Category: Law Talk

5

Prop 8, Gays, Homosexuals, and What is In a Name

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?

0

Reading Recommendations

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.

2

Faculty Recruitment (Low Cost) Wish List

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.

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7

The Six Figure Law Review Article

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 More

8

“We Own GM” and Other Rhetorical Illusions

illusion-spinning-circlesMisleading 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 More

5

American Law Institute approves the Principles of the Law of Software Contracts

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.

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0

Layoffs, Layoffs Everywhere

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.

0

Law Talk: Judith Maute on Contracts, Scholarship, and Movie Making

jmaute.jpgIt’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.

4

Roars on Auditor Liability

Amid revolutionary proposals to renovate US financial regulation, auditing firms continue to push for caps on their liability for bothced audits. In a report to the Treasury Department’s Committee on the Auditing Profession, the profession’s lobbying affiliate, Center for Audit Quality, collates pending cases against large firms to dramatize their campaign.US treasury_department_4.jpg

They report 90 pending cases asserting aggregate damages exceeding $140 billion, with a third of the cases seeking more than $1 billion apiece and 7 alleging more than $10 billion. The firms say these claims, altogether, support their view that their liability exposure is unfair to them and dangerous for the financial system. The only solution, they urge, is having Congress set statutory dollar caps on claims against them, along with exclusive federal jurisdiction over these cases using a light standard of liability, scienter instead of negligence.

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0

Law Talk: A Roundtable on Justice and Insturmentalism in Private Law

RoundTableKnights.jpgOver the weekend, the Association for the Study of Law, Culture, and the Humanities held their annual conference at Boalt Hall. This podcast episode is a recording of a roundtable discussion on justice and insturmentalism in private law, which was organized for the conference by Jeff Lipshaw. The participants include Pete Alces (William & Mary), Robin Kar (Loyola LA), Alan Calnan (Southwestern), and Nate Oman (that’s me). The discussion focuses on the philosophy of tort law and contract law, with Pete sounding a skeptical note using evolutionary biology. 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.