Category: Conferences

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The ACLU’s “Declaration of First Amendment Rights and Grievances”

ACLU.jpgLast week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States

government:

• Ignores its representative mandate by governing in the shadows.

• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.

• Secretly uses private parties to spy and seeks immunity to cover their illegalities.

• Silences dissent.

• Prevents citizens from petitioning their elected offi cials.

• Profiles individuals and denies freedom of movement based on association.

• Falsifies information to deny liberty.

• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.

• Prevents soldiers from communicating with their families and prosecutes their lawful speech.

• Silences whistle blowers.

• Censors the press, broadcast media, and Internet based on content.

• Prosecutes the press for revealing illegal programs.

• Obstructs oversight by elected officials.

• To preserve secrecy, places secret holds on bipartisan open government legislation.

• Funds religious programs.

• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.

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The Best Times of the Day to Fly

airplane4.jpgWhen is the best time of day to fly if you want the best chance for an on-time flight?

The answer is in today’s Washington Post, which has an interesting set of charts in the metro section about airline on-time percentages by time of day. I looked for the article online and couldn’t find it, so I’ll just discuss it briefly here since the data is very interesting.

At the three DC-area airports (National, Dulles, and BWI), the trend is basically the same. Flights departing before noon have considerably higher on-time departure percentages (typically 85% or so) than flights departing in the afternoon and evening. After 4 PM, the on-time departure percentages get really dicey (between 40-50%). With only a few exceptions, the trend is a steady drop in on-time percentage throughout the day. One notable exception involves flights departing after 11 PM, where the on-time departure percentage suddenly shoots back up. Oddly, however, flights departing in the evening earlier than 11 PM have very low on-time percentages (39% from 10:00-10:59 PM at National, less than 50% at the same time at Dulles).

As for arrivals, the trend is basically the same, with arrivals in the AM being far more on-time (70-80%) than in the afternoon and evening (often 50% or below). Arrivals very early in the morning (before 7 AM), however, have lower on-time percentages, but flights arriving between 7 AM and noon are typically 80% on-time or higher.

I would assume that these trends are not unique to the DC area, but that’s just my uninformed guess. I find the data interesting because it suggests that you’re much better off flying in the morning.

There are more interesting stats in the article, but they mainly pertain to specific flights to-from DC that one should avoid. For example, avoid the US Airways 7PM flight from National to LaGuardia. It is late 88% of the time with an average delay of 65 minutes. Yikes! All of the chronically delayed flights are in the afternoon and evening, and most are flights by Comair and US Airways.

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An Angel (Investor) in Devil’s Clothing

angeldevil.jpgToday, the Conglomerate’s Junior Scholars Workshop is discussing Darian Ibrahim’s The (Not So) Puzzling Behavior of Angel Investors. I’ve offered some comments to the paper here; Larry Ribstein’s comments are here; Barbara Black’s here; and George Dent’s here.

The gist of my comment notes that Darian does a terrific job of showing that so-called angel investors’ seemingly philanthropic behavior can be explained using traditional wealth-maximizing incentive theory. For example, angels may not seek to control start-ups with formal contract mechanisms because to do so would reduce those start-ups’ abilities to find later VC investments and thus repay the angel investment. If this is a good model of angel behavior, the question I had was whether the law (or society more generally) ought to treat angels differently from other investors. I look forward to Darian’s response to this comment, and the other really thoughtful critiques. If you at all interested in the law of entrepreneurs, this is a can’t miss paper and workshop. Indeed, it has already inspired a really thoughtful comment by Jeff Lipshaw. Come on by!

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Two Interesting AALS Paper Calls

First, my apologies for the two-week hiatus, something bad enough for a regular blogger, but perhaps inexcusable from a guest (as Stephanie would say on Full House, “how rude!”). As I noted over at Prawfs, I blame a combination of packing, grading, and moving (three of my least favorite activities), but, c’est la vie.

Anyway, while I was away, two of the AALS sections to which I belong — the Section on National Security Law and the Section on New Law Professors — issued interesting paper calls for the 2008 AALS Annual Meeting. By way of disclosure, I’m on the reviewing committee for the New Law Professors. The National Security Law section call is available here; the New Law Professors’ call is reprinted beneath the fold. Of course, I’m happy to answer questions about the topics.

It separately begs the question, though, of the role of paper calls in the annual meting… to me, it’s a great way to add fresh (or at least unpredictable) insights to an issue where the temptation may be to go with the “experts,” but I wonder if others have a different view.

More below the fold…

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Scholar-ly Symposium

An announcement for our readers, from the University of Pennsylvania Law Review:

The University of Pennsylvania Law Review is pleased to announce its second annual Symposium Scholar Essay Competition. We are seeking essay submissions advancing a legal argument related to the 2007 symposium topic on “The Class Action Fairness Act of 2005.” The winning author will be published in the University of Pennsylvania Law Review’s Symposium Issue in Spring 2008, and the author will be invited to Philadelphia in late November 2007 to present the paper at the symposium.

The competition is limited to junior scholars — law students and those who have graduated within the past five years. For more information, see this announcement file, or the Pennumbra website.

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Whither the Humanities?

sphere1.jpgHaving just returned from the ASLCH conference this past weekend, the role of humanities in the world of the law has been greatly on my mind.

It was a great conference–I presented on a double panel entitled “Reconfiguring the Language of Rights,” with Rose Cuison Villazor, Olati Johnson, Serena Mayeri, Melissa Murray, Frank Ravitch, Patricia Seith and Aric Short–and it was fascinating to be immersed in the world of the humanities again, something I have not much focused on since graduate school.

But the conference did make me wonder: will the role of humanities in the law ever be more than its current “Law and __” ghetto? In other words, will Law and Humanities ever be mainstreamed like Law and Economics? Should it be? I ponder this below….

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If the Law is a[n] ass, what is the state?

Leviathan.jpg

The famous frontispiece to Thomas Hobbes’s Leviathan depicts the head and torso of a long-haired, mustachioed man. Upon close scrutiny, it becomes evident that the man’s torso and arms are composed of tiny individual persons, crowded closely together and each looking toward the head of the composite Leviathan. The image suits Hobbes’s argument well. Hobbes argues that a sovereign should be understood as an artificial person, created by a social contract to represent each individual member of a political community. Of course, Hobbes also argues that the best sovereign is also a natural person: a single human individual who rules as an absolute monarch. But whether political sovereignty rests in a single monarch, in democratic institutions, or in some other form of government, Hobbes urges us to think of the state as a person. The metaphor is simple, accessible, intuitively appealing—and it may be inescapable. Long past the age of absolute monarchs, we still speak of states as entities that intend, and act, and are vulnerable in ways similar to the ways in which individual persons intend, and act, and are vulnerable. This conception of the state shapes American law in significant ways. For example, many questions of constitutional law turn on whether the state acted or what the state intended, and many scholars have noted incoherence in the jurisprudence of state action and state intention.

Maybe we just don’t have convincing ways of thinking and talking about states other than the language of personhood. I’m looking for alternatives, so please let me know if you have suggestions.

In a work in progress called Political Anthropomorphism, I try to escape the metaphor of the state as a person—or at least stand far enough from it to evaluate it critically. I’ll present this paper tomorrow at the annual meeting of the Association for the Study of Law, Culture, and the Humanities, held this year at Georgetown Law Center in Washington, DC. I haven’t attended ASLCH before, but the program certainly looks enticing. Those interested in legal metaphors—the law is an ass or others—may want to attend Metaphors of Power / The Power of Metaphor, where I’ll discuss Political Anthropomorphism and my esteemed co-panelists will discuss the use of metaphors in the legal discourses of marriage, tort liability, and Native American rights to sacred sites or remains. Should be fun.

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Appleman on Blakely, Hidden Sentencing, and Retributive Justice

Last Friday, as part of the Works in Progress colloquia series at Thomas Jefferson School of Law, Laura Appleman of Williamette Law School (a current guest-blogger here) presented her forthcoming paper on Blakely, hidden sentencing, and retributive justice. Laura’s presentation was as follows:

She began with the problem of hidden sentencing. The term covers different ways that punishment can be given outside the traditional judge and jury setting. Hidden sentencing includes restrictions imposed by parole, probation, or supervised release, and hidden sentencing decisions are typically made by administrators, not judges or juries.

From there, she turned to the recent changes in sentencing law in the past decade. Starting with Apprendi and Ring, and moving to Blakely and Booker, she noted that the Supreme Court has relied on a reinvigorated Sixth Amendment and has demanded that juries make factual findings that support sentencing increases.

From there, she turned to a discussion of what she calls “Blakely’s animating principle” — that any steps to increase the length or severity of a sentence must be decided by some aspect of the community. She situated this idea inside her own view of a new approach to retributive justice. She suggested that community involvement in retributive justice decisionmaking serves to legitimate and reinscribe community judgment.

Finally, she set out her vision of retributive justice. She suggested that the purpose of retribution is to balance burdens between the offender and the community. Retributive justice prevents the offender from elevating himself to a status higher than the community. Requiring community involvement in hidden sentencing helps the community right itself and shows that people’s actions matter in the community.

Laura’s talk was interesting and informative. I liked the focus on hidden sentencing, an area that is not often discussed. I think she’s right that Blakely’s animating principle suggests that hidden sentencing must be done with community involvement. And, of course, I’m already on the record as being in favor of a broader community role for the jury.

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Two Criminal Law Conferences

gavels.jpgFor those of you interested in either white-collar crime or prisoner re-entry, March is your lucky month! First, on Thursday, March 15 (i.e., THIS Thursday), Georgetown Law School, in conjunction with the American Criminal Law Review, will be hosting a symposium on “Corporate Criminality: Legal, Ethical, and Managerial Implications.” Former Att’y General Dick Thornburgh will be giving the plenary address, Ed Meese opens and closes the conference, and Conglomerate superstar Christine Hurt will be discussing Regulation of Criminalization–so white collar crime wonks, this is the place to be.

A few weeks later, from March 30th- April 1st, Harvard Law School’s Criminal Justice Institute will be hosting a conference on prisoner re-entry entitled, “Rethinking Re-Entry: Confronting Perpetual Punishment.” The conference focus is on pursuing remedies that “reduce disparities and promote reintegration into communities for those who are involved in the criminal justice system.” This is a “must-attend” for anyone who is interested in sentencing….

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Virtual Women

Yesterday, the Virtual Women conference was held at Thomas Jefferson School of Law. It was the seventh annual Women and the Law conference for TJSL, and it was a good one. The keynote speaker was Rochelle Dreyfuss (NYU); panelists included Ann Bartow (South Carolina), the proprieter of Feminist Law Profs blog, Boatema Boateng (U.C.S.D.), Dan Burk (Minnesota), Carys Craig (Osgoode Hall at York University, Toronto), former Co-Op guest Christine Haight Farley (American), Michele Goodwin (DePaul), K.J. Greene (Thomas Jefferson), Eileen Kane (Penn State), Mary LaFrance (UNLV), Doris Estelle Long (John Marshall), Malla Pollack (American Justice), Cheryl Preston (BYU), and Rebecca Tushnet (Georgetown), as well as a panel of practicing attorneys. Kudos to conference organizers Julie Cromer and Sandy Rierson for putting together a great group.

With that line-up, it’s no surprise that the conference is already being blogged. On her blog, Rebecca Tushnet has posted summaries and reactions for the first two panels. If you haven’t already done so, you should take a look at Rebecca’s posts on the conference: Panel 1, Panel 2 (part 1), Panel 2 (part 2), Panel 3, and the Keynote.