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Like most bloggers, I believe in freedom to blog, but I have to say I think the FTC has a point.  The FTC’s statutory mandate is to stamp out “unfair methods of competition . . . , and unfair or deceptive acts or practices in or affecting commerce.”  This [...]]]> The FTC recently churned up the blogosphere by releasing new “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that indicate that bloggers — bloggers! — have a duty clearly and conspicuously to disclose whether they have a “connection,” such as the receipt of free product, with the makers of products that they endorse.  (See particularly section 255.5, Example 7.)  We thought that we were just posting stuff on our blogs, but suddenly it’s a federal matter.

Like most bloggers, I believe in freedom to blog, but I have to say I think the FTC has a point.  The FTC’s statutory mandate is to stamp out “unfair methods of competition . . . , and unfair or deceptive acts or practices in or affecting commerce.”  This venerable proscription should apply to new media as well as to old.  The Internet is new and cool, but deception over the Internet is still deception.  Deception on a blog is still deception. 

If you’re representing yourself as a source of unbiased information about consumer products but (to take the simplest case) you’re actually getting paid by someone to say something nice about their products, there’s some deception going on.  Whether it’s deceptive not to reveal that you’re reviewing a product that you received for free because you’re known to be an influential reviewer is a closer question.  I expect magazine reviewers get free stuff all the time, but they don’t necessarily reveal it conspicuously, precisely because it’s already keyed into our assumptions.  If the proscription against deception carries over to new media, the assumptions that mitigate deception should carry over too.  So it’s ultimately a question of fact whether people assume bloggers get free stuff.  But the basic point that it should be as unlawful to use a blog to deceive as to use anything else for that purpose is sound.

Also churning up the blogosphere is the opposite trend — the consumer use of blogs and other Internet avenues to say not-so-nice things about products and services they received.  Usually big corporations have an edge in battles with consumers, but the Internet levels the playing field somewhat in this regard — the manufacturers and service providers have to be concerned about the ability of one dissatisfied consumer to communicate the problem to millions.

Let me  join both trends at once.   I recently redid my kitchen, and got all-new KitchenAid appliances.  I’m sensitive to noise, so I carefully investigated the noise levels of the refrigerator and dishwasher, and they’ve turned out great.   (FTC-Recommended Full Disclosure:  I didn’t get a dime for saying that but I would be happy to accept an appropriate fee.  KitchenAid, call my agent.)

But the oven!  Would it even occur to you to check whether an oven might make too much noise, or, indeed, any noise at all?  Well, my consumer friend, I want you to know that if you’re thinking of buying a KitchenAid range, you’d better check into it.  Every time you switch on the oven (on my model at least), a fan comes on — quite a noisy fan, too, in my (admittedly sensitive) estimation.  And it stays on the whole time you’re cooking.  The purpose of this fan, I learned from a quite unapologetic KitchenAid representative, is just to cool the range’s electronic instrument panel.  There’s progress for you — first they install a souped-up electronic panel you don’t really need (what was wrong with knobs, exactly?), and then they have to add a noisy fan so the panel won’t overheat.

The range had to go.  I knew I couldn’t live with that fan noise, so I set out on a search for a range with a quiet oven.  But it turns out to be impossible to search, because you can’t listen to ovens in stores — they’re not connected up.  And they’re not rated for noise either.  There’s no way to tell whether an oven is noisy short of buying it and installing it.  After calling every appliance store for 50 miles around, I finally found a knowledgeable salesman who recommended GE Profile, and (after spending just a few hundred bucks to get the countertop reconfigured) I got a GE Profile Double Oven, which, thank goodness, is much, much quieter.  So that’s what I recommend.

And I didn’t get a dime for saying that either.

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century.  In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire.  But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department.  On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part [...]]]> Today is the 175th anniversary of the Great Fire of 1834, which destroyed most of the British Parliament buildings. A vivid audio description, by the Parliament’s current Clerk of the Records, can be found here. 

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century.  In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire.  But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department.  On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part of the heating system of the House of Lords.  About 4 pm that afternoon, the deputy Housekeeper, Mrs. Wright, was conducting some visitors through the  Lords chamber, and the visitors noticed that the floor was hot and had smoke seeping through it so thickly that they couldn’t see their hands in front of them.  But she did nothing. 

By 6 pm, the House of Lords was on fire.  Through the night, the fire spread to the House of Commons chamber, the Commons Library, and other Parliament buildings.  Heroic firefighting action by fireman, soldiers, and private citizens saved Westminster Hall.

Obviously the fire was a terrible, devastating event.  But it did have consequences that some might regard as beneficial.  Even as the fire occurred, Augustus Charles Pugin, an architecht, rejoiced that later additions to the Parliament buildings, which he regarded as ruining the original medieval structure,  were finally gone.

And there is something else too.  I became familiar with the 1834 fire when researching my forthcoming article, Law and Longitude.  The article is a legal analysis of the controversy occasioned by the Longitude Act of 1714, which established a public prize for the discovery of a method of finding longitude at sea.  (If you’ve read Dava Sobel’s delightful book, Longitude, you know all about it.)

Much of the controversy concerned the proper interpretation of the Longitude Act, and, in accordance with modern interpretive practices, I wanted to research the Act’s legislative history.  But I couldn’t!  The history was destroyed in the fire, except for such small portions as were preserved in the official Journals of the House of Commons.

Today there is, of course, a lively controversy about the use of legislative history in statutory interpretation.  But one thing is certain:  courts couldn’t use legislative history if the history were destroyed.  Then we would be compelled to live in the textualists’ ideal world, in which we could only look at the text of the statute and try to determine what it means.

If you had the choice, would you put all legislative history to the fire?

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments.  So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

The basic idea of my previous post was that the amount of time devoted to a subject in a law school course does not have to be proportional to the amount of time students will spend on that topic in their actual practice — if that was required, civil procedure would be primarily [...]]]> Another Concurring Opinions visitor, Spencer Waller, yesterday offered this post in response to my recent post on curricular reform.  Spencer agrees with my basic idea while challenging the usefulness of spending quite so much time on personal jurisdiction in civil procedure.

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments.  So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

The basic idea of my previous post was that the amount of time devoted to a subject in a law school course does not have to be proportional to the amount of time students will spend on that topic in their actual practice — if that was required, civil procedure would be primarily about discovery practice with much less time devoted to personal jurisdiction and Erie.  My reason was that law school is not so much about learning particular skills and knowledge as it is about acquiring the ability to acquire skills and knowledge.

This basic thesis came in for a lot of critical comments.  “Mike” and “shg” kicked things off by suggesting that I was in the wrong job and that I was making my students suffer by teaching a philosophy of law course instead of giving students the skills they need to become lawyers.  Mike said that “In Civil Procedure, we should have learned the Federal Rules of Civil Procedure as they are actually applied,” which means “a lot of mundane memorization and synthesi[s] of many inter-related rules. That’s it.”

I disagree with these comments, particularly with the suggestion that students only need a lot of mundane memorization of rules and “that’s it.”  There are many reasons for this.

Real practice is not just about mundanely applying rules.  In my own practice of law, prior to entering academia, I was constantly amazed at how frequently, in routine situations that must arise every day, the law was utterly unclear.  As a real practicing lawyer, I was constantly called upon to sort through conflicting opinions as to what the applicable rule was.  No amount of memorization could have helped me.  It was up to me to discern the rule from, and argue for the rule based on, conflicting authorities.  That is the skill students acquire from considering matters from a more doctrinal, policy-oriented, and theoretical perspective.

The law also changes all the time.  Suppose, in teaching civ pro ten years ago, I had avoided all theory and had just required my students to memorize the rules and requirements for complaint drafting as they existed at that time.  The Supreme Court recently blasted those requirements to smithereens in Twombly and Iqbal.   Now what?  Oh, you say, the student (now the lawyer) will now just rote-memorize the new rules.  But how is the lawyer to know what the new rules are?  Everyone’s still struggling to interpret the Supreme Court’s pronouncements.  The lawyers who will gain an advantage by knowing the new rules are not going to be rote rule memorizers, but those who are best able to discern the new rules, which requires not just reading them from the opinions (because there is widespread disagreement as to what the opinions means) but a fine sense of how the opinions fit with the whole subject of civil procedure and what the trend is.  It requires skills not available to rote rule-memorizers.

A student who has done nothing more than memorize a set of rules is not going to be well positioned to understand and memorize new rules.  That takes the skill of knowing how to acquire knowledge.  The student who has the latter skill can learn the rules that become relevant in the student’s actual practice after graduation, but someone who has done nothing but memorize rules will be ill suited to handle the changes that constantly come up.

This point also addresses another commentor’s question, about why I thought it important for students to understand how legal change interacts with social change (I observed that personal jurisdiction provides an excellent illustration of this point).  Lawyers need to know this because the law is not static.  A lawyer’s duty to the client includes anticipating where the law is going, because it might be going there right now.  A lawyer needs to understand how legal change interacts with social change because that process might be occurring right now in connection with a matter the lawyer is handling.

Of course, this whole discussion is somewhat unrealistic, just as the comments on my post were unrealistic to imagine that I don’t teach my students rules.  It is unrealistic to imagine that anyone is either solely a rule-memorizer or solely a theoretician.  A class must include both.  As my old civil procedure professor, Harold Koh (now legal adviser to the Department of State), used to say, you have to consider the law on multiple levels — five levels, in his view.  You need to have actual clinical practice skills, you need to know the black-letter rules, you need the doctrine and policy that underlie the rules, you need a theoretical and interdisciplinary perspective, and you need a critical perspective.  All of these come into play in actual  legal practice, and I teach all of them in my course, including a lot of black-letter rules and practice pointers.  But theory is an essential part of the picture.

Finally, as any teacher can tell you, a successful teacher must inspire interest in and love for the subject.  Some commenters on my previous post complained about those who have never practiced law but who imagine they can teach it.  Well, I have practiced law quite a bit, but let me complain about those who have never taught law and who imagine that they could teach it.  Let’s have one of you come in and teach a class that consists of nothing but having students memorize mundane rules about civil procedure, and I’ll teach my class, which inspires students to love civil procedure.  We’ll see whose students actually learn more.  I predict that all of the other class’s students will be asleep and won’t learn much of anything except how to hate civil procedure.

Now, with all of that under our belts, let’s turn to Spencer Waller’s post.  Spencer makes the good point that a focus on litigation procedure (not, as I understand him, a mundane rule-memoriazation focus, but more emphasis on that part of the course) rather than personal jurisdiction might be better tied to actual litigation today and might lead to a better understanding of the litigation process.  I am not wholly wedded to our customary fascination with personal jurisdiction and Erie and would be open to rethinking things.  (Although actually, at my law school, Civ Pro is divided into Civ Pro I and Civ Pro II and we have to adhere to general understandings of what goes in which part, because students may have different professors for the different parts of the course.)  But even if I altered my overall time allocations, I wouldn’t alter my overall approach, which would still devote time to policies, doctrines, and critical and theoretical perspectives, rather than having nothing but rule memorization.  Even if I increased my focus on discovery, the course wouldn’t be about memorizing every facet of every discovery rule.  There would be some of that, but more doctrinal and theoretical analysis of discovery rules.

In my view, a course that was nothing but rote memorization of discovery rules would be the course that would really make the students suffer.

Not to be snarky or anything, but shouldn’t the literary prize winner be particularly good at finding the right words?

CAUTION: Many spoilers ahead.

House and most of his team belong in jail for lengthy terms.  But it almost never seems to occur to anyone on the show that their blatantly illegal behavior might have actual consequences.

* A major theme of the show for a long time was how [...]]]> I don’t watch much TV, but I will admit to enjoying “House.” “Polite Dissent,” an engaging blog by someone with medical knowledge, publishes a useful medical review of each House episode, which runs down the medicine in each show and notes the medical errors committed each week. But what House really needs is a legal review. Because really, whatever medical errors they commit, House and his team also commit almost unbelievable torts and crimes on a regular basis. 

CAUTION: Many spoilers ahead.

House and most of his team belong in jail for lengthy terms.  But it almost never seems to occur to anyone on the show that their blatantly illegal behavior might have actual consequences.

* A major theme of the show for a long time was how House and his whole team break the drug laws to get House the Vicodin he was addicted to because of pain in his leg. The possible consequences were at least explored over several episodes, but the whole team shows great disregard for drug laws.

* House routinely has his team break into his patients’ (and each others’) homes for diagnostic purposes. These crimes seem particularly bizarre since I expect most of the patients would consent to having their homes searched if told that a search is needed to help them, since almost all of them are in desperately ill condition. House seems to get a thrill out of doing things illegally even when it isn’t necessary.

* When Foreman was ill with a probably deadly disease that the team was unable to diagnose, he deliberately infected Cameron with it so that she would have an incentive to investigate in the way he thought would be helpful. Foreman was in a tough spot, but I don’t think he’d get out of a pretty serious criminal charge.  He might not have committed attempted murder (he didn’t actually intend Cameron to die), but it was a pretty serious assault or battery all the same.  And if she had died, he could certainly have been up for murder on a “depraved indifference” theory.

* On multiple occasions, House has kidnapped people in order to treat them. In yesterday’s episode, he drugs someone in his (the patient’s) own home and ties him up with duct tape. He had good motives, but you can get 50 years for that kind of thing.

* When a man with a gun takes House and numerous patients hostage to force House to diagnose him, House eventually convinces the man he has to give up the gun to get an MRI (the MRI won’t work with the metal gun inside).  But then when the MRI fails to solve the medical mystery, House gives the man back his gun so that the hostage standoff can continue long enough for House to come to a diagnosis.  I’m sorry, but at that moment House became an accomplice to kidnapping.  Another 50 years. 

* In this season’s opener, House spirits a mental patient away from the institution in which he is staying and feeds his perception that he is able to fly. The patient then jumps out of a building and is severely injured and perhaps permanently crippled. Even if this one wasn’t necessarily another kidnapping, it’s amazing that no one says to House, “wow, are you ever going to get sued.” 

*Foreman, temporarily put in charge of the diagnostic team because House has temporarily lost his medical license (not for any of the above crimes!), fires his girlfriend Thirteen from the team because he feels that having her work for him, instead of with him, will be damaging to their romantic relationship.  Ding ding ding!  Can anyone say “Title VII violation”? 

* Finally, in yesterday’s episode, Chase deliberately and with clear malice aforethought produces a fake blood test so that a patient will be treated for the wrong disease and will die, because Chase thinks that will be best for the public good (the patient is a dictator who, Chase believes, is going to commit genocide on a segment of his own population, even though the patient claims he’s taking necessary action to protect his nation’s security from internal enemies).  Putting aside the question of whether Chase’s amateur diplomacy is likely to help (Chase has very limited knowledge of the actual situation in the dictator’s country, and who knows what would really happen after the dictator’s death — it might lead to peace or it might lead to even more bloodshed than if the dictator carried out his plans), it’s as clear-cut a murder as one might desire.  Foreman then becomes Chase’s accomplice by destroying evidence.

Based on the preview for next week, it looks like the show is at least going to have a little exploration of the question of what should happen when one of the team commits a murder.  Well, good for them, because most of the time the characters seem to live in a law-free bubble, in which they get to do anything and everything without legal consequences.

Some doctors don’t like House because they don’t like the way the show glorifies “disruptive physicians.”  They claim it’s unrealistic in that regard.  What really seems unrealistic to me is the way the characters commit constant crimes and torts and nothing comes of it.  The show obviously has some doctors consulting on the scripts — couldn’t they hire at least one lawyer (sheesh, I’m available) to give basic advice so that the show is not so legally absurd?

Totenberg’s piece reveals the amusing distress the Justices are feeling over the appointment of a new Justice.  “You quickly get to view the court as composed of these members, and it becomes kind of hard to think of it as involving anyone else,” says Chief Justice Roberts.  “We had a long run together. And you get comfortable with that, and then it changes,” according to Clarence Thomas.

Oh, the poor bubbies!  Life must be tough when all you have is a lifetime appointment to the nation’s highest court.  I mean, a few times in your career, you have [...]]]> It’s the first Monday in October, the day when the Supreme Court begins its annual
Term.  You can enjoy previews from Adam Liptak of the NYT and Nina Totenberg on NPR.

Totenberg’s piece reveals the amusing distress the Justices are feeling over the appointment of a new Justice.  “You quickly get to view the court as composed of these members, and it becomes kind of hard to think of it as involving anyone else,” says Chief Justice Roberts.  “We had a long run together. And you get comfortable with that, and then it changes,” according to Clarence Thomas.

Oh, the poor bubbies!  Life must be tough when all you have is a lifetime appointment to the nation’s highest court.  I mean, a few times in your career, you have to put up with a new Justice!  Imagine that.  Maybe we should bring them tea and cookies and their favorite blanket.

The hottest case on the new docket (apart from the campaign finance case that was specially argued in September) is probably the Chicago gun case, which will test whether the recent ruling in District of Columbia v. Heller that the Second Amendment creates an individual right to bear arms applies to the states as well as the federal government. 

It will be interesting to see how this case plays out, because it tugs in the opposite direction from the usual ideological lines.  A ruling for the plaintiff would require holding that the Second Amendment, which originally applied only to the federal government, is “incorporated” into the Fourteenth Amendment and so applies against the states as well.  You would expect the conservatives, who normally believe in states rights, to be the ones most opposed to incorporation, and the liberals, who are more amenable to expansive federal power, to be for it.  But somehow I’m guessing that’s not how it will turn out.

As I observed in some previous posts on the Heller case, the same could be said of Heller itself.  Liberals are usually more amenable to ruling in favor of individual rights and conservatives more to ruling in favor of the government — but not when it comes to guns.  Instead, we see a drearily predictable ideological lineup, and not even based on general ideology, but on the ideology of the precise issue.  It will be interesting to see if even one of the Justices can vote against their ideological predilictions on this new case.

Jon Gosselin and his wife had a “reality” TV show about their life with their eight children.  But now they are estranged, and Jon recently got fired from the show, which is to be renamed “Kate plus 8.”  Not taking this lying down, Jon has demanded that TLC, the network filming the show, stay out of his house.  If they enter to film, he claims he’ll have them arrested as trespassers.

Sheesh, [...]]]> Those celebrities just can’t stay away from strange legal theories.  After Roman Polanski claimed last week that his sex crime should be excused because he’s a great artist, Jon Gosselin, former star of “Jon & Kate Plus 8,” is now claiming the right to exclude television crews from the home he owns jointly with his wife.

Jon Gosselin and his wife had a “reality” TV show about their life with their eight children.  But now they are estranged, and Jon recently got fired from the show, which is to be renamed “Kate plus 8.”  Not taking this lying down, Jon has demanded that TLC, the network filming the show, stay out of his house.  If they enter to film, he claims he’ll have them arrested as trespassers.

Sheesh, if I were TLC’s general counsel, I would tell Jon, “ooh, we’re scared.”  How about some basic property law?  Every law student knows that joint owners of property (known in property law as “joint tenants” or “tenants in common”) each own an “undivided interest” in the whole property and each has a right to occupy the property without the consent of the other.  Heck, each of them has a right to lease the property without the consent of the other. 

In 1861, the California Supreme Court considered the case of a lessee who had leased property from a joint owner and was then asked to leave by the other joint owner.  The Court said, “We have no doubt that one tenant in common may occupy the common premises, and as little that he may permit another person to occupy a part of them; and it is impossible for us to see how that tenant in common could sue such person, so lawfully entering or occupying, as a trespasser, or how his cotenant could maintain such suit.”  Ord v. Chester, 18 Cal. 77 (1861).

More recently, a California court considered a case quite like the Gosselins’:  an estranged husband and wife jointly owned a home, which the husband leased to a third party.  The wife showed up and tried to oust the lessee.  The court said:  “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common.  . . . When a joint tenant leases to a third party he confers upon the latter the same right of possession that he himself has.”  Verdier v. Verdier, 152 Cal.App.2d 348, 313 P.2d 123 (1957).

If one of the estranged spouses can lease the property without the consent, and indeed over the objection, of the other, then either can certainly invite guests onto the property without the consent and over the objection of the other.

So if I were TLC, I would tell Jon to get lost.  Kate’s permission is all they need.

Let’s regain our bearings here.  Mr. Polanski, according to news accounts, gave champagne and drugs to a 13-year-old girl and then had sex with her.  This is no mere technical, statutory rape — it’s not a case of some 19-year-old boy having consensual sex with his 17-year-old girlfriend.  This was a bad act indeed.  He pled guilty to a reduced charge and then fled the [...]]]> Much ado about the arrest of film director Roman Polanski on a 32-year-old charge of having sex with a minor.  French Culture Minister Frederic Mitterrand says that it doesn’t make any sense to “throw him to the lions” because of “ancient history.”  Some opinion writers go so far as to term his arrest “outrageous.”  Others think it was the right thing to do.

Let’s regain our bearings here.  Mr. Polanski, according to news accounts, gave champagne and drugs to a 13-year-old girl and then had sex with her.  This is no mere technical, statutory rape — it’s not a case of some 19-year-old boy having consensual sex with his 17-year-old girlfriend.  This was a bad act indeed.  He pled guilty to a reduced charge and then fled the country when it looked like a judge was not going to go along with a plea bargain that would have had Polanski serving just 42 days in jail.  Trying to pass this off as “ancient history” seems a bit much.  If we imagine that Polanski were not a famous film director, but some everyday, middle-aged lawyer who seduced a neighbor’s 13-year-old daughter with alcohol and drugs and then had sex with her, I can’t imagine that there would be a lot of sentiment on his side.

As far as I can make out, some people think Polanski should be let off because (a) he’s famous, (b) he’s a great artist, (c) he’s been through a lot in his life, (d) it’s been a long time since he committed the crime, (e) the victim has forgiven him and would rather the whole thing just went away, and (f) there was some governmental misconduct in the initial proceedings.

I would hope we could agree that (a) and (b) are irrelevant.  We’ve endured a spate of celebrity crimes.  Celebrities don’t have a license to break the laws that the rest of us have to live with.  The law should be enforced even-handedly.  Of course, the law is generally more lenient on first-time offenders than on habitual criminals, so Polanski is entitled to the same break that any first-time offender who is generally a good person would get.  But no break for being a famous artist.

(c) could be relevant — we have taken to considering a defendant’s harsh upbringing  when passing sentences — but it doesn’t get him wholly off the hook.  At most it gets him a reduction.

(d) is not wholly irrelevant, but it’s mostly Polanski’s own fault.  The matter could have been resolved 32 years ago if he hadn’t fled the jurisdiction, and he could have come back to face the music any time. 

(e) is also not wholly irrelevant, but it’s not just the victim who needs protection; it’s also other 13-year-olds who need protection from other adults, including other adult celebrities. 

(f) is relevant but the judge who engaged in the irregular proceedings has died and another judge will now be making the decisions about Polanski’s fate (assuming he gets extradited).  So this issue is reduced.

I conclude that Polanski should face the music.  Again, if some 40-something accountant you hadn’t heard of seduced a 13-year-old girl with alcohol and drugs and then had sex with her, and then skipped the country, I don’t think we’d be arguing about whether it’s unfair to catch up with him later and throw him in jail.

The New York Times previously opined that it was wrong for the Massachusetts legislature to make this change in law because Senate seats should always be filled by election, not by appointment.  But Massachusetts made the right move.  The problem with appointed Senators is not that we currently have so many of them (which we do, because so many elected Senators left to take cabinet posts in the Obama administration), but that so many of the appointed Senators were, in accordance with their states’ [...]]]> Governor Deval Patrick of Massachusetts has appointed former Ted Kennedy aide Paul Kirk to fill Kennedy’s Senate seat.  This action follows a change in Massachusetts law to permit such appointments — previously, Massachusetts Senate vacancies could be filled only by special election.

The New York Times previously opined that it was wrong for the Massachusetts legislature to make this change in law because Senate seats should always be filled by election, not by appointment.  But Massachusetts made the right move.  The problem with appointed Senators is not that we currently have so many of them (which we do, because so many elected Senators left to take cabinet posts in the Obama administration), but that so many of the appointed Senators were, in accordance with their states’ laws, appointed to fill out the entire remaining term, or at least too much of the remaining term, of their predecessors.

The Massachusetts law represents an appropriate compromise.  It avoids leaving a Senate seat unfilled for months (which is unfair to the state involved and its citizens) and it also avoids allowing an appointed Senator to serve for a long time (which gives too much power to the state’s Governor at the expense of its people).  It allows the Governor to appoint a Senator to serve on an interim basis until an election can be had in just a few month’s time. 

It’s undoubtedly true that the Massachusetts legislature had political motives in denying the previous (Republican) Governor the power it just granted to the current (Democratic) Governor.  But in politics, sometimes you do the right thing for the wrong reasons.  The Massachusetts legislature acted appropriately in allowing Governor Patrick to fill Senator Kennedy’s seat.

I think it is an error to imagine that the law school class time devoted to a particular subject needs to be proportional to the time students will spend on that subject in actual practice.  Law school is partly about acquiring particular skills and knowledge, but also, and probably more, about acuqiring the ability to [...]]]> Professors on the Civil Procedure professor listserv are debating the recurring question of why we devote so much energy to topics that come up only rarely in practice, particularly personal jurisdiction and Erie.  Some are suggesting that the civil procedure curriculum should be much more practice oriented, which would mean spending a lot less time on these subjects and more time on what most lawyers actually do in practice, particularly discovery.

I think it is an error to imagine that the law school class time devoted to a particular subject needs to be proportional to the time students will spend on that subject in actual practice.  Law school is partly about acquiring particular skills and knowledge, but also, and probably more, about acuqiring the ability to acquire skills and knowledge.  We will never teach the students all they will need to know as they practice law, but we can teach them how to learn what they need to know.

The amount of time devoted to personal jurisdiction and Erie in many Civ Pro classes makes little sense in terms of the practical importance of those topics in typical litigation.  But personal jurisdiction provides a lovely illustration of the process of legal change over time that students can appreciate as the law they learn changes over the course of their careers, and Erie provides an illustration about how imoprtant theoretical issues relating to federalism impact practical doctrines.  The students need to know how to appreciate the ways in which legal change interacts with social change and the ways in which theory impacts doctrine just as much as they need to learn what Rule 26 says about discovery and disclosure.

For those just tuning in, NY Lieutenant Governor David Paterson became Governor when the previous Governor, Eliot Spitzer, had to resign admist a sex scandal (this factoid was discreetly left out of the judicial opinions, but we bloggers get to put it back in).  The post of Lieutenant Governor was then vacant — which was no big deal until the NY State Senate had a deadlock crisis that occurred because some Democrats switched [...]]]> A fascinating turn in the saga of New York Governor David Paterson’s attempt to appoint a Lieutenant Governor:  New York’s highest court, the Court of Appeals, has upheld it!  Reversing prior decisions, the court holds that the Governor of New York is empowered to appoint a Lieutenant Governor when that office is vacant.

For those just tuning in, NY Lieutenant Governor David Paterson became Governor when the previous Governor, Eliot Spitzer, had to resign admist a sex scandal (this factoid was discreetly left out of the judicial opinions, but we bloggers get to put it back in).  The post of Lieutenant Governor was then vacant — which was no big deal until the NY State Senate had a deadlock crisis that occurred because some Democrats switched to supporting the other side for control of the Senate.  The Lieutenant Governor is supposed to break ties in the state Senate, but there was no Lieutenant Governor!  So there was a crisis.

To break the deadlock, Governor Paterson wanted to appoint a Lieutenant Governor, but did he have the power to do so?  Section 43 of the state Public Officers Law appeared to give him the power to appoint a replacement for any vacant office not otherwise provided for, so he picked Richard Ravitch to fill the slot. 

But that just started the ball rolling.  Lower courts held that Section 43 didn’t apply to the post of Lieutenant Governor, and they blocked the appointment.  Finally, today, the matter fetched up in NY’s highest court, and that court has approved the appointment.

I remarked before that it’s difficult to opine on this case without scouring all of New York’s constitution and statutes.  And boy, is that right.  Every time you think you understand the issue, yet another relevant provision turns up and needs to be considered.

But having read the majority and dissenting opinions (the vote was 4-3), I’m sticking with my most recent view (which was a change from my initial view).  I think the dissent has the better of it.

Section 43 doesn’t provide for the Governor to fill vacancies; he only gets to appoint someone to “execute” the powers of the office until the vacancy is filled by election.  In the specific case of the Lieutenant Governor, the constitution itself (Art. IV, s. 6) provides that the President of the state Senate shall “perform” the powers of that office.  We can’t have one person “executing” the powers of the office while another “performs” the powers of the same office.  So the constitutional provision trumps the statute.

The majority makes the good point that the constitution provides that the legislature shall provide for filling vacancies in office, so it interprets section 43 as providing for filling the vacancy in the LG office even though that’s not exactly what it says.  Which would be a pretty good argument, except that the constitution (Art. XIII, s. 3) provides that people appointed to fill vacancies can serve only until the next annual election, but it also provides that the Governor and LG specifically can be elected only simultaneously and quadrenially (so as to avoid having them be from different parties). 

So while it’s a close case, and both sides have good arguments, I would say the better view is that the LG post is excepted from the vacancy-filling appointment process.

One thing is clear:  as state Senator Dean Skelos says, the legislature should revise the confusing web of interlocking statutes that govern this area, and make clear its desire as to whether the Governor can appoint a Lieutenant Governor or not.

Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong.  As Rivkin and Casey point out, the President can get advice from whomever he wants.  He could [...]]]> Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House.  These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation.  Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers.  Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.

Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong.  As Rivkin and Casey point out, the President can get advice from whomever he wants.  He could get all his advice from me if that’s what he wanted to do.  He doesn’t need Congress’s permission to seek anyone’s advice.

Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.”  But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that?  The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example).  But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what? 

Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so.  Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me.  Everyone else who serves at my pleasure, do what Joe Biden tells you to do.”  Could there be anything wrong with that?  I think not.

And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs.  So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”

So I think Hutchison is wrong to suggest that there’s a constitutional problem.  Of course, whether having so many czars makes sense as a public policy matter is a different question. 

And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars.  I’m not so sure about that.  If the President wants to seek my advice, Congress can’t stop him.  But if someone wants to be on the federal payroll, then Congress is footing the bill.  If Congress  wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so.  The President has a lot of power, but the power of the purse is pretty potent, too.

A1. Arrr, be sure that I did, me hearties!

A2. Nay, ye scurvy scoundrel!

In December 2005, I was on a group biking tour of California wine country when I got going too fast on a steep downhill, couldn’t quite make it around a sharp left turn, went off the road, and fell over. My last thought as I went down was, “oh, this won’t be so bad, I’ve slowed down considerably.” The next thing I remember is being loaded onto a stretcher. I have no memory of anything in between, but [...]]]> Now that the last of the congressional health care bills has been unveiled, and the health care debate is in full swing, it seems like an opportune time to reprint this post from February 2007, in which I describe my own encounter with the American health care system:

_______________

In December 2005, I was on a group biking tour of California wine country when I got going too fast on a steep downhill, couldn’t quite make it around a sharp left turn, went off the road, and fell over. My last thought as I went down was, “oh, this won’t be so bad, I’ve slowed down considerably.” The next thing I remember is being loaded onto a stretcher. I have no memory of anything in between, but I’m told that after my friends revived me (I was out for about a minute), I tried to get back on the bike and had to be restrained. Thank heavens, I was wearing a helmet.

An ambulance took me to the hospital. I looked like something out of a horror movie (photos here), but in the end the only real damage was that I broke one small bone in my left hand, which the doctors taped up. My ribs were pretty sore, but the doctors couldn’t quite tell whether any were broken. They thought not, but since there’s no treatment for ribs anyway, they didn’t bother to make certain. The hospital did a CAT scan, and the doctors said, oh, there might be some bleeding in your brain, we’d better keep you overnight. So I stayed overnight (in a semi-private room), and then the next morning, they did another scan and said, no, everything’s fine, that first scan must have been a false positive, go home. They did another scan in there somewhere to check for broken bones. And they gave me some pain medication and cleaned me up generally. And that was it. No surgery or anything like that.

So. Three scans, pain medication, tape for the broken bone in my hand, and not quite 24 hours in the hospital. Go ahead and take your wildest guess how much that would cost.

Most people have guessed something like $3,000 or $5,000 or maybe $10,000 at the most. That was their wildest guess. The bolder guessers have picked $12,000 or $15,000. I think the highest guess was $20,000.

How about $45,000? In your wildest imagination, could you ever guess that that would be the bill? Well, it was. For some reason the bill reflected an “out of state adjustment” for my insurance plan of about -$11,000, which brought the total down to $34,000, but $45,000 is what the hospital thought the services should cost. And bear in mind, that was just the hospital. That’s before the doctors and the ambulance.

$45,000! And there was nothing wrong with me! I broke one bone in my left hand! I didn’t even need surgery! What if there had been something wrong? What if I’d really had some bleeding in my brain or something else that required surgery? Would the bill have been $245,000?

I am reminded of all this because I have just received the bill for the amount I actually have to pay. My insurance company, perhaps understandably, was a little skeptical about this bill and kicked it back and forth with the hosptial for over a year. It was somewhat unnerving to have a $34,000 bill hanging over me all that time, even though I knew I wouldn’t have to pay all of it. Based on what I thought I knew about my insurance plan, I guessed that the insurer would disallow about half the bill (its usual practice) and then I would have to pay 20% of what remained, in other words about $3,400. For some reason that I didn’t understand (but am certainly not complaining about), that’s not how it worked. The insurer actually forked over a little over $31,000 ($31,112.81 to be exact), and my share came to a bit less than $2,000. I felt like I’d gotten off easy. Of course, with the doctor bills and the ambulance bill it all came to somewhat more — my total was $3,169.40. My insurer kicked in a total of $32,526.69, making the grand total $35,631.99.

Man! If you’ve ever wondered whether there’s a health care crisis in this country, let me tell you, there is. I understand now what people mean when they say that most people are just one accident or bad illness away from bankruptcy. Imagine if I didn’t have insurance! The hospital would be coming after me for $45,000. Combined with the other charges, the total amount the medical system would be seeking from me would be $48,235.35.

For one broken bone! OK, they had to check whether there was anything worse, but still! If this is what one broken bone costs, what does a serious medical problem cost?

How do people without insurance manage? There are almost 50 million of them, you know. I presume most of them don’t have the odd $50,000 that they can just throw at a medical bill. I guess they just pray to stay healthy.

I lead a highly privileged existence. I have a good job that provides good health benefits, and I could afford my share of the costs of this accident. But even I was unnerved by the stunning cost of just falling off your damn bike.

Fortunately, I’m just a law professor. It’s not my job to fix the health care system, and no one could expect me to know how to do it. But boy, if it is your job, you’d better get cracking. There’s a crisis.

My hand still hurts. Always wear your helmet.

The case illustrates a clash between important principles.  On the one hand, it’s important to get the word out to the gullible public that they are being taken in by ineffective products, including — indeed, especially including — medical products.  I am frequently amazed at how people [...]]]> Excellent article by Olivia Judson in the NYT about how British libel law impacts science journalism.  A British science journalist is being sued by the British Chiropractic Association for writing that the association “happily promotes bogus treatments.”  A judge has ruled that the author’s use of the word “bogus” implied that the members of the BCA were not only promoting ineffective treatments, but treatments that they know are ineffective.  And that’s a statement of fact that might be libelous.

The case illustrates a clash between important principles.  On the one hand, it’s important to get the word out to the gullible public that they are being taken in by ineffective products, including — indeed, especially including — medical products.  I am frequently amazed at how people (including otherwise intelligent people) can fall for things such as those “homeopathic” products in which the allegedly effective ingredient has been diluted to the point where there is not likely to be even a single molecule of it left in the medicine the patient is supposed to take.  It’s important to educate the public about such things.  (Magician James Randi has dedicated decades to this effort.)

On the other hand, even a thief can complain if he is wrongly charged as a burglar. (Jackson v. Virginia, 443 U.S. 307 (1979).)  If people are promoting products that they honestly, but mistakenly, believe to be effective, it does seem libelous (although I’m not expert in libel law) to assert that they are deliberately engaging in fraud.

My snap judgment on this case is that the problem lies not so much in the rule as in its application.  I would say the judge erred in determining that the word “bogus” necessarily implies that the author is accusing chiropractors of deliberate fraud.  To me, the word “bogus” implies only that the treatments in question (and the article wasn’t a blanket condemnation of all chiropractic treatment, but only of claims that such treatment can cure certain, specified conditions) were in fact ineffective, whether or not the doctors performing them thought so.  Indeed, in the context of the full paragraph, it seems that the word “bogus” might have meant even less — only that the value of the treatments was unsupported by evidence.

According to the OED, “bogus” means “Counterfeit, spurious, fictitious, sham.”  I don’t see the necessary implication that people promoting bogus things know that they are bogus.  So without reaching the question of whether free speech trumps libel law in this kind of situation I think I would have determined that the critical sentence wasn’t as fraught with meaning as the judge thought.

Do women man up?  I was interested to learn that they do.

This sure sounds like a classic example of excessive “command and control” regulation where a “standards” based regulation would serve everyone better.  If an insurer will [...]]]> The New York Times reports today that people who suffer from ALS (Lou Gehrig’s disease), and who require a technological device to assist them with speaking, may be able to get their insurers to spend $8,000 for a Medicare-approved, dedicated computer that has all functions other than speech assistance disabled, but they can’t get an insurer to spend $450 on an iPhone with a speech app.  Medicare won’t approve iPhones because they can be used by people who aren’t ill.  (Strictly speaking, it’s up to private insurers to decide what to do, but many of them follow Medicare’s lead, according to the article.)

This sure sounds like a classic example of excessive “command and control” regulation where a “standards” based regulation would serve everyone better.  If an insurer will cover specific device at a certain costs, I’m hard pressed to understand why the insurer and its patients won’t be better off if the insurer approves any cheaper device that performs the same function.  Could this be some of the “waste, fraud, and abuse” that President Obama hopes to squeeze out of the health care system?

I suppose insurers are afraid of fraudulent claims by patients who really just want free iPhones.  But with a cost difference of over $7,500, insurers could spend a couple of thousand dollars investigating each claim and still come out way ahead.

Or are we just offended at the thought that insurance would buy a sick person something that everyone wants anyway?  I don’t know how many patients need this kind of device, but if we could save $7,500 apiece I’d be happy to get over my annoyance.

When you use something every day — and when collectively we use it millions of times per day — you notice small changes.  So have people noticed that Google changed its fonts?  Type something into the search box.  The font is bigger.  I think it happened on Wednesday or Thursday of this week. 

Google’s webpage has remained remarkably similar over the years of its meteoric rise.  It turns its logo into a creative doodle on holidays and other special occasions, but basically the page still consists of a search box, two buttons, and a whole lot of white space.  New services appear discreetly in the upper left.  As other websites are constantly reinventing themselves with new [...]]]> It’s the weekend, so we get to relax from more serious subjects.

When you use something every day — and when collectively we use it millions of times per day — you notice small changes.  So have people noticed that Google changed its fonts?  Type something into the search box.  The font is bigger.  I think it happened on Wednesday or Thursday of this week. 

Google’s webpage has remained remarkably similar over the years of its meteoric rise.  It turns its logo into a creative doodle on holidays and other special occasions, but basically the page still consists of a search box, two buttons, and a whole lot of white space.  New services appear discreetly in the upper left.  As other websites are constantly reinventing themselves with new looks, Google stays the same.  Even the original, cheeky “I’m feeling lucky” button, which one might have exepected to change or disappear as the site grew into a mature company, is still grinning at users every day.

That makes it all the more noticeable when the site does change.  A few months ago it started offering suggestions as you type in your search terms.  That was a little creepy at first, but I’ve gotten used to it, and it does actually save a few seconds sometimes.  (And I’m pleased to observe that if you type in “law prof ” (note the space at the end), then ”law prof on the loose” is the second suggestion.)

And now there’s a font change.  Everything is bigger and they may have dropped the serifs (although I can’t remember whether they had serifs before). 

Obviously it’s no big deal, but it’s like seeing an old friend with a  new hairstyle, or discovering that the city has cut down a tree in your favorite park.  It takes a little getting used to.  I’m reminded of August, 2007, when the New York Times got smaller.  It was still the Times, but it wasn’t quite what you expected.

Of course, now when I pick up the Times I can’t remember that it was ever bigger.  I’m sure I’ll feel the same way about Google’s font in a month or two.   But it is interesting to think that each tiny change will be seen by hundreds of millions, or perhaps billions, of users.

Professor Teachout may be one of the big stars in the new order (well, her webpage at Fordham does say that she is “an immensely talented and creative scholar”) but I’m not buying her theory just yet.  If [...]]]> Zephyr Teachout, a law professor at Fordham, predicts in Slate today that the Internet will tear apart education much the same way it has affected newspapers.  In the future, says Professor Teachout, most classes will be offered online, students will pay by the class, a few big star teachers will get all the money, and the rest of us will be glorified TAs.  “Within a generation, college will be a mostly virtual experience for the average student,” Professor Teachout says, and degrees will come from education “aggregators” rather than traditional colleges.

Professor Teachout may be one of the big stars in the new order (well, her webpage at Fordham does say that she is “an immensely talented and creative scholar”) but I’m not buying her theory just yet.  If universities just sold educations, there’d be more to it.  As Professor Teachout observes, universities incur big expenses that may prove unnecessary in the digital age.  If we ran universities on a business basis, employed technology to the fullest degree, and got rid of a few bits of archaic nonsense such as tenure and scholarly research, I’m sure we could deliver education much more cheaply.

But universities also sell their students something else:  the reputational value of the degree.  An Internet “aggregator” of education services can’t duplicate that easily.  Part of the reputational value of a degree comes from just those aspects of a university that the Internet would shed:  having faculty who are research stars, not letting just anyone take classes, etc.  Face it: if you were making hiring decisions, would your first choice be someone who graduated from a virtual school?

I think the reputational value of the degree is a big part of what universities sell, and I don’t think the Internet is going to erode that so quickly as Professor Teachout seems to believe.  And that’s before we get to other things that real colleges offer, such as enjoyment, friendships, networking, and other things that come from actually being in the same place as your classmates.

Well, it’s always dangerous to say that the Internet won’t accomplish something.  And in fairness, Professor Teachout does say that the more elite, “brand name” universities will be less affected by the developments she foresees than smaller, less known institutions.  And that makes sense:  the less reputational value your degree has, the more you really are selling education.  But I don’t think my job is going to be outsourced to the Internet just yet.