Author: Dave Hoffman

7

Judge Alito and the Rule of Law

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I was wrong.

In this post, I predicted that because of a footnote in a 1985 strategy memo, Judge Alito would be unlikely to find much rhetorical purchase by making “paeans to the rule of law” in his confirmation hearing. Indeed, given the Judge’s evident disdain for rule of law and precedent-based defenses of Roe, I thought that the footnote might force Judge Alito to “actually say that he believes Roe should be reversed.”

Today’s headline from the Times:

“Alito Tells Senators That ‘Rule of Law’ Is Paramount”.

That will teach me to try to read tea leaves. It also suggests the tremendous rhetorical flexibility of the concept of the “rule of law.” Now, Nate has already once taken Kaimi and I to task for our co-authored paper that had suggested the “rule of law” is almost entirely a contentless political slogan. Nevertheless, it it still evident to me that appeals to the “rule of law” in the context of public debate are almost always a form of constitutional puffery. Which probably helps to explain why Judge Alito’s “Footnote 10” problem isn’t much of one after all.

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AALS Contracts Session

As ContractsProf Blog spotlighted here, today was the Contracts Section meeting at the AALS Conference. The theme was empirical studies in contract law. Section Chair David Snyder moderated a discussion of papers by: Mitu Gulati (presenting on disclosure and sovereign debt contracts); George Geis (presenting on the optimal specificity of default rules); Debora Threedy (presenting on “legal archaeology”, i.e., qualitative research on leading cases); and Stewart Macaulay.

Macaulay in particular provided a good perspective on the field, based on his long experience as one of the founders of the law and society movement. He noted the increasing prevalence of private dispute resolution for contractual disputes, and evidence (some presented today) of contracts’ lawyers lack of interest in the existence of, or changes in, governing default rules. The message of his talk – somewhat implicit – was that there would be surprisingly few economic consequences were contract law to pick itself up and disappear off of the face of the earth. That is, the hierarchical model of American legal education, which posits that judges (and professors?) generate law, lawyers interpret it, and clients follow it, bears little to no relationship to observed experience. Obviously, Macaulay said it better than I could, and certainly this isn’t a novel idea (he’s said it before, in many places and in many forms) but it was a good thing to be reminded of as I begin to get ready to teach the second semester of my contracts course.

1

Court Grants Padilla Petition

As How Appealing and SCOTUSBlog have reported, the Supreme Court has granted the SG’s motion to transfer Jose Padilla to civilian custody. The Court’s order disposes of the issue without substantive comment.

As one of my colleagues observed, you can just imagine the Chief Justice raising his eyebrows when reading Judge Luttig’s (astonishing) opinion denying the transfer below. Luttig’s decision, you may remember, refused to order something that both parties at the time wanted — i.e., transfer the prisoner to civilian custody — reasoning that the transfer would undermine the rule of law in the context of an issue of “surpassing” national importance. The Chief Justice’s implied reply: “Chill.”

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AALS

I’m in D.C. for the AALS conference currently, and hoping to see at least a few of our readers at tonight’s happy hour. I’m also pleased to report that I’ve finished the hard part of grading (I’ve still got to do error-checking) so I’m free to return to blogging/teaching/writing full time (in no particular order).

Although I know that only a few of you are lawyers, I thought I’d share my delight that my students did real well on the exam, which was a tough, 24-hour, take home. A few of them even spotted and dealt with what I think is a very interesting (although on the test marginal) issue: whether a merger clause precludes judicial consideration of pre-contract notification (under Hadley) of otherwise unforseeable damages.

In other news, the WJS blog broke this spicy securities law story. Think that perhaps the relationship discussed is in trouble?

10

Ads You Can’t Escape

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I received my monthly subway pass over the weekend, which SEPTA refers to as my “Transpass.” It looks something like the image on this post, except that the January pass is embossed, for the first time, with an advertisement for a local latino newsweekly. The back of the card contains more information about the weekly, along with (now) very fine print about the terms and conditions of subway riding.

I know this is just the sort of thing that rational people ignore. But it drives me a little crazy. I’d prefer to avoid as much persuasive messaging as I can, and I very much dislike new advertising on previously uncluttered surfaces. I don’t want my fruit tattooed with ads; and I think I ought to be able to get onto the subway without paying the mental tax of ignoring an ad.

I just came back from NY, whose metrocards are blessfully free of advertising. So I was wondering: are other transit agencies also trying to turn their tickets into a profit center?

17

A Philadelphia Story

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This story from the Philadelphia Inquirer caught my eye. (And gave me an opportunity to steal a picture from Dan’s airline screening playset post.) Janet Lee, a Bryn Mawr student, was on her way home from the holidays. At the Philadelphia Int’l Airport, she was arrested because her checked bags contained condoms full of flour, which the police mistakenly identified in two field tests as cocaine and amphetamines. According to Lee, she and hall-mates had created the bags as stress balls as an exam-time gag. The system held Lee in jail for three weeks on $500,000 bail:

Lee acted tough to protect herself. She did modern-dance moves to keep limber. Inmates saw this and gossiped: “Everyone thought I knew karate because I’m Asian.” She certainly didn’t discourage the stereotype.

Inmates saw the high volume of visitors and figured she was important. Again, she did not discourage the notion. She did not tell her cell mates that the visitors were actually volunteers from Catholic churches in Philadelphia who had taken up her cause.

The volunteers helped her hire [a lawyer, and former prosecutor, named David] Oh.

“I believed her story because things just didn’t add up,” Oh said. For one thing, Oh said, the field tests were odd because they detected the presence of not one drug but three.

“People don’t mix drugs like that,” Oh said.

First, Oh contacted Bryn Mawr and confirmed that Lee’s dorm mates had, in fact, made the condoms together during a pre-exam session they call a “hall tea.”

Then, Oh said, he called Assistant District Attorney Charles Ehrlich, who agreed to expedite laboratory tests. Ehrlich also agreed to help seek reduced bail, Oh said. A day after the new test came back and confirmed that the substance was flour, Lee was released.

She flew home first class.

There are a few notable things about this story. The draconian D.A.’s office (all considered) gave Lee a huge break because of her connections – a social capital that most defendants do not have. It is also surprising (and heartening) that Philadelphia Airport is screening luggage well enough to catch this (potential contraband). I also wonder about the remarkably high bail set for a college student who had no prior record that we know about, and the jail authorities apparent decision not to put her into protective custody. On the other hand, I’m not surprised at all at the error with the tests. I wonder if the police department has studied the false positive rate carefully.

Needless to say, Lee has now filed a civil rights claim against the police (and probably a claim against the city for their poor drug-testing training). Given her story, the City should settle. But knowing the City Solicitor’s inflexible litigation strategy, I doubt they will anytime soon.

1

Ribstein Is Back

Larry Ribstein has returned to his roost at Ideoblog, and is posting about the race to bottom regulatory competition in the market for securities regulation. For those of our readers who may be uninterested in that topic, he’s also writing about how to reduce the deadweight loss produced by Christmas (and presumably other seasonally related holidays.)

Larry’s guest bloggers have been provocative and interesting, and it is worth checking out what’s happened at the blog over the last few weeks. Kate Litvak’s post on racism, golf and boating was my personal favorite. I hear that most of those folks will soon be starting a new blog called Truth On The Market, which I’m sure I will enjoy, and disagree with, often.

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The Gorilla Award for 2005

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It’s award season. Not a suprise. The end of the year encourages thoughts of reflection and rankings.

I thought it might be fun to institute an award for the corporate news story that won’t make anyone’s list of top events this year: the 2005 Gorilla Award. The award is named for a famous video testing “inattentional blindness.” As professors who teach Enron are fond of relating, experimenters asked students to watch a video of folks playing basketball and to to count the total number of times that the people wearing white pass the basketball, while not counting the passes of folks wearing black.

Go ahead, click on the video and perform the test. Then come back.

Read More

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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.