Author Archive for jason-mazzone
My 2009 Judiciary Act
posted by Jason Mazzone
In four previous posts, I discussed proposals offered by a group of law professors for a Judiciary Act of 2009. The professors propose various changes to the structure and work of the Supreme Court. My first post on this proposed Judiciary Act is here. My second post is here. My third post is here. My fourth post is here
In this final post in the series, I present the change I argue for in the paper I have just posted to SSRN called When the Supreme Court is Not Supreme.
March 5, 2009 at 3:27 pm
Posted in: Uncategorized
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2009 Judiciary Act: Part Four
posted by Jason Mazzone
This is my fourth post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here. My second post is here. My third post is here.
The professors’ fourth proposal is to alter the certiorari process. The professors write that allowing the Justices to select their own cases makes the Court look like a “robed legislature.” By controlling their docket, the Justices are able to delegate the more basic tasks of adjudication of routine cases to lower courts and focus their efforts on writing new law. This, the professors contend, has contributed to growing unrest of citizens with judicial independence. “The independence of the judiciary is indispensable to the rule of law,” the professors explain, “but it is increasingly difficult to justify absolute independence for Justices whose chief work is expressing and imposing on the public laws on topics of their choice.” Moreover, state supreme courts and lower federal courts have taken a cue from the Supreme Court and likewise delegate routine tasks so that they can write extended opinions on important issues.
The professors propose the creation of a Certiorari Division of the Supreme Court staffed, by rotation, by experienced appellate judges. The Certiorari Division would review petitions for certiorari and select 80-100 cases each year for the Justices. The Justices could reverse some grants of certiorari and also grant certiorari in additional cases but the Court would be required to decide a substantial number of the cases identified by the Certiorari Division.
I am in favor of altering the current process by which the Supreme Court’s docket is set. Law clerks’ reviewing arguments by parties as to why and why not review should be granted is less than an ideal way to set the Court’s tasks. I am also generally sympathetic to the professors’ reliance on experienced appellate judges. Those judges could bring a sophisticated understanding of the law and a (more) reliable sense of when the Supreme Court’s intervention is warranted.
Given that the creation of the Certiorari Division is likely to encounter resistance, I have a different proposal that is easier to implement and addresses many of the professors’ own concerns.
March 5, 2009 at 10:46 am
Posted in: Supreme Court
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2009 Judiciary Act: Part Three
posted by Jason Mazzone
This is my third post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here. My second post is here.
The professors’ third proposal is for Congress to specify that the Chief Justice be appointed to a term of seven years with the possibility of renewal. So as to ensure the position of Chief Justice is not limited to Justices currently on the Court, the term would automatically extend until the President has an opportunity to appoint a new Justice to the Court. The professors believe a term limit is desirable given the increased responsibilities of the Chief Justice.
The proposal revels something unexpected about our current procedures for choosing the Chief Justice.
March 4, 2009 at 7:58 am
Posted in: Uncategorized
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2009 Judiciary Act: Part Two
posted by Jason Mazzone
This is my second post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here.
The professors’ second proposal deals with the possibility of Justices staying on the Court when they are no longer capable of performing their duties. This proposal specifies that Justices have a duty to retire when they are no longer able to perform fully the duties of the office held. Recognizing that a Justice might not easily know or admit that the time to retire has come, the proposal also places a duty on the Justice’s colleagues. When an Associate Justice is unable to perform the duties required of the office, the Chief Justice must advise the Associate Justice to retire; the Chief Justice must also report as much to the Judicial Conference. If the Chief Justice is unable to perform his or her duties on the Court, the Associate Justices must report the disability to the Judicial Conference. Upon receiving a report, the Judicial Conference convenes the most Senior Judges of the Courts of Appeals. If those judges determine that a Justice is no longer capable of serving, it must report that to the House Judiciary Committee.
The professors’ proposal responds to a striking aspect of the Constitution: there is no specific provision for removing a judge who is disabled. Article III provides for a judge to continue to serve during “good behavior.” I understand that provision, though, to mirror the impeachment clause (“all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors”). Disability would not, therefore, be an instance of bad behavior. Many state constitutions, by contrast, do provide for the removal of a judge on disability grounds.
March 3, 2009 at 11:28 am
Posted in: Uncategorized
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2009 Judiciary Act: Part One
posted by Jason Mazzone
A group of law professors has offered to Congress four proposals for a Judiciary Act of 2009 that would make some changes in the composition and duties of the Supreme Court. In a series of posts this week, I will address those four proposals and present also my own proposal for reform.
The first proposal the professors offer is for regular appointments to the Supreme Court. The professors who offer this (not all the professors in the group sign on to each of the individual proposals) say that when the Justices stay on the Court for extended periods, the Court’s “many policy decisions” do not “reflect the moral and political values” of the general public. Instead of term limits, which exist in other countries and in the state courts, the professors propose that, in addition to filling in vacancies when a Justice retires or resign, the President should appoint one new Justice during the first session of Congress after each federal election. The nine most junior Justices would then sit to hear cases. The remaining Justices would be designated Senior Justices. A Senior Justice would fill in where an active Justice is unable to participate in a case. Senior Justices would also play a role in decisions to grant or deny certiorari.
Leaving aside the questions of whether the Court makes policy decisions and whether it is desirable for the Justices to be updated on contemporary mores, I generally agree with the goal of the proposal. I think turnover is healthy. Roberts and Alito have brought some welcome energy to the Court. Oral argument is more interesting nowadays with new voices weighing in (and with Roberts increasing the time available to lawyers to argue their cases).
The big issue here, as the professors recognize, is how to put this plan in action. Article III specifies that the Justices “shall hold their offices during good behavior.” The question, then, becomes whether a Senior Justice is still holding the office to which the justice was originally confirmed. David Stras and Ryan Scott have identified the relevant concerns in the context of lower federal judges taking senior status.
The professors have three possible ways to avoid a constitutional problem. One is to for the Court itself, rather than Congress, to decide which nine Justices hear a case. The second is to give a monetary bonus to Justices who retire early. A third is to make life unpleasant by restoring circuit riding.
I have a better fix.
March 2, 2009 at 8:25 am
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Orthorexia
posted by Jason Mazzone
Another report on hyperparenting. The New York Times reports the emergence of children with such strongly instilled food concerns they are afraid to eat. Doctors have coined the term orthorexia for the phenomenon.
Recently, I passed a mother and child of about 3 or 4 years old standing before a pretzel vendor. Here is the conversation I overheard:
Child: “Mommy, I want a pretzel! I want a pretzel!”
Mother: “Jennifer, a pretzel is 300 calories. Are you sure you want to spend 300 calories on a pretzel?”
Child: “I want a pretzel! I want a pretzel!”
Mother: “Jennifer, I want you to think about this. If you spend 300 calories on the pretzel, you won’t have those calories left for later.”
Child: “I want a pretzel! I want a pretzel”
I don’t know whether the child received the pretzel. But whatever happened to “No, you’ll spoil your appetite”?
February 27, 2009 at 1:45 pm
Posted in: Food
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Imagine there’s no copyright/It’s easy if you’re the Supreme Court
posted by Jason Mazzone
I live near the Strawberry Fields memorial with the mosaic of the word “Imagine” that is in Central Park opposite the Dakota. Yoko Ono Lennon funded and maintains the memorial. Almost every day, somebody asks me for directions to the site.
Yoko Ono Lennon, along with Lennon’s sons Sean and Julian, vigorously protect their copyrights in John Lennon’s works. Most recently, the Lennons sued the producer of a movie about intelleigent design that included 15 seconds from the song Imagine. Judge Sidney Stein (S.D.N.Y.) ruled in Lennon v. Premise Media that the producer was likely to prevail on a fair use defense and he denied the Lennons a preliminary injunction.
One can only guess how the Lennons feel about Justice Alito reproducing the entire lyrics to Imagine in footnote 2 of his opinion for the Court today in Pleasant Grove City v. Summum.
If the Supreme Court were not a slow adapter, Alito might have attached an audio file.
February 25, 2009 at 11:25 pm
Posted in: Constitutional Law
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Kenneth Parcell for President
posted by Jason Mazzone
First, it was the uncanny resemblance between Sarah Palin and Tina Fey. Now, we have 30 Rock’s Kenneth Parcell channeled by Bobby Jindal.
Please, please, please, let there be the Jindal-Palin ticket in 2012.
Bonus question: which MSNBC commentator (or 30 Rock character?) says “Oh, God” just before Jindal speaks?
February 25, 2009 at 11:50 am
Posted in: Politics
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Apologize to Chimps Too!
posted by Jason Mazzone
Today, publisher Rupert Murdoch apologized for the recent New York Post cartoon that some viewed as racially offensive in its attribution of Congress’ stimulus bill to a chimp. “Today I want to personally apologize to any reader who felt offended, and even insulted,” Murdoch, said. “I can assure you — without a doubt — that the only intent of that cartoon was to mock a badly written piece of legislation.”
Let’s not let chimps get stuck with a reputation for making bad laws.
As Jane Goodall and Frans de Waal have documented chimpanzees are highly social creatures. Among other things, chimps have long-lasting familial ties and they live in communities governed by complex social norms. Chimps cooperate in hunting and maintain social order through sophisticated forms of communication. They adopt orphaned siblings. They use tools for a variety of purposes. They mourn death. They have phenomenal memories. They can learn to complete complex tasks. They have highly individualized personalities. They engage in diplomacy and other political behavior. They patrol the boundaries of their communities (and sometimes they engage in warfare with outsiders).
Chimp law works quite well.
February 24, 2009 at 4:05 pm
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The M Word
posted by Jason Mazzone
David Blankenhorn and Jonathan Rauch have an Op Ed in the New York Times on “A Reconciliation on Gay Marriage.” Blankenhorn has spoken out strongly against gay marriage. Jonathan Rauch has been in favor of it. They think they have struck a deal. Here is their proposal:
Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.
The gist of the proposal is that same-sex couples could receive federal benefits, while religious entities would not be forced to recognize their unions. B & R note that the First Amendment likely means no church can be required to perform a same-sex union. Under the proposal they offer, a church auxiliary or charity also could not be forced to give spousal benefits to the partner of a gay employee; a faith-based nonprofit would not lose tax status by refusing to host a gay wedding ceremony.
The proposal is likely to generate a good deal of discussion and opposition on both sides. Marriage proponents will object to the seemingly broad exemption for religious groups; marriage opponents will object to any conferral of federal benefits on same-sex couples.
One aspect of the proposal, which might easily be overlooked, strikes me as fatal.
February 22, 2009 at 11:29 pm
Posted in: Civil Rights
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Shepard Fairey Meets Charles Darwin
posted by Jason Mazzone
I have been wondering how long it would take for Shepard Fairey’s Obama and change poster to “inspire” another work. This one is on Darwin and change. If Fairey loses his case against the AP, the AP would surely have no infringement claim against the creator of the Darwin image. If Fairey wins, however, does he have a claim against the creator of the Darwin image–or is it non-infringing parody?
February 20, 2009 at 3:56 pm
Posted in: Intellectual Property
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Social Capital and the Obama Administration
posted by Jason Mazzone
In the late 1990s, while he was a member of the Illinois Senate, Barack Obama was also a member of the Saguaro Seminar — a brainstorming group organized by Robert Putnam on how to remedy the decline in social capital in the United States.
Social capital refers to the collective value of social networks: when people are embedded in networks and can draw upon the norms of cooperation and reciprocity the networks embody there are a variety of measurable benefits both to them and to the community as a whole. These benefits can include more effective government, faster economic growth, improved health, and increased happiness.
Putnam’s article and then book entitled Bowling Alone traced the decline of social capital during the past several decades and the effects of this decline. The Saguaro Seminar brought together a diverse group of individuals to think about what could be done to counteract this trend.
(Disclosure: I worked for Bob Putnam for several years and I was rapporteur to the Saguaro Seminar.)
Among the proposals of the Saguaro Seminar is for government, when it considers new policies, to conduct a Social Capital Impact Assessment. In essence, policymakers, in considering the benefits and downsides of any program, would be required to take account of the social capital impact. Ideally, government would then adopt an approach that helped to preserve or generate social capital. (To give a simple example: in choosing between two possible locations for a shopping mall, government would select the location that did not displace or disrupt an existing community.)
Over the years, Presidents have required executive personnel to measure and take account of the impact of regulatory choices on designated variables. President Reagan, for example, issued an Executive Order requiring executive personnel to examine the impact of federal programs on federalism and, where possible, to minimize the erosion of state authority. Congress can also require impact statements: one obvious example is Section 102 of the 1970 National Environmental Protection Act which required federal officials to prepare and distribute a detailed impact environmental impact statement for any federal policy or project significantly affecting the quality of the environment.
With a member of the Saguaro Seminar now in the White House, and there in large measure as a result of increased civic engagement, there is a reasonable chance that federal agencies will be required in the near future to take account of the impact of regulatory programs on levels of social capital.
February 20, 2009 at 3:37 pm
Posted in: Politics
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Internet Safety
posted by Jason Mazzone
Republican lawmakers have introduced companion bills in the Senate and the House entitled the Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act–or the Internet Safety Act. Each Bill imposes the following requirement: “A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.” The Bills appear to impose record-keeping requirements not just on traditional ISPs but on anybody operating a wireless access point (whether protected by a password or not): homes, hotels, coffee places, libraries, corporations, and schools.
February 20, 2009 at 2:47 pm
Posted in: Privacy (Electronic Surveillance)
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The Baby Subsidy
posted by Jason Mazzone
Since Nadya Suleman gave birth last month to octuplets, there has been a lot of attention to how the cost of birthing the babies and caring for them (along with the six children Suleman already had) falls to taxpayers. It’s unfair, commentators say, for the public to subsidize Suleman’s family. Perhaps. But let’s widen the lens a bit. Many babies are subsidized by other people. Workers with health insurance take for granted that their insurance plans will pick up the costs of the medical care required during pregnancy and delivery. Yet it isn’t obvious that insurance should cover pregnancy. Pregnancy isn’t an illness. The costs associated with pregnancy are more like those associated with an elective procedure. Insurance doesn’t typically pay for elective procedures (tummy tucks, LASIK, hair transplants, and so on) because there isn’t anything to insure against. From the perspective of somebody in the insurance pool who elects not to have babies, coverage for pregnancy isn’t far from the taxpayer’s coverage of Suleman’s bills. Paid parenting leave and other employee benefits further subsidize babies; employees who do not have children cannot normally ask for a Caribbean cruise instead. Perhaps the lesson is: people in subsidized houses shouldn’t cast stones.
February 14, 2009 at 3:57 pm
Posted in: Politics
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Evolution’s Anniversary
posted by Jason Mazzone
Today, February 12, 2009, is the 200th anniversary of the birth of Abraham Lincoln and of Charles Darwin. Darwin studied evolution. Lincoln produced it.
February 12, 2009 at 5:39 pm
Posted in: Politics
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Eggvertising
posted by Jason Mazzone
I like advertising. I think Times Square at night is beautiful. And that the 1950s ad man was an artistic genius. I’m not so sure, though, about Disney Farm Fresh Eggs. These eggs come with Disney characters stamped on the shell. Disney also sells a mold so when you fry up your eggs they look like Mickey Mouse. No image of the battery farm chicken who laid the egg.
February 12, 2009 at 9:53 am
Posted in: Food
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Did the AP Break the Law?
posted by Jason Mazzone
There is an interesting development in the dispute between artist Shepard Fairey and the Associated Press. The New York Times reports today that the photographer, Mannie Garcia, claims that under the terms of his contract with the AP, he, not the AP, owns the copyright in the photograph on which Fairey’s poster is based. We’ll have to see how this plays out. But this is a good opportunity to mention the little known (and rarely enforced) criminal provisions of section 506 of the Copyright Act.
506(c) says: “Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.” If the AP does not own the copyright, have AP employees violated this provision? In addition to the requisite intent and knowledge, we would need to know whether AP versions of Garcia’s photo carry a copyright notice attributing ownership to the AP (or words to that effect).
Section 506(e) says: “Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.” Here, we would need to know first whether the AP has registered a copyright in the photograph. I tried searching the registration records at the Copyright Office to determine if there is a registration for the photograph but I was unable to narrow the search terms sufficiently. Perhaps somebody has the scoop?
February 10, 2009 at 6:14 pm
Posted in: Intellectual Property
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Research Agendas
posted by Jason Mazzone
Candidates for law school faculty positions often present a “research agenda” in which they set out the projects they plan to undertake during their first years as a member of the faculty. Many of these research agendas are more heavy on agenda than on research. Candidates write things like this: “I plan to research how the political process systematically disadvantages members of minority racial groups and why voting laws need to be changed.” Or like this: “In this project, I will research how bloggers intimidate women and explain why the First Amendment should not protect certain kinds of blogging.” This isn’t research. It is a statement of a conclusion that has already been drawn without the benefit of research. It always surprises me when intelligent, educated people committed to an academic career have managed never to learn how to frame a research topic. One of the problems, of course, is that the JD isn’t a PhD. Graduate students in other fields of study learn the methodology of academic inquiry. Another problem is that our own profession often encourages the agenda over the research. The AALS Annual Meeting often has a theme that suggests an agenda. Last time I attended (two years ago in New York) the theme was something like “Reassessing Our Role in Light of Change.” More substantive national conferences also have themes. At Law and Society this year, the theme is “Law, Power, and Inequality in the 21st Century.” There will be plenty of great papers that don’t have anything to do with that issue but it’s too bad that participants are officially organized under this slogan. And it is little wonder that the prospective (or new) professor might get the message that promoting an agenda is what legal scholarship is about.
February 10, 2009 at 5:32 pm
Posted in: Law School (Scholarship)
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Don’t review this book
posted by Jason Mazzone
Amazon has launched Kindle 2. Stephen King has written a short story that is available exclusively to Kindle owners. Is the story any good? Unless you buy it, you might never know.
Under Amazon’s terms of use, digital content for Kindle is licensed.The license grants the licensee “the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for . . . personal, non-commercial use.” Further, the licensee “may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party.”
Arguably, these terms prohibit the Kindle user from excerpting text from digitally-delivered works for the purposes of writing a review. A review quoting text would be a “display” of the content in a form other than on the Kindle device and would be for a non-personal and possibly commercial use. The use of the text would also be a distribution to a third party.
If other authors make their works available exclusively to Amazon for digital distribution, and Amazon is able to enforce its licensing agreement with its subscribers, reviews of those works might not appear–or reviews might be limited to description of the work, without quotations from it.
[Updated]
Moreover, these circumstances make it more difficult to browse a work before purchasing it. Sometimes in bookstores, I come across a book that is sealed in plastic. I always remove the plastic so I can see if I like the book before I purchase it. Perhaps that isn’t what the publisher intended, but nothing has ever happened to me as a result. Amazon takes things further. Kindle users do not get to see an entire work before purchasing it. And forget about showing your digital content to a friend (who might be thinking about buying her own copy): the license agreement appears to prohibit that too.
February 10, 2009 at 1:25 pm
Posted in: Technology
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Audit Them All (extended remix)
posted by Jason Mazzone
Last week, I posted my proposal to Audit Them All and I received many helpful comments from readers. Today, I have an extended version of the proposal in Legal Times (free but you have to register). Thank you Co Op readers for the valuable feedback you provided!
February 9, 2009 at 2:01 pm
Posted in: Tax
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