Archive for the ‘Uncategorized’ Category

At CELS, Hoping to Blog

posted by Dave Hoffman

I’m at the annual Conference on Empriical Legal Studies, hosted by USC.  Though I’m not expecting a repeat of last year’s fireworks, if anything noteworthy happens I’ll be sure to blog it. In the meantime, if you are interested many of the panels (but not mine, sadly) will be webcasted here.  I imagine that the Law and Politics channels in particular will be of interest to those who like that sort of analysis.

  November 19, 2009 at 10:56 pm   Posted in: Uncategorized   Print This Post   One Comment

BRIGHT IDEAS: Barry Friedman’s The Will of the People

posted by Danielle Citron

Gerard recently blogged about Barry Friedman’s exciting new book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, and lucky for us at CoOp, I had a chance to talk to Friedman about the book.  Friedman is the Vice Dean and Jacob D. Fuchsberg Professor of Law at New York University School of Law whose vast and impressive scholarship focuses on constitutional theory and judicial decisionmaking in constitutional cases.   He answered several questions about the book; I produce his remarks below.

SO, WHAT LED YOU TO WRITE THIS BOOK?

FRIEDMAN:  The proper role of judicial review has always been one of the real challenging questions in constitutional law.  The goal of most scholars has been to find a theory that reconciles judicial review with democracy, necessarily seeing the two as inconsistent.  From the time I began teaching I hoped to jump into that debate – except that I never saw the two as inconsistent.  Whether it was Planned Parenthood v. Casey, Furman v. Georgia or Bowers v. Hardwick, I saw the Court as responsive to public opinion.  As some readers of the blog no doubt know, I wrote several (infelicitously named) law review articles looking at the question of when the “counter-majoritarian difficulty” took hold.  I then read a lot of political science.  Finally I decided a book was in order.

THERE ARE A LOT OF HISTORIES OF THE SUPREME COURT, AND OF JUDICIAL REVIEW.  WHAT MAKES YOURS DIFFERENT?

FRIEDMAN:  Well, the focus of most histories is on what the Court is doing at any given time – as well as why, and what the impact is on constitutional law.  Instead of focusing on the Court, my book is about how the public responded to judicial decisions, and how the interaction between the Court and the public shaped both the institution of judicial review, and the meaning of the Constitution.

DO YOU HAVE ANY PARTICULAR INTELLECTUAL ASPIRATION FOR THE PROJECT, BESIDES TELLING THE STORY?

FRIEDMAN:  Besides selling books?   Seriously, though, my hopes depend on the audience.  I certainly would like to put to rest what has been the dominant criticism of judicial review, that it necessarily trumps majority will.  That applies both in the general public and the academy (though I’m certainly more skeptical of success in the former).  But the book differs from a lot of books in one notable respect – the theory animating the history is at the end of the book, not the beginning.  There are two reasons for that.  First, on the advice of friends I came to understand that it was easier to “get” the theory having seen all the evidence.  But more important, I intended the book to suggest a research agenda.  We’ve been asking the wrong questions about judicial review for a long time; it is an auspicious moment for legal academics and their counterparts in the social sciences to pursue some new avenues, ones I believe are more apt. Read the rest of this post »

  November 17, 2009 at 9:18 am   Posted in: Uncategorized   Print This Post   No Comments

Sidebar Publishes Response to “Rethinking Free Speech and Civil Liability”

posted by Columbia Law Review

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to  Professors Solove and Richards’ article, Rethinking Free Speech and Civil Liability, by Professor Timothy Zick of William and Mary Law School.

In their article, Professors Solove and Richards propose a new theory for when civil liability for speech will trigger First Amendment protections that focuses on the nature of the government power involved.  In his response, Professor Zick critically examines the choice and meaning of power, and the boundaries that a power-defining approach would draw.

  November 16, 2009 at 8:51 am   Posted in: Uncategorized   Print This Post   No Comments

The Roberts Court (Thus Far) and the Rule of Lenity

posted by Anita Krishnakumar

In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes. 

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four¹ of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three² of the cases; Justice Souter invoked or joined an opinion invoking the rule in two³ of the cases, while Justices Breyer, Roberts, and Thomas did so only once.⁴ Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.

Upshot:  Eskridge’s, Frickey’s, and Garrett’s finding that the rule of lenity plays a role in just over one-fourth of the Court’s criminal statutory cases seems to be holding steady in the Roberts Court. The Court may be shifting ever-so-slightly to a more equal rate of interpretations that favor the government versus the defendant, though it is too early and the sample size is too small to tell. Perhaps most interestingly, the rule of lenity seems to be losing steam as an interpretive aid: In the past several Supreme Court terms, it almost always has been cited by justices in dissent—even in the fourteen cases in which the Roberts Court interpreted the statute to favor the defendant, it rarely (one time) relied on the rule of lenity to reach its result. In light of this trend, it may be worth asking whether this longstanding rule of statutory construction is nearing its deathbed?

————————————————————————————————-

1.  See James v. United States (Scalia and Stevens, dissenting); United States v. Santos (Scalia plurality opinion, Stevens concurring opinion); Begay v. United States (Scalia concurring opinion); United States v. Rodriquez (Stevens joining Souter dissenting opinion); United States v. Hayes (Scalia joining Roberts dissent); Dean v. United States (Stevens dissent).

2.  See James (joined dissent), Santos (joined plurality), Rodriquez (joined dissent).

3.  See Santos (joined plurality), Rodriquez (authored dissent).

4.  Justice Breyer authored a dissenting opinion citing the rule in Dean v. United States; Justice Roberts authored a dissenting opinion invoking the rule in Rodriquez; and Justice Thomas joined the relevant portionf of the plurality opinion in Santos.

  November 15, 2009 at 1:37 pm   Posted in: Supreme Court, Uncategorized   Print This Post   One Comment

Re-igniting the Movement for Integration

posted by Rachel Godsil

Most of us recognize that our society will be stronger if our students are educated in diverse settings and our neighborhoods not divided by race or ethnicity.  Yet integration in education and housing remains an elusive goal and is often seen as secondary to measurable academic achievement or affordable housing.   

The politics of integration are also complex.  When is integration in a neighborhood cause for celebration and when has it shaded into the dreaded gentrification?  Are poor children of color most likely to be effectively educated in opportunity rich, integrated schools or will the teachers and administrations in such schools favor kids from wealthy families with helicopter parents?  These questions are real and should be topics for debate among policy makers, researchers, community residents, and parents.   

Unfortunately, this complexity and, to an even greater extent, anxiety about even acknowledging race have led many to shy away from these issues.  Not everyone, though.  Over 300 people attended a conference this past week at Howard University School of Law, entitled Reaffirming the Role of School Integration in K-12 Public Education Policy: A Conversation Among Policymakers, Advocates and Educators. The conference brought together Obama administration officials, civil rights advocates and researchers, educators, and parents.  If you are interested in the discussion, you can access the live blog here.

  November 15, 2009 at 9:16 am   Posted in: Uncategorized   Print This Post   3 Comments

Just Talkin’

posted by Danielle Citron

For those still lingering over your morning coffee, here are two quotes worth distracting you from the Sunday funnies:

Michael Arrington (TechCrunch Founder): “I’m worried about privacy–the companies out there gathering data on us, the stuff we do on Twitter, the publicly scrapeable stuff on Facebook.  It’s amazing how much data there is out there on us.  I’m worried that it can be abused and will be abused.”

Phil Malone (Harvard Law School, Director of Berkman Center for Internet and Society’s Cyberlaw Clinic explaining that viruses can deposit illegal pornography on unwitting individuals’ computers causing the innocent to be branded sexual deviants): “Sometimes the dog does eat your homework.”

Thanks to Time and the Washington Times.

  November 15, 2009 at 8:39 am   Posted in: Uncategorized   Print This Post   2 Comments

Google Books limited to “common legal heritage”

posted by Matthew Sag

On November 13, 2009, the parties in the Google Book litigation filed an Amended Settlement Agreement and a motion for preliminary approval of the amended settlement with the District Court. The amended agreement is available here. Elinor Mills at CNET has a good summary of the revised agreement.

The most significant change appears to be the narrowing of the scope of out-of-print works. The revised settlement is limited to U.S. works registered with the Copyright Office and non-U.S. works registered with the U.S. Copyright Office, or published in Canada, the United Kingdom or Australia. According to Google’s FAQ, “After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include countries with a common legal heritage and similar book industry practices.” To sweeten the deal for Australia, Canada and the UK, their publishers and authors will have their own representation on the board of the rights registry which oversees the settlement.

The Financial Times reports that 95 per cent of all foreign works will no longer be included in Google’s digital book archive. Google will have to find a way of working with international rightsholder organizations to broaden the reach of their database.

As predicted, the revised agreement now includes greater protections for rights holders who cannot be traced before a book is scanned and made available online. Money derived from orphan works will be held for 10 years and unclaimed funds will now be distributed to charities in Australia, Canada, the UK and the US. Under the previous version of the Settlement, the Registry actually benefited from failing to locate the relevant copyright owners.

The agreement does not do anything to extend the orphan works license to Google’s competitors, that will still require legislative intervention. However the most favored nation clause which diminished the Registry’s incentives to deal with third parties if and when that legislation is forthcoming has been deleted from the agreement.

There are other significant changes worth mentioning, but they will have to wait for another day.

  November 14, 2009 at 12:07 pm   Posted in: Uncategorized   Print This Post   One Comment

“On the phone with this fat chick… where my IHOP.”

posted by Alex Kreit

My criminal defense attorney friends not-infrequently lament that their clients foolishly post incriminating information to facebook, twitter, myspace, etc.  But, it turns out that social networking sites can help criminal defendants too.  From New York comes news of a robbery suspect who had the charges against him dropped because of a facebook status update that gave him a rock-solid alibi.  At the time of the crime, the now-cleared Rodney Bradford was on his computer and posted the message that is the title of this post to facebook: “On the phone with this fat chick… where my IHOP.”

Update: Though I posted this as a quick, semi-humorous, item, SueSimp raises a good and substantive point in the comments that this case presents an example of the difficulties of eye-witness ID.  The suspect in this case was originally picked out of a lineup and, if not for his facebook status update, he may very well have ended up in prison on the basis of what we now know was a mistaken ID.

  November 13, 2009 at 3:36 pm   Posted in: Uncategorized   Print This Post   2 Comments

Blogging the Drug Policy Alliance Conference 2: 10 Rules for Dealing with Police

posted by Alex Kreit

Last night, I attended a “sneak-preview” conference screening of “10 Rules for Dealing with Police,” a new video by Flex Your Rights.  Any profs out there who advise Street Law or similar programs should be sure to order this DVD once it is released (currently scheduled for late this year or early next).  10 Rules features super-star criminal defense lawyer Billy Murphy (who you may remember from his cameos on HBO’s The Wire) and provides practical and accessible guidance for dealing with the police.  The video weaves vignettes of fictionalized police encounters in with advice from Murphy about what to learn from each encounter.  Aside from including the “rules” every criminal defense attorney wishes their clients would follow about how to protect their constitutional rights (such not consenting to searches), the video also provides rules on how to be courteous to the police, etc.   I think 10 Rules will be an incredibly valuable tool for educating high school students and other lay audiences as part of “know your rights” or similar events and programs.

By the way, for those interested, DrugWarRant is providing some more detailed coverage of the Drug Policy Alliance conference.

  November 13, 2009 at 3:25 pm   Posted in: Uncategorized   Print This Post   No Comments

Blogging the Drug Policy Alliance Conference

posted by Alex Kreit

I’m currently in Albuquerque, New Mexico for the Drug Policy Alliance’s biannual conference.  The event brings together a mixture of people–from folks in the non-profit world to academics to activists–who are interested in drug policy reform issues.  This afternoon I spoke on a panel about state medical marijuana laws that included individuals involved in implementing medical marijuana laws in New Mexico, Colorado, and Rhode Island.  I offered my thoughts on the law in California, with a focus on my experience as Chair of the City of San Diego’s medical marijuana task force. It was a great discussion and especially fascinating to hear about the various approaches that states and cities are taking to the issue–for anyone with an interest in federalism, medical marijuana laws would certainly make an excellent case study.  (Speaking of which, Robert A. Mikos of Vanderbilt has a wonderful new article out considering the limits of federal supremacy in the context of California’s medical marijuana laws.)  I’m currently being dragged away from my laptop by some hungry colleagues for dinner, so I must keep this post brief.  But, I plan to blog more about California’s medical marijuana laws and my experiences in San Diego over the coming days.

  November 12, 2009 at 7:28 pm   Posted in: Uncategorized   Print This Post   2 Comments

California Law Review, Volume 97 Number 5 (October 2009)

posted by California Law Review

California Law Review, Volume 97 Number 5 (October 2009)

Comments

Headwinds to a Clean Energy Future: Nuisance Suits Against Wind Energy Projects in the United States
Stephen Harland Butler

Capital Crime: How California’s Administration of the Death Penalty Violates the Eighth Amendment
Sara Colón

Full Faith and Credit for Status Records: A Reconsideration of Gardiner
Shawn Gebhardt

Accountability for Private Military Contractors Under the Alien Tort Statute
Jenny S. Lam

Essays

Assessing California’s Hybrid Democracy
Richard L. Hasen

  November 12, 2009 at 4:47 pm   Posted in: Uncategorized   Print This Post   No Comments

Cornell Law Review, Volume 95 Number 1 (November 2009)

posted by Cornell Law Review

Cornell Law Review, Volume 95 Number 1 (November 2009)

Articles

The Structural Case for Vertical Maximalism
Tara Leigh Grove

Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?
Victoria Nourse & Gregory Shaffer

Essay

Evolutionary Theory and the Origin of Property Rights
James E. Krier

Notes

Negative Equity and Purchase-Money Security Interests Under the Uniform Commercial Code and the BAPCPA
Geoffrey M. Collins

An Uncertain Precedent: United States v. Santos and the Possibility of a Legislative Remedy
Evan Ennis

  November 12, 2009 at 8:39 am   Posted in: Law Rev (Cornell), Law Rev Contents, Uncategorized   Print This Post   No Comments

Changes on the Fourth Circuit

posted by Alex Kreit

The past week has seen some interesting developments for the U.S. Court of Appeals for the Fourth Circuit Court, where I clerked for Judge M. Blane Michael (who, in addition to being one of the most brilliant people I know, is also one of the nicest.)  Last week, President Obama announced two new nominees to the Court (one of whom once worked as a public defender) and earlier this week the Senate confirmed Andre Davis to fill a seat that has been vacant since 2000.  Davis’ confirmation tipped the balance of the Court to 6 Judges appointed by Democrats to 5 appointed by Republicans.  To be sure, we should always be careful not read too much into a court based on how many of its members were appointed by Democrats versus Republicans.  Still, the number does provide a stark (if overly simple) contrast to the state of the Fourth Circuit just six years ago when the New York Times proclaimed it to be “the shrewdest, most aggressively conservative federal appeals court in the nation.” And after President Bush won reelection in 2004, most observers believed that the Court would become even more conservative.

So, what happened?  Unexpected events can be blamed in part for the shift–specifically, Judge J. Michael Luttig’s sudden decision to step down in 2006 and the very sad news earlier this year that Chief Judge Karen J. Williams was resigning after having been diagnosed to be in the early stages of Alzheimer’s.  But, some odd missteps by the Bush Administration also played a role.  After Democrats gained control of the Senate following the 2006 elections, for example, conservatives expressed concern that Bush would need to act quickly and wisely to avoid losing control of the Court.   And yet, when Republican Senator John Warner and Democratic Senator Jim Webb submitted a list of five potential nominees, Bush inexplicably nominated someone who was not on that list and had instead been backed by the Republican Senator that Webb had defeated.

In any event, whatever the reasons, today’s Fourth Circuit certainly looks a lot different than it did when I was clerking there just a few years ago.

  November 12, 2009 at 4:56 am   Posted in: Uncategorized   Print This Post   One Comment

Just in time for AALS

posted by Kaimipono D. Wenger

The New York Times profiles the Po’Boy, along the way mentioning several different N’awlins sandwich shops which offer them. The article mentions sorts of varieties of the classic sandwich, and they all sound delicious: “fried shrimp po’ boys made with Louisiana shrimp and Creole tomatoes, and of grilled shrimp po’ boys, shingled with fried green tomatoes and slicked with rémoulade sauce,” and on and on and on.

I am definitely ready for a sandwich.

  November 12, 2009 at 12:21 am   Posted in: Uncategorized   Print This Post   No Comments

The War is Over But What Impact Will the Restatement of Employment Law Have?

posted by Michael Zimmer

When, a number of years ago, the Council and the Director of the American Law Institute announced that the Institute was undertaking a project in the area of labor and employment law, it followed its long tradition of deciding the project’s subject, its type and who would be the Reporters without input from the membership at large. That the topic was employment law was not a surprise. After all, Lance Liebman, the ALI’s Director, is a well known teacher and scholar of employment law. The nature of the project, a Restatement, was, however, somewhat of a surprise. Restatement projects look to the common law in a particular area. A problem with a Restatement of the common law of employment is that the common law plays a small role in a large, ungainly, some would say, disorganized jumble of state and federal laws, statutes and common law covering a wide range of issues that bear on employment. There is little apparent coherence to it. So, in the admittedly small world of labor and employment academics, it was no surprise that the idea of a Restatement provoked widespread protest. Some feared that a Restatement of Employment Law would “cement” in place law that was woefully inadequate for present much less future times. For some, that fear was exacerbated by the choice of the Reporters and the initial Advisory Group. I liked the idea of an ALI project but, given the mishmash that is labor and employment law, hoped for a Principles project to develop a policy basis that could be used to develop a coherent body of labor and employment law.

In face of the protests, the project moved slowly at first as some Reporters left and others joined the project. Once three chapters had been completed and approved by the ALI Council, the opposition got organized to try to stop those chapters, and indeed the whole project, from proceeding any further. Many of those opposed undertook the unusual move toorganize and hold a well- attended meeting at Hastings to present and to develop critiques that argued that the Restatement project should be abandoned. The work of 18 employment law academics was presented at the meeting. The results of that meeting and the critiques prepared for it were sent to all ALI members for their consideration before last May’s annual meeting that had the first three chapters on the agenda for adoption. The critiques were also published in a special issue, volume 13, issue #1 of the Employment Rights and Employment Policy Journal, http://www.kentlaw.edu/ilw/erepj/abstracts/v13n1/index.html.

Given the heated nature the whole issue had become, it should be no surprise that the dispute became personal. The lines were drawn with the ALI on one side and the Labor Law Group on the other. While the debate at the ALI meeting this past May was heated, the membership, as it generally does, accepted the recommendation of the Council and approved the first three chapters more or less intact. Read the rest of this post »

  November 11, 2009 at 9:09 pm   Posted in: Civil Rights, Employment Law, International & Comparative Law, Uncategorized   Print This Post   No Comments

Can There Be An “Undeclared” Canon of Statutory Interpretation?

posted by Anita Krishnakumar

How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?

In a recent article, The Hidden Legacy of Holy Trinity Church:  The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I touch on this question of how different interpretive methodologies become canons or rules of statutory construction.

One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.

The expressio unius maxim, for example, gained its canonical status primarily through longevity—it is a Latin maxim used often by the English courts and is prominent in Sutherland’s—and also has been used frequently by the Supreme Court. The Rule of Lenity similarly derives its authority from its longevity (Justice Scalia has defended the canon on the grounds that it “is almost as old as the common law itself”) and from its basis in the fundamental constitutional due process principle that criminal laws should give fair notice of the behavior that is outlawed.  Interpretive techniques with a shorter historical pedigree, such as the whole act and whole code rules, have achieved canonical status because they promote the consistent treatment of statutory words, phrases, sections, and subject matter.  And one of the newest additions to the statutory interpretation canon, the federalism clear statement rule, earned its stature through frequent Supreme Court use coupled with a grounding in the fundamental constitutional principle of federalism. Read the rest of this post »

  November 11, 2009 at 5:26 pm   Posted in: Supreme Court, Uncategorized   Print This Post   2 Comments

Barney Frank’s Bad Idea

posted by Nate Oman

Last month Barney Frank unveiled the House plans to fix the financial services industry. One of the provisions (section 1501) will require that any creditor who originates a loan to retain some of the ultimate risk of non-repayment of the loan. The provision is an apparently sensible response to the pathologies in the originate-to-distribute (OTD) model of mortgage lending that we saw at the height of the subprime boom. The basic idea is that originators were insufficiently incentivized to monitor the credit worthiness of applicants, and therefore manufactured a huge volume of ultimately toxic financial assets. The idea is to fix the problem of agency costs by aligning the incentives of loan originators with loan holders. Despite the plausibility of the proposal, I think that it is ultimately a bad idea.

First, it is a bad idea because it addresses a symptom rather than a cause of financial rot. The problem with the mortgage-brokers-as-villains narrative is that it fails to explain why the brokers could do a land office business selling toxic junk to a voracious secondary market. One explanation – the one implicit in section 1501 – is that brokers were taking advantage of purchasers, selling them supposedly sound financial assets that the purchasers were too unsophisticated or blinded by greed to realize were junk. To state this assumption explicitly is to see its limitations. The purchasers of mortgages were not unsophisticated consumers or little old ladies entrusting their savings to fast talking swindlers. These were a bunch of extremely wealthy, extremely sophisticated, extremely large financial institutions. It is rather unlikely that these guys were “fooled” by the mortgage brokers.

A more plausible story, in my opinion, looks at the underlying supply and demand for credit. First, why did the mortgage brokers go into the subprime market? At least in part the answer is that they could afford to do so. With the short term wholesale funding on which they relied to originate loans costing them essentially nothing, it was extremely inexpensive to originate loans. At the same time, the massive subsidization of the subprime market through implicit guarantees to the Fannie and Freddie, the so-called “Greenspan Put” on which Wall Street relied, and various (admittedly much smaller) direct subsidies created a massive demand for the assets churned out by the mortgage brokers. Add to this the impact of monetary and Chinese balance of payments factors on asset prices, and the notion that the subprime crisis was really the result of agency costs in the OTD model looks implausible. Absent macro-economic and regulatory distortions, I suspect that market competition and reputational sanctions are sufficient to keep the OTD brokers honest. Given those distortions, we have seen spectacular examples of those who did have skin in the game responding perversely to the perverse incentives with which they were presented. Read the rest of this post »

  November 11, 2009 at 2:53 pm   Posted in: Consumer Protection Law, Contract Law & Beyond, Corporate Finance, Current Events, Uncategorized   Print This Post   5 Comments

“A Vain and Idle Enactment”: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?

posted by Georgetown Law Journal

Alan Gura, Partner, Gura & Possessky, PLLC; Lead Counsel, District of Columbia v. Heller; Lead Counsel, McDonald v. Chicago

Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School; Author, The Origins of the Privileges or Immunities Clause (Georgetown Law Journal, forthcoming)

David Gans, Program Director, Constitutional Accountability Center; Author, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment

This event is open to the public and sponsored by The Georgetown Law Journal, the Georgetown Law chapters of the American Constitution Society for Law and Policy and the Federalist Society for Law & Public Policy Studies, and the Georgetown Law Militia.

Friday, November 13, 2009, 12:30 – 2:30 p.m.
Georgetown University Law Center
McDonough Hall – Hart Auditorium
600 New Jersey Avenue, NW
Washington, D.C. 20001

The panelists will discuss the current Supreme Court case McDonald v. Chicago, in which the Court will decide whether the 2nd Amendment is incorporated to apply to the states. Following up on its decision in District of Columbia v. Heller, the Court may decide to breathe life into the Privileges or Immunities Clause of the 14th Amendment, a clause which has essentially remained “vain and idle” since the Slaughterhouse cases in 1873.

The panelists will provide a historical understanding of the Privileges or Immunities Clause, whether it can properly serve as a vehicle for incorporation, and the implications that would result if the Court adopts this position.

  November 11, 2009 at 7:25 am   Posted in: Uncategorized   Print This Post   One Comment

Some Thoughts on Graham and Sullivan

posted by Alex Kreit

I’ve been in Washington, DC for the past few days to attend the oral arguments in Graham and Sullivan, the juvenile life-without-parole cases.  Though I’m not normally in the habit of flying across the country to see oral arguments, I’m team-teaching a small seminar about the two cases and we decided to organize a class trip for the occasion.  There were a few snags, but all in all it was a lot of fun.  (It also brought back some wonderful memories for me of my very first trip to see oral arguments at the Supreme Court as part of a seminar I took in college.)

I ended up listening to the arguments from inside the “lawyer’s lounge” for overflow Supreme Court bar members (one of the aforementioned snags was our miscalculation of exactly how tough it would be to get in to hear the arguments.)  I don’t have too much new to add to all of the excellent (and much more timely) commentary on cases.  Like many others, I thought that the most interesting development was Chief Justice Roberts’ focus on incorporating age into Eighth Amendment proportionality review.  The idea is not one any of the parties discussed in their briefs.  The attorneys for Graham and Sullivan advanced the view that life without parole for juveniles for a non-homicide offense is cruel and unusual.  Meanwhile, the State of Florida took the position that the standard proportionality test should apply and that the sentences in each case easily met that standard.  Splitting the difference by incorporating age into proportionality review seems to be an appealing way to reconcile the Courts’ jurisprudence regarding juveniles and the death penalty with its proportionality jurisprudence.  And, at least on the surface, the idea seems like it might provide an avenue for a majority of the Court to come together around a single standard.  I do wonder, however, how an approach along the lines of what Justice Roberts’ seemed to be proposing might actually play out in these cases.

Assuming, for the sake of argument wild speculation, that Roberts can get a plurality together to adopt his idea (let’s say, himself, Kennedy and Sotomayor), there is certainly no guarantee that they would be able to agree about the details–namely, the weight an offender’s age should be given in the test.  Conceivably, we could see a highly fractured Court with a number of Justices coming together around the basic premise of incorporating juvenile status into proportionality review but then diverging significantly (and in very different ways) after that.  I’ll admit that I have not yet had the opportunity to read all of the great commentary on the case and so I imagine someone has already speculated (very likely much more insightfully than I have) about how a Roberts-test might result in a number of different opinions that each follow his basic idea but agree on little else.  However, having gone to DC for the argument while guest-blogging here, I could not resist writing up a quick a post to add my two cents about the case (especially since doing so has been a convenient way to productively avoid the mountain of email waiting for me in my inbox.)

  November 11, 2009 at 6:07 am   Posted in: Uncategorized   Print This Post   4 Comments

Today’s Strange Legal Relic from the Civil War

posted by Nate Oman

In 1862, the legislature of Mississippi enacted the following statute:

It is lawful for any married woman to alledge [sic] as a cause of divorce, that her husband is engaged in the service of the United States of America, either in the army or navy, or from choice reside in any one of the States of the United States in preference to residence in one of the Confederate States. Provided, that such divorce shall not render illegitimate the children of such marriage.

Interestingly, the Confederate husband whose wife sided with the Yankees was left without specific recourse, although I believe that female abandonment of the marital home was always cause for divorce. One also wonders about the loyal son of the South caught on the wrong side of the lines and forced to reside amongst the Northerners. Could he argue that he did not reside by “preference,” or was his wife free to cut him off?

  November 11, 2009 at 12:37 am   Posted in: Uncategorized   Print This Post   No Comments

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