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Author: Dave Hoffman

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Grading Exams and Other Fun Activities

I started grading exams today. As most Profs. will tell you, grading is the least pleasant aspect of law teaching. Fortunately, at my current rapid pace of 2.5 hours per exam, I will be finished at the latest by mid-March.

On the plus side, I’ve almost finished writing my syllabus for next semester’s new seminar in Law and Economics. In preparing the course, I was reminded again of McCloskey’s fantastic little essay on The Rhetoric of Law and Economics, 86 Mich. L. Rev. 752 (1988). Well worth reading if you have a WL or Hein account.

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Immigration Appeals in the Times

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Adam Liptak of the Times caught up today on the blawg-headlining Posner opinion from a few weeks back on immigration appeals. Considering the lead-time, I’m surprised at the weakness of the responses to Posner’s opinion offered by the BIA’s defenders. The bottom line answer to appellate anger: “You guys are falling victim to the fundamental attribution error.”

Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.

“The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal,” Mr. Cohn said. “They’re only seeing a fraction of the cases, and only a small fraction of those give rise to criticism.”

I think this response is misleading.

First, the article tells us that immigrants appeal 7 to 30 percent of the time. This is the source of Cohn’s intuition that only the “bad cases” for the government end up on appeal. But I can’t imagine that Cohn’s equation of the failure to appeal with being “correctly decided” has much basis in known fact. It might be that Cohn is correct. But I’d assume instead that costs (financial, emotional, and otherwise) prevent appeals, and not being compelled by the force of the government’s arguments.

Second, just because the government wins 90% of the time in the appellate courts doesn’t mean the BIA is right 90% of the time on the merits. Most of those wins depend either on procedure or on the operation of the standard of review, which is why the overall success rate for the government on appeal is exceedingly high. Even this success rate appears to depend on the amount of attention appellate judges pay to BIA procedures. As Posner’s opinion revealed, in the Seventh Circuit in 2005 the government’s win rate was around 60% in BIA cases, as compared to 82% in all other civil cases.

Third, Cohn’s rebuttal is aimed at the wrong target. Almost all judicial review of administrative agency decisionmaking will produce the pyramid structure he describes, where the “worst” cases are the most likely to result in published appellate reversals. But what is striking about the BIA is (1) that it has appeared, to date, undeterred by Circuit Court tongue-lashing; and (2) that the problem is occupying more and more appellate time. That’s why we get statements like this one from Posner’s opinion: “the adjudication of these cases at the administrative level has fallen below the minimum standard of legal justice. Whether this is due to resource constrains or to other circumstances beyond the Board’s and the Immigration Court’s control, we do no know, though we note that the problem is not of recent origin.”

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The Role of the Solicitor General

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We here at Concurring Opinions occasionally provide an important service for our readers: we analyze uber-left-blog-Dailykos’ views on the legal system so you don’t have to.

Armando of Dailykos, who I have previously criticized here, has a new post up on the role of the Solicitor General’s Office. Armando appears to be taking on Ed Whelan’s short argument in the National Review that Judge Alito’s SG wiretapping memo’s were advocacy pieces on behalf of his administration. But on closer examination, Armando’s argument sweeps quite farther than that.

Armando quotes extensively from David Strauss’ article on the SG’s office, which had questioned the commonly-expressed institutionalist account of its role. He (Armando) appears drawn to the institutionalist view – holding that the SG should be and is somewhat independent of the White House. [Where is he on the Days-Clinton dispute, I wonder?] But, he argues, the executive branch has soiled this role by politicizing the SG [whatever that means] and by appointing more partisan lawyers to the job. [He cites to a book by Rebecca Salokar that I have not read.] Armando does not distinguish between employees of the office and the SG him/herself. He then continues:

Alito was chosen to be in the Reagan Justice Department and the Reagan Solicitor General’s office BECAUSE he believes the things Ed Meese believes. [Ed: How does Armando know this?] So yes, he was acting as an advocate for Reagan Administration legal policies, but he was chosen to advocate for them because he believes in those policies. So looking at the opinions he expressed and positions he advocated for while serving in the Reagan Justice Department and in the Solicitor General’s office is not only fair, it is perhaps the fairest approach we can take. After all, it was in those roles that we likely heard Alito’s true views. While a sitting judge, bound by precedent, Alito’s true views were muted at best, and masked at worst. [This sounds lovely. What does it mean?]

So, to sum up, Armando argues that as early as the 1980s the SG’s office was a mere extension of the White House political directorate, and that SG lawyers writing memoranda supporting administrative positions always personally supported those positions, by virtue of their status as SG employees. While Judges, actually appointed by the President in a nakedly political process, somehow are bound by “precedent”. This is an odd position considering Armando’s previous writing that embraced a cynical type of legal realism. I wonder if readers of this blog with personal experience in the SG’s office would agree with the picture of it drawn by the most popular blog on the planet.

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Back From Vacation

I’m back from a week’s vacation with family, and ready to rejoin the blogging world. Not entirely coincidentally, Dan will be blogging “more lightly” in the near future as he has vacation and conferences to attend. Whether “more lightly” translates to less than once an hour remains to be determined.

I, and the rest of us here at Co-Op, were happy to see us getting a nod as “Best New Blawg in 2005″ at the BlawgReview. It is true that the award list is long, suggesting my fourth grade baseball league most-improved trophy (no shame in that!), but it was still very exciting to be recognized after only three months in existence. Thanks!

In the coming weeks, apart from a little less Dan, we’ll be joined by several exciting new guests, and hope to provide wall to wall coverage of the Alito/Spying/Patriot Act hearings in Congress. Don’t change that channel.

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Alito and the ECMH

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For more evidence of Judge Alito’s strong support of the efficient capital market hypothesis, read this recently released Third Circuit opinion in the Merck & Co. Sec. Lit. that Alito joined (Ambro was the writing judge). The relevant discussion is on pages 15-20. The opinion follows Burlington and Oran, which (as I noted in the past) Alito did write. Obviously, this isn’t as useful evidence of the Judge’s views as his own work, but any product released in this highly sensitive period is surely something he gave a careful look at.

Merck interprets Oran and Burlington to mean that price movement must occur in the period “immediately following disclosure”. Plaintiff had argued that the market failed to appreciate the nature of the disclosure at issue until the Wall Street Journal had added up some figures that revealed (allegedly) $4.6 billion in inflated revenue.

The court, conscious of its status as having one of the “clearest commitments” to the ECMH of the appellate courts, applied what I’ve called in my work the “understand consequences materiality technique”* and dismissed plaintiff’s allegations out of hand. It noted that multiple analysts followed Merck, and queried:

“If these analysts-all focused on revenue-were unable for two months to make a handful of calculations, how can we presume an efficient market at all. [Plaintiff] is trying to have it both ways: the market understood all the good things that Merck said about its revenue but was not smart enough to understand the co-payment disclosure. An efficient market for good news is an efficient market for bad news.”

This is an interesting claim. It might not actually be true – there is evidence that individuals are significantly more resistant to incorporating evidence of bad news than evidence that confirms the optimism they naturally feel, which suggests that it is possible that market irrationality, if it exists, may not go in both directions. But, on the other hand, Ambro’s basic theory – that disclosure of underlying facts about a well-known stock followed by dozens of analysts should be curative – makes intuititve sense.

In any event, another data point suggesting that securities plaintiffs may not win lots of battles with (a Justice) Alito, but on the big, class-enabling, issue, he’s solid.

(Hat Tip: Naturally, Howard B.)

Related Posts:

1. Hoffman, Alito and Securities Law: Part II;

2. Hoffman, Alito: The Business Friendly Justice?

*No, it wasn’t my most catchy and inspired naming day.

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The Contractual Freedom to Prohibit Football

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This buzzworthy newstory about celebrity pre-nups has a few examples of bizarre clauses that couples have agreed to before marriage:

• “Limiting the wife’s weight to 120 pounds or she must relinquish $100,000 of her separate property.”

• “Requiring a husband to pay $10,000 each time he is rude to his wife’s parents.”

• “Mandatory sexual positions”, “No mother-in-law sleepovers.” “Only one football game per Sunday.”

Attorneys quoted in the article suggest that all such provision are

“legal unless you’re dealing with custody of children or child support.” This might be right, but since these agreements are almost never evaluated in written opinions (the parties usually hired retired judges to ensure privacy) I’m not sure whether I’d be so definite. Of course it isn’t my area of law, but I usually teach my contract class that there are limits – public policy and otherwise – to what you can contract to, even in the pre-nup context. The one that really gets me here, of course, is “one football game per Sunday.” What kind of judge would enforce that kind of tyranny?

(Hat Tip: Huffington).

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Welcome to the Blogosphere

To Joel Jacobson, and his new blog “Judging Crimes.” Jacobson, an assistant attorney general in New Mexico, has a number of great posts up already, including this empirical investigation into deterrence and the Fourth Amendment. Here is a taste:

The Supreme Court has repeatedly told us that the suppression of evidence deters wrongdoing by police. Lower court judges accept this as fact for a very good reason: the Supreme Court says so. But the rest of us can be little more skeptical. Using the sabermetric principle that if a phenomenon exists, it must inevitably show up in the statistics, I looked for evidence that the judiciary’s fourth amendment jurisprudence has had a deterrent effect.

My working hypothesis was that if the exclusionary rule has any overall tendency to deter police from making unconstitutional searches and seizures, the number of cases in which the legality of a search/seizure was challenged should have peaked relatively soon after 1961 and then gone into a steady decline. As more and more officers were deterred, it seems reasonable to suppose, ever-fewer would still need deterring.

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Scientists Say The Sun Rises in the East

This story (via Andrew Sullivan) on Iran President Mahmoud Ahmadinejad’s view of Israel and the holocaust, contains the following paragraphs:

“Some European countries insist on saying that Hitler killed millions of innocent Jews in furnaces and they insist on it to the extent that if anyone proves something contrary to that they condemn that person and throw them in jail,” [a news organization] quoted Ahmadinejad as saying.

“Although we don’t accept this claim, if we suppose it is true, our question for the Europeans is: is the killing of innocent Jewish people by Hitler the reason for their support to the occupiers of Jerusalem?” he said.

“If the Europeans are honest they should give some of their provinces in Europe — like in Germany, Austria or other countries — to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it.”

Historians say six million Jews were killed in the Nazi Holocaust.

Those crazy historians and the things they “say.”

It isn’t as though Reuters doesn’t believe that it can state things as facts. Other examples of facts, shorn of attribution, from the article include:

Ahmadinejad’s earlier “call in October for Israel to be ‘wiped off the map’” “sparked widespread international condemnation.”


“Close allies when Iran was ruled by the U.S.-backed Shah, Iran and Israel have become implacable foes since Iran’s 1979 Islamic revolution.”

Jews trace their roots in Israel back to Biblical times.

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Are Subway Searches Really the Top of the Slippery Slope to Korematsu?

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Dan’s “Rational Security” post and Jason’s provoking democratic searches response seem to me to have occupied part of the field of what I wanted to say here, which is that random suspicionless searches can be left to democratic controls without imperiling the entire constitutional order.

A bigger issue for Dan and privacy absolutists: not all anti-terror policies lead to Korematsu! Although I’m significantly more sympathetic to slippery slope arguments than I used to be, thanks to Volokh, I think Dan’s argument here is off-target. The differences between the internment cases, involving racially suspect classifications, and the searches here are evident. Most significantly, in a factual finding that commentators on this site appear to be ignoring, these really are random searches; the police aren’t permitted discretion to search any particular suspect class. Dan argues nonetheless that checking bags of subway entrants is a first step toward totalitarianism. I’d like to hear more about the mechanisms of this particular slippery slope. But until I do, my intuition is that a policy that burdens equally all residents is significantly less troubling than one that does not.

Dan also, I think, ignores my point that the court really didn’t defer to the government here, at least as deference is normally understood. Sure, the court is tougher on plaintiff’s witnesses, but that is because they didn’t have the relevant expertise. What is the court to do if the plaintiff doesn’t show up with the right folks, hire an independent security consultant? That isn’t how our system works.

I take Dan’s big point to be that this is an unwise policy. It (according to him) misallocates scarce dollars on a policy that will not have significant deterrent effects. I disagree that simply because the chance of search are low and terrorists might be able to evade the cordon we can conclude that there is no or low deterrence. But putting that aside, there is a space between what the Fourth Amendment permits and what smart police policy ought to be. (Thanks to my colleague Craig Green for reminding me of this). To conflate the two, i.e., to require the police to justify anti-terror searches as the least intrusive method necessary, or the most effective strategy policy possible, would simply be to substitute the anti-terror judgments of one group of elites (judges and scholars) for another (elected officials and police authorities). What is the normative argument for that result?