptcy Code § 943(b)(4) permits a bankruptcy judge to approve a “plan of adjustment” (as it is called) if the “debtor is not prohibited by law from taking any action necessary to carry out the plan.”

While chapter 9 case-law is sparse, one court has interpreted this to mean that it could not approve a plan that altered state-law priority-protections for bondholders. In re Sanitary & Improv. Dist. #7, 98 B.R. 970 (Bankr. D. Neb. 1989). Municipal union members may cite this, and then point to Michigan’s constitution, which provides:  “The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.” Mich. Const. Article IX, § 24.

Because the plan proposed by Detroit’s emergency financial manager, Kevyn Orr, apparently reduces accrued benefits significantly, retirees would argue that the plan would diminish and impair their contractual rights.

But Orr may respond in three ways. First, he may cite the recent City of Stockton case, and argue that state law cannot prevent a municipal debtor from “adjusting” (i.e., reducing) debts, because federal law is supreme.  See In re City of Stockton, 478 B.R. 8, 16 (Bank. E.D. Cal. 2012).  Of course, if the federal law in question (the Bankruptcy Code) defers to conflicting state law, this argument doesn’t get him very far.

So, his second move may be to argue that a plan that diminished accrued contractual benefits would not violate the law, because it has long been accepted that the Bankruptcy Power is far greater with respect to contract rights than property rights.

As I (and others) have explained elsewhere, this distinction seems foundational.  Michigan’s constitution may protect municipal union members’ contract rights, in other words, but that’s all they are: contract claims, subject to “adjustment” under federal bankruptcy law.  If municipal retirees had really wanted solid protection, Michigan’s constitution should have characterized their accrued benefits as “property,” not “contract,” rights.

Third, and most instrumentally, the Michigan constitution does not appear to prevent Orr from exiting current agreements prospectively.  Bankruptcy Code section 365 would give Detroit the power to reject such contracts if they are burdensome (there are actually a couple different rejection standards, but it seems likely he could meet them).  Even if Orr’s hands are tied as to accrued obligations, the argument would go, he could terminate large numbers of current employees, some of whom he may rehire at lower wages.  If municipal employees want their jobs back, they (or their unions) would have to compromise accrued benefits claims.

This would in effect pit current employees against former ones (retirees).  Like those who have successfully reorganized mass-tort, Orr may be able to use this tension to extract concessions from the unions.  Or, the unions may be able to use this same tension to get a better deal than the one that’s on the table.

Either way, setting up these sorts of bargains is, in my view, one of the most important federal interests here.  I have argued in the context of the Catholic Church bankruptcies, for example, that that should be the system’s overarching goal, especially in normatively difficult cases.

Yet, further confounding the analysis are the mixed signals the Supreme Court has sent on the interaction between Congress’ Article I powers (especially bankruptcy court power, in cases such as Stern v. Marshall) and “states’ rights.”  On one hand, cases such as Seminole Tribe and Alden (and, indirectly, Stern) suggest that the Court takes state sovereignty seriously:  the federal government has limited powers to intrude into states’ affairs, which may include interpreting their constitutions (okay, let’s ignore Bush v. Gore).  On the other hand, cases such as Hood and Katz suggest that the Court will make an exception for bankruptcy, discharging state claims and permitting suits against states to recover preferential transfers, respectively (okay, let’s ignore Stern).  Perhaps Judge Rhodes will have a relatively free hand here.

How this will unwind in Detroit is difficult to predict, but seems likely to matter to the outcome. In the meantime, we will have to wait for Judge Rhodes to decide whether to permit Detroit’s case to go forward at all.  Bankruptcy Code section 921(c) provides that the bankruptcy “order for relief” cannot be entered until resolving objections to the petition.  This can include an objection that the filing “does not meet the requirements of this title.”

The unions are likely to argue that Detroit’s bankruptcy petition flunks because Orr’s plan would violate the state constitution, as “incorporated” by Bankruptcy Code section 943(b)(4).  Orr would respond by arguing the supremacy of federal bankruptcy law, perhaps along the lines noted above . . . . And so on.

Given these complexities, it would be understandable if Judge Rhodes wanted to kick the federalism question further down the road, in the hope that all major stakeholders—e.g., bondholders and employees—can avoid the costs of litigating these questions, and settle them in a plan they agree on.

10

What Would Happen if USNews Didn’t Weigh Money?

no-money-300x300-150x150Recently the ABA announced that it will no longer collect expenditures data from law schools: Leiter and Merritt offer thoughts on how that decision will influence the USWR rankings.  Both posts are interesting, though somewhat impressionistic.  Leiter thinks that state schools will benefit and Yale will lose it’s #1 spot; Merritt believes that USWR should reconfigure its method. [Update: Bodie adds his two cents.]

It’s well known that the influence of particular categories of data on the ranking can’t be determined simply by reading the charts that the magazine provides. Paul Caron notes that the rankings depend on on inputs that aren’t displayed (like expenditures). But it gets worse: (1) the point accumulation of each school influences that of every other school; (2) USWR changes the raw data through manipulations that are not well explained (placement discounts for law school funded positions) or are simply obscure (CoL adjustments for expenditures); (3) many schools don’t report information and USWR doesn’t advertise their missing-data imputation method; etc. etc. Bottom line: the rankings are very, very fragile.  (Many would say they are meaningless except at 10,000 feet.)  Luckily, Ted Seto’s work enables everyone to give their best shot to approximating each year’s ranking.  Seto argues that variance within a category turns out to influence the final scores as much as the purported weight that USWR assigns to it.

As thought experiment, I decided to estimate what would happen if each school’s expenditure data was set to average school’s expenditure.  I then used Seto’s method on 2011-2012 historic data to estimate the rankings in the absence of expenditure variance.  This basically eliminates the influence of expenditure as a category.  (A perhaps better, but more time consuming, approach would be to eliminate the expenditure categories altogether and re-jigger the equation accordingly). My back-of-the-napkin approach produces some wacky results, particular at the lower end of the ranking scale.  To keep it simple, after the jump I’ll focus on the top ten winners and losers from the elimination of expenditure variance in the 2013 t100 and then offer some thoughts.

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15

The Humble Justice Scalia

Justice Scalia isn’t often justly lauded for his humility.  Today’s opinion in Molecular Pathology v. Myriad (the gene patenting case) provides an opportunity. His concurrence reads, in its entirety:

“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am un-able to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.”

There’s something heart-warming about this short opinion — a bit like Justice Steven’s ode to jalopies and country roads in Scott.  It’s also a useful model of rhetorical humility in the face of pretty complex science. Justice Scalia is ordinarily celebrated for his caustic wit & slashing attacks: we should be happy when he takes a different approach.

10

Sherlock and the Law

sherlockLike many, I’ve been watching the BBC’s Sherlock, a modern re-telling of Arthur Conan Doyle’s detective series. I’m only mostly finished the first series, but thus far it has been striking how little role law (and its constraints) play in the narrative.  Basically, although Sherlock is a “consulting detective” (and under US rules, certainly an agent of the State), he routinely behaves in unlawful ways.  He often breaks into dwellings (and cellphones, and cars) to get information; he is resistant to writing up his methods (and consequently, a defense attorney would not be able to effectively examine them); he browbeats suspects and witnesses; etc.  In the States, quite obviously, all of the confessions produced by his methods would be thrown out as poisoned fruit.

There’s nothing earth-shaking here – and it’s not the only time that law is devalued by storytellers – but I wondered whether and to what extent a series based primarily in the UK can avoid barnacled procedural discussions in a way that a series based in the US obviously can not.  That would then suggest that Elementary, a CBS show that apparently apes Sherlock in many ways, would spend more time talking about law (and the rules of criminal procedure) than Sherlock does. I haven’t seen the former show, so I’d love to be disabused of my fear that Elementary’s Sherlock spends most of his time filling out paperwork and discoursing on the complicated rules of electronic surveillance.