Saturday, February 19, 2005

Secret Tapes of George W. Bush: An interesting piece in today's New York Times.
Horse and Buggies Versus Cars:

Is it possible to write a lengthy article on the safety and other risks posed to consumers by early automobiles, have it reviewed by prominent legal historians, and published in a prestigious legal history journal, without ever considering the issue as to whether cars were more or less safe than the horse and buggies they substituted for? (Aside: one of my great-grandfathers was killed in a horse and buggy accident.) Even if one of the primary cases you focus on involved a defective wheel, an issue that no doubt arose with regard to buggies/carriages as well?

Not only is it possible, it's been done. The same article manages not to ignore the abundant law and economics scholarship on consumer warranties, but rather to only cite the few L & E scholarship (Logue, Hanson, Croley) who are sympathetic to enterprise liability. Friedrich Kessler, of contracts of adhesion fame, is cited often, but George Priest (among others who have harshly criticized Kessler) is cited not once. As someone who does a lot of work in legal history, this sort of thing frustrates me quite a lot.

Friday, February 18, 2005

When Barry Lynn Speaks, Tony Mauro Listens: Tony Mauro has a new article in Legal Times that begins:
Justice Thomas Finds Himself in Inauguration Controversy
Tony Mauro
Legal Times
  A week before Supreme Court Chief Justice William Rehnquist swore in President George W. Bush to a second term as president last month, Justice Clarence Thomas presided over a little-noticed inauguration inside the Court building that has generated some controversy.
  In an invitation-only ceremony, Thomas on Jan. 13 gave the oath of office to newly elected Alabama Supreme Court Justice Tom Parker. . . .
  According to the article, the private swearing in of Justice Parker generated "some controversy" because Justice Paker is a protege of Alabama Chief Justice Roy Moore, the so-called "Ten Commandments judge," who defied the federal courts by refusing to comply with judicial orders to remove the Ten Commandments from the courthouse that hosts the Alabama Supreme Court. The controversial part about swearing in Parker, according to Mauro, is that the Supreme Court will be deciding cases this Term on the constitutionality of Ten Commandment displays. The article suggests that offering symbolic support to someone who is a close friend of someone closely associated with the public debate over issues relating to a pending case is problematic, even if the support was private.

  This seemed like a pretty tenuous connection to me, so I re-read the article to find out who the people are that find this controversial. As best I can tell, the article's only source for that view is a single man: Barry Lynn, the executive director of Americans United for Separation of Church and State. I think it's fair to describe Lynn as a harsh and regular critic of Justice Thomas. Come to think of it, I don't think I've ever seen Lynn make a comment about Justice Thomas that wasn't harshly critical. Maybe it has happened, but if it has it would be, well, pretty newsworthy.

  Here's my question: Is the fact that Barry Lynn objects to something Justice Thomas did itself worthy of a news story? Perhaps lots of people see the fact that Justice Thomas would swear in a protege of Roy Moore as controversial, and Mauro just chose Lynn to quote as representative of that view. Perhaps there is something else to this story that was cut out during the editing process. But the story as written seems to be about Barry Lynn's objections, and only his objections. Maybe I'm missing something, but this story seems to be less about reporting on a controversy than trying to create one.

  UDPATE: While it doesn't have anything to do with Lynn's rationale for criticizing Thomas, this important post over at Southern Appeal is more than enough to convince me that that Parker is someone Justice Thomas shouldn't be supporting. Oddly, it may be that swearing in Parker should be controversial — just not for the reasons Mauro mentions in his article.
Term Limiting Supreme Court Justices: Lately I was asked to endorse the following proposal by law professors Paul D. Carrington and Roger C. Cramton to limit the terms of Supreme Court Justices:


Congress should enact the following as section 1 of Title 28 of the United States Code:

(a) The Supreme Court shall be a Court of nine Justices, one of whom shall be appointed as Chief Justice, and any six of whom shall constitute a quorum.

(b) One Justice or Chief Justice, and only one, shall be appointed during each term of Congress, unless during that term an appointment is required by Subsection (c). If an appointment under this Subsection results in the availability of more than nine Justices, the nine who are junior in commission shall sit regularly on the Court. Justices who are not among the nine junior in commission shall become Senior Justices who shall participate in the Court's authority to adopt procedural rules and perform judicial duties in their respective circuits or as otherwise designated by the Chief Justice.

(c) If a vacancy occurs among the nine sitting Justices, the Chief Justice shall fill any temporary vacancy by recalling Senior Justices in reverse order of seniority. If no Senior Justice is available, a new Justice or Chief Justice shall be appointed and considered as the Justice required to be appointed during that term of Congress. If more than one such vacancy arises, any additional appointment will be considered as the Justice required to be appointed during the next term of Congress for which no appointment has yet been made.

(d) If recusal or temporary disability prevents a sitting Justice from participating in a case being heard on the merits, the Chief Justice shall recall Senior Justices in reverse order of seniority to provide a nine-member Court in any such case.

(e) Justices sitting on the Court at the time of this enactment shall be permitted to sit regularly on the Court until their retirement, death, removal or voluntary acceptance of status as a Senior Justice.
As explain by its authors, this proposal would have the effect of limiting the term of "active" justices to approximately 18 years:
The result is that all Justices appointed to the Court in the future would serve as the nine deliberating and deciding members for a period of about eighteen years (depending upon the interval between the initial appointment and the promptness of the appointment process eighteen years later). However, the Act does not restrict the lifetime tenure of the Article III judges appointed as a Justice or Chief Justice of the Supreme Court. Instead, it defines the regular membership of the Court as consisting of the nine most recently appointed Justices. Some of the Senior Justices who no longer participate regularly in the Court's decisional work may be called upon to provide a nine-member Court when that is necessary (see Subsection (d)). And all of them continue to retain the title of "Justice of the Supreme Court" and to exercise the judicial power of the United States as judges of a circuit court, a district court, or some other Article III court. In short, the Act defines the "office" of a Supreme Court "judge" in a new way. This feature distinguishes the Act from statutory proposals to place age limits or fixed terms of service on Supreme Court Justices. Senior Justices will continue to have lifetime tenure as Article III judges in accordance with the "good behavior" clause of Section 3 of Article III.
This proposal has already been endorsed by law professors representing a wide political spectrum. They include: Vickram D. Amar, Jack M. Balkin, Steven G. Calabresi, Walter E. Dellinger III, Richard A. Epstein, John H. Garvey, Lino A. Graglia, Michael Heise, Yale Kamisar, and Sanford Levinson.

I tend to favor term limits--what the Founders called "rotation in office"--for elected officials, but this proposal gave me pause. I am not as unhappy with the current system of judicial appointments as some on the left and right. Still, this proposal seems to have some merits in that it regularizes the process of adding new members to the court. (I cannot find the actual proposal on line so you can read the justifications offered by its authors, but you can read a New York Times story on the proposal here. If someone finds a link to the full proposal, I will add it here.)

So far, I have not signed on, but was curious to hear thoughtful reader reaction. So I have activated comments. I am particularly interested in hearing potential problems with the proposal, as its purported benefits are more obvious. However, feel free to voice your support as well as opposition. But reasons will be more persuasive to me than expressed preferences.

Update: On comments, Crime and Federalism Blog notes this online Legal Affairs Debate last week between Norman Ornstein of AEI and my BU colleague Ward Farnsworth. Readers may want to read it before adding their 2 cents.

Summers Transcript Released: Harvard has released a transcript of the remarks by President Lawrence Summers that has gotten him into such hot water. You can access them here.

Journal Name Change: This may be just a coincidence, but only a few weeks after Harvard President Lawrence Summers' controversial remarks on possible innate differences between men and women, the Harvard Women's Law Journal has decided to change its name to the Harvard Journal of Law & Gender. In a letter to the editor of the Harvard Law Record, the editors-in-chief of the Journal explain that the name change "indicates our unwillingness to rely upon essentialist arguments based on biological sex," among other things. Of course, if this change was in fact triggered by Summers' speech, it pales in comparison to other fallout from the speech.
IMAO Group-Blogging:

IMAO, formerly Frank J.'s private preserve, has become a group blog (announcement here). The e-mail informed me that, "IMAO will surely now storm to the top of the blogosphere, leaving many bodies in its wake. Pity IMAO's enemies."

Also, the e-mail included a note: "Your link to IMAO has the site's name spelled wrong (it's 'IMAO' not 'Scrappleface'). Also, the URL is all wrong."

New Mexico Lesbian Devil Sex Case:

I blogged about this prosecution earlier this week; my view was that the accused simply wasn't guilty of a crime under New Mexico law, at least under that portion of New Mexico law -- distribution to minors or display to minors of obscene-as-to-minors materials -- that was being discussed.

Ruth Waytz, the wife of the artist who drew the allegedly obscene-as-to-minors sticker, now reports:

Dean Young's case was dismissed this morning, but the judge did so Without Prejudice, which means the NM authorities are still free to file other charges against him in the future. Not sure what those other charges might be . . . .

Maybe Young did something else that actually was a crime, but my sense is that he's off the hook for the sticker.

Related Posts (on one page):

  1. New Mexico Lesbian Devil Sex Case:
  2. New Mexico Sticker Case:
"History Doesn't Repeat Itself, But It Rhymes":

A while back, I got several messages from readers attributing this quote to Mark Twain. I'm always skeptical of such attributions, since Twain -- plus a few other people, such as Winston Churchill, Dorothy Parker, George Bernard Shaw, Oscar Wilde, Ambrose Bierce, Benjamin Disraeli, and H.L. Mencken -- seem to be magnets for loose quotations. If you're not sure of the source, credit Twain, and that'll be plausible enough. So I asked the indispensable UCLA Law School research library to track it down. (Yes, I can legitimately do that, since I plan on using the quote in my law review article.)

Here's what seems to be the scoop, courtesy of Jenny Lentz: The quote has indeed been often attributed to Mark Twain, but there doesn't seem to be much proof that he indeed said it. The most detailed source she could find was this note in an article by Lawrence P. Wilkins in 28 Indiana Law Review 135 (1995):

[The quote was a]ttributed [to mark Twain] by Allen D. Boyer in Activist Shareholders, Corporate Directors, and Institutional Investment: Some Lessons from the Robber Barons, 50 WASH. & LEE L. REV. 977, 977 (1993), who saw the attribution in ROBERT SOBEL, PANIC ON WALL STREET 431 (1988). Professor Sobel saw the attribution some time ago in an editorial column in the New York Times, the author of which he cannot recall. He has consulted with several Twain scholars across the country, and all agree that the quotation sounds very much like something Twain would say, but none seems able to find the actual words in Twain's papers. Telephone conversations with Allen D. Boyer and Robert Sobel, March 3, 1995 and March 7, 1995. It is somewhat ironic that this quotation cannot be definitively traced to Twain, whose energies were spent in great measure to protect his rights of authorship. . . .

In any case, I can still easily use the quote, just giving it as "Attributed to Mark Twain." But it's worth noting that there's some uncertainty about it. If anyone can resolve this uncertainty by a specific pointer to a written work by Twain -- and not just by a pointer to someone who has attributed the quote to Twain -- please let me know.

Talk About No Respect...

This from the the Manhattan Jaspers basketball website:

Manhattan gets back in action on Saturday, February 19, when the Jaspers travel to Fairfax, VA to take on George Washington in the team's final non-conference game. Tip-off is slated for 4:00 p.m.

GMU beat 23-3 Old Dominion, earns an ESPN Bracket Buster game this weekend, and the team they are playing still can't get the name right. It is George Mason, not George Washington, and not Georgetown! Its bad enough being the other "George" school around here, but sometimes it gets old being the other, other "George" school in these parts.

Related Posts (on one page):

  1. Ha! I'll Bet They Know Who We Are Now!
  2. Talk About No Respect...

Thursday, February 17, 2005

The Shape of Bloggs:

I thought about this while reading to Benjamin, but of course great minds think alike.

Yet Another Ridiculous Lawsuit:

Ted Frank (OverLawyered) reports:

Michael J. Zwebner, the CEO of penny-stock holding company Universal Communication Systems, is unhappy that he's being flamed on the message board, run by Lycos. He may have a legitimate beef to some extent. . . .

[But] Zwebner's litigation methods . . .are questionable. He's filed five lawsuits in federal court in Miami, against anonymous posters, against Lycos (for, among other things, "trademark violations" for naming a message board after the ticker symbol UCSY), and even a couple of purported class actions. He's especially upset at one anonymous poster, who has the especially credible username of Wolfblitzzer0 [sic].

So, Zwebner has sued . . . CNN and the real-life Wolf Blitzer! It seems, according to Zwebner's view of the world, that Blitzer is supposed to be on the lookout for anonymous posters using similar names, and should be held liable for such posters' postings when he fails to police the use of such usernames. . . .

Appalling. First, I doubt that Blitzer even had a legal right to stop Wolfblitzzer0 from his posts; unless the posts were commercial advertising (which I doubt), Blitzer wouldn't have a right of publicity or trademark claim against Wolfblitzzer0. And I doubt Blitzer would have a libel claim (on the theory that Wolfblitzzer0 is hurting Blitzer's reputation by posting things under his name) because few readers would really think that the poster is Wolf Blitzer.

But second, Blitzer certainly has no legal duty to spend his time, money, and effort litigating over every schmoe's misuse of his name -- even if he had a legal right to stop such misuses -- especially when readers would realize that the poster isn't the real Blitzer. (Under the doctrine of "apparent authority," A may sometimes end up bound by contracts that B made on his behalf, when reasonable observers would assume that B actually has the authority to act for A; but that surely isn't the case here.)

Sounds like a sure loser of a case to me, perhaps even sanctionable (though that's a tougher call).

Eric Muller on Thomas Woods's "Politically Incorrect Guide to American History":

I thought I'd blogged Eric's views on this when he first posted them, but now I realize I hadn't. In any case, they start here, but he has a lot more follow-up. Max Boot's piece, which I linked to below, properly gives Eric credit.

Kyoto Comes into Force:

Yesterday the Kyoto Protocol to the United Nations Framework Convention on Climate Change — aka the UN global warming treaty — came into effect. This became a done deal after Russia agreed to ratify the agreement. By its terms, Kyoto enters into force on the 90th day after at least 55 countries representing at least 55 percent of global carbon dioxide emissions in 1990 ratify the agreement.

Contrary to some claims, the U.S. never "withdrew" from Kyoto the way it withdrew from the International Criminal Court. The U.S. remains a party. Nonetheless, this nation is not bound by its terms because the U.S. has not ratified it. Most other developed nations have ratified Kyoto, however, and are bound by its terms — at least in theory. Many of Kyoto's signatories in Europe are well behind their emission reduction goals, and developing nations are not required to reduce their emissions at all. As Julian Ku notes at Opinio Juris, many Kyoto signatories are heading in the "wrong direction."

The Bush Administration has been the subject of substantial criticism for refusing to endorse Kyoto. But is this criticism warranted? The Clinton Administration signed the treaty, but never submitted it to the Senate for ratification. The Senate passed the Byrd-Hagel Resolution 95-0, unanimously rejecting the substance of the agreement. Even some who believe global warming is a pressing policy concern doubt Kyoto represents a responsible strategy to address climate change concerns.

The underlying assumption of much anti-Bush Kyoto commentary is that the Bush Administration is doing nothing on the issue. Even if one sets aside the tens of millions the administration has spent on climate-related research and technology R&D on the assumption that such federal projects rarely bear fruit, the charge that the Administration is sitting on its hands rings hollow. As Gregg Easterbrook notes in The New Republic, the Administration's "Methane to Markets" initiative represents a substantial step toward reducing greenhouse gas emissions. (For non-TNR-subscribers, Julian Ku summarizes the article here.) While few have noticed this program, it could do as much to reduce the threat of global warming as Kyoto as methane is a more potent greenhouse gas than CO2.

Despite its promise, I would not expect too many environmental activists to cheer "Methane to Markets." First, as we have seen in other contexts (see here and here), the major environmental groups are loathe to give a conservative Republican administration much credit for any environmental initiatives. Second, although "Methane to Markets" could bear fruit, it does not require stringent regulations of coal-fired power plants, limitations on fossil fuels, or controls on SUVs. Third, as Ku suggests, there is often a preference for grand international agreements (like Kyoto) over less-formal — but not necessarily less-effective — agreements like "Methane to Markets." It will be interesting to see whether this agreement is a one-shot deal, or a harbringer of more to come.

Chart on Attorney Advertising and Bankruptcy:

I have a very busy day, so I don't have time for another long post on bankruptcy reform (I'll get back to it tomorrow I hope if I have time), so I'll just leave you with a self-explanatory chart on trends on attorney advertising and bankruptcy filings that is contained in my latest article:

Numerous caveats apply--this is just tv, it is all advertising and not just for bankruptcy, etc. So I'll just let you make of this what you wish and leave it at that.


2 points. First, I made no claim about causation in my original posting--there could be no causal link at all here and if there is correlation, it could be spurious. If there is a causal link, it could run in either direction (e.g., public demand for bankruptcy lawyers could lead to more advertising). Second, there is a very well established empirical literature that advertising for legal services increases demand for legal services, so that the relationship is theoretically possible, unlike, for instance, other random correlations that some have drummed up. I thought the underlying model was obvious, but apparently some who criticized me weren't aware of this vast body of academic literature. And, of course, there is other empirical evidence that finds some sort of relationship between lawyer advertising and bankruptcy filings, although again, existence and direction of causation remain open. Whether this particular chart provides any additional empirical evidence or intuition to support the theory, as I said once already, I leave to you. But that doesn't mean the theory doesn't make any sense.

Wednesday, February 16, 2005

Monday's Talk at Quinnipiac: Although it is not yet on their website, my talk on Monday (2/21) on Ashcroft v. Raich at Quinnipiac University School of Law has been scheduled for noon in the Grand Courtroom. The event is open to the public.

Also next week, I will be speaking at Cumberland Law School Birmingham AL (noon - 2/24) and at the University of Alabama School of Law in Tuscaloosa (noon - 2/25).

Related Posts (on one page):

  1. Monday's Talk at Quinnipiac:
  2. Corrected Speaking Times:
  3. Speeches This Week
Forward-Thinking Universities:

I just noticed that a university other than UC was smart enough to snag before UC did. Likewise, I've long noticed that one particular school is If anyone has other examples of universities that have such domain names -- names that do match the school's name or field, but that seem to reflect the school's wisdom in being first to snag a name that other more prominent schools might have also wanted -- please leave them in the comments.

Interesting Star Trek Initiative (UPDATE: NEVER MIND): A reader just passed along to me this link to an interesting posting by J. Michael Straczynski, the creator of Babylon 5. (Volokh readers have much praised Babylon 5 to me but I could never get into it during its first run.) After a discussion of how the Star Trek franchise evolved to this point, here is how it provocatively ends:
Last year, Bryce [Zabel (recently the head of the Television Academy and creator/executive producer of Dark Skies)] and I sat down and, on our own, out of a sheer love of Trek as it was and should be, wrote a series bible/treatment for a return to the roots of Trek. To re-boot the Trek universe.

Understand: writer/producers in TV just don't do that sort of thing on their own, everybody always insists on doing it for vast sums of money.

We did it entirely on our own, setting aside other, paying deadlines out of our passion for the series. We set out a full five-year arc.

But when it came time to bring it to Paramount, despite my track record and Bryce's enormous and skillful record as a writer/producer, the effort stalled out because of "political considerations," which was explained to us as not wishing to offend the powers that be.

So on behalf of myself and Bryce, I'm taking the unusual step of going right to the source...right to you guys, fueled in part by a number of recent articles and polls, including one at in which nearly 18,000 fans voted their preference for a new Trek series,
and 48% of that figure called for a jms take on Trek. (The other choices polled at about 18% or thereabouts.)

See, if somebody doesn't like a story, doesn't want to buy it, that's all well and good, that's terrific, that's the way it's supposed to be.

But when "political considerations" are the basis...that just doesn't parse.

So here's the deal, folks. If you want to see a new Trek series that's true to Gene's original creation, helmed by myself and Bryce, with challenging stories, contemporary themes, solid extrapolation, and the infusion of some of our best and brightest SF prose writers, then you need to let the folks at Paramount know that. If the 48% of the 18,000
folks who voted at sent those sentiments to Paramount...there'd be a new series in the works tomorrow.

I don't need the work, I have plenty of stuff on my plate through 2007 in TV, film and comics, so that's not an issue. But I'd set it all aside for one shot at doing Trek right, and I know Bryce feels the same.

Update: NEVER MIND! Here is a follow up post from J. Michael Straczynski:

Actually...belay everything I just said.

In the 24 hours between the time I composed the prior note, and sent it, and it made its way through the moderation software, two things happened:

1) I heard from a trusted source that Paramount is giving the Trek TV world a rest for maybe one to two years, depending on circumstances, no matter who would come along to run it. So it's not right to have folks putting in time doing something that ultimately would be pointless, I don't think that's a proper use of anybody's time.

2) At the same time as the above, an offer came in to run a new TV series for fall of '06, and since there's no way anything Trek can happen in the interim, I've said yes (now we have to negotiate the deal, but that should be fairly straightforward).

So on two counts, the whole thing is kind of moot.

We can reconvene a year or two down the road to see where this takes us, but in the apologies for waking everybody up in the middle of the night.

As you were.
Well, THAT was fast!

New Daily Feature on NRO: In addition to The Corner and TKS (formerly "The Kerry Spot"), National Review Online is now offering the Beltway Buzz. Here is its introduction:
Welcome to Beltway Buzz
02/15 01:10 PM

We're constantly thinking of new ways to make NRO bigger and better. With that general goal in mind, today National Review Online introduces a new feature: "Beltway Buzz," which promises to be required reading for anyone looking for Washington, D.C.-focused news and analysis.

We're delighted to have Eric Pfeiffer, formerly of National Journal's sweet daily political candy, "The Hotline," on board to be your daily Beltway buzzer. Welcome, Eric and welcome new Beltway Buzz bookmarkers. Enjoy.
— Kathryn Jean Lopez, Editor, National Review Online

Here It Begins
02/15 01:13 PM

Welcome. I'm Eric Pfeiffer and I'll be your Buzz guy.

This page is now home to a daily feature that aims to provide readers with a fresh look at news and analysis from inside Washington.

First, a little background on me: For the past three years I wrote for "The Hotline," a daily political briefing published by the National Journal. While at "The Hotline," I contributed articles regularly to NRO, The Weekly Standard, the Americas Future Foundation, and others. Early risers can also find me occasionally offering weekly political analysis with ABC News Now.

My main focus here is to provide readers with a fresh angle on political news: the story behind the story you get on the evening news, the counter-story to the conventional wisdom of the day, etc. The Beltway Buzz will be a filter for anyone who wants to be in the know. And it will break some news, too.

And we're on the Internet, so feedback is easy to provide and is encouraged. My e-mail is — so you know where to find me.

Thomas Woods's "Politically Incorrect Guide to American History":

Max Boot (not a particularly politically correct fellow himself, writing in the not very politically correct Weekly Standard) criticizes it forcefully and in detail.

Boot also points out the error in the New York Times Book Review's characterization of the book as a "neocon retelling of this nation's back story," faults Regnery, Woods' publisher, and warns conservative consumers: "Conservatives looking to inoculate themselves or their children from liberal indoctrination would be well advised to steer clear of Woods's corrosive cornucopia of canards."

Related Posts (on one page):

  1. Eric Muller on Thomas Woods's "Politically Incorrect Guide to American History":
  2. Thomas Woods's "Politically Incorrect Guide to American History":
Good for You:

First alcohol, now coffee (though unfortunately maybe decaf is best).

Of course, "That difference may, however, be due to differences in lifestyle, the researchers commented, suggesting that drinkers of decaffeinated coffee might be more health-conscious overall." But, hey, I know how to ignore scientific disclaimers just as well as the next guy.

New Study on Dynasty Trusts and the Abolition of the Rule v. Perpetuities.--

The Wall Street Journal has a story today on a pathbreaking new study just completed by two of my brilliant young Northwestern colleagues, Rob Sitkoff and Max Schanzenbach. Unfortunately, the Journal's article is available only to subscribers, but the Journal's story is already up on Westlaw (2005 WL-WSJ 59841238) for academics who have that subscription.

The study (which can be freely downloaded from SSRN) examines whether trust assets are moving into states that repealed the Rule v. Perpetuities and thus permit perpetual dynasty trusts. Rachel Silverman in the Journal explains:

Until recently, trusts could effectively last only about 90 to 120 years, under a law called the Rule Against Perpetuities. Since the mid-1990s, a growing number of states moved to relax the term limits. Now, at least 18 states and jurisdictions — including Delaware, Wisconsin, New Jersey, Illinois, Virginia and the District of Columbia — allow trusts to last forever. Several states that impose term limits allow much longer durations. Wyoming and Utah, for instance, permit trusts to last 1,000 years, while Florida lets them carry on for 360 years.

To set up a dynasty trust, it isn't necessary for families to live in a state that permits them. Only a trustee has to be located there — and many trust companies have operations in Delaware, Florida or other states that welcome long-term trusts. Moreover, some of those states, such as Alaska, have other trust-friendly benefits, like no state income taxes on trusts and strong asset-protection laws.

The study found that simply changing a state's perpetuities laws wasn't enough to attract trust assets. Whether a state levied income tax on trust funds mattered, too. If a state abolished its rule against perpetuities, but still taxed trust funds attracted from out of state, the researchers found "no observable increase" on a state's reported trust assets. By contrast, if a state allowed dynasty trusts but also didn't tax trust funds created by nonresidents, the state's reported trust assets increased by roughly $13 billion on average during the time period studied.

The study finds that a lot of trust money has been flowing into South Dakota, Delaware, and Illinois (among others)--states that repealed the Rule v. Perpetuities and have no fiduciary income tax on trusts holding assets for out-of-state beneficiaries.

Here is the abstract to the scholarly paper:

Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes

This paper presents the first empirical study of the jurisdictional competition for trust funds. In order to open a loophole in the federal estate tax, a rash of states have abolished the Rule against Perpetuities. Based on reports to federal banking authorities, we find that through 2003 a state's abolition of the Rule increased its trust assets by $6 billion (a 20% increase on average) and increased its average trust account size by $200,000. These estimates indicate that roughly $100 billion in trust funds have moved to take advantage of the abolition of the Rule. Interestingly, states that levied an income tax on trust funds attracted from out of state experienced no increase in trust business from abolishing the Rule. This is a striking finding for the theory of jurisdictional competition, because it implies that abolishing the Rule does not directly increase a state's tax revenue. These results also have relevance for theories relating to altruism and the bequest motive. The main tax benefits of establishing a perpetual trust accrue not to the donor or anyone she knows, but to beneficiaries whom the donor has never met - the unborn.

The study will be important to academics because it is the first major empirical paper on the competition among states for trust business. Academics know that there is a massive empirical literature in corporate law on state competition for corporate charters, but (until now) there has not been a similar literature in Trusts & Estates.

Sitkoff and Schanzenbach's conclusion: If you build it, they will come.

Hot tip for any law review editors reading this blog: Check your mailboxes over the next few weeks; in its field this article will be a blockbuster.

FTC Study on On-Line Sales of Replacement Contact Lenses:

Important new study of competition and consumer protection issues involving on-line sales of replacement contact lenses can be found here.

Great example of how the FTC can use its research tools to advance understanding of market competition furthers consumer welfare and how wrongheaded professional licensing requirements can harm consumers.

The Other Bankruptcy Blogger:

Apparently there are two of us now who blog on bankruptcy issues. For those who prefer a "front lines" analysis (and a bit more "colorful" take) rather than my academic analysis of bankruptcy reform, see the State 29 blog.

With 2 of us, I think that pretty much satiates the public's appetite for bankruptcy-related blogs.


Whoops, Kemplog points out that I missed one--Automatic Say. So there are three of us--soon we will overtake all those Constitutional Law blogs out there!

Health Problems and Bankruptcy--Are 50% of Bankruptcies Health Related?:

In Senate testimony last week, one of those testifying offered the observation, "One million men and women each year are turning to bankruptcy in the aftermath of a serious medical problem—and three-quarters of them have health insurance." In a column in the Washington Post last week, Professor Elizabeth Warren (who also gave the just quoted testimony) stated, "[H]alf [of bankruptcy filers] said that illness or medical bills drove them to bankruptcy," an assertion that was repeated at the Hearings last week on the bankruptcy reform legislation. Most of the Democratic Senators in attendance accepted the assertion that 50% of bankruptcies are caused by health problems without question (even going so far as to silence me when I raised doubts about the credibility of that figure). It has also been widely reported in the media.

Professor Warren writes, "With the dramatic rise in medical bankruptcies now documented, this tired approach would be no different than a congressional demand to close hospitals in response to a flu epidemic." This figure was used to throw cold water on the bankruptcy reform legislation, and it is expected that Sen. Feinstein at least will propose an amendment.

But is it true that it is "now documented" that 50% of bankruptcies are caused by health problems?

The conclusion is based on a study in Health Affairs. Reviewing the study, it appears that the estimate that 50% of bankruptcy filings are precipitated by a "serious medical problem" cannot be supported based on what that study actually examined.

First, the study comes on the heels of many studies over many decades that find mixed evidence for the belief that a substantial number of consumer bankruptcies are caused by health problems. Those that did find some relationship often found a very small relationship, which explains why Professor Warren has described it as "a dramatic rise" in medical bankruptcies. For instance, in an earlier book, Professor Warren and co-authors wrote, "The central finding is that medical debt is not an especiallly important burden for most debtors." In a more recent article, it was observed that "until the 1990s . . . most empirical studies of bankruptcy did not find illness, injury, or medical debt to be a major cause of bankruptcy." Indeed, in the Health Affairs article, it is stated that medical bankruptcies increased 23-fold over the past two decades. No previous credible study has ever found anything approximating the conclusion that 50% of bankruptcies are caused by medical problems. The appearance of such a huge anomaly usually augurs caution in interpreting the results in light of the massive contrary results on the other side. Such caution is warranted here.

In fact, the "finding" in this article of a massive rise in medical bankruptcies appears to actually be a result in the way in which medical bankruptcies are counted, rather than an actual change in the numbers. They draw their data from two sources. First, self-identified bankruptcy filers who say that some medical event "caused" their bankruptcy. Second, analysis of "objective" facts on filers bankruptcy papers that find either (1) debtor or spouse lost at least 2 weeks of work-related income because of illness or injury or (2) uncovered medical bills exceeding $1,000 in 2 years before bankruptcy, or (3) debtors who say they had to mortgage their home to pay medical bills (which for some reason they list as an "objective" factor rather than a self-identified factor.

Do these findings support the claim that 50% of bankruptcy filings were caused by a "serious medical problem"?

First, consider the self-identified filers. Among the self-identified factors that are listed as "medical" causes of bankruptcy in Exhibit 2 of the article are the following: illness or injury, birth/addition of new family member, death in family, alcohol or drug addiction, uncontrolled gambling. First, it is surely open to question whether uncontrolled gambling or a death in the family really should count as a "medical" problem. More generally, the category "illness or injury" is very broadly defined in the study, and there is no apparent limit on the time frame over which the illness or injury occurred, or the severity. So classifying all of these factors as medical problems that have "caused" bankruptcy certainly seems open to question.

Second, the "objective" measures from the debtors bankruptcy petitions are, if anything, even more questionable. First, the authors count anything above 2 weeks of lost work income as a "serious medical problem." There appears to be no time frame over which this is measured, nor does it apparently even need to be consecutive lost work. So, for instance, if a restaurant waiter called in sick for 2 weeks or more in some indeterminate period of time prior to filing bankruptcy, this would presumably count as a serious medical problem.

Nor does the requirement of $1,000 in unpaid medical bills within 2 years of bankruptcy seem like a very plausible measure of serious financial problems. Again, it is pretty easy to rack up $1,000 in unpaid medical bills over a 2 year period, especially if elective procedures not covered by insurance are added in. Moreover, it is well-understood that debtors who are falling into bankruptcy pick and choose which debts they pay, paying down their mortgage or nondichargeable debts for instance, while not paying their unsecured debts, such as medical and credit card debt. So the fact that the medical debts were unpaid says little, because it may reflect strategic payment of debts prior to bankruptcy.

So the categorization of what counts as a "serious medical problem" is quite questionable in this study. But there is a more fundamental problem that this concern hints at--there is no control group in this study. It is usually Statistics 101 that in order to infer causation from a data observation, it is necessary to have a control group. Absent a control group, it is not clear how the authors can make their claims.

So, for instance, one would want to know how many Americans missed 2 weeks of work or had a $1,000 in medical bills and didn't file bankruptcy. This is precisely why other previous studies have failed to find much of a correlation between health problems and bankruptcy--almost every family in America has a health problem, death in the family, or gives birth every year. Most of them do not file bankruptcy. In short, I suspect a lot of people had medical problems comparable to those who filed bankruptcy, but did not file bankruptcy. Of course, we will never know, because the authors have no control group to determine whether those in bankruptcy were more prone to illness or injury than the population at large.

Moreover, the authors do not compare the amount of medical debt they found to other debt or obligations that bankrupt debtors had. So, for instance, they would count as a medical bankruptcy a debtor who had $1,001 in medical bills, even if that debtor had say $50,000 in student loans, car loans, and other debt. It would be absurd, it seems to me, to say that the $1,001 in medical expenses "caused" that bankruptcy. Nonetheless, it would counted in this study, because the authors do not control for medical debt as a percentage or in relation to the debtors overall debt.

But the problems do not end there. For instance, the authors claim (page W5-71) that from 1981-2001, medical bankruptcies increased 23-fold, citing a study from 1981 published in "As We Forgive Our Debtors." I have read and reread the relevant chapter of that book, and have been unable to determine exactly what criteria were used to classify medical bankruptcies there, and how they compare to here. It appears that the measure used in the earlier work was the pure narrowest form of self-identified filers, those who stated that they filed bankruptcy because of a health problem. In the current study, it appears the authors ask the self-identified filers if health problems were "a reason" for bankruptcy. I can find no evidence that the authors there counted as medical bankruptcies any bankruptcy where the debtor had above a specified amount of medical expenses. Even if it were the case, there is no evidence that the $1,000 figure chosen in the current study was adjusted for inflation over the prior study. Nor is there any indication that the authors attempted to adjust the medical expenses that are found in the current study for increases in debtor's income. So again, it seems like they have just changed their method of counting, not the actual substance.

The authors also do not provide any causal explanation for what could have changed in the medical system to produce a 23-fold increase in health=related bankruptcies in 20 years, and specifically note that the percentage of those in bankruptcy who have health insurance has changed little over that time.

In fact consider the following passage from "As We Forgive Our Debtors":

Our central finding is that crushing medical debt is not the widespread bankruptcy phenomenon that many have supposed. To the extent that the typical debtors in bankrutpcy are painted as sympathetic characters because they are struggling with insurmountable medical debts, these data show that 'typical' is the wrong adjective. Only a few debtors find thmselves in such extreme circumstances.... About half of all debtors carry some medical debt, and many carry substantial medical debt. Althought these medical debts are not the obvious cause of the debtors' bankruptcies they are part of their financial troubles." (p. 173).

Again, what seems to have changed is not the frequency of the underlying problem, but simply the way the data is counted and classified. In the earlier study, the authors noted that half of filers had some amount of medical debt, but recognized that relatively small amounts of unpaid unsecured medical debt or minor injuries were likely not the cause of bankruptcy, because this is a part of the financial life for almost every American family. For the debtors in the earlier study, the medical debt that was found was relatively small in comparison to the bankrupts' other debts. In the more recent study, the authors have simultaneously increased what counts as a "medical problem" and classified even relatively small and trivial medical expenses and problems as bankruptcies "caused" by medical problems. Changing the way you count and classify the same data is not the same thing as finding a 23-fold increase in the underlying problem itself.

I close with an illustration that tries to put the major flaws of this study in perspective and the policy recommendations that have been drawn from it. Suppose that I wanted to find out how many Americans filed bankruptcy because of tax problems. I then interviewed bankruptcy filers and checked their financial records, and counted as a "tax-caused bankruptcy" anyone who either (1) paid $1,000 or more in taxes during the past two years, or (2) anyone who said that if he didn't have to pay taxes he wouldn't have had to file bankruptcy because he would have had more money for his other bills. I suspect that under that criteria I would find a pretty substantial number of "tax-caused bankruptcies." I then conclude that, as a result, we shouldn't make people pay taxes if they believe it might make them file bankruptcy, and that any unpaid tax obligations should get a blanket discharge in bankruptcy (unlike current law, which makes them largely nondischargeable).

Obviously, my hypothetical study of "tax-caused bankruptcies" would be sheer nonsense. I would have no control group (how many other people paid taxes and didn't file bankruptcy), I would have no information about how large my tax payments were relative to other obligations (mortgage, student loans, etc.), and my data would be subject to high rates of self-reporting bias. You would object--"almost everyone pays taxes, what is so unique about this group?" My policy proposal would be ridiculous. In short, my hypothetical study would be properly dismissed as junk science because it fails to use even the most basic statistical controls and techniques.

Let me emphasize--I do not deny that many bankruptcies are caused by health problems. This is why the bankrutpcy reform bill carves out several specific exceptions for treatment of health expenses and health insurance. In theory, the number may be as high as some now say, although as noted, the overwhelming number of studies fail to find anything approximating such a high number. But if it is true, that conclusion cannot be based on this article that is published in Health Affairs that got so much press last week and so much interest in the United States Senate. The statistical classification and methods are just too questionable to support that conclusion.

Tuesday, February 15, 2005

New Mexico Sticker Case:

It turns out that Chris Cooper -- the artist who created that sticker that a New Mexico D.A. says is obscene-as-to-minors -- is a regular reader of this blog (which I hadn't known). He e-mails:

As the artist who created the artwork in question, I'm more than a little interested in this case, and I'm very worried that the person in question might get thrown in the klink for having a sticker on his car. That just doesn't seem like something that should happen in the USA. I hope that your analysis of the statute is one that is shared by the court.

An unsurprising reaction, of course, but I figured that since I had something straight from the horse's mouth, I'd pass it along.

Related Posts (on one page):

  1. New Mexico Lesbian Devil Sex Case:
  2. New Mexico Sticker Case:
Newspaper Tries to Intimidate Blogger: It's hard to gauge the merits without knowing all of the background, but this certainly looks suspicious. (Link via Instapundit)
Constitution-in-Exile: An organized ideological movement to restore the Constitution-in-Exile finally has begun. Details available here.

  UPDATE: Oops!!! I just realized that the site linked to is about inventing a new constitution, not restoring an old one. Obviously that is totally different. My apologies for the error.
Splitting the Proceeds:

Some people asked us how we split our (quite modest) income from this blog. I thought for a while about this. One obvious answer was to pay by the post, but there are obvious bad incentives there. (I doubt that these incentives would affect our judgments consciously, but these things sometimes have a way of subconsciously influencing even well-intentioned people. And I worried about bad incentives for me as much as the bad incentives for others.)

Another was to pay by the total word count, but I don't want people to fall into a "we're getting paid by the word" mentality. We law professors are loquacious enough as it is; no need to encourage us. My sense was that longer posts did tend to be more valuable to readers, up to a certain word count, and excluding block quotes, but not in proportion to their length. I also thought about factoring in the total number of links to our posts, but I decided against this, chiefly because most of our visitors don't come through links to specific posts, and because links end up being hard to measure.

So the formula, which we cobloggers agreed to, is this (and thanks very much to Chris Lansdown of PowerBlogs for implementing the code that supports this): Each person is paid in proportion to the sum of the square roots of their post lengths, with the proviso that the post lengths are in words, exclude blockquoted text, and are capped at 900 words (so one gets no extra credit for words past 900).

My favorite response to this was Dave Kopel's:

Most of all, I'm thrilled to be paid by a system involving the sum of square roots. Maybe I can use the money to buy a slide rule, a pocket protector, and some more black socks.

Yes, the geek chic factor of a sum-of-the-square-roots formula is indeed one of the reasons I chose it . . . .

By the way, no need to suggest alternative schemes; it took us enough time to settle on this one that I doubt we'll reconsider it any time soon.


A New York Times correction from today:

The Keeping Score column in SportsSunday on Jan. 23, about a mathematical formula for projecting the winner of the Super Bowl, misstated the application of the Pythagorean theorem, which the formula resembles. The theorem determines the length of the third side of a right triangle when the length of the two other sides is known; it is not used to determine the sum of the angles in a right triangle.

Thanks to Power Line and InstaPundit for the pointer.

UPDATE: Reader Paul Johnson passes along this Scarecrow line from Wizard of Oz:

The sum of the square roots of any two sides of an isosceles triangle is equal to the square root of the remaining side. Oh joy! Rapture! I got a brain! How can I ever thank you enough?
Sounds like the New York Times and the Scarecrow have something in common.

(Note to the New York Times-like among us, or at least those who are NYT-like in this way: The sum of the squares of the two perpendicular sides of a right triangle equals to the square of the remaining side. Remember that the Wizard really didn't improve the Scarecrow's intelligence.)

DC Circuit on Blogging and the Reporter's Privilege: The DC Circuit has ruled that Judith Miller and Matthew Cooper have no First Amendment privilege not to testify in the Plame investigation, and that if a common law privilege exists it does not apply in their case. In a separate opinion rejecting the notion of a common law privilege, Judge Sentelle pointed out some of the difficulties of applying such a privilege in light of the blogosphere:
  Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical "blogger" sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court's vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?
  Judge Tatel also wrote separately on the common law privilege question, citing blogfather Eugene's New York Times op-ed along the way. Judge Tatel wrote that he would recognize the privilege, and responded to Sentelle's concern about bloggers by arguing that such distinctions could be drawn on a case-by-case basis:
  Nor does it matter that unconventional forms of journalism—freelance writers and internet "bloggers," for example—may raise definitional conundrums down the road. See sep. op. at 5-9 (Sentelle, J., concurring); but see Eugene Volokh, Opinion, You Can Blog, But You Can't Hide, N.Y. Times, Dec. 2, 2004, at A39 ("[T]he rules should be the same for old media and new, professional and amateur. Any journalist's privilege should extend to every journalist."). As Jaffee makes clear, "[a] rule," such as Rule 501, "that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner." 518 U.S. at 18. After all, "flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law." Hurtado v. California, 110 U.S. 516, 530 (1884). Here, whereas any meaningful reporter privilege must undoubtedly encompass appellants Cooper and Miller, full-time journalists for Time magazine and the New York Times, respectively, future opinions can elaborate more refined contours of the privilege—a task shown to be manageable by the experience of the fifty jurisdictions with statutory or common law protections.
Bankruptcy Reform and Credit Cards:

Naturally, the first question everyone wants to know is isn't the need for bankruptcy reform just a response to "too much" credit card credit. In fact, this argument not only lacks empirical foundation, it lacks sould economic theory to support it.

First, the argument doesn't make much sense from an economic perspective. Unless credit cards have somehow removed the borrowing constraint on individual credit (and no one has provided any evidence that it has), there would be no reason to believe that credit cards would increase overall household indebtedness.

Instead, economic theory would predict that the primary effect of the introduction of credit cars would be to shift around patterns of consumer credit use, by substituting credit card debt for other less-attractive forms of credit, such as pawn shops, personal finance companies, and retail store credit (such as from appliance and furniture stores). In fact, this is what the evidence indicates has actually happened.

Credit cards have not worsened household financial condition, because although consumers have increased their use of credit cards as a borrowing medium, this increase represents primarily a substitution of credit card debt for other high-interest consumer debt. Although this may seem irrational at first glance given the "high" interest rates charged on credit cards, consider that for consumers the alternatives may include pawn shops, personal finance companies, retail store credit, and layaway plans, all of which are either more costly or otherwise less attractive than credit cards.

Thus, while credit cards may not be ideal in some absolute terms, their growing popularity reflects the relative attractiveness of credit cards versus these other forms of credit. Credit cards are also generally less expensive for lenders to issue, which is reflected in the overall price of credit cards relative to these other forms of credit. The result, therefore, has not been to increase household indebtedness, but primarily to change the composition of debt within the household credit portfolio. Figure 7, from my article "An Economic Analysis of the Consumer Bankruptcy Crisis" (Forthcoming this year in the Northwestern Law Review) illustrates the nature of this substitution:

Source: Federal Reserve Board and Bureau of Economic Analysis

As this chart indicates, the growth in revolving (credit card) debt has clearly been a substitution from nonrevolving consumer debt to revolving debt, thus leaving overall consumer indebtedness (as a percentage of income) largely unaffected. Revolving debt outstanding has risen during this period from zero to roughly 9% of outstanding debt. Nonrevolving installment debt, by contrast, has fallen from its level of 19% of disposable income in the 1960s, to roughly 12% today. Thus, the increase in revolving debt has been almost exactly offset by a decrease in the installment debt burden. In fact the recent bump in total indebtedness in recent years was not caused by an increase in revolving debt, which has remained largely constant for several years, but by an increase in installment debt, primarily as a result of a recent increase in car loans for the purchase of new automobiles. Thus, there is little indication that increased use of credit cards has precipitated greater financial stress among American households. Because the increase in credit card usage has resulted primarily from a substitution of credit cards for other types of consumer credit, rather than an overall increase in indebtedness.

To the extent that there is some correlation between "high" credit card indebtedness and bankruptcy, but it is questionable whether this supports the causal inference that the credit card debt caused the bankruptcy, rather than the other way around.

First, the correlation between credit cards and bankruptcy may reflect the unique role of credit card borrowing in the downward spiral of a defaulting borrower. Credit cards provide an open line of unsecured credit to be tapped at the discretion of the borrower. Thus, for many debtors credit cards are a "credit line of last resort" to stay afloat to avoid defaulting on other bills. Thus, there may be nothing more than a simple correlation—a debtor confronting a downward spiral may increase his credit card borrowing in the period preceding bankruptcy simply because it is his most easily accessible line of credit. It may appear that because credit card borrowing preceded bankruptcy it also precipitated bankruptcy filing, but if the credit card was being used as a source of credit of last resort, this correlation would not support a causal inference.

Second, a debtor's increased use of credit cards preceding bankruptcy also may reflect strategic behavior taken in anticipation of filing bankruptcy. Credit card debt is unsecured debt that can be discharged in bankruptcy. By contrast, some unsecured debts are not dischargeable in bankruptcy, and secured debts, such as home and auto loans are minimally affected. For unsecured credit card debt, by contrast, generally the debtor can retain the property purchased with the credit card and discharge the obligation. Given the choice between defaulting on secured or nondischargeable obligations on one hand versus dischargeable credit card debt on the other, the incentive is to use credit cards to finance payment of nondischargeable and secured debt. In fact, empirical evidence shows that although credit card defaults have risen in tandem with bankruptcy filings, defaults on secured home and auto loans have remained steady during this period. Debtors also will have an incentive to "load up" their credit card on the eve of bankruptcy, especially by purchasing goods that will not be classified as "luxury goods and services" but might still be quite expensive and the timing of which might be discretionary. Still others simply spend the money or save in exempt assets rather than pay outstanding bills.

One article by Gross and Souleles (cited in my article), for instance find that in the year before bankruptcy, borrowers significantly increase the use of their credit cards, running up their balances rapidly in the period leading up to bankruptcy. This finding is inconsistent with the predictions of the traditional model, which identify credit cards as a special problem because of the gradual, subconscious, and "insidious" manner in which they accumulate over time. If this is true, then the accumulation of credit card debt should be gradual and spread out evenly over time. The rise in credit card debt rises rapidly and is concentrated in the period immediately preceding bankruptcy suggests that credit card indebtedness does not cause bankruptcy in many cases, but that the debtor is already on the way toward bankruptcy when the credit card borrowing begins, and is either acting strategically or is tapping his credit line of last resort.

It also has been argued that credit cards have contributed to increased bankruptcies through a profligate expansion of credit card credit to high-risk borrowers, especially low-income borrowers. Although often-repeated, empirical studies have failed to support this theory. First, the growth in credit card debt by low-income households primarily reflects a substitution for other types of debt, not an overall increase in indebtedness. In addition, two studies have examined the hypothesis empirically and have found little support. The first study, by economists Donald P. Morgan and Ian Toll concludes, "If lenders have become more willing to gamble on credit card loans than on other consumer loans credit card charge-offs should be rising at a faster rate [than non-credit card consumer loans] . . . . Contrary to the supply-side story, charge-offs on other consumer loans have risen at virtually the same rate as credit card charge-offs." Thus "suggest[s] that some other force [other than extension of credit cards to high-risk borrowers] is driving up bad debt."

A second study, by David B. Gross and Nicholas S. Souleles, concludes that changes in the risk-composition of credit card loan portfolios "explain only a small part of the change in default rates [on credit card loans] between 1995 and 1997." Moreover, if it were true that lower-income households were dramatically increasing their indebtedness through credit card increase then this should be reflected in the debt service ratio for lower-income households. As previously noted, however, this ratio has remained largely constant for lower-income households as with all others.

Increasing use of credit cards may be causing higher bankruptcies, but not in the way suggested by critics of reform. Because credit card credit is unsecured, it easily dischargeable in bankruptcy, which may make people more willing to file bankruptcy. Many older forms of credit were secured, such as furniture and appliance credit. Moreover, it may be that people fell less of a personal obligation to repay credit card debt, as opposed credit from a local merchant. But if these explanations explain what is happening, then it seems like this is an argument for bankruptcy reform, rather than against it.

The bottom line is that the standard argument about the relationship between credit cards and bankruptcy does not appear to be consistent with either economic theory or available evidence.

Lots of Interesting Posts Recently over at the Conglomerate, including posts on law review membership and visiting professorships. An added bonus: guest-blogging by lawprofs Brett McDonnell and Vic Fleischer in addition to the always-interesting Gordon Smith and Christine Hurt.
Gun Control in the 19th Century South:

My new column for explains how the Ku Klux Klan and other racists used gun control in the post-Civil War South to disarm the Freedmen, paving the way for the destruction of their civil rights.

Actors and Politics:

The Thank You, Hollywood, for helping re-elect President Bush billboard made me wonder: Why is it that so many popular and otherwise appealing actors come across so badly -- silly, strident, vacuous, self-important, and the like -- when they talk politics?

Some might say that it's because the actors are silly, strident, vacuous, and self-important. But even if that's right (and I imagine it's true for some and not for others), so what? It's an actor's job to act like someone they're not -- that's what they do for a living. You're not actually a professional baseball player, or an assassin, or the President; but you try to credibly pretend that you are one. Likewise, you may be a pompous ass rather than a thoughtful, empathetic, and trustworthy commentator. But if you're a good actor, you should be able to play thoughtful, empathetic, and trustworthy.

So why don't the actors just treat this as a role? You've got a new gig, which requires a bit of improvising. Your character is someone people trust and like. He's passionate but reasonable, serious but funny, compassionate but hard-headed. He's the guy next door, who's smart enough that his neighbors trust him, but not so full of his smarts that his neighbors loathe him. Your goal is to make the filmgoers like you, and thus like what you say. (Want more incentive? Pretend you're trying to get the Best Actor in a Politically Persuasive Role Oscar. Can't improvise? Heck, don't you know any screenwriters? Have them script some lines for you.)

Does the character call the President dirty names, even when he dislikes him? Does he fail to grasp how patriotic his neighbors are? (Not your real Hollywood neighbors, dummy, the neighbors of the character you're playing.) Does he threaten to move out of the country if the wrong guy gets elected? Seriously, if you're a good actor, shouldn't the answers -- and thus the lines you improvise for yourself -- be obvious?

Heck, if all this doesn't work, here's one for you. Remember Ronald Reagan? Think of him as a great actor? No? Think you could out-act him in your sleep? Think he was evil and hateful, and managed to dupe people into not seeing it? (Never mind that he wasn't, I'll bet you think he was.) Then why could he play amiable, decent, and trustworthy -- even to millions of people who disagreed with him on many things -- and you can't?

Related Posts (on one page):

  1. Actors and Politics:
  2. Rubbing It In:
" 'Dja Get That? " Great final line by Keifer Sutherland on last night's 24. And it wasn't even a season finale like this final line from ST TNG: "Mr. Warf, Fire." Do you have a favorite line from a TV series? I think this will be my last TV blogging for a bit, so I thought I would enable comments (a first for me) to let readers post their favorites. No fair quoting Deadwood. There are probably 15 to 20 good lines per episode.

Update: I don't seem to be able to make comments function. I need to go to class to teach now. Perhaps by the time I get back I will get instructions on how to make this work. I will post another update indicating that comments are working. Sorry for the inconvenience. I do want to hear about other great lines.


No Spam and the Joy of Gmail: I signed up for a Gmail account a while ago, but as I really love the power of Nelson Email Organizer to access my email on Outlook, I had no real use for Gmail. (NEO is amazing! No more folders or filtering. Your Inbox becomes a powerful database.)

The main problem I had with using Outlook and my Treo to access my BU email account was SPAM. I used Mailwasher, a free-standing antispam program designed to strip spam from the server before I download it on Outlook or my Treo, but it has major weaknesses. First it misses a lot of spam (unless you tell it to auto delete all suspected span in which case you risk false positives), and second, it requires my home PC to be running Mailwasher at all times. Sometimes my PC crashes when I am away from home in which case I lose all spam protection.

Since Gmail Now allows downloading your email via a POP3 connection, you can use it with Outlook on your PC. I can auto-forward my BU email to Gmail which then strips out all the spam before I download it to my desktop using Outlook. Relying on a company with the power of Google to develop and keep up-to-date potent antispam filters seems to be the wave of the future.

The only problem I had with this setup was with my Treo. When I download my email from my desktop, I could not then access it from my Treo even though the email remains on the Gmail server. Once downloaded via POP3, it cannot be downloaded again. I solved this by setting up a second Gmail account to which my main Gmail account forwards all email (including email forwarded to it from my BU account). I then access this secondary email account from my Treo.

The final twist on the setup was dealing with sent mail. One the great advantages of using Outlook with Gmail is that Gmail keeps all sent mail sent through Gmail on the server (even mail sent using Outlook). But I did not want my Treo sent mail to be kept in the secondary Gmail account. Fortunately Snappermail can be configured to receive from one account and send from another. So I receive from my secondary Gmail account and send through my primary one. Problem solved.

Bottom line: NO MORE SPAM on my Treo or my desktop (without having to buy, maintain, and run an ineffective antispam program). Plus web access to all my saved email from wherever I am--including my office PC and my laptop.

There is but one final problem to be solved. So far as I know, Outlook will not sync its sent mail folder with the sent mail folder on Gmail. That means that I will have much sent mail on Gmail that I cannot access with my NEO. If anyone has a workaround for this, I would love to hear it.

PS: Don't write me about the privacy issues with Gmail. I know about them and, at this point, am willing to run the risk.

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.