Category: General Law


Trial Tactics, Boundaries, and Penalties

The idea that one should be a zealous advocate for my client may be good, but it can also lead to large sanctions. The image of the “I’ll do anything to win” lawyer may be exacerbated by media; yet many firms have that attitude without any need of media reinforcement. Two recent intellectual property cases highlight the problems of that approach. Both involve millions of dollars. One resulted in close to 2 million dollars in sanctions, and the other will likely result in a sanction of similar amount. Both raise questions about judges, trials, and questions of law or fact. When, if ever, should a judge stop a trial that seems to have no basis or that has an event so egregious that it will merit setting aside a jury verdict? If a judge lets the case proceed, and then later sets aside the verdict as well as ordering the payment of fees, should the fee claim be stopped at the time at which the offending event occurred? A recent patent case highlights these problems.

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Open Crimson: Harvard’s Arts and Sciences Goes Open Access

NewtonsPrincipia.jpgAccording the Chronicle of Higher Education “Harvard University’s Faculty of Arts and Sciences adopted a policy … that requires faculty members to allow the university to make their scholarly articles available free online.” Faculty may ask for a waiver of the policy bu the default will be that they provide an electronic copy to the University which then make it available online. As the Chronicle notes, Peter Suber’s posts at Open Access News cover the topic well (text of the motion, Provost’s statement, long post that links to earlier thoughts and other views on the subject). Suber thinks this vote means “Harvard will be the first university in the US to adopt an OA mandate. The Harvard policy will also be one of the first anywhere to be adopted by faculty themselves rather than by administrators.” The University of California has a similar policy in draft form and may have started the process earlier, but Harvard seems to be the first.

Now for the law:

In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean’s designate will waive application of the policy for a particular article upon written request by a Faculty member explaining the need.

Let’s say it once more, “a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.” First does anyone know whether anyone from Harvard Law was invited to this party? Second, although the policy of open-access has merits, when mandated by the University it appears that certain Creative Commons approaches are negated. Third, derivative works problems seem to lurk in this policy. Put differently, where does ShareAlike and non-derivative work restriction fit if at all? Maybe these issues are of less importance than a big move by a big player to go open access, and I hope the idea works. Still the policy seems a bit dictatorial and maybe overbroad. As I have just looked at this one, thoughts are much appreciated.

Last for any institution thinking of an open access move, Suber’s longer post walks through some fascinating nuances of permission (faculty gives the copy to the school, school then posts) and deposit policies (faculty required to handle the posting) for open access as well as offering an overview of the area.

Image by Andrew Dunn, source: WikiCommons; Creative Commons Attribution ShareAlike 2.0 License

cross-posted at Madisonian


The Phenonmenology of Political Correctness

As I have said on these pages before, I will happily vote for Obama if he becomes the Democratic nominee, but I still see some merits in voting for Hillary Clinton. As a member of one of the most “liberal” law schools in the country (all I mean by that is that we know we have many more Democrats on the faculty than Republicans, but how many and how many Independents is not known, nor should it be, in my view), I have been quite surprised to learn how “silenced” I feel by my many colleagues who are enthusiastically supporting Obama (a wonderful group of whom went to work in South Carolina and are now working hard in Maryland for him, which I think is terrific). On the issues we likely feel mostly the same –end the war in Iraq and bring the troops home, do more to deal with our stubborn problems of poverty, inequality and inequities, restore some sense of a positive reputation for our nation in its internal and external affairs, provide health care for all and restore faith in our beliefs in inclusion, justice, and social equity and opportunity. Yet, in conversation after conversation I feel like a Republican in a Democratic world for expressing any positive views about Hillary (and until yesterday about John Edwards too). Or as one of my similarly minded colleagues said, why does it feel like a “guilty pleasure” to vote for Hillary?

A few years back I was asked to moderate a panel at Georgetown in which Viet Dinh (R) and John Podesta (D) and I addressed concerns about political correctness and diversity of view in our student body. This was before a choice-right to life dispute here last year, but during a period of our generally wonderful community-enhancing culture here. We had a lively, civilized discussion, which actually led to some concrete suggestions (and whether coincidentally or not ,we have subsequently hired several more conservative members of our faculty, both entry level and lateral). All of this was our institution at its best. So, now I feel like one of those students who complained about feeling silenced in the classroom (pro-life in a sea of pro-choice, or market based efficiency in a sea of state regulated fairness).

Many of my colleagues, rightly, feel that Obama will signal a new day for the United States — as they say, “the prince of hope, inspiration and change,” as JFK seemed in 1960. (I was actually an RFK fan swimming against the Eugene McCarthy tide in 1968). My pollster husband tells me some of this is generational –so far Obama is outpolling Clinton in youth votes and she is still outpolling him in “older” voters. Oh dear, how did this “child of the sixties” (me) become an older person? Many think both Clintons are tainted by the failures of that administration to do more on the issues I mentioned above and I agree with those who think that Bill Clinton’s campaigning has been a bit “OTT” (over-the-top) lately, employing old and unnecessary “hit” tactics that will not serve us well post-primary season, BUT the Clintons (and HIllary in particular) were thwarted in their efforts by the health insurance industry, the Gingrich “revolution” and a Republican Congress (if not a “right wing conspiracy,”) and we should think about more complex lines of causality, as any President will have to.

When I listen to some of the most persuasive arguments on behalf of Obama –that he will signal something new (and don’t tell me his multi-cultural identity is not one of those things, which I applaud and support) like greater credibility abroad and more of a community organizing background, I am unable to be heard on some of the arguments or views that I have about Hillary without being glared at or feeling like I am supposed to turn in my membership card for SALT or other bastions of “secular humanism or liberalism” that I am a member of. Hillary and Obama are both lawyers, trained at elite schools and using their considerable intellects and personal qualities to do a wide variety of things. They are much closer in fact than all the rhetoric would suggest. They both have represented some unsavory clients (Wal-Mart and slumlords) and they both have done extraordinary work on the amelioration of poverty and related issues (children, legal services, education and health care for Hilllary; community empowerment, poverty reduction, education, and social equity for Obama). When I am told that Obama will make a great signal to the rest of the world that we are the inclusive nation we say we are I need to remind people that on the basis of much of my international work in the last few years, Hillary (and yes, her husband Bill) are much beloved abroad. And what would a first woman president signal to the rest of the world and our own children? Both candidates have much to say for these issues –both substantive and symbolic and both, in my view, are important in elections and leadership.

Perhaps I am getting older or it is my years in Washington DC, but I do also value someone who has worked “in” this system, despite all its muckiness, and who manages to bring in people who often claim not to like her. I did not start out a great fan myself (for a variety of other reasons) but as I consider my own continuing deliberations (as one who teaches and practices deliberative democracy), I want more discussions of both the merits and who could be an effective and “electable” leader. I don’t like being made to feel guilty that I might vote differently than some of my colleagues.

Whatever happens in the elections, I know, as a teacher who has always tried to create an atmosphere of genuine respect for different views in the classroom , I have learned a great deal about the experience or ethnography of political correctness, now from inside that experience. As one talky, noisey girl, I feel like I can’t express certain views that are not expected of my demographic (progressive, ciivl rights, justice seeking, anti-war, political activist).

Both as a teacher and as a mediator, being inside the experience of a “minority view” in my own institutional political culture is instructive. Perhaps I need to go back and read (along with my colleagues) the posters on my office door about how to have conversations across difference. I”ve been a disenfranchised or minority person before — but feeling like I can’t say what I think –that is a somewhat new experience. For those of us who will want to work together in a new government and administration, I think we need to heed some of the process advice of Emma Goldman –to paraphrase somewhat, the process of the revolution needs to reflect the values that will follow when the revolution is successful. A little really good open and deliberative conversation could go a long way to making that new political order. Let’s have some respect for our not-so-really-different views, as well as for those with whom we really do differ. For you teachers out there, think about how you structure conversations in your classes to elicit good and open thinking and think about whether and how you express your own political views.


January Responses


PENNumbra‘s featured works are now available at

Elizabeth M. Glazer provides a fourth response (following in the wake of Professors Fennell, Garnett, and Underkuffler) to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007). 

Professor Glazer, in her Response, Rule by (Out)Law: Property’s Contingent Right to Exclude, attempts to explain why Peñalver and Katyal’s “property outlaws” so successfully violate property owners’ exclusion rights when the right to exclude is seen “as property law’s most important or defining right.” Professor Glazer concludes that “the outlaw tells us[] that an owner cannot invoke [the right to exclude] if she wishes to invoke it in isolation. . . .” She believes that the right to exclude is only absolute “so long as its exercise is coupled with the exercise of another right in the property bundle.”

Shyamkrishna Balganesh responds to Sara K. Stadler’s Copyright as Trade Regulation, 155 U. Pa. L. Rev. 899 (2007). 

Balganesh examines Professor Stadler’s argument that “the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.” He agrees that “copyright law ought to be visualized as a doctrine of unfair competition,” but offers an alternative conception of “implementing this ideal.” Balganesh writes, “Since copyright is about generating incentives for creation, we might want to connect [a competitive] nexus requirement to copyright’s instrumental purpose through a test of foreseeability. Given that liability for infringement is premised on a showing of copying, such a test would place the burden on the plaintiff to show that the defendant’s copying was in a market and of a form reasonably foreseeable when the work was created.”

As always, please click on the PENNumbra link to read previous

Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.


Female Genital [fill in the blank]

The debate over Female Genital Mutilation/Cutting (an earlier round of which was blogged about here by Sarah Waldeck), continues at Teirneylab. I won’t recount all the arguments and evidence on both sides. Instead, I want to ask a legal question: How should evidence of FGM/C weigh in a custody hearing? Should evidence that a immigrant mother has had her daughter ritually cut support an inference of poor parenting? What if the mother hasn’t yet cut the child, but plans to in the future (perhaps by returning to her country of origin)? Is the inference obvious, or does it depend on context? Were an adverse party to raise the issue against your client in a custody case, what would you do?

As you think about your answer, also ponder the role that cultural cognition might play in resolving this kind of legal question. Cultural cognition refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. I, for example, find myself interrogating studies showing that women who undergo FGM/C are no less likely to have fulfilling sexual lives and pleasurable sexual experiences far more intensely and critically than I do those that suggest the rituals produce long-lasting trauma. I am not in a position to evaluate the primary evidence myself and, when I reflect on my own reactions, I’m not a neutral evaluator of the secondary evidence. Can we expect a judge or social worker to be immune to the same cognitive biases?

Here’s another question to close the loop: Apparently I think that FGM/C is harmful, at least in part, because I think it is base — but I also think it is base because I think it is harmful! And if I (admittedly) can’t trust my intuitive assessment that it is really harmful, can I trust my normative evaluation of the practice as wrong?

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Grimmelmann — Lawyers, Blogs, and Money

James Grimmelmann has an interesting post about the problems that (might) arise when legal scholars mix blogging with money. Curious what all of you think of this point: “Perhaps no posts have suffered from sponsorship, but it’s in the nature of such conflicts of interest that I might never see the damage. Indeed, the damage can take place without anyone at all being consciously aware of it.” I’ve had informal conversations with legal bloggers (not of this blog) where generating money for the time they put in was a significant (which is not to say the primary) issue that they paid attention to. Again, though, again, it wasn’t clear whether this was, on net, a bad thing. Anyway, this whole post is just an excuse to get you to click this link — just be sure to let them know I sent you!

UPDATE: Jon Garfunkel rightly calls my attention to the fact that Frank Pasquale responded to James over at the laboratorium.


Steven Pinker channels Mary Douglas

Steven Pinker has an interesting article in the New York Times that lines up nicely with recent research into cultural cognition and develops (unwittingly) the ground-breaking work of Mary Douglas. Leaving aside the (minor and entirely unnecessary) bits about Chomsky, evolution, and biology, the piece comes down to a broad-ranging discussion of the ways that people tend to be sensitive to clusters of moral concerns.  He talks in particular about widespread values like harm-avoidance, fairness, community, authority and purity.  Part of what is nice about the Pinker discussion is his acknowledgment that these values are almost always contingent on culture — it’s culture that determines what is perceived as harmful, what is fair, who one’s community is, when (and what forms of) authority should be respected, and what makes something pure, what contaminated. 

This is precisely the point that anthropologists have long been making and, were Pinker an anthropologist his not mentioning Douglas would be unforgivable. But Pinker makes and effort and does draw on a number of recent anthropological studies to make his points. He also notes that the content of these values not only vary across communities, but change over time (smoking becomes impure, homophobia becomes unfair, and so on). If this is the sort of thing that floats your boat, then I’ll point you to a study by Dan Kahan, James Grimmelmann, and your truly that goes one step further, suggesting how these shifts occur and why they occur in recognizable patterns.  And if you want to read from one of the giants on whose shoulders Pinker and the rest of us value-scholars stand, have a look at two Mary Douglas classics: Purity and Danger and (with political scientist Aaron Wildavsky) Risk and Culture. We miss you Mary!


Whose Eyes in Scott v. Harris? KHB Reply

Over on Volokh Conspiracy, Orin Kerr has posted a thoughtful and fair-minded response to our study of public interpretations of the Scott v. Harris video (previously blogged on Concurring Opinions here and here). Orin generously credits our empirical study with succeeding in making the “broad point [that we] want to make,” and that he says he himself “completely” accepts: that “videos can be construed in different ways,” that “it’s too easy for [people] to look at a video and see what [they] want to see,” and that as a result “[w]e”—presumably, including judges—“need to step outside of our preconceptions and be aware of how other people might construe the facts” revealed in such a medium. Nevertheless, Orin suggests that our study suffers from a “significant methodological error” because the study “ended up asking the survey respondents to apply the standards the authors suggested instead of the test the Supreme Court used.”

To keep the debate going, we’ll make three points to make in response:

1. We did ask the subjects to address, in a plain and straightforward way, the key factual predicate of the Court’s decision.

Using various, diverse formulations, Justice Scalia emphasized over and over that summary judgment was warranted because the tape revealed that Harris’s driving posed a high degree of risk—more certainly, than is present whenever one happens to drive a car at a high speed down the highway—to the lives of others. See, e.g., 127 S. Ct. at 1775-76 (“the video . . . closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury”); id. at 1778 (“it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians …,  to other civilian motorists, and the other officers”); id. at 1779 (“The car chase that respondent initiated in this case posed a substantial and immediate risk of physical injury to others; no reasonable jury could conclude otherwise”). In contrast, Justice Stevens, in dissent, repeatedly stated that he didn’t perceive such a risk. See id. at 1783 (“passing a slower vehicle on a two-lane road always involves some degree of swerving and is not especially dangerous if there are no cars coming from the opposite direction”); id. (“This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.’ ”). 

As Orin notes, we asked our subjects to pick sides in this dispute by indicating their level of agreement or disagreement with two propositions: that “Harris drove in a manner thatput members of the public at great risk of death,” and that he “drove in a manner thatput the police at great risk of death.” Orin says he objects to “great risk,” even though it’s among the hodge podge of different phrases Scalia himself used. We chose that phrase because it struck us as a characterization of the necessary degree of heightened risk that would be familiar to, and likely understood in uniform ways by, ordinary people. One would have to impute to our subjects fairly strange motivations to twist normal language—to a degree that would make even a sophistic lawyer blush—to worry that those who shared Scalia’s view of the tape would think they should nevertheless report disagreement with him.

Indeed, as Orin observes, the vast majority of subjects, far from being steered away from Scalia’s position by this question wording, did report agreement with him on this point. Contrary to how Orin summarizes our position, then, we don’t mean to criticize the Court for “privileging a conservative white male view of the case.” Rather we take up the more subtle normative issue of whether, in a summary judgment setting, courts should ever send a case to a jury in order to assure that the majority considers the factual perceptions of an admitted minority, whose members nevertheless share a common set of identifying characteristics, experiences, and values.

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On Nobel Prizes, Primaries, and Decision Theory

likeIke.jpgThe Washington Post has a nice little column today on the basic silliness of the presidential primary system. Sebastian Mallaby writes:

Just like badly designed auctions, the primaries encourage “strategic” behavior that conceals true preferences. Some Democratic voters who preferred Bill Richardson may have chosen not to reveal that, figuring that a vote for him would be wasted. Some independent voters may have preferred Obama yet voted instead in the Republican contest for John McCain, believing that Obama would win the Democratic contest without their assistance. If voters don’t reveal their true preferences, it’s hard to reconcile them successfully.

What elections ought to do is discover which candidate would beat each of the other candidates in head-to-head matchups. Eric Maskin, one of last year’s Nobel laureates for mechanism design, will suggest how a better system could do that in a lecture Thursday at Georgetown University. Maskin’s argument is that voters should list candidates in order of preference, so we wouldn’t have to guess whether Clinton would have beaten Obama in a two-person contest. If a majority of voters for Edwards, Richardson and the other also-rans put Clinton higher on their lists than Obama, she would win the contest under Maskin’s system. But if Obama ranked higher than Clinton on a majority of voters’ lists, then he would win. After all, most people would have preferred him.

Of course, my understanding is that the hideously complicated rules governing the Democratic caucuses in Iowa work on something like this system. (Although I am happy to be corrected by those who actually know something about Iowa.) According to the column:

Instead of this common-sensical system, we have a farce: On the basis of a three-point margin over Obama that tells us little about which of the two candidates voters actually preferred, Clinton has transformed her prospects.

The odd thing, of course, is that if one looks at the delegate count rather than at who “won” this or that state, then the results are far less clear cut as “losers” still get a lot of delegates. To be sure, folks still vote strategically but not as strategically as they might in a winner take all election. On the other hand, the implicit assumption of Mallaby’s argument is surely correct. The real purpose of the primaries is no longer the picking of delegates. Rather they simply serve as the focal point of a national contest carried out in the media rather than the political conventions. The real question, of course, is whether Maskin’s system would increase or decrease the number of people wearing silly political memorabilia.

[Image credit: Wikicommons]

Multimillionaire Relief

Rick Hasen reports that the Supreme Court has agreed to consider the constitutionality of the “Millionaire’s Amendment’ in the Bipartisan Campaign Finance Reform Act. Here’s Hasen’s rundown:

Roughly speaking, this provision requires self funded candidates for the Senate or House to report their expenditures. When the expenditures exceed a certain amount, the opponent(s) of the self-financed candidate can accept contributions from individuals in an amount triple the individual contribution limit (now at $2,300 per person), even from people who have maxed out their federal contributions for the year. The opponent can also get more coordinated spending with his or her political party. [The appellant] essentially argues that the Millionaire’s Amendment is unconstitutional because it creates an additional burden on him (a series of disclosures of spending in a short time frame) and is not justified by any accepted government interest.

Prospectively, I think this is a Court that’s going to make extant campaign finance regulation meaningless within a decade. Hasen’s insightful and well-written article Beyond Incoherence provides some reasons for my suspicions here. Those who care about a level electoral playing field are probably going to have to round up money for public financing, and move beyond traditional forms of regulation increasingly challenged by an activist base of the politically involved.

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