Author: Dave Hoffman

12

A Grouchy Post About the Election

I’m on record as basically hating blogging by law professors about politics, never more so than when the election is near. Obviously, given the state of commentary on the more popular law professor blogs of late, too few agree with me about how unenlightening most political blogging by professors is.   Well, it takes all kinds!  And there’s always Orin Kerr, writing about actual cases, to read.

But here’s something we can all agree on, I would hope. Law professors have no business telling students who to vote for.  I wonder what percentage of the academy already has, or will, violate this simple rule in the next two days?  My bet: over 25%, and the age distribution would be illuminating. Some additional percentage have probably told their students that as lawyers-in-training they have an extra obligation to participate in the “civic duty” of voting. This, in my mind, is nearly as bad, since it is usually motivated by some implicit sense that the targets of the message are going to vote the way you want them to.

Whew. Glad I got that off my chest!

4

At CELS 2012

I’m really looking forward to next week’s 7th Annual Conference on Empirical Legal Studies, to be held at Stanford.  Here’s the preliminary program.  As usual, I’ll blog the conference after the fact.  If there are particular papers you want to make sure I get to and highlight, drop me a line.  As a taste, here’s a line from an abstract that made me very curious about the presentation to follow: “Our overall estimates suggest that pornography caused between 10 and 25 percent of all divorces in the United States in the sixties and seventies.”  Caused?!  That must be some kicker of an instrumental variable.

1

Is Contract Law Really Pragmatic?

I’ll begin by joining the others who’ve written in already to praise Larry’s excellent Contracts in the Real World.  It is highly accessible, entertaining, and offers a ream of examples to make concrete some abstract and hard doctrinal problems. Larry has the gift of making complex problems seem simple – much more valuable and rare than the common academic approach of transforming hard questions into other hard questions! This would be an ideal present to a pre-law student, or even to an anxious 1L who wants a book that will connect the cases they are reading, like Lucy, Baby M, or Peevyhouse, to problems that their peers are chatting about on Facebook.

Larry’s typical approach is to introduce a salient modern contract dispute, and then show how the problem it raises was anticipated or resolved in a famous contract case or cases.  Larry often states that contract “law” steers a path between extremes, finding a pragmatic solution. This approach has the virtue of illustrating the immediate utility of precedent for guiding the resolution of current disputes, and comforts those who might believe that courts are always political actors in (caricatured) Bush v. Gore or Roberts/Health Care Cases sense. It has the vice of de-emphasizing state-by-state differences in how contract law works, as well as the dynamic effects of judicial decisions on future contracts. But I think that for its intended audience, these vices can be easily swallowed.

I wanted to offer one question to provoke discussion: is it actually true that politics is as removed from contract law as Larry’s narrative appears to suggest, and how would we know?  The contracts law professor listserve is full of laments about judges turn away from Traynor & his perceived progressive contract doctrines – and I certainly know of colleagues who teach that there are “liberal” and “conservative” versions of the parol evidence rule, for instance. But what does this actually mean, and how does it connect with the scholarship on judicial politics generally?  As it turns out, this question has been understudied, probably because political scientists have yet to find a way carefully operationalize what a “liberal” or a “conservative” outcome in a contracts case would be, and thus to usefully regress case outcomes against a judge’s political priors.  Many authors (Sunstein et al. 2004; Christy Boyd and I, 2010) have found ideological effects outside of the typical con law regime (particularly in “business law” areas).  But I’m  aware of a few empirical papers analyzing the political valence of how contract doctrine comes to be. (Snyder et al. n.d.)  Some have suggested that contract law is a particularly hard area to study because selection effects loom so large. I would also note that most contract law “work” occurs at the state court level, where ideological measures are either explicit or very obscure.

If we found good measures, my own hypothesis would be that a particular judge’s worldview matters a great deal to how he or she resolves contract disputes – with priors about how much a person should be responsible for their own choices, and their perspective on market discipline, shaping how they understand the facts and thus apply the law.   Contract cases are powerfully controlled by judges – probably more so than in other areas of private law. Contract doctrine would reflect these individual choices, and we’d thus be left not withone  “pragmatic” contract law, but rather many competing strands. I’d thus close by urging readers of Larry’s book to think a bit about the cases not picked out and illuminated in the narrative – where the judges are less wise and more human.

4

The Increased Cost of Distance Education

For uninteresting reasons, I just read Indiana University’s Strategic Plan for Online Education.  Here’s a fact I didn’t know, and haven’t seen well-advertised in the blog discussion on the cost transformative effects of distance learning:

IU (and the remainder of higher education) needs to educate policy makers and the public that online education generally is more, not less, expensive than on‐campus education at both undergraduate and graduate levels. The biggest reason for this is that a universal experience is that equivalent quality online education requires greater individual student attention than on‐campus education at all levels. Units deal with this either by decreasing class sizes, increasing the credit given to faculty teaching online in calculating their teaching load, or providing additional instructional assistants; all of these increase cost per student.

Additional factors that increase the cost of online instruction are the technological infrastructure needed to support it, the need to support student access 24/7, and the greater costs to develop and maintain course materials. The main factor that generally is cited for a decreased cost of online instruction relative to on‐campus is that it doesn’t require classroom space. This is valid; a careful computation by Associate Vice President Steve Keucher calculates this savings at $8.68 per credit hour, or roughly $26 per three credit course. While significant, this savings is not enough to offset the additional costs of online education, such as class sizes that often are 20‐35% smaller.

As pointed out by IU Vice President and Chief Financial Officer Neil Theobald, an important factor in pricing online education is pricing by peers in this market. As shown by the pricing summary for other universities in Appendix B, this pricing offers some guidance but is highly variable.

This seems to pose a challenge to those who would say that distance learning will drive costs out of higher education, no?

6

The Price of Bankruptcy

Credit Slips highlights a very cool new paper, Bankruptcy Spillovers: Distance, Public Disclosure, and Opaque Information.  In the paper, Barry Scholnick examines bankruptcy filings in Canada at a micro level.  Looking at the postal code of every filer – which code is a much more precise geographic identifier than our zip codes – Scholnick concludes:

“The punch line of my study is that there is indeed a significant impact from the past bankruptcies of neighbors (as defined by the very small Canadian Post Codes) to the probability that an individual in the neighborhood will file . . . I propose, and provide evidence for, the hypothesis that if a defaulter lives in a neighborhood with a large number of previous bankruptcies among the neighbors, then that individual will choose to default via bankruptcy rather than charge-off. This is because more neighborhood bankruptcies will lower stigma or provide more information about the process of bankruptcy.

On the other hand, I show that defaulters who live in low bankruptcy neighborhoods choose to default via charge-off rather than bankruptcy. This is consistent with the argument that low bankruptcy neighborhoods have higher levels of bankruptcy stigma, thus individual defaulters choose to default via charge-off in order to maintain more privacy about their default.”

This paper not only fits within a literature on bankruptcy, but also is a nice match to work by my co-author Tess Wilkinson-Ryan on how mortgage foreclosure and other forms of breach are socially mediated events.  Abiding by onerous contracts is unpleasant, but we do it so long as it is socially validated. When it stops being socially normal to stick with terrible deals, we exit them.

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!