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The Case of the Missing Volokh Conspiracy

volokh-conspiracy.jpgThe Volokh Conspiracy has mysteriously disappeared . . . probably something nefarious in response to Orin Kerr’s criticism of the NSA surveillance program. In all seriousness, I’m informed by a Volokh-conspirator that the Volokh Conspiracy will be back up and running soon.

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Ribstein Is Back

Larry Ribstein has returned to his roost at Ideoblog, and is posting about the race to bottom regulatory competition in the market for securities regulation. For those of our readers who may be uninterested in that topic, he’s also writing about how to reduce the deadweight loss produced by Christmas (and presumably other seasonally related holidays.)

Larry’s guest bloggers have been provocative and interesting, and it is worth checking out what’s happened at the blog over the last few weeks. Kate Litvak’s post on racism, golf and boating was my personal favorite. I hear that most of those folks will soon be starting a new blog called Truth On The Market, which I’m sure I will enjoy, and disagree with, often.

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Fine Print from the Experts

signcontract.jpgThose wacky contracts professors over at the AALS’s contracts section have appended the following bit of boilerplate to their website:

IMPORTANT SMALL PRINT LEGAL DISCLAIMER

This web site is a forum for the exchange of information and points of view. Opinions expressed here are not necessarily those of the Section on Contracts or of the Association of American Law Schools, which when you think about it are really only reified abstractions that have no independent existence and therefore can’t really have any “opinions” about anything at all, so we’re not sure why we have to say this. All statements herein are the sole responsibility of the authors, except for any that are inaccurate, irresponsible, tasteless, or actionable, which are solely the responsibility of student editorial assistants who are working as independent contractors and for whom we will accept absolutely no responsibility whatsoever. There are no warranties, either express or implied, for the use of this site. Nothing on this site should be taken as legal advice, since only an idiot would take free legal advice on an important issue from the casual musings of a law professor instead of paying a practicing lawyer who actually knows the law of the jurisdiction you’re in. Any disputes arising as a result of your use of this site shall be decided by arbitration under the rules of the International Chamber of Commerce in Japan, unless you happen to be somewhere in or near Japan, in which case it shall be decided in Belgium. Your reading of this provision signifies your assent to all its terms.

I will leave the analysis of its legal effect to the academics, although I would be happy to offer an opinion for a reasonable fee…

(Hat tip to Ben Davis for pointing this out.)

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AALS Blawg Happy Hour: More Details

drink2a.jpgHere are more details about our happy hour, in conjunction with PrawfsBlawg, during the AALS conference in Washington, DC. It will be held at Cloud, on Wednesday, January 4th at 9:30 PM.

Cloud is at 1 Dupont Circle NW, which is on New Hampshire Avenue just south of Dupont Circle. Click here for directions.

I hope to meet many readers of the blog in person.

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Adultery and Polygamy

wedding.jpgAn article (sorry no link) in this week’s Economist (aka “The Greatest News Magazine in the World”) suggests a link between polygamy and Turkey’s recent efforts to pass a law criminalizing adultery. Back in September, the Turkish parliament debated a proposed law criminalizing adultery. After Kamal Ataturk came to power in the wake of World War I, Turkish law moved in an aggressively secular direction, mainly by importing western-style civil codes. Most strikingly, Turkey essentially adopted the Swiss family law code and among other things criminalized polygamy, which had been allowed under the previous shar’ia-based law. (In theory, under shar’ia a man may have up to four wives provided that he has the means of supporting them and treats all of them equally.) The post-Ataturk laws also criminalized adultery, however this law was struck down by Turkey’s Constitutional Court in 1996 because it treated men and women differently. (As I understand it, the law required proof of a long-term affair in the case of male adultery, but a single act of sexual intercourse was sufficient in a case of female adultery.) The new adultery law was to remedy this infirmity by applying equally to both men and women, but women’s rights groups opposed the law arguing that it would not be applied equally and violated the right to privacy. More importantly, from the point of view of Turkish politics, the law was not popular with the Europeans, who saw it as an attempt to Islamicize Turkish law. Turkey very much wants to become a full member of the EU, so staying in the good graces of the elites in Brussels is very important.

Enter polygamy. Although the Turkish prohibition on polygamy is now about eighty years old, in many areas — particularly in the rural, Kurdish, anti-Turk, south-eastern portion of the country — polygamy is alive and well. More surprisingly, a certain amount of discrete polygamy continues among urban elites, including former ministers in the Turkish cabinet. The Economist suggests that adultery law may have been pushed in part as a way of shoring up the anti-polygamy prohibition. If this is the case, then the Turkish parliament was walking a path previously trod with great enthusiasm by the U.S. Congress.

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The Gorilla Award for 2005

trophy.jpg

It’s award season. Not a suprise. The end of the year encourages thoughts of reflection and rankings.

I thought it might be fun to institute an award for the corporate news story that won’t make anyone’s list of top events this year: the 2005 Gorilla Award. The award is named for a famous video testing “inattentional blindness.” As professors who teach Enron are fond of relating, experimenters asked students to watch a video of folks playing basketball and to to count the total number of times that the people wearing white pass the basketball, while not counting the passes of folks wearing black.

Go ahead, click on the video and perform the test. Then come back.

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A Tale of Two Blogospheres: The Red and the Blue

politicalparties1a.jpgI’ve been quite surprised that the vast majority of the larger blogs linking to us at Concurring Opinions have been conservative blogs rather than liberal ones. After all, many (though not all) of us at Concurring Opinions consider ourselves to be liberals. Despite criticisms of the conservative blogosphere as an echo chamber, I’ve been impressed that conservative bloggers are linking to us. Many of us have tried our best to be balanced rather than partisan, and perhaps this is why we’ve received many links from the conservative blogosphere. What continues to strike me as a bit odd, however, is the great disparity in links from the prominent conservative blogs versus the prominent liberal ones.

This phenomenon got me thinking more broadly about the liberal blogosphere versus the conservative blogosphere. With the caveat that this is just my personal impression, I think that the conservative blogosphere is much better integrated in its intellectual and activist dimensions. For example, the conservative political blogosphere seems much more deeply connected to the legal blogosphere, where political bloggers seem to more routinely tap into the expertise of law professors about various legal issues. Indeed, many of the prominent political bloggers in the conservative blogosphere are academics; fewer of the liberals are.

This strikes me as representative of a larger difference between the Left and Right. The Left must better connect its intellectual and activist sides. Indeed, an article about Markos Moulitsas Zuniga, the founder of Daily Kos (one of the largest and most influential liberal political blogs) states:

Moulitsas is just basically uninterested in the intellectual and philosophical debates that lie behind the daily political trench warfare. By his own admission, he just doesn’t care about policy.

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Grading Exams and Other Fun Activities

I started grading exams today. As most Profs. will tell you, grading is the least pleasant aspect of law teaching. Fortunately, at my current rapid pace of 2.5 hours per exam, I will be finished at the latest by mid-March.

On the plus side, I’ve almost finished writing my syllabus for next semester’s new seminar in Law and Economics. In preparing the course, I was reminded again of McCloskey’s fantastic little essay on The Rhetoric of Law and Economics, 86 Mich. L. Rev. 752 (1988). Well worth reading if you have a WL or Hein account.

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How to Be an Industry Lobbyist

Chris Hoofnagle has a humorous post about industry lobbyist arguments in the consumer privacy arena:

Ever wanted to be an industry-side lobbyist? You can learn the basics right here on choof.org!

I’ve made the entry to your new career simple with this privacy industry deck of cards. These cards articulate all the arguments you need to make your case, without actually knowing anything. Master these arguments, and you too could be a high-paid lobbyist for almost any tech industry.

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Immigration Appeals in the Times

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Adam Liptak of the Times caught up today on the blawg-headlining Posner opinion from a few weeks back on immigration appeals. Considering the lead-time, I’m surprised at the weakness of the responses to Posner’s opinion offered by the BIA’s defenders. The bottom line answer to appellate anger: “You guys are falling victim to the fundamental attribution error.”

Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.

“The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal,” Mr. Cohn said. “They’re only seeing a fraction of the cases, and only a small fraction of those give rise to criticism.”

I think this response is misleading.

First, the article tells us that immigrants appeal 7 to 30 percent of the time. This is the source of Cohn’s intuition that only the “bad cases” for the government end up on appeal. But I can’t imagine that Cohn’s equation of the failure to appeal with being “correctly decided” has much basis in known fact. It might be that Cohn is correct. But I’d assume instead that costs (financial, emotional, and otherwise) prevent appeals, and not being compelled by the force of the government’s arguments.

Second, just because the government wins 90% of the time in the appellate courts doesn’t mean the BIA is right 90% of the time on the merits. Most of those wins depend either on procedure or on the operation of the standard of review, which is why the overall success rate for the government on appeal is exceedingly high. Even this success rate appears to depend on the amount of attention appellate judges pay to BIA procedures. As Posner’s opinion revealed, in the Seventh Circuit in 2005 the government’s win rate was around 60% in BIA cases, as compared to 82% in all other civil cases.

Third, Cohn’s rebuttal is aimed at the wrong target. Almost all judicial review of administrative agency decisionmaking will produce the pyramid structure he describes, where the “worst” cases are the most likely to result in published appellate reversals. But what is striking about the BIA is (1) that it has appeared, to date, undeterred by Circuit Court tongue-lashing; and (2) that the problem is occupying more and more appellate time. That’s why we get statements like this one from Posner’s opinion: “the adjudication of these cases at the administrative level has fallen below the minimum standard of legal justice. Whether this is due to resource constrains or to other circumstances beyond the Board’s and the Immigration Court’s control, we do no know, though we note that the problem is not of recent origin.”