Archive for the ‘Uncategorized’ Category
posted by Babak Siavoshy
Google asked the secretive Foreign Intelligence Surveillance Court on Tuesday to ease long-standing gag orders over data requests it makes, arguing that the company has a constitutional right to speak about information it’s forced to give the government.
The legal filing, which cites the First Amendment’s guarantee of free speech, is the latest move by the California-based tech giant to protect its reputation in the aftermath of news reports about sweeping National Security Agency surveillance of Internet traffic. [...]
In the petition, Google is seeking permission to publish the total numbers of requests the court makes of the company and the numbers of user accounts they affect.
The challenge is not uncharacteristic—Google recently filed another lawsuit challenging gag provisions in government National Security Letters on First Amendment grounds. Query whether any of the other eight companies named in recent leaks will join Google’s latest suit. Read the rest of this post »
posted by Kelli Alces
Performance pay is tricky. At a very basic level, it challenges the notion that corporate managers, as fiduciaries of the firm, should “renounce all thought of self” as it places their self-interest at the forefront of the decisions they make on behalf of the corporation. Performance pay is designed with the hope that it will align those managers’ personal interest with the goal of shareholder wealth maximization as we concede that we cannot simply trust managers to selflessly pursue the interests of others. Indeed, it may do more harm than good to the extent it gives managers both the permission and the means necessary to profit personally from corporate success without suffering in the face of corporate failure.
Last week, at the National Business Law Scholars’ Conference in Columbus, Ohio, I heard Michael Dorff present his book, Indispensable and Other Myths: The True Story of CEO Pay, forthcoming from the University of California Press this spring. In it, he argues that performance pay for CEOs is not effective to enhance firms’ values. This is true, he claims, in part because CEOs generally do not strongly influence corporate return and in part because performance pay is not effective to improve the performance of creative or analytical tasks, that is, exactly the kinds of tasks we expect CEOs to carry out. He cites numerous empirical and psychological studies to support his thesis that performance pay is ineffective at best and harmful at worst.
posted by Aaron Zelinsky
We’re (hopefully) nearing the end of law school grading season. Personally, I take the Macbeth approach: “if it were done when ’tis done, then ’twere well it were done quickly.” In part, this is because I find grading unpleasant. I’m nervous about being unfair and inconsistent (and I also don’t want to get trolled by my students for being late).
There’s no avoiding that the grades we give make a substantial difference in our students’ near-term career prospects. While this adds to the stress to “get it right,” there is relatively little discussion in legal academia about how we grade. And although there are many different ways to grade, cognitive science provides at least two suggestions that seem broadly applicable.
First, grade by question, not by exam.
In his recent book, Thinking, Fast and Slow, Daniel Kahneman discusses grading. He describes how early in his career he would grade exams in the “conventional” way, “pick[ing] up one test booklet at a time and read[ing] all that student’s essays in immediate succession, grading them as I went.”
The problem with grading by exam is that it leaves the professor at the mercy of the “halo effect,” where the “first question . . . scored had a disproportionate effect on the overall grade.” Since Kahneman won a Noble Prize for his behavioral economics research while I once read a book about it, I’ll just quote him a bit more:
“The mechanism was simple: if I had given a high score to the first essay, I gave the student the benefit of the doubt whenever I encountered a vague or ambiguous statement later on . . . if a student had written two essays, one strong and one weak, I would end up with different final grades depending on which essay I read first.”
Khaneman’s solution: grade by question, not by exam.
Kahneman goes on to note that even knowing how well a student did on earlier questions on that same exam (for instance by writing the points earned on the front of the exam) can influence the grader, and therefore it’s best to put the point score somewhere not readily visible, like on the inside page. This all dovetails with why we grade exams blind: we don’t want to be influenced by our preconceived notions of student performance. Similarly, we should grade each question “blind,” uninfluenced by the students past performance on the exam itself.
Second, randomize the grading order across questions.
While grading by question eliminates the halo effect, it doesn’t eliminate another cognitive bias: the desire for regular distributions. For instance, if you are scoring a question out of five points, and you’ve given out fives to the past three exams, you’re more likely to give the fourth exam a lower score, regardless of how good the answer is. (Full disclosure: the author of the prior link, Jacoba Urist, is my sister).
Robert Shiller (who taught me behavioral economics), provides the solution: randomize exam order across question. That means that once you’ve graded all of the question ones, shuffle the papers and reorder the exams to grade the question twos.
These techniques won’t necessarily make grading any less nerve-wracking (or more fun), but they might make it a little more fair.
Anyone else have further grading tips?
Photo Credit: Wikipedia.
posted by Katie Eyer
I wanted to call to readers’ attention a civil rights case that in the midst of all of the blockbuster cases of this term has not attracted quite as much attention, but has the potential to very significantly impact the practical implementation of many of the nation’s civil rights laws – University of Texas Southwestern Medical Center v. Nassar.
What is formally at stake in Nassar is whether retaliation claims under Title VII—and perhaps any civil rights statute that does not explicitly provide for “mixed motives” burden-shifting—are subject to the mixed motives test first developed in Price Waterhouse v. Hopkins and codified in the Civil Rights Act of 1991. Based on the Supreme Court’s opinion in Gross v. FBL Financial, it seems fairly likely that the Court will find the answer to this question to be no (although there are also many strong arguments for why the result should be a “yes,” see e.g., here).
This outcome in and of itself would likely further depress the already dismal success rates of anti-discrimination plaintiffs. But far more troubling is the possibility that Nassar—like Gross before it—will further entrench the conceptual sloppiness that the use of the term “mixed motives” to describe a particular burden-shifting paradigm has allowed to slip into the law. In short, there is a real possibility that the Court’s decision in Nassar may encourage or require lower courts to require something approaching “sole” causation in many federal civil rights cases (i.e., that disability, age, retaliation, etc. be the “sole” cause of the employer’s actions)—a virtual impossibility in practical terms.
posted by Babak Siavoshy
As the Washington Post reports, one of the legal obstacles the ACLU may face in its lawsuit challenging NSA surveillance of telephony metadata is the state secrets privilege. In recent years, the government has used the state secrets privilege with increasing frequency to block lawsuits and prevent discovery on national security grounds. According to Professor Donohue, between 2001 and 2009 “the government has invoked the state secrets privilege in more than 100 cases, which is more than five times the number of cases previously considered.”
It’s not clear whether the government will invoke the privilege in the ACLU’s case—the DNI already acknowledged the existence of the challenged surveillance program, though not all of its details. But the scope of the state secrets privilege is the keystone issue in another important surveillance case, Jewel v. NSA. The plaintiffs in Jewel, represented by the the Electronic Frontier Foundation, have weathered a number of challenges to their suit against the NSA (including a win on standing before the Ninth Circuit), putting the issue of state secrets front and center. The question before the court is whether FISA’s procedural mandates displace the privilege in the context of civil litigation over national-security surveillance. Read the rest of this post »
posted by Katie Eyer
For those who may not be aware of it, I wanted to call attention to a fantastic resource put together by Lee Epstein, Jeffrey Segal, and Harold Spaeth, the Digital Archive of the Papers of Justice Harry A. Blackmun (available here). For anyone interested in integrating certiorari denials in their research, this is a wonderful resource. It provides access to the docket sheets, showing how the Justices voted individually on certiorari, Justice Blackmun’s annotated copy of the cert pool memo, and, occasionally, other documents that Justice Blackmun attached.
The archive has some limitations. Most notably, it is for the 1986-1993 Terms only. In addition, it only provides Justice Blackmun’s records, so it doesn’t provide access to records that any of the other Justices may have maintained. It also occasionally has images that cut off parts of the text. But for someone looking to examine a pattern of certiorari denials during that time frame (or a particular certiorari denial), it is an excellent “getting started” resource. From the comfort of one’s own desk, one can get access to the vote, the cert pool memo, and—from other electronic sources like Westlaw—the petition-stage filings. If something interesting emerges, it is always possible then to search out other, less accessible sources.
To give readers a more concrete sense of what the archive has to offer, I give links to some documents after the jump.
Does the Fourth Amendment regulate the NSA’s analysis of call records? The FISC might have ruled it does.
posted by Babak Siavoshy
A striking (and underreported) feature of the NSA’s recently-revealed surveillance programs is the government’s claim that there is judicial oversight of the analysis and querying of telephony metadata acquired under the program. As Orin Kerr pointed out last week, the DNI’s statement about the NSA programs states that a court-imposed reasonable suspicion standard governs government “queries” into call records collected from Verizon and other providers:
By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. [My emphasis.]
This judicially enforced standard—which some commentators appear to have overlooked—could, in theory, impose practical limitations on the government’s access to private information from call records collected by the NSA. The DNI’s description suggests that before government agents can query those records, they must comply with a court-imposed standard that requires specific facts reasonably tying the query to data associated with a foreign terrorist organizations. I’m speculating on the specifics of the standard here; the language is ambiguous, including [as discussed in the comments to this post] as to whether the FISC approves queries ex ante or reviews them ex post, if at all.
Details aside, the statement suggests that while the collection of telephony metadata is indiscriminate, its analysis is circumscribed and is overseen by the FISC. Indeed, the reasonable suspicion standard described by the DNI is the same legal standard used to limit law enforcement discretion in other contexts.
That is not to say that a “downstream” reasonable suspicion standard is, by itself, sufficient to protect legitimate privacy interests. It may not be; and whether it is may depend on a variety of facts we don’t know, including how “queries” are constructed, the specific application of the reasonable suspicion standard in this context, and the FISC’s process in overseeing queries. Still, commentators writing about the NSA programs should not leave out this crucial feature, which suggests the NSA’s surveillance of telephony metadata is something less than indiscriminate.
posted by Gerard Magliocca
As someone who wrote about the problems posed by patent trolls (or opportunistic licensing) years ago, I was heartened by the Obama Administration’s recent set of proposals on that issue. I’m not sure when we decided to start calling patent trolls “patent asserting entities” (Were cave trolls offended?), as any firm that brings an infringement action could be so classified. Nevertheless, administrative remedies and the possibility of further legislation are welcome.
To a large extent, the Administration and Congress are dancing around the real problem–software patents. In my 2007 article, I said that the abolition of software patents would be the best way to deal with trolls. At the time, I thought that was a pipe dream. Maybe it still is, but my sense is that people are more leery of software patents now and are more open to considering a reform in that area. It’s worth waiting and seeing if the new proposals work, but I’m skeptical that they will succeed any more than the America Invents Act of 2011 did.
posted by Gerard Magliocca
A recent study indicates that more Americans committed suicide last year than were killed in car accidents. This could be good news for auto safety, but it may also be bad news about the suicide rate. This raises an interesting question–should the law do anything directly to discourage suicide?
At common law, suicide was a crime. The penalties ranged from prison for attempted suicide that failed, being barred from burial in a cemetery, or escheat of the suicidal estate. These sanctions were abolished in the twentieth century (at least in Anglo-American law). A libertarian argument can be made that suicide should not be a crime because we have a right to end our life. (Assisted suicide presents more problems.) Or you might say that suicide is a mental health issue and hence should not be punished at all. Or you could say that punishing suicide only hurts the victim’s surviving family members.
Still, I wonder if the current hands-off posture is a little too sanguine. Maybe there are some people who could be discouraged from suicide by legal consequences. Complete escheat of the victim’s estate to the state is rather harsh, but what about partial escheat? In effect, what if we said that you will pay a higher estate tax if you commit suicide? Would that be so wrong? Not all problems have a legal solution, but is this one of them?
posted by Gerard Magliocca
One issue that arises periodically in intellectual property is the intersection of copyright and the right of publicity. Suppose I come up with a character or write all of the character’s dialogue. I own the copyright to that. An actor, though, becomes closely identified with the role and has a right of publicity to the use of his likeness. (Say, Daniel Radcliffe and Harry Potter.) If goods are sold bearing that actor’s image as the character, who gets the money? Most of the time a contract will answer this question, but sometimes that is not true. In that case, you can find some authority supporting the actor (the Bela Lugosi case in California, for instance), but not enough to answer the question clearly.
It strikes me that the rebooting of old TV shows or movies with younger actors should play an important role in that analysis. Ten years ago, I would have said that Leonard Nimoy was Spock. How could anyone else play that part? Well, now somebody else does, and people are OK with that. The same is true for other signature roles. Maybe that means that we really are thinking about William Shatner when we see “classic Kirk.” If, on the other hand, only one person has played a role in a high-profile way, it is harder to make that separability argument in favor of publicity rights.
posted by Gerard Magliocca
I want to call to your attention a terrific new article by Will Baude that just appeared in the Yale Law Journal. In this piece, he explains that the federal government never exercised the power of eminent domain within a state until after the Civil War, and that most lawyers thought Congress was constitutionally prohibited from doing so. The Article then goes on to explain how this changed and thinks through the implications. It’s worth your time.
posted by Katie Eyer
Thank you Dave for the warm welcome! I’m looking forward to participating in the discussion here at Concurring Opinions this month.
I wanted to begin my guest blogging stint here by opening a dialog on an issue that has been dominating much of my casual musings lately, which is the value (or lack thereof) of the study of certiorari review. This question has become a focus of my thinking largely because of responses I have received to a recent work in progress, Constitutional Colorblindness and the Family (in which I discuss denials of certiorari review in developing a historical account of the Supreme Court’s approach to contemporary uses of race in family law). I don’t want to focus too much here on that specific project, but instead on the bigger question of whether and how the study of certiorari review can be useful.
There seems to be relatively little controversy that the study of certiorari review on an institutional level—if done properly—can be a valuable scholarly enterprise. (Although, as pointed out by this recent book chapter addressing comparative constitutionalism, even at an institutional level, the study of certiorari review is sometimes neglected). Thus, the study of how, on a macro level, the Court (or internationally, courts) make use of their certiorari review powers, and how that relates to their institutional legitimacy, appears to dominate scholarly discussions of certiorari review.
But what about the study of certiorari review in the context of specific subject matters? For example, where the Court consistently, over a long period of time, declines to hear cases that deviate from its putative legal rule, should we view that as salient to its substantive legal commitments in that area? What about where it declines to hear high profile and politically controversial cases in a context where failing to intervene is, rightly or wrongly, predictably understood as endorsement?
posted by Babak Siavoshy
This is a follow-up to my previous post on the Supreme Court’s recent decision in Maryland v. King, which upheld, over a scathing dissent by Justice Scalia, the constitutionality of DNA searches of arestees for “serious offenses” under Maryland’s public safety statute. One open question after King is how the majority’s rule would apply to other states’ DNA collection statutes, which permit DNA collection for a broader range of offenses than does Maryland’s statute.
The King majority repeatedly limited its holding to DNA searches that followed arrests for a “serious offense.” But what counts as a serious offense? This is a live question in Haskel v. Harris, the ACLU’s challenge to California’s DNA collection law (Prop. 69). According to the ACLU, California’s law would permit DNA collection for arrests on suspicion of “simple drug possession, joyriding, or intentionally bouncing a check.” An en banc panel of the Ninth Circuit is considering the case in light of Maryland v. King. If the ACLU’s characterization is correct, then California’s law may not survive intact under King’s “serious offense” limiting principle.
While the task of determining the seriousness of an offense as a triggering condition for a legal rule can be difficult–particularly in light of the patchwork of criminal laws that forms the quilt of our fifty-state, federalist system–it is not outside the province of what courts do. For instance, in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), the Supreme Court had to decide whether state or federal standards should apply in determining whether a person convicted of a second state drug possession offense committed an “aggravated felony” under the immigration laws, and was therefore subject to automatic deportation. (The Court ultimately held the drug possession conviction was not an aggravated felony).
Is the Fourth Amendment transsubstantive (and should it be)?
More generally, King’s “serious offense” principle raises questions about whether the Fourth Amendment is, or remains, transsubstantive. The Supreme Court has previously suggested the Fourth Amendment is transsubstantive–namely, that all other things equal, the Fourth Amendment applies the same way regardless of the severity of the underlying crime that’s being investigated. (Though I’m not familiar with the scholarship on this issue, it appears scholars agree this is the governing rule: see here and here).
posted by Gerard Magliocca
With the . . . ahem . . . annual avalanche of Supreme Court opinions on the way, I thought I’d raise a question about how slippery slope arguments play out. The reason advocates make this sort of argument is that they want to convince someone not to do something. If A leads to B and B is seen as unacceptable, then people will be less likely to do A if they are convinced that there is no line between them. The problem, of course, is that this tactic can backfire. It might convince people that there is no distinction between A and B when they thought that there was, and thus make B more likely once A happens.
In practice, how often does the former scenario happen as opposed to the latter one? I’m not sure that there is a good study on this question, though we can all come up with examples on either side.
posted by Kelli Alces
I’ve just posted my latest paper, Legal Diversification, on SSRN. The paper starts from the premise that investors derive significant protection from the risks of capital investment by diversifying their holdings. By the same token, it seems to me that investors may be able to realize benefits from the broad diversity of corporate and securities laws governing investment opportunities.
The Essay introduces a new dimension of diversification for investors: legal diversification. Legal diversification of investment means building a portfolio of securities that are governed by a variety of legal rules. Legal diversification protects investors from the risk that a particular method of minimizing agency costs will prove ineffective and allows investors to own securities in a variety of firms, with each security governed by the most efficient set of legal rules given the circumstances of the investment. Diversification of investment by legal rules is possible because of the varied menu of legal rules firms can choose from when organizing and raising capital. The most recent addition to the securities laws, the JOBS Act, may compromise the diversity of legal rules that protects investors by pushing even more firms toward organizing as public corporations, thereby threatening to curtail or eliminate the variety that allows effective diversification.
The Essay makes several contributions to the literature. By introducing legal diversification, it reveals a new understanding of how investors, issuers, and society can benefit from maintaining a variety of legal rules to govern investment in businesses. The corporate law scholarship has long advocated preserving a variety of rules under which firms can organize, but it has yet to consider how investors can take advantage of that variety to protect themselves before market competition has revealed the “best” rules. Legal diversification also complements recent literature emphasizing the importance of diversity in financial regulation by highlighting another reason diversity of legal rules is important to healthy capital markets. Legal diversification fills gaps in the literature advocating regulatory diversity by offering an explanation for why that diversity is a valuable protection for investors and an indispensable mechanism for allowing firms to choose the most efficient legal rules to govern their organization and operation.
I’m still working on editing the draft, so would greatly appreciate any thoughts or comments you may have on the project.
posted by Aaron Zelinsky
Special thanks to those from the CoOp commentariat who contributed cases (see the star note for the full list), and the Michigan Law Review First Impressions staff for putting up with a source cite that ranged far afield of the ordinary legal texts. My two favorite CoOp-driven additions:
Fitch v. Valentine, 959 So. 2d 1012 (Miss. 2007) (allowing an action for alienation of affection);
People v. Arzon, 401 N.Y.S.2d 156 (N.Y. Sup. Ct. 1978) (committing arson constitutes depraved indifference to human life).
I also received a fair amount of legal eponyms, instances where the rule becomes known by the case name– think Chevron deference or Youngstown categories. I left out those out, but it did make me wonder why certain cases because eponyms and others don’t.
Importance of the case no doubt plays a major role; if there isn’t a big legal principal, it’s unlikely to be an eponym. But I don’t think that’s the whole of it. For a trivial example, no one talks about judicial review as “Marbury scrutiny” or assesses whether a given law falls within Congress’s “McCulloch powers.”
Food for future thought.
Racial Uplift or Racial Scolding: The Baggage of Symbolic Representation in President Obama’s Speeches to Black Americans
posted by Taunya Banks
I was invited to stay around another month but a personal loss and the press of grading papers overwhelmed me. With apologies to the organizers, this is my first and last post for this month.
President Obama’s commencement speech at Morehouse College on May 19th triggered a debate in some corners of the blogger sphere that included notables like PBS’ Gwen Ifill and white studies scholar Tim Wise about his tendency to scold black folks. In its heyday Morehouse College, a private all-male historically black institution in Atlanta, educated many of the black male elite like Martin Luther King, Jr., filmmaker Spike Lee, former Bank of America Chairman Walter E. Massey, former United States Surgeon General David Satcher, former Secretary of Health and Human Services Louis W. Sullivan, film star Samuel Jackson, and social activist Julian Bond. Today it continues its mission producing Rhodes, Fulbright, Marshall and Luce Scholars, and Watson and White House Fellows. Thus he was speaking to a group of future leaders who happened to be overwhelmingly black.
I was a bit surprised at the uproar, especially when several acquaintances thought the Morehouse speech more significant than his speech a few days later on his administration’s drone policy. I have been increasingly troubled by this administration’s extrajudicial killings by drones of American citizens abroad. Thus I decided to more closely examine the controversy. Read the rest of this post »
posted by Gerard Magliocca
Greetings from blogging exile! For one post at least . . .
I’ve been thinking about the British practice of submitting substantial questions to the voters in a non-binding referendum. For example, the issue of whether Britain should join the European Union, or whether seats in the House of Commons should be allocated via proportional representation. While these national votes have no legal effect, they are treated as extraordinarily important and (if decisive) are expected to lead to action by Parliament.
Let’s suppose we wanted to try that in the United States. There’s major legislation pending in Congress, for example. Congress then passes a law stating that there shall be a non-binding referendum on this bill on a certain date. Is that constitutional? In other words, does Congress have the power to require states to put something on their ballot or hold a special election (i.e., not on a primary or general election day)?
I think that the answer is no, unless you think the fact that this is non-binding creates a relevant distinction. But if enough states agree to hold the referendum, either on their own or because Congress gave them money, would those that object feel pressure to cave to avoid being left out of the result?
posted by UCLA Law Review
Volume 60, Discourse
|Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles||Nancy D. Polikoff||226|
|Backlash to the Future? From Roe to Perry||Linda Greenhouse & Reva B. Siegel||240|
|Will We Sanction Discrimination?: Can “Heterosexuals Only” Be Among the Signs of Today?||Louise Melling||248|
posted by Aaron Zelinsky
From filibustered nominees to recess appointments, the D.C. Circuit has been much in the news lately. But for all the blood sport involved in confirming a nominee to the D.C. Circuit, the judges there are surprisingly collegial (a quality that, when I clerked, trickled down to their employees as well).
So it was with some interest that I read Judge David Tatel’s recent speech at the portrait hanging of (now former) Chief Judge David Sentelle. (I’ve received permission to post it in full here). The speech underscores how, for all the political tumult surrounding the D.C. Circuit, the Circuit itself is almost a world apart.
Judge Tatel begins by noting an observer’s likely surprise that a Clinton appointee would speak at the portrait unveiling of Sentelle, Reagan’s choice to replace Justice Scalia. But over the past nineteen years, it turns out that Tatel and Sentelle have “disagreed less than 3% of the time,” an astounding statistic given the common (mis)conception of how the Courts of Appeals operate.
In other words, the vast majority of judges agree on the vast majority of issues the vast majority of the time.
Judge Tatel chalks this up to “restrained decision-making,” or (more familiarly) “judicial restraint.” He relates a few stories about Sentelle to underscore his point, including one about how the two judges tried to write a joint op-ed, but failed because “unconstrained by the rules that bring us together as judges” they were “unable to agree on how to portray certain historical aspects of the issue.”
In fairness, Judge Tatel doesn’t pretend life is always roses. He notes that he and Sentelle “have had our disagreements,” (emphasis in original), and that “despite our best efforts at neutrality, we cannot but see the world – and the law – through the lens of who we are and what we’ve been through.” But even in those circumstances, the D.C. Circuit lives by a “proudly nurtured tradition of collegiality.” Judge Tatel gives special thanks for the particularly good job Chief Judge Sentelle did of “navigating [these] sometimes sensitive waters with a firm but gentle oar.”
The speech is a short five pages and is definitely worth a read. It underscores the noncontroversial nature of the vast amount of Courts of Appeals work, and how much pride the D.C. Circuit takes in its spirit of collegiality even when disagreement surfaces.