Monday, February 14, 2005

Stephen Bainbridge on the Mainstream Media, Authority Figures, and Credibility:

An excerpt:

My generation turned against authority in a huge way. And, it must be said, with some justification. Watergate, Vietnam, and so on all called into question the legitimacy of most authority figures. As boomers entered the media, the [mainstream media] evolved from bastions — even defenders — of authority into authority's chief public critic. Woodward and Bernstein defined the wet dreams of every subsequent journalist — to take down authority figures. And so it has been ever since, with every minor scandal being elevated into "[fill in the blank]-gate."

But now this particular pigeon has come home to roost. . . . [T]he media has reaped what it sowed. The media legitimated and perpetuated the Sixties' radicals critique of authority. In doing so, however, it sowed the seeds of its own loss of authority. Since some of those seeds turned out to be dragons' teeth, the media is now reaping the whirlwind. . . .

Read the ">whole post for more.

Electronic Submissions: Late February and early March is peak law review article submission season; the editorial boards flip around that time, and the new boards take over and immediately start looking for new articles to accept. One issue that lots of law professors are curious about this year (beyond article length) is whether law review editors these days look favorably or unfavorably on electronic submissions.

  My sense is that the law review submission process is undergoing a shift from paper to electronic submissions; in a few years, electronic submissions will be the norm. The question is, are we there yet? Blogfather Eugene led the way at the VC with his use of ExpressO last year, but right now I think only a fairly small number of law profs take advantage of that option.

  I'd love to hear from any outgoing or potentially incoming Articles Editors (or others knowledgeable about current practices) about what you think of electronic submissions. If you were a law professor submitting an article in a few weeks, would you submit an electronic copy or a paper copy? Please offer your thoughts in the comment section.

  UPDATE: My apologies if I wasn't clear before, but I am only interested in receiving comments from editors about their preferences. I realize that lots of people have interesting takes on what journals should do, or on the psychology of article selection, but I'm interested at this point in hearing only from editors themselves. Thanks for understanding.
Lynch Mobs and Persuasion Bunches:

The New York Times reports, in an article about the Eason Jordan resignation from CNN and bloggers:

[S]ome in the traditional media are growing alarmed as they watch careers being destroyed by what they see as the growing power of rampant, unedited dialogue.

Steve Lovelady, a former editor at The Philadelphia Inquirer and The Wall Street Journal and now managing editor of CJR Daily, the Web site of The Columbia Journalism Review, has been among the most outspoken.

"The salivating morons who make up the lynch mob prevail," he lamented online after Mr. Jordan's resignation. He said that Mr. Jordan cared deeply about the reporters he had sent into battle and was "haunted by the fact that not all of them came back."

Now I realize that "lynch mob" is figurative, and hyperbole at that. Still, figurative references and analogies (even hyperbolic ones) only make sense to the extent that the analogy is apt -- to the extent that the figurative usage, while literally false, reflects a deeper truth.

The trouble is that here the analogy is extremely weak. What's wrong with lynch mobs? It's that the mob itself has the power to kill. They could be completely wrong, and entirely unpersuasive to reasonable people or to the rest of the public. Yet by their physical power, they can impose their will without regard to the law.

But bloggers, or critics generally, have power only to the extent that they are persuasive. Jordan's resignation didn't come because he was afraid that bloggers will fire him. They can't fire him. I assume that to the extent the bloggers' speech led him to resign, it did so by persuading the public that he wasn't trustworthy.

So Jordan's critics (bloggers or not) aren't a lynch mob: If they're a mob, they're at most a "persuasion mob." What's more, since they're generally a very small group, they're really a "persuasion bunch."

Maybe if a persuasion bunch tries to persuade people by using factual falsehoods, they could be faulted on those grounds (though that too has little to do with lynch mobs). But I've seen no evidence that their criticisms were factually unfounded, or that Jordan quit because of any factual errors in the criticisms. (Plus presumably releasing the video of the panel would have been the best way to fight the factual errors.)

We should love persuasion bunches, who operate through peaceful persuasion, while hating lynch mobs, who operate through violence and coercion. What's more, journalists -- to the extent that they love the First Amendment's premise that broad public debate helps discover the truth, and improve society -- ought to love persuasion bunches, too. When the only power you wield is the power to speak, and persuade others through the force of your arguments (and not through the force of your guns, clubs, or fists), that's just fine. Come to think of it, isn't that the power that opinion journalists themselves wield?

In any of event, figurative usages and analogies are good when they help us engage in clear thinking. Unsound analogies lead to muddled thinking -- and, come to think of it, they usually flow from muddled thinking, too.

Marketing Your Law Review Article:

A law-blogger writes me:

In [Academic Legal Writing] you stress that authors should tell people about their articles. Here's a funny story about a failure to do so.

I read [an article in a recent issue of a law journal]. I liked it and linked to it -- and I e-mailed the author to tell him.

Turns out he reads my blogs, and even relied on them for some research (I suspected as much) and was very pleased I linked to his article.

The issue, of course, is why he didn't e-mail me a link to his article? . . . [L]egal bloggers are about the best people to let know about new articles.

I don't think I'm a big player or anything, but it's odd that someone who reads my blogs and writes an article related to their subject matter wouldn't tip me off. (I also noticed that the article has been viewed by a substantially larger number of people since I linked to it.)

I think the answer is that lawyers just don't know much about marketing their legal articles, it seems.

Great advice -- and a great admonition to me, since the Publicizing chapter in my book doesn't mention publicizing to law bloggers. Sounds like I have a thing or two to learn about marketing, even though I'm a law blogger myself, and someone who's interested (and moderately experienced) in promoting ideas. D'oh.

In any event, this tip is going into the Third Edition, when (if) it gets produced, but in the meantime, I place it here. Many thanks to my correspondent for pointing it out.

Except It Looks Like It Isn't a Crime:

The Clovis (New Mexico) News Journal reports:

Stickers on a Clovis man's car portray cartoon images of bare-breasted female devils in sexually compromising positions. [See here for an image of what seems likely to be the sticker.-EV] And the images have caught the attention of Clovis police.

Officials have charged 31-year-old Dean Young, the owner of a yellow Ford Focus displaying the images, with distribution of sexually oriented materials to minors. The charge is a misdemeanor carrying a maximum punishment of 364 days in jail and $1,000 fine. Young is scheduled to appear in magistrate court on the charges in the next few weeks. . . .

[State prosecutor Chris] Chandler said the case came to light after the young son of Clovis police Detective Kirk Roberts saw the stickers. Roberts saw his son staring at the images during a family outing to an area restaurant, where Young works as a waiter, Chandler said.

Young said he would have removed the stickers if Roberts hadn't threatened to charge him with a felony. He said Roberts told him to remove the stickers, and came back to the restaurant two weeks later. When they weren't removed, police issued the citation to Young, who said Roberts is the first person to approach him with concerns over the stickers. . . .

(Matt Welch (at Reason's Hit & Run) also reports on this.)

Now it turns out that lower courts have mostly upheld against First Amendment challenge fairly narrowly crafted restrictions on the public display, in places where minors may be present, of sexually themed material that's constitutionally protected for adults but that is deemed unsuitable for minors. (See here for citations to some cases.) It's hard to tell which material would be restrictable this way, since the standard is so vague, and since there have been few prosecutions under such statutes and thus little clarification; so it's not clear whether the sticker qualifies. For whatever it's worth, here's the New Mexico standard, which is similar to the one lower courts have generally upheld:

"[H]armful to minors" means that quality of any description of representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse, when it: (1) predominantly appeals to the prurient, shameful or morbid interest of minors; and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (3) is utterly without redeeming social importance for minors.

("Harmful to minors" is the legal label for this; there doesn't have to be proof that it's actually likely to cause psychological harm.)

But this post isn't about the First Amendment issue, which isn't involved here. Under current First Amendment rules, states can bar such material, and while I think there are problems with this — chiefly related to the vagueness of the law — I don't get too worked up about it.

However, as best I can tell, New Mexico hasn't outlawed what this guy did. The relevant part of the New Mexico statutes (30-37-2) expressly bars (1) "sell[ing], deliver[ing], distribut[ing], display[ing] for sale or provid[ing] to a minor" such material, (2) exhibiting movies or shows containing such material to a minor, (3) disseminating such material to a minor using a computer, or (4) displaying in an outdoors movie theater a movie containing unclothed sexual conduct, if a minor can see it without taking extraordinary measures or having a ticket (in the latter case, presumably the minor would be accompanied by a parent). The statute does not outlaw noncommercial display of such material, which is what Dean Young seems to have done.

The prosecutor's theory is that Young was distributing the material to a minor by displaying it. But that's not the way the term "distributing" is usually meant; would we say that a billboard, a T-shirt, or a sign is being "distributed" to viewers? And on top of that, the statute says "sell[ing], deliver[ing], distribut[ing], display[ing] for sale or provid[ing] to a minor" — the inclusion of "display for sale" as a separate item suggests that display not for sale is not covered.

So maybe there oughtta be a law — but it looks like there isn't one. If anyone who knows New Mexico law can point out errors in my analysis, please let me know. But that's my tentative thinking on this.

Why Caballes Won't Impact Internet Surveillance: Mark Rasch, a former DOJ lawyer back in the early 1990s, has an essay up at SecurityFocus (reprinted in The Register) on why he thinks the recent dog sniff case at the Supreme Court will "have a profound impact on privacy rights online" and give a green light to the invasive use of Internet wiretapping devices. I think Rasch is wrong, and thought readers might be interested in why this recent decision won't change the law of Internet surveillance in the way Rasch suggests.

  In the dogsniff case, Illinois v. Caballes, the Court reaffirmed a 1983 case, United States v. Place, which had held that using a trained dog to sniff the outside of a car for the smell of narcotics doe not constitute a search. In the new case, the Court distinguished a 2001 case, Kyllo v. United States(aka the thermal imaging case), on the ground that the information disclosed by the use of the dog was only the existence of narcotics — something that is illegal to possess. In my prior post, I explained that this is a troubling rationale for the Court to use, albeit one largely driven by Kyllo itself: by focusing on what the surveillance reveals rather than how it is conducted, Caballes may permit invasive searches of personal property so long as they only reveal the presence of drugs or other contraband.

  In his essay, Rasch argues that Caballes will change Internet surveillance practices and the use of packet sniffers:
  The same reasoning could easily apply to an expanded use of packet sniffers for law enforcement.
  Currently, responsible law enforcement agencies limit their warrantless Internet surveillance to the "wrapper" of a message, i.e., e-mail addresses or TCP/IP packet headers, unless they have a court order permitting a more intrusive search. Looking at the "outside" of the communication has been treated as similar to looking at the outside of a vehicle — and maybe peering into the window a bit. To peek inside the communication — read the content — required that you first get someone in a black robe involved.
  The experiences of Mr. Caballes (the soccer mom, or me or you ) changed all that. The government is practically invited to peek inside Internet traffic and sniff out evidence of wrongdoing. As long as the technology — like a well-trained dog — only alerts when a crime is detected, it's now legal.
  As context-based search technology improves, the government may soon have the ability to take Carnivore one better and deploy "intelligent" packet search filters that will seek out only those communications that relate to criminal activity. They may already have it.
  Although these packet sniffing dogs sniff the packets of sinner and saint alike, they only bark at the sinner's e-mails. Thus, according to the new Supreme Court precedent, the sinner has no privacy rights, and the saint's privacy has not been invaded. In fact, the saint would not even know the search had taken place — Internet surveillance is less noticeable than a dog sniff.
  Rasch's analysis is incorrect, I think. The primary reason is that the relevant law governing Internet surveillance is statutory, not constitutional. The key laws here are the Wiretap Act, 18 U.S.C. 2510-22, and the Pen Register statute, 18 U.S.C. 3121-27. These statutes were applied to the Internet in 1986 to protect Internet communications in light of substantial uncertainty as to whether the Fourth Amendment protects Internet communications at all. Caballes doesn't change any of these statutes: it merely offers one additional argument (among several) as to why the Fourth Amendment itself may not offer robust privacy protections online. We know that already, though; that's why Congress created the statutory regime in the first place.

  Second, Rasch is incorrect that existing law treats the packet headers of Internet communications as "outside wrappers," and analogizes accessing contents to "peering in the window" of communications. To be honest, I am not quite sure where he is getting this; I have never heard this before. In any event, the benefit of statutory protections is that it need not rely on analogies to the physical world; the law can simply protect what needs protecting. So, existing statutory law distinguishes between the "contents" of communications (like the message in an email) and "dialing, routing, addressing, and signalling information" (like an e-mail address) on the theory that addressing information is less private than substantive contents of communications. Again, this line is unchanged by Caballes.

  Finally, Rasch refers to the possibility of "intelligent packet search filters that will seek out only those communications that relate to criminal activity," and speculates that the government "may already have it." The reasoning of Caballes doesn't seem relevant to that kind of tool, however: its rationale seems tied to the fact that drugs are contraband (items illegal to own that can be seized by the government), not mere evidence of crime. Because a hypothetical tool that detects criminal activity would do more than simply alert to the presence of contraband, I don't think its legality would be changed by Caballes.
Law Review Lara:

A reader writes:

Your "Law Review Lara" series is well-timed for me. I am currently a "staffer" on law review -- cite checking and finishing up a comment (2L). At my school, running for a board position (a 3L position) is optional. . . . My quandary is this: What is the career benefit of a "high board" position?

After following the LR debates and being a staffer, I am not sure I see any. Or at least see any for the majority of us at non-Harvard, Yale, Columbia etc. schools that have no hope of a legal-academic career. Wouldn't a law student be better off getting a job during their third year [externing] for a judge or in [some other] externship? Or doing anything that teaches them about how to be a lawyer rather than doing administrative work for journals that don't appear to be that well put together in the first place.

If you think board positions are valuable, a related question: Is any board position worth taking? There seems to be hierarchy within everything in law and law reviews are no exception. Are regular assistant editor positions viewed differently than editor-in-chief, etc. positions?

These are hard questions, for two reasons. First, there's been little or no systematic study of what benefits one gets from a "high board" position; so everyone's opinion is based on her own experience, which may be highly unrepresentative. (Plus, Law Review Lara was a mid-board assistant managing editor, in charge of proofreading, bluebooking, and coordinating cite-checking; naturally, she thinks this is fascinating and fantastically useful stuff.) Second, as the reader points out, the question is one of opportunity costs: Even if a high board position gives one some advantages, would your time be better spent on something else?

With that, a few tentative thoughts:

  1. Law firms are desperate for some tips about how good a lawyer you'll be, so even fine gradations in a hierarchy tend to make a difference to them. They don't care that being a Chief Articles Editor has made you a much better lawyer; but they suspect that it means you were smarter -- or harder-working or more politically savvy, all important factors for a young lawyer -- than the average person who doesn't have that credential. This may or many not apply to specialty journals, which have a reputation as being not terribly selective; but it's likely true for high editorial board positions (Editor-in-Chief, one of the department chiefs, and to a lesser extent one of the department Indians) on the school's main journal.

  2. Being on the law review board actually does give you practice in skills that are important for lawyers. Whether you primarily do editing, proofreading, articles selection, or supervision of student Notes, you'll be exposed to a lot of written work, which you'll have to critique or improve. Writing is one of the most important skills a lawyer needs, and we don't teach it nearly enough in law school; editing is the key to good writing; and editing others' work helps you learn how to better edit your own. Being an articles selection editor is probably the least useful here, but the compensation is that you'll then be exposed to lots of novel ideas on a variety of topics, and some of them may well come in handy in the future. (Warning: Others are just plain wrong, and may deceive you more than helping you.)

  3. The law review is an extended, cooperative task, and participating in it -- especially as managers, which the editors-in-chief and the department chiefs are -- is important training in dealing with people (and in particular future lawyers). It's not quite like working in a law firm (the money isn't as good, for instance), but it does involve working with lawyers, being responsible for others' work, acting responsibly with your own work, and other things that do help prepare you for the working world. If you haven't had much work experience of that sort, being on a law review board can be useful.

All this having been said, "making law review" -- getting on the journal in the first place, and then working on it for a year as a staffer -- is probably the more important credential than getting a high editorial board position. And, as with many other things, if you expect to dislike the task, don't do it unless you think it will be really helpful. Life is too short to work for nothing on something that leaves you cold and that likely will be at best a moderately helpful credential. But at the same time don't exaggerate the value of, for instance, being a judicial extern during law school; that could be fun, but it's not a terribly helpful credential either. (Being a judicial clerk after law school is a good credential, but being an extern for a semester during law school generally isn't.)

Finally, to answer the last question: The credential value, from highest to lowest, tends to be Editor-in-Chief, department head (Chief Articles Editor, Chief Notes Editor, Chief Managing Editor or Executive Editor), then positions in the departments (Articles Editor, Notes Editor, Book Review Editor, and the like), then the unnamed editorial positions. This is a rough cut, and note that the board structure -- and particularly the position names -- vary from school to school.

In any event, Lara wishes she could have given you a more definite answer; but this is the best she's got. Lara is enabling comments so that others who are knowledgeable -- especially people who are practicing lawyers and are thus on the hiring side -- can speak to this question. (Recall that the question is the educational and credential value of having a high editorial board position, or any editorial board position when the board year is optional, not of being on law review in the first place.)

Lessig on Lessig on West Wing: Lawprof Larry Lessig offers some thoughts on being used as a character on the TV show West Wing; for background, go here and scroll down to the bottom.
Bloggers v. Journalists: In response to my Joy of Blogging post a reader writes:
I have seen this sentiment posted on many blogs, and I think it displays a lack of knowledge about the newspaper industry. As someone who has done my time in the trenches of a small town daily newspaper, I can assure you that readers do not hesitate to write, call, email and stop by offices if they see an error. Misspell the name of the winner of the local Girl Scout cookie sale and you can be sure that there will be multiple phone calls in your voicemail within minutes of the issue hitting the streets.

As to the timeliness of corrections -- that is something in the innate nature of newspapers, true. But I fail to see why that negates the entire value of a newspaper. Television news can correct instantly, as can radio news. Each medium has its own strengths and weaknesses.
I think this comment underscores the point I was making, the second half of which is the fact that journalists have no way to immediately correct their errors even when they learn of their mistakes. Advantage blogs. And the cost of contacting a journalist to report an error is MUCH higher than emailing a blogger, coupled with a much diminished incentive to incur the cost since corrections are so unlikely. I don't doubt that readers do it as this person reports, but I am quite certain that many readers do "hesitate to write" to report an error. Heck, I just had a profile in the Newton Tab in which my son's name was completely wrong and I did not bother to let the reporter know. (I cannot link to the story because it is now "archived" and I do not see how to access the archive. Another advantage blogs.) Given that no correction would be forthcoming, it just didn't matter, and why make the very nice reporter feel bad about his mistake? Even newspaper websites are not updated the way blogs are. So here too I think that blogs are at a comparative advantage to traditional journalists. And far from "negat[ing] the entire value of a newspaper," I pointed out that traditional reporters remain the primary source of information that feeds the blogs.
Punishment for Anti-Gay Speech:

The remarkable thing about attempts to outlaw anti-gay speech (see the post about Sweden) is that only a few decades ago the orthodox belief throughout much of the West was that homosexuality was so awful that it needed to be outlawed. On this basis, governments (at least in the U.S.) tried to enforce the then-existing orthodoxy by suppressing pro-homosexuality speech. Now, the dominant view, which I share, is that the past perspective was mistaken. And now some governments are trying to enforce the now-existing orthodoxy by suppressing anti-homosexuality speech.

Yet shouldn't our experience of throwing away the formerly unchallenged verities of the past lead us to a bit more skepticism? What if today's elite majority view is wrong: What if it turns out that homosexuality is indeed morally reprehensible, bad for society, or both? I realize that there are good reasons to protect speech even if one is sure that it's mistaken. But if experience suggests that certainties are oftenmistaken, isn't that all the more reason to let speech be protected? And shouldn't the vast changes in formerly orthodox social attitudes over the past half century -- attitudes towards non-whites, towards women, towards gays, and so on -- remind us that a lot less is morally certain than the majority might think?

All this brings us back to Justice Holmes' words in Abrams v. United States (1919), which strike me as right even today:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country...

Naturally, the Swedes have their own Constitution; but the principle that Holmes articulated is suitable, I think, ought to be adopted in constitutions more generally.

Related Posts (on one page):

  1. Punishment for Anti-Gay Speech:
  2. Good Free Speech News from Sweden:
The Joy of Blogging & More on Startrek Enterprise: I have made this point before, and so have many others, but one of the joys of blogging is benefiting from the knowledge of readers who are willing to share it. While bloggers are starting to get credit for what they do (e.g. in disciplining the mainstream media), outside the blogging culture it is not fully appreciated that it is the relationship between bloggers and the distributed knowledge of their readers that is doing much of the work. Powerline got MSM credit for "breaking" the CBS/Dan Rather story, but in the blogosphere is it well known that the original claim of forgery was posted by a reader on Free Republic, which was then picked up by the Poweline blog.

If I make the slightest factual error in a blog post, I can count on the readers to point it out PRONTO. This is why blogging can be more accurate than traditional journalism which relies on "editors" to catch the mistakes of reporters. And unlike traditional journalism, I have a ready means to correct errors almost instantaneously. How can an ordinary beat reporter correct even errors of which she or he later becomes aware? This is a real advantage of this media over that of traditional journalism that has nothing to do with the skill, good faith or biases of journalists. They do not have ready access to the knowledge of their readers and they cannot readily correct any errors they make.

The last time I posted a paean to blogging, I was chastened by readers who pointed out that blogging is largely parasitic on the factual investigation of traditional journalists. Although this is becoming a bit less accurate as time goes by--the original information about Eason Jordan came from the personal reporting of a blogger--it remains overwhelmingly the case for now. And the Jordan story had legs in the blogosphere because of the confirmation of the facts by, among others, Barney Frank, David Gergen and Chris Dodd. In addition, bloggers tend to get action only when the MSM picks up the story (though once again this does not entirely fit the CNN/Jordan story which had been largely uncovered by the MSM). But I think this is not bad. Bloggers & their readers are a check on the MSM but this does not make them a replacement for it--and vice versa. Checks and balances are good things.

The main point of this analysis is that whatever blogging's advantages over the MSM may be, they come from the structural nature of the media rather then any inherent moral superiority of bloggers over traditional reporters. If traditional reporters blogged rather then wrote stories that are published in the traditional manner, their work would benefit from these advantages.

Anyhow, sorry for the digression. These ideas are not original to me, but I think worth remembering nevertheless. And I suspect you need to be older to be in true awe of these developments in communication. Here is the email from Teri Bolke (co-owner of about Star Trek Enterprise that moved me to remark on the joys of blogging. (I also found the blog by Ron Moore about Enterprise to which he links to be of interest.):


In reply to the reader that emailed you....everything was spot on but for the remarks re syndication in regards to Farscape and SG-1.

>>The difference is that both of those shows were independent and in syndication from the >>start, while Enterprise is a network show.

Farscape only reached syndication this month. It was held by agreements with the SciFi Channel that made the reruns exclusive to SciFi until Fall 2005. During this year's NAFTE, Debmar/Mercury Entertainment was able to put Farscape in 85-90& of the country so far in a deal with Fox. They continue working to reach full market penetration.

Also, Farscape never left its home channel for the original 88 episodes. (Buffy:TVS is the only example I know of where a show was cancelled by one network and picked up by another.) Henson and SciFi shared the approximately 1.5 mil per episode cost of Farscape while it was in its first run. Due to a very complicated series of financial crunches, SciFi, EM.TV (then owner of TJHC) and Henson were unable to reach an agreement to fund a 5th season of Farscape and the fourth season was its last.

The recently aired mini-series was funded as a direct result of the fan campaign that began in 2002, with investors approaching Henson and allowing Brian, now co-CEO along with his sister Lisa, to fund the mini-series upfront. The SciFi Channel, while the logical choice to air the mini-series, had no hand in financing it. They simply purchased the airing rights. Lionsgate has recently released the mini-series on DVD.

AS for SG-1, it began on HBO and MGM later moved the show to SciFi, but not because the show was cancelled. Unlike Farscape, SG-1 has been in syndication for several years, on two different channels, while the show is still in first run. There was no shopping the show around to other networks to continue a first run. It begins filming for its 9th season in March, I believe.

From seeing Rick Berman's statement to SciFi Wire when the announcement was made, it looks like Paramount is pulling the plug because the entire franchise, not just this one series from the franchise, has been doing unexpectedly worse, so the situations are very different. They're calling it franchise fatigue; witness how lackluster ST:Nemesis did at the box office. Bringing in Manny Coto to revitalize the show was an excellent idea, executed entirely too late.

Enterprise is up for syndication this year, so there's always a chance that it can grow a larger viewer base. Keeping the show alive in the fan domain, and giving it solid ratings when it syndicates, is what will reassure Paramount that the Star Trek franchise isn't dead.

For an incredible tribute to the fans and their role in Star Trek, take a look at Battlestar Galactica Executive Producer Ron Moore's blog entry at the official Battlestar Galactica site.

I hope that this isn't the last of Trek and from everything I've read, I don't believe it will be. Keep the faith. Everyone told us we were nuts during the campaign for Farscape. We just smiled and ignored them.

Teri Bolke

Update: Two readers wrote to say that SG-1 was originally a Showtime show not on HBO. As for series picked up after cancellation by another network, Jacob Levy writes:

While Buffy was often on the verge of being cancelled, WB did not actually cancel it, and the jump from WB to UPN was made as a result of UPN winning a bidding war in 2001. I *think* that JAG and "Grounded For Life" both got cancelled on one network and picked up by another. Maybe also "Sabrina the Teenage Witch." But not Buffy.
Another reader writes:

In addition to Buffy, shows that were cancelled, then picked up:
Babylon 5, cancelled after 4 seasons, was picked up by TNT The Pretender, cancelled by NBC, was picked up in Made-for-TV movie form by TNT. Hard to say if you count the Family Guy, cancelled by FOX, show in reruns for 5 years by TBS and Comedy Central, now picked up by... FOX.

So, it's certainly possible. Just not likely...
Distributed knowledge indeed.

Tip Jar:

A reader e-mailed to ask how he could put a tip in our tip jar, and I realized that we didn't have one. While we were entirely noncommercial, income would have just caused hassles (I'm thinking blood-covered knives around the monthly Volokh Co-Bloggers Campfire); but now that we've started having ads, shifted to a commercial service provider, and worked out a way of splitting the loot, I thought we might as well make it easy for people to give to us if they want to.

Naturally, you shouldn't feel remotely obligated to. If you're in California or Virginia, you might conclude that you're giving to us enough already by helping pay the UCLA or GMU cobloggers' salary with your tax money. Plus, we're tickled pink that you read us in the first place — your eyeballs are present enough for us.

Nonetheless, if you do want to hit the tip jar, we would naturally be pleased and grateful. Just click on the Amazon Honor System graphic in our right sidebar.

More Michigan Alcohol Protectionism:

Check out this new application of Michigan's protectionist alcohol policy--now Michigan is on Northwest Airlines for transporting alcohol interstate for use on its airplanes. Michigan, of course, is one of the states defending their discriminatory wine shipment regime in the Supreme Court.

If this isn't evidence of why state vs. state protectionist warfare is unwise public policy, I don't know what is. Since Detroit is a hub for Northwest, it is estimated that being forced to buy alcohol from the local wholesaler monopoly will cost Northwest $3 million per year.

Hat Tip to Eric Soskin of Ex Parte Weblog for noticing this.

Sunday, February 13, 2005

Search Warrants in an Era of Digital Evidence: This Thursday I will be presenting a new paper at the University of Mississippi Law School's annual Fourth Amendment symposium. This year's symposium is on searching and seizing computers, a topic that I have spent a lot of time thinking (and writing) about in the last few years. My paper is entitled "Search Warrants in an Era of Digital Evidence," and I have just posted a draft of it online that you can access here. Here is the abstract of the article:
This Article contends that the legal rules regulating the search warrant process must be revised in light of the demands of digital evidence collection. Existing rules are premised on the one-step process of traditional searches and seizures: the police obtain a warrant to enter the place to be searched and retrieve the property named in the warrant. Computer technologies tend to bifurcate the process into two steps: the police first execute a physical search to seize computer hardware, and then later execute a second electronic search to obtain the data from the seized computer storage device. The failure of law to account for the two-stage process of computer searches and seizures has caused a great deal of doctrinal confusion, and makes it difficult (if not impossible) for the law to regulate the warrant process effectively. The Article concludes by offering a series of proposed amendments to Rule 41 of the Federal Rules of Criminal Procedure to update the warrant process for the era of digital evidence.
Unlike most law review articles, this piece is designed to encourage a pretty specific practical reform. My hope is that the article will inspire the Advisory Committee of the Federal Rules of Criminal Procedure to propose an amendment to Rule 41, the rule governing search warrants. The article makes two specific recommendations:
First, the law should require warrants seeking digital evidence to state the property to be searched for at both the physical and the electronic search stages. That is, the warrant should state the physical evidence that the police plan to seize at the physical stage, and the electronic evidence that the forensics analysts plan to search for at the electronic stage. Second, warrant rules should be amended to require that the electronic search step proceeds in a timely fashion. Specifically, the law should require investigators to mirror-image seized computers and return the equipment in a reasonable period of time (such as 30 days) when the hardware is merely a storage device for evidence. When the hardware is believed to be contraband, a fruit, or instrumentality of crime, investigators should be required to begin the forensics process within a specific period of time (such as 60 days) to establish whether that belief is correct. If it is not, the hardware should be returned; if it is, the hardware can be retained.
The symposium itself will be webcast live on Thursday morning from this site; I believe I am scheduled to present my paper at 9:30 CST. The paper will be published in the Mississippi Law Journal's annual Fourth Amendment symposium issue in the fall of 2005.
Is Justice Scalia A Neo-Conservative?: Stuart Buck has an interesting post (with some interesting reader comments) on Bruce Ackerman's recent essay about future nominations to the Supreme Court.
Breaking News from The Onion --

"Latest Bin Laden Videotape Wishes America 'A Crappy Valentine's Day'":

Bin Laden called for "romantic humiliation for all Americans of courting and betrothal age."

"Allah willing, embarrassment and tearful rejection shall rule this day," bin Laden said. "Paper hearts shall be rent and trod upon, and dreams of love delivered stillborn. Body language shall be misinterpreted, crushes unrequited, and sincere expressions of affection mocked. Invitations to dinner will be rejected, just as Americans have rejected Allah, the one true God." . . .

Bin Laden added: "May your special Valentine's Day dinner be spent at an overrated restaurant that impoverishes your purse and leaves your stomach churning with indigestible Western cuisine."

Bin Laden did not overlook the innocuous custom of giving stuffed animals as gifts.

"The teddy bear that holds the 'I love you' heart does not love you at all," Bin Laden said. "It is an unliving, unholy thing filled only with stuffing. Just as the Western infidel is not bestowed with the blessings of Allah, so shall he go unloved by the false bear." . . .

Read the whole thing, as they say.

Star Trek Enterprise Cancelled: I am a big fan of Star Trek Enterprise. The concept of the show is that as a "pre-quel" to the original Star Trek showing how Earth first ventured out into space, under the scrutiny of the Vulcans who are also protaganists, and how the United Federation of Planets is eventually established. I especially appreciated the lack of technology familiar in later Star Trek series, which rendered Enterprise more vulnerable in space, thereby increasing the drama of its interactions with other species (though gradually the technology is being introduced).

After a slow start, the serieshas really gotten good--especially during the past two seasons. But now the series has been cancelled by UPN, which is owned by CBS. Though resistance is probably futile, a letter writing campaign to CBS, Paramount, and the Sci-Fi Channel is being organized by Enterprise Fans. The emphasis is on getting the series picked up by the Sci-Fi Channel. Here is an advertisement they placed in the LA Times. And here are excerpts from an interview with Scott Bakula ("Capt. Jonathan Archer") who is obviously disheartened by the news:

Michiel: Is there anything we can do to save Star Trek: Enterprise from ending?

SB: I don't have a clear answer for that. Obviously we want everyone to tune in and watch the last shows because we're extremely proud of them and we're anxious to share them with the fans. It would be a disappointment if there was a dropoff in viewership because of the cancellation. But the reality is, as I see it, we're a little bit like a ship in a storm with no safe harbor. There really are no interested executives left at Paramount or UPN or CBS who would be willing to fight for the show. Everyone at Paramount who had history with the franchise is gone. So I wouldn't even know who to tell you to complain to, because there's not anyone who really is interested. We've fallen between the cracks in the changing of the guard. . . .

Melc: What are the chances of the show being picked up by SpikeTV or Sci-Fi?

SB: Specifically, to shop the show to another network, you have to have someone from your studio have your show's best interests at heart. To the best of my knowledge, and from reading the release that Paramount put out, they seem very content to let the show go and, I think, hoping that we would go out quietly.

They have a much bigger agenda and mandate from CBS to make new television shows for CBS and UPN. And once again, we don't fit the bill. It is ironic that with our numbers, and with our fan support, we would be very successful on Sci-Fi Channell or USA Network or almost any of the cablers.

But Paramount owns Star Trek, and somebody from here would have to want to search that out. In terms of bombarding Les Moonves with e-mails and letters, etc., knowing Les as I do, I would doubt very strongly that could possibly change his mind.

I was, however, reminiscing yesterday about the good old days when Quantum Leap was cancelled, or should I say, 'put on hiatus' mid-season, and Warren Littlefield had the good sense and good humor to run a commercial where he was having thousands of letters dumped onto him in his office and the commercial was something about "Enough already, we're putting Quantum back on the air!"

I got a good laugh out of that and I fondly remember Warren and his openness to the fan support at that time.
If you like Enterprise, it cannot hurt to write.

Update: An obviously knowledgable reader responds:

Two minor comments: UPN is not "owned by CBS". Both are owned by Viacom and, in fact, Viacom has owned Paramount long before they bought CBS. I worked for a Viacom-owned publisher just before it was sold to a competitor and Parmount label was everpresent (we had to use Paramount amusement parks and Paramount-produced movie titles in textbook examples and exercises).

Second, the kiss of death for Enterprise was moving it to Friday. No TV drama has survived a move to Friday or Saturday night. Homicide was a prime example. Critical acclaim and loyal audience mean nothing because Friday and Saturday numbers will always be low. For one, I find Law&Order: Criminal Intent to be the most intriguing of the three L&Os (soon to be four) and wonder if it will be the first to die (rumor has it that it will).

The third point that should made is that SciFi Channel (as well as USA and Bravo) are part of the NBC network, so, if Paramount still has all the rights to the series, there is a better chance of the show resurrecting in syndication on Spike (owned by a WWE scion). I very much doubt that anyone
would pick up the production costs for any new episodes, although that has happened to SG-1 and Farscape. The difference is that both of those shows were independent and in syndiction from the start, while Enterprise is a network show.
This all sounds right to me, except that I never enjoyed the Law and Order series.

Marcus Cole on the Restatements: As I said in my initial post on this topic, my opinion on the merits of Restatements has been influenced by Professor Marcus Cole of Stanford. Marcus offers this response to my posts here (which I reproduce with his permission):

While I do not have time to fully engage the issue right now, I would like you to please point out to Mr. Sandefur that his arguments are compelling reasons why statutes are an important, perhaps necessary, compliment to common law processes. His arguments do not, however, make the case for restatements.

Indeed, statutes and common law decisions have long operated in tandem with each other, with statutes operating as the "concrete blocks" in the water around which the "coral reef" of common law develops. Common Law and statute law complement and correct each other. To paraphrase Holmes, the value of the common law is that it decides actual cases first. Not imagined cases, not hoped-for cases, not contemplated cases. It decides cases were real people experienced real facts and have real interests at stake. Statutes have meaning where common law develops around them.

Restatements, on the other hand, substitute another set of "statutes" in place of the spontaneous order of the common law. What is worse, these "statutes" are "enacted" by law professors. Now, I've heard all of the arguments in favor of "the Electorate of the Law," but you and I both know that if the only votes counted in the Presidential election were those of law professors, we would have just witnessed the inauguration of President Ralph Nader (Kerry would have been a distant second). I've never understood why anyone who has any understanding of the makeup of the legal academy could trust the formation of actual law to people who bear so little resemblance to those who are to be governed by it.

While public choice theory has exposed the infirmities of legislation enacted by duly elected representatives, I don't understand why anyone would believe that an unelected "legislature" comprised of law professors might be completely immune to these same infirmities. The beauty of the common law, operating in conjunction with real legislation, is that they are, as Hayek pointed out, different in nature, and therefore capable of complementing, correcting and adjusting each other.

Now, I know that there are many well-meaning members of the American Law Institute, and many of them are trying to do what they believe is right. This does not, however, justify the enterprise of crafting law for others to whom they are completely unaccountable. I find it hard to view restatements as more than attempts by a very unrepresentative and possibly disaffected minority to exercise power and influence in a society that has elected leaders that they, for the most part, dislike, and whose values they do not share.
PS: I never name the sender of an email that I quote on the blog unless expressly authorized. So if you want your name included if I quote your email response, you should let me know in your message.
Program on Lord Mansfield and the Common Law at the Time of the Framers:

My (temporary) Georgetown colleague Jim Oldham will be speaking next week in Washington, DC on "Judicial Activism in English Common Law at the Time of the Founders." Details can be found here.

Jim is perhaps the leading living scholar on Lord Mansfield, who is also one of my favorite judges of all time. I discuss him extensively in my recently-published article on "The Rise and Fall of Efficiency in the Common Law" as perhaps the pivotal figure in the development of the modern common law and perhaps more responsible than any other individual for the development of the efficiency-enhancing rules of the common law. The description of the program seems a bit off-key based on what I know of Mansfield--it seems like a long way from the evolving nature of the common law, such as incorporating the law merchant practices into the law of contract and negotiable instruments, to the Warren Court and abortion rights--but the combination of Oldham and Mansfield promises to be a terrific program.

I agree with the more general point about recognizing that the Constitution recognizes the dynamic common law evolutionary process as well as the static conception of the common law. In fact, I argued exactly that point in this article a few years ago. As we note there, however, it is also important to recognize the true nature and institutional structure of the common law, and not leap to the conclusion that just because the Supreme Court says it, it must be common law.

Saturday, February 12, 2005

Good Free Speech News from Sweden:

According to the Washington Post,

A Swedish appeals court on Friday overturned the conviction of a Pentecostal pastor found guilty of violating the country's strict hate-speech law with a sermon that labeled homosexuality "a deep cancerous tumor in the entire society" and equated it with pedophilia.

The appeals court ruled that Sweden's law, which was enacted after World War II to protect Jews and other minorities from neo-Nazi propaganda and was only recently extended to gays, was never intended to stifle open discussion of homosexuality or restrict a pastor's right to preach. . . .

Thanks to How Apealing for the pointer.

UPDATE: Just to make clear, this is good news but not great news; great news would be if these sorts of "hate speech" laws were repealed altogether. A summary of the decision by the Swedish-speaking blogger Stefan Geens suggests that the decision would provide a good deal of protection for discussion about homosexuality, including denunciation of homosexuality -- but not complete protection, and vaguely defined incomplete protection at that. Still, things look better for free speech in Sweden than they did before this decision. (Thanks to reader Dennis Josefsson for the pointer to Stefan Geens' site.)

Related Posts (on one page):

  1. Punishment for Anti-Gay Speech:
  2. Good Free Speech News from Sweden:
A Very Funny Bit of Work

by Gerard van der Leun (American Digest), based on one of my favorite poems, Kipling's Law of the Jungle:

NOW this is the Law of the Blogger - as old and as true as the sky; And the blogger that keeps it may prosper, but the blogger that breaks it must die.

As the visits that pump up the hit count, the Law runneth forward and back -- For the strength of the Blogs is the Blogger that never cuts anyone slack.

Blog daily from news-tip and hat-tip; blog long, but blog not too deep; And remember the Pundit's for linking, and forget not that he has to sleep.

The new blog may free flame the Jordan, but, Cub, when thy archives have grown, Remember the Big Blogs are hunters -- go forth and get scoops of thine own. . . .

For the rest, go here. Note that "URL" is indeed sometimes pronounced "earl," as it needs to be for two of the stanzas to work.

Colorado Media Coverage of Ward Churchill

My latest media column for the Rocky Mountain News examines Colorado media coverage of the Ward Churchill affair. Although local coverage has not been perfect, it is far ahead of the national press in reporting evidence of academic fraud by Churchill, and of Churchill's repeated urging of Americans to commit violent crimes against other Americans.

OT95 Law Clerk Sketch: Tony Mauro has found something amusing in the files of former Supreme Court Justice Harry Blackmun: the program from the Supreme Court's October Term 1995 law clerk show. As Mauro writes, "[e]very June, with the justices in the audience, the clerks put on skits and sing songs, some of which boldly poke fun at their bosses." The program Mauro found includes the lyrics to at least one song, sung to the tune of the Beatles' "Eleanor Rigby":
Ah, look at all the strange appointments.
Ah, look at all the strange appointments.

Ruth Bader Ginsburg,
Strolls into work every day 'bout a quarter past three.
Thinks we don't see.

Stephen G. Breyer,
Gave 50 speeches last year.
If they asked him, he came.
They were all the same.

Crazy nominations.
Where did they all come from?
Senate confirmations.
What were we thinking of?

David H. Souter.
Cutting and pasting all night.
When there's nobody there.
He doesn't care.
Look at him working.
Writing those endless dissents that nobody will heed.
And no one can read.

Sandra O'Connor.
Votes with the left, then the right.
So that nobody knows
How the wind blows.

Nino Scalia
No one will join his invective and hyperbole.
Except for CT [Clarence Thomas].
To borrow Glenn's line: Heh.

Barney Frank & Eason Jordan: I think Kaus has it right:
It should also be noted that the controversy was kept alive not just by blogs, but by the refusal of a relatively liberal Democrat, Barney Frank, to sweep it under the rug in gentlemanly fashion.
Even more, Frank's calling Jordan on the spot while on the same panel was a crucial part of the story. Very honorable behavior all around.

Related Posts (on one page):

  1. Barney Frank & Eason Jordan:
  2. Eason Jordan Quits,

Friday, February 11, 2005

Summers Speech; Nancy Hopkins:

Some interesting background reading on Nancy Hopkins, the MIT scientist who helped create a brouhaha by walking out of Larry Summers' controversial speech on women in science ["When he started talking about innate differences in aptitude between men and women, I just couldn't breathe because this kind of bias makes me physically ill."] It's actually funny, in a tragic-comic kind of way, that a "scientific" institution like MIT would appoint a complainant to investigate the validity of her own complaint, and not demand any actual data to back up the results of the investigation.

UPDATE: Cathy Young sends along a link to her excellent Salon piece on the MIT controversy, and the debate over women in science more generally.

What is it with elite universities and internal investigations with preconceived results? (Via Instapundit)

Eason Jordan Quits,

The Corner (National Review Online) reports, pointing to an AP story that says:

CNN chief news executive Eason Jordan quit Friday amidst a furor over remarks he made in Switzerland last month about journalists killed by the U.S. military in Iraq.

Jordan said he was quitting to avoid CNN being "unfairly tarnished" by the controversy. . . .

If you haven't been following the story, go to InstaPundit, search for Eason, and look at each of the post — Glenn Reynolds has been one of the people who has helped keep the story alive.

This looks like a classic example of the power of blogging: Though many of Jordan's critics have been politicians and journalists, as best I can tell the mainstream media initially paid little attention to the story. In an earlier era, it might have died from lack of attention, if it weren't for the bloggers' talking about the story, and making it hard for people to ignore.

Related Posts (on one page):

  1. Barney Frank & Eason Jordan:
  2. Eason Jordan Quits,
Judicial Confirmation Program at AEI:

On Monday, I will be participating on a panel at the American Enterprise Institute to discuss John Lott's new paper, "The Judicial Confirmation Process: The Difficulty in Being Smart." You can download a copy of the paper here.

The program is at 9:00 a.m., and we have learned that C-Span intends to braodcast it if you can't make it in person (I'm not sure if they will broadcast it live or later on tape).

Anti-Same-Sex-Marriage Being Used to Challenge Non-Marriage Benefits:

Michigan's recently enacted anti-same-sex-marriage amendment reads:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

According to the Detroit News (Oct. 27, 2004), the amendment's chief supporters said it was just about marriage, not about domestic partner benefits and the like:

"Same-sex marriage is illegal (in Michigan) and will remain against the law after the election," said [Dana House, political direct for the anti-proposition forces]. "However, there are some folk who seem to want to distract the voters by talking about same-sex marriage so that they can take away domestic partner benefits and actually change the definition of marriage. Our job is to alert the voters to that risk. It will have the same affect on heterosexual couples." . . .

Citizens for the Protection of Marriage, the group that ram-rodded the petition drive to get the issue on the ballot, said it is not focused on benefits or discrimination. Members don't want same-sex marriages validated here like judges and politicians have done in Massachusetts and California.

"This is about defining marriage of one man and one woman," said Kristina Hemphill, of Southfield, a communications director for Citizens for the Protection of Marriage. As for people losing benefits, "nothing that's on the books is going to change. We continue to confuse this issue by bringing in speculation."

However, now the amendment is in fact being used to challenge domestic partner benefits:

As opponents of Proposal 2 predicted, the constitutional amendment approved by Michigan voters last November to define marriage is being used to challenge same-sex benefits provided to partners of gay public employees. . . .

The Ann Arbor-based Thomas More Law Center and 17 taxpayers are asking the Michigan Court of Appeals to stop the local school district from providing medical benefits to gay couples. In court papers, they cite the November constitutional amendment known as Proposal 2, which says the union between a man and a woman "shall be the only agreement recognized as a marriage or similar union for any purpose." The lawsuit was filed in 2003, before Proposal 2 passed, but the Thomas More Law Center wants the constitutional amendment considered in its appeal. . . .

Now it may well be that the More Center will lose, and the amendment will be interpreted the way Ms. Hemphill predicted. And it may well be that the agenda of the More Center is indeed broader than that of Citizens for the Protection of Marriage. Nonetheless, the language of Amendment 2 is potentially broad enough that it may well have the effect the More Center urges, and that Citizens for the Protection of Marriage pooh-poohed. So just a reminder that voters and other observers need to look at the text of the provision, and not be lulled by the disclaimers by the provision's backers.

For an example of a similar phenomenon, but from the opposite directions, see my "Phyllis Schlafly Said It Would Be Like This" post.

Thanks to my fellow lawprof Michael Froomkin for the pointer to this, and to Don Herzog (Left2Right) for the post to which Michael pointed me, and which this post in some measure echoes.

Eric Alterman Responds:

Reason's Hit & Run posts Eric Alterman's response to Cathy Young, regarding her criticisms of his "the suffering of . . . bigots" column, and Cathy Young's rejoinder. I find Cathy Young's statements much more persuasive. As she points out:

After all, the ceremony that the British Muslim Council boycotted was not meant to honor (say) the memory of fallen Israeli soldiers, or even of the Israeli victims of Palestinian terrorism; it was commemorating the victims of the Holocaust. It is those victims whom Alterman says Muslims have the moral right to view the way gays would view dead "gay-bashing bigots" (how else does one interpret his analogy?) -- simply because those victims were Jews, just like the Israelis and their supporters.

Related Posts (on one page):

  1. Eric Alterman Responds:
  2. Are Holocaust Victims Tantamount to Bigots?
Slate Corrections:

To its credit, Slate today published, in its Corrections e-column, the following:

A "Bushism of the Day" item posted on Feb, 10 reported that President Bush said on Sept. 23, 2004, "Listen, the other day I was asked about the National Intelligence Estimate, which is a National Intelligence Estimate." Though this is the version reported in several transcripts, an audiotape of the speech makes clear that Bush's more coherent actual words were, "Listen, the other day I was asked about the NIE, which is a National Intelligence Estimate."

It's to Slate's credit that it promptly published the correction. Yet I wonder: Given the way Slate is organized — and the same goes for some other online journals — wouldn't it be better to post a correction in the same e-column (which is to say under the rubric on the front screen) as the error appeared?

The front screen naturally doesn't indicate exactly what the corrections are. I suspect that many readers don't normally read the Corrections section. So as a result many readers who do habitually read the Bushisms column, and who read yesterday's column, will never learn that what they were told yesterday wasn't actually so.

Am I mistaken? I realize that newspaper tradition is to segregate corrections in a special corrections section. I'm not sure that's right even for print newspapers, but does it really make sense online? Or is it the case that lots of people do read the Corrections section, and that the best way to reach Bushism readers — again, to un-mislead them — is through an entry in Corrections, rather than a new entry in Bushisms?

Rubbing It In:

I live in what one might call Greater Hollywood — an area that overlaps only slightly with the actual neighborhood called Hollywood, but that in fact houses many Hollywoodchiks. Driving to school this morning, I saw this billboard on Sunset, right near the West Hollywood / Beverly Hills border:

Apparently the plan is also to have such a billboard outside the Academy Awards venue. I know nothing about the group that's putting these out, and I can't say that the billboards constitute High-Minded Productive Political Discourse. But I can't deny being amused . . . .

Related Posts (on one page):

  1. Actors and Politics:
  2. Rubbing It In:
Bankruptcy Reform Hearing:

Yesterday, the Senate Judicary Committee held a hearing on the Bankruptcy Reform Legislation that has been introduced yet again. The legislation has been kicking around for 7-8 years now, and this is the Fourth Congress that has considered it. Everytime it has been voted on it has passed both houses of Congress by overwhelming majorities, only to get hung on various procedural or peripheral issues. Copies of the written testimony are available here. I have lost track of how many times I have testified on this bill, but I think this was the fifth.

There is an old lawyers' joke that sums up yesterday's hearing, about the guy who murders his parents and then pleads for mercy from the court because he is an orphan. Much of the hearing focused on a similar idea--after blocking reform for 7 years, now opponents charge that the problem with the bill is that "time has passed it by" and the world has changed so much since the bill was first written. (See the opening lines of this testimony for instance).

The irony is obvious, but also seems largely irrelevant. The fraud and abuse that is endemic to the consumer bankruptcy system that the legislation was originally written address unquestionably is still there. The FBI estimates, for instance, that at 10% of consumer bankruptcy cases involve fraud:

Bankruptcy fraud schemes include the hiding of assets, false statements, multiple filings, forged petitions and petition mills that crank out phony information. Two-thirds of all bankruptcy fraud involves hidden assets.

Similarly, the best estimates remain that approximately 10% of bankruptcy filers are high-income filers who could repay a substantial portion of their unsecured debt in bankruptcy if they went into a chapter 13 repayment plan, but instead file chapter 7 and pay nothing at all.

In addition, other abuses that the legislation would prevent, have continued unabated during the past 7 years. For instance, it has been reported that O.J. Simpson bought a new house in Florida in order to take advantage of Florida's unlimited homestead exemption and to avoid payment of his civil judgment. Had the bankruptcy reform legislation been enacted years ago, however, he would not have been able to do that, because the legislation specifically imposes a waiting period to prevent exactly this sort of forum-shopping from occurring. Similarly, as child-support collection expert Philip Strauss testified yesterday, the bankruptcy code has continued to interfere with the efforts of divorced women and children to collect child support and alimony payments. It is the continued failure to enact the bankruptcy reform legislation, of course, that has allowed these problems to persist. And, of course, the continued failure to enact reform means that these problems will continue to multiply.

Now, none of these problems of fraud or abuse have solved themselves in the past 7 years that the legislation has been pending. Much was made at the hearing of possible additional new problems and abuses that have appeared on the scene during the past several years, especially arising from bankruptcy-related corporate scandals such as Enron and WorldCom. It may be that Congress wants to draft new legislation to deal with new forms of fraud and abuse.

But I can't see that the fact that new forms of fraud and abuse have appeared on the scene is any reason why we should continue to turn a blind eye to the old-fashioned forms of fraud and abuse that the legislation targets, such as repeat filings, concealing assets, and discharging debts that you could at least pay part of. Seriously, how many divorced women have to be sandbagged by the bankruptcy system in collecting the obligations owed them by their husbands, or how many O.J. situations do we have to sit through before we say "enough is enough"? Again, according to the FBI, "[In] 1995 alone, almost 250 fraudulent bankruptcies were filed every day." In 1995, there were 874,642 consumer bankruptcies filed annually. Last year there were 1,584,170, or a little less than double. If the FBI's figures are correct (and no one has offered any different estimate), that now means that there are about 434 fraudulent filings every day, and roughly the same number of filings by those who would be affected by the means-testing provisions in the bill and would be required to repay what they can of their debt in order to be eligible for a discharge.

The purpose of the bankruptcy laws should be to preserve a fresh start for honest, unfortunate debtors who need it; but not became a haven for fraud and abuse for those who are gaming the system. Turning a blind eye to bankruptcy fraud and abuse doesn't help anyone--either honest filers, creditors, small businesses, or those who are left paying the bills to make up for those who ditch their financial obligations by opportunistically filing bankruptcy. In fact, by decreasing the public confidence in the integrity and honest of the bankruptcy system and bankruptcy filers, in the long run ignoring rampant fraud and abuse will undermine public support for the bankruptcy system, hurting the honest, unfortunate debtors the system is set up to help. The vast majority of bankruptcy filers are honest, unfortunate people who have gotten in a bad situation and need a hand up. But we know that there is substantial undetected fraud and abuse and to simply ignore it is folly. Surely no one would argue that we shouldn't try to prevent fraud in the welfare, Medicare, or Social Security system--so why would we want to simply ignore the rampant fraud and abuse in the bankruptcy system?

There are a myriad of other issues in the bankruptcy reform legislation that I will plan to touch on in additional posts over the next few days, including the new argument from yesterday's hearing that some 50% of consumer bankruptcy filings are health-related (lots of problems with that figure). But I wanted to pass along initial reactions to yesterday's hearing. Right now though I need to catch up on everything else that I have had to set aside all week to get ready for the hearing yesterday.

More on Restatements Yesterday a reader sent me a copy of this satire on the Restatements that appeared in the 1994 volume of the Yale Law Journal (104 Yale L.J. 707) entitled, Restatement of Love by Gretchen Craft Rubin and Jamie G. Heller. Here is how it opens:

Custom has long been the authority in matters of love. Men and women have turned almost unthinkingly to tradition and prevailing social norms for guidance in the tender passion. Yet the Bar of late has come to acknowledge that the lack of codification in this realm has left a rent in the otherwise seamless web of the law. To address this gap, the Reporters have set forth the Restatement of Love.

No doubt some will question the departure from tradition that the Restatement of Love represents. Although the legal rules pertaining to marriage, divorce, and estates have been well established, the law's application to a relationship's early stages has hitherto been largely unexplored. Romantic relationships have been presumed unsusceptible to a structure of rules, perhaps because of the widespread belief that love is the most intimate and idiosyncratic of human emotions. The Restatement of Love, however, is premised on the view that love, like all other aspects of human interaction, can be subjected profitably to legal analysis.

Scope of this Restatement. Currently, matters of the heart are governed by a complicated network of unwritten norms that specify the parties' rights and obligations. These mores, though subject to extensive discussion in almost every field of human endeavor, ranging from art to literature to the social sciences, have yet to be put to the rigor of legal scrutiny. The Restatement undertakes this task. It codifies the underlying principles of love and, where appropriate, draws on established legal doctrines from other fields. The claim has been made that "[t]he heart has its reasons, of which reason knows nothing." By distilling a universal, reasoned framework for relations of love, the Restatement will refute this widespread, but mistaken, view.
I also received this amusing response to my earlier post on the Questionable Value of Restatements:

You gotta get out more. Spend some time in states where the judges are political hacks elected to six year terms and the supreme court justices are called the seven potted geraniums. Make common law? These guys don't even know when to pull over at a police stop! Link

I am thrilled we have the Restatements so we have books with sufficent heft to hit the judges over the head with.
[I found almost as interesting the signature in this reader's email:

This information was added
automatically by Mozilla.
It is not intended
to be a signature.
I am not your lawyer.
You are not my client.]
This reminds me of a catty remark I used to hear when at the University of Chicago: Would you really want commercial law made by Cook County Circuit Court judges? Now, I used to be a prosecutor in Cook County, so I know that this attitude is based on fact. Many circuit court judges are hacks or, when I was there during Operation Greylord, worse.

But this accusation assumes that state judges are worse today in this regard than they used to be, and I know of no reason to believe this is so. Moreover, legal rules are largely made by appellate courts not trial judges and I think that, whatever their weaknesses, state appellate court judges are not incompetent. More importantly, confronting myriad cases with a duty to dispose of them provides them with pertinant knowledge of the deficiencies of previous rules and the interest to do something about it. And not evey judge need be an innovator for innovation to emerge from a common law system. (Most are not innovators, and we should be grateful for that.) My concern remains that an authority like the Restatement inhibits this evolutionary process--though I could be wrong about this.

Update: To read the story of Operation Greylord you have to scroll well down into the web page. But it is a pretty good summary of what went down.

Thursday, February 10, 2005

The Great Jazz Organist Jimmy Smith has passed away, at the age of 79. Smith almost singlehandedly reinvented the jazz organ in the 1950s, and has left an indelible influence on every jazz organist since then. My own tastes in the jazz organ tend to run more in the direction of Larry Young, but there is an undeniable freshness and energy in Smith's early recordings like Groovin' at Smalls' Paradise that is pretty remarkable.
LSAT Logical Reasoning:

A friend of mine is planning to take the LSAT, and I'd like to get her a book that can help her prepare for the Logical Reasoning section. That's the only section I'm interested in right now. Can anyone recommend a book that's worth trying on this, or tell me to stay away from certain books?

Other readers, I'm sure, would also find this helpful, so I've enabled comments; please post your recommendations there. Thanks!

Question About Felon Disenfranchisement Laws:

Some posts on a lawprofs' discussion list led me get a copy of Behrens, Uggen & Manza, "Ballot Manipulation and the 'Menace of Negro Domination': Racial Threat and Felon Disenfranchisement in the United States, 1850-2002," which claims that many laws barring felons and ex-felons from voting were motivated by a desire to diminish the number of black voters.

It may well be the case that this was indeed the motivation behind some such laws; I'm told there's pretty solid evidence for that. Nonetheless, I was wondering about some particular items that the articles cited, and I wonder whether there are any experts on antebellum election laws in the South who might help me with this.

The article lists, for each state, the year in which the state's first felon disenfranchisement law was supposedly passed. Many such laws — for instance, in Delaware, Kentucky, Louisiana, Maryland, and Virginia (for the rest of this post I focus only on the slave states, chiefly because I lacked the time to check for all states) — were first enacted before the Civil War. Since at the time blacks could be and were often disenfranchised simply based on their race, presumably the disenfranchisement of felons didn't have to do with race.

According to the article, many the laws were indeed enacted in the South right after the Civil War, so that's consistent with the theory that they were motivated by a desire to disenfranchise blacks. But the article also has an intriguing footnote alongside many such laws, stating that "The first state constitution gave the state legislature the power to restrict suffrage for criminal activity."

According to the article, Alabama, Florida, Missouri, and Texas (of the slave states) fall into this category. The article seems to erroneously omit such a footnote as to Mississippi, which it turns out also fell into this category (see Miss. Const. 1817, art. VI, sec. 5). It also doesn't note that Tennessee had a similar provision in its 1834 Constitution, though not in its original constitution. It also doesn't note that the South Carolina Constitution of 1865, which explicitly disqualified blacks as voters, also gave the legislature the power to "impose disqualification to vote as a punishment for crime." This suggests that the drafters of that particular constitution saw disqualification of felons as valuable itself, independently of its effect on blacks voters. (I understand why the authors of the article may have omitted this, but it still seems worth noting.)

Now here is what puzzles me: The earlier Alabama, Florida, Mississippi, and Texas constitutions not only gave the legislature such power, but actually seemed to order the legislature to deny ex-felons the vote: "Laws shall be made by the general assembly to exclude from office, and from suffrage, those who shall have been, or may thereafter be, convicted of bribery, perjury, forgery, or other high crime or misdemeanor (Fla. Const. 1838, art. VI, sec. 13; see also Alabama Const. 1819, art. VI, sec. 5; Miss. Const. 1817, art. VI, sec. 5; Texas Const. 1845, art. VII, sec. 4.) Only the Missouri Constitution of 1820 (art. III, sec. 14) and the Tennessee Constitution of 1834 (art. IV, sec. 2) spoke of legislative discretion ("The general assembly shall have power to exclude . . . from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime," to quote the Missouri provision).

So my main question: Did the Alabama, Florida, Mississippi, and Texas legislatures indeed fail to comply with the constitutional command until after the Civil War, and did the Missouri and Tennessee legislatures fail to exercise their powers?

And a supplementary question: The 1835 amendments to the North Carolina Constitution, sec. 4, part Four, say that the legislature "shall not have power to pass any private law . . . to restore to the rights of citizenship, any person convicted of an infamous crime; but shall have power to pass general laws regulating the same." This suggests that felons might have lost the vote by having more generally lost the rights of citizenship, even before the Civil War (the Behrens et al. article lists the first felon disenfranchisement law as 1876, but I wonder whether this might therefore be mistaken). State v. Surles, 230 N.C. 272 (1949), notes that in 1854 the North Carolina legislature in fact passed a law providing for a procedure for restoring the rights of citizenship, but doesn't specifically discuss the right to vote. Might North Carolina have in fact disqualified felons from voting before the Civil War?

These turn out to be important questions to the debate about whether some, many, or most felon disenfranchisement laws were originally intended to disproportionately burden blacks, since such a motivation might render them unconstitutional. If you know about antebellum election laws, and thus know the answers to these questions, please e-mail me at volokh at (I'm not planning to blog on the entirely separate question of whether felon disenfranchisement is good policy; right now, I'm just curious about when the statutes were first enacted in the states I identify.)

UPDATE: The post originally said that the 1865 South Carolina was a proposed constitution; it appears, though, that it was indeed enacted, though without popular ratification.

Speaking on Slippery Slopes at UCLA Law School Monday:

I'm speaking on Slippery Slopes at UCLA Law School Monday, February 14, at 4:30 in room 1430; many thanks to the Federalist Society for organizing this, and to my colleague Mark Greenberg for agreeing to comment on the talk.

Everyone is welcome to attend, though note that parking at UCLA costs $7.

UPDATE: I originally wrongly said Monday the 15th; the talk is Monday the 14th, which is to say this coming Monday.

Bushism of the Day:

Slate's Bushism of the Day for today is:

"Listen, the other day I was asked about the National Intelligence Estimate, which is a National Intelligence Estimate." — Washington, D.C., Sep. 23, 2004

Ha ha ha. That President of ours, he's such a doofus. Why would he say "about the National Intelligence Estimate, which is a National Intelligence Estimate"? Hard to believe, but there it is. Or, wait a minute, maybe because it's hard to believe, we should double-check before believing it, no? That is, unless we're so wedded to the "Bush Talks Funny" meme that we've relaxed our normal skepticism and journalistic caution.

Fortunately, reader Jacob Kaufman's skepticism and caution hadn't relaxed, so he found the White House transcript (remember, Slate's Bushism of the Day column never includes pointers to the transcripts). That site happens to have the audio. And the audio, at a little after 30:54, shows that Bush said:

Listen, the other day I was asked about the NIE, which is a National Intelligence Estimate.

Yup, that's right. President Bush used the abbreviation, and then explained what the abbreviation meant. The official transcript erroneously spelled out the abbreviation, though it rendered it in all caps, which — together with the improbability of the President's just saying "the National Intelligence Estimate, which is the National Intelligence Estimate" — might have led a cautious journalist to check into it:

Listen, the other day I was asked about the NATIONAL INTELLIGENCE ESTIMATE, which is a National Intelligence Estimate.

A cautious journalist might also have checked what other sources say. A quick LEXIS search for "Listen, the other day I was asked about the" revealed 10 references, of which 8 contained the term "NIE," and 2 contained "NATIONAL INTELLIGENCE ESTIMATE" (again, in all caps). But apparently the author of the Bushisms column didn't do this check; if he had, then maybe he would have realized that he should try to find the audio, which would have settled the matter.

As I've said before, part of the problem with the Bushisms column is that they often fault the President for things that aren't much worth faulting. But the broader problem is that once a journalist gets into the mindset of "Let me catch Bush misspeaking," it's very easy to start seeing errors where no errors exist. Instead of the normal "Someone says Bush erred, so let's investigate this skeptically" view that journalists should have, the author falls into the habit of assuming that all claimed Bush misstatements are in fact misstatements. And the consequence is screw-ups like this. Shouldn't we expect better from the editor of a leading magazine?

UPDATE: The item is now gone from the Slate table of contents, and its text has been blanked out on the original page; it's to Slate's credit that they so promptly removed the error. I assume Slate will also post another item explicitly acknowledging the error, so that people who read and understandably believed the original item could learn that they'd been misinformed.

It seems to me that this should go both in Slate's Corrections column and as a separate Bushism of the Day item: I take it that many readers who read Bushisms don't regularly look at the Corrections, but will look at the next Bushisms entry. In any event, I take it that Slate will indeed publish an official correction.

Lynne Stewart Convicted: The Associated Press reports:
  A veteran civil rights lawyer was convicted Thursday of crossing the line by smuggling messages of violence from one of her jailed clients - a radical Egyptian sheik - to his terrorist disciples on the outside.
  The jury had deliberated 13 days over the past month before convicting Lynne Stewart, 65, a firebrand, left-wing activist known for representing radicals and revolutionaries in her 30 years on the New York legal scene.
  Stewart faces up to 20 years in prison on charges that include conspiracy, giving material support to terrorists and defrauding the U.S. government.
  Minutes before the verdict was read, Stewart said she felt "nervous. I'm scared, worried." When she heard the pronouncement, Stewart began shaking her head and wiping her eyes. The courtroom was filled with her supporters, who gasped.
(Hat tip: Howard)
The Future of Legal Scholarship?: News that some of the top law reviews are turning to shorter articles makes me wonder about the future of legal scholarship — and in particular, how the combination of blogs, SSRN, and shorter articles might work together.

  Here's one vision of the future. In a decade or two, articles published in law reviews will average about 30-40 pages in length. The "law review version" of the article will be the condensed core of the argument, with relatively few footnotes. The goal of the "law review version" of the article will be to present a relatively brief and highly readable version of the argument for a broad audience — sort of like articles in the Green Bag, but a bit longer. This is the version that will go into print and be found in the stacks at the library.

  Second, each article will also have an associated website that contains other resources relating to the article and its argument. The website could be the law review's, or SSRN, or perhaps a blog. Either way, the website would contain an extensive biblography, a helpful discussion of background materials, and any other materials that a researcher wishing to learn more might find helpful. A comment section on the website might be available as well, allowing individuals to leave comments about the article and carry on a discussion of its merits.

  It seems to me that this would be a major improvement over the existing approach of legal scholarship. The Internet allows authors to bifurcate their scholarship into condensed and more readable versions for publication and more extensive versions available online for those interested in knowing more. Law reviews could focus on publishing the condensed and readable versions, while websites containing additional materials could be handled separately.

  Your thoughts? I have enabled comments.

New Harvard Law Review Policy on Article Length: Acccording to an e-mail I just received in my inbox, the Harvard Law Review has adopted a new policy on the length of articles it will publish:
  The Harvard Law Review will give preference to articles under 25,000 words in length — the equivalent of 50 law review pages — including text and footnotes. The Review will not publish articles exceeding 35,000 words — the equivalent of 70-75 law review pages — except in extraordinary circumstances.
  Although academic publications from a range of other disciplines regularly use length limitations, we are aware that we are abruptly introducing a constraint to which the legal academy is unaccustomed. Not surprisingly, then, we anticipate growing pains and acknowledge that our approach runs certain risks. Still, we hope the policy we announce today will play a modest role in reversing a trend that has cost legal scholarship dearly. . . .
  We encourage contributors who have submitted articles that exceed the new length limitations to resubmit abbreviated versions of their articles. We are sorry for the inconvenience this mid-year change will cause and the additional work it will surely require. Please understand that these policies, however burdensome, are intended to enhance legal scholarship in the long run. Indeed, the Review conceives of this new policy as a modest first step in a longer process toward substantially shorter articles.
  Fascinating. I don't know how many authors will rewrite their articles just to suit the preferences of the Harvard Law Review — the HLR accepts only a small handful of pieces by non-HLS faculty every year, so serious consideration is a longshot for any individual author — but it will be interesting to see if other law reviews also supplement the recent statement of principles with more explicit length policies. Is this the beginning of something big?

  I have enabled comments.

  UPDATE: Micah Schwartzman notes that the Virginia Law Review is ahead of the game; it adopted the following policy last year:
We strongly prefer Articles under 20,000 words (including footnotes). We will publish manuscripts over 30,000 words only under exceptional circumstances.
More on the Virginia Law Review policy here.

ANOTHER UPDATE: As a commenter points out, the Columbia Law Review has adopted the following policy:
Effective February 28, 2005, the Columbia Law Review will no longer review nor publish articles or essays in excess of 37,000 words in length (including text and footnotes; measured by Microsoft Word's word count feature), barring exceptional circumstances. In addition, we will give preference to articles and essays submitted under 32,000 words in length.

Liberty Magazine: I just started reading the March issue of Liberty. Unlike Reason, which is a libertarian magazine aimed at nonlibertarian readers, Liberty is primarily aimed at libertarian readers. As a result, you can read articles on subjects in Liberty that you can find no where else. For example, only here can you read articles about the internal workings of the ill-fated Libertarian Party, and I can tell you that they are often highly critical. (My only interest in this subject is to confirm my opinion that the perpetuation of the Libertarian Party is a very bad idea.)

The March issue contains a very interesting article by Alan Ebenstein on the degree to which F.A. Hayek himself wrote his last book, The Fatal Conceit. The article is called "The Final Deceit" and it claims that newly available archive material strongly suggests that the published work was largely a product of its "editor" W.W. Bartley. While I have heard such speculations in the past, they are well supported here. Most intriguingly, Ebenstein says that Hayek's original manuscript was the product of years of his own effort, is quite massive, and could be published in its own right. That I would very much like to see.

The March issue also has an engaging article by Bruce Ramsey about how he went from a gun control supporter to someone who wants to protect gun rights.

I cannot link to articles from Liberty as they are not available on line. But if you have libertarian inclinations, you may want to try it out. Many libertarians will find much to disagree with. That is part of the point. Beyond a commitment to certain principles, libertarians do not agree about everything and Liberty explores these disagreements in a way that other venues (apart from blogs, of course) do not. Subscription information (and a very out of date archive) is available here.

Update: Thanks to Dennis Josefsson, an alert and speedy VC reader, I now know that portions of Liberty ARE available on line here. Though the Ramsey article is not available, I have updated the original post to include a link to the Ebenstein piece. I still recommend a subscription. I am off now to Duke.

New Yorker Article on Legal Status of Detainees: The New Yorker has a very interesting article online from its Feb 14th issue on "extraordinary renditions" and some of the pracical consequences of the uncertain legal status of suspected Al Qaeda detainees. The article is not without its own particular perspective, but it's still pretty interesting. (Hat Tip: Phil Carter)

Wednesday, February 9, 2005

Infantilizing 20-Year-Olds:

An Oklahoma legislator is proposing this bill (see here for a news story); the new provision is italicized:

Section 1111. A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator [the spousal rape ban is in another section -EV] . . . under any of the following circumstances:

1. Where the victim is under sixteen (16) years of age;

2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;

4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;

5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;

6. Where the victim submits to sexual intercourse under the [fraudulently induced] belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief . . .

7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or

8. Where the victim is at least sixteen (16) years of age and is less than eighteen (18) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system; and

9. Where the victim is an undergraduate student under twenty-one (21) years of age attending any college or university in this state or the victim is attending any public or private secondary school in this state, regardless of the person's age, and engages in sexual intercourse with a person who is an employee of the same college, university or school system unless the two persons were legally married prior to enrollment or employment in such college, university or school. . . . .

So it would be a crime, for instance, for (1) a university professor, (2) a staff member, (3) a student (undergraduate or graduate) who works as a research assistant or a teaching assistant, (4) a student who works in a university cafeteria to have sex with a 20-year-old undergraduate man or a woman. These are 20-year-olds, folks, in a state where it's usually perfectly legal to have sex with a 16-year-old.

Now perhaps this was just a drafting error, though a huge drafting error. Maybe they're just looking to go after those awful lecherous professors who prey on students. That is to say "prey" on adult, 20-year-old students, who are legally grownups, and who are constitutionally entitled to make their own decisions about whom to sleep with (see Lawrence v. Texas). These are not 14-year-olds. They aren't mental patients. They aren't drugged or unconscious. They are old enough to fight in a war. They are old enough to marry without anyone's permission. And the state of Oklahoma is seeking to "protect" themselves against their own decisions about whom to have sex with.

Now I should say that I think schools can quite properly prohibit professors from sleeping with their current students, on threat of administrative sanction or even dismissal. If I were an administrator, I wouldn't trust a professor's evaluations of his own lovers. Such restrictions are legitimate for employers to impose on their employees, though there are also costs when the restrictions are too broad. (I wouldn't, for instance, prohibit all sex that might possibly indirectly cause a conflict of interest — for instance on the theory that this student, while not in your class, may one day take a class from you — or that might in some situations involve coercion. That, I think, is too much of a burden on consenting adult employees' and students' behavior, even if it does help avoid some problems for the university and for some other students.)

But all this is in any event no reason to make sex between professors and students criminal. And it certainly is no reason to criminalize sex between professors and students who are in completely different classes and even completely different departments. Twenty-year-olds are not foolish children. If they're fools, they're fools like the rest of us can be fools, and are entitled to the costs and benefits of their own folly.

(No, I've never had an affair with a student, whether or not my own, while I was a professor, even before I was married.)

Thanks to reader Sydney Henderson for the pointer.

Doesn't Seem Quite Fair:

I have in the past criticized law schools' attempts to exclude military recruiters from campus. But I have to also criticize this reaction by a federal district judge (thanks to How Appealing for the pointer):

An Alabama federal judge has told Yale Law School he won't accept its graduates for clerkships because the school blocks military recruiters from campus. . . .

Is it really fair to take the school's actions out on innocent Yale law students? Yes, I realize that the school's actions might themselves be seen as hurting innocent Yale law students to send a message — but that doesn't make it right, nor does it make Yale students responsible for what the law school does.

As unfairnesses go, it's hardly the worst: The students will doubtless have other places to go, and no-one is entitled to a clerkship job. Nor is there anything illegal or unconstitutional about this; federal judges are entitled to discriminate based on the law school an applicant went to (and often do so) unless the discrimination is utterly irrational, and I suppose this probably passes the minimum rationality test. Still, it seems to me that federal judges should strive for a higher level of fairness to applicants than the minimum required by the rational basis test — and should try hard to distinguish the guilty parties from the innocent.

UPDATE: My colleague Stephen Bainbridge has a somewhat different take.

The Law of Atlas Shrugged:

In honor of the 100th anniversary of Ayn Rand's birth, I thought I'd reprise something I posted in the very early days of this blog (though I realize the audience for the following is limited) . . . .

Where Is John Galt? Our tour through the Law of Atlas Shrugged begins with this question, which was the heart of the noteworthy case Temple v. John Galt Co.[1] The Temples (note the antirational religious connection) sued the John Galt Co., but failed in their attempts to serve process by mail. Had they been better read, they would have realized the intrepid hero was harder to find than that. Suffice it to say that, in the ringing words of the Court of Appeals, "the trial court filed a judgment entry, granting John Galt's motion and vacating the default judgment."

But this just returns us to the more familiar Who Is John Galt? Is it indeed the John Galt Co.? Or is it John Galt Associates, of Pakwood Industries v. John Galt Associates?[2] Here, John Galt, a commercial landlord who refused to let tenant Pakwood assign a commercial lease, won again. Galt's refusal to assign, the court said, was "reasonable." (But of course.) Pakwood should consider it lucky that Galt agreed to go to court, rather than just dynamiting the whole property. Whoops, wrong book.

Who else might John Galt be? Surely not John Galt, Ltd. of Assistant United States Trustee v. John Galt, Ltd.[3] or John Galt Energy, Inc. of In re John Galt Energy, Inc.[4] If there's one thing we know, it's that John Galt would never flee his contractual obligations by declaring bankruptcy.

Could he be the plaintiff in Galt v. City of Sparks?[5] The decision is a one-line order which provides only the tantalizing clue that a co-defendant was Policeman Henderson (Badge # 9516 of the City of Sparks). That John, always getting into trouble. Or perhaps the answer lies in Rolfe v. Galt,[6] where John and his wife Lorraine Galt -- how come we never heard about her? -- triumphed over a baseless personal injury lawsuit.

Curiously, I could find no appearance by the rest of John's merry band in the published cases, except for one shadowy figure: none other than Ragnar Danneskjold. Danneskjold v. Brown[7] acknowledges that Ragnar was a veteran (naturally), though apparently one suffering from post-traumatic stress disorder, which seems much less like the Ragnar we know and love.

Ragnar next shows up in Danneskjold v. Hausrath,[8] the case that first revealed this fascinating subject to your humble author, who stumbled on it when doing research for an article he was writing. Here Danneskjold is found to be an inmate at Attica State Prison, suing to challenge, of all things, the Prison's failure to pay him minimum wage for certain work that he was doing. Such a suit may at first sound distinctly unobjectivist, but bear in mind that Danneskjold is demanding a minimum wage from the government, not a private business. (Danneskjold's crime of conviction is not indicated, but since he's being kept in state prison, it probably doesn't involve the high seas -- or could there be an inter-governmental conspiracy afoot?)

Finally, we return to the questions we started with: Where Is John Galt? Who Is John Galt? And a new one, What Ever Became of John Galt?

Here is where John's story draws to a close; for though he emerged a resounding winner from the book, everyone, even (perhaps especially) man qua man, loses in the end. But what a fitting end, as chronicled in State ex rel. Smith v. Greene.[9] "On September 14, 1970," the court explains, "Tri-State Motor Transit was struck by members of Teamsters Local 823." On September 30, "a truck, carrying explosives, owned by Tri-State Motor Transit Company and driven by Galt was struck by rifle fire and exploded. Galt was killed and his clothing, pocket book, money and personal effects, valued at $100.00 were destroyed." "[T]wo teamsters [were] subsequently convicted for the second degree murder of Galt."

Even in death Galt struck a blow for what he held most dear; for State ex rel. Smith is a case about private property. "[T]he substance of the claim here is not wrongful death," the Court said: "It is property damage." And that the "value of the property destroyed . . . was small" could make no difference: The "wrong is just as great as the wrong done to the owner of property of great value."

Property is property. Not only actual damages, but even punitive ones were available, see id. at 60, to punish those who tamper with this sacred principle. Ayn Rand couldn't have written it better herself.

[1] 1997 WL 177627 (Ohio. App.), appeal not allowed, 79 Ohio St. 3d 1491 (1997).

[2] 219 Ga. App. 527 (1995).

[3] 130 B.R. 464 (S.D. W. Va. 1989).

[4] 75 B.R. 658 (Bankr. E.D.N.Y. 1987).

[5] 848 F.2d 1242, 1988 WL 58008 (9th Cir.).

[6] 477 N.Y.S.2d 790 (App. Div. 1984).

[7] 1996 WL 695524 (Vet. App.).

[8] 82 F.3d 37 (2nd Cir. 1996).

[9] 494 S.W.2d 55 (Mo. 1973).

Don't Trust Everything You Read:

The Times (London) reported last Sunday -- thanks to Phil Carter for the pointer -- that

LAWYERS acting for J K Rowling are heading for a legal battle with the US army over a training manual that features characters similar to those in the Harry Potter books and films. . . .

The magazine, The Preventive Maintenance Monthly, includes a cartoon character called Topper, a boy wizard, who attends Mogmarts school of magic. Harry Potter, Rowling's boy wizard creation, attends the Hogwarts school of magic.

In the magazine, army officials are given a lesson from Professor Rumbledoore and his staff, a name strikingly similar to Rowling's Professor Dumbledore. Other characters in the magazine include professors McDonagal and Snappy, and a Miss Ranger. The Harry Potter books feature professors McGonagall and Snape and Hermione Granger.

I'm not sure that the similarity of names alone would constitute infringement, but it would be close, and if they also borrow the characters' character traits, then it probably would be infringement. The military has a decent fair use claim, but far from an open-and-shut one -- they seem to be using Rowling's characters to make their own point, rather than commenting on them, and this cuts substantially against their fair use argument.

Nonetheless, what struck me most about the article is this:

A spokesman for the American defence force said: "Each copy of our magazine is reviewed by our legal office.

"After reviewing this copy they judged that we were doing nothing wrong and that these characters were in parity use."

Pretty clearly it must have been "a parody use," not the nonsensical "in parity use." Maybe the spokesman jumbled this himself, but more likely the reporter mistranscribed it. Just further evidence that you can't always trust even supposedly direct quotes, especially when they talk about Judge Ito with the wet nose.

Happy 100th, Ayn Rand!

Cathy Young provides a balanced appraisal of Ms. Rand in Reason.

Tuesday, February 8, 2005

Court-Appointed Counsel: If you're interested in criminal law, don't miss Ken Lammers' latest post on his recent experience as court-appointed defense counsel.
University of California Dropping Objection to "The Dark Side of UCSB" Web Site

The Foundation for Individual Rights in Education reports the outcome of a controversy I noted a while back:

The University of California at Santa Barbara (UCSB) has abandoned an attempt to force the owner of a website called The Dark Side of UCSB from using the letters "UCSB" in his web address. UCSB threatened Mr. James Baron, the site's owner, with criminal sanctions if he did not change the site's address. The Foundation for Individual Rights in Education (FIRE) protested UCSB's unconstitutional threats, and on the very same day that UCSB received FIRE's letter, the university notified Mr. Baron that it would pursue the matter no further.

"We are relieved that UCSB has come to its senses and realized that it may not prohibit those who might criticize the university from using the university's name," remarked FIRE President David French. "UCSB twice told Mr. Baron, whose website is critical of the university, that it was a crime to use the UCSB name without the university's permission. It is simply absurd for a public university to claim that it cannot be criticized by name."

Mr. Baron created to draw public attention to what he and others see as a dangerous and lawless campus culture at UCSB. The website criticizes USCB administrators for not doing enough to change this culture. In November 2004, UCSB sent Mr. Baron two notices claiming that he had violated California law by including the letters "UCSB" in the web address, and that using the letters without permission could make him "guilty of a misdemeanor" under Section 92000 of the California Education Code. Asked about the university's actions in an article in UCSB's campus newspaper, administrator Margaret Clow claimed that the university was concerned that Internet users would believe The Dark Side of UCSB was an official UCSB website. . . .

Related Posts (on one page):

  1. University of California Dropping Objection to "The Dark Side of UCSB" Web Site
  2. University of California Trying to Restrict Speech:
Seeking a Small Favor from Someone in Glendale, California:

I was hoping that someone who lives around Glendale, California might take a photo of something in Glendale and send (or, better yet, e-mail) me the photo. If you might be willing to help me out with this, I'd be much obliged; just let me know, please, at volokh at, and I'll give you the details.

UPDATE: Reader David Reed has taken care of this; many thanks to him!

Websites That Can Read Your Mind:

Orin's post reminds me of this mind-reading card trick. Except this one really works -- it actually does read your mind. I'm a believer. It's magic, man, magic.

(This skeptical explanation is obviously a fraud, created by dry, boring rationalists who are trying to suck the mystery out of life.)

Related Posts (on one page):

  1. Websites That Can Read Your Mind:
  2. Websites That Can Read Your Mind?:
Websites That Can Read Your Mind?: Over at The Corner, Jonah Goldberg links to a site that offers a "psychic mind reader" purporting to know what 2-digit number you're thinking about.

(Click here for an explanation of how this trick works.)


Related Posts (on one page):

  1. Websites That Can Read Your Mind:
  2. Websites That Can Read Your Mind?:
More Good News for Discussion Group Moderators --

and for group blog editors (like me): The New Jersey Appellate Division has just held (Donato v. Moldow, decided on Jan. 31) that a federal statute — 47 U.S.C. sec. 230 — makes Web site operators immune from defamation liability based on items posted by users, even when the operator keeps some messages and deletes others, changes some messages, sets ground rules for the discussion, and so on. This would also mean that bloggers are immune from liability based on comments posted by others on their blogs. And I'm pretty sure that it means that group blog editors are immune from liability based on things posted by their cobloggers (not that I ever worried about my cobloggers' actions!). Of course, bloggers and others remain liable for statements that they themselves have made.

For an earlier case that foreshadowed this, and that was in fact cited by the New Jersey court, see here. There have been one or two court decisions that have taken a narrower view of 47 U.S.C. sec. 230, but the dominant approach is the one that the New Jersey court accepted.

Id. & Ibid.:

The Mommy Blawger asked me something that I'd wondered about, too: Why do legal works tend to use Id. to mean "same source as last time" rather than the Ibid. that's more common in other disciplines? I asked my brother Sasha, who is generally The Man Who Knew Too Much but in particular my Latin expert. Here's his answer:

"Id." is short for "idem," meaning "the same (man or thing)." "Ibid." is short for "ibidem," meaning "in the same (place)."

So you can find usages where "id." is for people and "ibid." is for books. For instance, see here. So I've seen things like "Jefferson, Book A" and then "id., Book B."

While that last source says "ibid." should stand in for the entire source (author + book), hereyou can see someone using "Id., ibid." to mean "The same author, in the same book." here you can see "Kant, ibid." where "id." would be inappropriate for Kant since the preceding source wasn't Kant. That's problematic (just like another old-style citation term, "op. cit.", since the reader might have to leaf through several pages to find the last time you cited Kant and see what book you were talking about),

Some (for instance, here) say that "ibid." means "EXACTLY in the same place," so you can say "ibid." for the same page of the same book, while if you're changing pages you should say "id. at 581" or similar (see here).

The bottom line, though, is that even though some disciplines use both "id." and "ibid.", and various style guides will explain the difference, there's really no reason to have both of them. Of course, the Bluebook has entirely dropped the distinction; and I read a president's introduction to an old volume of Law Reviews where he announced that they were finally dropping the "id."/"ibid." distinction which no one could really understand anymore.

Bloggers -- You May Already Have Blogging Libel Insurance,

but you might have lost it by having ads or a tipjar.

This surprised me, too, but it seems to be so. Here are the details. (Thanks to Kurt Opsahl of the Electronic Frontier Foundation for first suggesting this point, and to my wife for her advice on insurance law. Please note, though, that I'm not an insurance lawyer, though I've done a bit of research on this subject. Don't take this to the bank, and do let me know if you are an insurance lawyer and have some corrections. Consider this general speculation about the lay of the land, and not individualized legal advice.)

1. It turns out that homeowner's insurance policies, and possibly also some renter's insurance policies, generally cover libel lawsuits. That may sound odd, but the policies tend to cover both damage to your property (the main reason, I suspect, that most people buy these) and liability for unintentional harm that you inflict on others. One policy that I read, for instance, says that

If a claim is made or a suit is brought against any insured for damages because of bodily injury . . . caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent. . . .


"Bodily injury" means; . . . personal injury . . . arising out of . . . libel, slander or defamation of character; or . . . invasion of privacy.

If you have an umbrella liability policy, it may provide extra monetary coverage. Of course, you're only covered if your insurance contract does indeed specify this, explicitly or implicitly. You ought to read your policy (they are often quite readable), and pay close attention both to the body of the policy and any separate definitions section.

2. These policies generally don't cover punitive damages, but they do cover both compensatory damages and litigation defense costs. Fortunately, that's what you most want to have covered.

Libel cases are hard for plaintiffs to win, and punitive damages are especially hard to get. If you're writing on matters of public concern, and are sued for libel, you can't be liable for punitive damages unless a jury finds that you knew your statement was false or at least knew it was quite likely false but blithely published it without any investigation. So chances are you won't be on the hook for punitive damages, or even for compensatory damages.

But even if you win, you could spend huge amounts of money defending yourself. That's where the insurance can be especially handy.

3. However, these policies generally explicitly exclude liability related to "business pursuits." The exclusion and the definition of "business pursuits" may vary from policy to policy, so check yours (and again check both the homeowners' insurance and your umbrella policy, if you have it). Still, I'm told that most policies just say "business pursuits," and sometimes define them as referring to a "trade, occupation, or profession."

If your blog is entirely noncommercial — you neither have ads nor solicit donations for a tip jar, and you don't systematically use your blog as primarily promotion for your business — then you should be covered for libel lawsuits arising out of your blog posts, because the blogging wouldn't be a business pursuit. (Possible exception: If your primary occupation is a professor or a journalist, then even noncommercial posting on topics related to your specialty may conceivably be seen as part of your main occupational "business pursuit"; I know of no precedents one way or the other about this.)

But if you make some money out of it, even a small amount, then in many states you probably won't be covered. In a few states (as best I can tell, Georgia, Indiana, Minnesota, Mississippi, North Carolina), even a blog that makes some money will be covered if blogging isn't your primary occupation. In Arkansas, Idaho, Louisiana, and Michigan, you might be able to get coverage on the theory that making money wasn't your primary motive in blogging, and that you were instead doing it as a hobby with money being only a side consideration. Still, the majority view, as I understand it, is that any moneymaking component (so long as it's regular, rather than just one-time or highly intermittent) makes your blogging into business activity and thus excludes it from coverage. This isn't entirely clear, but that's my sense from reading some cases and a couple of reference works.

4. This means that if you're worried about the risk of libel lawsuits, you might want to consider staying entirely noncommercial. Naturally, you wouldn't have to do it if you live in a state which reads the "business pursuits" exception narrowly. (Most homeowner's insurance policies, I'm told, don't have a separate provision indicating what state law would be used to interpret them, so courts would generally apply the law of where you live.) And if you figure that you'll make lots of money from the ads or the tip jar, you might be willing to run the risk, especially because libel lawsuits against bloggers are thankfully rare, and because you might think that your posts would be unlikely to trigger a lawsuit.

But if you think that having libel insurance will let you sleep better at night, you might conclude that it's better to forego, say, $500 worth of advertising income in a year in order to remain insured.

5. What should you do if you get a threatening letter?

  1. Read your insurance policy. As I said, it may not be a hard read. Pay close attention to all the sections, to see if there might be some unexpected exclusion that may apply. Also pay close to attention to the definitions section, since some terms may be defined in counterintuitive ways.

  2. Immediately notify your insurance company, in writing, that there might be a claim against you; send them a copy of the nastygram you received, and a dated cover letter. Tell the company that you need to consult a lawyer to deal with the threatening letter, and ask them to get you a lawyer right away, or to authorize you to consult one yourself on their dime. The insurance company may not have an obligation to pay your lawyer's bills until the lawsuit is filed, but it doesn't hurt to ask.

    I'm told that you can usually do the notification through your insurance broker, who knows how to deal with the company, and whom to talk to there. In any case, talk to your broker and see whether he'll do the notification for you or whether you ought to notify them yourself.

    Always communicate in writing, keep copies of all communications, and date all your communications. You can also call them (particularly important if you need to nag them), but confirm any substantive communications in writing.

  3. If the other side's gripe with you is sound — if you did indeed err — post a correction. It's the right thing to do, and it may avoid a lawsuit.

  4. If a Complaint is filed against you in court, notify the insurance company about that, too, by sending them a copy of the Complaint with a dated cover letter. Demand that they get back to you quickly about whether they're hiring a lawyer on your behalf.

    If they don't tell you quickly, hire a lawyer yourself, and show him a copy of the insurance policy. Then inform the company that you've hired the lawyer, and that you expect them to pay the bills. Bug them repeatedly, if necessary, including through your insurance broker. If your policy covers libel, and you aren't within the business pursuits exclusion, you likely have a very strong case for coverage; but they can still be slow, and you need to be the squeaky wheel.

  5. If you do hire a lawyer, show him the policy, and negotiate with him in light of the policy. See if he would agree to represent you for rates that he's pretty sure the insurance company would pay. See if he would agree not to charge you if the insurance company denies coverage. That, of course, depends on his sense of how likely coverage seems to be. But cyber-libel cases are potentially pretty interesting, even glamorous. Some lawyers may be willing to take a small risk of nonpayment to do a fun case like that.

* * *

In any case, these are just a few thoughts; use these numbers for comparison, your mileage may vary. But keep in mind that (1) you may already have libel insurance for your blogging, (2) you might lose it, depending on the state you're in, if you sell ads, have a tipjar, or otherwise make even small sums of money from your blog, (3) you may therefore want to plan your blog financing accordingly, if you're the worrying sort (or for that matter the libeling sort), and (4) if you are sued or threatened with a lawsuit, look carefully at your insurance policies, notify your insurance company immediately and in writing, and bug them repeatedly for an answer.

Hostile Environment Harassment Rules and Free Speech:

Another example of the conflict between the two (and not the first instance of veteran status harassment claims being brought as a means to restrict speech):

Political bumper stickers and articles posted on a professor's office door are raising questions about free speech and harassment at Keene State College.

Shane Calchera, a student and military veteran, accused associate history professor David Stowell of harassment, saying the anti-war, anti-Bush administration statements on his office door created a learning environment that is hostile to veterans.

The college cleared Stowell of the charge . . . but the professor said that the investigation itself was an attack on his free-speech rights.

"I was investigated because of my political views because someone objected to them, and that's frightening," Stowell said. "Everyone on campus should be concerned."

"Regime change begins at home," "Stop the war," and "How many Iraqi children did we kill today?" read some of the 15 items on his door. . . .

Calchera said he didn't realize he had filed a formal complaint. He said he simply wanted his concern addressed: that state property was being used to create what he felt was an environment hostile to military veterans.

The school's harassment policy defines "veterans status" as a protected group.

He said he wouldn't have a problem with the postings if they were on Stowell's own property, but he objects to them being in a place he is forced to go as a student — a professor's office door. . . .

Professor Stowell's speech of course shouldn't be censored — but neither should postings by professors or students that offend people based on race, religion, sex, and the like.

Incidentally, the Keene harassment policy prohibits (among other things) "jokes" and "remarks made in the person's presence" that "creat[e] a hostile or offensive working or academic environment" based on "race, color, religion, sex, age, national origin, sexual orientation, marital status, veteran's status or disability." Pretty clearly unconstitutional as applied to speech (except speech that falls within exceptions such as threats).

The college was probably right in concluding that these posters weren't enough to violate the policy, since they probably weren't severe or pervasive enough to create an offensive environment, and in any event they need not be especially offensive to veterans because they are veterans. But even if the speech had been more common and explicitly anti-veteran, the way to deal with wrongfully offensive environments is for the school to speak up in condemnation of the rude and in defense of the offended, not for it to forcibly suppress such speech. (The matter may be different as to direct speech by professors to particular students, especially in class -- a complex question -- but posted materials on people's offices should be protected even if they are offensive to some passersby.)

I Propose a Compromise in the Ward Churchill Case:

The University of Colorado doesn't fire him, and in exchange he promises to change his last name to anything but Churchill. (You decide which wartime political leader's name you might suggest to him instead.)

D.C. Circuit Ducks Second Amendment Issue

in the challenge to the D.C. gun ban, holding that citizens can't challenge the ban unless they're being prosecuted for violating it, or at least have shown some serious threat of imminent prosecution. Haven't closely read the whole decision yet, but that's the gist.

Neither the majority nor the dissent express a firm view on the Second Amendment issue. Both opinions acknowledge that the Second Amendment challenge raises an arguable constitutional question, but they don't explain their views on that question (which makes sense given that the debate is about the procedural issue).

Thanks to Matt Rustler for the news.

Restatements Revisited: On his blog Freespace, Tim Sandefur raises a fundamental challenge to my skepticism of Restatements (which I recommend reading in full):
What I mean is this: my college economics professor, Gary Wolfram, explained to us that the concept of spontaneous order teaches us that we should wait to see the order that arises from people's choices before we make policy, rather than trying to impose policy on people from the top down, on the basis of pure theory. He used to explain it by reference to sidewalks: suppose you want to lay out a college campus, and you want to put in sidewalks that the students will use to go from building to building. The best way, he said, is to wait a few years to see what pathways the students wear into the lawn, and put the sidewalks there, because those are the pathways the students use. Otherwise you'll have sidewalks, and then you'll have these pathways across the lawn where the students actually walk.

But you have to pour out the cement and make those sidewalks at some point. And at any time that you finally decide to pour the sidewalks, there's Randy Barnett saying "wait a second, this is a dynamic process, and if you pour cement here, you're freezing that dynamic process in place, and interfering with spontaneous order." You see my point. Barnett's complaint about the Restatement could be made, with equal validity, of any case that decides any issue in, say, contract law. The judge could say "I'm supposed to be `restating' the law on this issue and applying it to the facts before me, but once I do so, a case tends to freeze the common law evolution in amber."
There is much to be said about what remains fixed and what changes in a dynamic evolving common law system. The doctrine of precedent is an integral part of a common law process (unlike a process that interprets a written constitution), which is analogous to judges pouring the sidewalks. If the doctrine of precedent is considered too strong, however, then courts will not reverse their previous decisions--hence the traditional appeals by common law judges to their legislatures to modify the common law when experience has revealed their precedent to be defective. On this view, judges may pour the sidewalks, but only the legislature can tear them up.

But if precedents can be reversed then courts are able modify them when new circumstances reveal the limits of previous formulations of legal rules. The main point is that, while legal rules should be "fixed," judges should consider it their responsibility to repair broken sidewalks they themselves poured, remove unused sidewalks, and lay new ones. The Restatement movement seems to have gotten judges out of this mind set. "That's not my job, let the ALI decide" seems to be a judicial attitude inspired by the Restatements (though I may be wrong about the judicial psychology here). Responsibility for changing the judge-poured sidewalks has shifted from the legislatures to the ALI (which may be a good move) and away from judges themselves (which may be a bad move).

My original point was that the Restatements themselves were NOT based primarily on the wisdom of their drafters--though they do incorporate some "reforms" at the margin--but the wisdom of the common law process, a process that is subsequently curtailed by the existence of Restatements, making any new Restatement more a product of the knowledge of a handful of academics--often motivated by partisan pro- or anti-business concerns--than the diffused knowledge of numerous judges deciding countless cases. Or such is my concern. I remain open to being convinced otherwise, and I thank Tim for his thoughtful response.
Progress on the Length of Law Review Articles?: I have blogged before about the length of law review articles, and my belief that law journals should try to accept and publish shorter works. I am therefore delighted to find out that some of the top law reviews in the country have agreed to a statement of principles discouraging particularly lengthy submissions. The agreement appears to be a response to the Harvard Law Review online survey in December that I blogged about here. Specifically, the ACS Blog reports that the main law reviews at Columbia, Cornell, Duke, Georgetown, Harvard, Michigan, Stanford, Texas, Penn, Virginia, and Yale have agreed to "rethink" the length of articles they agree to publish:
The vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages, and any impression that law reviews only publish or strongly prefer lengthier articles should be dispelled. Ultimately, individual law reviews will have to decide for themselves how best to resolve these concerns. Please know, however, that editors across the country are cognizant of the troubling trend toward longer articles and are actively exploring how to address it.
  It's terrific that several of the top law reviews are being responsive to this problem. I hope other journals are paying attention and join in. Of course, it means that law professors who have spent the winter padding their articles with needless asides and unrelated background points to bulk them up to 100 pages or so are now going to have to edit their pieces down to a more readable length. But in the end this will result in better, more concise scholarship that is much easier to read and easier to understand.

  (Hat tip: Paul Caron)
Maybe some typist has a sense of humor:

I'm going to be teaching Cohen v. California tomorrow (the case reversing a conviction for wearing a jacket that said "Fuck the Draft"), and I decided to see if Cohen was the earliest iteration of "fuck" in a Supreme Court opinion. (It was.) I then looked up "shit" to see if it appeared earlier in the Supreme Court, according to Westlaw. The answer is yes, but only because of a scrivenor's error. The Westlaw report of Galveston, H. & S.A. Ry. Co. v. Gonzales, 151 U.S. 496 (1894) contains this doozy of a typo:

"The jurisdiction common to all the circuit courts of the United States in respect to the subject-matter of the suit and the character of the parties who might sustain shits in those courts is described in the section ..."

I do not know, of course, whether the typist made this error intentionally. It was probably just an accident, but it's more amusing to imagine a typist with a sense of humor (or just boredom).

By the way, for those who care: the first case that intentionally included the word "shit" was Eaton v. City of Tulsa, 415 U.S. 697 (1974).

The Questionable Value of Restatements: Yesterday I noted (here) the passing of E. Allan Farnsworth who, among his other accomplishments, was the reporter for the Restatement (Second) of Contracts. While I have some strong disagreements with it, I think that the Second Restatement is a masterpiece of neoclassical contract law, blending the best of "classical" formal rules with "neoclassical" qualifications. I simply cannot imagine the present American Law Institute (who produces all the Restatements) improving on it in my professional lifetime.

Having said this, I wonder if the Restatement project has proven to be a good idea. On this issue I am influenced by the skepticism of--nay, downright hostility to--the Restatement project I have heard expressed by contracts professor Marcus Cole of Stanford. The problem is a contradiction built into the concept of a "Restatement." It is supposed to be "restating" (and systematizing) the law as it has evolved in the common law system--which presupposes that the evolutionary common law process is an important source of wisdom. Yet once promulgated, a Restatement tends to freeze that common law evolution in amber at the moment of its creation. True, Restatements as we all know are more than mere restatements. But whatever "reforms" it may include are themselves also frozen in time.

To the extent state court judges view the Restatement as a safe harbor that insulates them from reversal, they fail to take responsibility for improving the law of contracts as they are confronted with new cases that put stress on old doctrine. To take a concrete example, adding Promissory Estoppel to the first Restatement was an improvement over the Bargain Theory of consideration standing alone. The general formulation of Section 90 allowed judges to reach right results in a highly undertheorized context. By now, however, our decades long experience with the operation of the doctrine--combined with the excellent theorietical and empirical scholarship of recent years--puts courts in an excellent position to provide more rule-like guidance to potential litigants than now provided by the open-ended generalities of Section 90 that say little more to judges than "do the right thing."

Yet there is little incentive for state court judges, with much on their plates and a fear of reversal, to develop such doctrine when the authority of the Restatement is at hand. On balance, I think this is a great loss. The common law evolutionary system is a great source of knowledge that provided much of the substance of both Restatements. But now that flow of knowledge has been reduced to a trickle due, at least in part, to their existence. While some principles of justice are eternal, legal doctrine must evolve to fit these principles to new contexts and provide guidance to other judges, lawyers, and even parties. On balance, I think that the Restatements greatly inhibit this evolution. (I say much more about the need for an evolutionary discovery mechanism in law in Chapter 6 of The Structure of Liberty.)

If we are going to have a Restatement at all--and we are--I would keep the Restatement Second around for a long time. I have little faith that a committee of law professors today could improve upon it--as witness the debacle of revising Article 2 of the Uniform Commercial Code. But apart from its elegance and admirable substance, another reason for its retention is a dearth of additional evolved judicial wisdom to incorporate into a Restatement Third.

Update: A reader writes in defense of Restatements:

I think you underestimate the value and effect of Restatements. In a state like Utah, Restatements are extremely helpful, in part because there is relatively little case law to draw on within the state. Multi-state surveys are some help, but one is left with little in the
way of guidance about which states the court should or will look to for guidance. The Restatements give reasonably practical guidance on a host of issues. They have declined as a part of legal academics, but from the perspective of practice the restatements are still a positive. I have doubts that trial judges anywhere particularly concern themselves with appellate review. The numbers and process make it sort of unlikely.

Update: Another reader writes (in part):

And when difficult points come up, it is state-court cases deciding them that get cited. I do not think most judges would feel comfortable deciding a case on the authority of a broad statement like section 90 without looking for on-point authority; all the more so for their clerks. And in this process common law gets made, more or less just as it always has. (Which raises another point---did influential treatises predating the Restatements similarly ossify the common law in your view? E.g. Blackstone, Story, Wigmore, Williston. Have the Restatements just taken the role of what used to be single-professor efforts?)
Interesting point. My sense is that the Restatement has far more "authority" than an individual treatise writer, perhaps because of its collective provenance. And I also think that, at least on contracts, a good deal of the caselaw on which courts rely are cases that previously adopted Restatement propositions. This is one reason why portions of the first Restatement of Contracts remains in effect in some states, having previously been adopted by judges in previous decisions.

Update: For an extention of these concerns to the area of international law see The TransAtlantic Assembly blog.

Related Posts (on one page):

  1. More on Restatements
  2. Restatements Revisited:
  3. The Questionable Value of Restatements:
  4. E. Allan Farnsworth R.I.P.:
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