Archive for the ‘Law Talk’ Category
Supporting the Stop Online Piracy Act Protest Day
posted by Danielle Citron
As my co-blogger Gerard notes, today is SOPA protest day. Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live. Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today. There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates. Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online. In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said. So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill. “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so. I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA. I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill. As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship. Cybersecurity is at issue too, and we need to pay attention. Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills. But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.
January 18, 2012 at 10:11 am
Posted in: Architecture, Civil Rights, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Law Talk, Media Law, Social Network Websites, Technology, Web 2.0
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A Guide to the Eight Most Suspect Types of Law Review Articles
posted by Kyle Graham
This is simply my list of the eight most suspect types of articles; I appreciate that others may suggest different, or additional, entries.
1. The Repository of Hope
“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”
2. The Strained Debunker
“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”
3. The Old-Wine-In-New-Bottles
“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”
4. The One-Off
“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”
5. The Something Is Unconstitutional
“This article would make a fairly solid student note. It is my tenure piece.”
6. The Turf Staker
“My pre-emption check discovered no articles that cover this territory. I pretty much worked backward from there.”
7. The Half-Hearted Symposium Submission
“We would have tried harder, but hey, we’re talking about a symposium here.”
8. The Torn from the Headlines
“Few would recognize that the United States Supreme Court’s recent decision in ___ vs. ___ would fundamentally alter ___ law. Yet it did, or at least, you won’t be able to prove that it didn’t until this article is already well on its way to publication.”
December 3, 2011 at 1:34 pm
Posted in: Education, Humor, Just for Fun, Law Talk, Teaching
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Digital Law Books: II
posted by Lawrence Cunningham
As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.
Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.
In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.
April 5, 2011 at 1:17 pm
Posted in: Contract Law & Beyond, Education, Law School (Scholarship), Law School (Teaching), Law Student Discussions, Law Talk, Teaching
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A Grim (and Fantastic) View of Law
posted by Dave Hoffman
In a series of posts several years back, I interviewed fantasy authors about their work, including the role that law plays in the “hard fantasy” genre. My favorite interview was with Pat Rothfuss, then the author of the best-selling “The Name of the Wind“. Here’s what he said about the relationship between law and fantasy:
[DH] You’ve talked in interviews about the need to build a world in exhaustive and thoughtful detail, but leaving most of that information on the cutting room floor in the final draft. When you built Kvothe’s world, did you think (at all) about the background rules of tort, contract, obligation, and property that enabled the relatively sophisticated economy that you envisioned?
[PR] Yes and no. I thought of the legal system, but not in those terms. Mostly because I don’t know what a lot of those terms mean. It’s the same way that a person can be a good cook without necessarily knowing how to calculate how many joules go into melting butter using delta T.
The big reason you don’t see much of that in the book is that it isn’t relevant to the story being told, or the experience of the main character. He’s a street urchin for most of the book. If a sailor catches him with his hand in his pocket, he’s not going to press charges. What’s the percentage in that. He’s going to fetch the boy a sharp smack alongside his head, and get on with his day…
Now if Kvothe got brought up on legal charges somewhere, that would be different. Then the reader would see the horrible, corrupt wheels of justice creaking ponderously along. We get a glimpse of that in book two, as a matter of fact.
[DH] If you have imagined a common law system, what sources did you draw on to flesh out what it looks like in the “book behind the book.”
[PR] In the commonwealth, their legal system is based loosely on England in the 1500-1700’s. In short, it’s a huge, tangled, unfair clusterfuck of a system. There are courts that enforce church law, and courts that enforce the Iron Law of Atur. Each court operates under its own authority, and of course their spheres of influence overlap… It’s a real mess, but it’s the only system that they have…”
“Book Two” was released earlier this month, titled “A Wise Man’s Fear.” Pardon the pun, but it is a fantastic read. Well worth your time. And, lo and behold, on pages 328-329, there’s an actual trial. In fantasyland! But rather than get into it, glorying in how the rules of procedure and magic might interrelate, or examining how a system of logic and nuance (law?) would interact with one of fantasy and whim, Pat does this: ”What started as a terrifying experience quickly became a tedious process filled with pomp and ritual. More than forty letters of testimony were read aloud … There were days filled with nothing but long speeches. Quotations from the iron law. Points of procedure. Formal modes of address. Old man reading out of old books.” And later, when a character voices an objection to this cursory treatment (and who I dream to be a stand-in for me), the main character replies that a full account of the law “Would be tedious … Endless formal speeches and readings from the Book of the Path. It was tedious to live through, and it would be tedious to repeat.”
Tedious? Has he never heard of Erie? Of Jacobs & Young? Of Pennoyer, for lord’s sakes? The law isn’t tedious – it’s the stuff of drama!
March 16, 2011 at 2:01 pm
Posted in: Law Talk, Sociology of Law
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GW’s Junior Scholars Finalists
posted by Lawrence Cunningham
Thanks to my colleague, Lisa Fairfax, GW has finalized the program for this year’s Junior Faculty Business and Financial Law Workshop and Prize (detailed here). Of the more than 100 papers submitted, the following dozen presenters were chosen. [Commentators appear in brackets; I've shortened some paper titles.]
The workshop will take place at GW on April 1 and 2, 2011. We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers. We encourage everyone interested to attend and look forward to the weekend.
Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]
Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]
Alan White (Valparaiso), Welfare Economics and Regulation of Small-Loan Credit: Lessons from Microlending in Developing Nations [Michael Pagano (Villanova) & Lawrence Mitchell (GW)]
Nicola Sharpe (Illinois), Corporate Board Performance and Organizational Strategy [Deborah Demott (Duke) & Michael Abramowicz (GW)]
Julie Hill (Houston), The Rise of Ad Hoc Bank Capital Requirements [Anna Gelpern (American) & John Buchman (E*Trade Bank & GW Adjunct)]
Michael Simkovic (Seton Hall), The Effects of Ownership and Stock Liquidity on the Timing of Repurchase Transactions [Richard Booth (Villanova) & Henry Butler (Mason)]
Michelle Harner (Maryland), Activist Distressed Debtors [Donna Nagy (Indiana Bloomington) & Lisa Fairfax (GW)]
Saule Omarova (UNC), The Federal Reserve Board’s Use of Exemptive Power [Patricia McCoy (Connecticut) & Arthur Wilmarth (GW)]
Heather Hughes (American), Suburban Sprawl, Finance Law and Environmental Harm [Scott Kieff (GW) & Lawrence Cunningham (GW)]
Robert Jackson (Columbia), Private Equity and Executive Compensation [Norman Veasey (Weil Gotshal) & William Bratton (Penn)]
Brian Quinn (BC), Putting Your Money Where Your Mouth Is: Post Closing Price Adjustments in Merger Agreements? [Gordon Smith (BYU) & John Pollack (Schulte Roth)]
Mehrsa Baradaran (BYU), Reconsidering Wal-Mart’s Bank [Heidi Schooner (Catholic) & Renee Jones (BC)]
This is one of many events sponsored by GW’s Center for Law, Economics and Finance.
February 28, 2011 at 8:53 pm
Posted in: Corporate Finance, Corporate Law, Law School, Law School (Hiring & Laterals), Law School (Law Reviews), Law School (Scholarship), Law School (Teaching), Law Talk, Securities, Securities Regulation
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Iowa Law Review, Volume 96, Issue 2 (January 2011)
posted by Iowa Law Review
Articles
The Coercion of Trafficked Workers
Kathleen Kim
IP Misuse as Foreclosure
Christina Bohannan
Consent to Retaliation: A Civil Recourse Theory of Contractual Liability
Nathan B. Oman
Automation and the Fourth Amendment
Matthew Tokson
Essay
No Middle Ground? Reflections on the Citizens United Decision
Randall P. Bezanson
Notes
Princo, Patent Pools, and the Risk of Foreclosure: A Framework for Assessing Misuse
Phillip W. Goter
Holden Caulfield Grows Up: Salinger v. Colting, the Promotion-of-Progress Requirement, and Market Failure in a Derivative-Works Regime
John M. Newman
Is Senator Grassley Our Savior?: The Crusade Against “Charitable” Hospitals Attacking Patients for Unpaid Bills
Amanda W. Thai
January 20, 2011 at 12:39 pm
Posted in: Law Rev (Iowa), Law Rev Contents, Law Rev Forum, Law School, Law School (Law Reviews), Law School (Scholarship), Law Talk, Uncategorized
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The Opposite of Dog Eat Dog
posted by Lawrence Cunningham
At a Faculty Meeting years ago, our distingished new Dean, who’d been Dean elsewhere, President of a University, and CEO in the private sector, began by saying how people often ask him: “What’s the difference between the academic world and the corporate world?”
The Dean said he replied: “In the corporate world, it’s DOG EAT DOG, whereas in the academic world, it is exactly the other way around.” Those assembled at the Faculty Meeting laughed knowingly.
Just as the guffaws died out, my great and wonderful friend, a learned faculty member, and former Dean, quipped: “Do you mean, in academia, it’s GOD EAT GOD?” Louder knowing laughter erupted and I still laugh about it today.
Academia can be a wonderful place. Yet it’s no Ivory Tower and can be viscious , especially for younger scholars, doing graduate work at elite institutions. It usually gets better but it can be tough later too.
There are many ways to cope. One is remembering to research and write for yourself, in the first instance, not to please or even influence others. Of course, it can be rewarding to have those effects and, especially, to be cited favorably, but that usually comes in due course.
Keeping a sense of humor and some sobriety about also helps. Whenever I hear about the lion cages of graduate study, or vexing insecurity during early years of untenured appointments, I share the foregoing memorable scene.
January 19, 2011 at 1:09 pm
Posted in: Humor, Just for Fun, Law School (Teaching), Law Student Discussions, Law Talk
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Ideal Blog Post Length
posted by Lawrence Cunningham
Is there an optimal length for a blog post or an ideal depth? Some posts around the blogosphere are surprisingly brief, perhaps a mere sentence noticing an article or book publication or other event, while others probe deeply through layers of challenging ideas requiring up to 4,000 words to feature. Can posts be too short and snappy or too long and laborious?
When law journals were as old as blogs are today, review articles were pithy and short. For example, the famous unsigned 1880 review of Langdell’s Contracts casebook (attributed to Holmes) ran 1,200 words in volume 14 of American Law Review, packed with punch and still valuable commentary on the case method of law teaching. At the other extreme, an 1898 review of Keener’s Contracts casebook, appearing in volume 8 of Yale Law Journal, ran a mere 53 words, leaving the reader bereft.
True, articles ran much longer than the book reviews of late 19th and early 20th century legal literature, but still were limited to around 10,000 words apiece. And that enabled covering vast subjects. Over six generations, the average length bloated, with many pieces bursting to 50,000 words or more, before recently cut to around 25,000 words by some sensible law students. Book reviews in law journals often still run that length, though 8,500 words is the cap set by the prudent editors of Michigan Law Review’s Annual Survey of Books.
Posts here at Concurring Opinions average some 800 words, akin to old-fashioned print op-ed pieces, though no explicit policy rules and there are plenty much shorter (this one is 375 words). Co-Op’s guidelines for its book review project suggest 1,000 as the ideal length of book reviews, noting that they may range from 500 to 2,000 words. The same seems roughly the mode and norm at peer sites, including most of those listed on our Blogroll (scroll way down in the column to your right).
But I detect some increase in the average length and broadening of the range. Looking way into the distant future, imagine doing all reading and writing in this space. Posts once as pithy as Holmes’s review of Langdell become longer than law review editor caps. Yet even 53-word publications are possible.
January 14, 2011 at 4:32 pm
Posted in: Culture, Law Talk
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Paying for Tenure Letters?
posted by Lawrence Cunningham
Most schools don’t pay honorariums to outside scholars to write tenure letters (that vital component of a professor’s application for promotion and tenure), whether on internal promotions or about lateral recruits. At least that’s been my experience, based on writing about 25 of them since my own first tenure 15 years ago and requesting them on behalf of a couple of schools.
Instead, this task seems to be a service duty each tenured academic has to the broad academy as a whole. True, writers invariably receive a warm “thank you” note from the Dean at the requesting school and appreciation from the home Dean and Provost as part of their annual review of faculty contributions. There’s also the intrinsic reward of engaging deeply with a single scholar’s body of work and writing a report for an audience not necessarily expert in the particular field. 
On the other hand, writing a thoughtful and fair tenure letter requires many hours of work, at least five and often ten or sometimes more. As a result, at least one school pays $250 for the service.
Should other schools pay money too or should that school stop spending money it need not spend? My vote is to save the money. If offered the honorarium, I favor asking the school to reallocate it to PILF (the Public Interest Law Foundation) to fund stipends for law students working in the public interest.
What do you think?
October 28, 2010 at 10:11 am
Posted in: Law School, Law School (Hiring & Laterals), Law School (Scholarship), Law Talk, Uncategorized
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Scholarship 2.0: The New Frontier?
posted by Danielle Citron
I have been advising the Maryland Law Review for some time now and this year’s Board has been particularly creative in their thinking about scholarship and its potential impact. They have an interesting idea for the future of legal scholarship, one that I believe worth sharing and discussing. The Maryland Law Review currently publishes in print and online professional and student pieces and would like to ensure that the pieces facilitate ongoing dia
logue. In a turn that I will call Scholarship 2.0, the Maryland Law Review would like to harness interactive technologies on their website to permit readers to engage with the work and to post videos on the topic. As the Board has explained to me, they would like to to use technology “not only to spread the ideas expressed in the pieces, but also to provide an opportunity for the work to change, grow, and evolve as more people are exposed and have a chance to contribute to the conversation.”
To that end, the Maryland Law Review will soon begin to utilize technologies to begin that conversation, including posting videos of interviews with professor, or taped debates between them, regarding articles. Readers will have a chance to take part in the conversation through a Comment feature. As the Editor in Chief Maggie Grace and Senior Online Articles Editor Ted Reilly told me: “The best products of academia are not closed from debate or question, but rather are discussed, challenged, and strengthened by wider discourse. It is our hope that with the addition of these technologies we can foster dialogues that help viewers pose questions, challenge accepted notions, share novel ideas, and develop a greater understanding of law and its application.” How else might the Maryland Law Review put this idea into practice? Any thoughts or suggestions for my enterprising students?
October 4, 2010 at 9:21 am
Posted in: Bright Ideas, Current Events, Law Talk, Social Network Websites
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Tear-Jerker in Case of Lottery-Winning Octogenarian Sisters
posted by Lawrence Cunningham
Widely reported as a feud over a half-million dollar winning lottery ticket between two octogenarian sisters, close friends their first 70 years, it turns out to have been a fight over a $250 debt. In 1995, Terry Sokaitis and Rose Bakaysa, each now close to 90 years old, signed a written agreement saying they were partners in a longstanding and fun gambling program, winnings to be split equally. In 2005, a lottery ticket Rose bought with their brother won $500,000. Terry wanted her share but Rose refused. Rose said they rescinded the 1995 deal during a heated 2004 telephone argument.
Within weeks, Terry sued Rose for breach of contract. In court, Rose also argued that any deal they had was unenforceable because it amounted to an illegal bargain under state anti-gambling statutes. As I reported, the Connecticut Supreme Court resolved that narrow issue against Rose, showing how the ancient statute was functionally superseded by a host of legalized state gambling that put contracts to split lottery ticket winnings outside its scope. Back in the trial court, five years after Terry sued, Rose asserted the rescission defense and after a trial in the spring, a judge found that rescission valid.
The unreported opinion adds details to this sad tale, sisters tight for 70 years, through marriage, illness, and all, turning bitter when they couldn’t agree on whether Rose had loaned Terry $250 or $100, and over whether Terry had any money to repay her. During the heated talk that resulted, Terry yelled that she didn’t want to be Rose’s gambling partner anymore and Rose said okay. The sisters haven’t spoken since. That Rose won the half million with their brother a year later seems to have sealed the bitterness. In her opinion after trial, Connecticut Judge Cynthia Sweinton reprints a letter Terry wrote Rose as their legal battle intensified. It’s a tear-jerker, be warned, but it follows. (I have corrected some spelling and grammar mistakes.)
Judge Sweinton, before concluding her opinion, wrote resonantly: “There is something in this tragedy that touches most people. While the court may be able to resolve the legal dispute, it is powerless to repair the discord and strife that now overshadows the once harmonious sisterly relationship.”
August 16, 2010 at 4:22 pm
Posted in: Contract Law & Beyond, Law Talk, Psychology and Behavior, Weird
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When Law Reviews Compete, You Win!
posted by Glenn Cohen
Ok that’s actually a rip-off of the gimmicky slogan of “Lending Tree,” but I have been thinking recently (as many do at this time of year) about the law review submission process. In particular, I have been thinking about the expedite element, and why it happens. One answer is that we are all prestige-whores (er..lovers) and that the only thing we value is the rank of the school where the law review is housed.
That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of view of the submitting authors” advisedly, because there are many axes on which law reviews differ. Even in my short time as an academic, the reviews I have worked with have varied significantly as to the quality of substantive comments, the likelihood they would stick on timeline, whether they use track changes to make it easy to review their alterations, etc. The problem is that these are all things I have only discovered AFTER working with them.
This is in some ways similar to health care purchasing by an individual consumer – quality is opaque, and gathering the necessary information would be too costly to do on my own (there is a further problem with health care that even when information is available such as report cards for hospitals created by state agencies, as I discuss here, many patients tend to ignore them and/or privilege word of mouth appraisals). Further, there is an additional inter-temporal problem in that each law review’s board (and thus quality) and policies changes on a regular basis such that information becomes stale quite quickly. Even in an institutional-memory-obsessed journal like the Harvard Law Review with a long tradition, there is a period called “transition” when the 2Ls take the reigns and as a body can change many of the facets of the reviews process, including things like the number of stages of editing, etc.
Is this problem intractable? Yes, and no. Law reviews could advertise and contractually commit themselves to particular types of terms as soon as the submission season starts – for example, issues will come out within one month of issue date, to give one example. (I put to one side other kinds of differentiation – for example accepting longer articles when other journals do not, since that will change at most to whom one submits, and even then most of us are risk-averse enough to be likely to shorten our papers to fall within the guidelines of the larger number of journals). True, it is very very unlikely that any of us would sue a law review over the failure to meet that term of publication date, but even the promise itself might be enough to satisfy us and set up a more desirable norm. Are there enough of these kinds of terms on which journals could compete that would counterbalance the incentive to merely pick the best ranked journals? I am not sure, it seems plausible it might matter within rough journal peer groups, but I would be curious if others have ideas of what kinds of terms they would like to see law reviews compete or converge on? Indeed perhaps some enterprising law review editors may be reading this very blog…
August 10, 2010 at 9:33 am
Posted in: Law Rev Contents, Law Rev Forum, Law School, Law School (Law Reviews), Law Talk, Uncategorized
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Prop 8, Gays, Homosexuals, and What is In a Name
posted by Glenn Cohen
Like many, I was glued to the blogosphere waiting for the decision in Perry v. Schwarzenegger yesterday, the Prop 8 decision. One seemingly superficial issue I have been interested in is how the court would refer to the class to which the plaintiffs belonged: as “gay” men and women or homosexuals?
I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point said to me: “Oh, and we have a really vibrant homosexual community.”
I was a little amused that he focused on this element of the city, though perhaps something I said had primed him, or this was just a testament to the perceived role of gays in the rise of the creative classes and a city’s hipness factor. What surprised me the most, though, was actually his language — his use of the term “homosexual” in a positive way. My own anecdotal experience is that people use the term “homosexual” when they want to ascribe negative connotations, and “gay” when they want a more neutral or positive ones. A quick (and very unscientific) google search of the terms “homosexual marriage” and “gay marriage” this morning seems to confirm this.
On this view it is unsurprising, then, that Judge Walker in the Perry opinion repeatedly refers to the plaintiffs and their group as “gays and lesbians”. What is more surprising is that I expected I would find a split in usage between Justice Kennedy and Scalia’s majority and dissenting opinions in Lawrence v. Texas, with “homosexual” being dominant in the Scalia’s opinion. Interestingly, both opinions use “homosexual.”
So here are a few questions I am thinking about: Was my initial instinct that which term to use reflects a political valence correct? Does it instead reflect something else? Geography (think of the student driving me)? Age? A change in time over which term is more acceptable, a little bit like the way the term “handicapped” has given way to “disabled” to “people with disabilities”? Is the usage of “homosexual” by people who do not want to expand rights for the group a subtle attempt to bring the “sex” (in the intercourse sense) back into people’s minds? Which word do you use in the classroom? Would Lesbian, Gay, and Bisexual students be offended by the term “homosexual,” and if so, is that a good reason not to use it?
August 5, 2010 at 11:26 am
Posted in: Civil Rights, Constitutional Law, Current Events, Feminism and Gender, Law and Humanities, Law School, Law School (Teaching), Law Talk, Supreme Court, Uncategorized
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Reading Recommendations
posted by Gerard Magliocca
I want to highlight two terrific new pieces of scholarship that you should check out. I read them on my trip.
The first one is A Structural Vision of Habeas Corpus by Eve Brensike Primus. Here is the abstract:
For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants’ federal rights. Indeed, many states systematically violate criminal defendants’ federal rights with impunity. This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when a state routinely violates its criminal defendants’ federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.
The second one is Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy by David O. Stewart. It’s a blow-by-blow account that is full of fascinating details that I’m finding really useful as part of my Bingham research. The discussion of the bribes that were used to buy Johnson’s acquittal is especially fun.
August 5, 2010 at 6:25 am
Posted in: Law Talk
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Faculty Recruitment (Low Cost) Wish List
posted by Glenn Cohen
Thanks to Dan, Angel, and the rest of the Concurring Opinions crew for inviting me to blog this week. I’ll try to vary posts between scholarship/ideas, faculty life, and pop culture (and all permutations thereof).
With the FAR form due later this week, all those of us who went through this process as entry-levels can commiserate with our students, fellows, etc, just beginning the process. Love or hate the entry-level recruiting process, one thing seems obvious to me: we can make it better. To that end I invite readers to add to this thread with their suggestions for improving this process, with one proviso: make it cheap! If you could change something in the process at low or zero cost, what would it be? I give a few of my own answers below, but hope others will contribute through the comments:
1. Re-work the course listings to be selected on the FAR form. As I recall there were 4-6 differently named courses in my primary field (law and medicine, health law), while for others their field was not an option at all. I recognize that nomenclature is fluid, but it seems to me it would not be that hard for someone at AALS to compare their categories to course offerings at 5 member schools and bring them more into accord.
2. One tower, please. Did you know the Faculty Recruitment process measures not just legal acumen and collegiality but athletic ability? You have if you have ever tried to get from the top floor of one tower of the Marriot Wardman tower to the top floor of the other in less than 5 minutes using the stairs. Candidates are stressed and late, interviews go over, chaos ensues. Is it really impossible to put every committee in one tower, if you are booking the conference several years in advance? I know committees are of different size, and also opt for rooms of different grandeur, but a tighter squeeze or less opulence would be easy prices to pay for less rushing.
August 2, 2010 at 9:37 am
Tags: FAR form, Recruitment
Posted in: Law School, Law School (Hiring & Laterals), Law Talk, Uncategorized
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The Six Figure Law Review Article
posted by Lawrence Cunningham
What’s the economic value of that scholarly article many law professors will write this summer? For the many schools that award scholars summer research grants, it is at least the value of that allocated to the piece—usually $12,500 to $20,000 at most US law schools.
But an excellent article well-placed also often translates into annual salary increments above a school’s merit pay raise pool. That can bump a raise up anywhere from 1% to 3%, or more, depending on the article and how one’s home-school peers do.
For a mid-career scholar earning a base salary of $200,000, say, that means as much as $6,000 or more. For that person, adding $6,000 a year for life, the article’s economic value gets well into the six figures (even discounting to present value). Read the rest of this post »
May 25, 2010 at 11:47 am
Posted in: Law School (Hiring & Laterals), Law School (Scholarship), Law Talk
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“We Own GM” and Other Rhetorical Illusions
posted by Lawrence Cunningham
Misleading talk continues to plague discussions of government’s financial intervention into private enterprise, including automotive, insurance and banking companies. Latest talk, centered at General Motors but applicable to AIG, Citigroup and others, is misuse of three abstract notions: taxpayer, ownership and investment.
Standard talk sees US government’s capital transfers from the federal purse to private corporations as resulting in “taxpayers owning investments” in these companies. The upshot of this speech is the illusion that (a) people who pay US federal income tax (b) now own a bit of these corporations and (c) are entitled to enjoy investment return from that. All these conceptions are misleading. Clinging to them will complicate the process of government rescue and revival at the heart of this effort. Read the rest of this post »
June 2, 2009 at 10:09 am
Posted in: Corporate Finance, Current Events, Law Talk
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American Law Institute approves the Principles of the Law of Software Contracts
posted by Bob Hillman
Thanks to Dave Hoffman, who just completed a very successful visit at Cornell Law School, for inviting me to be a guest blogger for the month. Maureen O’Rourke, the Associate Reporter on the Principles of the Law of Software Contracts, and I are posting the following to acquaint readers with the Principles and also to respond to some criticism of one section of the Principles that creates, under certain circumstances, an implied warranty of no known material hidden defects in the software.
On May 19, the membership of the American Law Institute unanimously approved the final draft of the Principles of the Law of Software Contracts. As the Introduction to the project states, the Principles “seek to clarify and unify the law of software transactions.” The Principles address issues including contract formation, the relationship between federal intellectual property law and private contracts governed by state law, the enforcement of contract terms governing quality and remedies, the meaning of breach, indemnification against infringement, automated disablement, and contract interpretation.
The Introduction to the Principles explains further that “[b]ecause of its burgeoning importance, perhaps no other commercial subject matter is in greater need of harmonization and clarification. . . . [T]he law governing the transfer of hard goods is inadequate to govern software transactions because, unlike hard goods, software is characterized by novel speed, copying, and storage capabilities, and new inspection, monitoring, and quality challenges.” Many of the rules of Article 2 of the UCC therefore apply poorly to software transactions or not at all, and the Principles are intended to fill the void.
The Principles are not “law,” of course, unless a court adopts a provision. Courts can also apply the Principles as a “gloss” on the common law, UCC Article 2, or other statutes. Nor do the Principles attempt to set forth the law for all aspects of a transaction, but instead rely on sources external to the Principles in many areas.
The Principles apply to agreements for the transfer of software or access to software for a consideration, i.e., software contracts. These include licenses, sales, leases, and access agreements. The project does not apply to the exchange of digital media or digital databases. It applies a predominant purpose test to determine applicability to transactions involving embedded software or software combined in one transfer with digital media, digital databases, and/or services.
We are the Reporter and Associate Reporter of the software principles. We have been greatly aided by our advisors, consultative group members, ALI Council members, liaisons from the National Commissioners on Uniform State Law, Business Software Alliance, and the American Bar Association, and many additional lawyers from industry and other groups who, over the last five and one-half years, have met with us, talked with us on the phone, and exchanged e-mails with us. We believe the project moved along smoothly largely because of the efforts of all of these groups and individuals.
Nevertheless, in the two weeks leading up to approval in May, we received communications from a few software providers evidencing concern largely with one section of the Principles. Section 3.05(b) creates a non-excludable implied warranty that the software “contains no material hidden defects of which the transferor was aware at the time of the transfer.” The section only applies if the transferor receives “money or a right to payment of a monetary obligation in exchange for the software.” Because the section may be the most controversial provision, we devote the rest of this post to the issue.
June 2, 2009 at 8:12 am
Tags: American Law Institute, software contracts
Posted in: Consumer Protection Law, Contract Law & Beyond, Cyberlaw, Intellectual Property, Law Talk, Technology, Uncategorized
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Layoffs, Layoffs Everywhere
posted by Jaya Ramji-Nogales
Though news of law firm layoffs, not to mention offer rescission and complete dissolution, has been brewing for some time now, government and non-profit jobs, though harder to come by, have seemed relatively more secure. Not so, as I learned from a former colleague at the ACLU last month, where Madoff-related investments forced layoffs of ten percent of the workforce, including several staff attorneys. As a former staff attorney at the ACLU, those positions appeared to be some of the most secure in the legal profession — yours to keep for as many years as you wanted, until poof! they disappeared. And just last week, a former student of mine reported that the Philadelphia District Attorney’s Office rescinded the thirteen offers it made this year (in contrast to the 25 it extends in a normal year) to third-year law students. As another student on the public interest job hunt noted today, “I thought that was why I became a professional!” Indeed — that was the deal we all signed up for; we’d put our noses to the books for three long years, incurring piles of debt, but we’d still have jobs in an economic downturn. Wouldn’t we? While job losses may be more severe outside the legal profession, a law degree is certainly no panacea, and some may begin to wonder exactly what is the value added from three years of expensive education. At the moment, I’m not sure I have an answer for my talented and hardworking students struggling to find permanent employment after graduation.
February 23, 2009 at 9:31 pm
Posted in: Law Talk
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Law Talk: Judith Maute on Contracts, Scholarship, and Movie Making
posted by Nate Oman
It’s been a while since I have been able to put together a Law Talk episode, but I still hope to keep this podcast going with two new episodes. The first new episode is simply a collection of the Battlestar Galactica interviews conducted by Dan, Dave, and Deven a couple of months ago. Enjoy all you affianados of law and science fiction!
My second new episode is an interview with Professor Judith Maute of the University of Oklahoma. As far as I know, Professor Maute has the distinction of being the only law professor who has ever had one of her law review articles turned into a movie. In this case, the movie is the recently released documentary “The Ballad of Willie and Lucille,” which looks at the iconic contracts case of Peevyhouse v. Garland Coal & Mining Co. The film was recently given the “Chris Award” by the Columbus Film Fesitival, and in our interview Professor Maute talks about teaching, historical research, movie making, judicial bribery, and the importance of a lawyer’s appreciation for facts. Enjoy!
You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.
October 2, 2008 at 4:48 pm
Posted in: Contract Law & Beyond, Culture, Law Talk
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