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Author: Dave Hoffman

11

The Unenforceability of Contracts to Abort

TMZ has a scoop.  (Yes, I read TMZ.  Every day.)  Tagg Romney (son of Mitt) and his wife Jen entered into a surrogacy contract which contained a clause purporting to require the surrogate to abort on demand given a particular set of contingencies:

We’ve learned Tagg and his wife Jen, along with the surrogate and her husband, signed a Gestational Carrier Agreement dated July 28, 2011.  Paragraph 13 of the agreement reads as follows:

“If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate . . . In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents.  In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision . . . Any decision to abort because of potential harm to the child, or to reduce the number of fetuses, is to be made by the intended parents.”

It is a common error to think that contract terms are specifically enforceable as written.  I believe that there is literally not one judge in the country who would require a surrogate to abort on demand against her wishes notwithstanding this clause.  In part, this results from the law’s traditional reluctance to enforce specific performance of personal services contracts.  Here, that’s coupled with the constitutional interests in bodily integrity that the Baby M court discussed.  Thus, while TMZ translates the agreement as “Tagg and his wife, Jen, had the right to abort the fetuses if they felt they would not be healthy,” the better line would be “Tagg and his wife, Jen, have an exit right which they can exercise if the surrogate fails to abort.”

That is, failure to abort on demand would be a material breach by the surrogate, relieving the Romneys from their duty to pay.  Whether it would additionally then lead the Romneys to be able to sue – for costs incurred, probably – is unclear to me, as I think some judges would find an abort-on-demand clause against public policy.

5

The Penn State Disaster Pool

So this is interesting:

“The mediator who managed the Sept. 11 victims-compensation fund and settlements with those affected by the 2010 BP Gulf oil spill has been hired by Pennsylvania State University in the hope of settling the civil claims of Jerry Sandusky’s victims.

The university announced Thursday that it had hired Kenneth R. Feinberg to facilitate negotiations for the four current lawsuits and more expected to be filed by those sexually abused by the former assistant football coach.”

One way to read this is that PSU is going to make available a large pool of money to a diverse victim class, and has hired Feinberg for his expertise dividing complex pies in ways that leave most folks relatively satisfied.  But there’s another reading that seems at least plausible.  Associating with Feinberg transmutes the human errors which enabled Sandusky’s crimes into a “disaster”, implying less particularized responsibility.  Plaintiffs refusing to partake in the common pool can potentially be framed as selfish, grasping, etc.  That so even though almost by definition, these disaster pools allocate less money to every plaintiff than their individual claims are “worth”.

8

When is a Horse a Vehicle?

In Kentucky. Lowering the Bar explains:

WKYT reported on Monday that a 55-year-old Jessamine County man had been cited for riding while intoxicated. The man said he was trail-riding with some friends and had stopped to have something to eat “when the deputy arrived and told me to get off my horse.” He explained that he is severely diabetic and hadn’t eaten, and that is why he staggered after dismounting, not because he was intoxicated . . .

The report says the man was charged with a violation of Section 189.520, “Operating a vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability prohibited.”  . . .  The statutory language is better than the title: “No person under the influence of intoxicating beverages or any substance which may impair one’s driving ability shall operate a vehicle that is not a motor vehicle anywhere in this state.”

[A]ren’t there often statutes that define certain legal terms? Yes, and there’s one here. And sadly for Rooster Cogburn, it defines “vehicle” as including “All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth.…” So while I still like my “animal is not a vehicle” argument, Kentucky has precluded it.”

Seems like a good example to use in a class on statutory interpretation.  Isn’t the obvious question what an “agency” is for the purposes of Kentucky law?

19

Quote Approval

Our platonic media guardians worry about the increasingly common practice of giving sources “quote approval”.  At the NYT’s public editor explains,

“Some parts of the practice, I believe, do fall into a black-and-white realm. The idea that a reporter must send a written version of a quotation to a source or his press representation for approval or tweaking is the extreme version of the “quote approval” practice and it ought to be banned in a written rule.”

This is nonsense.  There’s a simple reason that most sources (including me) ask for quote approval: we don’t trust reporters to avoid making a hash out of our comments, pulling quotes selectively to fit a pre-existing narrative, and consequently turning the source into the reporter’s sock puppet.  It’s a no brainer that anyone who has to regularly deal with the press should try to get quote approval. You’ll succeed with some reporters – generally the better ones, in my experience. If you fail to get quote approval, you should remember to think three times before saying anything, including your name.

Why?  Well, most reporters who call me have a particular thing they’d like me to say.  Sometimes they’ve told me what that thing is: I can then proceed to either say it or not.  Other times they ask a ton of questions, but it’s quite obvious that it’s all just filler time until I can manage to produce the right words in response to the right stimuli. (Foolishly, when I began my career, I foolishly thought that these conversations were a preface to the real question that they were going to ask!)  Often reporters will pastiche quotes from different parts of the interview to create a comment which bears no relationship to what you think.  Basically: reporters aren’t writing the first draft of an objective narrative (“history”): they have already written that narrative, and your role is to be the footnotes locking it all down.  Don’t be a sucker.  Ensure that your name is attached to things you actually think.

3

Laws Regulating PII

My co-author Sasha Romanosky asks me to post the following:

I am involved in a research project that examines state laws affecting the flow of personal information in some way. This information could relate to patients, employees, financial or retail customers, or even just individuals. And by “flow” we are interested in laws that affect the collection, use, storage, sale, sharing, disclosure, or even destruction of this information.

For example, some state laws require that companies notify you when your personal information has been hacked, while other state laws require notice if the firm plans to sell your information. In addition, laws in other
states restrict the sale of personal health information; enable law enforcement to track cell phone usage without a warrant; or prohibit the collection of a customer’s zip code during a credit card purchase.

Given the huge variation among states in their information laws, we would like to ask readers of Concurring Opinions to help us collect examples of such laws. You are welcome to either post a response to this blog entry or
reply to me directly at sromanos at cmu dot edu.

Thank you!

Sasha is a good guy, and a really careful researcher. Let’s help him!

1

AALS Panel on Student Scholarship

Joan Heminway passes this along:

The Association of American Law Schools Committee on Research is considering putting on an AALS panel on (1) how we law professors can advance student scholarship and (related but separately) (2) how we can advance joint faculty-student scholarship.

Most student law review notes (or other student articles) are written as independent study projects or, occasionally, as individual term papers in seminars.  But are there other approaches that you have seen tried or particular ways of structuring independent study projects or seminar term papers that have been especially successful?  Most faculty members don’t cowrite articles with students.  But have you seen techniques or approaches that helped such collaborative projects succeed—or ones that led them to fail? 

The Committee has asked us to identify some ideas that the panel can more closely explore, and we’d much appreciate any tips that you could pass along.  If you can give us just a few sentences that describe different models for fostering student or faculty-student scholarship that you have seen—whether those sentences include recommendations, cautionary tales, or just neutral reports—we’d love to see them.  Please e-mail them to either Joan Heminway (jheminwa@tennessee.edu) or Eugene Volokh (volokh@law.ucla.edu).  Submissions received by October 1 would be most useful to us in our planning, but feel free to respond later if you can’t reply by then.

My views on whether (and consequently how) we should subsidize student scholarship are here.  But given that Joan and Eugene are organizing, the panel is certain to be a hit!

6

Legal Peer Review Journals: Time to Reject/Accept/R&R?

One of the advantages of student-edited law journals is that the turn-around time for acceptance or rejection is typically relatively fast – if you are going to hear, you’ll know within a month or two 95% of the time.  The same can’t be said for peer review journals in other fields, which are famously very, very slow.

What about peer reviewed journals that focus on law, and which regularly publish the writings of American law professors?  After the jump, I’ve listed the the top fifty peer and referreed journals, by combined impact factor (W&L) rank.  I’d be curious to hear from readers who’ve submitted to these journals regarding how long it took to get a substantive response (whether acceptance, rejection, or R&R). I’ll participate in the comment thread if others do – I’ve submitted to JLS, JELS, and JLEO, and JLA, and have generally positive views about those journals’ ability to get back with some answer in a reasonable amount of time.

Read More

7

Crime and Criminal Lawyers

The always blunt Scott Greenfield writes:

“I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all.  Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.

It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so.  There is a shortage of criminal defendants who can afford to pay for a lawyer.  Sure, there are  some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive . . .

[snipping some typical anti-law school commentary...]

The fact is that the vast majority of criminal defense lawyers are starving.  Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn.  Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free.  The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.”

I don’t know if the trend that Scott describes is local (NY) or national.  (The students I know in criminal practice are either PDs or too fresh to know the regional market well.)  If it is a national trend, it’s disturbing.  Scott asserts that the decline in the criminal defense bar is unrelated to the decline in crime.  Presumably, it could be related to the overall slowdown in the economy. But the primary mechanism I’d posit for such a relationship would be an increase in the supply of criminals, which isn’t evident in the crime data.  The decline in BigLaw results from outsourcing, client-billing pressure, and digitization.  None of that is present here.  What’s going on?  Is this mostly about the collapse of the more lucrative side of the drug trade? The commodification of practice (driven by internet advertising)?

Knowledgeable and signed comments will be welcome.

5

Is Stuttering the Tribute Cynics Pay to Sentiment?

A Gawker article about the fakeness of the DNC resonated with me.  But the author makes the following puzzling claim:

“Michelle Obama stutters. She does not have a stutter. She stutters on purpose. “I-I-I, I’ve seen it in our men and women in uniform.” “Fr-from the young person with so much promise.” “And-and, even as a kid…”

It is a studied stutter, deployed in order to build sincerity. It is not so much a rhetorical device as an acting device. The same could be said for the presentation of almost all political convention speeches. And it is, at its core, sad.”

I too am turned off by the conventions of our conventions, and believe the RNC (and now the DNC) to be manipulative, peacocking displays. It an excellent trend that Americans increasingly agree with me and turn off their TVs rather than watch the pageantry.  However, I’m puzzled by the claim that false-stuttering will make listeners more, not less, convinced of the First Lady’s sincerity.  The research I’ve seen tends to the opposite conclusion.  Indeed, this paper claims that even mild stuttering would be a serious impediment for a politician, let alone his or her spouse.  Is there actually evidence that a mild stutter makes speakers seem more sincere?

 

[Update: edited for clarity.]

0

Workshop on Empirical Approaches to Access to Justice

Symposiast Jim Greiner passes along the following call for applications:

Working together across the lines of scholarship and practice, a group of researchers and field professionals in access to civil justice (A2J) in the United States is soliciting applications to attend a two-day Workshop to be held in Chicago, Illinois on December 7-8, 2012. The Workshop opens with a poster session and town hall meeting on the afternoon of Friday, December 7. This open session, held in conjunction with the National Legal Aid and Defender Association annual meetings, will bring together scholars and practitioners from many perspectives to identify and explore access to justice research needs. On the following day, Saturday, December 8, the Workshop will convene a smaller, closed session to push forward the work of revitalizing A2J research. We are grateful to the National Science Foundation Law and Social Sciences Program (SES-1237958) for recommending financial support.

The application materials are here: NSF Workshop Application.  Jim encourages all interested parties – which should include anyone who is interested in empirically examining access to justice issues – to apply.