Category: Sociology of Law

Gallacher on Cite Neutrality

The law should be freely accessible to all, but in many ways it is not. Ian Gallacher’s Cite Unseen is a brilliant piece that works to solve this problem on two levels: 1) it offers keen insights about the legal profession, and 2) exposes an easily avoidable injustice perpetuated by the legal system’s inertia and neglect. It turns out that 1) explains a lot about 2), as I’ll try to show below.

1) I believe Richard Posner has called the Bluebook a “hypertrophy of ritual”–an elaborate manual of propitiation as involved (and useless) as the pyramid tomb of a Pharaoh. Given the near-universal availability of hyperlinking and searchable texts, why does anyone still bother with figuring out whether a committee report needs to be in small caps or italics? Gallacher suggests that the answer may by psychological:

Law school is place of almost existential doubt, a world in which the Socratic teaching method replaces knowledge with questions and understanding with incomprehension. For many law students, The Bluebook is a binary state refuge in the dismal swamp of hypothetical ambiguity that can be law school classes, replacing . . . blurred doctrine with a sharp focus, and principles with rules.

An almost Linnaean taxonomy (reflecting Langdell’s geological approach to precedents) vests law with the trappings of science. Just as a posh Etonian can spot a Cockney pretender on the basis of any one of thousands of well-trained social gestures, the elect can instantly identify the work of an outsider who writes “F. 3d” instead of “F.3d”.

Many of us are annoyed by this aesthetic tic masquerading as scientific precision. But where’s the injustice?

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The Care/Profit Tradeoff in Nursing Homes

We’re often told that inequality helps keep the US economy efficient. Cut regulation and give high rewards to those at the top, and they’ll work hard to cut costs and compete on quality, providing better and cheaper goods and services for all. Private equity firms like Carlyle Group might be considered the apotheosis of such a market-based approach, taking over companies and forcing them to meet market imperatives.

Here’s a fascinating NYT study of their influence on the nursing home industry, which “compared investor-owned homes against national averages in multiple categories, including complaints received by regulators, health and safety violations cited by regulators, fines levied, [and] the performance of homes as reported in a national database known as the Minimum Data Set Repository.” The findings describe an extraordinary combination of business efficiency and deflection of legal responsibility:

The Times analysis shows that . . . managers at many . . . nursing homes acquired by large private investors have cut expenses and staff, sometimes below minimum legal requirements. Regulators say residents at these homes have suffered. At facilities owned by private investment firms, residents on average have fared more poorly than occupants of other homes in common problems like depression, loss of mobility and loss of ability to dress and bathe themselves, according to data collected by the Centers for Medicare and Medicaid Services. The typical nursing home acquired by a large investment company before 2006 scored worse than national rates in 12 of 14 indicators that regulators use to track ailments of long-term residents.

The law plays an important role in preventing accountability here; “private investment companies have made it very difficult for plaintiffs to succeed in court and for regulators to levy chainwide fines by creating complex corporate structures that obscure who controls their nursing homes.” So perhaps the key “innovation” here was the decision to aggressively reduce care and skillfully deploy legal strategies to prevent any liability for injuries that reduced care caused. It certainly worked well for investors; “A prominent nursing home industry analyst, Steve Monroe, estimates that [one investment group’s] gains from [its sale of a nursing home chain] were more than $500 million in just four years.”

I have to confess that I’ve always wondered what business practices could “create the value” that’s resulted in such extraordinary gains at the top of the income scale. The Times has done us a great service by putting a human face on some of them. . . and on the legal strategies that make them possible.

Financing Arms Races, Health Edition

As the subprime mortgage meltdown continues, we’re seeing the ugly side of credit expansion. Consider how Countrywide approached its customers:

[T]he company’s commission structure rewarded sales representatives for making risky, high-cost loans. For example, according to another mortgage sales representative affiliated with Countrywide, adding a three-year prepayment penalty to a loan would generate an extra 1 percent of the loan’s value in a commission. While mortgage brokers’ commissions would vary on loans that reset after a short period with a low teaser rate, the higher the rate at reset, the greater the commission earned, these people said.

Though many celebrated ever-rising home prices, more discerning commentators (like Schiller, Frank, and Warren) saw the run-up in paper wealth in a darker light. Buyers may be getting a bit more house for their money, but they were also fiercely competing in an auction for space and position. The gap between housing haves and have-nots widened, giving the latter ever more worry about their chance of owning a piece of the American dream.

Now we might be seeing a similar dynamic in cosmetic health interventions. As patients turn to no-interest loans for health care, we can expect ever more demand for “$3,500 laser eye surgery, $6,000 ceramic tooth implants or other procedures not typically covered by insurance.” Just as the leverage behind a 30-year mortgage accelerates a bidding war for houses, this new frontier of financing will increase the social pressure to conform–to ditch those glasses, get rid of even minor dental imperfections, etc. As the article notes, “consumer debt experts warn that as more people try to bridge widening gaps in their health insurance, paying for medical care on credit could plunge the unwary into a financial crisis.” But as more begin to do so, the phenomenon becomes self-reinforcing: physical imperfection starts to signal financial distress and thus becomes ever more stigmatic.

Though the loans described in the article are small, I have a sense they are part of a larger trend in the marketization of health care. Presently, US health expenditures are much higher than other countries’ due to (inter alia) extraordinary administrative costs, doctors’ political power to limit their supply, and a third-party payment system that obscures costs for patients. If “consumer-directed” health care manages to shift those costs directly to patients, health providers may well turn to financing options to “spread the pain” of a big bill over five, ten, or even thirty years.

Moreover, libertarians who want to get rid of Medicare might see the financing plans as an ideal way of moving responsibility for health care finance from the state to individual families. As parents enter retirement, they could set up a reverse mortgage on their house to pay for health care. If those assets run out, I assume libertarians would want to see the parents turn to their children for help–say, asking each to take out a $300,000 health care mortgage for their parents’ care. Perhaps big finance can perfect the libertarian dream of complete personal/familial responsibility for health care.

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Shunning Duke’s Faculty

listening_statement_p.jpgA little while back, former Judge, and law school Dean, Joseph Bellacosa (St. John’s) proposed that members of the public shun the 88 Duke faculty members who sponsored an advertisement in the early days of the Nifong investigation implicitly condemning the accused lacrosse players. Bellacosa argued that

[A]lthough the group [of faculty members] can’t technically be charged with crimes – though abandoning your young and endangering youth sure do come close to real definable crimes – there are ways these professors can be held accountable. The identities of the 88 professors should be posted in significant ways and places, including in the media and on the Internet, so that they may be known for what they have done.

The likely howls of protest from the tenure police, university guild apologists and free-speech absolutists notwithstanding, the professoriat should not be shielded from appropriate public condemnation for their misconduct. Their dormant consciences and sensibilities should be reawakened to the abhorrent nature of the actions they inflicted on their own students.

I am regrettably late commenting on Judge Bellacosa’s article, and so this post may be stale. But still. What the heck is going on here?

Finding the original ad put up in 2006 isn’t so easy. A follow-up statement by Concerned Duke Faculty member has dead links, and Duke’s African-American studies department has removed the page from its server. Fortunately, this blog post pdf’d the ad, which I’ve copied to the right. Unfortunately, Bellacosa doesn’t say, and I don’t understand, exactly what was so wrong about this statement. There are some rumors that the students whose voices are being spotlighted are composites. That would be bad, but not a deadly sin. And the heart of the ad – the statement by the professors themselves – seems to me to consist of a set of vague generalities that verge on truisms, and aren’t objectionable:

“Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday.”

Regardless, we’re supposed to shame and shun the signatories to the ad. Why?

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Rosen’s Crabbed View of Judicial Temperament

RosenBook.jpgI recently finished Jeffrey Rosen’s The Supreme Court (can you say “read” if you listened to it on your iPod?), and I found myself rather underwhelmed with Rosen’s analysis of what he took to be his central theme: judicial temperament. In many ways Rosen’s book is very good. It makes the springes of constitutional law approachable for a general audience, and provides a chatty and gossipy look at the Supreme Court that manages to provide a real sense of some of the personalities of the justices, as when he describes William O. Douglas as “a judicial lounge act.”

Rosen presents us with a white hats vs. black hats vision of the Supreme Court. The good guys are genial institutionalists like John Marshall, Hugo Black, William Rehnquist, and — most of all — John Roberts. The bad guys are brilliant loners like Oliver Wendell Holmes Jr., William O. Douglas, and Antonin Scalia. In Rosen’s book judicial temperament refers to the ability to husband and increase the legitimacy of the Supreme Court by behaving in a statesman like way and refusing to allow abstract philosophies dictate imprudent results.

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Beware of Geese Bearing Gold

goldenegg.jpgThe NYT Mag. had a tricky dilemma yesterday: how to devote an issue to rising inequality without spooking the advertisers who hock multi-million-dollar vacation condos with space for “mega-yachts.” An old bromide came to the rescue: don’t kill the goose that lays the golden egg. Echoing Arthur Okun, Roger Lowenstein warns us of a tragic choice: “how can you promote equality without killing off the genie of American prosperity?” He reminds us that the most egalitarian time in American history was that quagmire of stagflation, the seventies:

Remember that while the decade may have been a high-water mark for American egalitarianism, the country was also in its worst economic funk since the Great Depression. Unemployment and inflation were raging, growth was tepid and the stock market was depressed. An economist named Alan Greenspan termed it “the Great Malaise.”

Lowenstein argues that the “cures” for the seventies (deregulation, free trade, and financial speculation) all accelerate inequality. And if we try to look a bit more like a European social democracy, watch out: “the price for being Belgian is steep: [its] median disposable income — what people have left to spend after they pay taxes and collect welfare-type payments — is only 72 percent as high as ours.” But don’t worry–we can educate ourselves out of the gap, since “college grads make more than 40 percent more than high-school grads[, and] those with postgraduate degrees earn twice as much.”

The NYT editorial page, under a bit less pressure to sell ultraluxe adspace, has a more sober view:

New college graduates . . . have been told repeatedly that a college degree is an open sesame to the global economy. But that’s not necessarily so, according to new research by two economists at the Massachusetts Institute of Technology, Frank Levy and Peter Temin. . . . [A] college degree does not ensure a bigger share of the economic pie for many graduates. . . . [Rather,] an outsized share of productivity growth, which expands the nation’s total income, is going to Americans at the top of the income scale. In 2005, the latest year with available data, the top 1 percent of Americans — whose average annual income was $1.1 million — took in 21.8 percent of the nation’s income, their largest share since 1929.

That’s income, not wealth–and the latter measure is far more skewed. Moreover, asset inequality has grown since the housing boom put a chasm between families who bought last century and those who have to face the market now.

I’ve got a few more bones to pick with Lowenstein beneath the fold. . . .

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Scientists Manques?

Ever wonder why Richard Posner has gotten so interested in pragmatism? Well, James R. Hackney’s book Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity suggests that he’s right to be looking for a post-scientific discourse for the style of law & economics he advances. Here’s an abstract of Hackney’s work:

The current dominant strand of legal economic theory is what is commonly referred to as law and economics (but more appropriately labeled “law and neoclassical economics”). [This movement] gained its claim to objectivity based on the philosophical premises of logical positivism and the analytic philosophy movement generally. . . . In understanding the claim of objectivity in the law and neoclassical economics movement and why that claim can no longer be sustained (in part due to new conceptions of science and developments in philosophy) it is crucial that legal-academics have a fuller understanding of developments in science and how they shape our general cultural ethos.

Hackney synthesizes a wide variety of CLS and socio-economic critiques to show how “law and economics often cloaks ideological determinations—particularly regarding the distribution of wealth—under the cover of science.” Toward the end of the book he tentatively points a way forward for the discipline, urging greater humility about theoretical claims and greater reliance on empirical work. In other words, the cure for scientism is genuine science.

I have some sympathy with this perspective, and new awareness of “uniformity costs” in both law and legal scholarship backs up Hackney’s position. But the problem of “scientism” may extend beyond law and neoclassical economics…

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Don Imus and Megan Kanka In A Soundbite Nation

Over at BlackProf, Darren Hutchinson has a good post about the understandably strong response to the comments of shock-jock Don Imus. Here’s a taste:

How do persons concerned with racial justice convince people to examine structural racism with the same level of intensity as they devote to incidents such as Nappy-Gate? When idiots like Imus (and Lott and all the other racists du jour) have moments of Freudian slippage, Sharpton, Jackson and others respond; the idiots apologize; and the racist “moments” pass. Victory! But what about the next day? Racism in its structural and individualized forms persists. Is it possible to capitalize on moments like these to bring attention to issues far more dangerous and pervasive than Imus (like conjoined poverty and racism)? Does intense focus on idiot du jour racism, rather than structural racism, make the latter even more obscure and beyond remediation?

I think this is an extremely important point. Events like the Imus fiasco have multiple pathogenic results. They make millions of people feel good about their petty racisms because “I never would have said anything that stupid and offensive.” They create excellent opportunities for individuals and institutions who promote, or benefit from, racism to speak out against Imus and publicly document their supposed opposition to racism, thus innoculating them against future criticism. Most of all, they obscure potent forms of institutional discrimination by creating the impression that Imus-like comments are the prototypical form of racism that we should all worry about.

Ironically, I fear most the suggestion that events like this reduce racism because they generate an important public debate about race. Any public debate happening in the aftermath of Imus seems to be a sideshow obscuring the main event – institutional racism that lacks fingerprints or soundbites, and operates silently and effectively throughout America’s day to day. The Imus affair reminds me a bit of the aftermath of Megan Kanka’s brutal abduction and killing. As bad as that individual case was, the public debate and legislative response – targeting the comparatively rare child sexual abuser who victimizes strangers- completely obscured the much more significant child sexual abuse problem in America: sexual assaults by close friends and family members and, in particular, step-dads and their equivalents. (Robin Wilson’s article remains a critical piece of this literature.)

As a general matter, if CNN can’t describe an issue in 60 second or less, it’s not a problem our society can acknowledge or address. Deep seated societal racism cannot be captured in a clip. Don Imus can be. The consequences? We learn that Imus = racism. Punishment and apology follows. And a relieved nation moves on.

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Preaching in the Court House: An Experiment in Blog Advertising

At last January’s AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one’s piece at other schools. Perhaps blogs can be used in the same way. Hence this post.

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Xoxohth 1.2: The Whys and Wherefores

[This is Part I, Section 2, of the project I announced here. (Part 1.1 is here.) The goal of today’s installment is to present a diversity of views on why people spend time on Xoxohth, drawing largely on the voices of posters themselves.]

inkblot.cgiI’ll start by acknowledging an uncomfortable fact. This project suggests, and perhaps even reinforces, that critique of academic life often bandied about by the popular press: I’m asking a minor question, focusing on the uninteresting choices of marginal members of society, and using a methodology of debatable validity.

I felt bad about this for a while. And then I realized that the next best use of my time is grading: a similar process, but with higher perceived stakes.

Forward. The issue for today is why people continue to spend substantial amounts of time on XO. The question arises from the obvious point that students and lawyers have many ways to spend their time. Most of those ways are unlikely to lead to professional embarrassment if publicized, and may even enable individuals to build reputations for probity and acuity. It is odd, then, that hundreds or thousands of students and lawyers devote significant chunks of their free time to talking anonymously on XO. What gives?

It seems to me that there are a few motivations in play: entertainment, a search for information, the need for community, and the pleasures of transgression. Before we begin, let’s get some reader input. What motivation do you think drives XO’s traffic?

Why Do People Spend Time on XO?
The Community
The Transgression!
Information (Giving and Getting)
Entertainment
Other
  
Free polls from Pollhost.com

Now that we’re done with the scientific polling, let’s look at the qualitative data.

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