Bush and his inner circle have had tightly held deliberations and no one can say for sure whom he might pick for chief justice, but outside advisers to the White House believe the main candidates are federal appeals Judges John G. Roberts and J. Michael Luttig and possibly Attorney General Alberto R. Gonzales.It's hard to know what to make of views expressed by unnamed oustide advisers, of course, but it's interesting nonetheless. Thanks to Howard for the link.
Saturday, June 18, 2005
Doug Kendall of the Community Rights Council filed an ethics complaint against Sixth Circuit Judge Danny Boggs for serving on the board of FREE, a Montana-based free market environmentalist group that, among other things, runs education seminars for federal judges. Chief Judge Loken rejected the complaint, and wrote, "Reasonable people, unlike the complainant, do not presume a lack of integrity and impartiality from a judge's association with legitimate judicial education, no matter how controversial." And later (alluding also to related allegations against D.C. Circuit Judge Doug Ginsburg): "there is no factual foundation to support an inference of wrongdoing by anyone ... Rather these allegations typify the character assassination that is all too common in our nation's capital.... By use of this tactic, it is the complainant who is undermining public confidence in the integrity and impartiality of the judiciary, not the judges complained of." Ouch!
[Full disclosure: the president of FREE once asked me to draft a memo for him on Daubert, noting that he was considering inviting me to speak on that topic at one of their judicial seminars. I did the work for "free", but never got invited to speak. CRC has been critical of George Mason's Law and Economics Center, which provides Summer research money to me, and from which I have received other remuneration, though never related to the judicial education programs CRC criticizes. Judge Ginsburg is a faculty colleague at George Mason, where he serves as a Distinguished Adjunct. Doug Kendall and I were summer associates and associates together at the same law firm; we had relatively little, but cordial, contact.]
Former Soviet dissident — and gulag prisoner — Pavel Litvinov rejects the comparison in today's Washington Post.
By any standard, Guantanamo and similar American-run prisons elsewhere do not resemble, in their conditions of detention or their scale, the concentration camp system that was at the core of a totalitarian communist system.Litvinov, an Amnesty supporter who was himself a "priosoner of conscience," was solicited by Amnesty to defend the "gulag" charge and refused, as there is no basis for the comparison -- a fact at least some Amnesty officials acknowledge off the record.
Litvinov further echoes the claim that Amensty's reckless comparison can only hurt the organization.
There is ample reason for Amnesty to be critical of certain U.S. actions. But by using hyperbole and muddling the difference between repressive regimes and the imperfections of democracy, Amnesty's spokesmen put its authority at risk. U.S. human rights violations seem almost trifling in comparison with those committed by Cuba, South Korea, Pakistan or Saudi Arabia. . . .
Words are important. When Amnesty spokesmen use the word "gulag" to describe U.S. human rights violations, they allow the Bush administration to dismiss justified criticism and undermine Amnesty's credibility. Amnesty International is too valuable to let it be hijacked by politically biased leaders.
Ellen Goodman writes today:
The climate is equally apparent in the struggle over what the Bush administration calls "climate change" — and everyone else calls global warming. The only way to justify doing nothing about global warming now is to deliberately muddle the science. It's not an accident that Philip Cooney, the White House official caught editing reports on greenhouse gases, left for Exxon Mobil, which has indeed funded doubts.
Is it true that the only way to "justify doing nothing about global warming now is to deliberatly muddle the science"? I think the answer is quite plainly "no." Even if it is true that global warming is occurring, this is only the first of many questions regarding whether we can justify doing nothing about global warming.
Embedded in Goodman's assertion seems to be the implicit argument that if the scientific evidence shows that the global climate is warming, and if it is the result of human-induced factors, it follows that we must do something to try to reverse (slow?) global warming. Leave aside the scientific debate on the subject, and assume for a moment that the scientific predicate is correct. (the world is warming because of human influences). Even if this were true, the implicit syllogism still seems incorrect to me on several levels.
First, assume that the Earth were warming for wholly natural causes, and that the effect was as dire as the worst-case predictions under the current scenario--the apocalyptic stories we read of famine, pestilence, and natural disaster. Would the fact that this warming were "natural" make any difference at all with respect to whether we should do anything? The answer seems obviously no. We never stand by and simply permit wholesale disaster simply because the cause of the disaster is natural. Floods, hurricanes, cancer, smallpox, polio, starvation, wild animals, influenza, AIDS, etc.--all of these things are natural, yet that fact does not stand in our way of trying to alter nature to prevent their harm to humans. So, if global climate change is occurring, the quetion of whether we should do something seems largely irrelevant whether it is caused by humans or naturally-occurring.
So the real question to ask here is whether on net, the costs of doing something about global climate change outweigh the benefits of doing it. This is the same question we ask (or should ask) about every other intervention into nature--should we kill the parasites in water so that we can drink it, should we drain a mosquito-infested swamp to eliminate the risk of malaria, should we provide a vaccine to kill naturally-occurring smallpox. To imply that if the science shows we are changing the climate we must do something about it is as wrongheaded as it would be to say that if we are not contributing to global warming we should not do anything about it.
On the question of whether global warming would be a net benefit or detriment to the planet, the evidence I have seen to date suggests that it is inconclusive. There will be impacts on crop yields, growing locations, forests, energy consumption, etc., that cut in many different directions. The question of whether the warming will occur equally throughout the world, or whether it will occur more strongly in the coldest parts of the world appears to also be unsettled, and has powerful normative implications for policy. To get bogged down in the science, and especially in causal questions, seems to me to be largely beside the point.
Of course, this also shows why the "precautionary principle" is a non-starter as an intellectual construct. As I understand it, if the Earth was warming for natural causes and would nonetheless have the same effect as anthropocentric global warming, then the precautionary principle would tell us that we should not intervene to do anything about it, regardless of whether it might destroy us all. How can that possibly be an intellectually coherent position?
Moreover, note that like global climate change, economic growth is path-dependent, so that if we make ourselves poorer today, we will be forever poorer as a result, and as a result will have less of the good things in life that we acquire through wealth (health, education, medicine, safety, terrorism control). So some number of people will die either way.
I think we need to remind ourselves that the questions of whether the Earth is warming, and if so, why, are just the first question we need to ask ourselves. The real question is, if so, what should we do about it.
From what I can tell from reading the literature by Rob Mendelsohn and others, it is quite possible that based on the best predictions of global climate change over the next century at least, the net benefits of global warming may very well turn out to exceed the costs. (Beyond that time frame the predictions are largely irrelevant--recall that a century ago there were no cars, for instance, which should give us pause about the reliability of long-term models). But even if the benefits exceed the costs, there will be substantial distributional effects, primarily favoring wealthier countries that also tend to reside in more temperate climates (in part, the two are related, as the net beneficiaries of global warming also tend to have higher levels of economic productivity).
If this is true, I want to suggest one way we can think about this is the "Box 4" that is familiar to Property professors in teaching the Coase Theorem (Spur Industries v. Del Webb). This would be to recognize the right of the net "losers" of global warming as having suffered a global nuisance from the net "winners," but to enforce it with a liability rule that entitles them to compensation, rather than a property rule that would entitle them to an injunction. The transaction costs seem too high to give them a property rule. Forcing the winners to pay compensation would also ensure that the net gains from global warming to the winners do in fact outweigh the net losses to the losers.
Glen Whitman has pointed out that I have incorrectly labeled this a "Box 4" problem, when, in fact, it is merely a traditional liability rule. Jonathan Adler has also noted that it might be fruitful to think about global climate change through the lens of a liability rule, rather than property rule, remedy (assuming, of course, that it is thought that a remedy or property right is appropriate in the first place). He also excerpts a comment from the Sierra Club's Carl Pope on the liability rule idea (and responds) himself here.
Friday, June 17, 2005
I confess that I have never been particularly enamored of the "code is law" formulation. It seems to me that "code is law" only to the extent that lots and lots of things are law. If the test for law is what regulates human behavior and experience, then it seems that physics is law, chemistry is law, fear is law, greed is law, human eyesight is law, etc. At such an abstract level, saying that something is "law" doesn't seem to have a great deal of meaning. Indeed, in my experience "code is law" has become a shorthand used among cyberlaw types to remind ourselves that code is important. Law professors naturally look for legal answers to human problems, and "code is law" reminds us that techie solutions may work just as well as or better than legal ones.
So if code is not law, what is it? If you're interested in that question, I recommend that you check out Yale Law student James Grimmelmann's just-published law review note, Regulation by Software (.pdf). Grimmelmann has a somewhat similar skepticism about the "code is law" formulation, and he offers an interesting and quite useful discussion of the differences between regulation by law and regulation by software. Here is the abstract:
This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or a bad choice to solve a regulatory problem.While I'm at it, kudos to the editors of the Yale Law Journal for their smart and helpful way of publicizing their latest issue. I knew that the Grimmelmann note was published and online because I signed up for the YLJ's online mailing list. The list sends out an e-mail whenever a new Journal issue is published; the e-mail contains abstracts of each piece in the issue together with links to .pdf copies posted on the Journal's website. It provides a very easy and convenient way for readers to follow, read, and even blog about new scholarship. I hope other law reviews follow the YLJ's lead.
A comment related to my technology and birth rates post below says:
I cannot help but think that you are treating people like a commodity (reduce costs and increase demand).
I think a big barrier to childbirth is actually our culture, which cannot see why investing into another is more important than investing in one's self.
Child creation is like a commodity in that if you reduce the price, you'll increase demand. Cost matters. Culture matters, too, of course. But even if you hold constant — as a supposedly culturally dictated factor — the amount that a person is willing to invest in a child, as the per-child decreases, the number of children in which the person is willing to invest increases.
If a family feels that they can't spend more than $50,000/year on children without doing things that are too painful to them (e.g., getting a high-paying but misery-inducing job), and the cost of having a child rises from $15,000 to $25,000, they'll be likelier to have 2 children rather than 3. If the costs decline from $25,000 to $15,000, they'll be likelier to have 3 rather than 2. Likewise, if each extra child produces nine months worth of pretty serious discomfort and some amount of health problems stemming from the pregnancy, then on the margins some women will choose to have fewer children, even if you hold culture and willingness to invest in others constant.
Moreover, people's willingness to invest in others may change over time. Twentysomethings may want to play around and have fun; fortysomethings may be more willing to invest in having children; but by then, having children may be medically impossible or too difficult. If technology changes to allow people in their 40s to have all the kids they then want, then — again, keeping culture constant — they may end up having more kids.
Perhaps I'm mistaken, but my sense is that many people resist economic analysis because they find it distasteful: People shouldn't be treated like commodities (as if I'm suggesting that I be able to sell my wife on the open market). We should be paying attention to the grand plan of making people more unselfish rather than to technocratic matters such as cost and incentive (as if campaigns to make people unselfish have enjoyed notable success).
Yet these sorts of gut reactions, and the slogans attached to them, aren't going to change human nature. With very few exceptions, as tasks get less costly — or, if you prefer, get less painful and uncomfortable — people will undertake those tasks more. One can debate how important the cost savings that I describe are compared to all the other costs of having children. But it's a major mistake to just close one's eyes to costs and how people react to them.
My post expressing skepticism about birth rate forecasts for 45 or 100 years in the future led me to think: What changes might substantially increase birth rates in the developed world?
Here's my candidate: A combination of (1) cheaper, less painful, and more reliable egg extraction and freezing, which would let 20-year-old women routinely bank eggs for the future, and (2) the invention of incubators that can safely grow a child from a fertilized egg to a live baby. It's of course impossible to be sure that development 2 will happen within the next 45 years, but I suspect that it will. Let's say for our purposes that it does. Why is this likely to substantially increase birth rates?
It seems to me that many couples have fewer children than they'd like, for several reasons. First, both the increase in women's educational and professional opportunities and changing sexual mores have led many women to marry later, and to have children later. They may still want to have 2, 3, or more children, but it becomes harder to do if you start in your mid-30s.
Second, pregnancy is hard work, especially if you also have one or two kids running around and contributing to your tiredness. Pregnancy and childbirth can also cause various health problems. Some women apparently really enjoy pregnancy and even childbirth, but I suspect that most don't. I doubt that this deters many would-be first-time mothers -- but it may deter some women who already have two kids, have experienced the unpleasantness of pregnancy, are older and thus more likely to find physical burdens more taxing, and feel less of a need to have that extra kid.
Third, I suspect that quite a few families might want to have another kid as their first batch gets older. Today, it's just not an option, at least without a great deal of work. (Adopting is of course always possible, but many people are reluctant to do that.) But if it becomes easy, I suspect a significant number of older couples may take advantage of it. Here I'm less certain, and of course as someone with two small kids I fully understand that many older couples may have no interest in going through all that again. Yet if even a substantial minority (say, 10%) do take advantage of new technology to do this, the birth rate may go up nontrivially.
So if age-related fertility decline stops being a problem, and the physical burden of pregnancy and childbirth is eliminated, two important deterrents to having more children would be eliminated. Naturally, there are plenty of other deterrents; technology won't make having children cost-free. But it will reduce the costs (I speak here mostly of nonfinancial costs) and thus increase the demand.
This is all guesswork on my part, and it may be skewed by the circles in which I travel. It would be interesting to see if there have been surveys that try to measure (however imperfectly) the extent to which people would have more children if the problems I describe were solved. Still, my suspicion is that this could easily drive up the birth rate by 0.2 or 0.3 per couple, or perhaps even more.
I have enabled comments.
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- The Sort of Thing That Drives Economists Up a Wall:
- Technology and Birth Rates:
David Gelernter has an op-ed on the importance of history in today's LA Times. Here's a brief excerpt:
I was amazed to hear about teenagers who don't know Fact 1 about the Vietnam War draft. But I have met college students who have never heard of Pol Pot and the Khmer Rouge — the genocidal monsters who treated Cambodia in the 1970s to a Marxist nightmare unequaled in its bestiality since World War II.
And I know college students who have heard of President Kennedy but not of anything he ever did except get assassinated. They have never heard JFK's inaugural promise: that America would "pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to ensure the survival and the success of liberty." But President Bush remembers that speech, and it's lucky he does.
To forget your own history is (literally) to forget your identity. By teaching ideology instead of facts, our schools are erasing the nation's collective memory. As a result, some "expert" can go on TV and announce (20 minutes into the fighting) that Afghanistan, Iraq or wherever "is the new Vietnam" — and young people can't tell he is talking drivel.
As Glenn might say, read the whole thing. While portions of the essay frame the issue in right-left terms, I think it transcends ideology. The loss of historical knowledge in society at large -- in a sense, the collective amnesia of our age -- is deeply troubling.
SADDAM REQUESTS JACKSON’S JURY Asks Accuser’s Mom to Testify Against Him
Former Iraqi dictator Saddam Hussein startled the international legal community today by requesting that the jury in the Michael Jackson child molestation trial be empanelled to sit in judgment of him when his trial gets underway in Baghdad. . . .
In addition to requesting the Jackson jury, Saddam also requested that the mother of Mr. Jackson’s accuser be called upon to testify against him in his trial.
Read more of this breaking story here.
WordSmith reports on this legalish word that I'd never heard of before. According to the Oxford English Dictionary, it's "The action of committing a minor or petty offence, such as loitering, etc.; contravention of a trivial or hypothetical law, esp. when used as an excuse to harass or arrest a person against whom no more serious crime can be charged."
I noted the other day that I had heard some rumors of criticisms of home-state backlash against some of the architects of the filibuster deal fall-out. Some have raised the fair point that some of the criticisms that I linked to in that post may actually be more about ideological views on votes on judges than the filibuster deal itself, especially for Democrats who signed onto the deal.
A reader from Columbus sends along word of another possible casualty of the filibuster deal on the Republican side, Pat DeWine, who this week was defeated in a stunning upset in the primary election to replace Congressman Rob Portman for the congressional seat from the Cincinnati area. Earlier reports indicated that his father's role in the filibuster pact might come back to haunt him. And, in fact, although he was a prohibitive favorite in the weeks preceding the election, DeWine finished a distant fourth in the primary field.
News reports indicate that DeWine had several problems, including some personal issues, that may have led to his fall from grace in the primaries. But some news reports indicate that his father's role in the filibuster deal played a substantial role in his reversal of fortune, and that primary voters were attacking him as a means to get at his father:
The name became something of a curse last week, when his father, the senior senator from Ohio, became part of a bipartisan group of centrist senators who brokered a deal on judicial filibusters.
That move angered many conservative Republicans nationwide and in the 2nd District, despite the younger DeWine's repeated statements that he did not agree with his father's actions.
"The apple doesn't fall far from the tree,'' said Boyd Piper Jr., a Republican voter from Clermont County.
Piper was so upset with Sen. DeWine's action that he printed a bumper sticker for his car: "1 DeWine in Congress is 1 too many.''
In fact, De Wine tried to distance himself from his father's role in the filibuster deal:
In an effort to make sure the "sin'' of the father isn't visited on the son, Republican candidate Pat DeWine made it clear Thursday he doesn't approve of the role his father, Sen. Mike DeWine, played this week in brokering a deal with Senate Democrats over judicial filibusters.
"I wouldn't have voted the way he did,'' the Hamilton County commissioner said Thursday. "If a person is appointed to the federal bench, he or she deserves an up-or-down vote.''
The elder DeWine was one of seven Senate Republican moderates who came together this week with seven Senate Democrats to hammer out a deal that allowed some of President Bush's judicial nominees to be confirmed but gave Democrats the power to block others.
Many conservative Republicans are furious at Sen. DeWine; and, on Thursday, the Hill, a Capitol Hill newspaper, speculated that conservative voters in Ohio's 2nd Congressional District might take their frustration out on the younger DeWine, who is generally considered the front-runner in a field of 11 GOP candidates running in the June 14 special election primary.
There was some evidence other candidates for the 2nd District GOP nomination were ready and willing to try to tie Pat DeWine to his father's actions.
"He seems to have no problems riding his father's coattails when it comes to raising money and getting name recognition; he's willing to take all the good from it and none of the bad,'' said GOP candidate Tom Brinkman Jr. of Mount Lookout. "I don't know if I believe him when he says he wouldn't have done what his father did.''
It is certainly premature to conclude whether in the long run there will be any negative (or positive) impact on the electoral fortunes of the filibuster dealers. In Cincinnati, DeWine appears to have had enough other problems that it is difficult to determine what role, if any, his father's role in the filibuster deal played in his defeat. But on the Republican side at least, it appears that conservative voters may have taken notice of the filibuster deal. It will be interesting to follow the story as it develops.
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Thursday, June 16, 2005
J. Bishop Grewell rounds up recent environmental cases in federal appellate courts on The Commons Blog here, here, and here. Some of these decisions, such as the 4th Circuit's ruling against the EPA in United States vs. Duke Energy, are quite significant.
U2 frontman BONO was horrified during a visit to Ethiopia, when he saw local women pelting a breast-feeding aid worker with stones.
The American woman was oblivious of the offence she was causing, and had to escape the angry onslaught from female Muslims who had no qualms about injuring her or her baby.
InstaPundit puts it well:
Bono: "She didn't mean to be insensitive." But they did.
Clayton Cramer correctly faults Michael Shermer for writing:
The primary reason we are experiencing this peculiarly American phenomenon of evolution denial (the doppelganger of Holocaust denial)....
Cramer argues that evolution is less well-supported than the Holocaust, but I think there's a deeper error here: The main reason that people dislike Holocaust deniers isn't just that they're factually wrong, methodologically wrong, or even foolish.
Rather, it's that we strongly suspect that the deniers either dislike Jews, or want to make apologies for Nazis. That's not logically necessary -- one can imagine someone denying the Holocaust for perfectly decent reasons, no matter how factually misguided he will be. But it does seem psychologically likely that most people who deny the Holocaust in the face of very powerful contrary evidence are indeed pro-Nazi or anti-Jewish.
Analogizing deniers of evolution with denials of the Holocaust is thus unfair: Not only is there this huge difference here, but it's a difference that goes to the core connotation of the phrase "Holocaust denial" (sympathy for Nazis or anti-Semitism). If you want to suggest that creationists are foolish, that's great -- but analogize them to those who are likewise merely foolish, rather than to those whose folly likely stems from sympathy for evil.
My experience of pointless make-work, which is much more extensive than I would have wished when starting out in life, is that people engaged in it know they are engaged in it. Whether they mind or not depends on the rewards. For a thousand bucks an hour, I’d do make-work all day long — aye, and all night too! Astronaut salaries don’t rise to anything like that level, of course; but there are rewards other than the merely financial. I hope no one will take it amiss — I am very sorry for the astronauts who have died in the shuttle program, and for their loved ones — if I quietly speculate on whether, being engaged in such a supremely thrilling and glamorous style of make-work, one might not easily be able to convince oneself to, as Astronaut Bowersox says, “believe in the program.”
None of which is any reason why the rest of us should believe in it, let alone pay for it. There is nothing — nothing, no thing, not one darned cotton-picking thing you can name — of either military, or commercial, or scientific, or national importance to be done in space, that could not be done twenty times better and at one thousandth the cost, by machines rather than human beings. Mining the asteroids? Isaac Asimov famously claimed that the isotope Astatine-215 (I think it was) is so rare that if you were to sift through the entire crust of the earth, you would only find a trillion atoms of it. We could extract every one of that trillion, and make a brooch out of them, for one-tenth the cost of mining an asteroid.
The gross glutted wealth of the federal government; the venality and stupidity of our representatives; the lobbying power of big rent-seeking corporations; the romantic enthusiasms of millions of citizens; these are the things that 14 astronauts died for. To abandon all euphemism and pretense, they died for pork, for votes, for share prices, and for thrills (immediate in their own case, vicarious in ours). I mean no insult to their memories, and I doubt they would take offense. I am certain that I myself would not — certain, in fact, that, given the opportunity, I would gleefully do what they did, with all the dangers, and count the death, if it came, as anyway no worse than moldering away in some hospital bed at age ninety, watching a TV game show, with a tube in my arm and a diaper round my rear end. I should be embarrassed to ask the rest of you to pay for the adventure, though.
In his book, "The Richness of Contract Law," Robert Hillman criticizes "highly abstract" or "unifying" contract law theories that, he says, fail to reflect adequately the complexities of existing contract law. In his review, "The Richness of Contract Theory," Randy Barnett takes issue with this claim and identifies the generational dispute between legal "realists," whose approach is shared by Professor Hillman, and legal "theorists" of whom Hillman is critical. Professor Barnett's thesis is that the very purpose of modern legal theories is to simplify a complex reality so as to better understand, cope with, and reform legal doctrine. Barnett then discusses Hillman's recent important empirical research on promissory estoppel. Hillman's findings represent a partial corrective to the previous consensus against a "reliance theory" of promissory estoppel insofar as they establish that reliance is a necessary element of promissory estoppel. However, his data also support the Willistonian conception of promissory estoppel by showing that a promise is also required. Ironically, Hillman is, Barnett claims, insufficiently sensitive to the complexity of the cases he surveys and the need to distinguish "reasonable" or "justified" from "unreasonable" or "unjustified" reliance. A more sophisticated analysis of these cases is provided by Professor Sidney DeLong who also is, not coincidentally, more receptive than Hillman to the richness of modern contract theory. While supporting Hillman's finding concerning the requirement of reliance, DeLong also notices courts frequently distinguishing "performance" from "enforcement" reliance. Enforcement reliance is reliance accompanied by a manifested intention by the promisor to be legally bound, or what Barnett has previously called consent.
Update:My apologies. I had not realized that there was only an abstract on SSRN, rather than the entire article. The final published version can be found on my website here. Sorry for any inconvenience.
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One of the common objections to originalism is that it's too hard. All of these overworked judges and Justices don't have the time or expertise to do real historical research into the original meaning of a constitutional provision.1 It is usually liberals who make this charge. While I don't have any specific person in mind, it is curious that the latest liberal cause du jour has been to urge judges to consider the opinions of foreign courts. How are judges supposed to be capable of accomplishing that task? If a judge, despite American legal training, finds it too difficult to understand the history and context of the American Constitution, how likely is it that the judge will be capable of understanding all that is relevant about decisions written in another language and in a completely different context?
There's more in his post.
I've often heard Einstein's supposed line expressing skepticism about quantum mechanics: "God doesn't play dice with the universe." I somehow hadn't heard, though, Niels Bohr's supposed response: "Einstein, don't tell God what to do."
It's a funny commentary, I think, on the role of intuitive judgments of plausibility in evaluating scientific theory. Thanks to Damien Sorresso (in the Huffington Post comments) for the pointer.
The last session of the day is called “Contract Across the Curriculum.” Speakers are Margaret Friedlander Brinig (Iowa), Einer Elhague (Harvard) and Jody Freedman (UCLA). Turn out is much lower than “Critiquing Contract Law” before lunch--people may be sight-seeing--so I have a much better seat.
Einer is first up. He says he is trying to finish two books this summer. One on contract default rules and the other on statutory default rules. Both books are based on the distinction between “preference eliciting” default rules and “preference estimating” default rules.
In contracts, he says, we normally want default rules that efficiently achieve the preference of the parties. This does not extend to statutory default rules which are not solely meant to serve efficiency grounds, and you cannot identify the group that is the "parties" to the statute. The public are not true parties within the legislative process. Nor are legislators who must take into account their constituents’, not merely their own preferences. So how does this affect the difference between default rules in contract and default rules in statutory interpretation? [to read the rest click on show]
What we are really looking for with interpreting statutes is "enactable preferences." This assessment is a probabilistic judgment. (And I would add somewhat more speculative than with private contracts.)
The second difference between contracts and statutes is that you are not bound by contracts unless you consent, whereas with statutes you are bound by acts of previous legislatures. So whose preferences do you look to? The enacting legislature or the current polity? He says that, paradoxically, previous legislators would want statutes interpreted according to evolving preferences--as this would increase the reach of the prior legislature into the future.
He favors using a preference eliciting default rule for statutory interpretation (like a penalty default rule in contract law). In other words, adopt interpretations that will provoke a legislative override that will make it clear what the (current) legislature really wants today. This contrasts with a default rule that tries to guess what today's legislators would want (a "preference estimating" default rule). He then provides some examples of this approach in statutory interpretation. I am not doing his argument complete justice, but this is in part because the bulk of his analysis is in his articles and book draft and is only cursorily summarized here.
Next up is Margaret Brinig (Iowa). Iowa is home to two great contract scholars: Steve Burton and Eric Anderson. Bob Hillman began his career at Iowa too. She begins by identifying the similarities between contracts and family law. She mentions how many casebooks start with family law cases like In Re Baby M (which is indeed the second case in my casebook). Family law cases are not only more relevant to students, she notes, but are more fun. Lee Marvin may be dead, but it is interesting to read about his palimony travails.
Marriages begin with contracts. She then shows a clip from Princess Bride (one of my favorite films). It is the hysterical marriage scene. "Man and wife, say man and wife!" Wesley later says the marriage "never happened" because the princess never said "I do." "If you didn't say it," he tells her, "it never happened." What a great illustration of formalities. (In class I always use the breaking of the glass in Jewish ceremonies to illustrate the formality of assent.)
After a lengthy discussion of how contracts play a role in family relationships and family law, she then asks why not simply contractualize the conception of marriage. (This is an approach to which I have been attracted to for a long time, as are many libertarians.) Here she thinks--citing my BU colleague Kate Silbaugh--commodifies the relationship and undermines the trust that should form the basis of the marital relationship. [Me: This is a topic in which (some) feminists and (some) social conservatives have common cause, as they also have with regard to pornography.]
She concludes by discussing many aspects of the family that cannot be reduced to contractual terms, and how the legal enforcement of implied contracts may change the basic nature of family law. In the end, she affirms the difference between contracts and family law, despite their overlaps and similarities. This is a nicely delivered and nuanced talk–much more so than this cursory summary suggests.
Jody Freeman (UCLA) is the last speaker. She is a very well-regarded younger scholar. This is my first opportunity to hear her speak. Indeed, this is one of the reasons to attend conferences like these. She is going to discuss how contracts overlap administrative and environmental law. She does not want to talk about “contracting out” government services or how regulations can be challenged as a taking of private contractual arrangements, but these two areas reveal an image of government regulation as contractual in nature.
Many view regulations as "command and control," but she notes that regulation often begins with negotiation between the regulators and the regulated. So does the enforcement process. There is a lot of informal contract behavior within the so-called command and control system of regulation. There are significant limits to the extent that government ever commands or controls anything.
So what she wants to examine is "agreement-based approaches to regulation." She says that Bush II uses negotiated regulation more than the Clinton administration did (and there is no pejorative tone in her voice when she says this). One example is negotiations over endangered species between the agency, developers, and environmental and municipal groups. These can lead to agreements that extend beyond the authority granted by the Endangered Species Act. The “consideration” for this agreement is a "no surprises" policy which promises landowners that they can rely on these agreements when making and acting on their development plans. Some more examples of negotiated regulations follow, but I think you get the idea.
One reaction to these "consent decrees" is how the nature of the consent deemed acceptable here is completely different than that demanded of ordinary contracts between business or with consumers. Consent obtained with the coercion of government regulation and enforcement is legitimate. Consent obtained by the "coercion" of refusing to do business on any other terms is deemed to be oppressive and a contract of "adhesion."
I do not attribute this contradiction to Jody. She has repeatedly stressed that she is not a contracts person. (After the panel we talk, she tells me she wants to pursue this issue, of which she had not previously been aware.) But the contrast between the previous 2 panels ridiculing the meaningfulness of private consent, and the virtues of "consent decrees" is striking, if only to me. Appropriately she concludes her talk by asking whether this is really contract-like or an overextended metaphor? A good question indeed. This was a very interesting, substantive and engaging talk. She's a terrific speaker.
During the brief question time, Carol Sanger (Columbia) notes that contracts are circumventing administrative agencies, which fits the tenor of the previous panels about the insidiousness of contract in other fields.
From the floor, I suggest (as I do above) that, if she wants to pursue her metaphor, Jody needs to confront the contracts scholarship that contest the meaningfulness of consent between private actors--especially in light of the coercion brought to bear on private parties to obtain "consent decrees."
Gillian Hadfield USC) agrees with this (though from the other direction) and adds that in the public sphere more classical contract principles are being used than are acceptable among contract scholars.
Blogging is tiring. But maybe it is just being forced to pay close attention that is tiring. Or maybe it is the wonderful meals in Montreal. Whatever it is, I am tired.
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Jay Feinman (Rutgers) is almost done with his talk. I like Jay a lot, ever since we both visited at Northwestern teaching contracts. He's a nice guy. He is both describing the Critical Legal Studies (CLS) movement and how it came under attack and went into somewhat of a decline in favor of the New Formalism and the New Conservatism. It is interesting that he attributes the decline of the political critique of law to politics. This is consistent. What is not entirely consistent is why a rational critique offered by Crits is supposed to be evaluated on its merits as an effort in reason, but its rejection cannot be based on any deficiencies in their argument. It is just politics. But I suppose proponents of every school of thought (including libertarians, of course) attribute its lack of more general acceptance to a misunderstanding of the audience rather than to weaknesses of their arguments.
Jay closes on the pessimistic note that the contributions of the other scholars are unlikely to have much influence. He says "don't shoot the messenger." I do think Jay's gloominess from the Left is a social phenomena worth noting.
Deborah Waire Post (Tauro) opens with a PowerPoint slide with David Rosenberg's in class statement dismissing the contribution to torts of critical race theory and feminism. It gets a laugh. Her talk is about "critical outsider theory." The project is to construct alternative paradigms of the rules. . . . [to read the rest click show]
She confesses an ambience towards contract law. On the one hand, contract promises to be a tool in contesting subordination and oppression. On the other hand, since assent is often lacking without “antisubordination” rules, contract law becomes an instrument of oppression. Examples of this can be found in intimate contracts, IP, and civil procedure. She says that the idea of contract has become all pervasive as a means of people asserting their rights. Examples are litigation against schools, employers and government agencies.
I am finding her presentation to be interesting and engaging, but a little too disjointed to report faithfully here. She is jumping from one point to another (apologizing for going so fast), while interjecting anecdotes, so it is hard to summarize fairly. As a result, I am doing a bit more listening than writing. She gets cheers for her presentation. The moderator Blake Moran (a really wonderful guy from Washington & Lee) notes on how fast she spoke and attributes this to the fact that she just flew in from China and is probably high on caffeine.
I am looking forward to Neil Williams' (Loyola) talk as it is based on the case of Bailey v. Alabama. Bailey is a case in which the Lochner-era court struck down a statute criminalizing breach of labor contracts as a means of establishing a system of peonage in Alabama. Justice Holmes (“The Great Dissenter”) dissented and would have upheld the statute.
I included the case in my contracts casebook (the first time this was done), and now learn that Murphy, Speidel & Ayres now has it in theirs. I cannot complain, as I "borrowed" from other casebooks when writing mine. For me, all this borrowing is an argument against intellectual property.
Neil asks whether it is appropriate for law professors to take into account the race of the parties when teaching cases? This is a very interesting and important question. He starts by telling the story of Alphonso Bailey. He took an advance for his employment contract, and when he left his job he was charged with a crime of fraud.
The Supreme Court mentioned Bailey's race to claim (unpersuasively to Neil) that his race did not matter. He says that the Lochner era court was reluctant to confront racial oppression head on but, to its credit, it struck down the statute for violating the 13th Amendment that prohibited involuntary servitude. Neil notes that Holmes dissented, which he thinks is inconsistent with others of his opinions. He cuts Holmes a bit of slack for his criticizing the court for failing to consider the case race neutrally as it claimed to be doing. I don't think that was Holmes's beef. Instead, Holmes himself insists upon the race neutrality perspective (which no one made him do) to assert his view that he could see no reason why the state can throw its weight on the side of contract performance by use of he criminal law.
The presentation raises but does not acknowledge how protecting freedom of contract ostensibly neutrally served to help blacks, whereas Holmes's majoritarianism hurt blacks. (This is David Bernstein's bailiwick.) If faithfully adopted, freedom of contract is valuable as a means to various ends. Perhaps one of these ends is the protection of disfavored minorities from oppressive majorities.
Neil is now talking about another interesting and classic case of Glover v. Jewish War Veterans. I won't summarize his interesting discussion of this case, which involved the refusal to pay a reward for information leading to the capture of the murderer. It has long been assumed that the claimant was black, but the case does not say. Williams' research confirms that she was, and he asks whether the refusal to pay Mrs. Glover was racially motivated. He says the black letter rules of contract shut down this relevant inquiry. He contrasts Glover with the recent effort to obtain reward for Ashley Smith despite the fact that she may not have been aware of the reward when she provided the information.
He closes by affirming that race is relevant to teaching otherwise abstract doctrines. I agree, which is why I include so much material on race (and gender) in my contracts casebook, including In re Mary Clark (involving involuntary servitude)--which is now finding its way into other casebooks--Bailey, and a background section on the role of race in the Chicago Coliseum v. Dempsey case, among other material. So too in Constitutional Law, I stress the role of slavery without which you cannot fully appreciate the original form of federalism adopted by the founders. Of course, race is also needed to understand the 14th Amendment that altered that original structure.
The challenge is to distinguish when race and gender is truly relevant and when it is not. Relevance will often be in the eyes of the beholder, but it is important for students to be aware that abstract rules and principles do not apply or enforce themselves. Indeed, this relates to the previous panel. Acknowledging our cognitive biases is one way we counteract those biases. On the other hand, what makes sense while studying law may not be as desirable when courts are applying it. We may want to critique decisions by taking race into account, while still contending that courts should strive to be as race neutral as they can.
The Bailey court (unlike Justice Holmes) was conscious of Alphonso Bailey's race as it needed to be to recognize peonage when evaluating the constitutionality of this "race neutral" criminal statute. Yet it still justified its decision by "race neutral" principles that could be used to protect any citizen. It is not obvious to me why this is not the appropriate use of race along with the appropriate use of neutrality. But only if race can be raised in the classroom can we consider whether this defense of Bailey is warranted.
Keith Rowley (UNLV) asks why Mrs. Glover could not be white which is why she turned in her daughter's black husband. Neil had proven Mrs. Glover's race by showing a picture of her son-in-law, who was clearly black. A nice point that is not inconsistent with Neil's basic thesis, as he himself raised the prospect that he might falsely be assuming that Mrs. Glover was black, which is why he did his research.
Charles Knapp, asking the last question from the floor, confesses that he has been hard on Jay Feinman in his writings, which he justifies now on the ground that he was equally hard on your humble blogging correspondent. That got a big laugh too.
All in all a very interesting and provocative session, but I am now late for the afternoon session.
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Michael Shermer -- with whose views I often agree -- posts at Huffington Post about the evolutionism/creationism debates; and in the process he says two things that strike me as worth considering together:
The primary reason we are experiencing this peculiarly American phenomenon of evolution denial (the doppelganger of Holocaust denial), is that a small but vocal minority of religious fundamentalists misread the theory of evolution as a challenge to their deeply held religious convictions.
OK, sounds plausible on its own (though I’ll say some more about it later) -- the theory of evolution doesn’t speak to whether God exists or what he has done, but simply aims to explain how things likely happened, and if you believe that God made them happen that way, that’s something the theory just doesn’t discuss. But here’s another quote from earlier in the piece (emphasis added):
In March of 2001 the Gallup News Service reported the results of their survey that found 45 percent of Americans agree with the statement “God created human beings pretty much in their present form at one time within the last 10,000 years or so,” while 37 percent preferred a blended belief that “Human beings have developed over millions of years from less advanced forms of life, but God guided this process,” and a paltry 12 percent accepted the standard scientific theory that “Human beings have developed over millions of years from less advanced forms of life, but God had no part in this process.”(For more on this poll, see here.)
Well, if “the standard scientific theory” is that “God had no part” in the process of evolution -- not just that human beings developed in a particular way, but that God didn’t guide this -- then it seems to me that the theory of evolution is a challenge to many people’s deeply held religious convictions. And that’s so not just as to the young-earthers who believe the Earth was created several thousand years ago, but also to people who are willing to embrace the scientific evidence but see the guiding hand of God in the process.
What’s more, how exactly do scientists come to the conclusion that “God had no part in this process”? What’s their proof? That’s the sort of thing that can’t really be proved, it seems to me -- which makes it sound as if scientists, despite their protestations of requiring proof rather than faith, make assertions about God that they can’t prove.
And on top of that, if the standard scientific theory is that “God had no part in this process,” then the opponents of evolution are right -- the standard theory of evolution may not be taught in the schools. The Court has repeatedly said that the Establishment Clause bars both government endorsement and disapproval of religion. Teaching that God exists and teaching that God doesn’t exist are both unconstitutional in government-run schools. Likewise, if teaching that God created humans is unconstitutional, so is teaching that God had no part in creating humans.
Now here’s what I think Mr. Shermer is driving at by saying that “God had no part in this process” is the standard scientific theory: The standard theory tries to explain how humans might have evolved without calling on God as an explanation. This isn’t because scientists can prove that God doesn’t exist in any logical or even empirical sense of “prove.” Nor is it because assuming that God had no part in the process is more consistent with the facts than assuming that he did have a part in the process; the God assumption is perfecty consistent with the facts. Nor is it even because in some abstract sense omitting God yields the simplest explanation; “God did it” (3 words!) is a much simpler explanation than the theory of evolution.
Rather, looking for naturalistic causes is standard scientific operating procedure because it seems more likely to produce more useful results, and has in the past produced useful results. Science can’t prove to us that there are no angels pushing planets around the sky; maybe they do push the planets around, though in extremely regular patterns. But if you look for a naturalistic explanation, you’re more likely to come up with useful, predictive explanations of the world than “the angels are doing it.”
In that sense, the theory may be described as “Human beings have developed over millions of years from less advanced forms of life, and we can explain that without bringing in God’s intervention.” Many scientists conclude that this explanation makes it more plausible that God had no part in the process. Others may conclude that if there’s no evidence supporting the existence of some influence, it’s methodologically more useful to assume that the influence doesn’t exist until some supporting evidence is found. Still others may use “God had no part in this process” as shorthand for “God had no observable part in this process.”
Nonetheless, the phrasing that the poll used -- and the one that Mr. Shermer endorsed as the scientifically proper theory -- didn’t include these subtleties. It essentially asked people to decide whether, given that they thought that humans evolved from less advanced life forms, “God guided this process” (which could include the most indirect sort of guidance, perhaps guidance that yields results identical to the naturalistically predicted results, or guidance in the form of having created the world that yielded this process) or “God had no part” -- not an indirect part, but no part at all -- “in this process.” Small wonder that many religious Americans, even those who are quite happy to accept evolution, preferred the approach that’s consistent with the theory of evolution but that let them acknowledge their religious faith. And small reason, it seems to me, to complain. (The “created in the last 10,000 years” group, on the other hand, is definitely reason to complain.)
In fact, science is deeply subversive of religious belief in what one might call “descriptive religion” (religious claims that purport to describe what exists, what happened, what is happening, or what will happen, as opposed to purporting to make normative assertions about what’s morally right and morally wrong). This is not because science in some logical sense disproves such assertions. Rather, the scientific mindset, for better or worse, leads people to find descriptive religious claims less plausible.
The more science explains processes that were once thought to be divinely or supernaturally operated (the movement of the planets, the spread of disease), the more likely it is, I think, that people will be skeptical of other claims of divine or supernaturally operated processes; that’s not a logical mandate, but it is a psychological effect. The more science trains people to be skeptical about descriptive claims in the absence of evidence that leads us to endorse those claims, the more people will question things that they are asked to take on faith. There are certainly scientists who are religious (even in the “descriptive religion” sense); it is possible to have a scientific worldview but believe in descriptive religion. But the spread of scientific habits and principles makes it less likely that people will accept descriptive religion.
Yet scientific popularizers and educators have to deal with the fact that in our society, many people are still religious, and still accept descriptive religion (at least ostensibly). If the popularizers and educators describe science as taking no stand on the existence or influence of God, and as leaving such questions to others, I think they’ll have great success; and, whether they want to or not, they will indeed further undermine descriptive religion. But if they insist, in my view unnecessarily, that the standard scientific theory does take a stand that God is not influencing the world -- and that accepting evolution as the best scientific hypothesis while seeing God’s hand in its operation is an inferior conclusion that is worthy of scientific criticism -- then they will encounter much more resistance.
I have turned on comments; please, keep them polite, substantive, on-topic, and nonobvious.
It seems that the bill approved by the House would block federal funding for any effort to use Section 215 of the Patriot Act to obtain records from libraries or bookstores relating to actual book purchases or borrowing. I'm not sure if this would actually stop Section 215 from being used in such contexts, as I don't know enough about the appropriations process to know how directly the funding question links to the practice. More broadly, it's my understanding that the bill would still allow Internet records to be obtained from libraries and bookstores under Section 215, and would still allow records of libraries and bookstores to be obtained under traditional criminal authorities and also under other provisions of FISA beyond Secton 215. Finally, it helps to keep in mind that this is just a House vote. It seems unlikely that the Senate will go along with this, and the President's promised veto if this passes means it is not likely to make it into legislation (something that I assume the House members knew when they voted on it). Still, an interesting development. Stay tuned.
Reliance on cognitive psychology to understand how people make decisions has lately been fashionable among contract scholars. This panel is designed to introduce these ideas. The panelists are Danielle Kie Hard of Southwest University and Manuel Utset of Utah (and formerly of BU).
I am sitting next to Jay Feinman, one of the founders of the Critical Legal Studies movement back on the 1980s. He wrote some pioneering scholarship back then on critical approaches to contract law, the topic of the second panel of the morning.
Bob Hillman is calling for the session to begin. (I should note that I reviewed Hillman's book on contract law here). I rarely get a chance to plug my writings on contract on VC. Consider this the commercial you must sit through to get to the "free" programing.) Hillman explains that this is a joint panel with the commercial law professors who are meeting along with we contracts folks. He is identifying questions he raised about the use of psychology in an article of his. The first question is whether the psych lab tests really apply to contacting situations? Second, do they provide a good account of contracting? He seems to be trying to stretch to make up for the absence of Marcus, but I would rather just hear from the 2 remaining speakers and leave more time for discussion from the floor, which has been rather truncated in previous sessions. But that's just me. (PS: The session ended up going 5 minutes over with very little time for audience participation,)
Danielle starts right off criticizing what she calls the “freedom of contract ideal.” Her complaint this morning is that "disclosure statutes" to correct bargaining imbalances and asymmetric information actually conceal the real problem with freedom of contract, which is disparity of power These statutes assume the classical conception of contract law which assumes that parties are able to make welfare enhancing choices that merit enforcement, provided they are given the relevant information. . . . [To read the rest, click on show]
She is now summarizing what she calls classical contract theory. She is reading pretty fast so it is hard to keep up. It is the familiar description of the rational actor model. (This is the model that Marcus was going to critique.) Now she is summarizing the standard critique of the unrealistic nature of the rational actor model based on informational asymmetry, the failure to consider all salient information, and the absence of rationality in the marketplace. She says behavioral economics underscores this critique (which I am incompletely summarizing because she is speaking so fast--not too fast for the audience, just too fast for me to keep up).
Human cognitive abilities are limited, says the literature that she is now summarizing, so people use shortcuts. They ignore the statistical data in favor of other less perfect markers. Now she is describing framing effects in which preferences are changed solely because of how the information is presented to her, which puts power into the hands of those who are presenting choices to market actors. Other studies show that people are not truly rational self-maximizers. The example is that people tip though it is not in their interest to do so (a claim that is widely criticized BTW). Market forces require businesses to manipulate information to stay in business, she says. She says the assumptions of the rational actor model underlying classical contract theory are "arguably contestable."
All this undermines the feasibility of disclosure statutes because consumers will not process the information accurately and the resulting transaction will still not be wealth maximizing for consumers, which is the classical justification for enforcing contracts. By relying on disclosure statutes we are privileging the classical conception of freedom of contract which, on its own terms, is incoherent. Freedom of contract is only workable as an ideal if its underlying assumptions are sound, and they appear not to be. Freedom of contract, stripped of its underlying justifications leads to the "draconian" conclusion that "contracts should be kept." So what we have instead is a naked abuse of power. "Freedom of contract is essentially being used as a front for the use of contract as power."
One problem with this critique is that it is what philosopher's call "radical" which means essentially that it applies so broadly that it equally undercuts the position of the person making the critique. In this case, these inabilities to process information and make value maximizing choices equally (if not more so) undermine democratic theory by which voters choose leaders to pass laws to protect them from unscrupulous businesses. How are THESE choices to be made given the claims of cognitive impairment? The same would apply to the experts like contract law professors who posture that THEY know what the rules should be to compensate for consumer ignorance. What makes them able to transcend the weaknesses of human cognitive abilities. After all, they too are only human. Just attend a faculty meetings some time.
The truth is that the so-called classical model of contract is unrealistic, but a more realistic economic model nevertheless supports the decentralization of decisions down to the level of individual, rather than allowing some imperfect persons make choices for others--choices about which they lack knowledge. In addition, it is the individual who has the interest to make better choices for themselves than do enlightened rulers. All this is the thesis of my book, The Structure of Liberty: Justice and the Rule of Law. There I defend "freedom of contract" based, not on perfect information, but on highly imperfect knowledge.
But returning now to our program, now it's Manuel Utset's turn to speak. He is using Powerpoint, which may make it easier for me to keep up. His talk is about the time-inconsistent preferences...--oops he changed ths slide! Too late to write down his whole thesis. The next slide is about 5 contract law issues, Optimal levels of Reliance, Opportunism, incomplete contracts, damn, the slide is gone now. I better stop reading the slides. Talk about informational impairment!
Well that does not help either. The problem is that he is throwing too many concepts at me so I cannot explain them to you and still keep up. (This is what I feared about live blogging.) On the other hand, this illustrates the problem he and Danielle are discussing. I doubt that most in the audience are internalizing much of the information he is throwing at us. Yet these are the very experts upon which Danielle would rely to make value enhancing choices for others. The reality is that the audience is deferring to the knowledge of the speakers, but most of the speakers are deferring to the knowledge of the researchers upon whom their papers are based.
Which is how we ALL make a good portion of our decisions. The main difference is that mistakes individuals make primarily harm themselves, whereas the mistakes made by rulers harm many others far and wide. And rulers lack the same incentives to make value maximizing choices for others, that we have for making them for ourselves.
Manuel is now discussing the difference between my present self and my future self. My present self wants to commit to do something but my future self will undermine my present choices. At this moment, I can identify with this as my present self wants to stop blogging. No wait, that is my future self who wants to stop and my present self wanted me to blog. Which means that my present-now-past self wanted me to blog but my future-now-present self wants to stop. (Well that's the difference between ex ante and ex post. Got that?) All this is what he means by “time inconsistent preferences.”
So I am now just listening until I can figure out what it is possible to report. The presentation is actually pretty effectively summarizing the cog psych argument for why individual decision making is not "optimal." Once again, however, this resort to optimality creates a straw man. If you took this critique seriously, you would conclude that individuals are incapable of making value maximizing choices--as Danielle seemed to suggest--which we know is not the norm, and we cannot explain why either democratic rule or rule by (human) experts will perform any better given that democratic or expert rulers with highly imperfect information and weaknesses in processing this information rationally will be able to make better choices for others than they can make for themselves.
There are possible answers to this challenge of course, but most of these responses (as we shall see) would serve to relax the assumptions on which the critique of individual choice is based, thereby reducing the problem for which democratic rule or rule by experts is supposed to be the solution.
I need to stress that, to the credit of its organizers, this panel was originally designed to be balanced. These two speakers were supposed to present the cog psych critique, which both did effectively--despite my inability to keep up with them in this blog--and Marcus was going to provide the response. Which makes it all the more unfortunate that his illness prevented him from attending.
I asked the panel about why this cog psych critique does not apply equally to rule by experts or democratic rule. Danielle freely concedes that it does apply across the board, but that larger institutions have the resources to devise and adopt strategies to compensate for these cognitive impairments that individuals and even small business lack. Fair enough, though I think the original critique unduly discounts the strategies that individuals employ to compensate for their cognitive deficiencies. That these strategies are imperfect (as they are) does not mean that they are not still preferable to rule by (imperfect) others.
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The latest development appears to be a leak by DOJ career lawyers indicating that the career lawyers involved in the case strongly opposed the decision but were overruled by DOJ political appointees who became actively involved in the litigation. The Times story is a bit cagey about saying that the career lawyers leaked the documents to them; the story refers to the documents as "newly discovered" documents "reviewed by" the Times. But I think I'm on fairly safe ground when I assume that DOJ career lawyers were behind the leak. A number of factual claims in the article are expressly based on anonymous sources within DOJ, and the story features the money quote by "a Justice Department employee involved in the case who insisted on anonymity for fear of retaliation": "Everyone is asking, 'Why now?'" the employee asks. "Why would you throw the case down the toilet at the very last hour, after five years?"
I confess I don't know anything about the tobacco trial or its merits, or whether the change in the damages sought was proper or improper. (On one hand, the fact that DOJ politicals made the final call isn't suprising, as in my experience major litigation decisions are often made by DOJ bigwigs who are political appointees. On the other hand, this story says that the DOJ Office of Professional Responsibility is investigating the case, which suggests that political interference if it happened was a no-no. But beyond that I have no sense of the merits here.) Either way, it's pretty rare for DOJ career lawyers to be so ticked that they leak internal documents to the New York Times, which makes me think that we probably haven't heard the last of this story.
Comments enabled. As always, civil and respectful comments only.
I am reading increasing reports about home state, grass roots fall-out from the filibuster deal. This column criticizing Sen. Ken Salazar of Colorado and this one about Sen. Lidsey Graham are illustrative. Especially interesting is the difference in perception of the deal back home versus inside the beltway. Consider this passage from The State newspaper in Columbia, SC:
WASHINGTON — In Washington, South Carolina’s Lindsey Graham is being lauded for helping pull the U.S. Senate back from the partisan brink of a filibuster crisis.
In South Carolina, the Seneca Republican is trying to control the damage.
“The calls won’t quit, and they’re almost all against Lindsey,” state Republican Party chairman Katon Dawson said.
Dawson counted more than 900 phone calls to party headquarters in 36 hours — mostly from people who helped elevate Graham from the House to the Senate in 2002.
If the deal isn't playing very well at home, and if pushed to the constitutional/nuclear option eventually, I wonder if the long-term fall-out from the filibuster deal will be to actually increase the size of the majority voting in favor?
Wednesday, June 15, 2005
I used to be pretty firmly against having comments, but Orin's experiment with allowing them led me to dip my toe in the water, and now I've tumbled down the slippery slope.
I expected most comments to be thoughtful, on-topic, and interesting, and they have been. But I've been struck by just how many good comments there have been, and how few bad ones I've seen.
I know, I know, famous last words, and maybe I've just jinxed it. Still, I've been very pleased by the results, and my sense is that many readers enjoy being able to comment (and even to read others' comments), so that's a plus. I expect to enable comments on most of my posts in the future.
It was in the news several days ago, but I missed it, and thought other readers might have, too:
The federal government has asked the National Academy of Sciences not to publish a research paper that feds describe as a "road map for terrorists" on how to contaminate the nation's milk supply.
The research paper on biological terrorism, by Stanford University professor Lawrence M. Wein and graduate student Yifan Liu, provides details on how terrorists might attack the milk supply and offers suggestions on how to safeguard it.
The paper appeared briefly May 30 on a password-protected area of the National Academy of Science's Web site. . . . [T]he Department of Health and Human Services, which asked the academy to stop the article's publication. . . .
The paper gives "very detailed information on vulnerability nodes" in the milk supply chain and "includes . . . very precise information on the dosage of botulinum toxin needed to contaminate the milk supply to kill or injure large numbers of people," [HHS Assistant Secretary Stewart Simonson wrote in a letter to the science academy chief Dr. Bruce Alberts]. . . .
The NAS did indeed pull down the paper and delay its publication, and they're apparently reviewing it further. I'm naturally interested in this as an example of crime-facilitating speech — but also as the father of a boy who drinks lots of milk.
The NAS is a private organization, and as best I can tell, this was a request, not a command or even a threat, so there's no First Amendment problem here. But it's still an interesting question about public safety, scientific openness, and what mix (and timing) of openness and secrecy is the best way to deal with potential security problems.
Wein describes the problem in the course of arguing in favor of some potential solutions, such as "that the FDA guidelines for locking milk tanks should be made mandatory, and . . . the dairy industry should improve pasteurization to eliminate toxins." To get such potentially expensive procedures implemented, one may well need to explain precisely why they're necessary, and do so publicly, so that it's harder to sweep the objections under the rug. On the other hand, there are obvious costs to public disclosure, too. A hard and important question.
Comments are enabled -- please keep them on-topic, substantive, and polite.
CON: I can't believe DC wants to ban smoking in restaurants and bars. Does the government need to regulate everything? Why can't they just let restaurants and people do what they want?So who has the stronger argument, PRO or CON? And what arguments are they missing? I have enabled comments. As always, civil and respectful comments only.
PRO: Your ideological preconceptions are blinding you to something important. Being around smoke is a big annoyance for many non-smokers; the smell is very unpleasant, and non-smokers often need to pay to get their clothes dry-cleaned to get the smell out. The smoking ban is about stopping smokers from inflicting those costs and harms on innocent non-smokers.
CON: But we can let the market decide this. If some people want to smoke, they can go to a smoking bar or restaurant. If some people want to go to a place than bans smoking, some businesses will ban smoking on their own volition to cater to that audience. The market will adjust to have some smoking places and other non-smoking places. It's a win-win.
PRO: That sounds good in theory. But you're missing the fact that decisions to go to a particular restaurant or bar are usually group decisions, in which the least offensive option for the group wins out. Smokers usually are addicted to nicotine; if given the choice between a smoking place and a non-smoking place, they will voice a very strong preference for the smoking place. Non-smokers may strongly prefer going to a non-smoking place, but they'll voice less objection about going to a smoking place because it's not a chemical addiction for them. This means that even if most individual people prefer a non-smoking place, most groups will choose smoking places, and most bars will permit smoking.
CON: I think you're basing that argument on a paternalistic value judgment about the merits of smoking, though. If a group makes a collective decision to go to Smoking Bar A instead of Non-smoking Bar B, it presumably means that the members of that group on the whole are happier at A than at B. Non-smokers may be a little bit annoyed by being around smokers, but that annoyance is outweighed by the pleasure the smokers get from smoking. It sounds like you're valuing the views of non-smokers more than those of smokers; you discount the latter because to you they are just "feeding an addiction."
PRO: Maybe. But is that illegitimate? After all, an addiction could be defined as something that a person feels compelled to do repeatedly even if they realize it is against their best interests. Given that, I'm not sure it's unfair to treat nicotine urges as a less valued set of preferences than a non-smoker's preference to be in a smoke-free environment.
CON: What's next? Are you going to ban smoking altogether, even in private homes? I don't know where your principle stops.
PRO: Ah, the dreaded slippery slope argument. There's a good case for limiting the ban to bars and restaurants, actually. Bars and restaurants are enclosed spaces where people are physically close to others they don't know. Smokers often ask their friends if they mind them smoking before lighting up, as smokers realize that many non-smokers are annoyed by the practice. The smoking ban would just extend the same courtesy to strangers.
CON: That's not quite right, though. The proposed ban wouldn't just give non-smokers veto power. It imposes a ban that all smokers must follow even if everyone in the bar or restaurant wants to smoke. That interferes too much with personal choice for my taste.
UPDATE: I should point out that I intentionally avoided the secondhand-smoke-is-dangerous argument and the bans-hurt-businesses argument because both are at bottom scentific/empirical questions that I am not equipped to answer or evaluate. Strong evidence in support of or against these arguments would shift the debate considerably, but my understanding is that the evidence on both issues presently is inconclusive.
Jean has summarized the law of arbitration for the benefit of the contracts professors. I have a section on private arbitration in my casebook, but it is rarely discussed in first year contracts classes, and I do not claim to know its nuances. The issue is whether arbitration can be mandated by a term in a contract—especially a form contract of the sort discussed in previous sessions. (Recall that I distinguish between browsewrap agreements where there is zero manifestation of assent and click-wrap agreements that you must click to agree to (probably unread) terms.)
Rick is giving an impassioned plea for the proposition that there should be no binding arbitration for consumer contracts. He contends that arbitration clauses are meant to avoid the substantive law of contracts that protect consumers as well as consumer protection laws.
He says that there is never any bargaining about arbitration clauses (generally true) and no "rational" person can say there was assent to such clauses. Here I disagree. I think it is quite realistic to consent to unread terms on the grounds that it is not worth it to the consumer to worry about such contingent clauses, while it IS worth it to the repeat players who provide the form since they have to deal with thousands of transactions. The issue for me is whether arbitration clause is so surprising that it is not within the range of terrms that could be consented to without it being brought specifically to the attention of the consumer. I think that arbitration are not so surprising that it cannot be said that a reasonable consumer runs the risk of their presence in an unread form contract.
Steve Ware is now up defending enforcing arbitration clauses. He contends that businesses who use such clauses save money and that SOME (not all) of these savings are passed along to consumers. So both sides benefit from such clauses.
He is now asking where is the source of the benefits to business. If it comes from lower awards to consumer claimants, then such clauses come at the expense of consumers. But he thinks cost savings may also result from lower process costs which is a win-win situatiion for both parties. Only lawyers who are excluded from arbitration are harmed by such clauses. So the issue is determining which is the principal source of the savings. He cites studies that suggest that lower awards in arbitration (as compared with a civil lawsuit) are traded off against higher numbers of successful claims brought in arbitration. So the situation for consumers is not uniform. More consumers may benefit from arbitration, but a few consumers may lose out by recovering less than they would in court. He says the empirical evidence is not that powerful, but this seems to be the trade-off that must be weighed, and he thinks the benefits to the price reductions that are passed along to consumers and the lower cost access to justice outweight what is given up in large jury awards. . . . [to read the rest click show]
Jean replies that it is a myth that consumers can get a decent result in arbitration because very very few consumers go to arbitration over their small claims because (a) they don't know what arbitration is (b) they cannot get a lawyer and (c) consumers are afraid to take on the task.
Further, assuming consumers may benefit from lower prices, there are other public interest reasons to subject companies to discipline that arbtration largely allows them to excape. In Jean's view these costs outweigh any benefit to consumers by means of lower prices.
Jean concedes that the win rate for consumers may not be bad, but questions whether arbitration makes it too difficult to bring claims at all.
Rick agrees with all that. Rick does not care if it is rational for consumers because "we as a society make decisions for consumers." The right to go to court is all important. "We as professors" should care about that. He stresses the deterrent effect of lawsuits--as well as public condemnation--that are not acheived by arbitration.
Steve replies: A lot depends on whether civil litagation is a private matter between private parties or serves primarily a public function. He sees it as the former, Rick as the latter.
He then addresses the issue of who is using arbitration. Credit card companies for example use arbitration so often not because there is different substantive law that is being applied, but because of the lower process costs that make small scale enforcement feasible. This lowering the cost of collection benefits companies, but, as he previously argued also benefits consumers with lower prices.
From the floor, Frank Snyder points out that there are lots of contracts cases in state court to arbitration has not dried up the supply of cases to make the public law of contracts. Jean replies that the concern is that certain types of cases may not be brought often enough.
Charles Knapp (Hastings) asks why contracts professors are the only line of defense of the rule of law? Where are the procedure teachers? Rick agrees that contracts professors are the only line of defense.
Bill Whitford (Wisconsin) asks Steve what he thinks about a small claims court opt-out of arbitration? If I understood his answer, he thnks the lower cost small claims court opt out does reduce the cost advantage of arbiitration.
He then poses another question for Steve: Isn't it true that to collect an arbitration award don't creditors still have to go to court? Steve agrees that the cost savings is only on the first half, the adjudication of the merits portion of the claim.
Rachel Arnow-Richman (Denver) asks whether arbitration should itself be regulated to address these problems rather than eliminate abitration altogether? Where would such an alternative regulatory scheme come from? Jean things arbitration can be regulated by unconscionability doctrine so long as it is being used the same way here as elsewhere, and arbitration clauses are not just automatically knocked out across the board. Still she doubts that it is practical to regulate arbitration by traditional unconscionability. She thinks modifying the Federal Arbitration Act would be a possible way to go, but she doubts any changes can get through Congress at this point.
Jamie Fox (Stetson): Brings up the sliding scale discussion of the last panel. Should there be a carveout when you have the in between "adhesion" (form) contract. For example for racial discrimination. Steve says that bills attempting to carveout discrimination in employment contracts are regularly introduced in Congress and fail. He thinks such bills would have a much greater chances of passage in a Democratic Congress.
This was an interesting panel, as was the previous one on IP and contracts. Perhaps this is because even a superficial exposure to issues from other fields--like IP or ADR--is useful to contracts professors, as compared with a superficial discussion of contract law theory itself, which should be beneath the level of knowledge of most who teach contracts.
I am not sure if I am going to do this again for tomorrow’s sessions. For one thing, I dont know if anyone finds this sort of blogging interesting to read. But it was a fun thing for me to do, at least for a change of pace.
Also my Treo 600 with external keyboard worked well for typing my notes. Now if only PowerBlogs would create an interface so I could post to the blog using the Treo, then I could pgenuinely live blog from the event.
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My friend Brad Smith has announced that he is stepping down from the FEC to return to teaching. The Press Release is here. While a loss for the country, it is certainly a gain for those of us who look forward to having Brad back as an academic colleague.
Brad's tenure at the FEC exemplifies how one can hold a principled intellectual objection to certain laws, yet be rigorously fair-minded in applying those rules and upholding the rule of law with distinction and honor.
In his resignation letter submitted to the President, Commissioner Smith added a comment on the current state of campaign finance regulation:
I remain concerned about the effects our campaign finance laws are having on grassroots political participation. Political activity is more heavily regulated than at any time in our nation’s history. For example, in accordance with the law, during my tenure the FEC has assessed penalties against parents for contributing too much to the campaigns of children; against children for contributing to the campaigns of parents; and against husbands for contributing to campaigns of their wives. We have required citizens to respond to complaints for the display of homemade signs supporting a candidate. These are just a few examples: the Commission’s regulations take up nearly 400 pages of fine print. I urge you to consider the effects of regulation on grassroots, citizen political activity when proposals arise for still more regulation.
Peggy Radin is going first. She says she now teaches contracts after she realized that people could contract around all the meticulously negotiated intellectual property rules by such practices as clickwrap and browsewrap agreements. She asks whether contract law should be considered preempted by federal IP law. She is now insisting on the distinction between the “public” law (which sets original entitlements) and “private” law of contracts that rearranges the background property rights, in this case intellectual property rights.
Peggy has written seminal work on inalienability of rights, and she is now wondering whether the power to contract around background IP entitlements should be limited. . . . [to view the rest of this post click on show]
My battery gave out on my laptop, so I had to switch to my Treo but I left the keyboard in my room. So I missed much of what Peggy had to say. Darn it! need to buy a new battery, but as I cannot access the wireless network in the meeting room, in the future it is just as easy to compose this on my Treo using the keyboard.
I got back in time to hear Mark Lemley (also of Stanford). Mark begins by noting how Microsoft imposes what amounts to a speech code on those who use its web building software and reports other examples of amazing terms included in software browsewrap "agreements." This includes spyware licenses restricting your right to remove it. His point is that when consent is eliminated, fantasically one-sided terms can result, contrary to what he says was the suggestion of Clay Gillette. The issue is when there should be restrictions on the ability to enforce such terms. (I have written about and endorsed such limits in the form contract context here.)
Mark's discussion of "preemption" of contracts by federal IP law is a bit too technical to summarize here. He basically says that sometimes the courts find that IP law preempts contracts and other times they not. The issue is how strong is the intellectual property policy.
Mark suggests that, rather than focusing on how important is the IP policy, we could also ask how much of a contract is there? Is this a browsewrap in which consent is really fictitious, or is it a specifically negotiated agreemments? The more the contract is really negotiated and agreed to, the more receptive we may be to allowing it to supercede the background IP rule. The more it looks imposed by one party on another without even a hint of assent, the less willing we should be to allow contracting around the IP. We should consider contracts on a sliding scale between these extremes.
Given a proper antipathy to browsewrap agreements, this sounds reasonable, but perhaps this is because there is no real assent at all. But when we talk about other form contracts to which you do need to indicate your assent (even if you do not read the terrms) I wonder which side of the line these would fall. Mark does not say, but I'll bet he has an opinion.
Next up is my boss—I mean my Dean—Maureen O'Rourke. She is discussing how the American Law Institute treats software, and the licenses that you agree to when using it. Is there a need for separate rules governing software or can it be handled by general contract law. She is the assistant reporter for the ALI project developing "principles." She is listing the questions they are addressing.
She is now discussing contract preemption again, and she agrees with Mark that you need a sliding scale depending on the nature of the contractual assent. She founds that the idea of contracts trumping IP law is much weaker with browsewrap agreements where consent is largely fictional. But what about click-wrap agreements with formal consent? She too does not address it, though she does refer pejoratively to "boilerplate" form contracts. Because such forms operate "against the world" they looks more like legislation than contracts and it is more troubling to allow these sorts of contracts to vary the rights provided by IP.
She closes by discussing the restrictive terms that define "open source" agreements. Although "open" they still provide restrictions on use that differ from the background IP regime.
I asked the panel from the floor about whether the proposal is really a "sliding scale" in which completely negotiated contracts are at one end of the scale and browsewrap with no indication of consent is on the other. Do they really think that click wrap and other form contracts where there is a manifestation of assent to an unread form supplied by one party should get some middling treatment. Or is it really a dichotomy and we need to decide whether click wraps are one side of the line or the other. In my article on form contract I do think that form contracts like “click” agreements should fall into a middle category in which, what Todd Rakoff called, "visible" terms (which it is rational to read) get enforced as a matter of course and "invisible" terms (about which it is rational to remain ignorant) only get enforced when they are not a surprise. (See my article here.)
Mark said he really does think there should be a sliding scale, rather than a dichotomy, but he did not address what middle treatment the middle types of agreements should receive.
Alan Schwartz of Yale asks the next (and last) question. He asks whether is any preemption at all. The issue is whether private acts are permitted under copyright laws. If so, then state contract law applies. His questions flummoxes the panel, I think, because he is using the term "preemption" in a more technical sense than are the panelists who are using "preemption" to refer to private contracts, as opposed to the state law of contracts. Mark thinks it really is a preemption issue because the question in whether you can go to (state) courts to enforce your private agreements that federal law says cannot be enforced. The hard part is figuring out what federal law really prohibits.
I am posting this after lunch and the next session begins in a few minutes. So I have to run.
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National Review has long bucked conservative orthodoxy on drug prohibition. The magazine first came out for drug decriminalization many years ago -- a controversial move for the magazine, and a position not supported by all of its writers. Longtime NR senior editor Rick Brookhiser does support NR's position, especially on marijuana, and can speak from personal experience as to its medical benefits. Now if only the federal government would stop squelching medical marijuana research -- and drug warriors would stop pretending that marijuana is a grave threat to the public order.
1. Inside the typical piece of glass — whether eyeglasses or a wine bottle — there's a knife waiting to get out, and one that's likely much sharper than a pair of nail scissors.
2. If we can't fight off a hijacker who's armed with a pair of nail scissors, then we deserve to lose.
UPDATE: I originally said "nail clippers"; reader Robert Lyman points out that the TSA now allows nail clippers, but not "scissors-metail with pointed tips," which includes the nail scissors that I much prefer over nail clippers. I've changed the post accordingly. Also, metal dinner knives (except "round-bladed knives" and "butter knives," which I think excludes even the usual, relatively blunt, metal dinner knives) are barred, and are therefore barred in restaurants that are within the airport's security zone.
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The Foundation for Individual Rights in Education — whose assertions I've generally found to be quite trustworthy, and which backs them up with links to original documents — writes:
[Eliana] Campos’ tribulations began on March 23, 2005, when she went to [Seminole Community College] Student Activities Specialist Gail Agor to request permission to sit at a table and pass out literature from PETA. Agor refused her request and later justified it by writing, “Eliana, maybe you wouldn’t insult or yell, but PETA instills a feeling in me that I can’t, and won’t, take a chance on campus. [sic] ... I feel this is a set up for conflict.” She told Campos that she would only be allowed to “stand and speak freely” about her beliefs in the college’s tiny and ill-defined “free speech area.” . . .
FIRE wrote to SCC President E. Ann McGee on April 18, pointing out that Agor’s decision constituted discrimination against the student’s views and that SCC’s free speech zone policy was unconstitutional. In a response, Vice President James D. Henningsen wrote that Agor’s comments were not “authorized,” and that future requests would be considered on a content-neutral basis. However, he attached to his letter e-mails indicating that Campos could protest only in the free speech zone, and that only “registered student organizations” could table in the café.
Campos repeatedly requested a written copy of the alleged policy restricting café tables to student organizations, but was supplied only with another copy of the free speech zone policy — which does not mention the café. FIRE criticized SCC’s inability to produce the supposed student organizations-only policy in a June 7 reply to Henningsen, but has received no reply. . . .
Really, though I don't understand why PETA literature would set anything up for conflict.
UPDATE: FIRE reports that "Just hours after the story broke, FIRE received a letter from SCC indicating that the college would now allow Campos to distribute her literature outside of the free speech zone and on equal terms with other students and student groups. SCC has also promised to review and recommend changes to its speech policies to ensure students’ constitutional rights are respected." Pleased to hear it.
Europe as we know it is slowly going out of business. . . . It's hard to be a great power if your population is shriveling. Europe's birthrates have dropped well below the replacement rate of 2.1 children for each woman of childbearing age. For Western Europe as a whole, the rate is 1.5. It's 1.4 in Germany and 1.3 in Italy. In a century — if these rates continue — there won't be many Germans in Germany or Italians in Italy. Even assuming some increase in birthrates and continued immigration, Western Europe's population grows dramatically grayer, projects the U.S. Census Bureau. Now about one-sixth of the population is 65 and older. By 2030 that would be one-fourth, and by 2050 almost one-third. . . .
There's much to Mr. Samuelson's article, which may well be generally correct. But I think it's something of a mistake to make demographic predictions for what happens "in a century" "if these rates continue," or even in 2050. I doubt that a century ago we could have anticipated the demographics of Europe in 2005; I doubt that 45 years ago we could have anticipated the demographics of the U.S. in 2005 [UPDATE: I particularly had in mind the magnitude of Hispanic and Asian immigration, especially given that Asian immigration was largely opened up by a political decision in the mid-1960s]; I doubt that today we can anticipate the demographics of Europe in 2105 or even 2050. I doubt, for instance, that someone 100 or even 45 years ago could have guessed Italy, seat of the Papacy, would have such a low birth rate.
Too much depends on shifts in culture, immigration, economics, and to some extent medicine. Some things one can plan on with somewhat more confidence: People who are 30 today will be 75 in 2050, and barring a major war, plague, massive emigration, or massive immigration of older people one can make a good guess about how many of these 75-year-olds there'll be in 2050. (Immigration, I suspect, is the main variable, but one can have a decent idea of how many will immigrate in the next 10 years, and past that we're talking about immigration of 40-to-75-year-olds, which I suspect is rarer than immigration of younger people.)
But birth rates and rates of immigration of young people are, I think, much harder to estimate. And it seems to me a mistake to just assume that things will stay more or less the same over that long a timespan. They rarely do.
I've enabled comments.
MoveOn.Org is seeking to mobilize its members in defense of federal funding for public broadcasting, but is doing so in a misleading manner. The MoveOn website warns: "The House is threatening to eliminate all public funding for NPR and PBS, starting with 'Sesame Street,' 'Reading Rainbow' and other commercial-free children's shows. Sign our petition to Congress opposing these massive cuts to public broadcasting." As detailed here (and in an e-mail MoveOn is sending to its supporters), there is a threat. Congress is considering whether to reduce the federal appropriation for public broadcasting from $400 million to $300 million, as a step toward phasing out federal funding altogether.
Why is the MoveOn campaign misleading? The suggestion that budget cuts threaten popular shows, such as Sesame Street (as they do above) or Arthur and Clifford the Big Red Dog (as they do in their e-mail alert), is erroneous. Why is this misleading? Because such shows are not the sort of programming which need federal support to survive. These PBS shows are immensely popular — and hence immensely profitable. Such popular children's shows are notorious cash cows.
Even if federal funding for PBS were eliminated entirely, these programs — as well as PBS mainstays such as the Newshour with Jim Lehrer (one of my two favorite news programs) — would almost certainly survive as they would have little problem attracting funding. For the childrens' programs, much of the profit from product tie-ins could easily support their continued broadcast (although it might tarnish PBS' "non-commercial" image.) It is the more marginal, and often more controversial, programming that might be at risk. Yet PBS defenders don't emphasize this because it would undermine the case for continued federal subsidy.
This fight over federal funding of public broadcasting comes at a time when PBS and NPR are under fire for a lack of political balance. I agree that much of the programming on public broadcsting is quite skewed. Yet I am also uncomfortable with the content of public broadcasting becoming a political football. I don't like the idea of politicians from either party pressuring any broadcaster to shift their coverage in one direction or the other. To me, this only strengthens the case for defunding public broadcasting altogether. After all, if PBS and NPR did not receive any federal support, the federal government would have no basis for seeking to infulence the content of either network, and would not have the same ability to put pressure on public broadcasters. I think public broadcasting should be defunded — for its own good.
I agree with Juan's criticisms of the "bloggers as digital mob" argument, and just wanted to add this: The reason that we dislike mobs is that they have the power to cause physical damage entirely unrelated to the persuasiveness of their ideas.
But when bloggers "hound . . . prominent newsmen from their jobs," they don't do it through force -- nor do they do it through "extravagant opinions" as such. A news organization isn't going to fire someone because people express unfounded opinions about them; and to the extent the news organization fears public reaction to unfounded opinions, it has plenty of opportunity to make its own case to the public. Unlike some of the targets of media criticism, the media targets of blog criticism have ample means to publicly defend themselves. The wealthy established media should have little difficulty rebutting unfounded opinions spread by amateur bloggers.
Of course, when the opinions, however extravagant, are actually well-founded, the media may well respond to them. And prominent newsmen who have indeed done something wrong may be dismissed by their employers, not because some oh-so-scary "digital mob" is threatening to rip apart the jail if the prisoner isn't handed over, but because bloggers are making a persuasive case that the newsmen have indeed badly erred. "Blogs can . . . be destructive and unaccountable," the Technology Review story says. Yet they are accountable in the simplest and most effective way: If their charges against newsmen aren't persuasive, there'll be little reason for the newsmen's employers to act on those charges.
Finally, Technology Review complains, even though "[p]erhaps all three men deserved their fates; maybe the blogosphere is to be applauded," "bloggers expressed an unseemly triumph after they got their man." Heaven forfend! "There's a mob outside the window, Sheriff -- and they're . . . gloating." "What has this country come to, deputy? I guess we'd better give them what they want."
Let's just say that if "mobs" were simply famous for persuading media employers, through the force of their reasoning, to fire errant newsmen, and then "express[ing] . . . unseemly triumph," then "mob" wouldn't be much of a pejorative.
The folks at Technology Review is upset that the "digital mob" is too critical of the MSM and has claimed the careers of Dan Rather, Eason Jordan, and Jeff Gannon.
Perhaps all three men deserved their fates; maybe the blogosphere is to be applauded. But in each case, bloggers expressed an unseemly triumph after they got their man. It’s hard to feel happy when bloggers turn into a digital mob. Blogs are powerful, but bloggers are rewarded for expressing extravagant opinions. And at least for now, their postings are not subject to the processes common for most stories produced by MSM: sober debate among colleagues, followed by reporting, line editing, copyediting, legal vetting, and fact checking.
What's curious about this is that the primary charge against the MSM is that it does not involve as much "sober debate, . . . vetting, and fact checking" as its defenders like to claim. Wasn't this precisely the critique of Dan Rather? Doesn't the success of blogs demonstrate that the MSM has lost much of the moral high ground upon which the Technology Review critique is premised? These are hardly original points, but many knee-jerk defenders still miss them. In my opinion, if the MSM did a better job of the things that should distinguish it from blogging, the "digital mob" would be much less of threat.
I have never live-blogged a conference before, so I may lose interest and stop. The question is whether the readers of this blog lose interest in a conference on contract law before I lose interest in blogging about it. Because I could not access the wireless network in the meeting room, I am uploading this post from my hotel room during the break. For this reason I do not have time to correct any typos or add links.
We start with a joint session between the contracts and commercial law groups. Bob Hillman-–a contracts professor--starts by saying he did not realize he was going to be addressing the commercial law group when he wrote his introduction, so he welcomes those of use who teach the first and second most interesting courses in the curriculum. I agree that contracts is a wonderful course to teach. It is chocked full of classic cases with wonderful fact patterns—pregnant cows, carbolic smoke balls, hairy hands—hard but discernable rules of law, and the challenge to theoretically understand them. It invokes important moral issues such as whether surrogacy contracts should be enforced, and whether the specific enforcement of labor contracts amount to slavery.
Now Dan Keating is doing his welcome. He mentions that the last time we had such a meeting on contracts was 15 years ago. He remembers rubbing shoulders with the greats, like E. Allan Farnsworth who, sadly, died this year. For me, Allan was not only an intellectual giant, he was a charismatic person whose absence at this conference will be missed.
The first panel is on “Modern Adhesion Contracts: Clickwrap, Browsewrap and Shrinkwrap.” The panelists are Bill Whitford (Wisconsin), Clay Gillette (NYU) and Juliet Moringiello (Widener). I have known both Bill and Clay for many years, so I am particularly interested in hearing what Juliet has to say, as I have never heard her speak before. [Click show to read rest of post.]
Bill Whitford’s talk is about the ProCD v. Zeidenberg (86 F.2d 1447 (7th Cir. 1996). This case involved the enforceability of a shrink wrap agreement that limited the use of the Pro-CD database to noncommercial uses. Pro-CD made a program in which you could look up anyone’s phone number and address in the US. This was a valuable program to have before lookup services on the internet. I bought one myself. ProCD priced the program very low for personal use and much higher for those who would use it commercially. Zeidenberg bought the program for the low price and used the program commercially. When sued by ProCD, he questioned the existence of his assent to the form terms in the contract that was included in the box. In an opinion by Frank Easterbrook, the 7th Circuit found that the form terms were enforceable. (At least these are the facts as I recall them. Whitford did not summarize the case as he assumed we all knew it.)
Whitford’s claim is that the decision on ProCD is “judicial activism.” He considers “judicial activism” to be law-making by judges and he starts by saying that sometimes it is proper and other times not so the issue is when there ought to be activism and when there should not be. He starts with the claim (assumption) that contract law rules should ordinarily be made by legislatures. But often there is legislative inertia against acting. His claim is that the goal of judicial action ought to be to get legislatures to act to address a problem. As the problems of “delayed term” transactions was already being addressed by the legislature, there was no need for the courts to get involved. Because it gave business a victory in ProCD, it had the effect of moving business to oppose new legislation to handle the problem rather than support legislation so it had the effect of shutting down the legislative process, What it should have been doing was protect the one-shot players (consumers) from repeat players (businesses). Here it did the reverse. My reaction: So “activism” is OK if it spurs legislation that assists consumers, and not when it serves to assist business (and thereby block consumer protection legislation). Got it.
Clay Gillette is up now discussing form contracts. He questions the underlying assumption that unregulated markets will necessarily exploit consumers by using one-sided form contracts. He notes that the inability of business to distinguish between those who read form contracts (like the buyers from NYU) from nonreaders (like him), will lead them to give more favorable terms to him so as not to lose the business of NYU.
On the other hand, readers of form contracts may not share the same interest as nonreaders, so the terms they get won’t serve the interests of nonreading buyers. For example a large buyer might have enough economic clout to get after-warranty service not included in the form terms when an individual buyer would be out of luck. Even if there are pro-seller terms, however, does not mean that contracts are pro-seller on balance. The real issue is whether the contract as a whole is on balance pro-seller. What matters for fairness is that the contract as a whole be sufficiently balanced.
He also notes that proseller contracts allow sellers to give breaks to deservingbuyers–the way businesses give refunds to deserving consumers when reserving the right not to, while being empowered to deny refunds to customers who they think are abusing the process in some way. This was a point made by Lisa Bernstein of the University of Chicago (and my former collegue at BU) is her contracts scholarship.
His plea is not to say that standard form contracts are good or bad, but to be more sensitive and to exactly who is really benefitted or harmed by form contracts. With respect to the form contracts in which the terms come later, he notes a study that in an industry in which some offer their terms in advance and others offer them later, the “terms later” contracts are no more pro-seller than those in which the terms were supplied earlier.
He closes by asking whether courts are in a good position to tell the difference between good terms and bad terms, much less good overall contracts from bad ones. If they cannot, then we should be wary of courts intervening to alter the terms of a contract–even form contracts. Note that Gillette’s use of judicial activism differs from Whitford’s. For him judicial activism is interfering with individual contractual agreements, For Whitford, it was interfering with the legislative process.
Juliet Moringiello is next and she is using a powerpoint presentation. She is focussing her talk on teaching form contracts. That was apparently supposed to be what the panel was supposed to be about, but both Whitford and Gillette’s talks were more about the merits of form contracts.
Moringiello uses the teaching of on-line form contracts as illustrating the objective theory of contracts. This is the theory by which people are held to be bound by what other reasonably believed they meant, as opposed to what they subjectively may have intended. (Think the difference between original public meaning and the original intentions of the framers.)
As someone who teaches contracts, I found all three presentations to be remarkably superficial. To be sure, each discussed insights that we do and should teach our students, but all this should have been old news to an audience consisting of contracts professors. (This is all covered, for example, in the latest edition of my contracts casebook so any professor using the casebook would be well aware of these issues.) Although all three presentations were engaging, and each presented a view worth considering, so far at least anyone familiar with the basic contract theory literature would have learned nothing new. Perhaps this is a conference for professors not so familiar, but why would such unengaged professors come all the way to Montreal during the summer. And had anyone been unfamiliar with these ideas would have had a hard time grasping the very brief summary of these ideas in these presentations.
In short, all that was said was thoughtful, but too truncated for anyone completely unfamiliar with them and also too superficial for anyone who is already familiar with the underlying positions they summarize.
During a brief interaction among speakers, Clay questions the use of “judicial activism” to describe when courts are enforcing the parties agreement. He also questions the theory that judges should adopt rules that operate as a check on organized interests. He notes that consumer groups are pretty organized and it is hard to see that their interests were not represented in the political process governing form contracts. He thinks that courts should focus on enforcing contracts rather than putting the thumb on the scale of the legislative process.
All this makes me wonder about the value of these sorts of academic conferences. While undoubtedly beneficial for networking with others in your field. Yet even in this program with excellent speakers on an interesting topic, I think little is accomplished. Hopefully, however, this summary of the session will be of interest to nonlegal readers who are unfamiliar with these sorts of issues of contract law. And for law students, you have a better idea of where some of your professors are this week.
Now it’s time for discussion from the floor. Mark Lemley of Stanford asks the panel what is left of assent under the cases allowing the enforcement of click wrap and especially browsewrap agreements. Juliette agrees entirely with browsewrap agreements. (I tend to agree as well that there is a difference between clickwrap and browsewrap agreements. The formality of being made to click assent is significant, even if one is assenting to standard form contracts. With browsewrap agreements, no such formality exists.)
Peggy Radin, also of Stanford, says she preaches damage control by telling people that the ProCD case is not the law everywhere in the US. She also distinguishes the case from situations where when there is no price discrimination between consumer and commercial uses, a factor that Judge Easterbrook emphasizes in his opinion in ProCD.
Jean Braucher, of the University of Arizona, make a point concerning another form contract case, Hill v. Gateway, in which the 7th Circuit upheld the enforceability of a form contract shipped with a computer ordered over the phone. Jean notes that Gateway now charges a 15% restocking fee for returning the computer if you reject the terms in the form contact included in the box when you buy it. What is left of assent? Left-contracts professors have made the rolling contract a big issue. For professors who style themselves to be “antiformalists” they put an amazing weight on the offer-acceptance model of mutual assent in objecting to the terms later approach.
Next up is a panel on Contract and Intellectual Property.
Related Posts (on one page):
What We Could Gain in Alaska
Wednesday, June 15, 2005; Page A24
People who love nature, as Jonathan Waterman clearly does ["What We Would Lose in Alaska," op-ed, June 6], harm their cause when they get key numbers wrong.
Mr. Waterman noted that Americans consume about 7 billion barrels of oil a year. Then he said that 1 million barrels a day of new Alaskan oil would represent only a "0.5 percent annual increase in domestic supply." Our domestic production is just over 9 million barrels a day; the increase therefore would be more than 10 percent. Moreover, Mr. Waterman offered his erroneous 0.5 percent figure to refute the argument that Alaskan oil would make the United States "less dependent on oil imports." The imports that concern everyone are those from the Persian Gulf. The United States imports about 2.5 million barrels of Persian Gulf oil a day, so new Alaskan oil would cut those imports by 40 percent. If the Arctic National Wildlife Refuge contains as much as 16 billion barrels of oil, as Mr. Waterman acknowledged it might, that would be enough to cover 100 percent of current Persian Gulf imports for the next 18 years.
PETER HUBER Bethesda
MARK MILLS Chevy Chase
Given that vanishingly few Americans have the time and money to replicate Waterman's 1,700 mile kayak trip across the Canadian Arcti to enjoy the spectacular views, surely Waterman's original column should have been titled "What I would Lose in Alaska," rather than "What We Would Lose in Alaska."
On the other hand, everyone gets to pay for Waterman's trip through higher energy prices, especially lower-income consumers because demand for enery consumption is highly income inelestic. Now don't get me wrong--I am perfectly happy to pay a bit more at the pump in order to preserve parks and unaltered landscapes. On the other hand, I can't see why I should be allowed to force others to subsidize my preferences. It is hard for me to justify as either a matter of efficiency or equity forcing low-income consumers to give me free or heavily subsidized environmental amenities, when they will never have the opportunity to experience this amenities (but still also have to pay higher energy prices to subsidize my preferences). So it seems to me that it is time to get off this question of "what upper-middle class kayakers would lose in Alaska" and start seriously thinking about doing something about the shameful subsidies by poor people for those like Waterman and me.
We need to think about taking some of the politics out of these decisions by coming up with some scheme for pricing these goods in such a manner that the opportunity cost of various different uses is more transparent. The goal, I think, is to make all of us who enjoy the outdoors to put our money where our mouths are and make us pay for our entertainment, just like everyone else has to pay for tickets to movies, football games, and Disney World. Its all fine and dandy for Jonathan Waterman to take a 1,700 mile trip across the Canadian Arctic, but it is hard for to see why I should bear the cost of that at the pump while receiving no benefit. I'm going to the DC United soccer game tonight--maybe Mr. Waterman wants to send me a check to subsidize my entertainment as well?
For example, Defenders of Wildlife created a Wolf Compensation Trust in 1987 to pay ranchers for livestock losses due to wolves. The trust functions by shifting “economic responsibility for wolf recovery away from the individual rancher and toward the millions of people who want to see wolf populations restored.” By restructuring incentives, the trust has helped decrease ranchers’ resistance to wolf-reintroduction.
P.S.: Seeing the wolves at Yellowstone was one of the most awesome sights I have ever witnessed.
A reader reminds me that Jonah Goldberg's visit to ANWR awhile back suggests that the costs and benefits of preserving ANWR's "pristine" nature may not be all that it may seem at first thought.
A reader notes that Huber and Mills appear to have misinterpreted the use of the term "supply" in Waterman's original column:
Our nation consumes 7 billion barrels of oil per year, and even if the refuge provided the hoped-for 1 million barrels per day, the resulting 0.5 percent annual increase in domestic supply would not significantly lessen our dependence on foreign oil.
When I first read this, I read the mention of "supply" as Huber and Mills did, namely supply from domestic oil fields, whereas it appears that Waterman meant supply to the the domestic market. So it appears that they misunderstood what Waterman was saying in making their calculations (although the confusion seems reasonable to me).
Having said that, it appears that the increase in domestic supply would be 5%, not 0.5% percent. The math is here.
Having spent yesterday engaged in an agonzing day of a round-trip flight to New York and back, Anne Applebaum's column today calling for the most minimal assessment of cost-benefit analysis in airport security seems right on target. From Airport Security's Grand Illusion:
If you happen to be reading this while standing in one of those disturbingly slow, zigzag lines at airport security -- looking repeatedly at your watch, wondering if this time you really will miss the plane -- here's something to make you feel worse: Almost none of the agony you are experiencing is making you safer, at least not to any statistically significant or economically rational degree. Certainly any logical analysis of the money that has been spent on the airport security system since Sept. 11, 2001, and the security that the system has created, must lead to that conclusion.
Yet this mass ceremonial sacrifice of toenail clippers on the altar of security comes at an extraordinarily high price. The annual budget of the federal Transportation Security Administration hovers around $5.5 billion -- just about the same price as the entire FBI -- a figure that doesn't include the cost of wasted time. De Rugy reckons that if 624 million passengers each spend two hours every year waiting in line, the annual loss to the economy comes to $32 billion. There has also been a price to pay in waste, since when that much money is rubbed into a problem with that kind of speed -- remember, the TSA had only 13 employees in January 2002 -- a lot of it gets misspent. In the case of the TSA, that waste includes $350,000 for a gym, $500,000 for artwork and silk plants at the agency's new operations center, and $461,000 for its first-birthday party. More to the point, the agency has spent millions, even billions, on technology that is inappropriate or outdated.
In fact, better security didn't have to cost that much. Probably the most significant measure taken in the past four years was one funded not by the government but by the airline industry, which put bulletproof doors on its cockpits at the relatively low price of $300 million to $500 million over 10 years. In extremely blunt terms, that means that while it may still be possible to blow up a plane (and murder 150 people), it is now virtually impossible to drive a plane into an office building (and murder thousands). By even the crudest cost-benefit risk analysis, bulletproof cockpit doors, which nobody notices, have the potential to save far more lives, at a far lower cost per life, than the screeners who open your child's backpack and your grandmother's purse while you stand around in your socks waiting for them to finish.
I just came across this paper by Gruber and Hungerman on crowding out of private sector charity by government spending. (Its an NBER paper, so not everyone may be able to get it). I always thought that Putnam's response in Bowling Alone to the "crowding out" effect of government services displacing civil society institutions was an especially weak part of his argument (although there are plenty of other weak points as well).
As David Beito showed in his superb book From Mutual Aid to the Welfare State, "intermediary"/"civil society" institutions provided many of the basic social services that the welfare state has displaced. If Putnam is correct about the decline of social capital (a questionable proposition itself), part of this may be because of government crowding out of these social services. Once these groups stop offering medical and insurance services, then all they are is a place to drink beer, in which case they are competing with television and other forms of entertainment. Putnam, I think, fails to appreciate that the generation of social capital from these groups is a positive externality of the provision of these private benefits, and that without the private benefits, the economic structure of the groups break down. People stay home and watch tv, or go out to restaurants privately, rather than coming together in these groups.
Here's the abstract from Gruber and Hungerman: Abstract:
Interest in religious organizations as providers of social services has increased dramatically in recent years. Churches in the U.S. were a crucial provider of social services through the early part of the twentieth century, but their role shrank dramatically with the expansion in government spending under the New Deal. In this paper, we investigate the extent to which the New Deal crowded out church charitable spending in the 1930s. We do so using a new nationwide data set of charitable spending for six large Christian denominations, matched to data on local New Deal spending. We instrument for New Deal spending using measures of the political strength of a state's congressional delegation, and confirm our findings using a different instrument based on institutional constraints on state relief spending. With both instruments we find that higher government spending leads to lower church charitable activity. Crowd-out was small as a share of total New Deal spending (3%), but large as a share of church spending: our estimates suggest that church spending fell by 30% in response to the New Deal, and that government relief spending can explain virtually all of the decline in charitable church activity observed between 1933 and 1939.
Eric Muller (IsThatLegal?) points to more unattributed copying in a dean's graduation speech -- but this is copying of someone else's witticisms, rather than of someone else's serious analysis.
I'm not sure whether such copying is particularly bad. Witticisms, jokes, and other amusing turns of phrase lose much of their charm if you need to prefix them with "As X said" or "This reminds me of Y's joke" or "Here's a joke that Z tells" -- especially if you need to repeat these lines a couple of dozen times in the course of a speech. In practice, we tend to avoid giving credit by the simple expedient of not knowing whom to credit; precisely because people retell jokes without attributing them, we usually have no idea who first said something. But what if you know the source? Or what if you can find it by googling? Do you have an obligation to track down the sources and give them credit in the speech, even if that means boring and annoying the audience?
Now one reaction might be "tough luck": If you don't want to give credit, make up your own gags, or omit them altogether. But speeches like this are an odd genre -- they are generally expected to have some wit in them, but they must often be written by people who aren't professional wits. We can reasonably demand, I think, that a professional comic come up with his own material; I am told that comics who are known for stealing material are condemned by their fellows. But should we really ask this of the many people whose non-comedy jobs nonetheless require them to give speeches that include some comic relief?
Recall also that of the two chief harms of plagiarism -- harm to the reader, who is led to give the plagiarist undeserved credit for originality, and harm to the source, who is denied deserved credit for his originality -- only the second is potentially present here. People generally don't expect humor to be original (again, possibly except when a professional comic is speaking); if they give the speaker credit, it tends to be credit for selecting good gags, not necessarily for crafting them. So is this harm to the original source serious enough to require (1) boring speeches, (2) speeches punctuated with annoying giving of credit, (3) speakers investing a huge amount of effort in coming up with their own gags, something that isn't in a dean's job description, or (4) professional gagwriters hired by graduation speakers?
Finally, if I'm right that most of us don't come up with our own jokes, it's pretty likely that the person from whom the work is copied isn't the original author of the gag. If one is writing a scholarly article, the solution is to drop a footnote just in case (such footnotes are much less distracting to readers than verbal footnotes are to listeners), or to invest some effort in deciding who the gag's original author may be. But I'm not sure that the same should be required for graduation speeches. (Reprints of the speech are a different matter.)
Or am I mistaken? Should we really have a give-credit-or-discard-the-gag norm, even in oral presentations? If so, what if you know the gag isn't yours, but you don't know whose it is; how much of an obligation do you have to try to track down the original source? Should this norm extend to television and radio comments, or is broadcasting time so limited that you can drop the attribution there even if you can't in a commencement speech?
I've enabled comments.
Related Posts (on one page):
- Unattributed Witticisms in a Graduation Speech:
- Blogger Catches University Dean in Commencement Address Plagiarism:
Tuesday, June 14, 2005
I’ve posted in this space data that shows blacks who pass up the best law school that admits them, and go to their “second-choice” school, are closer in credentials to their classmates and have much better outcomes during and after law school. The postings have generated much discussion. Professor Dirk Jenter, while defending me from the social science nihilism of “Mahan Atma”, offers a pointed critique of the “second-choice” analysis: isn’t the analysis contaminated by self-selection? The students going to their second-choice schools are, of course, doing so consciously; maybe that means they’re a group that believes they will optimize performance at a less elite school, which makes their subsequent, superior performance at those schools and on the bar exam less surprising.
Selection-bias problems are an ever-present danger in this type of observational data, creating pitfalls which more than one of my critics have fallen into. It is probably not possible to eliminate entirely all danger of selection-bias in this comparison of first- and second-choice students, but I am pretty confident that there’s little or no such bias here, for several different reasons. (See my "Reply to Critics" for a fuller discussion)
First, these students chose responses indicating that financial or geographic factors led them to turn down their first choice school and go somewhere else. And their other answers to the detailed surveys they completed were consistent with those answers – although they cared about school “eliteness” almost as much as other students, they cared about “cost” and “financial aid” a lot, too. So, the motivations of these students didn’t seem related to some kind of strategy of seeking out a less competitive environment.
Second, we have a wealth of data about the strategies of these students as they started law school; in every way I’ve been able to measure, they seem to be approaching law school with strategies and expectations that are indistinguishable from all the other black students. For example, both the second-choice and other students are equally likely to respond that they are “very concerned” about getting good grades in law school (89% vs. 88%), and both groups are equally likely to think they are going to end up in the top tenth of their law school classes (37% vs. 38%). Blacks in general express more concern in the survey data about passing the bar – but, ironically enough, both black going to second-choice schools and all the other blacks tend to think that going to a more elite school will improve their chances on the bar. All of this data points against selection bias.
Third, it is important to keep in mind that this entire exploration of the “second-choice” phenomenon is a way of confirming the hypotheses I developed and tested with entirely different data in my original article. I didn’t observe this high performance among blacks going to second-choice schools, and then construct a theory around it; this data was brought to light by others after Systemic Analysis had gone to press. In Systemic Analysis, I’m comparing blacks (as a group that generally is boosted into more elite schools by racial preferences) against whites (who sometimes receive preferences, but generally don’t), while controlling for entering credentials. Certainly there’s no self-selection process there (or only a little, accounting for students with mixed-race backgrounds). What’s nice about the first-choice/second-choice analysis is that it avoids arguable pitfalls of the white/black analysis, and vice versa. But both methods produce essentially identical results.
“Michael” raises another interesting issue. In estimating the average “credentials gap” facing blacks at their second-choice schools (and comparing that with the credentials gap facing other blacks), I use the six loosely-defined “tiers” in the LSAC-BPS database. The creators of this database grouped schools into “clusters” by using some indicators of prestige (e.g., student scores) and some indicators unrelated to prestige (e.g., public sector vs. private sector). The six tiers certainly correlate substantially with school prestige, but they also undoubtedly overlap. So the most elite Tier 2 schools are almost certainly higher-ranked than the least elite Tier 1 schools, even though Tier 1 as a whole is clearly more elite than Tier 2 as a whole.
Consequently, one needs to be careful about using the tiers in sensible ways. In the second-choice analysis, I know each student’s grades (standardized by school) and individual outcomes (e.g., graduation), but in terms of school identity I only know what tier they are in. I compared each student’s index score to the median index score of students in the same tier to estimate the typical credentials gap between students and their classmates. This is, of course, a rough measure – but the key concern is whether there’s some reason to think it’s biased in a way that helps my analysis. The answer is: I don’t think so. Blacks other than the second-choice students should be distributed more or less randomly across the six tiers. The blacks going to second-choice schools should also be pretty randomly distributed – with one exception. In Tier 1, they are more likely to be in schools near the bottom of that elite tier rather than at the top (since they have generally rejected a more elite school, they are unlikely to be going to Harvard or Yale). But that distortion would mean I was overstating their actual mismatch with their fellow students, which cuts against my analysis, not in favor of it. And, in any case, for the whole group of students this is likely to be a small distortion indeed.
Consider, by way of contrast, an analysis done by Dan Ho (a recent Yale graduate and Harvard Ph.D. whose critique, and my reply, are in the June issue of the Yale Law Journal). Ho compared blacks who had the same index scores but attended schools in adjacent tiers. Ho’s argument went like this: if two blacks with the same entering credentials went to adjacent tiers, and passed the bar at the same rate, then there’s no penalty to blacks from going to higher tier schools, and Sander is wrong. But of course, if the BPS tiers overlap, then for any analysis which selects blacks from, say, Tier 1 and Tier 2 schools who have matching index scores, it’s quite likely that these students are actually going to schools of equivalent eliteness. Here the bias is likely to be quite significant, and it all is in the direction of the results Ho wants. Ho’s analysis is invalid for other demonstrable reasons, but I offer it here as an example of an improper use of tiers.
A final point: “Michael” also asks whether we know the blacks going to their second-choice schools actually got into their first-choice school. The answer is yes, we do – the questionnaire asks that question, and we used it as a filter.
Tomorrow I’ll address some critiques of Systemic Analysis itself.
All Related Posts (on one page) | Some Related Posts:
- Responding to Critics (3): Selection-Bias Blues
- Responding to Critics (2): “Second-choice” students
- Responding to Critics (1): A New Test of the Mismatch Theory:...
- Affirmative Action in Law Schools, Pt.1
- Affirmative Action in Law Schools:
- Rick Sander:
under the New Jersey Constitution, the New Jersey intermediate appellate court holds, by a 2-1 vote — one dissenter would have held that the opposite-sex-only rule in New Jersey law violates the state constitution.
UPDATE: Daniel Schmutter points out that, because there's a dissent, the losers have a right to have the New Jersey Supreme Court hear their appeal on the merits. (Otherwise, the state supreme court, like many supreme courts, would have had the discretion to just let the appellate decision stand without further detailed review, if it concluded based on a cursory look that the constitutional claim wasn't "substantial.").
Please post them here; please keep them on-topic, substantive, and polite. (Because of a glitch, I couldn't add them to the original post.)
Would you get marked down for that? I'm speaking of this CNN item, reporting on this study [UPDATE: Reader Margaret Schoen suggests that though this is hosted on the CNN site, and includes the CNN logo on top, it may just be a Netscape News reprint of a press release; in any event the substantive analysis below stands]:
States Ranked: Smartest to Dumbest
The smartest state in the union for the second consecutive year is Massachusetts.
The dumbest, for the third year in a row, is New Mexico.
These are the findings of the Education State Rankings, a survey by Morgan Quitno Press of hundreds of public school systems in all 50 states. States were graded on a variety of factors based on how they compare to the national average. These included such positive attributes as per-pupil expenditures, public high school graduation rates, average class size, student reading and math proficiency, and pupil-teacher ratios. States received negative points for high drop-out rates and physical violence.
I have an idea: Let's have a Baseball Teams Ranked: Most Talented to Least Talented, and grade a team's talents based in part on how much it spends on salaries, how large its farm team network is, how many fights the baseball players get into, and so on. What, you say? Doesn't make sense? Some teams waste lots of money, while others spend less but do it more efficiently? A baseball player's tendency to fight may be unsporting, but doesn't show lack of talent?
My point exactly. If you want to measure how well-educated a state's students are (something that you might label "smarter" without much journalistic license), do that. You might have to use imperfect proxies, such as proficiency exam scores or graduation rates, but that's the best you can do. (After all, won-loss records are imperfect proxies of baseball talent, too, but we rely on them.)
But don't separately count per-pupil expenditures or average class size. If spending more and having smaller classes improves performance, then that will show up on the performance measures. And if it doesn't show up there, then why count it as "smart"?
I've enabled comments; please keep them on-topic, substantive, and polite.
UPDATE: Just to preempt a possible objection: It's also possible to characterize the study as misdesigned, for including the spending factors. But I'm most galled by the inaccuracy of how the study's results are misleadingly characterized. "Top-ranked," while a bit tautological, would at least not make any unsupported claims; but "smartest"? That's just not a candid way of reporting on what the study measured.
The Catholic League for Religious and Civil Rights is protesting the decision of the New Orleans police chief to use the Nation of Islam's security chief, Captain Dennis Muhammad, to conduct the police department's "sensitivity" training. The Nation of Islam, led by Louis Farrakhan, is well-known for promoting hatred of Jews, Catholics, homosexuals, whites, the U.S. government, and of black people who do not share the group's agenda.
At the end of an otherwise quite interesting Slate piece, which discusses the potential development of a "consciometer" — a medical device for measuring consciousness — the author shifts from science to law and morality (paragraph break added):
As leading neuroscientist Michael Gazzaniga . . . describes . . ., current neurology suggests that a fetus doesn't possess enough neural structure to harbor consciousness until about 26 weeks, when it first seems to react to pain. Before that, the fetal neural structure is about as sophisticated as that of a sea slug and its EEG as flat and unorganized as that of someone brain-dead.
The consciometer may not put the abortion issue to rest — given the deeply held religious and moral views on all sides, it's hard to imagine that anything could. But by adding a definitive neurophysiological marker to the historical and secular precedents allowing abortion in the first two-thirds of pregnancy, it may greatly buttress the status quo or even slightly push back the 23-week boundary.
There is another possibility. The implications of the consciometer could create a backlash that displaces science as the legal arbiter of when life ends and begins. Such a shift — a rejection of science not because it is vague but because it is exact — would be a strange development, running counter to the American legal tradition. Should a fundamentalist view of life trump rationalist legal philosophy? Roe v. Wade considered this question explicitly and answered no. For nonfundamentalists, that probably still seems right.
This is a deep error; and it can be called "scientific fundamentalism" because of its tendency (similar to that in the most unpersuasive versions of religious fundamentalism) to assume that If It Isn't In [Science / The Bible / The Koran], It Doesn't Matter.
What rule we should use for deciding when someone should have the legal right not to be killed is not a scientific question. Applying the rule may be a scientific question; if we decide that only entities that have consciousness have the right not to be killed, then science can tell us whether John Smith has consciousness. But deciding on the rule is simply not a scientific issue: It's a matter of moral judgment, which science isn't equipped to provide. Science can't tell us whether the legal right not to be killed vests at conception, at viability, at consciousness, or at birth; nor can it tell us when the right dissipates.
Let's take a simple hypothetical, which I hope can persuade even people who feel a deep intuition that the right to be killed is closely connected to consciousness. Say it turns out that there's a disease that temporarily caused someone to lose consciousness — not just in the sense of sleeping or getting knocked out, but in the sense of mental functioning largely ceasing — but there was every reason to think that in several months the person would regain consciousness. Would it be OK to kill him then? (I realize that this is likely a counterfactual hypothetical, but I think it's still useful; and one can certainly imagine some future medical procedure that would turn off someone's mental functioning but keep the potential for functioning present, by stopping the brain from atrophying.)
I take it that the answer is "no," because the test wouldn't simply be whether the person is conscious; potential for consciousness, perhaps coupled with some other factors, would suffice. But why not then for a week-old fetus, which also has the potential for consciousness?
Naturally, there are answers to this; the hypothetical isn't meant to support the life-begins-at-conception position. One could, for instance, argue that the test should be whether the entity either has consciousness, or has had consciousness and seems likely to recover it. Or one could say that the test should be whether the entity has the bulk of the physical equipment needed to support consciousness, even if consciousness is temporarily absent. These may or may not be perfectly sensible arguments. But science can't prove the validity or invalidity of these arguments. Nothing in biology, chemistry, physics, or any other science speaks to whether these tests ought to be the tests for a right not to be killed.
So it makes little sense to say to someone who believes that the right not to be killed begins at conception: "You are a fundamentalist who wants to displace science as the legal arbiter of when life ends and begins, rather than the rationalist legal philosopher you ought to be — see this conscionometer that clearly proves that this fetus doesn't have consciousness, has never had consciousness, and currently lacks the physical equipment needed for consciousness, even though in several months it is nearly certain to have consciousness." The conscionometer answers a particular question, but it tells us nothing about why this should be the right question. And if you've concluded that "does it have consciousness?" (or some variant of that) is the right question, that's a moral conclusion, not a scientific one.
I can certainly see why some people, especially those who love science, might want to believe that science should be "the legal arbiter of when life ends and begins," and why they want to think that their moral intuitions are simply "rationalist legal philosophy" and any contrary moral intuitions are "a rejection of science." But they are mistaken; and they are in their own way victims of a fundamentalist (and fundamentally erroneous) perception of the role of science.
UPDATE: I had a problem enabling comments, so I've posted a new post (linked to below) that lets you post comments.
Stay safe, Norm. Thanks to Kaimi Wenger for the link.
Should U.S. judges and U.S. politicians follow the views of "international opinion" on certain subjects? People who say yes often appeal to the Declaration of Independence's reference to what "a decent respect for the opinions of mankind" requires us to do.
But, as Eugene Kontorovich, a lawprof at George Mason, points out, in an eminently readable 8-page article (emphasis added),
[The Declaration] shows that we should follow our own opinions, even when they diverge from the dominant views of Europe. Indeed, throwing off the rule of a sovereign monarch contradicted the dominant opinion of mankind. Thus the Declaration takes the view that all we owe to other nations is to explain our actions to them.
Moreover, the Declaration was specifically drafted as an appeal for arms and money. The Founders understood that these would only be forthcoming if Britain’s Continental enemies thought the Colonists were committed to the fight for the long haul. Thus the “opinions” in question are opinions about the likely perseverance of the Colonists, not the legality of their rebellion. And the “mankind” in question is France and Spain.
If the Declaration reveals anything about the relevance of foreign law to constitutional interpretation . . . it suggests that the Founders’ interest in the “opinions of mankind” did not involve their opinions on the legality of American actions. . . .
Well put — and in retrospect obvious, though it's the sort of obvious that people often miss, as I'm afraid I had until I read Kontorovich's piece.
(Of course, respect for foreign opinion may still be practically useful, both to win over foreigners and perhaps even to help us consider whether we might be mistaken in our own views. The point here is simply that the Declaration of Independence can't be soundly used as an argument that the Framers believed that such respect requires us to adhere -- or even to seriously consider -- international views about the legality of our actions.)
Someone asked on a lawprofs' discussion list whether Lawrence v. Texas means that obscenity laws are unconstitutional, on a sexual rights theory even if not a speech rights theory. (Recall that the Supreme Court has held that the First Amendment doesn't protect "obscenity," which roughly means hard-core porn, in those communities that object to such porn; these laws haven't been enforced much recently, and with the Internet there may be little that the government can do about it, but the principle is that while much sexually themed material is protected, the really hard-core stuff is not, if the community to which its distrbuted finds it "patently offensive.") This led me to think a bit more about the subject, and cobble together a quick post that I thought I'd also post here.
I can imagine (at least) three readings of Lawrence:
1. Lawrence secures a right to sexual autonomy as such. If this is so, then the case for protecting porn becomes considerably stronger. Some people get the most pleasure from oral sex, some from anal sex, some from using sexual devices, some from consensual sex with handcuffs, some from consensual whipping, some from looking at sexual pictures with a sex partner, some from looking at sexual pictures by themselves. Under a pure sexual autonomy reading of Lawrence, all these would be protected; and the distribution of material necessary for them to operate would be protected, too, at least unless the government shows a strong enough reason to restrict them (which I take it wouldn't be easy for pornography in general).
2. Lawrence secures a right to sexual autonomy in the service of human relationships, possibly even relatively emotionally serious human relationships. If this is so, then restrictions that don't materially burden the ability to develop those relationships might well be permissible. Unless we think quite a few people really need porn for their relationship with another person — not impossible, but I know of no evidence that this is so — then a ban on distributing porn would be constitutional.
How far, though, would this theory go. Say the government bans anal sex on the grounds that anyone (gay or straight) can at least engage in oral sex instead, and still have a sexual relationship that for most people would presumably be at least modestly gratifying. Would that be categorically permissible (with no need for any strict scrutiny analysis; I set aside the question whether anal sex could be banned on the grounds that it's disproportionately likely to spread disease)? Is one possible distinction that most gay men would find the limitation to be quite burdensome, even if it doesn't completely eliminate their sexual options in the contexts of the emotional and sexual relationships that work for them? What if 4% of the male population found that sex with their partners just isn't exciting without porn?
3. Lawrence secures a right to sexual autonomy in the service of human relationships, but for dignitary and practical reasons precludes the government from inquiring into just what kind of sex people really need. If that's so, then distribution of porn should be protected, because some couples use porn for sexual gratification. Should it matter that most porn is used solo (if that is indeed so)? I presume not, at least if the question is whether we have heightened scrutiny, rather than whether heightened scrutiny is passed. The question under this approach would be whether a considerable number of couples use porn as part of their sex acts within a relationship, just like they use their mouths or anuses as parts of their sex acts; if so, then heightened scrutiny would be required.
(Note that none of this deals with limits on the production of porn using human actors, which might be justified on the grounds of preventing sexually transmitted diseases, preventing the exchange of sex for money — which is involved in the making of porn with professional actors — and so on. Such limits might well not much burden any "right to sex," since even if new porn were entirely banned, there'd be a vast reservoir of preexisting porn that should satisfy the tastes of most people. [I set aside here a couple's self-produced sexually themed movies aimed at their own gratification; query whether they'd be protected in any event under Stanley v. Georgia, a 1969 case that held that private possession of even obscene materials can't be legally punished.] On the other hand, especially these days, porn can be computer-produced without any human beings at all, and the actor-protection rationale wouldn't justify bans on such material.)
So the case for a right to get pornography as part of a right to sex (even setting aside a right to free speech) seems plausible though not open-and-shut. I would expect that if the issue came up now, the Supreme Court would limit Lawrence using some version of rationale 2. But I also suspect that many people, including lawyers, will interalize Lawrence as a broad right to sex case, and adopt rationale 1 as their interpretation; and over time, that (mis?)interpretation may affect legal norms to the point that porn would indeed be protected on sexual rights grounds.
UPDATE: This discussion was triggered by the Extreme Associates case, a district court decision that in fact held that obscenity laws were unconstitutional given Lawrence. I think that this decision is the wrong one for a district court to make; given both the Miller and Lawrence Supreme Court precedents, the better view is that obscenity law is still very much constitutional. (There are possible counterarguments, but I won't go into them here.) The question that I discuss here is what the Supreme Court is ultimately likely to do with this, not what lower courts should do in the meantime.
The case involved the wire fraud statute, which punishes fraudulent schemes involving a "wire, radio, or television communication [transmitted] in interstate or foreign commerce." The interstate commerce requirement in federal criminal statutes such as the wire fraud statute has always been understood to require that a communication in interstate commerce must actually cross state lines. That's not a hard standard to meet in most cases, especially given modern communications technologies. For example, in United States v. Kammersell, 196 F.3d 1137 (10th. Cir. 1999), the Tenth Circuit held that the federal interstate threat statute applied to an AOL instant message sent from a suburb of Ogden Utah to downtown Ogden, just a few miles away. Why? Just follow the path of the IM: to be delivered, the IM had to travel from Utah to AOL's servers in Virginia, and back to Utah.
Even if the interstate requirement is easily met in many cases, it does provide a clear statutory limiting principle for the scope of federal power in many contexts. In the Massachusetts case, United States v. Philips, prosecutors argued that they could satisfy the elements of the wire fraud statute without actually showing that any communications had travelled across state lines. They argued that it was enough that the communications in that case travelled by means of an instrument of interstate commerce, such as the phone system. The trial judge initially bought this theory, and the jury convicted on it (as well as a number of other theories). Ruling on a post-trial motion on June 8th, however, the Judge properly changed course and recognized that the wire fraud statute does not apply absent a communication that actually travels across state lines. As the judge noted, the fact that Congress could expand the statute to cover intrastate communications as a constitutional matter wasn't the relevant question; Congress chose a narrower approach, and that narrower approach was binding as a matter of statutory law. The judge therefore granted the defendants' motion as a matter of law in their favor on the wire fraud count.
To be sure, Philips is only a minor victory for those of us in favor of some limits on the scope of federal power. But at this point any such ruling seems worth noting. Thanks to White Collar Crime Prof Blog for the link, and for posting the opinion.
"The New McCarthyism: Restricting Constitutional Rights Based on Mere Suspicion" is the title of my new Issue Backgrounder for the Independence Institute. Rep. Carolyn McCarthy (D-N.Y.) has proposed turning the federal "No-fly list" into a prohibition on firearms possession. The Backgrounder analyzes her proposal and other proposals to use suspicion-based lists as a basis for prohibiting the exercise of Second Amendment rights.
Bloggers often prize their anonymity. That's the case at EffectMeasure.com, a blog started in November that deals with bird flu and other diseases. A blogger identified as Revere says the site was started by a group of well-known "senior public health scientists." Revere declined to identify the group's members. "The site is often critical of those who support us as scientists," Revere said in an e-mail interview. "We therefore choose to remain anonymous so as to have the maximum freedom of expression in that regard."
Here is the full story, which also discusses the use of blogs to track and report diseases such as avian flu.
Monday, June 13, 2005
This is the second in a series of postings further explaining my work on the use and effects of racial preferences in law schools, and responding to critics of my work. One of the central claims in my research is that black law students are often “mismatched” by large racial preferences, placing them at schools where they do poorly and actually learn less than they would at a school with a smaller preference or no preference at all.
On Friday, I posted a new analysis that strongly corroborates the “mismatch” story: for a large sample of blacks admitted to law schools, those who passed up their “first choice” law school and went to a lower-ranked school – in other words, going to a school where they would have been admitted with a smaller preference – had dramatically better outcomes (grades, graduation, and bar passage) than blacks who made no such choice. Today I want to address some questions raised by this analysis.
First, are the results significant and reliable? The database for this analysis includes 1,757 black students entering law school in 1991. Just under one-tenth of these students (171) were admitted to their first-choice law school but chose to go to another school. This is a pretty large sample, and it means that any outcome where the success rate of the two groups of blacks is more than six or seven points apart (e.g., 80% vs. 87%) will be statistically significant. Pretty much all of the outcomes for black second-choice students are, in fact, better than the outcomes for other black students, by at least that margin (and sometimes by as much as 20 percentage points). So the answer to the first question is a resounding Yes.
Second, are there differences between the black second-choice students, and other black law students, that might account for their different rates of success? There is one important difference – the blacks who chose their second-choice school have, as a group, slightly higher average credentials than other black students. That difference accounts for about one-seventh of their higher performance. Otherwise, the black second-choice students are largely indistinguishable from other blacks at the outset of their law school careers. They are about equally likely to have a parent who attended law school (6% for the second-choicers vs. 7% for other blacks), to have a “burning desire” to become a lawyer (30% vs. 30%), to be “very concerned” about getting good grades (89% vs. 88%), and to believe they experienced discrimination during college (68% vs. 64%).
The factor that makes second-choice blacks truly different is simply that they are less mismatched with their classmates than other blacks are. Because they have turned down their “first-choice” school, they are at a school where, on average, their “academic index” is only 93 points below the class mean, compared with a 140-point deficit for other blacks. This in turn means that they get significantly higher grades, on average – and that, in all likelihood, makes all the difference for their future outcomes.
Going back to the technical discussion, controlling for differences in entering credentials makes one of the six interesting outcomes for these two groups statistically insignificant (ultimate bar passage). But the other five (first-year grades, third-year grades, graduation rate, first-time bar passage, and rate at which matriculants become lawyers) are significant, and all six outcomes are much higher for the second-choice blacks. One can debate what the proper controls should be – which factors and comparison groups provide the fairest comparison – but I have seen no analysis in which the second-choice blacks do not substantially outperform the comparison black group, and in which at least some of the differences are highly statistically significant.
Moreover, since the findings of the mismatch theory came from an entirely different analysis (comparing blacks and whites), but predict with great precision the actual improvements in outcomes for the black second-choice students, it would be hard to imagine a more compelling confirmation of its basic theses.
Responding to comments:
“Mahan Atma” says the results are “nonsense” because the blacks going to second-choice schools are not randomly selected; without randomization, there can be no true statistical significance. Not so. It is of course possible to determine the signficance of a difference between two groups that have not been randomly selected—all that significance in this context means is that the difference almost certainly is not due to randomness, but to some real distinction between the two samples. The crucial issue then is what variable accounts for this difference. The point of all regression analysis in the social sciences is to control for plausible differences that might explain why two groups have different outcomes. I find that when one uses these controls, the performance gap between the black second-choice students and others is largely intact – and statistically significant.
“Michael” contends that the BPS dataset is too noisy to be useful; some respondents do not understand the questions properly and miscategorize themselves. But I counted as “second-choice” students only those who said that they had been admitted to more than one law school, and who did not attend their first-choice school for an identified reason (usually geographic or financial constraints). Moreover, we can accurately estimate the size of the mismatch these students faced at their schools. Certainly it’s possible that some of the students I’ve identified as black “second-choice” students had their hearts set on going to UCLA, but went to their second-choice, Harvard, because Harvard offered them more money. But there can’t be many such students (or the average size of the mismatch these students face wouldn’t show up as being as small as it does), and to the extent such noise exists in the data, it simply implies that the results were strong enough to show through that noise.
“Donald” and several others wondered how the “second-choice” effects would play out for whites. I discuss this issue in some detail in my “Reply to Critics”. Here’s a short answer. The substantial number of whites who indicated they turned down their first-choice school (largely for the same reasons as blacks) tended to end up with a “positive mismatch” – that is, they had higher credentials than most of their classmates. This led, predictably, to higher grades in law school – well above the class median. In the top half of the class at most law schools, however, there isn’t much difference in graduation and bar outcomes – the vast majority of students graduate and pass the bar. Consequently, the benefits from a “positive mismatch” are a lot smaller than the harms of a large “negative mismatch”. So “theory” predicts that whites going to second-choice schools will see little if any improvement in graduation and bar passage rates, and that’s borne out by the data. (The white “second-choice” students may see significant job market benefits, but I haven’t tested that idea yet.)
More coming up….
All Related Posts (on one page) | Some Related Posts:
- Responding to Critics (3): Selection-Bias Blues
- Responding to Critics (2): “Second-choice” students
- Responding to Critics (1): A New Test of the Mismatch Theory:...
- Affirmative Action in Law Schools, Pt.1
- Affirmative Action in Law Schools:
- Rick Sander:
How often will the West Virginia decision make a difference? I'm no expert in such things, but my sense is, "not very often." Self-defense is a well-known concept in criminal law, and the West Virginia case appears to incorporate that criminal law standard. But self-defense is also a limited right, and not the kind of thing that is likely to lead to an employee being fired. Consider an example. Imagine that 7-11 has a policy that employees are not allowed to carry guns, but an employee does so anyway. A robber attempts to rob the store, and the 7-11 employee pulls out his gun and scares off the robber. The employee is fired by 7-11 for carrying the gun in violation of 7-11 policy. What result?
I'm not entirely sure, but my best guess is that the firing would be proper under the West Virgina case. (FWIW, I looked for cases interpreting the West Virginia case since it was decided in 2001, but didn't find any.) "Self-defense" is used in criminal law to mean a defense to an affirmative act like an assault or homicide, not to a continuous course of conduct. Even then, it normally requires an immediate threat. As a result, a 7-11 employee who carries a gun at work would not seem to have a "self-defense" justification for carrying the gun as a matter of criminal law. (I realize that this does not match a layman's understanding of what it means to take an act in self-defense, but that's the law for you.) While the employee may have showed the gun to ward off the robber, he presumably would be fired for carrying a gun generally, not for showing it at the moment of the attempted robbery. And as best I can tell, self-defense would not apply to that.
I'll open this up for comments. As always, civil and respectful comments only. Oh, and please note that none of this is intended to be a normative argument. I am trying to make a purely descriptive claim about the state of the law, not to argue that this law is good or bad.
Related Posts (on one page):
- Comment on Firings for Self-Defense:
- Firings for Self-Defense:
- W.V. Court Vindicates Self-defense Right for Employees:
See Sally Greene's post on this; the story has made the Chronicle of Higher Education.
This strikes me, for a variety of reasons, as a lesser sin that plagiarism in a scholarly publication — but it's a sin nonetheless. Eric Muller (IsThatLegal?) has more; and thanks to him for the pointer.
UPDATE: See (1) the dean's explanation and apology, on the History News Network; (2) evidence of more copying, though this time of witticisms rather than serious analysis; (3) Ralph Luker's comments on both instances of copying; and (4) this post of mine for some thoughts on unattributed copying of witticisms in a speech.
You don't have to be a "gun nut" or a "nut" of any sort to want to defend yourself against a criminal, to applaud others who do so, or even to endorse limitations on employment at will when people are fired for exercising their right to self-defense. Conversely, one can conclude that employers should be free to set up their own rules here, or even conclude that employers are wise to set up a no-self-defense (or no-self-defense-with-guns) rule — a matter on which I express no opinion here — without condemning the other side as "gun nuts."
UPDATE: Clayton Cramer takes a similar view.
Related Posts (on one page):
- Comment on Firings for Self-Defense:
- Firings for Self-Defense:
- W.V. Court Vindicates Self-defense Right for Employees:
Here's the problem. Imagine that the police believe that there is evidence of crime on a suspect's computer, but they lack probable cause to obtain a warrant to search it. The police ask the suspect if he will consent to allow the police to search the computer for evidence. The suspect agrees, and gives the police his computer to be searched. A few days later, the suspect talks to an attorney and the attorney advises the suspect to revoke his consent and demand the return of the property. The lawyer (or the suspect) calls the police and withdraws consent to search the computer.
In cases of traditional physical evidence, the law here is very clear. The basic Fourth Amendment rule is that the police can conduct a search if someone with common authority over the computer consented, but that they have to stop their search if and when the consent is revoked. Given that rule, it's clear that any search of the defendant's actual computer would have to stop when the suspect withdraws his consent.
But here's the twist. It turns out that the first step a computer forensic analyst takes when seeking to retrieve evidence from a hard drive is to create a "bitstream copy" or "image" of the computer hard drive. The "image" is an exact copy of the hard drive that copies every one and zero on the drive. It is created for reasons of evidentiary integrity; searching a computer drive can alter the data it contains, so analysts copy the originial and do all of the analysis on the image copy. After the drive has been imaged, there are two copies of the data, not one: one copy of data on the defendant's property and another copy on the government's machine.
Now, back to our hypothetical. It turns out that a suspect often withdraws his consent after the computer has been imaged, but before government has begun to search the image. (This is common because imaging can be done in a few hours, but most government forensic labs have long waiting lists for the actual analysis.) So here's the big question: When the suspect withdraws his consent, does the withdrawal of consent also apply to the image? Can the police search the imaged copy, or will searching the imaged copy without a warrant violate the Fourth Amendment? In doctrinal terms, does a defendant retain a legitimate expectation of privacy in the image, and if so, does his common authority to regulate consent to search the original apply equally or differently to the copy?
I think there are two ways of looking at the problem. On one hand, you could say that the image is like a photograph taken during a search. The image is the government's own copy of what the government software "saw" when it looked through the suspect's computer. In that case, you might say that the image belongs to the government, and the suspect can no longer withdraw his consent to the search. Having obtained the initial consent to search the computer, they can search the image after consent has been revoked.
On the other hand, you could say that the image is actually just as private as the original version of the data. What matters is the data, and it makes no sense to say that the government has "seen" the data when no search has actually occurred. The imaging software copied the private file but never exposed the data, and the copy is no different from the original. In that case, all of the data continues to belong to the suspect, and the defendant's withdrawal of consent applies equally to the original hardware and the image.
So which is right? For reasons I explain in this forthcoming article (see section II), I think the latter view is probably right. The right to search the image should track the right to search the original, and a withdrawal of consent to search the latter should also apply to the former. Still, it's a pretty difficult question, as the answer hinges on how you address all sorts of tricky questions concerning what it means to search and seize digital evidence. One interesting variable: does the answer depend on the exact language of the consent agreement? I can imagine a court saying that a defendant's withdrawal of consent is binding on a search of the image if the defendant agreed generally to allow the government to search his computer, but that the withdrawal is not binding on the search of the image if the defendant agreed specifically to allow the government to create an image. On the flip side, if I were a defense attorney in a case raising such issues I would argue that the imaging itself is beyond the scope of the consent, and thus any data from the image must be suppressed.
I have enabled comments. As I noted above, this issue has begun to come up a lot recently, and it's only a matter of time before the courts start confronting it.
It will be interesting to see how this list changes over time. Blogging is a natural medium for law professors: most law professors are generalists, good writers, interested in the world around them, and have the free time to sit around and blog. The medium provides an easy way to bridge the gap between scholarly audiences and the interested public. Blogospheric triumphalism is all too common, but my guess is that blogging will prove to be an increasingly common part of law professor life.
Sunday, June 12, 2005
My belated take on Bush's and Kerry's Yale grades:
One question struck me about even the one issue that people discussed about the Kerry release: his Yale transcript. The press reports compared Bush's grades for 3 years to Kerry's for 4 years, yet both Kerry and Bush were depicted as starting poorly and improving over the 4 years. If one excludes Kerry's last year average of 81, and compares the first three years only, then from the rounded numbers reported by the Globe, Kerry's average would be about 74.3 and Bush's would be about 77, a somewhat bigger difference than reported. Of course, there could have been a little bit of grade inflation in the two year difference (though probably not much).
According to a Google cache of a discussion list (sorry, my attempts to link failed), the grades for Bush's last year (1967-68) were reported by the New Yorker in 1999 as 6 High Passes and 4 Passes. My experience at Yale starting in 1970 was that Passes when instituted were supposed to be the normal grade combining most Bs and Cs, but within a few years at least, a Pass became equivalent to a C, a High Pass to a B, and an Honors (perhaps called "Superior" in 1967-68) equivalent to an A. For summarizing grades for LSAC (law school) transcripts, that was the conversion used in 1973 at least: Pass=C and High Pass=B. So if Bush's last year were converted to the same numerical system used his first three years, then he would have had a 4-year average at least a point higher: 78.
Related Posts (on one page):
- Bush and Kerry Grades at Yale.--
- Nagging Questions About Kerry's Military Records Released to the Public--
Now that the Boston Globe has in its possession what it claims are Kerry’s “full military and medical records” is the Globe ready to make these much-anticipated records available to the public? Managing Editor Mary Jane Wilkinson replied, “It is my understanding that Kerry will release these papers to anyone else now that he has signed the Form 180. The Boston Globe is not going to make available the papers we have received.”
But “the onus is on the Globe to explain why they are not releasing the records. They at least ought to give the public some reason,” according to former journalism dean and Fordham University Larkin professor Everette Dennis.
“With the opportunity to release the Kerry material on the internet inexpensively, there certainly is no physical problem preventing the Globe from publishing them,” Bill Gaines, a two-time Pulitzer Prize winner and Knight Professor of Journalism at the University of Illinois, told me. “The decision they have made certainly doesn’t seem to be in the interest of their readers and not very good journalism.”
Both the Boston Globe and Los Angeles Times claim that Kerry will release any papers in their possession to anyone else who applies. But that isn’t what The New York Sun’s Josh Gerstein found when he called Kerry’s able press representative, David Wade. Gerstein reports: “Asked whether the senator would permit release of the records to The New York Sun, Mr. Wade said, ‘The issue is over.’"
But it isn’t. And it won’t be until the public has access to the SF-180 which procured release of the papers. Freedom of Information Act requests for it are now under way. Those requests will most likely be successful, perhaps as early as next week. And there is nothing barring its release before those requests are processed but John Kerry, and The Los Angeles Times and The Boston Globe. ...
And The Boston Globe made several calls to editors at the Chicago Sun-Times, complaining that I was giving them the kind of unpleasant treatment reporters give sources who stonewall on questions about matters they think are of vital public interest. They were right. I was. And those questions got the Globe to admit they had the SF-180 two days later.
Perhaps now they will release it and even Kerry’s worst critics will find it in order and finally be silenced. In that case, David Wade may be right: “The issue is over.”
I guess I was surprised that there were no military records that cleared up issues previously raised about Kerry's Carter-era discharge records.
I also have a post on Kerry's grades.