Saturday, May 9, 2009

Do You Have Swine Flu?

Three approaches to the subject, from,, and Thaks to my father Vladimir for the pointer.


David Brooks on Western Movies and Conservatism:

I don't read the New York Times, but my local newspaper (The Falls Church News-Press) republishes some of the columns each week (why, I don't know, but that's a topic for another day). Anyway, this means that I am usually about a week behind everyone else when it comes to NYT columns.

Most of you have probably already seen David Brooks's column this week on Republicans and western movies. I'm a Republican and a fan of western movies (although I've been much more enthusiastic about being the latter than the former in recent years). I will leave aside discussion of the quality of Brooks's appraisal of western movies, a topic that others (such as James Bowman) have discussed much better than I could.

Instead, I'll accept for the sake of argument that Brooks has correctly identified the lesson of western movies.

Instead, I'll focus on what he sees as the lessons for Republicans and conservatives:

Today, if Republicans had learned the right lessons from the Westerns, or at least John Ford Westerns, they would not be the party of untrammeled freedom and maximum individual choice. They would once again be the party of community and civic order.

They would begin every day by reminding themselves of the concrete ways people build orderly neighborhoods, and how those neighborhoods bind a nation. They would ask: What threatens Americans’ efforts to build orderly places to raise their kids? The answers would produce an agenda: the disruption caused by a boom and bust economy; the fragility of the American family; the explosion of public and private debt; the wild swings in energy costs; the fraying of the health care system; the segmentation of society and the way the ladders of social mobility seem to be dissolving.

But the Republican Party has mis-learned that history. The party sometimes seems cut off from the concrete relationships of neighborhood life. Republicans are so much the party of individualism and freedom these days that they are no longer the party of community and order. This puts them out of touch with the young, who are exceptionally community-oriented. It gives them nothing to say to the lower middle class, who fear that capitalism has gone haywire. It gives them little to say to the upper middle class, who are interested in the environment and other common concerns.

Now his policy proposals don't seem to follow from the core values he claims to be recognizing such as the value of neighborhoods, orderliness, and personal responsibility. Swings in energy costs? Public debt? Health care costs? All these are surely important issues--but they are all basically economic issues, not issues about neighborhood stability and community values.

It seems more plausible that the menu of values that would follow from his diagnosis of the problem would be the very same social and cultural issues that provided the core of the traditionalist wing of the conservative movement for thirty years: crime, divorce, single-parenting, faith. Local control over schools and cultural values. National security and concerns about terrorism. Fears about the coarsening of American culture. Stricter regulations on pornography and violence. Don't all of these issues--these social and cultural issues--seem much more to be what Brooks is describing when he describes the lessons to be drawn from Western movies?

Instead, Brooks seems to have adopted what is more of a liberal interpretation of social instability and disorder--that it is caused by economic factors like inequality and energy costs. Perhaps that is a correct diagnosis of the problem--but it sure doesn't seem to me to be one that follows in any way from the lesson of Western movies.

Having said all that, I think there is a core point here that should not be lost. Charles Murray's challenging speech at the AEI banquet this year illuminated a point that I have been thinking about. For the longest time, the trump card in the ideological battles has been that free markets "deliver the goods." This utilitarian argument seemed to have won the war of ideas in favor of free markets and limited government.

But what happens now, when people lose faith that the free market really "delivers the goods"? I think that's the more profound question raised by Murray (as well as by John Allison, who I've recently heard speak on these topics). Libertarians have surrendered the moral high ground on the intrinsic value and goodness of a free society. In the days of Communism, there was a constant reminder that freedom was both a superior moral order as well as economic order to totalitarianism. Brooks does raise the point well, I think:

The Republicans talk more about the market than about society, more about income than quality of life. They celebrate capitalism, which is a means, and are inarticulate about the good life, which is the end. They take things like tax cuts, which are tactics that are good in some circumstances, and elevate them to holy principle, to be pursued in all circumstances.

Finally, there is a sense here in which the true disorderliness that really used to threaten American families is no longer as pressing. Terrorism and crime have receded as a major concern of many Americans. The very same concerns about equality and the segmentation of society that Brooks bemoans has enabled many families to escape the day-to-day concerns of safe schools and safe streets. In many ways, through technology (Tivo, dvd's, etc.) families can wall themselves off from the coarseness of modern culture better than ever before (although, of course, there are new threats such as the Internet). Neighborhoods seem to have become more homogeneous over time, enabling communities to wall themselves off from the rest of the world.

In some sense then I wonder if Brooks's ability to try to redefine orderliness and community in term of largely economic values reflects that fact that in many ways Americans have taken many of the formerly pressing concerns about orderliness off the table by essentially mooting them out through public policy and private initiative. If we were still facing regular threats of terrorism at home do we think we'd be thinking of all of these issues in the same way?

Big picture, though, what strikes me is that libertarians and conservatives need to construct an intellectual and spiritual vision of a free society that speaks to its coherence with man's nature and the conditions necessary for human flourishing. Obama seems to have tapped into this spiritual void, especially among American youth (in a way that is sort of creepy to me, to tell the truth, but that's for another day).

This vein of thought of the moral virtue of freedom has always been there, of course. It has just been subordinated for the past couple of decades. But it seems to me that it is time to revisit this well and think about an intellectual defense of freedom that is more than "it delivers the goods."


Joseph Bottum on Obama and Notre Dame:

Says it is an issue of Catholic culture, more than Catholic politics. An interesting thesis and one that seems intuitively correct to me:

You could cut the irony with a knife: It's only demonizing when conservatives do it. Still Fr. Himes joins Douglas Kmiec, and America, and Commonweal, and the administration of Notre Dame, and most of the newspaper columnists who've weighed in on the controversy, and a surprising number of conservatives. They all look at the Notre Dame protests and think it must be about politics. Bad politics or good politics, take your pick. But politics all the way down.

As it happens, they're wrong. Politics has very little to do with the mess. This isn't a fight about who won the last presidential election and how he's going to deal with abortion. It's a fight about culture--the culture of American Catholicism, and how Notre Dame, still living in a 1970s Catholic world, has suddenly awakened to find itself out of date.

The role of culture is what Fr. Jenkins at Notre Dame and many other presidents of Catholic colleges don't quite get, and their lack of culture is what makes them sometimes seem so un-Catholic--though the charge befuddles them whenever it is made. As perhaps it ought. They know very well that they are Catholics: They go to Mass, and they pray, and their faith is real, and their theology is sophisticated, and what right has a bunch of other Catholics to run around accusing them of failing to be Catholic?

But, in fact, they live in a different world from most American Catholics. Opposition to abortion doesn't stand at the center of Catholic theology. It doesn't even stand at the center of Catholic faith. It does stand, however, at the center of Catholic culture in this country. Opposition to abortion is the signpost at the intersection of Catholicism and American public life. And those who--by inclination or politics--fail to grasp this fact will all eventually find themselves in the situation that Fr. Jenkins has now created for himself. Culturally out of touch, they rail that the antagonism must derive from politics. But it doesn't. It derives from the sense of the faithful that abortion is important. It derives from the feeling of many ordinary Catholics that the Church ought to stand for something in public life--and that something is opposition to abortion.


Still, in a peculiar way, Himes is right that "some people have simply reduced Catholicism to the abortion issue." It is a horrifying fact, in many ways, that Roe v. Wade has done more to provide Catholic identity than any other event of the last 50 years. Still, for American Catholics, the Church is a refuge and bulwark against an ambient culture that erodes morality and undermines families. Catholic culture is their counterculture, their means of upholding the dignity of the human person and the integrity of family--and, in that context, the centrality of abortion for American Catholic culture seems much less arbitrary than it first appeared.

This is what the leaders of Notre Dame need to grasp.

By the way, he isn't too impressed with you guys (remember--I'm just the messenger):

Even some conservatives, Obama's natural opponents, took the school's side and denounced Mary Ann Glendon for refusing this year's Laetare Medal, Notre Dame's annual honor for service to the Church and society. A Harvard law professor, author of the widely cited Rights Talk, and the former U.S. ambassador to the Vatican, Glendon is well known for her basic niceness and her well-mannered willingness to join attempts at coalition building between left and right.

Her decision was no personal caprice. Back in 2004, the American bishops reached a compromise between their own left and right contingents and issued a carefully worded document called "Catholics in Political Life." "Catholic institutions should not honor those who act in defiance of our fundamental moral principles," the bishops agreed [emphasis in the original]. "[Such people] should not be given awards, honors or platforms which would suggest support for their actions." In part, this explains why, at the present moment, not a single American bishop is supporting Notre Dame in its clash with the bishop of South Bend, John D'Arcy--and bishops from 68 of the 195 American dioceses have publicly chastised the school. What was the point of all that careful work by the bishops if Catholic institutions are simply going to ignore it?

Anyway, Glendon had first accepted the invitation to receive the medal back in December. In March came the announcement of Obama's honorary degree, and then the school's lashing out at critics, and then the leaking of Notre Dame's official talking points, which instructed the university's spokesmen to reply to complaints: "President Obama won't be doing all the talking. Mary Ann Glendon, the former U.S. ambassador to the Vatican, will be speaking as the recipient of the Laetare Medal." Glendon decided she didn't much like being a makeweight, so she wrote on April 27 to decline the medal, saying that Notre Dame's refusal even to speak with its local bishop threatened a "ripple effect" that could lead "other Catholic schools . . . to disregard the bishops' guidelines." The university's president, Fr. John Jenkins, had ratcheted the situation up, and up, and up, until even the gracious Mary Ann Glendon was forced to choose between the bishops and Notre Dame. What made them imagine she could possibly choose Notre Dame?

That wasn't how some saw it, of course. The comments about Glendon left, for example, on the libertarian law professors' blog The Volokh Conspiracy are well worth reading: a hilariously incoherent recital of a hundred years' worth of anti-Catholic tropes--mashed together with the thin-skinned reaction of Obama's supporters to any criticism of their leader and spiced with a conservative complaint that Glendon is childishly picking up her ball and going home, retreating into irrelevance instead of fighting the good fight.

On the other hand, polls indicate that the majority of Catholics support the Obama invitation:

A survey conducted by the Pew Forum on Religion and Public Life from April 23 to 27 found that half of Catholics aware of the speech thought it was right to invite Mr. Obama; 28% said it was wrong; and 22% had no opinion. In the November election, 54% of Catholics voted for Mr. Obama.

Prof. Campbell said 85% of the students he has polled supported Mr. Obama's visit. Among graduating seniors who do not support the visit, many will protest by wearing an image of a golden cross between two baby feet on top of their mortarboards.

An interesting--and as you surely can infer from these snippets--provocative article.


There is a very informed discussion in the Comments about the various polls on this topic in addition to the Pew poll, in particular a Rasmussen poll. They have a very wide divergence in results depending on the framing of the question. I take no side on the question of which is most methodologically sound, I just wanted to alert readers that there are other polls that show different results. Thanks to readers for alerting me to the Rasmussen poll.


FCC v. Fox and the Demise of Local Broadcasting:

I have written at short and great length about the desirability of opening up more wireless frequencies to flexible uses, and in particular freeing up spectrum currently devoted to television broadcasting.

Now those opposed to indecency are helping the cause. As I noted in an op-ed yesterday, the Supreme Court's decision in FCC v. Fox affirms indecency regulations that make life worse for local stations.

Much ink has been spilled about the possible demise of print newspapers. Local broadcasters have been a bit better off. Their viewership has long been declining, but they had an ace in the hole – coverage of local events. If people wanted to witness live local events, they needed to watch a local television broadcaster. But that has started to change. Viewers, and thus advertisers, are being siphoned off by websites covering local issues and new local offerings from cable providers.

And now some local stations are halting coverage of live local events out of fear of FCC indecency fines that the Supreme Court upheld in FCC v. Fox. The FCC has long emphasized the importance of helping local broadcasters, but more recently it has focused on indecency – ruling that even a fleeting expletive can subject a broadcaster to fines in the tens of thousands of dollars for each fleeting expletive.

National networks can afford tape-delay systems, but many local broadcasters cannot. The problem, as Justice Breyer noted in his dissent in Tuesday’s opinion, is that the FCC’s indecency policy “places all broadcasters at risk when they broadcast fleeting expletives, including expletives uttered at public events.” And, indeed, some stations have responded to the FCC’s policy by ending their coverage of local live events.

Viewers who want to see live coverage of a contentious city council meeting, or (more likely) a celebration of a local sports team’s victory, thus may have better luck with a locally oriented website than with their local broadcaster, since the First Amendment forbids indecency penalties for the website but not for the broadcaster.

The Supreme Court in FCC v. Fox did not rule that the FCC’s policy was consistent with the First Amendment, so the courts still have to address the argument (made by Justice Thomas in a separate opinion) that there is no basis for lessened First Amendment protection of broadcasters. But as matters stand right now, local television broadcasters have a new disincentive to airing live local events – and viewers have less reason to watch local broadcasters.

As I suggested above, this is probably for the best. Only 14% of households rely on over-the-air television broadcasting (86% subscribe to cable or satellite). The government could reclaim and auction the spectrum used by broadcasters –- as it has auctioned most other frequencies –- and use a small fraction of that money to subsidize cable or satellite for those who cannot afford it. The reclaimed airwaves could then be opened to other uses that would allow for new and enhanced cellular and wireless internet services on newly plentiful frequencies. Many telecommunications policy analysts have long favored this option as the best fiscal and technological policy, but so far little has happened. Maybe the FCC’s revulsion at the “f-word” can achieve what fiscal and technological arguments couldn’t.


When and Why did the Federation Turn Socialist? - A Question I Hope Will be Answered in the New Star Trek Movie:

Peter Suderman gives a positive review to the new Star Trek movie that premiered today, but notes that it focuses more on personal issues than political ones. It will be interesting to see the young Kirk, Spock, and McCoy. But I hope the movie answers an important question about that has always perplexed me about the Star Trek universe: When and why did the Federation turn socialist?

As I explained in one of my most widely read articles, Star Trek's Federation (or at least Earth) is definitely socialist by the time of the New Generation series, and probably the time of the original series that focused on the Enterprise commanded by Captain Kirk. By "socialist," I mean an economy where all large enterprises are controlled by the government, not merely a market economy where there is regulation or a welfare state. Despite Republican rhetoric to the contrary, Barack Obama is not a socialist; but he would be one if he sought to nationalize all major enterprises and abolish the use of money, as Star Trek's Federation seems to have done.

By the time of the original series, the Federation already lacks any currency (which is necessary to run a large-scale market economy), and all large enterprises seem to be government-owned; this is even more clearly the case in TNG. However, Star Trek's future Earth wasn't always that way. In Enterprise, the series set in the period just before the founding of the Federation, we see many private firms still in existence, including even privately owned space colonies and interstellar freighters. And Earth still has currency at that time. Thus, the Federation's transition to socialism probably took place sometime between 2161 (the end of Enterprise and the founding of the Federation) and 2245 (the beginning of Kirk's "five year mission" in the original series). The new Star Trek movie, which covers the days of Kirk's youth, is set right in the middle of the transition period (the early 2200s). So what caused the transition to socialism during that time? Was there a sudden violent socialist revolution, as happened in Russia in 1917? Or was there a lengthy transition caused by a gradual expansion of government until it gradually took over the entire economy? Bryan Caplan points out that the Earth portrayed in the new movie seems to have experienced very little economic growth over the previous two centuries. That suggests a slow transition over a long period of time. The low growth could be the result of gradually increasing government control choking off the private sector.

Obviously, the most likely answer to my question is that the writers of the TV series' and movies simply didn't think very hard about developing a realistic economic and political history for Earth and the Federation. However, the issue is of more than pedantic interest. Star Trek is a cultural icon watched by tens of millions. Many more people will derive their vision of what the future should be at least partially from Star Trek than from reading serious scholarship. Law professor Benjamin Barton wrote that "no book released in 2005 will have more influence on what kids and adults around the world think about government than The Half-Blood Prince [of the hugely popular Harry Potter series]." Similarly, no nonfiction book of the last few decades is likely to have more influence on how people see the future than Star Trek. If Star Trek continues to portray a socialist future as basically unproblematic, and even implies that a transition to full-blown socialism can be achieved without any major trauma, that is a point worth noting.

With rare exceptions, the Star Trek franchise has been far too blase in its portrayal of future socialism and its implications. After all, socialist regimes have been responsible for the death and impoverishment of millions. There has never been a society that combined full-blown socialism with prosperity or extensive "noneconomic" liberties for the population. And there has never been a transition to socialism without large-scale repression and mass murder. If Star Trek's writers want to posit a new form of socialism that somehow avoids the shortcomings of all previous ones, they should at least give us some sense of how this new and improved socialism escaped the usual pitfalls. Had a similarly prominent pop culture icon been equally obtuse in its portrayal of fascism or even milder forms of right-wing oppression (e.g. - by portraying a rightist military dictatorship that seems to work well and benefits the people greatly without any noticeable loss of personal freedom), it would have been universally pilloried.

Despite this criticism, I still like many things about Star Trek, and I certainly think it is often fun to watch. Political ideology is not the only noteworthy aspect of a science fiction universe, or even the most important. I don't ask that the producers of Star Trek incorporate my political views into the series. I do wish, however, that they would consider the implications of their own more seriously.

UPDATE: I'm sure various readers will claim that socialism in Star Trek works well because they have transporters and replicators, which supposedly eliminate all economic scarcity. If resources are completely unlimited, the argument goes, it doesn't matter if they are used inefficiently. But as I pointed out in this post, there is in fact economic scarcity in the Star Trek universe, because not everything can be replicated (e.g. - power sources for starships and replicators themselves). Moreover, the Federation and other nations in that universe wage war over the control of planets and other assets, which implies that they can't be replicated either. It's also worth noting that replicators seem to be a government monopoly in the Federation, at least on Earth; I don't think we ever see a private replicator owned by a human Federation citizen. That has some troubling implications of its own.

UPDATE #2: Some commenters doubt that there really wasn't any currency in Star Trek. I refer them to this interview with Star Trek screenwriter Ronald D. Moore [HT: commenter Jim Hu], who later also produced Battlestar Galactica:

Question: I've been wondering this since I saw FC: What ever happened to Federation Standard Credits as established in "The Trouble With Tribbles," and, I believed, mentioned (though I don't remember where) in TNG?

Moore: All I know is that by the time I joined TNG, Gene [Roddendery, the creator of Star Trek] had decreed that money most emphatically did NOT exist in the Federation, nor did "credits" and that was that. Personally, I've always felt this was a bunch of hooey, but it was one of the rules and that's that. Fortunately DS9 [Deep Space 9] isn't part of the Federation, so currency could make a back-door re-entry into our story-telling.

So there may have still been credits as a kind of residual currency in the original series. Perhaps it could only be used in government-owned stores and facilities to acquire goods at government-set prices. In the USSR, for example, especially privileged citizens could shop at special stores to which only a small elite had access; Star Fleet officers (the people we see getting credits) might fall into that category. In any event, the socialist government of the Federation eventually abolished them.

UPDATE #3: In a series encompassing hundreds of TV episodes and a dozen movies, there will inevitably be inconsistencies. Therefore, I can't deny that there are probably some scenes in there that seem to contradict my general thesis that the Federation is socialist, including some mentioned by various commenters. Nonetheless, I think there are two consistent patterns that support my position. First, prominent characters such as Captain Picard and Kirk repeatedly state that there is no money in the Federation. This is confirmed as part of the rules for the TV series' by Star Trek screenwriter Ronald D. Moore. Obviously, it is impossible to run a large-scale market economy without currency of some kind. Second - as far as I can tell - we never see any large privately owned enterprises in any of the Star Trek series set after the founding of the Federation. We never hear such of such enterprises being mentioned, or see their brand names on any goods. They are absent even in episodes that include civilian settings. This is a striking omission, given the wide range of issues covered in the vast Star Trek ouevre. Tellingly, none of the commenters (many of whom seem to know far more about Star Trek than I do) have managed to cite any counterexamples. Even if one or two counterexamples do turn up in an isolated single episode, it would not be enough to outweigh the whole rest of the series. The combination of the lack of any large-scale private enterprise and the lack of currency strongly suggest that the Federation is socialist.

Related Posts (on one page):

  1. Review of the New Star Trek Movie:
  2. When and Why did the Federation Turn Socialist? - A Question I Hope Will be Answered in the New Star Trek Movie:

Friday, May 8, 2009

Graduate Student / Dissertation Advisor Relationship Doesn't Give Rise to a Fiduciary Duty:

So holds Swenson v. Bender (Minn. Ct. App. Apr. 28):

[A] fiduciary relationship cannot arise even out of a long, close, and trusting relationship when the purportedly trusting party “should have known the [other party] was representing adverse interests.” Given Bender’s roles as adjunct instructor at Capella and as member of the committee assigned to assess Swenson’s academic paper, Swenson should have known that Bender had an independent obligation to Capella that at least paralleled, if not superseded, her obligation to Swenson as it regards the dissertation’s subject matter. Bender’s role prevented her from being bound to act only for Swenson’s benefit on all matters.

This sounds exactly right. Bender might not have been without fault; according to a Capella University committee, she "acted unethically in her student-advisor role by developing a personal relationship with Swenson, and [the committee] found it impossible to discern which parts of Swenson's dissertation were her own work and which were Bender's." Swenson also alleged that Bender had misappropriated Swenson's intellectual property, but the trial court rejected that claim.

But that hardly says that there should be a special level of fiduciary obligation imposed on faculty members, besides the standard obligations imposed on everyone (e.g., don't steal others' stuff, don't defame them, and so on). It would be bad to conclude that dissertation advisors are primarily supposed to act in their students' interests, as opposed to the interests of maintaining scholarly standards.

And it would be especially bad to conclude, as the trial court apparently did, "that Bender's accusation of plagiarism" -- Bender had accused Swenson of committing plagiarism within Swenson's dissertation -- was itself a legally actionable breach of fiduciary duty that Bender owed to Swenson. As the court of appeals pointed out, the accusation "had merit," and is precisely the sort of thing that professors should allege when there are grounds for the allegation. And even if such an accusation were groundless, any legal remedy should be the standard defamation claim available without regard to the relationship between the parties, not some special fiduciary duty claim.

UPDATE: Whoops! I initially wrote "Swenson might not have been without fault," where I meant to say "Bender might not have been without fault"; and, on reflection, was less than clear in the rest of the discussion, too. I've revised and expanded on the material above; hope it's clearer now.


Now That's a Nice Attorney General Opinion for You:

From the South Carolina Attorney General, to a Texas lawyer (Scott Toothaker) who solicited the opinion, 1967 WL 12299 (Mar. 30, 1967):

Dear Mr. Toothaker:

I am pleased that you are planning to visit our State, and I am enclosing under separate cover some information that should be of interest to you. I would personally suggest that you see Charleston and the Coastal Area. The gardens located at Charleston will probably reach their peak within the next two weeks, but they may still be enjoyable at a later date.

I have previously ruled that a tear gas gun of the fountain pen type is a firearm within the meaning of our law. Under our amended firearms act, these weapons may be carried in a closed glove compartment of a vehicle or in a closed trunk. They may not be carried concealed about the person. I doubt seriously if any difficulty is likely to ensue from possession of the pen type tear gas gun, but the strict application of the law places it, in my opinion, in the category of a pistol. The matter came before me on application of a department store to sell these devices, and I expressed the opinion that dealers were subject to the licensing provisions of our law if they sold such instruments.

If I can be of any assistance to make your visit to this State enjoyable, please call upon me.


Daniel R. McLeod
Attorney General

I'm not sure the advice was correct under then-existing South Carolina law (see, e.g., the seemingly contrary opinions of Apr. 15, 1964 and Dec. 3, 1969, and the then-in-effect version of S.C. Code § 16-147), but it certainly was pleasant.


Not Guilty Verdicts in the W.R. Grace Prosecution:

The Justice Department just suffered a huge loss up in federal court in Montana. The jury just returned not guilty verdicts on all counts as to all defendants in the W.R. Grace environmental prosecution, which alleged that the company and some of its top corporate officers had knowingly endangered the residents of Libby, Montana through release of asbestos. A summary of the arguments to the jury can be found here on this excellent blog run by the University of Montana School of Law.


"The Exception Proves the Rule":

People often find the origin of this phrase puzzling -- wouldn't an exception disprove the rule? Some have argued that "proves" was used in its meaning "To make trial of; to try, test" (definition II in the Oxford English Dictionary).

But as best I can tell, the origin of the phrase is the legal principle that the statement of an exception shows that the rule is opposite in the cases not excepted. Here's what the OED tells us:

The legal maxim, ‘Exception proves (or confirms) the rule in the cases not excepted’ (exceptio probat regulam in casibus non exceptis), which is in its original form an example of sense 1, is commonly quoted as ‘The exception proves the rule’ ....

Here's an early English American case, Watson v. Alexander, 1 Va. 340 (1794): "The act excepts the cases of contracts for gold or silver coin, tobacco, or other specific property; and if it be true, that an exception proves the rule, we must decide that all other contracts are within the law." And here's an illustration given by the OED that shows the meaning beyond the legal context; it's from Samuel Johnson's preface to a 1765 edition of Shakespeare (emphasis added):

It has been much disputed, whether Shakespeare owed his excellence to his own native force, or whether he had the common helps of scholastick education, the precepts of critical science, and the examples of ancient authours.

There has always prevailed a tradition, that Shakespeare wanted learning, that he had no regular education, nor much skill in the dead languages. Johnson, his friend, affirms, that he had small Latin, and no Greek; who, besides that he had no imaginable temptation to falsehood, wrote at a time when the character and acquisitions of Shakespeare were known to multitudes. His evidence ought therefore to decide the controversy, unless some testimony of equal force could be opposed.

Some have imagined, that they have discovered deep learning in many imitations of old writers; but the examples which I have known urged, were drawn from books translated in his time; or were such easy coincidences of thought, as will happen to all who consider the same subjects; or such remarks on life or axioms of morality as float in conversation, and are transmitted through the world in proverbial sentences....

There are a few passages which may pass for imitations, but so few, that the exception only confirms the rule; he obtained them from accidental quotations, or by oral communication, and as he used what he had, would have used more if he had obtained it.

The Comedy of Errors is confessedly taken from the Menæchmi of Plautus; from the only play of Plautus which was then in English. What can be more probable, than that he who copied that, would have copied more; but that those which were not translated were inaccessible?

By "the exception confirms the rule," Johnson seems to have meant that "seeing the exception, and recognizing that it is an exception, confirms for us that there is a rule." And my sense is that in the modern day, the phrase -- when used effectively -- has roughly that meaning.


Harvard Law School Laying Off Employees Due to Budget Shortfall:

Harvard Law School announced that it will cut its budget 10% next year, and lay off some employees.

In a dramatic move, several of the law school's aging leftists, tired of writing about their commitment to egalitarianism and social justice and their loathing of Harvard's elitism, and eager to put their words into action and embarrass the school and their more selfish colleagues, offered to take voluntary unpaid sabbaticals next year so that their much more poorly paid comrades could retain their jobs. Professor Duncan Kennedy was quoted as saying, "I have long advocated that HLS's professors and janitors switch places from time to time, and I'm happy to take the place of a laid-off janitor for the year."

Actually, only the first sentence is true. The second part hasn't happened, at least not yet.


I, For One, Do Not Welcome Our New Ancient Greek Overlords:

My use of the term "lion's share" to mean the great majority drew this comment:

Still, the fact remains that the Soviets and Soviet soldiers bore the lion's share of the European war's casualties,...

Eugene, you seem to love words and [idioms], so please forgive a minor bit of pedantry. Your statement is not true.

"The lion's share" means the whole thing.

Others have made similar assertions.

I'm all for pedantry, but I'm also pedantic about what "not true" and "means" mean. As I understand it, the term "means" means (where English idioms are concerned) what the words actually convey to typical English speakers (or, in writing aimed at an educated audience, what they convey to typical educated English readers). It doesn't mean "what the phrase meant in the original literary source from which it is borrowed." Really, that's not what "means" generally "means," either according to usage or according to any prescriptivist definitions of what "means" means. Even if one is a prescriptivist, there is no established prescription of the English language that phrases with literary origins have to perfectly track the meaning in the original source.

And "lion's share" apparently means, and has for centuries meant, "the largest or principal portion," to quote the Oxford English Dictionary (is that authority enough for you?). The first source the OED gives is Edmund Burke, in 1790, "Nor when they were in partnership with the farmer ... have I heard that they had taken the lion's share." (I checked the book itself, and it confirms the OED's understanding of Burke's meaning.) Other sources, cited in Merriam-Webster's Dictionary of English Usage.

The OED does not even give "all" as a definition. The same is true for the Merriam-Webster and the Random House. The only definition I could find that included "all" as an option was in the 1913 Webster's, but even it included "nearly all" and "the best or largest part" as alternative definitions.

Now if you find departures from the original historical referent to be annoying or esthetically displeasing, that's fine. I sometimes have that reaction myself. (Note, though, that apparently there are different versions of the fable, in some of which the lion gets everything, and in some of which the lion gets almost everything but not everything.)

But please don't pretend that the meaning supposedly given by an Ancient Greek 2500 years dead is what the phrase actually "means" in our language and in our time. Or if you want to use "means" in what strikes me as the highly nonstandard meaning of "should mean because I believe a literary allusion may only be used in the sense supposedly used by the original author," please make that clear, and defend (even assuming the propriety of prescriptivism) why that is a defensible prescription for the English language.

Related Posts (on one page):

  1. I, For One, Do Not Welcome Our New Ancient Greek Overlords:

Patriot Act Hysteria -- A Trip Down Memory Lane: Back in 2002 to 2005, it was common for the media to go nuts whenever anyone claimed that anything bad that happened was related to the Patriot Act. Someone would trip on a banana peel and announce that the banana peel was put there by the Patriot Act, and TV and major newspapers would go bonkers over the alleged abuse. ("Why is the government using the Patriot Act to place banana peels on the sidewalk?!?!? Why is it assaulting innocent Americans? This has nothing to do with terrorism!!").

  It was kind of fun to poke holes in these stories, in part because it was so easy: All you needed to do was actually read the Patriot Act and have some basic understanding of the laws that it amended. For some reason I will probably never understand, this basic step occurred to very few people actually talking about the Patriot Act to and in the media. But so it goes.

  Anyway, this trip down memory lane is inspired by a recent case of Patriot Act hysteria — the case of a 16-year old who was arrested for making bomb threats at Purdue University. The FBI obtained an search and arrest warrant for the 16 year-old, came to his parents home, and arrested him and searched the home. He was arrested, formally charged, appointed a lawyer, and has had a few court appearances already.

  What makes the story big news is that the kid's mom purports to believe that her son is entirely innocent and that the Government took him away under the Patriot Act in violation of all of his constitutional rights. A local TV station and a radio show apparently didn't check on whether the claims had any validity — or even whether the law was as the mom described — and they ran the story. The written version of the TV report is here, and the video version — which is really the best part, I think — is here. The story then took off across the net.

   I thought about poking holes in this story just for old times' sake, but Kevin Poulsen of Wired News got there first. He has two great posts on this: Bloggers, TV, Go Nuts Over Misleading ‘Patriot Act’ Arrest Claim. He then follows up with a bit more about the evidence of what the teenager did — and what the mother knew — in this post: Teenage Bomb Threat Suspect Was Internet Prank-Call Star. DOJ's press release in response to the misleading coverage is here. There are a lot of gems in Poulsen's coverage — very much worth reading.

  Finally, I'll add a postscript that shouldn't be necessary but probably is. Pointing out that almost all the stories of alleged "Patriot Act abuses" have nothing to do with the Patriot Act at all (and usually are not actually "abuses") does not mean that I do not think there are civil liberties abuses in America; that such abuses should not be taken seriously; or that the Patriot Act was perfect in every way. The point is about incredibly bad media coverage, and how easily some stories are told and retold even if the facts don't back them up — even today, almost 8 years after the Patriot Act was passed.

Gay Arabic Speakers in the Military:

I assume from his last name that Dan Choi, the Arabic-language specialist who is being dismissed because he's openly gay, is not of Middle Eastern extraction. But I take it that many Arabic-language specialists, including the gay ones, are.

So my question (which I'm sure is not original): Wouldn't the gay Arabic speakers be especially likely to be loyal to us, and hostile to Islamic fundamentalists? As between a gay Arabic speaker who has ties to, say, Iraq or Saudi Arabia, and the straight Arabic speaker, whom would you trust more to lack hidden sympathies with violent Islamic extremism?

Just to be clear -- I think it's entirely reasonable to worry about possible loyalty issues when it comes to selecting people for sensitive military or national security positions (whether high level or low), especially when the candidates are culturally, ethnically, or religiously linked to our enemies. For instance, I take it that the government should rightly have worried about this with regard to Russian immigrants like my family and me when the Cold War was still on, even though on balance the Russian immigrants were highly hostile to the country that they left. The normal antidiscrimination rules, important as they are, don't in my view apply equally to the military or national security, just as the normal sex discrimination laws don't apply equally to the military, and just as the normal free speech and search and seizure rules don't apply equally to the military or national security.

This doesn't itself tell us what the government should do based on those worries. I think the answer depends on many factors, including the degree of harm that comes to people because of these connections (e.g., internment vs. some extra investigation, exclusion from the military vs. placing Japanese-American soldiers predominantly on the European front during World War II, a tendency to exclude from a vast range of military jobs vs. a tendency to exclude from the most security-sensitive jobs). But it does suggest that we should avoid policies that end up excluding those people as to whom the risk of disloyalty seems especially low. And that's entirely independent of your stand on whether sexual orientation discrimination is wrong in principle, or counterproductive in general (setting aside our current enemies' extreme hostility to homosexuality).


Administration Says Wage Reductions Violate Recovery Act.

President Obama campaigned on cutting soaring medical costs. So what happened when the state of California cut the state's contribution to the wages of home medical care workers from a maximum of $12.10 per hour to a maximum of $10.10?

SEIU, the powerful union that has been closest to Obama and is the parent union of ACORN, asked the Federal government to stop the cost-cutting. And that's just what the administration is trying to do:

The Obama administration is threatening to rescind billions of dollars in federal stimulus money if Gov. Arnold Schwarzenegger and state lawmakers do not restore wage cuts to unionized home healthcare workers approved in February as part of the [California] budget.

Schwarzenegger's office was advised this week by federal health officials that the wage reduction, which will save California $74 million, violates provisions of the American Recovery and Reinvestment Act. Failure to revoke the scheduled wage cut before it takes effect July 1 could cost California $6.8 billion in stimulus money, according to state officials. . . .

The wages at issue involve workers who care for some 440,000 low-income disabled and elderly Californians. The workers, who collectively contribute millions of dollars in dues each month to the influential Service Employees International Union and the United Domestic Workers, will see the state's contribution to their wages cut from a maximum of $12.10 per hour to a maximum of $10.10.

The SEIU said in a statement that it had asked the Obama administration for the ruling. . . .

Schwarzenegger on Wednesday sent U.S. Secretary of Health and Human Services Kathleen Sebelius a letter urging the federal government to reconsider.

"Neither the Legislature nor I make decisions to reduce wages or benefits lightly, but only as a last resort in response to an unprecedented fiscal crisis," Schwarzenegger wrote.

Of course, if the proposed cuts lead to more institutionalization, it is possible that the cuts in wage subsidies for home workers could increase medical costs overall.

One of the reasons that the Great Depression in the 1930s lasted so long is that FDR was successful in keeping wages above the market-clearing wage. The downward stickiness of wages is one of the main causes of unemployment in a recession. If the 2009 Recovery Act actually does prevent wages from dropping to the point where people will be hired, then it would be another example of how the Recovery Act tends to prevent recovery rather than promote it.

Chrysler Deal from an Historical Perspective:

David Skeel says the Chrylser deal would "Horrify a New Dealer."

Of course, one needn't be a New Dealer in order to be horrified by the Chrysler deal!


I. F. Stone's Apologists:

Michale Moynihan has got their number. (H/T Instapundit)

How ridiculous are some of the attempts to whitewash Stone's relationship with Soviet intelligence? This ridiculous: Eric Alterman, whose tag line proudly proclaims that he is a "is a professor of English and journalism at Brooklyn College and a professor of journalism at CUNY Graduate School of Journalism," proclaims that Stone was not a spy because his activities do not match's first definition of the word "spy." Seriously. I hope Alterman's English and journalism students start citing's first definition of a word as its definitive and indeed only meaning, just for fun.

UPDATE: By the way, Stone is said to have "assisted Soviet intelligence on a number of such tasks: talent-spotting, acting as a courier by relaying information to other agents, and providing private journalistic tidbits and data the KGB found interesting." But nope, no spying involved.

FURTHER UPDATE: This seems as good a place as any to plug my own contribution to the literature on domestic American Stalinism, a discussion of the First Amendment issues raised by the government's crackdown on American Stalinists in the late 40s and 50s.


ON PJTV, I talk with Glenn Reynolds about changes being made to the “Bill of Federalism.”


I continue to make major revisions to the proposal and, by next week, hope to have a revised version posted for further comments on

Today, it Really is F.A. Hayek's 110th Birthday!

Today really is F.A. Hayek's 110th Birthday. I incorporate by reference my post from three days ago, which I wrote under the mistaken impression that Hayek's birthday was really May 5. My mistake was soon corrected by other bloggers. Hayek would say that this was a small example of how free markets and civil society make good use of information and effectively correct errors.

In any event, happy 110th birthday to one of the truly great economists and political philosophers of the last century. His most important ideas remain highly relevant today, as does his trenchant critique of conservatism.


Is Justice Souter a "Burkean" Conservative?

Prominent constitutional law scholar Michael Dorf claims that Justice Souter's jurisprudence is not really liberal. Instead, he argues that Souter should be considered a "Burkean" conservative:

[W]hat should we make of the characterization of Souter as a liberal [by John McGinnis]? I am quoted in the same National Law Journal article [link inserted by IS] describing Souter as a conservative, albeit a very different sort of conservative than Justice Scalia--and for that matter, Justices Thomas, Roberts and Alito. Perhaps I can explain what I meant with an analogy to the battle now raging over the future direction of the Republican Party and conservatism more generally.

The media have tended to describe the intra-Republican/conservative fratricide as pitting purists against pragmatists. But that framing of the debate, in my view, concedes far too much ground to the hard right, the self-described true conservatives, for it is only very recently that much of what we now associate with conservatism became the orthodox conservative view: Economic libertarianism; international unilateral interventionism; and state enforcement of traditional morality. New England/Rockefeller Republicans represented an older, more moderate brand of conservatism in the literal sense: dedicated to conserving the best of the status quo, and thus cautious about, though not irresolutely opposed to, change. David Souter was and is very much part of that older tradition.

Likewise in jurisprudence, conservative true believers (like McGinnis) now talk as though originalism is and always was the only legitimate and certainly the only conservative methodology. Yet originalism as now espoused is a relatively recent creation, dating roughly to the beginning of the Reagan Administration. Before that, the epitome of judicial conservativism was the second Justice Harlan, who greatly valued precedent, supported civil rights, and dissented from what he regarded as those Warren Court decisions that went too far too fast. He was not, however, a conservative in the current sense...

Justice Souter admired Justice Harlan and there are clear traces of Harlan in Souter's body of work. Souter respects precedent and tradition but does not fetishize either.

Dorf is right to suggest that Justice Harlan was a conservative of sorts, and that his jurisprudence might be considered a conservative alternative to that of Scalia and others. However, Dorf is wrong in claiming that Souter's work is similar to Harlan's in that sense. Harlan can be considered a conservative because he dissented from many of the Warren Court's major liberal constitutional decisions, such as Miranda v. Arizona and Baker v. Carr. By contrast, Justice Souter has voted with the liberal side on virtually every important contested constitutional issue that has come before the Court during the last 16-17 years of his tenure. On affirmative action, federalism, property rights, the death penalty, separation of powers, campaign finance, and just about every other constitutional question, Souter was a consistently reliable liberal vote.

Souter did vote with the conservatives on a few disputed constitutional cases during his first year or two on the Court (e.g. - New York v. United States, an important federalism case); but that period apparently came before his migration to the liberal side was complete. He has not voted with the conservatives on any major contested constitutional case since then (by which I mean a case that wasn't decided by an overwhelming margin such as a 9-0 or 8-1 vote). Souter's votes during that period are largely indistinguishable from those of the Court's liberal Democratic-appointed justices, such as Ginsburg and Breyer. Perhaps Dorf considers them to be "Burkean conservatives" as well. But that would stretch the concept so far as to rob it of any useful content.

Souter also cannot be considered a "Burkean conservative" because he showed little if any deference to precedent or tradition when these conflicted with liberal jurisprudential goals. For example, he voted to set aside longstanding precedent and tradition in gay rights and death penalty cases. It's hard to find even one important constitutional case where Souter voted against a position preferred by liberals because he thought it went too far in rejecting tradition or precedent. If Burkean conservatism has any meaningful content at all, it is a strong presumption in favor of the validity of longstanding traditions and hostility to rapid change.

I don't mean to criticize Souter for not being a Burkean conservative. To the contrary, I have been very critical of Burkean conservatism myself. In my view, Burkean conservatives pay far too much deference to tradition and sometimes underestimate the benefits of rapid change (especially when the status quo is very bad). I believe that Souter was wrong about many constitutional issues; but not because he rejected Burkean conservatism.

Be that as it may, Souter's jurisprudence was far from being Burkean. To steal a line from Lloyd Bentsen, I serve on the same blog with Burkean conservatives; I know Burkean conservatives; many Burkean conservatives are friends of mine. And Justice Souter is no Burkean conservative.

NOTE: In my discussion of Justice Souter's voting record, I have excluded from consideration cases that were decided unanimously or nearly so (8-1). Like most scholars, I don't consider these types of cases to be useful tests of a justice's ideological leanings, because their lopsided nature suggests that jurists from across the political spectrum would decide them the same way. Likewise, I exclude cases from a few constitutional fields (e.g. - punitive damages) on which both liberal and conservative justices are internally divided. These cases aren't good tests of ideology because they tend to divide the justices on nonideological grounds. It is noteworthy, however, that in the punitive damages cases, Souter voted with the five justice majority that that supported judicial intervention to curb "excessive" damage awards - despite the fact that this result expanded judicial power without warrant in tradition or precedent for doing so. There might be a "conservative" rationale for this outcome; three conservative justices, including Chief Justice Rehnquist, voted the same way. But it certainly wasn't a Burkean conservative vote.

UPDATE: I should perhaps have noted that Justice Souter did vote with conservatives against other liberals in a few closely divided Fourth Amendment cases, of which the best known is probably Atwater v. Lago Vista. In the original post, I wrote that Souter "has voted with the liberal side on virtually every important contested constitutional issue that has come before the Court during the last 16-17 years of his tenure." Atwater, in my judgment, fails the "important" requirement. Like most Fourth Amendment search and seizure cases, it is narrowly focused on a particular fact pattern (in this case, whether officers could arrest a suspect whom they had probable cause to believe had commited a criminal offense punishable only by a fine). It also fails the "important" criterion because arrests for very minor offenses of this type are rare. However, I acknowledge that other commentators might rate Atwater's importance higher than I do.

If so, Atwater would be a genuine exception to the pattern I describe. But not nearly a big enough exception to invalidate my conclusion. After all, Justice Scalia has voted with liberals against other conservatives in a few well-known Fourth and Sixth Amendment cases. No one contends that this handful of cases proves that he's really a liberal, when viewed in the context of his overall record.

Related Posts (on one page):

  1. Is Justice Souter a "Burkean" Conservative?
  2. The Myth of Justice Souter as a Yankee Republican:

Thursday, May 7, 2009

[Adam Mossoff, guest-blogging, May 7, 2009 at 10:49pm] Trackbacks
Patent Thickets, Patent Pools and Antitrust:

This is my final blog posting, and I’d like to briefly raise an issue with the readers of this series about a complex policy and legal issue: antitrust and its impact on patent pools.

Among all the differences between the nineteenth century and the modern age that have been identified and discussed by VC commentators and others over the past week, this is perhaps one of the most consequential. Interestingly, it’s a difference in law, not in science or technology. Yet this may have the biggest impact on patent thickets, because it makes its private-ordering solution that much harder to form.

As I discussed in my posting about the Sewing Machine Combination, this patent pool and commercial trust was attacked in the popular press as a “grinding, pitiless monopoly.” In the Sewing Machine Combination’s patent infringement lawsuits, defendants repeated such arguments, such as calling its litigation war chest an act of “oppressive conduct.” Such arguments, however, fell on deaf ears in the courts. In one 1862 case, for instance, a federal court rejected this claim, asking rhetorically, “why they might not make a common fund for the purpose of protecting their common rights by prosecuting those they thought had infringed them, I am at a loss to conceive.”

After the enactment of the Sherman Antitrust Act in 1890, this was no longer a rhetorical question for a court to ask, as the federal government embarked on a campaign of “trust busting” (to use Teddy Roosevelt’s famous term).

I am not an antitrust expert, and so I am very much hoping for some substantial feedback from the VC readers. It’s my understanding that, for much of its history, antitrust law prohibited patent pools as anticompetitive -- they were deemed to be a form of collusion for the purpose of squelching competition. In more recent years, this hard line against patent pools has softened a bit, as the federal government now applies a “rule of reason” analysis to determine if patent pools are pro- or anti-competitive. This requires the courts to engage in a market-specific, context-sensitive, patent-specific analysis of the nature of the pool and its function, asking such questions as whether the patents in the pool are complementary or substitutes for each other, whether prices will rise or fall, whether the pool will facilitate a product coming to market or not, etc.

Now, I think there is a legitimate philosophical question to ask about whether such concepts are even valid, but that is beyond the scope of both my paper and this blog posting. Here, my inquiry is pretty limited in scope.

Antitrust scholars acknowledge that rule-of-reason analysis is “indeterminate,” which means that it is next to impossible for the firms to predict ex ante whether their actions will run afoul of the antitrust laws or not. So, here’s my question: How does this indeterminacy impact the use of patent pools to resolve paten thickets? If so, does this make patent thickets more or less problematic today? In other words, is one of the reasons for the problem of patent thickets today exogenous to the patent system -- is antitrust mucking up the workings of the patent system here?

I don’t know the answers to these questions yet, but it seems commonsensical that antitrust would be relevant to the patent thicket problem. The question would seem to be how much and in what way. I’m really interested in hearing from people who know more about antitrust than I do -- I'm currently researching it as part of my writing project on patent thickets -- and so any ideas, suggestions, pointers, cases, etc. would be greatly appreciated.

With that said, I’m now signing off from my guest-blogging stint here at The Volokh Conspiracy. I wanted to thank Eugene again for inviting me to do this. I had a lot of fun, and I hope you (the readers) did, too. I know that my final paper will be far improved as a result of this experience. In fact, I really enjoyed my engagements with the commentators, who are to be commended for their thoughtful and substantive remarks. The comments stayed on track and did not get sidetracked, and for that, thank you.


Rosen Responds:

Jeff Rosen responds to some of the criticisms of his profile of Judge Sonia Sotomayor. Word is, his profile of Elena Kagan is up next.


The Supreme Court Short List:

Jan Crawford Greenburg reports that the White House has a short list of candidates to replace Justice Souter on the Supreme Court. According to Greenburg, the White House has asked six individuals to submit information for vetting, "which is being run outside the White House," but only three -- Diane Wood, Elena Kagan, and Sonia Sotomayor -- are identified by name. Most interesting is Greenburg's coverage of the internal debate over the nomination, over whether to seek political advantage or identify the nominee with greatest potential impact on the Court, whether to play it safe or whether to save a safer candidate for a subsequent nomination later in the term. Interesting stuff.


Federal Government Will Use Eminent Domain to Take 500 Acres of Property for Flight 93 September 11 Memorial:

The federal government has announced its intention to condemn 500 acres of land held by seven property owners in order to use it as part of a memorial for those killed on Flight 93 on September 11 [HT: several VC readers who alerted me to the story]. In this December post written when the use of eminent domain was just under consideration, I explained why this condemnation is clearly constitutional even under the relatively restrictive interpretation of the Takings Clause that I and most other critics of Kelo v. City of New London support:

As a legal matter, I think it's fairly clear that this proposed taking would be constitutional. Although I favor a more restrictive interpretation of the Public Use Clause of the Fifth Amendment than that adopted by the Supreme Court in cases such as Kelo v. City of New London (where it held that virtually any potential "benefit" to the public counts as a "public use" for which property can be taken by condemnation), this is still a fairly easy case. After all, the condemned property would be used for a government-owned and government-run memorial that will be open to the general public. Thus, there is clearly a "public use" in the intuitive sense of the word (ownership by the government and/or open access for the general public).

The case would in fact be similar to the famous 1896 Supreme Court decision in United States v. Gettysburg Electric Railway Co., where the Court upheld the condemnation of property for the purpose of building a monument on the site of the Battle of Gettysburg. Contrary to widespread belief, the Gettysburg Court did not foreshadow cases like Kelo in holding that any public benefit counts as a public use; to the contrary, the Court emphasized that a condemnation transferring property to a private entity should be subject to stricter scrutiny than one "where the government intends to use the land itself" (I discuss Gettysburg more fully on pp. 242-43 of this article). In this case, however, as in Gettysburg, the government does in fact "intend . . . to use the land itself," so there is no constitutional problem.

I also argued in that post that the Flight 93 Memorial takings may be justified on policy grounds:

Whether the use of eminent domain is justified on policy grounds is a tougher question. Nonetheless, I would tentatively say that it is. This is a classic case where eminent domain might prove necessary because 1) the government needs a specific site for its project (there are obvious advantages to building the memorial on the site where the plane crashed), 2) holdout problems might be an issue, and 3) they could not be overcome through secret purchase because this is a public project that must be openly discussed and presented in advance. By contrast, private developers can usually use secret purchase to forestall "strategic holdouts" and therefore eminent domain is rarely if ever needed to assemble land for private projects that genuinely create more economic value than the current uses of the land the developers seek to acquire (I discuss these points at greater length on pp. 205-10 of this article).

I do have one important caveat to my conclusion on the policy issue. According to news reports, the memorial will be part of a massive 2200 acre national park (including 500 acres of property that will be forcibly acquired by using eminent domain against the seven owners). I suspect that the government could have built a simple, dignified memorial to the Flight 93 victims without using so much land - and therefore without having to undermine property rights to such a great extent. The actual area where the plane crashed is presumably far smaller than 2200 acres, or even 500 acres. A memorial to those who died in the cause of freedom should be built in ways that violate the rights of others as little as possible. However, I am reluctant to state a definitive conclusion on this issue because I have not studied the memorial plans in detail.

UPDATE: Ilya Shapiro of the Cato Institute criticizes the government's "strongarm tactics" in dealing with the seven owners.


"Reasonable Regulation of Speech":

A special bonus for those skeptical of calls for "reasonable regulation" of guns: Check out Rep. Linda Sanchez's defense of her extremely broad proposal to criminalize "severe, repeated, and hostile" speech intended to cause "substantial emotional distress." Sure enough, here's the opening sentence of the paragraph in which she tries to explain why this is constitutional:

Current Supreme Court jurisprudence already recognizes some reasonable regulation of speech is consistent with the First Amendment.

Ah, "reasonable regulation" -- who but an unreasonable person could be against such a reasonable proposal?


Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech:

Last week, I cricitized Rep. Linda Sanchez’s bill that says,

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....

[“Communication”] means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; ...

[“Electronic means”] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

I gave several examples of the kinds of speech the law might turn into a federal felony, but for now let me just give two of them, merged into one:

I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. Or I repeatedly blog the same after the vote, because I want the politician to feel ashamed and publicly condemned. I am transmitting in interstate commerce a communication with the intent to coerce or substantially distress using electronic means (a blog) “to support severe, repeated, and hostile behavior” -- unless, of course, my statements aren’t seen as “severe,” a term that is entirely undefined and unclear.

Others criticized the bill as well.

Yesterday, Rep. Sanchez defended her bill, on the Huffington Post. Check out her response, and see what you think. Here’s what I think:

1. Sanchez’s post nine times mentions the need to protect children (or “young” people). But the proposed law is not in any way limited to speech aimed at a child. It three times mentions the “anonymity” of the Internet. But the proposed law is not in any way limited to anonymous speech.

2. So what about speech that’s aimed at adults, including adult Congresswomen and other public figures? Sanchez tells us, “bloggers, emailers, texters, spiteful exes, and those who have blogged against this bill have no fear.” “Congress has no interest in censoring speech and it will not do so if it passes this bill. Put simply, this legislation would be used as a tool for a judge and jury to determine whether there is significant evidence to prove that a person ‘cyberbullied’ another. That is: did they have the required intent, did they use electronic means of communication, and was the communication severe, hostile, and repeated.”

But the whole problem is that bloggers, newspaper commentators whose columns are posted online, and others are not protected against the law, precisely because much constitutionally protected speech is said with an intent to coerce or substantially distress, is severe, is hostile, and is repeated.

5. Sanchez reports that her proposal was run by a “variety of experts and law professors.” I would like to see even one statement from one such expert that would explain how this law is constitutional. The law is clearly unconstitutionally overbroad. And to the extent that one tries to cure that breadth by reading things into it that don’t appear on the text (say, a “public figure”/“private figure” distinction somehow shoehorned into the words “severe” or “hostile”), it is unconstitutionally vague.

But Sanchez’s defense of the law as written troubles me even more. If Sanchez did want to limit the law to speech aimed at children, or focus only on individualized communications and not blog posts or other speech aimed at the public at large, or exclude public figures or matters of public concern, she could easily amend the bill.

Yet apparently she doesn’t want to impose such limitations. The ban on “severe, repeated, and hostile” speech -- including on “blogs [and] websites” -- that’s intended to “coerce, ... harass, or cause substantial emotional distress to a person,” including adults and including politicians, seems to be exactly what she wants.

Related Posts (on one page):

  1. "Reasonable Regulation of Speech":
  2. Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech:
  3. Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

More on Supreme Court Experience: My earlier post "The Right Experience for a Supreme Court Justice" drew some interesting comments, and I wanted to follow up. The point of the post was that any person can only have so many experiences. Although it would be nice if inidviduals had a wide range of experiences, life is short and experience can be a bit of a zero-sum game. Asking for a judge with experience A may mean getting a judge without experience B.

  A few commenters weighed in with the point that what matters is experience on the Court as a whole, not for each Justice, and that my post downplayed this point. Here's commenter Prosecutorial Indiscretion:
Your point is well-taken. That said, wanting the Court to involve a breadth of experience does not mean every justice has to have a ridiculously broad background. It just means that, e.g., having one justice who's spent time in the trenches would be nice, so that the Court as a whole would have the benefit of that perspective and experience. Nine justices with antitrust experience would be a bit pointless; one or two seems pretty useful.
  On one hand, it's hard to disagree with this. I think everyone acknowledges that in a perfect world, you would want different Justices to have different experiences. In theory, the Justices with more experience could have an outsized-role in cases for which their experience was relevant, leading to decisionmaking that was better informed. All to the good.

  At the same time, there are two limitations on this that I think are worth noting. First, Supreme Court openings generally occur one at a time. A President normally will not know if there will be any more vacancies in his Term. Creating a group with diverse experiences can work if you are selecting the entire group at once, like college admissions officers creating an entering class with two shortstops, four members of the math club, and two oboe players. But it's a lot harder when a President has only one pick.

  Second, I think it's worth questioning the ideal story of how diverse experiences make a difference at the Supreme Court level. For example, Justice Souter had several years of experience as a state trial judge. Off the top of my head, though, I can't tell how this impacted his work. It's not like I ever expected Justice Souter to have an unusual influence or to bring unusual insights in decisions that involved state court trial proceedings. Justice Blackmun was a math major, but I don't see his opinions in technical or mathematical areas any better than any other Justice. Justice Breyer has the most legislative experience, having worked in the Senate; I don't think his statutory opinions are particularly different than those of any other non-textualist judge.

  In short, it might be that diverse experience leads to better insights, and that candidates with a particular past will be better at certain cases or have a deeper understanding than others. But there's considerable evidence that this often isn't the case, which should temper the focus on particular experiences at least somewhat.

Google Books Controversy Heating Up:

I suspect that we're going to be hearing a lot more about the Google Books settlement over the next several months. There will be several hearings about the fairness of the settlement terms in the Fall; the Supreme Court will be hearing the case of Reed Elsevier v. Muchnick, which raises many of the thorny jurisdictional issues that are embedded in the G.B. settlement; and a number of challenges to the settlement are already being prepared and will likely be filed over the next few months (see below).

It's a very complex set of issues, and I don't have a simple or straightforward position on it myself. To begin with, it is, technically, very complicated; to my eye, the best summaries/discussions of the details come from Fred von Lohmann over at the Electronic Frontier Foundation, and James Grimmelmann at NY Law School; well worth a visit if you're interested in learning more about what's going on.

Personally, I don't have a huge amount of sympathy for those who complain about the "unfairness" to copyright holders in Google's plans [see Robert Kunstadt's rather intemperate remarks in the National Law Journal here].

"Google took from the authors first—and belatedly now seeks to legitimize its misconduct by this settlement. Instead, Google should be punished hard, to deter such schemes. Otherwise, Google will succeed where Napster failed. Respect for IP law—as well as the rule of law in general—will decline. If an enterprising homeless person pitches a tent in Google's corporate parking lot for a 'Thomas Jefferson Used Book & CD Flea Market,' will Google let it stay there (since it only occupies part of the lot)? How about for a profit percentage as sweetener to induce "settlement"?

Google's conduct fits the definition of a public nuisance, and may be enjoined as such. It imposes a small harm on a large number of authors. The harm, copying only a portion of each work, is calculated so as not to make it worthwhile for an author to incur the expense of suing for injunctive relief. Google, despite its cute slogan "Don't be evil," is like a large paper mill releasing noxious gas over a wide area, sufficiently diluted that you smell it but faintly. Like those banks that are now "too big to fail," is Google really "too big to infringe"?

That is pernicious nonsense. The Google Books project has the potential to become one of the great information-gathering activities in human history -- every book (just about), at everyone's fingertips, searchable and instantly accessible from any corner of the globe. And we want to deter that?? Because that will decrease "respect for IP laws"? Talk about putting the cart before the horse!! Because it will inflict some sort of terrible "harm" on copyright holders? I'm not terribly sympathetic. Copyright, as Jefferson stressed so long ago, is a "social right" -- given by society because we feel it serves useful ends (incentivizing authors to produce new creative works). When it ceases to serve those ends, it should be eliminated. The Google Books project is another example of how copyright interests, these days, do little more than obstruct useful innovations. There are 7 million (or more) out of print books that Google would like to place on-line where they can actually be accessed and read. I'm sorry if that infringes someone's copyright, but really -- in what way is society better off, exactly, from recognizing the copyright holder's rights in this circumstance?

But that's not to say there aren't worrisome things about the project. Grimmelmann points to some of them, particularly related to antitrust concerns, in his paper. And separately, I've joined a group of authors, organized by the EFF and Stanford's Center for Internet and Society, that is preparing to challenge the settlement on privacy grounds. As it stands, Google will be able to obtain a staggering amount of information about what you and I (and everyone else in the world) is reading, and I want to be sure that that information is destroyed before it can be misused. More on that side of the issue in a later posting.


The Right Experience for a Supreme Court Justice: I've been thinking about what kind of experience is helpful for a Supreme Court nominee. I have come up with the ideal experience the President should seek.

  First, it would be very helpful for the candidate to have a science background, all the better a Ph.D. After she gets her Ph.D., she should spend a few years volunteering to help the poor to get a better sense of poverty in our society. She should then go to law school. After law school, she should clerk for a magistrate judge, a bankruptcy judge, a district court judge, a court of appeals judge, and a Supreme Court Justice. That way, the nominee will have a good sense of what it's like at all stages of the federal court system.

  The candidate should then have considerable practice experience. In particular, the candidate should spend at least 5 years at a large law firm, followed by 5 years as a solo practitioner. That way she'll really understand legal practice. But that practice would be mostly civil law, and Supreme Court Justices also deal a lot with criminal law. The candidate should therefore get experience as a state prosecutor and then experience as a federal prosecutor. After that, the candidate should obtain experience in criminal defense, by spending a few years as public defender in the state system and a few years as a public defender in the federal system.

  Of course, at this point the candidate won't have any Supreme Court experience, and that would be very helpful for a prospective Justice. So I would want the candidate to spend a few years as an Assistant at the SG's Office to understand Supreme Court practice. I think it would also be helpful for the candidate to get experience understanding the executive branch, so I want the candidate to then spend a few years at the Office of Legal Counsel and at least a year in the White House Counsel's office. Experience in Congress is very helpful, too, and a few years as counsel to the Senate Judiciary Committee would be an excellent way to get that.

  Next the candidate needs prior judicial experience. The ideal candidate would have a few years of experience as a state trial judge, followed by a few years of experience as a state appellate judge. That way the judge understand law "in the trenches", and also understand the importance of state courts. Next, the candidate should get experience as a federal judge, too. Ideally, the candidate would be a federal trial judge for a few years and a federal court of appeals judge for a few years.

  There's only one more stage at this point: The ideal candidate would have a sense of the political system. We don't need Justices who are pointy-headed beancounters; someone with political experience would be great. In particular, I'd like to see a candidate who served a few years in the state legislature, followed by a few years in the House of Representatives and a term or two in the Senate. It would also be great for the candidate to then have a few Presidential runs and perhaps end up on a national ticket. A term as President or even just VP would be ideal, but then that may be asking too much.

  At this point the candidate would be about 147 years old, an much of her relevant experience would be outdated. The science Ph.D. would be about 120 years past, and the world of legal practice she experienced as as lawyer would be a century outdated. So I would want her to do it again, except this time super-quickly, like a month per job or something, to get a good refresher on things.

  By then there will be a magic pill you can take that can make you any age you want, so we would give her that pill and make our 153 year old Justice a very youthful 32 years old. And that 32 year-old would be the perfect Supreme Court nominee.

Tintin Buffs

should check out Acquired growth hormone deficiency and hypogonadotropic hypogonadism in a subject with repeated head trauma, or Tintin goes to the neurologist:

We describe the unique case of a public figure who is well known for having delayed pubertal development and statural growth (Fig. 1). We believe we have discovered why Tintin, the young reporter whose stories were published between 1929 and 1975, never grew taller and never needed to shave....

Thanks to my friend Josh Bornstein for the pointer.


Hawaii Legislature Proclaims Sept. 24, 2009 as Islam Day.

For the resolution, see here; for a brief story about the vote, see here. By way of comparison, here's Pres. Reagan's 1983 Year of the Bible proclamation, then-Gov. George W. Bush's 2000 Jesus Day proclamation, and excerpts of Nebraska Gov. Michael Johanns's 1999 March for Jesus Day proclamation.

Thanks to Religion Clause for the pointer.

UPDATE: Thanks to Margaret Schoen for letting me know about the Jesus Day proclamation; I added it to the last sentence in the first paragraph, as well as the Nebraska March for Jesus proclamation that I also found.


Twitter: Reader "Twitter" asks in a comment thread:
Orin, Are you twittering yet? What's ur twitter-name?
A few days ago, I created a Twitter account and posted my first tweet. It was indeed profound: "Testing twitter to see if this is worth doing."

  I really don't get what I'm supposed to do with Twitter, at least given that I already seem to blog all day. Twitter just seems like a blog where you can't write anything in detail, and I don't see what that adds to the VC. So I'm not sure I'll do a lot or even anything with it. But hey, if you're one of these Twitter people, and you want to follow me, feel free to follow me at "orinkerr".

Rosen v. Sotomayor: The Footnote Question:

Michael Dorf has an interesting post on the "inexplicable error" in Jeff Rosen's article about potential Supreme Court nominee Judge Sonia Sotomayor. Dorf concludes: "either Rosen didn't read or didn't understand the Juncal footnote, or he did read and understand it but chose to mischaracterize it as a means of putting his own substantive point in the mouth of Judge Winter. Pick your poison." See also this post by Darren Hutchison.


In Honor of the Day of Victory:

[UPDATE: Comments enabled; sorry for the initial glitch that kept them from being open.]

Saturday is the Russian version of V-E Day (known as the Day of Victory there). Friday is of course also the American V-E Day; and I certainly honor the sacrifices of the Americans and the other western Allies, recognize that the west did much to defeat the Nazis, condemn pretty much all the other actions of Soviet Russia, and recognize that the Soviet leadership helped the Nazis in various ways (both through the Molotov-Ribbentrop Pact and through purging some of their leading military men in the years before the war). Still, the fact remains that the Soviets and Soviet soldiers bore the lion's share of the European war's casualties, inflicted the lion's share of the casualties on the Nazis, and should probably be credited with the hardest and most important victories.

In honor, then, of the Day of Victory, I thought I'd blog a link to The Ballad of the Soldier's Wife, by Bertolt Brecht, which starts like this:

What was sent to the soldier's wife
From the ancient city of Prague?
From Prague came a pair of high heeled shoes,
With a kiss or two came the high heeled shoes
From the ancient city of Prague.

Click here to read more.

I remember hearing this several years ago and being quite struck by it. It's hard to effectively pull off poetry condeming the enemy and praising his death; there's too much of a risk that the tone will come across as too strident. But this seemed to me to work very well. Perhaps it was helped by the direct emphasis on plunder rather on killing (though the killing is of course not far in the background).

* * *

Now to turn from honoring the Day of Victory to some thoughts on the poem's history: It turns out that the ballad was first published as a poem in 1943, in a collection of many poems by many authors, called War Poems of the United Nations. The Day of Victory was still far in the future; the Introduction, for instance, spoke of how various 1930s conflicts were "as much part of the great crisis of our time as what is happening today in Africa." The German version of the song was sung by Lotte Lenya on a propaganda shortwave broadcast in 1943; the music was by Paul Dessau, though the later versions of the song were with Kurt Weill's music.

The poem was apparently translated by the editor of the collection, Joy Davidman, and found in reading it that my reactions were subtly different from those on hearing the song. Part of this might have stemmed from the original wording, which didn't strike me as forcefully, whether because Davidman wasn't as good a translator as later translators, or because the cadences expected of written verse might be different from those optimal for the song.

But part, I think, came in seeing the poem from the perspective of 1943, rather than from the perspective of after the war, which is when I had thought it had been written. In 1943, it's still a prophecy, and one with an air of wishful thinking to it. The sense of confident looking back and writing an account of (and judgment on) what had actually happened is missing. I wonder if others share my reaction.

The poem was, of course, written long before Brecht's very late disillusionment with Communism; another poem two pages earlier in the anthology illustrates this, with the stanza about

The bloody fool
who did not know the road to Moscow was long,
who did not know the eastern winter was cold,
who did not know the will of workers and peasants
to defend their land, the first of lands
where man is not a wolf to man.
There were fools to spare in that time, it appears. But while this tells us something about Brecht, I try to avoid having the author's diminish my enjoyment of his other works.


The Triumph of Good over Evil! (1-1)

It was, quite possibly, the most extraordinary moment in sport that I have ever experienced (and I’ve been around, and experienced [live or on live TV] some pretty fabulous moments – Mazeroski’s home run, Gibson’s home run, Fisk’s home run, Laettner’s buzzer-beater, that crazy shot Jordan hit to beat Utah, Dwight Clark’s catch, Franco Harris’s catch . . . hell, I’m old enough to remember [just barely, I admit, and it’s one of those memories I’m not actually sure I had first-hand, but still ...] Sandy Amoros’ catch!). And, in a nice touch that soccer fans will understand and appreciate, it occurred in a game that ended up tied 1-1!! Even those of you who don’t follow international soccer – and please, there’s no need to repeat the usual “Here’s why soccer really sucks,” and “Americans will never love soccer” comments – should appreciate this; it was a major moment in international sports history, of spectacular significance to maybe only a billion or so of your fellow-citizens of the planet, so it’s worth knowing a little about what happened.

Here’s the set-up: Barcelona vs. Chelsea in the semifinal round of the European Champions League, the big European club (as opposed to national team) competition. At stake was a place in the ECL Final in Rome on May 27th against Manchester United – with the exception of the World Cup final, the most important (and most-watched) sporting event on Earth. It’s the “second leg” of a two-game series – the winner to be determined by the team with the most goals on aggregate – or (importantly, as it turned out), if the two teams ended up tied on aggregate goals, the team with the most “away goals.” The two teams had met for the first leg last week in Barcelona, and played to a 0-0 draw (more on that below).

Barcelona is a difficult team not to adore – and I admit that I adore them. The soccer they have played this year is at a level far beyond anything I have ever seen before, and they are stunning to behold. It’s not just that they’ve been winning a lot (though they have been winning a lot); it’s that they’ve been winning by playing with truly extraordinary grace and beauty. [The pure aesthetics of soccer is something that is probably impossible to describe to those who don’t watch the game, but every soccer fan understands what is meant by “beautiful soccer” – crisp passes, intricate movement, brilliant improvisation, sensational technical skills with the ball at one’s feet, all 10 field players moving together in an unscripted but magnificent ballet – and no team plays (or, quite possibly, has played) more beautiful soccer than Barcelona has played this year.] And beyond just the magnificence of their play, Barcelona’s a hard team not to love. Their history is glorious and inspiring; one of the few things Spaniards could do to protest Franco’s fascism without risking imprisonment or death was to root for Barcelona, inasmuch as it was well-known that Franco was a fanatic supporter of Barca’s great rival, Real Madrid. And with every big international soccer club selling off space on their jerseys and their stadiums to the highest bidders, Barcelona remains the only club in the world that has no advertising on their shirts – in fact, in a deal they cut two years ago, they agreed to put the “Unicef” logo on their shirts and to pay Unicef for the privilege. Nice.

Chelsea has entered the top ranks of European clubs more recently, after being purchased by Roman Abramovic, the Russian oil billionaire, who has spent wildly (and usually wisely) to put together his team. They made it to the finals last year, only to lose to Man. U. in the most heart-breaking way imaginable – a penalty shoot-out in which their captain and leader, John Terry, only has to convert a penalty kick for them to win, and Terry’s feet slip out from under him and he sends the ball wide of the net . . . They came to Barcelona last week determined to slow down the incredible goal-making machine that is Barcelona FC, and they succeeded – with some of the dullest and least imaginative soccer one can imagine. That’s one thing about soccer: if one team gives up any hope of actually trying to score, it can go into a defensive shell, keeping everyone on the field back in the defensive third, and it’s very, very difficult for the other team to get through to score. The soccer gods don’t like it, but Chelsea seemed to have decided that was their only means of getting through to the final, to play for a 0-0 draw. Disgraceful, but successful; they got their draw, after a dull and lifeless 90 minutes.

So the scene shifted to London yesterday for the second leg. Again, Barcelona’s in control of the action, Chelsea’s sitting back in their shell ... But in the 9th minute, on one of Chelsea’s rare forays into the Barca half, the ball ricochets to the foot of Michael Essien, Chelsea’s wonderful Ghanaian mid-fielder, and he smacks it – on the volley, with his off (left) foot, from 25 yards out – into the back of the net. A true wonder goal! Golasso! And Chelsea’s up 1-0, and now they really go into the shell – if they can just hold on, they’re off to Rome.

Barca attacks, and attacks, and attacks, wave after wave after wave, but can’t break through. They just need one goal - because of the away goal rule, a 1-1 tie and Barcelona is the winner. But they can't get it. The frustration, for Barcelona fans, was excruciating – I had to turn away on several occasions, it was just too painful to watch.

And then all was surely lost for Barcelona – in the 61st minute, one of their defenders was given a red card for a foul that, as the replays showed, he clearly did not commit. It was a howler of a bad referee decision – and it seemed to seal Barcelona’s fate, for if they couldn’t score (and it was now 90+61 minutes without scoring against Chelsea in the two legs) with 11 men, how could they score with 10?

[That’s another thing about soccer – Nick Hornby, in his fabulous book Fever Pitch, went off on a rant about the perfect soccer game, and he got it perfectly right: Your team, on the road, comes back to win 3-2 after trailing 2-0 ... there also has to be a terrible referee’s decision against you [in the best of all worlds, a terrible decision that gives the opposing team a penalty kick, which they then fail to convert] because that will sweeten further your delight at the end . . .] O YE SOCCER GODS – HEAR OUR PLEA!! HOW CAN YOU SO BE SO CRUEL, PUNISHING THE TEAM THAT HAS DONE YOU SUCH HONOR??

At the close of the 90 minutes, the referee signals for 4 additional minutes of “extra time.” And in the 3rd minute, it comes – a beautiful cross into the box, the ball falls to the great Lionel Messi, who pushes it wide to Andres Iniesta – a Barcelona boy who grew up with the Barca youth team and is an integral part of the heart and soul of the squad – and from 20 yards out, he cracks it into the net.

It is simply impossible to describe what that feels like, when that ball goes in, so I will not even try.

But if you’re lucky enough to find yourself in Barcelona this summer and want to make some friends, head for any bar, buy a glass of beer, and stand up and shout: “A Andres Iniesta!!” Trust me, you’ll make everyone there very happy, giving them an excuse to relive that moment.

Update: A word about the refereeing errors, about which many of you had comments. I completely agree - this was a very badly refereed game. That Chelsea supporters feel so-o-o-o aggrieved, however, is laughable — Barcelona had a man sent off for nothing. Pique's handball in the box should have been called, no doubt about it — so that might balance things out a bit. But the other so-called penalties that Chelsea fans are moaning about this morning were dubious at best — in particular, the final "handball" on Chelsea's final attack [the non-call that had Michael Ballack freaking out and screaming at the referee] was a very good no-call — the replay showed as clearly as you could wish for that there was no foul there.

Update #2. One commenter perfectly summarizes the issues and the debate here -- and by an astonishing coincidence, he just happens to be my son. [A first for the VC, I believe - inter-generational commenting . . .]


"Feds Want 3 Years in MySpace Case": The St. Louis Post Dispatch has the following update about the Lori Drew case.

America's Leading Apologist for Hamas,

James Earl Carter, wins the Mahatma Gandhi Global Nonviolence Award 2009.

Religious Accomodation and Union Dues:

Must a union make a reasonable accommodation for a union member who has a religious objection to paying union dues? And what sort of accommodation would suffice? These issues are addressed in an interesting opinion from the U.S. Court of Appeals for the Sixth Circuit this morning, Reed v. International Union. Judge Batchelder delivered the opinion for the court, affirming summary judgment for the union. Judge Guy wrote a separate opinion concurring in the judgment. Judge McKeague dissented.


For Diversity on the Bench:

Senior district court judge Ann Aldrich and her law clerks call for an important type of diversity on the Supreme Court:

TO succeed Justice David Souter on the Supreme Court, President Obama should select a nominee with experience that no other sitting justice has — service as a trial judge on a federal district court. . . .

Why is this an issue? Most Supreme Court cases are initiated in district courts, and many end up back there when they are remanded for proceedings that are consistent with the high court’s ruling.

While the court’s opinions affect the day-to-day operations and decisions of the district courts, many of the justices lack the practical experience that is necessary for providing district courts with clear and workable directives.

I think they make a very good point. I also think it would be valuable if someone on the court had been a criminal defense attorney and litigator (as opposed to an appellate advocate). Appellate experience is important -- it's good seasoning for a potential Supreme Court justice -- but so is experiences with how the legal system operates at the ground level.


Admissions at Duke University:

Taxprof links to a paper that uses Duke University undergraduate admissions statistics and student performance to shed light on the "mismatch thesis." One interesting thing about the results is that admitted Asian American students scored higher than whites in every category save one (a slightly lower score for "personal qualities"). And they also had lower incomes than admitted white students. And they wound up with higher GPAs than their white counterparts. In short, it appears to be significantly harder to get into Duke if you are of Asian descent than if you are white [though of course it would require complex statistical analysis of the entire data set to truly be confident of the inference].

The Ever-Changing Bailout Game:

Thomas Cooley, dean of NYU's Stern School of Business, writes:

We are entering a precarious phase of the economic and financial crisis. On the one hand, there are encouraging, if weak, signs of an economic recovery. There is evidence of a revival in lending. Consumer confidence is improving quite a bit both in the U.S. and Europe.

But on the other hand, lots of things are not happening. Many investors are sitting on the sidelines, as is much money. Why? Because it is impossible to know what the rules of the game are. And that's because the administration and the Congress keep changing the rules in capricious ways in pursuit of larger political objectives. . . .

Why would private capital get involved when the rules of the game are so capricious? No one would take that gamble when it is clear that, in dealing with the government, private capital will always take a back seat to politically powerful entities.

And that is the larger worry that current policy has neglected. Firms and markets can function quite well within a framework of rules. Indeed, rules are good for the orderly conduct of business. But when rules get imposed or dispensed with willy-nilly in the interests of politics, it is very dangerous. We have should have learned this lesson long ago.

Set aside the merits of various individual policy decisions -- whether made by this Administration, the Bush folk, or Congress. When the rules of the game can change at any moment, essential players won't join the game -- and that's no good for any of us.


No Bar Discipline for Yoo:

An interesting report from Jan Crawford Greenburg:

News reports yesterday made much out of the fact that a draft report about the so-called “torture memos” doesn’t recommend criminal prosecution for DOJ officials John Yoo and Jay Bybee, but instead would only refer them to their state bars for disciplinary proceedings.

Setting aside that my friend Mike Isikoff reported this back in February, the flurry of reporting is baffling for another reason: It appears John Yoo cannot be disciplined or disbarred for writing those memos, even if the Office of Professional Responsibility says it has evidence he should be.

That’s because OPR’s five-year investigation—carefully timed for release only as Bush was leaving the White House and Obama was coming in—dragged on too long. As a result of that timing, OPR blew the deadline for referring possible misconduct allegations against Yoo.

As for Bybee, Greenburg reports that neither DC nor Nevada has a comparable limitation period, "But how strange would it be to only refer Bybee, when his involvement largely amounted making a few edits and signing Yoo’s legal work?"

John Yoo is admitted to the bar in Pennsylvania. But the Pennsylvania Disciplinary Board, which would investigate any complaints against him, imposes a four-year limitation for complaints.

Yoo wrote the memos in 2002 and 2003. This is 2009. You do the math.


Oprah's Irresponsibility:

Apparently Oprah Winfrey is giving a platform to Playboy-bunny-turned-MTV-starlet-turned-anti-vaccine-activist Jenny McCarthy, and plans to help her have her own talk show. This is the height of irresponsibility. As Arthur Allen explains:

Celebrities take on all kinds of causes. They campaign for presidents, and they rally to save the women of Darfur and the hungry masses of Bangladesh and Africa. Some of these appearances may do some good, while others are merely benign grandstanding. But wealthy, toothsome, vivacious, and sexy Jenny McCarthy's impassioned campaign is actually harmful. Why? Because she is spreading dangerous misinformation—and that could bring some once-controlled diseases back into play.
Or, as Gawker puts it, "Oh, good, Oprah is going to give Jenny McCarthy a talk show, because she wants your kid to die of the measles."

Here's a potential silver lining: McCarthy's quite dingy and can't spell to save her life -- "grimmess" for "grimace" in this blog post -- so maybe people will stop taking her anti-vaccine ravings all that seriously and the Oprah-enhanced part of her career will be short-lived. For our children's sake, I hope so.


Cashing In On Litigation:

Interesting article in Fortune on litigation hedge funds:

Launched in December 2007 by two lawyers, Richard Fields and Timothy Scrantom, Juridica gives money to Fortune 500-size companies or their lawyers in the early stages of corporate lawsuits in exchange for a share of the payout if the plaintiffs win or settle. (Think of it as a different form of investing in distress.)

With $200 million under management, Juridica has invested in 17 suits so far - and is two for two in decisions. Though Fields, 53, and Scrantom, 52, are based in New York City, they raised money by selling shares on the London Stock Exchange's small-companies market. The fund paid a dividend of about $5 million to investors last month after a big suit was settled. Juridica signs nondisclosure agreements, so it can't name names, but this one involved one hedge fund suing another for stealing an employee. Shares are up about 20% since the launch.

Investing in litigation is a small but growing asset class - valuable because the investments' performance isn't tied to the economy or stock market. Companies like LawCash (of late-night TV ad fame) front small sums for personal-injury suits, and several small hedge funds have emerged to back them too. In the tech world, meanwhile, investors like Nathan Myhrvold, former CTO of Microsoft, buy disputed patents in hope of using them to earn licensing fees.

Not John Engelman (I Think):

Since my tête-à-tête with John Engelman responding to his challenge that I produce evidence that Dartmouth used to have a speech code (see here and here) I've received several emails asking me about various strange anonymous postings on various blogs and websites that have led people to wonder whether those too are from John Engelman. Often these have come from blog administrators who have posted on various issues related to Dartmouth's governance and are shocked by the vitriol and personal attacks that a particular anonymous commenter has generated in response. Moreover, the comments are reminiscent at first glance of Engelman because of their bold denial of established fact and their abusive tone.

It certainly seems possible that these anonymous comments spread around the Internet belong to John Engelman, the hypothesis here, for instance. I don't know Engelman, but reading his letter and other things he has written, however, his commentary seems more slapdash (like the bold denial of a speech code that was easy to prove wrong) than the sort of tightly-written sophistry of the anonymous commenter referenced above.

In response to some of these inquiries I've asked a few other people and they too doubt that Engelman is the anonymous Dartmouth commenter. They suggest as a more likely candidate a fellow named Scott Meacham, Dartmouth Class of '95, a lawyer of sorts for the National Legal Research Group. From its website, it appears that the National Legal Research Group is an operation that writes legal research memos for lawyers. The tendentious nature of the anonymous commenter's legal arguments suggests someone trained in law but not very accomplished at it.

Meacham apparently is well-known to those who participate in the blog discussions of the Dartmouth Association of Alumni blog and he is said to be easily recognizable when he comments elsewhere, even anonymously. The arguments made by the anonymous commenter on other sites also mirror the arguments he makes under his own name on the Alumni Association blog. He seems to be sort of a cyber-stalker who immediately shows up at any blog or website anytime Dartmouth governance issues are being discussed and launches personal attacks on anyone who disagrees with him combined with a raft of disingenuous arguments. Those who interact with him on a regular basis report that he is especially obsessed with attacking little old me, which a quick review of his voluminous bile-filled non-anonymous posts confirms. It appears that I've done something to upset Mr. Meacham greatly.

The anonymous commenter attacks Trustee T.J. Rodgers as well, suggesting that perhaps I am not as special as I thought. He claims, "T.J. Rodgers is well-known for his fiery and wild off-the-cuff remarks, and he is completely unreliable as a source of anything to do with the board's rules or processes." ("Well-known"?). He adds: "Rodgers's own commentary is so fancifully inaccurate as to be worthless as a source of information in this controversy, and you would have been wise not to quote it." From what I know of Engelman, he doesn't seem like the sort of guy who would insult T.J. Rodgers's integrity with no evidence to support it, although it seems in keeping with Scott Meacham's rhetorical style and is consistent with some of the things Meacham said under his own name here, saying, for instance, "I can't figure out why he [T.J.] is so content to mislead alumni and stretch the truth." The content is similar--the tone is just much more aggressive and insulting (as might be expected) in the anonymous post.

So, for what it is worth, those who are familiar with both Engelman and Scott Meacham, Dartmouth '95, conclude that the anonymous commenter sounds more like Meacham than Engelman.

On the other hand, Engelman and Meacham do not exhaust the potential list of candidates who could be the anonymous Dartmouth commenter, although they do seem to be the most plausible candidates. Paul Mirengoff has elsewhere discussed some of the things that members of the Dartmouth establishment have said about those who disagree with them, suggesting an ample list of possibilities.

Wednesday, May 6, 2009

[Adam Mossoff, guest-blogging, May 6, 2009 at 11:56pm] Trackbacks
Patent Thickets, Bad Patents, and Costly Patent Litigation:

Some might conclude that “patent trolls” are a more serious problem today because of larger problems in patent litigation generally. We often hear reports of an explosion in patent litigation, problems with determining whether patents are valid, problems with determinig patent boundaries, and commercial products being held hostage to the threat of infringement litigation. Such complaints are particularly loud in the computer industry, as supported by academic commentators.

Here, we must be especially cautious in assuming that modern problems are necessarily different from those experienced in yesteryear. Of course, it goes without saying that there are differences between the 1850s and today; in fact, there are differences between 1995 and today. There are always differences between two distinct points in time. So it's important to always figure out if these are differences without a distinction, and, even more important, if there are any similarities.

In this respect, recall that many facets of the Sewing Machine War reflected many of the purportedly new problems with patent litigation today, such as massive and costly litigation and the threat of injunctions. And it’s not just cases from the Sewing Machine War that reflected these and other so-called modern concerns. As someone who has been immersed in historical patent jurisprudence for much of his academic career, including having read, among other things, all patent decisions in the Federal Cases reporter (approximately 1,460), I often hear today the echoes of long-forgotten patent disputes.

In 1862, for instance, a judge expressed his frustration at inventors being “frightened off the course by threats of ruinous litigation,” and that in the particular case before him, the “astute counsel and experts have been employed to surround this machine or invention ... with a fog of nebulous rhetoric, and to make this concrete machine appear a transcendental abstraction ....”

In 1855, in the midst of the Sewing Machine War, a judge instructed a jury in a patent trial unrelated to the swirling disputes over the sewing machine:

For the maintenance of his right [an inventor] is subjected to legal controversies, which, not infrequently involve him in an expenditure beyond the amount of his profits. Inventors and discoverers are proverbially poor. It is said that the man, by the operations of whose genius the streets of the city of London were first lighted, was a wanderer and a beggar in the streets.

In 1877, another judge complained in a patent decision that “litigation in regard to patents has been found so expensive and so wearisome to the courts.” Such problems arose from how each “contest involves an immense sum in value, and where the question turns mainly upon opinions of experts, there is no difficulty in introducing any amount of them on either side and yet this class of cases is one in which there is value to be attached to experts.” He further noted that it “is a sad thing to say that perhaps no class of cases coming before the courts have as much fraud, perjury, and wicked conduct, as patent cases. ... there is a large amount of false swearing and corruption in them.”

If anyone has a tendency to commit the anachronism of thinking that the inventions of yesteryear were simple compared to today, they need look no further than an 1855 decision from Justice Grier, riding circuit, in which he observed:

It is no reflection on juries or trial by jury to say that many disputes about the originality and infringement of patents depending upon complex mathematical calculations, upon a knowledge of the principles of chemical science, and of mechanical philosophy, cannot be satisfactorily decided by the verdict of twelve men, a majority, if not all of whom, have no knowledge or experience on the subjects they are called to decide on.

And, in 1841, Justice Story, one of the principal architects of American patent law, observed how “Patents and copyrights approach nearer than any other class of cases ... to what may be called the metaphysics of law, where the distinctions are, or at least may be very subtle and refined, and sometimes, almost evanescent.”

These are just a few of the many long-forgotten patent cases I have uncovered in my research (some of which I discuss in a previously published article) and which warn against several anachronisms in patent law today. These nineteenth-century complaints remind us that the inherent technical and legal problems in assessing complex innovation — such as distinguishing between different complementary contributions to a commercial product, determining imprecise contours of a patented invention, and litigating a case in a court system that moves at a plodding pace — are long-standing features of the American patent system.

The American patent system, as economist B. Zorina Khan has explained, was tremendously successful in the nineteenth century — as compared to older and more established patent systems in England, Germany, and France. As Professor Khan has shown, the American patent system excelled precisely because it did what none of these other patent systems would do: It secured inventions as property rights within an institutional framework governed by the rule of law.

It was within this framework that the first American patent thicket arose from the incremental invention of the sewing machine. It was this framework that also provided for the resolution of this patent thicket by the sewing machine patentees — exercising their rights of use and disposition in their property by contracting to their mutual benefit.

In my next (and final) post on the sewing machine patent thicket, I will raise an issue that is not yet discussed in my paper — antitrust. The impact of antitrust doctrine on how patent-owners contract with other patent-owners may create significant variances between the nineteenth century and today on how patent-owners may resolve patent thickets. I am still researching the relationship between patent pools and antitrust, and so I am especially keen on receiving feedback from the readers of this series.


California Local Government Uses Threats Against Property Rights to Force Owners to Give up Voting Rights:

Tim Sandefur of the Pacific Legal Foundation has an interesting post on an important case involving property rights and voting rights that he is litigating before the 9th Circuit:

Tomorrow I will be arguing the case of Griswold v. City of Carlsbad in the Ninth Circuit Court of Appeals in Pasadena, California. This is an astonishing case in which city officials forced the Griswold family to give up their constitutionally protected right to vote in exchange for a building permit. Hard as that might be to believe, it is actually not unique: it's actually quite common for local governments to abuse permits by forcing property owners to give up money or land or other rights.

Here's how the law works. Under the California Constitution, property owners are entitled to vote on whether their property should be assessed for local "improvements"--things like street lights or sidewalks. These are technically not taxes, but "assessments," and the state Constitution prohibits the government from imposing these assessments without giving affected property owners an opportunity to vote on them. But what the city of Carlsbad decided to do was to force people to pay these assessments up-front (which is illegal). And if the owner can't afford this--in the Griswolds' case it was almost $115,000--then the owner must sign an agreement giving up the right to vote on these assessments . . . And this waiver actually runs with the land, meaning anyone else who buys the property is also not allowed to vote.

Amazing as it sounds, there are other similar cases going on right now. In the city of Santa Rosa, California, officials are forcing people to waive their right to vote on the annexation of their property into a local tax district, in exchange for building permits. That voting right is guaranteed by the state's "Mello-Roos Act." And we've heard of similar cases in Montana and elsewhere.

Sadly, local governments frequently force property owners to give up rights in exchange for these kinds of permits. What this means is that the government is essentially confiscating a person's property, and then selling it back to that person in exchange for their rights.

In the 1980s and early 1990s, the Supreme Court decided a series of cases that set limits to the power of government to use threats to development rights to force owners to give the government uncompensated takings (for example by banning development unless the owner gives the government a free easement). I discuss those cases in this article (pp. 10-13). Essentially, the Court ruled that local governments cannot use the threat of regulation to force owners to give up their constitutional right to compensation for the taking of their property. Presumably, the same logic should apply to government efforts to extort citizens into giving up their constitutional right to vote.

Cases like Carlsbad also create some perverse incentives for governments and property owners. For any individual owner, giving up their right to vote in a local assessment referendum is a small price to pay for avoiding the loss of development rights on his or her land. After all, the chance that any one vote will be decisive in an election is infinitesmally small. However, if a large number of owners act the same way, local governments can create an entire class of property owners who are ineligible to vote in assessment referenda and therefore easy targets for government revenue-raising schemes targeting them. The kind of extortion practiced by local governments in Carlsbad creates a collective action problem among property owners. Rational behavior by individual owners leads to a terrible collective outcome for the group. Realizing this, rational local governments have incentives to engage in this kind of extortion, as a strategy for reducing voter resistance to assessments by removing affected property owners from the electorate.


So Say There's a Pair of Identical Twins,

and they work for the same employer. Twin Richard is accused of serious misconduct; a TV story reports on the story, showing Richard's picture (which naturally looks just like twin Robert), and referring to Richard by last name (which naturally matches Robert's). Can Robert sue the TV station for libeling him, on the theory that many viewers might assume the story is about Robert?

You'd think that was a law school exam hypothetical, but it's a real case, Siena v. Meredith Corp., 2009 WL 1140531 (Conn. Super. Mar. 30). An excerpt:

These counts arise from three news reports and one “tease” broadcast aired on WFSB on February 27 and 28, 2006, concerning Richard Siena, the plaintiff's identical twin brother. Both the plaintiff, Robert, and his brother, Richard, were members of the Middletown police department (department) at the time of the broadcasts. The plaintiff and his identical twin brother both have similar hair styles and both have a mustache. While both brother's shared similar physical features and were employed as police officers, they had different ranks in the department and sexual orientations. The plaintiff, Robert was openly homosexual.

During the course of the broadcasts, the defendants reported that Richard Siena admitted to viewing pornography on a police department computer on numerous occasions while on duty and that the department disciplined him with a written warning but subsequently promoted him to lieutenant. The defendants reported that “Officer Siena” was investigated by the Middletown Police Department. The investigation was about pornography involving sexually explicit photos of young adult and teenage males and was referred to as kiddie or child porn during some of the broadcasts. Susan Raff, Dennis House and Jessica Scheider, codefendants and employees of WFSB Channel 3, identified the person who was the object of the news in several ways. They called him “Siena,” “Officer Siena,” “Rick Siena,” “Sergeant Richard (Rick) Siena,” and “Lieutenant Siena,” during the broadcasts....

The plaintiff does not dispute the accuracy of these broadcasts as they apply to his brother, Richard. Instead, he alleges that the defendants' reports injured him because they negligently, willfully, recklessly and/or intentionally caused viewers to believe that the plaintiff rather than his brother, was the subject of the department's investigation....

In the present case, the defendants' broadcasts specifically identified an individual officer at the Middletown police department as the subject of its pornography investigation. The plaintiff argues that a reasonable viewer could interpret the broadcasts to find that the plaintiff, and not his brother, was the subject of the investigation, and therefore the broadcasts were “of and concerning” the plaintiff. The defendant argues that no reasonable viewer could find that the broadcast was “of and concerning” the plaintiff as a matter of law. In this case, the question of mistaken identity is somewhat unique in that it involves identical twins. Under these unique facts, the court concludes that the issue of whether the broadcasts are “of and concerning” the plaintiff is the primary, material issue of fact disputed by the parties in this case and that it should not be decided as a matter of law because there is sufficient evidence for a jury to reasonably find that the broadcasts were “of and concerning” the plaintiff....

The comments to Restatement (Second), Torts § 564 (1977), provide an appropriate analysis for these unusual facts. Comment (b) states: “If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is not decisive that the defamer did not intend to refer to him.” Furthermore, “[i]t is not necessary that the plaintiff be designated by name; it is enough that there is such a description or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended.” ...

Having demonstrated that there is an issue of material fact concerning whether the broadcasts were “of and concerning” the plaintiff, the plaintiff has the additional burden of proving that someone who saw the defendants' broadcasts actually understood that the broadcast referred to the plaintiff.... [The plaintiff pointed to several such people. -EV] ...

Because the plaintiff is a public official, he may not prevail unless he can prove that the defamatory broadcasts were made with “actual malice,” which the United States Supreme Court has defined as “knowledge that it was false or with reckless disregard of whether it was false or not.” ...

The court concludes there is an issue of fact concerning whether the defendants acted with actual malice in their broadcasts, because there is evidence that the defendants were aware that the plaintiff had an identical twin brother and acted in reckless disregard of this fact by broadcasting the plaintiff's name and a picture that resembled the plaintiff in connection with a story about his brother without sufficiently distinguishing between them to viewers....

If anyone has a pointer to a publicly accessible copy of the full opinion, please pass it along. For now, I hope the excerpts do it justice.


Question for People Who Have Advertised on Blogs:

If you have advertised in the past on blogs, or have worked closely with someone has, do you have any tips for blogs that want to attract advertisers?

Naturally, we'd like to get some ourselves, but if we get zero advertising from here on out, we'll still be happy to blog away -- we've got cushy academic gigs that let us do this sort of thing as a hobby. But other bloggers might find this question even more important for them, since even a modest advertising income might make the difference between continuing and closing up shop. Any suggestions, whether for us or for others?


Bad Marriage:

So how does the last name Bad Marriage get started? I take it this fellow had it because of his father, and his father before him, but it had to begin at some point. What would the story be?

UPDATE: My old friend David Smallberg comes through:

From The Blackfoot Papers - Volume Four: Pikunni Biographies by Adolf Hungry-Wolf:

Contains the history of Bad Marriage, who was so named from the fact that he was married four or five times, but had the misfortune to lose all his wives by death as fast as he married them.

On the next page: Mike Bad Old Man. Next question for you folks -- who was the first Steptoe, and why? This site claims it "is topographical for a 'dweller on a Steep ridge of land,'" "derived from the Old English pre 7th Century 'steap', steep and the Old English 'hoh', heel, ridge of land, cliff, precipice" -- but that's no fun. Better answer, please.


Religious liberty and SSM, continued:

This post continues a discussion I have been having with five law professors (Tom Berg, Carl Esbeck, Rick Garnett, Doug Laycock, and Robin Wilson) who have proposed that state legislation authorizing same-sex marriage should include a special, broad exemption for religious objectors. The proposal, my questions about it, and the professors’ responses can all be found at one link here. I’ll assume interested readers (all six of us!) are familiar with the draft proposal and with the exchange so far.

The six of us appear to agree that, as Robin Wilson put it in her measured op-ed in the LA Times on Sunday, “It's possible to legalize gay marriage without infringing on religious liberty.” That separates us from the National Organization for Marriage and some others who warn of irreconcilable and intolerable conflicts between gay marriage and religious liberty. (I should add that I don’t know whether Berg, Esbeck, Garnett, and Wilson themselves oppose state recognition of gay marriage on other grounds. Laycock supports it.)

We do have some differences on the scope of the conflict and thus on the breadth of any needed accommodation. The bottom line is, I think there are genuine and substantial concerns about the reach of some state antidiscrimination laws. But I think the distinctive contribution of SSM to these conflicts has been small, is likely to remain small, and thus that the case for special religious exemptions in SSM bills is not very strong. While the substantive legal case is unproven, the political case is stronger. In that sense, I welcome this new focus in the SSM debate and I am grateful for the practical work being done by scholars like Berg et al. to alleviate the concerns of traditionalists while making space for the full protection of gay families.

I. SSM and religious liberty: the experience so far

Like much of the rest of the debate over the effects of gay marriage, the question whether SSM threatens religious liberty – either by itself or in combination with various state antidiscrimination laws – is no longer a wholly theoretical one. We have now had full gay marriage in Massachusetts for five years. We have had gay marriage or the legal equivalent of it in Vermont since 2000, in California since 2005, in Connecticut since 2005, in New Jersey since 2006, in New Hampshire since early 2008, and in Oregon since early 2008. (Other states have formally recognized same-sex relationships, while granting a much more limited set of rights: Washington (2007), Maine (2004), Hawaii (1997), Maryland (2008), and D.C. (1992).) I leave out Iowa (2009) and Colorado (2009), where recognition is still fresh.

Just counting the pre-2009 SSM and civil-union states, covering about one-fifth of the U.S. population, that’s a combined 27 years’ worth of experience fully recognizing gay relationships. Each of those seven states also has broad laws forbidding discrimination on the basis of sexual orientation in areas like employment, education, housing, public accommodations, and so forth. Each of those states also prohibits discrimination on the basis of “marital status” in housing and/or employment.

In these seven states, tens of thousands of gay couples have been married, civilly unionized, or domestically partnered over the past decade. They have had ceremonies, selected caterers, rented halls, ordered flowers and invitations, been fitted for dresses and tuxes, chosen professional photographers, hired clergy and non-clergy alike to officiate, gotten licenses from state bureaus, rented apartments together, adopted children, enrolled their kids in public and private schools, claimed health benefits for their spouses, sought employment to support their families, trudged through relationship counseling, and done every other ridiculously expensive and anxiety-laden thing married people do.

The opportunity has certainly been there for massive legal conflict. Yet the legal conflicts between gay couples and religious objectors – all under pre-existing anti-discrimination laws – have been very few. I can find no reported decisions, for example, where a small landlord refused to rent to an unmarried gay couple, much less a married one.

And the number of these conflicts in which the state’s formal legal recognition of the gay couple determined the outcome is . . . zero. The number of cases in which the existence of a gay marriage or civil union defeated an otherwise meritorious religious-freedom claim is . . . zero. The number of cases in which the absence of a gay marriage (or civil union) relieved the religious objector of a non-discrimination obligation is . . . zero.


Query About Posting Old Cases:

I just ran across an interesting 1818 case — a prosecution of Robert C. Murray, which might have been one of the earliest blasphemy opinions in the U.S., and a worthy addition to the classic Ruggles / Updegraph / Kneeland troika that is often cited on such matters. (Murray followed Ruggles but preceded the other two.) I can have it typed in and posted, but I'd like to make it as available as possible to other researches. And I've found the same with regard to other cases that aren't available on the various computerized databases, whether because they were only published in newspapers (such as this case) or in the few reporter volumes that aren't yet on Westlaw.

Are there any repositories for such cases that some law schools or other organizations operate? Have any of you had success with getting Westlaw and Lexis to add such cases to their collections? Is the best bet to see whether some journal might publish them? Or do you have any other suggestions? Thanks!

UPDATE: Thanks to the commenters who pointed out that I should also post somewhere the PDF of the original pages, for those who want to check the originals. I'll do that, unless they're already available at some database (such as America's Historical Newspapers) that is generally accessible to university libraries (even if only by a subscription that most major universities have).


Lupu on "The Blossoming Union of Same-Sex Marriage and Religious Freedom": My friend and colleague Chip Lupu has a very interesting guest post on that topic over at Concurring Opinions. The introduction:
After approval of Proposition 8 in California last fall, who would have expected to find the movement for same-sex marriage and concern for religious freedom on common ground in the spring? As legislatures in Vermont and Connecticut have just demonstrated, however, a long-overdue reconciliation between claims of marriage equality and those of religious liberty is there for the taking.

Justice Ginsburg Speaks to Press About Pending Cases, Urges Nomination of More Women to Supreme Court: Justice Ginsburg recently sat down with Joan Biskupic of the USA Today to discuss the importance of the Supreme Court having more women, and how the fact that she is the only women impacted the oral arguments and confidential discussions among the Justices about some still-undecided cases:
  Her status as the court's lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl's lasting humiliation, but Ginsburg stood out in her concern for the teenager.
  "They have never been a 13-year-old girl," she told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
  . . . In interviews with USA TODAY before Souter's retirement announcement Friday, Ginsburg said the court needs another woman. "Women belong in all places where decisions are being made. I don't say (the split) should be 50-50," Ginsburg said. "It could be 60% men, 40% women, or the other way around. It shouldn't be that women are the exception."
  Since O'Connor's departure in 2006, oral arguments and the justices' behind-the-scenes discussions on how disputes should be resolved have had a different tone. In the strip-search case and others this term, Ginsburg has revealed a woman's point of view that was strikingly at odds with those of many of her colleagues.
  Ginsburg dominated oral arguments in an important case involving alleged discrimination related to pregnancy leaves. She was openly frustrated that some of her male colleagues, in her view, might not have understood the discrimination women face on the job.
  She said the arguments in that dispute echoed those of a 2007 case involving Lilly Ledbetter, a 19-year worker at a Goodyear tire factory in Alabama who alleged that her pay didn't keep pace with that of men who had equal or less seniority. In that case, the court — with Ginsburg vigorously dissenting — narrowly ruled that women could not sue for pay inequities resulting from sex discrimination that had occurred years earlier.
  Oral arguments in the pregnancy case were "for me, Ledbetter repeated," Ginsburg told USA TODAY, adding that her colleagues showed "a certain lack of understanding" of the bias a woman can face on the job.
    Surprisingly, Justice Ginsburg did not share any circulated draft opinions in the cases, but then it may be that none were yet circulated.

Gay marriage in Maine:

The Governor just signed the bill, making Maine the fifth state to recognize the marriages of gay couples.

Now get ready for the ballot fight. Opponents will move to collect the 55,000 signatures necessary to suspend the legislation until a referendum can be held.


Kaus on the Chrysler Deal:

Chrysler + Fiat = Chooch!

The rationale for the bailout was that a bankruptcy would kill car sales, so the government had to step in and negotiate all the bankruptcy-style concessions without actually having a bankruptcy. But Obama was unwilling to get the U.A.W. to make the bankruptcy-style concessions that would be necessary to have a viable Chrysler. . . And Chrysler wound up in bankruptcy anyway. Prediction: It will either fail or suck up continuing annual taxpayer subsidies in the billions. In the process it will keep flooding the market with cars and make it harder to save GM and Ford. It didn't have to be that way.

I've got a gal in Kalamazoo, zoo, zoo, zoo, zoo, zoo, zoo:

Tomorrow early morning, I'm off to the International Congress on Medieval Studies at Western Michigan University in Kalamazoo. I'm sticking around there through Saturday early afternoon.

Let me know, by e-mail or in the comments, if you'll be there or if you think there are particular sessions or events that would be interesting.

Meanwhile, speaking of medieval things, enjoy the following St. Patrick's Day comic (from two months ago), from Dinosaur Comics (h/t Language Log):


Oh, and, if you want to listen to the song "I've Got a Gal in Kalamazoo", since sticking visuals and videos on the blog seems to be what I'm doing this morning, check out the following, though it's not the best:

Related Posts (on one page):

  1. Kalamazoo
  2. I've got a gal in Kalamazoo, zoo, zoo, zoo, zoo, zoo, zoo:

The Humans Are Dead and Stand By Me:

While I'm embedding videos, here are two songs that are making the rounds on Facebook.

First, "The Humans Are Dead" (also known as "Robots") from the New Zealand group Flight of the Conchords.

Second, here's a version of "Stand By Me" (not embedded, but go to the link) recorded on streets worldwide.


Protectionism and the Great Depression:

Here's a nice video about the Smoot-Hawley tariff, the Great Depression, and protectionism generally. I should note that the idea that protectionism was a substantial cause of the Great Depression is not universally shared. But watch the video anyway, which has good history and good analysis of the ill effects of protectionism. From the folks at Freedom To Trade. (h/t: Tom Palmer)


Kindles for Class:

Case Western Reserve University will be part of a pilot program in which students in certain classes will have their textbooks loaded on to Amazon Kindles. Amazon will reportedly introduce a new version of the Kindle, with a larger screen and enhanced web browsing capability, for this program. As I understand it, the pilot will only include a selection of undergraduate classes. Could law students be next?


The Value of Petitioning for and Article V Amendments Conventions: A new paper by Indiana University-Indianapolis law professor Gerard Magliocca, who blogs over at Concurring Opinions, contends that Article V petitions for a convention to propose constitutional amendments is a useful means to achieve reform by affecting the behavior of Congress and the courts. You can download it from SSRN here. It is entitled, State Calls for an Article Five Convention: Mobilization and Interpretation. Here is the syllabus:
This Essay argues that those seeking constitutional change ought to take a closer look at using the Article Five procedure by which state legislatures can petition Congress for a new constitutional convention. While the chances that such a conclave will occur are slim and none, the process for calling together such a body is a useful tool for getting voters to the polls and influencing the Supreme Court. After looking at some historical examples, the Essay points out that both parties are using state ballot initiatives to increase turnout at election time and that doing the same with Article Five petitions would increase the quality and quantity of citizen participation. Furthermore, a series of such petitions would constitute persuasive authority of contemporary constitutional values no different from the state legislation that the Justices look to in cases under the Eighth Amendment and the Due Process Clause.
Here is the structure of the paper:
Part I reviews prior attempts to use the Article Five petition procedure and shows that, when enough state legislatures join the cause, Congress almost always provides a remedy to halt the march to a convention. Part II looks at how putting federal constitutional issues before the voters in state elections can increase the quality and quantity of citizen participation. Part III explains why a critical mass of state petitions should be taken into account by courts when they are faced with related constitutional issues.

Related Posts (on one page):

  1. The Value of Petitioning for and Article V Amendments Conventions:
  2. The Bill of Federalism:

FCC v. Fox Television Stations, Part II: The FCC v. Pacifica case.

This is part of a series of posts discussing the background of the Supreme Court's "fleeting expletives" case from last week, FCC v. Fox Television Stations.

Last time, I discussed George Carlin's Seven Dirty Words routine and the FCC's 1975 opinion that the routine was "indecent," though not obscene, and thus prohibited under the Communications Act of 1934, which bars "obscene, indecent, or profane language" on the radio. For those of you who haven't done so yet, you may want to take this opportunity to watch versions of the monologue here or here on YouTube.

The FCC later clarified that such language was not absolutely prohibited. Instead, the FCC was only trying, under a nuisance-type theory, to "channel it to times of day when children most likely would not be exposed to it," and its declaratory order about the Carlin monologue was "issued in a specific factual context." The D.C. Circuit reversed in 1977. According to Judge Tamm, who wrote the main opinion for the court, the FCC's prohibition was censorship, which is itself prohibited by the Act; and, "even assuming, arguendo, that the Commission may regulate non-obscene speech, nevertheless its Order is overbroad and vague."

Chief Judge Bazelon concurred, but decided that the statutory ban on FCC censorship was limited by the prohibition, also in the statute, on "obscene, indecent, or profane language." Thus, he found it necessary to actually reach the First Amendment argument; and, he decided, the Commission's definition of "indecent" speech was unconstitutional.

Judge Leventhal dissented: First, it was important to protect children from exposure to indecent language, but "even assuming that children's exposure to pornography is as inevitable as pornography itself, there is protection in disapproval, in the child's knowledge that the pornography that is seen and heard is not approved by parents or society."

And from the D.C. Circuit, the case went to the Supreme Court, which decided FCC v. Pacifica Foundation in 1978. (See here for the full text of the decision.)


Tuesday, May 5, 2009

What's Up With Jughead's Hat?:

Resolving a mystery that has troubled me since childhood.


Statistics? I Don't Need No Stinkin' Statistics!:

NY Times:

The task force, led by the Berkman Center for Internet and Society at Harvard University, looked at scientific data on online sexual predators and found that children and teenagers were unlikely to be propositioned by adults online. In the cases that do exist, the report said, teenagers are typically willing participants and are already at risk because of poor home environments, substance abuse or other problems.

Not everyone was happy with the conclusions. Richard Blumenthal, the Connecticut attorney general, who has forcefully pursued the issue and helped to create the task force, said he disagreed with the report. Mr. Blumenthal said it "downplayed the predator threat," relied on outdated research and failed to provide a specific plan for improving the safety of social networking.

"Children are solicited every day online," Mr. Blumenthal said. "Some fall prey, and the results are tragic. That harsh reality defies the statistical academic research underlying the report."

Of course, lots of tragic things happen every day. The question is, how common are these tragedies, and is a good use of public resources to try to prevent a specific type of tragedy, as opposed to others that might be more common or more susceptible to public policy intervention. If the research is outdated or misconceived, that's one thing. But the idea that a "harsh reality" exists that somehow trumps actual data is typical of political scare-mongering.


Robert Churchill's New Book on Guns, Insurrection, and Modern Militias.

Robert Churchill, the best young historian of gun rights, has his first book out, To Shake Their Guns in the Tyrant's Face: Libertarian Political Violence and the Origins of the Militia Movement. (Back in 2001-2002, Churchill was one of the handful of Ph.D. historians who stuck his neck out to detail problems with Michael Bellesiles's Arming America.)

Based on his Ph.D. thesis, Churchill's book examnines in detail views on the right of revolution (or insurrection) in the 1790s and its relation to the Second Amendment. The last part of the book looks at insurrectionary strands in the modern militia movement.

Chrysler Won't Pay Back Government Money Loaned So Far.

Buried in the Chrysler filings was the revelation that US government investments in Chrysler will not be paid back, though the government will probably take an 8% equity interest in Chrysler:

Chrysler LLC will not repay U.S. taxpayers more than $7 billion in bailout money it received earlier this year and as part of its bankruptcy filing.

This revelation was buried within Chrysler's bankruptcy filings last week and confirmed by the Obama administration Tuesday. The filings included a list of business assumptions from one of the company's key financial advisors in the bankruptcy case.

Some of the main assumptions listed by Robert Manzo of Capstone Advisory Group were that the Treasury would forgive a $4 billion bridge loan given to Chrysler in the closing days of the Bush administration, a $300 million fee on that loan, and the $3.2 billion in financing approved last week by the Obama administration to fund Chrysler's operations during bankruptcy.

An Obama administration official confirmed Tuesday that Chrysler won't be repaying the loans, though a portion of the bridge loan may be recovered by Treasury from the assets of Chrysler Financial, the former credit arm of the automaker which is essentially going out of business as part of the reorganization.

"The reality now is that the face value [of the $4 billion bridge loan] will be written off in the bankruptcy process," said the official, who added that the 8% equity stake that Treasury will be receiving as part of the company's reorganization is meant to compensate taxpayers for the lost money.

"While we do not expect a recovery of these funds, we are comfortable that in the totality of the arrangement, the Treasury and the American taxpayer are being fairly compensated," said the official. . . .

The Obama administration official said that other money being made available to Chrysler, such as the $4.7 billion that will go to the company as it exits bankruptcy, will be a loan that the government expects to be paid back. In addition, that loan will be secured by company assets, unlike the previous loans to Chrysler.

According to the filing, the company's financial advisor also foresees the need for an additional $1.5 billion loan from the Treasury Department by June 30, 2010. . . .

Typically lenders who loan bankrupt companies funds to operate during reorganization go to the front of the line on getting the money they are owed repaid. But [Senator Bob] Corker said Chrysler's dire financial situation left it no chance to even pay back the bankruptcy financing.

He said the fact that Chrysler isn't paying what is owed should be a warning that the $15.4 billion loaned to General Motors by Treasury since December, as well as any bankruptcy financing it might need, is also at risk.

Even the 3.2 billion loaned by the Feds just last week will not be paid back, though we might recover something from the liquidation of Chrysler Financial.

David Yermack wrote in the Wall Street Journal last fall that it would have been better if the government had simply written a check to each worker — or even just burned the money:

Today, our government is being asked to put tens of billions of dollars in GM, Ford and Chrysler, but we would be much better off if Washington allowed these companies to go bankrupt and disappear.

In 1993, the legendary economist Michael Jensen gave his presidential address to the American Finance Association. Mr. Jensen's presentation included a ranking of which U.S. companies had made the most money-losing investments during the decade of the 1980s. The top two companies on his list were General Motors and Ford, which between them had destroyed $110 billion in capital between 1980 and 1990, according to Mr. Jensen's calculations.

I was a student in Mr. Jensen's business-school class around that time, and one day he put those rankings on the board and shouted "J'accuse!" He wanted his students to understand that when a company makes money-losing investments, the cost falls upon all of society. Investment capital represents our limited stock of national savings, and when companies spend it badly, our future well-being is compromised. Mr. Jensen made his presentation more than 15 years ago, and even then it seemed obvious that the right strategy for GM would be to exit the car business, because many other companies made better vehicles at lower cost.

Roger Smith, who retired as chairman in 1990, seemed to understand that all too well, and so did Chrysler's management, which happily sold their company to Daimler Benz for $30.5 billion in 1998. That deal, one of the savviest corporate divestitures ever, ended very badly for Daimler, which essentially paid Cerberus a few billion dollars (by agreeing to retain pension liabilities) to take Chrysler off its hands in 2007.

Over the past decade, the capital destruction by GM has been breathtaking, on a greater scale than documented by Mr. Jensen for the 1980s. GM has invested $310 billion in its business between 1998 and 2007. The total depreciation of GM's physical plant during this period was $128 billion, meaning that a net $182 billion of society's capital has been pumped into GM over the past decade — a waste of about $1.5 billion per month of national savings. The story at Ford has not been as adverse but is still disheartening, as Ford has invested $155 billion and consumed $8 billion net of depreciation since 1998.

As a society, we have very little to show for this $465 billion. . . . Yet one can only imagine how the $465 billion could have been used better — for instance, GM and Ford could have closed their own facilities and acquired all of the shares of Honda, Toyota, Nissan and Volkswagen.

The implications of this story for Washington policy makers are obvious. Investing in the major auto companies today would be throwing good money after bad. Many are suggesting that $25 billion of public money be immediately injected into the auto business in order to buy time for an even larger bailout to be organized. We would do better to set this money on fire rather than using it to keep these dying firms on life support, setting them up for even more money-losing investments in the future.

How Do You Measure the Intelligence of a Judge or Judicial Nominee?: The hubbub over Jeffrey Rosen's TNR profile of Sonia Sotomayor raises some interesting questions about how you know might know how intelligent a judge or judicial nominee happens to be. This issue comes up a lot, so I wanted to blog a few thoughts about it.

  Broadly speaking, I think there are three common ways to assess the smarts of a judicial nominee: 1) look at the nominee's academic credentials; 2) read his or her prior opinions, if the nominee has judicial experience; and 3) talk to people who have worked with the judge before. Let's talk about the strengths and limits of each.

  One common way to measure how smart a judge or nominee is to look at the judge's educational credentials. This is easy and quick because the credentials are public and fit in a single sentence. At the same time, I personally think such credentials are overrated. There are meritocratic elements to these credentials, but they are just elements; candlepower is only one influence on where a person went to school and how they did there. You've probably seen this yourself: you probably know some incredibly smart people with terrible academic credentials, and other people with extraordinary academic credentials who you know aren't very smart. What this means, I think, is that educational credentials don't tell you very much about how smart a judge or judicial nominee is.

  If the nominee has judicial experience, you can read his or her opinions. Based on the Sotomayor opinions I have come across over time, for example, I have generally thought her opinions are good. Not outstanding, not particularly inspired, but good. I include one of her opinions in my computer crime casebook, Leventhal v. Knapek, although I picked it mostly because it's a rare government employee computer search case that does not involve child pornography. It's a solid opinion; not amazing, but solid.

  At the same time, judicial opinions are a tricky measure because outsiders don't know how much of the judge's opinions were written by law clerks. In a world of law clerks, a lot of judicial opinions are good — not amazing, but solid. That wasn't true in the old days. If you skim through an F.2d from the 1930s, for example, you'll probably find a few gems (mostly from the Second Circuit and select other judges) and a lot of opinions that are just terrible. But these days an appellate judge has the option of relying heavily on clerks. Great clerks enticed by a prestigious court in a great location can usually write pretty good opinions, often better than most judges if left clerk-less. So past opinions are a guide, but not a perfect one.

  Another option is to talk to those who have seen the judge in action: litigants, who have seen the judge in a public capacity, and those on the "inside" — former clerks, other judges, and the former clerks of other judges, who have seen the judge in a private capacity. Former clerks and other judges usually won't say anything bad, at least on the record (and if they do say something bad, you worry a lot about personal gripes excessively affecting their judgment). Former clerks of other judges and attorneys who have appeared before the judge can be a pretty good source of information, but there's a "blind men and the elephant" problem that each person is basing a judgment on a relatively limited experience.

  To see this, imagine you're a law clerk for another Second Circuit judge, and your judge sits with Sotomayor once or twice during the year. You see Sotomayor at oral argument a few times, and then you see a few draft opinions from her chambers. Can you really get a good sense of how smart she is? Maybe. But then, maybe not. Maybe Judge Sotomayor is really into a particular case, and asks great questions, or has a great clerk who writes a fantastic draft. Or maybe life got in the way and the judge was off her game that day, or the clerk was ill or lazy and the draft wasn't good. Maybe your judge has always gotten along with Sotomayor, and says good things about her, or maybe your judge and Sotomayor don't get along, and he tells you that she's a bad judge. The experience is valuable, but also limited. It can be similar for a lawyer practicing before the judge. You see the judge work on your case, but usually just your case, and it's only one on the judge's docket. An impression of what a judge is like may or may not be accurate, and it may be hard to get a full sense of a judge without talking to a large number of those who have interacted with that particular judge.

  Finally, there's always a general problem with assessing a judge's intelligence — or really anyone's intelligence: identifying the scale. Someone may be "utterly brilliant" in their high school, "smart" as a college student at Stanford, and "slow" when interviewing for a faculty position at the University of Chicago. Consider that several of Rosen's sources are former Second Circuit clerks. It takes a lot of brains to become a Second Circuit clerk; that's a sharp bunch. At that level, the scale is going to be pretty high; there's nothing inconsistent about saying that a Judge graduated from Princeton and Yale Law and isn't very smart.

  Different people are going to have a different sense of "how smart is smart enough" for a particular position, and therefore different people will use a different scale. Jeffrey Rosen is an academic, and he uses an academic's scale; he wants the brightest of the brightest. I'm also an academic, and I would use a similar scale. But without going into Roman Hruska territory, I think it's fair to say that such a scale is really high, and that others might legitimately find it too high.

I'm having a hard time keeping this straight:

Apparently, many of the same folks who just months ago were telling us that "dissent is the highest form of patriotism" think just dandy for the president to brand bondholders as "speculators" who are "refusing to sacrifice like everyone else" when they refuse to go along with a corrupt giveaway to a core Democratic constituency, the UAW, at their expense.

UPDATE: Oh, but I forgot, criticism of Bush was justified because his administration was asserting unprecedented executive powers and trampling the rule of law because of a phony "emergency" that was really a cover for both ideology and political partisanship, while the Obama Administration is, um, well, ...

And, courtesy of Instapundit: "Business Insider reports that more than one Chrysler senior creditor has corroborated Thomas Lauria's allegation that the Obama administration threatened them with public attacks if they didn't surrender their contractual rights." Maybe Truman should have just threatened to use the Treasury's power to shut down credit to U.S. Steel.

11:00 PM: Comments are now closed.


Michael McConnell to Leave Tenth Circuit and Join Stanford Law Faculty: The stunning news is here. Judge McConnell is one of my favorite judges; that's a really big loss.

  I've noted before that there have been an unusual number of early retirements from the judiciary among the most academically accomplished of judges, including the likes of our own Paul Cassell (left to join the Utah faculty) and David Levi (left to become Dean of Duke). Now McConnell can be added to the list. All of the six individuals on the list are GOP nominees, as it turns out.

  Thanks to reader Derek Muller for the link.

Libeling H.L. Mencken:

While working on something tangentially related, I've come across several "conservative" books, blog posts, and articles asserting that H.L. Mencken was a eugenicist. The argument seems to be as follows: evolution is bad, and leads to eugenics; Mencken was a leading secularist and defender of evolution, as with his reporting from the "Scopes trial"; ergo, Mencken must have been a eugenicist. (It doesn't help, I suppose, that Mencken was an elitist and something of a misanthrope.)

In fact, Mencken was one of the leading, and one of the few (!) prominent opponents of eugenics in its heyday. His American Mercury published one of the first major scientific critiques of eugenics. And Mencken consistently rejected eugenics in his own writings.


"Charges Seen as Unlikely for Lawyers Over Interrogations": The New York Times apparently has some sources who have summarized the OPR draft report on the interrogation memos.

States on the Dole:

USA Today reports that state and local governments now receive more money from the federal government than from their own taxpayers.

The sales tax had been the No. 1 source of state and local revenue since the mid-1970s, according to the Bureau of Economic Analysis. Before that, property taxes were the primary source. That changed in the first three months of 2009.

Federal grants — early stimulus money plus conventional federal aid — soared 15% in the first quarter to a seasonally adjusted annual rate of $437 billion, eclipsing sales taxes, which fell 2%.

The dominance of federal money is set to expand dramatically this year because tax collections are sinking while the bulk of federal stimulus aid is just starting to arrive.


[Adam Mossoff, guest-blogging, May 5, 2009 at 4:55pm] Trackbacks
Patent Thickets and Patent Trolls:

One of the features of the Sewing Machine War that makes it appeal to our modern sensibilities is that it is the first patent thicket in American history in which a non-practicing entity — the inimitable “patent troll” — played a fundamental role at each important point in the story.

With respect to the role of “patent trolls” in patent thickets, and in patent litigation generally, the parallels between Howe and modern non-practicing entities are palpable. An oft-cited example of a “patent troll” at work was the recent Blackberry litigation. In this case, the patent-holding company, NTP, Inc., successfully sued Research in Motion Ltd. (RIM), the manufacturer of the Blackberry, for infringing NTP’s patents on wireless email communication. NTP was a non-practicing entity who was not actively commercializing its technology; its sole source of revenue was the royalties it was seeking from RIM. As such, many commentators believe that NTP is an exemplar of a modern “patent troll,” since it was a non-practicing entity that used an injunction to compel RIM to pay for a license. In fact, in the "patent troll" debates, NTP is the most commonly cited example of a "patent troll." Thus it seems that NTP is one of the few examples, if not the only one, to which this term best applies (or at least applies without generating tremendous controversy).

If NTP was a “patent troll,” then Howe certainly was a “patent troll” — a non-practicing entity using injunctions to compel licenses from actual manufacturers of the completed commercial product. As I noted in an earlier post, some commentators don’t believe that it is legitimate to call Howe a patent troll, because he tried to commercialize his invention, or, as some put it, he was acting in “good faith.” But if attempts to commercialize one's patented invention prevents one from being deemed a "patent troll," then NTP is not a patent troll either. NTP also tried to commercialize its technology, something it repeatedly pointed out in its court filings in its litigation against RIM. In fact, similar to Howe, NTP failed to find a firm willing to invest in its technology, and, similar to Howe, NTP belatedly discovered RIM’s Blackberry several years later and initially demanded a license from RIM. As in Howe’s lawsuit against Singer, NTP sought and successfully obtained an injunction against RIM only after RIM rejected NTP's request to enter into a license. Moreover, just as in Howe v. Singer, RIM tried to invalidate NTP’s patents in separate hearings at the Patent Office (called "reexamination proceedings"). The correlation between Howe v. Singer and NTP v. RIM is strikingly robust.

In sum, if Howe is not a patent troll, then NTP is not one either, and thus we're left with an epithet that refers to few, if any, actual patent-owners in the real world. One problem is that a "patent troll" is often defined simply as a non-practicing entity that has no intent on manufacturing a product. But the problem with this definition is that it includes universities that license technologies created by their professors. Yet, among those who use the term "patent troll," no one seems to consider universities to be bad actors deserving of this epithet. Universities, like Howe, seem to be imbued with that aura of "good faith" that makes the "patent troll" epithet seem inappropriate.

If one then (re)defines a “patent troll” as an entity that did not invent the patented invention, but rather bought it from the actual inventor for the sole purposes of licensing it, then this just creates other problems for using this term. As a preliminary matter, it would now exclude NTP, which was a corporation solely owned by the inventor. In fact, many individual inventors incorporate themselves, and then transfer their patents to these newly formed holding companies, for liability and tax purposes. Moreover, this new definition would now include many corporations, such as IBM, which collect patents, not for manufacturing purposes, but to use them as a shield against patent infringement lawsuits. (Coincidentally, two commentators to my prior post on incremental invention mentioned IBM's practice of hoarding patents.) In sum, IBM, which has long been one of the largest owners of patents in the country, uses patents defensively. Its policy has been one of “mutually assured destruction,” i.e., if someone threatens to sue it for patent infringement, then it promises that it can find a patent in its massive patent portfolio with which to countersue for infringement. This policy has worked marvelously well for IBM, which has mostly avoided patent infringement lawsuits and has been left free to devote its time, energy and money to developing new products and services that it offers in the marketplace. But IBM's policy of hoarding patents is certainly "patent troll"-like behavior — patents are being used solely for litigation purposes and not for development of actual products sold in the marketplace.

Another commentator mentioned that Jerome Lemelson was a patent troll, but this is mixing two different concepts in patent law — a “patent troll” and a “submarine patent.” Lemelson exploited procedural loopholes in the regulations governing how patent applications are processed at the Patent & Trademark Office. Traditionally, patent applications were kept secret until the patent issued. The result of Lemelson's procedural machinations was that he was able to keep his patent applications secret for decades, while firms invested hundreds of millions of dollars in technology that they believed was in the public domain. Lemelson then let his patents issue, and he sued the companies for patent infringement. Many of the firms settled, but some fought back. Ultimately, the courts dealt Lemelson (or, more precisely, the company formed after his death) a blow when they used the doctrine of laches to prohibit his enforcement of his patents. Moreover, Congress changed the law on patent applications in 1999, and now patent applications are publicly disclosed 18 months from the date of filing.

So, the problem with Lemelson was not that he was a patent troll, but that he was using submarine patents — patents that were kept secret and then surfaced to sink established companies with the threat of litigation — to game the system in his favor. Courts and Congress have now closed the legal loopholes that made Lemelson capable of using submarine patents. Moreover, Lemelson was the inventor of all of his patents, and thus he would fail the other feature of a “patent troll” — the patent-holding company is not the inventor.

In sum, the problem is that the term “patent troll” is so amorphous and protean in its usage that it’s effectively meaningless in conveying anything other than the fact that the person using the phrase thinks some practice in patet law is bad. But if this is the case, then one should precisely identify the practice that one thinks is improper, rather than use this epithet. The term "patent troll" is ambiguous and indeterminate, as its referents constantly change and nothing is constant except for its negative normative connatation. In this respect, the term "patent troll" is tantamount to what the logical positivists, such as A.J. Ayer, thought of all normative terms; in essence, the logical positivists believed that to call something “bad” was the cognitive equivalent of an emotional ejaculation, such as yelling, “Boo for that!” (Conversely, Ayer explained that to call something "good" was cognitively the same as yelling, “Yah for that!”)

It seems as if the term “patent troll” confirms the logical positivsts’ assessment of normative terms. It becomes impossible to respond to it, because whenever one thinks one has it nailed down in its meaning, it changes its referents to accommodate some other bad practice or to differentiate some practice people think is good for the patent system. The result is a game of normative whack-a-mole, and a vague general feeling that property-owners can act badly. But that's just a tautology, as the freedom provided by property rights permits people to act badly or properly, such as an annoying neighbor who uses property disputes (trespass, nuisance, etc.) as a proxy for his own personal grudges.

This point about landowners acting badly thus highlights the one feature of the "patent troll" debate that is noticeably absent — an actual sense of how bad "patent trolls" are and whether it's been empirically established that they now trump the benefits derived from the patent system generally. This is important, because most critics of "patent troll" behavior (whatever this might be) are calling for systemic changes to the patent system, whether it is changes to remedy doctrine, licensing rules, validity determinations, or all three. So, as Hamlet put it, here's the rub: Do we really want to make systemic and structural changes to the entire patent system based on an amorphous and ill-defined rhetorical epithet? Even assuming that "patent trolls" are an actual problem, are these calls for patent reform comparable to calling for systemic changes to our real estate system given the ability of some troll-like landowners to exploit trespass, nuisance and other doctrines so that they can harass their neighbors? Without definitive empirics to help us understand the scope of the problem — and the empirics will be almost impossible to come by as long as it remains virtually impossible to define the "patent troll" term with any precision — this is a dangerous game that we are playing with the system that is responsible for promoting and securing property rights in innovation.

In contrast to the widely accepted picture of difficult property-owners who hold out against all entreaties, requiring some type of public-ordering response from Congress, the courts or the Patent and Trademark Office, the Sewing Machine Combination confirms that voluntary patent pools are not just theoretically possible, but have occurred in the real world. There was no Patent Reform Act of 1856 that prompted the formation of the Sewing Machine Combination by eliminating Howe’s ability to get injunctions, limiting his royalty payments, or imposing restraints on his or other patentees’ commercialization rights. (At the time, such measures may have been deemed to have constituted an unconstitutional taking of the sewing machine patentees’ property under the Fifth Amendment. For further elaboration, see here.)

The Sewing Machine Combination was initiated by private actors for their private benefit — within the governing rules of a property system that provided strong property protections to the relevant entitlement owners. For this reason, the Sewing Machine War and its resolution in the Sewing Machine Combination is an important empirical case study that teaches important lessons for understanding the theory of how non-practicing entities function within patent thickets.

In my next post, I will discuss the concerns expressed in the patent literature and in many comments to my prior posts about the allegedly unique problems with patent litigation today, such as the difficulties in determining what is a patented invention for computers. Alas, nineteenth-century case law is replete with similar complaints, which perhaps suggests that the old adage — all things old are new again — is actually true.


More Good Stuff From Ross Douthat: This time, a column on centrism within the GOP. And with the added bonus -- at least to me, anyway -- of a link to one my posts.

Academic Legal Writing:

I just thought I'd mention again that Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (by yours truly) makes a nice present for a friend or relative who's going to law school, or going to start the second year of law school. And it's not a bad present for yourself, too, if you fit those categories; here's a very nice review from Tiger Jackson and Jeff Newman, in 11 Scribes J. Legal Writing 141 (2007):

Every law student is encouraged to try to make law review, but no one has ever explained how to do it as well as Volokh. His tone and style are so natural that you can hear his voice in your mind. Starting from scratch, he explains what a law review is, why the experience is valuable, what the write-on competition entails, how to boost your chance of success on it, and what the staff of a law review does. He demystifies the details of the write-on, making this section alone well worth the price for first-year law students.

But even a student who has no desire to be on law review will find this book enormously helpful for writing a seminar paper. In addition to reviewing important points of writing style (e.g., passive voice, legalese, redundancy), Volokh briefly explains the often-overlooked elements of logic and rhetoric and how their misuse can diminish an argument. Unlike most other writing guides, Volokh's book spends plenty of time showing the reader how to use evidence and why it must be critically examined rather than blindly accepted. Even though only five pages are especially devoted to seminar papers, much of the advice Volokh dispenses about writing for law review applies just as well to writing for a professor, and Volokh explains why. He encourages students to consider submitting papers to competitions and even to other law reviews, whether or not they are on their own schools' law review.

Despite the subtitle, this book isn't just for law students. Novice and experienced law-review writers will also find sound advice for improving their writing and expanding their markets. Volokh systematically guides the reader through the stages of producing publishable legal writing, from choosing your subject to methodically researching it, writing about it, and submitting the piece for publication. This book is a must-have for every law student. We also recommend it for practitioners interested in writing and publishing scholarly papers.

As I mentioned before, the publisher no longer gives me copies than I can sign and sell. But I've finally made up some bookplates — basically labels with a simple design on them — that I'll happily inscribe, sign, and send to anyone who asks. Send no money, but e-mail the address and the preferred inscription (if you have a preference) to volokh at

UPDATE: Just to make clear: True to its title, the book is about writing law review Notes, and about writing law review articles more broadly (there isn't much of a difference between the two), and about writing seminar papers, and about doing law review write-on competitions. Even if you already wrote on to law review, or have no interest in being on law review but are writing an independent research paper or a seminar paper, it can help you with choosing a topic, structuring the article, figuring out a research plan, improving your writing, and then circulating the article for publication.

You can also check out the reader reviews. All are quite positive, I think, except the first, which as it happens is by frequent Conspiracy commenter Larry Fafarman.


More on Chrysler:

The big issue in Chrysler now is whether it will be able to do a quick sale under section 363 or will have to go through a more formal plan approval process before it can do so. Steve Jakubowski has detailed analysis here.

David Skeel says:

But the U.S. government is essentially planning to commander the bankruptcy process, by pushing through a sale of most of Chrysler’s assets (not to a true third party, but to “New Chrysler”) early in the case. The only thing standing in the way of the government’s stratagem is the bankruptcy judge who will be forced to decide whether to approve the sale. It will be awfully hard for a judge to say no to the deal that’s about to be thrust on him or her. The end result may well be desirable, but the means are worrisome.


Now Accepting BlogAds:

We're now accepting BlogAds, both for the topmost position and for the others. You can also check out SiteMeter traffic statistics, to get a sense of the traffic we've been getting, about 1.4 million pageviews per month. (Please ignore the October numbers, which are low because a SiteMeter glitch led us to turn off SiteMeter for much of that month.)


The Most Cited Journals and Journal Articles,

a list from HeinOnline.


Another Dartmouth Election:

Dartmouth readers will be vaguely aware that there is an ongoing Dartmouth election that ends tomorrow, May 6. There are two elements. The first is the election for the Association of Alumni Executive Committee, which is running unopposed, to reelect the incumbent leadership. I know it must seem like a strange system to some people to allow the alumni to vote for both the election and reelection of Alumni Association officers (unlike Alumni Trustees) but there you have it. The second is an amendment to the Dartmouth constitution that would change the rules for electing Trustees. 2/3 majority vote of all alumni is needed to enact the constitutional amendment.

I've received a number of emails asking how I voted. On the AoA slate, I left that part of the ballot blank. The incumbent slate campaigned last year on the claim that they would (1) dismiss the lawsuit to enforce the 1891 Agreement and (2) restore alumni parity on the Board of Trustees through the process of negotiation. They did the first. I have seen no indication that they have made any progress toward the latter. Nor have they provided any coherent argument on how step (1) will enable them to accomplish step (2). Because no tangible progress has been made in restoring parity--a centerpiece of their platform--I decided to leave that portion of the ballot blank.

On the referendum on the constitutional amendment, I voted "No." Paul Mirengoff's excellent analysis summarizes my thoughts and I won't repeat it here. I previously detailed the history of Trustee election rules at Dartmouth. The current system, designed to address the "petition trustee problem" is virtually identical to the system that prevailed prior to 1990 of promoting head-to-head elections. At that time the current multi-candidate approval-voting system was adopted to replace the prior system. Why? Well, to address the "petition trustee problem." Is either system better or fairer than the other? Probably not greatly, although as Paul notes, a strong argument can be made that the current system of approval voting is the superior system (my extensive review of the scholarly literature on voting rules tends to confirm this conclusion). Regardless, as the cyclical nature of the history on this issue reveals, the Dartmouth establishment obviously believes one system to be more difficult for petition trustees than the other, which is what motivates the proposals.

Given that there is not a substantial difference in the rules, I think that Paul is right in saying that a vote for or against the amendment depends on completely different factors. This proposal is not that different from the proposal voted down by the Dartmouth alumni in a referendum three years ago. Why is it back now? Because the Board majority ordered the Alumni Association leaders to bring it back again to give the alumni the opportunity to vote "correctly" this time (think of it as being like a European constitutional referendum on the EU). If the alumni do not do what the Board majority wants them to do, the Board majority has threatened to seize from the Alumni Association the power to set election rules and the Board majority will impose its preferred rules by fiat.

Paul thinks that voting for the amendment under this threat is a form of blackmail and that this constitutes continued alumni control of elections in name only. I agree, and voted against the amendmen on that basis. It must be acknowledged that there is a risk to this--if the alumni choose not to capitulate to the threat, the Board majority may very well decide to impose the rules by fiat. So the decision for the alumni, I think, boils down to whether they want to try to preserve real control over the election of Alumni Trustees with the possibility that the Board majority may retaliate by seizing control, or do alumni think it better to appease the Board majority in order to retain the formal control over election of Alumni Trustees.

The Board majority obviously has put Dartmouth alumni in a very difficult position and this is a real Hobson's choice. By voluntarily dismissing with prejudice the AoA lawsuit to enforce the 1891 Agreement, the incumbent leaders of the Association of Alumni gave away the only real tool that the alumni had to preserve real control over Alumni Trustee elections. I voted against the amendment, but there are people I respect who voted for the amendment as the least-bad of the two choices. I won't recommend to anyone how to vote, I just tell you how I weighed these factors. Most of all, I urge Dartmouth alumni to vote--your rights are at stake.

Information on the amendment and how to vote is here.

Greenwald v. Rosen

Glenn Greenwald responds to Jeffrey Rosen's article on Judge Sonia Sotomayor.

My perception of Sotomayor is almost the exact opposite of the picture painted by Rosen. I had a generally low opinion of the intellect of most judges -- it's one of the things I disliked most about the practice of law -- but I found her to be extremely perceptive, smart, shrewd and intellectually insightful. The image that has been instantaneously created of her as some sort of doltish mediocrity, based on nothing but Rosen's water-cooler chatter, is, at least to me, totally unrecognizable. Of the countless federal judges with whom I had substantive interaction over more than ten years of litigation, I would place her in the top tier when it comes to intellect. My impressions are very much in line with the author of this assessment of Sotomayor, who had much more extensive interaction with her and -- unlike Rosen's chatterers -- has the courage to attach his name to his statements. . . .

. . . Rosen's gossip has, in many places, already solidified as conventional wisdom about Sotomayor: if Obama selects her, it will mean that he has subordinated merit and intellect to gender and ethnic diversity.

Sotomayor's decades of achievement in the face of overwhelming obstacles just gets dismissed with a few slothful, totally irresponsible smears from Rosen and his invisible friends. But that's how "journalism" so often works -- people are allowed to remain hidden while their views and assertions are uncritically amplified in the loudest venues and bestowed with an authoritative veneer that they absolutely do not merit.


Happy 110th Birthday F.A Hayek!

Today is F.A. Hayek's 110th birthday. Hayek was perhaps the most influential libertarian thinker of the 20th century. Books such as The Road to Serfdom, The Constitution of Liberty, and Law, Legislation, and Liberty had a major impact on economics, political theory, and legal thought. Hayek also won a Nobel Prize in Economics for his technical work on monetary policy and business cycles. My personal favorite among Hayek's works is his famous 1945 article, "The Use of Knowledge in Society," which explains why private sector institutions generally do a better job of gathering and using information than government.

Last year, I wrote a post explaining why Hayek's central ideas are still relevant today, decades after he wrote his most important works. Hayek's criticism of central planning remains important in an age where governments once again seek to nationalize and restructure large sectors of the economy. His less well-known critique of conservatism also retains a great deal of relevance in our time, for reasons I elaborated here.

UPDATE: It looks like Hayek's birthday is actually May 8, rather than May 5. Sorry about the confusion. However, the silver lining of this particular cloud is that I get to post about Hayek again on Friday!


Monday, May 4, 2009

[Adam Mossoff, guest-blogging, May 4, 2009 at 11:17pm] Trackbacks
Patent Thickets, Incremental Invention, and Innovation:

The story of the sewing machine is an important empirical case study of how the American patent system has long dealt with incremental invention and resulting patent thickets. It's also a self-contained case study, which challenges the principal focus of the literature on recent inventions and recent changes in patent law, such as the rise of biotech patenting since the early 1980s. Given the cutting-edge nature of biotech research and its equally innovative commercialization, this new field presents a moving empirical target for patent scholars and economists. This perhaps explains why recently published studies on patent thickets, at best, have found none, or, at worst, have been inconclusive.

As a single case study, it cannot serve as the basis for drawing definitive conclusions, as more empirical studies will have to be done. The Sewing Machine War, however, does point toward some important lessons for the modern policy debates over patent thickets. One lesson is that the incremental invention of complementary elements of new technology seems to be a common feature of the type of cutting-edge discoveries that the patent system has promoted for more than two hundred years. From the sewing machine to automobiles to airplanes to radios, incremental innovation seems to be omnipresent in the historical evolution of science and technology.

There was even incremental innovation in the invention of the incandescent light bulb, which, contrary to popular myth, was not discovered by Thomas Edison. Just as Isaac Singer invented only the final few elements of a practical and successful sewing machine, Edison invented only the first practical incandescent light bulb. (Of course, both of these were tremendous achievements, and thus this is not meant to denigrate their inventive contributions.) In fact, Edison was even sued for patent infringement by one of the earlier inventors of the light bulb. Unlike Singer’s hapless luck with Walter Hunt, however, Edison was able to invalidate this earlier patent under one of the statutory requirements for a valid patent grant. Yet, decades later, the inventive cycle repeated itself again, as Edison was again embroiled in controversy, but this time it was with Nikola Tesla, who successfully patented and commercialized follow-on innovation to Edison’s own cutting-edge work in electrical power systems.

Professor Michael Heller and other scholars have given passing acknowledgements to a few of these historical examples of incremental innovation and resulting patent thickets. As I noted in my introductory post, much of the chapter on patents in Heller’s The Gridlock Economy is spent discussing alleged patent thickets in biotech. In fact, the only historical patent thicket to which Heller devotes anything more than a sentence or two is the airplane patent thicket of the early twentieth century. Coincidentally, this was also the only patent thicket that was solved through a public-ordering solution — a compulsory patent pool imposed on the patent-owners by federal legislation. In fact, Heller devotes more time to discussing this legislatively coerced solution to the airplane patent thicket than to the nature of the patent thicket itself. Again, the underlying assumption is that patent thickets are a property problem to which a public-ordering regulatory model is the best solution.

As commentators have pointed out in prior posts, especially in my first introductory posting (Who Cares About the Invention of the Sewing Machine?), there are important differences between the nineteenth century and our modern digital age. The computer revolution was spawned by the invention of the integrated circuit in 1958 by Jack Kilby and Robert Noyce, and innovation in computer technology and related fields, such as biotech, has grown exponentially. This is technological growth that surely outpaces anything humanity has seen before. This is undeniable.

But there are perhaps just as many myths about the significance of these differences as there are truths. For instance, one commentator claimed that a significant difference in the inventive activity between today and the nineteenth century is that hobbyists can work on computers in their garages today but that inventive work in the nineteenth century required massive capital expenditures. Yet Elias Howe and many other inventors in the nineteenth century, such as Charles Goodyear, Samuel Morse, Samuel Colt, and Eli Whitney, to name just a few, were what we would now call “hobbyists” — people without formal training or full-time employment in the field of technology in which they hit inventive pay dirt.

One could still argue that, compared with the potential success of a new computer technology, nineteenth-century industrial technology required massive upfront investment outlays — what economists call “sunk costs.” This is certainly true with respect to railroads, steamboat fleets and, later in the nineteenth century, steel mills and industrial factories. But the investment dollars were there to be had for those with new ideas.

Charles Goodyear, for instance, toiled for years after his invention of vulcanized rubber in 1839 to convince American firms of the value of his invention. Goodyear’s troubles were the same as those that affected Howe — both inventors faced skeptical investors and commercial firms who had already lost boatloads of money on prior inventors who had claimed to have solved the technological problem. In fact, the nascent rubber industry experienced in the 1820s and 1830s a bubble that was equivalent to our own “dot com” bubble at the turn of the last century. Hundreds of thousands of dollars in investments went up in smoke when products made from pure rubber lost their cohesion in hot weather or became brittle in cold weather. Goodyear’s invention of vulcanized rubber solved these problems, but it was difficult for him to convince firms and the buying public after so many failures — and such spectacular financial wipeouts. Goodyear struggled, but, more important, he succeeded.

The sheer number of patents and the increased amount of inventive activity in the twenty-first century is another important difference between today and the nineteenth century. For instance, some have pointed out that Sewing Machine War was a manageable thicket insofar as it was resolved through an agreement between only four entities: I.M. Singer & Co., Grover & Baker, Wheeler, Wilson & Co., and Howe. Today, a patent thicket may comprise thousands of patents, which are owned by individuals or corporations spread throughout the globe.

Yet the same technology that makes inventive activity and patenting more common also reduces the transaction costs in finding information and in coordinating commercial behavior. Word processing programs, email, and web-based searchable databases, such as at the U.S. Patent Office and Google, make it possible to research patents, communicate across the globe, and to reach deals quickly and efficiently in ways that Singer and Howe could have only dreamed about one-hundred-and-fifty years ago. Today, one can search every U.S. patent with a single click of a mouse, send email with proposed licenses as attachments, or FedEx a cease and desist letter in a fraction of the time it took in the nineteenth century. In the mid-nineteenth century, travel between Boston and New York City took a couple days, at best, by horseback (the most efficient method of travel over land). And, even after the telegraph was up and running by the mid-nineteenth country, it facilitated only minimal communication (via the dots and dashes of Morse Code). It is very hard for us today to imagine trying to search patents, negotiate licenses, litigate numerous lawsuits, or operate national commercial enterprises under such conditions — as the sewing machine patentees all had to do in the Sewing Machine War!

In sum, we must beware of anachronisms when we assess technological advances, commercial activities, and legal interactions in a bygone era that lacked, not just the problems of our technology, but also its benefits.

To be clear, it bears emphasizing the empirical merits of the Sewing Machine War and its related features, such as Elias Howe’s role as a non-practicing entity in this patent thicket. This is admittedly a single patent thicket involving a single commercial product. I would be committing the logical fallacy of a hasty generalization to draw definitive generalizations from this single data point. At a minimum, though, this case study serves as a cautionary tale against the assumptions that dominate the current discourse concerning patent thickets and closely related policy concerns, such as the impact of incremental innovation and the so-called complicating features of modern inventions. To wit, these are not modern phenomena that are necessarily best resolved with distinctly modern regulatory measures that restrict the property rights secured to patentees. They have long been features of the American patent system, which has long dealt with incremental invention and resulting patent thickets.

In my next post, I’ll discuss the issue of “patent trolls” and patent litigation, and whether these have proven to be insurmountable problems to the resolution of patent thickets, past and present.

UPDATE: Some minor spelling errors were corrected.


Outsiders Voting in Ohio - Update:

TheColumbus Dispatch reports that three campaign workers from out of state who registered and voted in Ohio have been fined, given suspended sentences, and placed on probation. I covered this case last fall in these posts. The story also notes that another individual pled guilty for voting twice, and the Franklin County elections board sent several dozen other cases of suspected vote fraud to the county prosecutor.

UPDATE: Speaking of election fraud, Nevada officials are charging ACORN and two organization employees with multiple felonies related to voter registration fraud allegations. The charges were announced by the state's Attorney General and Secreatary of State, both Democrats.

UPDATE: The actual complaint only includes charges against ACORN and ACORN employees for compensating canvassers for collecting voter registrations. My initial characterization that the charges were "related to voter registration fraud allegations" was accurate, however, because (as the story notes) the charges resulted from an investigation that was triggered by the discovery of apparently fraudulent registrations by the Clark County Registrar of Voters. Further, the State Attorney General (a Democrat), called this "a case of registration fraud" and explained: "By structuring employment and compensation around a quota system, ACORN facilitated voter registration fraud in this state." No one is claiming any election was stolen, or that the results were illegitimate.


How to Picture $100 Million out of $3.5 Trillion: This is cute (Hat Tip Tom Smith):

Establishment Clause Violation for Public High School Teacher To Call Creationism "Superstitious Nonsense":

So holds C.F. v. Capistrano Unified School Dist., decided Friday. I understand the logic of the case -- the Court has repeatedly said that the government's disapproving of religion is as unconstitutional as the government's endorsing religion, and the district court decision tries to implement that. But it seems to me that this just helps illustrate the difficulties posed by the endorsement test.

To begin with, the court concludes that it "cannot discern a legitimate secular purpose in [the] statement," applying the Lemon test's "secular purpose" prong. But I would think the legitimate secular purpose is clear: The speaker is trying to get students to accept the theory of evolution, which he believes to be much more conducive to scientific thinking, and much more likely to produce useful results, than creationism. That's a perfectly secular purpose. To be sure, it's a purpose that is accomplished using the means of deriding religion. But that doesn't stop the purpose (promoting belief in a scientific theory that the speaker thinks is sound, useful, and conducive to scientific thinking) from being secular.

Nonetheless, the court also has a different argument, which strikes me as more doctrinally sound on the facts: "Corbett's statement primarily sends a message of disapproval of religion or creationism." I take it the point is that creationism is a religious claim about God's having created humans (or some similar claim that involves God acting), and that disapproving of creationism thus expresses disapproval of a certain belief about religion, just as approving of it endorses a certain belief about religion. And I stress again that this fits well with the Court's doctrine on this, and perhaps is even dictated by the Court's doctrine.

Yet how does this play out in other situations? Here's an example: When I taught criminal law one year, one of the hypotheticals involves the question whether casting a voodoo spell on someone, believing that it would cause the person to die, should count as a criminally punishable attempted murder. That's a difficult question; as I noted before, a few court opinions have considered it and quickly concluded that it shouldn't so count, but as a doctrinal matter it's not clear why -- generally speaking, trying to kill someone is attempted murder even if the attempt is clearly doomed to failure, for instance because you think your gun works but it's actually broken, or because you use a substance that you think is poison but really isn't. Why not if you use a method (voodoo) that you think works but actually doesn't?

One possible answer is offered by the Model Penal Code § 5.05, which says that "If the particular conduct ... is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger ...," a lower penalty may be imposed or the prosecution might be entirely dismissed. And I pointed out that, because voodoo is bunk, this section might well apply (which of course raises the question whether would-be voodoo killers are still dangerous because they might turn to non-voodoo attempts if the voodoo attempt fails, but that's a different matter).

A couple of students after class actually told me that they thought this might be offensive to people who believe in voodoo, but my view was that I can't teach my classes with an eye towards not offending people who believe in voodoo, just as I don't have to worry about people who believe in ghosts or werewolves or unicorns. But under the court's reasoning, would I have been violating the Establishment Clause? (Recall that the endorsement test isn't limited to high schools, but generally applies to public universities as well.) What if a student says that the Earth is 6000 years old because that's what the Bible says; is a public university or high school teacher constitutionally barred from dismissing that theory as "nonsense"? What if a student calls belief in astrology "nonsense," fully aware that some people (not many, but some) have a religious belief system that treats astrology as sensible and in fact as something like a sacrament?

Now I suppose it's possible for teachers, both high school and college, to carefully avoid calling anything that might possibly be linked to a religious belief system "nonsense," and instead just say "it's scientifically unfounded" or some such (though wouldn't that be disapproval, too?). But that would make the discussion pretty artificial, with the teacher being constitutionally barred from saying what is pretty obviously on his mind. Nor would it be true to the principle that schools should be forthright about what's true and what's false: Do we really want high schools and universities to be places where one can't call astrology or voodoo bunk? And while in some classes the pedagogically superior practice would be to talk about why a particular belief system is indeed unfounded, that often won't be so: My class, for instance, wasn't a class about the scientific reasons why voodoo isn't going to work.

Now of course there are plenty of good practical and institutional distinctions to be drawn here. The development of the human species is a subject that's much further from us in time than is the effectiveness or not of voodoo or astrology. There's more room for debate about whether evolution offers an adequate explanation of the origin of mankind.

And of course it's probably practically wiser to avoid calling a very common religious belief system nonsense, in order to maintaining a good working relationship with the students. On the other hand, tip-toeing around labeling as nonsense that which nearly all educated people agree is nonsense might actually interfere with a good working relationship with the students, for the reasons I mentioned above. But it's hard for me to see how these distinctions can be translated from pragmatic guidelines into constitutional rules.

I say it again: The court may have been quite right as a matter of existing doctrine, and if we are going to say that public institutions can't advocate in favor of creationism, it makes sense for the doctrine -- which has been defended by claims of symmetry, such as that the government may neither endorse nor disapprove of religion, may neither advance nor inhibit religion, and may neither show favoritism nor hostility -- to also bar statements that creationism is superstitious nonsense. But the result is either that (1) teachers can't condemn voodoo, astrology, young-Earthism, and so on as the bunk that they are, (2) courts have to draw lines between which religious beliefs may be disapproved of and which may not be, or (3) teachers are even more at see about what they are constitutionally barred from saying than we've seen from past endorsement cases.

Thanks to Religion Clause for the pointer. I should also say that I'm not at all defending the teacher in this case; some of his statements, as quoted in the opinion, strike me as hard to defend as a matter of either pedagogy or accuracy, but that's a separate question from whether they are actually unconstitutional.


A Different Take on Justice Souter: In his post below, my co-blogger Todd Zywicki writes:
In the end, I don't think that anyone would champion Souter as a anything other than a mediocre Justice. It is hard to measure how "good" a Justice is--one could imagine many different criteria: smarts, influence, coalition-building skills, etc. No matter what criteria one uses, however, doesn't it seem to be the consensus that Souter is certainly near the bottom, if not at the bottom, of the current Court? Perhaps this is an unusually talented Court. But still, Souter is by any measure a weak link on the Court most would think.
  I disagree.

  When I was a law clerk, five years ago, I ended up being very impressed by Justice Souter. Of all the liberal-leaning Justices, Souter became by far my favorite. True, he is not a great writer: His opinions don't "sing." And I often disagreed with his approach. At the same time, I ended up being very impressed with his intelligence and integrity during the Term. He's a sharp judge, and his words are 100% his own. Plus, I thought his oral argument questions were (and still are) among the very best. When it's a case I know inside-and-out,the chances are that Justice Souter will ask the most piercing question that gets to the very heart of the matter. He's not a flashy guy, and the outsider can't see the process that leads to his decisions. But at least based on my experience, I thought he was an impressive Justice.

  UPDATE: I should also add, in response to the point about Souter being an "accident of history," that I think most Justices are accidents of history. Once in a while someone ends up on the Court who has a plausible claim of really deserving it; think Holmes or Cardozo, both towering figures in the law before being nominated. But I think it's much more common for the pick to be someone relatively obscure.

  ANOTHER UPDATE: While I'm disagreeing with Todd, let me also take on his comment about Janet Reno:
Reno, by contrast, was a real menace and her elevation by accident of history was, I think, by most accounts a disaster. Her utter lack of qualifications and temperament for the job left her completely dependent on the Clintons' patronage so she feared above all being fired and returned to obscurity.
  Again, I disagree. I served under AG Reno for two years when I was at DOJ, and I found her to be pretty impressive, actually. My sense of her was that she was independent and did her best to be principled, and she did what she thought was right even if she knew it would be politically controversial. If course, you can agree or disagree with her individual decisions as AG: My own views were mixed. But as someone at DOJ at the time, I thought she did what she thought was correct.

  Finally, I can't disagree strongly enough with Todd's claim that Reno was "completely dependent on the Clintons' patronage." My sense at the time was that Reno didn't like the Clintons and the Clintons hated Reno. Reno's best guarantee of job security was her independence: Her independence made it politically difficult for Clinton to fire her.

Related Posts (on one page):

  1. A Different Take on Justice Souter:
  2. Justice Souter and Accidents of History:

Justice Souter and Accidents of History:

What do I say about Justice Souter (I'm sure you were on the edge of your seats)? I have little to say about Justice Souter, actually. But since Souter is now departing from the scene I bless you with a little pet theory of mine.

Every once in awhile, through pure accident of history, an individual rises to a position of fame and responsibility in American society for which he has no business rising and for which he or she simply lacked the experience and mental fortitude to cope. In my lifetime, I can think of three such people: Dan Quayle, Janet Reno, and David Souter. There may be others--feel free to nominate your own.

Quayle, Reno, and Souter were all pure accidents of history. Reno, as the third-choice Attorney General because of Bill Clinton's determination to choose a woman. Quayle, well for whatever reason, presumably because Bush wanted a "Jack Kemp-type" but not Jack Kemp, or whatever. And Souter, because as Jan Crawford Greenburg reports, there was no Plan B when Ken Starr got shot down internally.

Having said that, both Quayle and Souter seemed to do a competent job once they got into office. But then again, how would one tell if a VP were incompetent--except, of course, other than creating a public panic over riding the subway. Quayle's was sort of a benign incompetence.

In Souter's case, it is my opinion that Souter's unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe. He never really seemed to have any coherent idea of what the judge's proper role was. Bill Stuntz had a great essay on Powell and O'Connor that I think applies to Souter as well (the link to the original article is broken, but Orin excerpted the key paragraphs here). In that sense, he was similar to Sandra Day O'Connor, a potential "accident of history" contender as well because of Reagan's campaign promise. In my opinion, she too was one of the more mediocre Justice of recent times.

In the end, I don't think that anyone would champion Souter as a anything other than a mediocre Justice. It is hard to measure how "good" a Justice is--one could imagine many different criteria: smarts, influence, coalition-building skills, etc. No matter what criteria one uses, however, doesn't it seem to be the consensus that Souter is certainly near the bottom, if not at the bottom, of the current Court? Perhaps this is an unusually talented Court. But still, Souter is by any measure a weak link on the Court most would think.

Reno, by contrast, was a real menace and her elevation by accident of history was, I think, by most accounts a disaster. Her utter lack of qualifications and temperament for the job left her completely dependent on the Clintons' patronage so she feared above all being fired and returned to obscurity.

What does this say? Not much, I reckon, other than I hope that whoever Obama picks to fill Souter's seat, it will be someone chosen by design and not a panicked elevation by accident of history.

While I have your attention, I'd like to point you to Tom Smith's witty take, "I would like to like Justice Souter". I don't discern any disagreement from Tom about Souter's essential mediocrity.

Related Posts (on one page):

  1. A Different Take on Justice Souter:
  2. Justice Souter and Accidents of History:

Lori Drew Update: Readers following the Lori Drew case will be interested in this post by Kim Zetter on the upcoming sentencing scheduled for May 18th. As the post makes clear, Judge Wu has not yet ruled on the defense's Rule 29 motion to dismiss, but is expected to do so soon.

Update on United States v. Davis: Back in December, I blogged a series of posts about a 6th Circuit opinion, United States v. Davis, in which a panel sua sponte raised the question of a traffic statute's constitutionality, struck down the statute as unconstitutionally vague, and then ruled that the unconstitutionality of the statute was not relevant to the outcome of the case. The Sixth Circuit later withdrew the opinion, and the State of Michigan filed a brief defending the statute.

  Readers who followed those earlier posts might be interested to know that the Sixth Circuit handed down a new opinion in the case last week. It's a 3-page unpublished decision that only addresses the probable cause issue. The opinion adds a footnote:
We thank the State of Michigan for submitting its views on whether this law is void for vagueness. Because Davis did not raise this question, we decline to reach it here.

The Case for Karlan: Bill Stuntz makes the case that Obama should nominate Pam Karlan for the upcoming Supreme Court vacancy over at Less than the Least. Stuntz's emphasis on Karlan's writing ability brings to mind her very funny graduation speech at Yale Law School in 2007. (Hat tip: Chad Oldfather.)

Supreme Court Curtails Superfund Liability:

In a potentially significant ruling, in Burlington Northern & Santa Fe Railway v. United States, the Supreme Court limited liability for the cleanup of hazardous waste sites under the federal Superfund statute. Justice Stevens, writing for an eight justice majority (all of the justices except for Ginsburg) significantly narrowed the basis upon which companies may be held liable for cleanup costs as "arrangers" of waste disposal. It further upheld the district court below's finding that clean-up costs could be apportioned, thereby limiting the application of joint and several liability for cleanup costs. Unlike the other environmental decisions handed down this term, this one could be a biggie. I haven't had the time to fully digest the opinion yet, but here's Dan Farber's initial reaction at Legal Planet.

UPDATE: The NYT's Adam Liptak covers the case here.


Posner Has a New Blog:

Judge Richard Posner must have too much time on his hands, as he has a new blog on economic policy at


Supreme Court Trivia: How many United States Supreme Court Justices married their secretaries? Which Justices did so?

The Bill of Federalism: I received a deluge of feedback on my WSJ column, The Case for a Federalism Amendment. The overwhelming response was positive--indeed enthusiastic--but some took issue with aspects of my proposal with well founded objections. Many also had their own favorite provisions they wanted to see included. And there were also objections to the wisdom of the entire project of seeking constitutional changes through the states.

This feedback caused me to reconsider (a) the substance of some aspects of my proposal, (b) whether it might not be a better idea to disaggregate it into constituent parts while (c) adding provisions favored by others.

The result is a tentative draft of a Bill of Federalism with 10 amendments, along with a Preamble and explanation of each provision. I discuss the strategy behind this initiative and proposal on PJTV here. In particular, I address objections to asking states to petition for a convention to propose constitutional amendments, and the advantages of a Bill of Federalism over a single amendment with multiple interrelated parts.

A website has been created to collect comments, some of which are very useful. I intend to rewrite the proposal soon, and make substantial revisions to it. If you want to provide your comments, you can do so here. (Comments are moderated so there will be a delay in their posting.) I encourage anyone with comments or objections to post them on, where others can read them too. What follows are the first draft of the amendments with my explanations in hidden text.

Let me stress once again that THIS PROPOSAL WILL CHANGE SUBSTANTIALLY. Some provisions will be deleted, combined, or altered, and others added.
Resolution for Congress to Convene a Convention to Propose Amendments Constituting a Bill of Federalism

Whereas Article I of the Constitution of the United States begins “All legislative powers herein granted shall be vested in a Congress of the United States”; and

Whereas the Congress of the United States has exceeded the legislative powers granted in the Constitution thereby usurping the powers that are “reserved to the states respectively, or to the people” as the Tenth Amendment affirms; and

Whereas the Supreme Court of the United States has ignored the meaning of the Constitution by upholding this usurpation of the powers of the several states and of the people;

To restore a proper balance between the powers of Congress and those of the several States, and to prevent the denial or disparagement of the rights retained by the people to which the Ninth Amendment refers, the legislature of the State of ________ hereby resolves that:

Congress shall call a convention to propose the following articles be added as separate amendments to the Constitution of the United States, each of which shall be valid to all intents and purposes as part of the Constitution when separately ratified by the legislatures of three-fourths of the several States:

[The Bill of Federalism]

Article [of Amendment 1] — [Limits of Federal Power]
Congress shall make no law nor delegate any authority, pursuant to its powers in the eighth section of article I, respecting any activity confined within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress has power to reasonably regulate pollution between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.
Article [of Amendment 2] — [Unfunded Mandates and Conditions on Spending]
The legislative power shall not be construed to allow Congress to impose upon a State, or political subdivision thereof, an obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall the legislative power be construed to allow Congress to place any condition on the expenditure or receipt of appropriated funds unless the requirement imposed by the condition would be within its power if enacted as a regulation.
Article [of Amendment 3] — [Reserved Powers of States]
Subject to the requirements of Article VI, every state has the power to regulate or prohibit any activity that takes place within its borders, provided that no state regulation or prohibition shall infringe any enumerated or unenumerated right, liberty, privilege or immunity recognized by this Constitution.
Article [of Amendment 4] — [Recision Power of States]
Upon application of the legislatures of two thirds of the states, any law, regulation or order of the United States shall be rescinded.
Article [of Amendment 5] — [No Federal Death Tax]
Congress shall have no power to lay and collect taxes upon personal gifts or estates.
Article [of Amendment 6] — [No Federal Income Tax]
The sixteenth article of amendment to the Constitution of the United States is hereby repealed, and Congress shall have no power to lay and collect taxes upon personal incomes, consumption or expenditures, but nothing in the Constitution shall be construed to deny Congress the power to lay and collect an excise or sales tax that is uniform throughout the United States. This article shall be effective five years from the date of its ratification.
Article [of Amendment 7] — [Term Limits for U.S. Senators and Representatives]
Section 1. No p
erson who has been elected or served for a full term to the Senate two times shall be eligible for election or appointment to the Senate. No person who has been elected for a full term to the House of Representatives six times shall be eligible for election to the House of Representatives.
Section 2. No person who has served as a Senator for more than three years of a term to which some other person was elected or appointed shall subsequently be eligible for election to the Senate more than once. No person who has served as a Representative for more than one year shall subsequently be eligible for election to the House of Representatives more than five times.
Section 3. No election or service occurring before this article becomes operative shall be taken into account when determining eligibility for election under this article.
Article [of Amendment 8] — [Balanced Budget Veto]
Section 1. For purposes of this article, the budget of the United States for any given fiscal year shall be deemed unbalanced whenever the total amount of the debt of the United States held by the public at the close of such fiscal year is greater than the total amount of the debt of the United States held by the public at the close of the preceding fiscal year.
Section 2. If the budget of the United States is unbalanced for any given fiscal year, the President may separately approve, reduce or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States, and which is presented to the President during the next annual session of Congress.
Section 3. Any legislation that the President approves with changes pursuant to section 2 of this article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed under section 7 of Article I for bills disapproved by the President, separately reconsider those reduced or disapproved monetary amounts.
Section 4. The Congress shall have the power to implement this article by appropriate legislation.
Section 5. This article shall take effect on the first day of the next annual session of Congress following its ratification.
Article [of Amendment 9] — [Protecting the Rights Retained by the People]
The rights of citizens of the United States include all the enumerated and unenumerated liberties, and privileges recognized by this Constitution. Nothing in this constitution shall be construed to create any conclusive or irrebuttable presumption that a law, regulation, or order of the United States or of a State does not infringe such rights. In any case or controversy in which an abridgment of such rights is alleged, no party shall be denied the opportunity to introduce evidence or otherwise show that a law, regulation or order is an unreasonable restriction on such rights and therefore is unconstitutional.
Article [of Amendment 10] — [No Judicial Alterations of the Constitution]
The words and phrases of this Constitution shall be interpreted according to their meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V.

Another Interesting Lineup:

Among the four opinions the Supreme Court handed down today was Arthur Anderson LLP v. Carlisle. Justice Scalia wrote the majority opinion, joined by Justices Kennedy, Thomas, Gisburg, Breyer, and Alito. Justice Souter dissented, joined by Justice Stevens and the Chief Justice.

Related Posts (on one page):

  1. Another Interesting Lineup:
  2. Today's Supreme Court Lineups:

Rosen v. Sotomayor:

Jeff Rosen makes "The Case Against Sotomayor." in The New Republic. The article, subtitled "Indictments of Obama's front-runner to replace Souter," presents a highly unflattering picture of the Second Circuit judge. Here's a taste:

despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

This essay is the first in a series of profiles on potential Supreme Court nominees. If Rosen's this blunt about Sotomayor, it will be interesting what he has to say about the other short-listers.

UPDATE: Gerard Magliocca responds to Rosen on Concurring Opinions. His bottom line: "Rosen's negative characterization of the Judge, which is based on conversations with various unnamed lawyers, is inaccurate."

UPDATE: Matthew Yglesias thinks this is the money quote from Rosen's article:

I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths.


Supreme Court Justice Retirement Rumors -- in 1896: Recently I came across this New York Times article from January 21, 1896, and I thought readers might find it interesting:
He Will Remain on the Bench So Long As He Works Easily.

  WASHINGTON, Jan. 21. — Associate Justice Stephen J. Field of the United States Supreme Court, in regard to whose retirement rumors have been published for many years, authorizes a denial of the latest statement to that effect, which was published this morning. The venerable jurist says:
  "Of course, a man at my time of life might retire from the bench at any time. If my health should not permit me to attend to my duties easily, I should not hesitate to leave the bench, but so long as I can attend to these duties with ease, I have no intent of retiring."
  Born in 1816, and appointed to the Supreme Court by Abraham Lincoln in 1863, Justice Field has long since passed the limit entitling him to retire on full pay whenever he so desires. Only Chief Justice Marshall and Justice Story have exceeded him in length of service, and they only by a few months.
  Field retired about two years later, incidentally. If you follow the succession of his seat, it went to Justice McKenna, then Stone, Robert Jackson, Harlan II, Rehnquist as an Associate Justice, and then presently to Justice Scalia.

The Myth of Justice Souter as a Yankee Republican: Some people say that Justice Souter is a Yankee Republican, and that he seems like a liberal only because the GOP has shifted so far to the right. In an earlier day, the argument runs, he would have been considered a Justice on the conservative side. I confess I find this claim puzzling, and I wanted to offer some thoughts about why.

  First, consider the fact that the two Justices on the current Court who vote most frequently with each other are often Justice Souter and Justice Ginsburg. Looking at the current Supreme Court Term, for example, the Souter/Ginsburg pairing is the most common: They have fully agreed with each other 88% of the time. The next closest pairings are Scalia/Roberts at 83%, Roberts/Alito at 81%, and Thomas/Scalia at 79%.

  I think it is generally recognized that Justice Ginsburg is not a Yankee Republican, and that she would not have been a Republican if the GOP had not become more conservative. Everyone pretty much agrees that Justice Ginsburg is very much a Democrat and at least somewhere on the left. But if the Souter/Ginsburg pairing is the closest pairing on the Court, closer than Thomas/Scalia, then isn't it a little strange to say that one is a liberal Democrat but the other is a Yankee Republican who only "seems" liberal?

  Next, consider the cliche that it's Justice Kennedy's Court, and that the really big ideological cases are likely to be 5-4. That cliche has some force because in big ideological cases, Justice Souter is a safe vote for the liberal side. Souter is part of the "four" on the left side of the Court that makes Kennedy the swing vote. If there's a case about affirmative action, abortion, gay rights, federalism, takings, the Second Amendment, or any other "hot" area, everyone simply assumes that Justice Souter is voting for the liberal side. Usually there's no debate on this: You know where Souter is coming out, because that's where he pretty much always comes out in the big ideological cases.

  Making broad claims of ideology can be tricky business, so a few caveats are in order. Perhaps Justice Souter has policy views that are different from his legal views. Or perhaps he has traditionally Republican views on some policy issues that don't come up in Supreme Court cases. And there are always various strains within ideologies; A moderate liberal might seem almost conservative to someone far on the left. Still, just based on his votes — which is the usual way to measure and discuss a Justice's ideology — it seems to me that Justice Souter has voted as a reliably liberal Justice.

Related Posts (on one page):

  1. Is Justice Souter a "Burkean" Conservative?
  2. The Myth of Justice Souter as a Yankee Republican:

Sunday, May 3, 2009

[Adam Mossoff, guest-blogging, May 3, 2009 at 11:36pm] Trackbacks
The Sewing Machine Combination -- A Fountainhead of Innovation:

In this last of the purely historical posts, I'll discuss the success of the Sewing Machine Combination, not just in ending the Sewing Machine War but also in serving as a fountainhead for further innovation by its members.

Altough the Sewing Machine Combination was repeatedly attacked in court and in the popular press as a “grinding, pitiless monopoly” that engaged in “oppressive conduct,” it served a vital commercial function beyond simply resolving the Sewing Machine War. Even more important, it freed the sewing machine manufacturers to get down to the business of making and selling sewing machines. This was especially true with respect to Singer, who found motivation for his business acumen in “the dimes, not the invention.” Thus, he and his business partner, Edward Clark, were able to use the legal and commercial freedom secured to them by the Combination to create and to profit from several innovative marketing and business strategies.

First, Singer recognized very early on that the success of the sewing machine was predicated on his convincing the public that his new sewing machine was not merely a repeat of the past failures of prior inventors. He thus pioneered mass marketing and advertising; in essence, he was the nineteenth-century equivalent of Billy Mays and the "as seen on TV" approach to advertising. One historian has noted that, at that time, Singer's mass marketing techniques represented an entirely “new concept of selling.” This entailed a concerted and sustained marketing campaign directed to bringing his sewing machine to the public’s attention and to convincing them of its practical virtues. He traveled the country, giving free demonstrations at fairs, carnivals, and in rented halls. In addition to these free demonstrations, he performed renditions of Thomas Hood’s Song of the Shirt, reminding his audiences of the toils from which seamstresses would be freed by his new invention.

But Singer also recognized that he had to do more than just sell the public on the practicality of his sewing machine, he also had to address the prejudice that women were incapable of working machinery, or, if they could, that it was improper and unwomanly for them to do so. Driven by his own pursuit of fortune, and thus setting aside his own personal bigotry, Singer hired women to demonstrate his sewing machine, as well as teach other women how to use it. One of I.M. Singer & Co.’s first employees was Augusta Eliza Brown, who was hired in 1852 for solely these purposes.

Demonstrations of the sewing machine by Ms. Eliza and other women not only disproved the widespread belief that women could not work machines, they also played an important role in Singer’s new concept of splashy, eye-catching marketing. In 1852, Edward Clark wrote to a company agent that “we have got possession of a front window under our office [in Boston] at the moderate rent of one thousand dollars a year, and a nice little girl is operating a machine in it, to the great entertainment of the crowd.”

In addition to his innovative marketing campaign, Singer and Clark also pioneered novel business practices to increase the company’s sales and profits. A significant barrier to the widespread adoption and use of the Singer Sewing Machine was its price: It cost $125, which may not seem like much today, but in the 1850s, the average American family earned less than $500 per year. In response to this problem, Clark invented a new business method for selling their sewing machines: the installment-purchase program. The company’s newspaper, the I.M. Singer & Co. Gazette, explained the purpose of Clark’s rent-to-own sales program:

Why not rent a sewing machine to the housewife and apply the rental fee to the purchase price of the machine? Her husband cannot accuse her of running him into debt since he is merely hiring or renting the machine and under no obligation to buy. Yet at the end of the period of the lease, he will own a sewing machine for the money.

This was the first such installment-purchase program in American history, and it was a brilliant solution to the price problem in selling Singer Sewing Machines. In combination with Singer’s novel marketing schemes, this program should have had a tremendous impact on I.M. Singer & Co.’s bottom line. It did indeed have an impact, tripling the sales of Singer Sewing Machines from 1855 to 1856, but such successes were tempered by the massive expenses imposed on the company by the now-raging Sewing Machine War. Sales of Singer Sewing Machines were dismal from 1853 to 1855, which, in comparison to the explosion in its sales following the formation of the Sewing Machine Combination in 1856, is perhaps a result of the uncertainty surrounding the Singer Sewing Machine caused by the legal dispute between Singer and Howe, and then the start of the full-scale Sewing Machine War in 1854.

Following Potter’s creation of the Sewing Machine Combination in November 1856, Singer and Clark’s innovative efforts at commercializing their patented invention began to realize their full potential. In fact, the year after the Combination was created, Clark invented another new business method to further secure I.M. Singer & Co.’s place in the soon-to-be exploding sewing machine market: he conceived of a trade-in plan in which I.M. Singer & Co. would accept any older version of a Singer Sewing Machine, or any competitor’s sewing machine, in exchange for a $50 credit toward a new Singer Sewing Machine. Again, this was a brilliant marketing stratagem, as it killed two birds with one stone for I.M. Singer & Co. First, it reduced the price of a new sewing machine, increasing overnight the number of purchasing consumers (and revealing an implicit understanding of elasticity of demand on the part of Clark). Second, it effectively prevented the rise of a second-hand market for used sewing machines that would compete with sales of new sewing machines.

Singer and Clark’s innovation in both creating a sewing machine market and then securing I.M. Singer & Co.’s place as a dominant firm within this new market is a palpable example of the commercialization benefits secured by property rights in patented inventions. With the end of the Sewing Machine War and the formation of the Sewing Machine Combination in 1856, I.M. Singer & Co. immediately began reaping the fruits of its labors. Despite the severe economic recession of 1857, the members of the Combination flourished, including I.M. Singer & Co., whose sales almost doubled from 1857 to 1858. And, despite the tremendous economic and political tumult of the Civil War, sewing machine manufacturers continued to experience tremendous sales growth, helped in part by the fact that their machines were clothing Union soldiers. During the war, I.M. Singer & Co., which was renamed the Singer Manufacturing Company in 1863 (see the postscript below for an explanation of this), watched its sales grow each year from 16,000 machines in 1860 to 23,632 in 1864.

As a result of its constant focus on innovation, made possible by its patented inventions and its participation in the Sewing Machine Combination, the Singer Manufacturing Co. eventually overtook Wheeler, Wilson & Co. in 1867 as the top-selling sewing machine firm. By 1876, the Sewing Machine Combination’s records reveal that the Singer Manufacturing Co. sold more than double the number of sewing machines than that of its closest competition. When the Sewing Machine Combination terminated in 1877, the Singer Manufacturing Co.’s sales accounted for more than half of the total sales of sewing machines, and the company controlled 75% of the world market for sewing machines. In sum, Singer and Clark’s commercial innovation, made possible by Singer’s patented improvements to the sewing machine, not only ensured the success of Singer Manufacturing Co., it was largely responsible for the success of the American sewing machine industry writ large. By all accounts, Singer’s company was the most successful sewing machine company, and it justifiably served as the public face of the Sewing Machine Combination.

In my next couple posts, I will discuss some of the policy insights we may draw from this historical case study of the incremental invention of the sewing machine, the first patent thicket, the first "patent troll," and the first patent pool. In so doing, I'll also discuss and respond to some of the issues raised by commentators over the past week.

POSTSCRIPT: Some readers may be wondering about the 1863 name change of I.M. Singer & Co., to the Singer Manufacturing Co. This was a result of Singer’s characteristic intemperate nature — and his polygamy. After forming their business partnership in 1851, Clark and Singer worked very well together until 1860, when a public scandal erupted after one of Singer’s wives, Mary Sponsler, discovered Singer with one of his other wives, Mary McGonigal, in the middle of Fifth Avenue in New York City. Following this confrontation, Singer nearly choked Mary Sponsler to death, and he then fled to Europe for a brief respite from the public uproar. He eventually returned in 1863 to marry another woman, Isabella Boyer. Clark was of high birth and he could not abide by such behavior. Following Singer’s return in 1863, they formally dissolved the I.M. Singer & Co. partnership. Clark then incorporated the Singer Manufacturing Company, with Clark in control of the company and its assets and Singer receiving guaranteed income from his ownership of 40% of the stock.


"Freedom Republicanism": A Way Forward for the GOP?

South Carolina Senator Jim DeMint on his prescription for a "big tent" Republican Party:

To win back the trust of the American people, we must be a "big tent" party. But big tents need strong poles, and the strongest pole of our party -- the organizing principle and the crucial alternative to the Democrats -- must be freedom. The federal government is too big, takes too much of our money, and makes too many of our decisions. If Republicans can't agree on that, elections are the least of our problems. . . .

Freedom will mean different things to different Republicans, but it can tether a diverse coalition to inalienable principles. Republicans can welcome a vigorous debate about legalized abortion or same-sex marriage; but we should be able to agree that social policies should be set through a democratic process, not by unelected judges. Our party benefits from national-security debates; but Republicans can start from the premise that the U.S. is an exceptional nation and force for good in history. We can argue about how to rein in the federal Leviathan; but we should agree that centralized government infringes on individual liberty and that problems are best solved by the people or the government closest to them.

Moderate and liberal Republicans who think a South Carolina conservative like me has too much influence are right! I don't want to make decisions for them. That's why I'm working to reduce Washington's grip on our lives and devolve power to the states, communities and individuals, so that Northeastern Republicans, Western Republicans, Southern Republicans, and Midwestern Republicans can define their own brands of Republicanism. It's the Democrats who want to impose a rigid, uniform agenda on all Americans. Freedom Republicanism is about choice -- in education, health care, energy and more. It's OK if those choices look different in South Carolina, Maine and California.

Sounds good to me, but actions will speak louder than words.


EPA to Control Water Pollution from Air Pollution Controls:

From the Washington Post:

Faced with new evidence that utilities across the country are dumping toxic sludge into waterways, the Environmental Protection Agency is moving to impose new restrictions on the level of contaminants power plants can discharge.

Plants in Florida, Pennsylvania and several other states have flushed wastewater with levels of selenium and other toxins that far exceed the EPA's freshwater and saltwater standards aimed at protecting aquatic life, according to data the agency has collected over the past few years. While selenium can be beneficial in tiny amounts, elevated levels damage not only fish but also birds and people who consume contaminated fish.

Ironically, the reason more selenium and metals such as arsenic are now entering U.S. waterways is because the federal government has pressed utilities to install pollution-control "scrubbing" technology that captures contaminants headed for smokestacks and stores them as coal ash or sludge. The EPA estimates that these two coal combustion residues -- which are often kept in outdoor pools or flushed into nearby rivers and streams -- amount to roughly 130,000 tons per year and will climb to an estimated 175,000 tons by 2015.


The Sotomayor Video: I have a different reaction than my co-blogger Jonathan to the video of Judge Sotomayor. Here's the transcript, as best I can tell:
  All of the Legal Defense Funds out there — they're looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made.
  And I know, and I know, that this is on tape, and I should never say that. Because we don't "make law," I know. [audience laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm . . you know. [audience laughter]
  As I see it, Judge Sotomayor is saying that, descriptively, the court of appeals is "where policy is made." She then realizes that what she has said could be used against her someday — presumably in a Supreme Court confirmation hearing — so she pokes fun at herself and her situation by announcing for the record that she doesn't promote or advocate that, with the audience in on the joke.

  The impression I get is that she believes that court of appeals do make law, and properly so, but that some people out there don't understand this and you don't want to be on the record as expressing that position (even though it's correct). That's my best sense of what she's saying, at least.

  UPDATE: The entire video is available here. Judge Sotomayor 's comment comes at the 43:40 mark. The comment arises when she is explaining the difference between the district court and the court of appeals, and thus the difference in clerking at the two different environments. In the district court, she says, the goal is justice in the individual case. You need to think fast, and make a decision immediately. In contrast, at the court of appeals, the judges are usually — not always, but usually — worried about how the legal precedent will apply to the next case. So you need to be more contemplative at the circuit court level. Thanks to commenter "one of many" for the link.

Related Posts (on one page):

  1. The Sotomayor Video:
  2. Courts Are "Where Policy Is Made":

Courts Are "Where Policy Is Made":

A video of Sonia Sotomayor, a judge on the U.S. Court of Appeals for the Second Circuit widely viewed as a short-listed for the Supreme Court, is making the blogospheric rounds. In the clip, she says that the courts of appeals are "where policy is made." Some seem to think that this is a damning statement and evidence of closet "judicial activism." I don't. As presented in the clip, it seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications -- and deciding the case will, in many instances, "make policy." But this is wholly consistent with the idea that a judge's responsibility is to interpret and apply the law without regard for those policy consequences. Further, given the context of Judge Sotomayor's remarks, it is totally understandable why some prospective employers would want to hire individuals who are exposed to these sorts of cases. So, in sum, I don't think the statement on this video clip is a big deal. Move along.

Related Posts (on one page):

  1. The Sotomayor Video:
  2. Courts Are "Where Policy Is Made":

Reply to Jon Stewart re: Truman as War Criminal: Jon Stewart has apologized for what he termed as his "stupid" characterization of President Harry Truman as a war criminal because the US did not explode a demonstration atomic bomb before using one on Hiroshima.
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As noted by Allahpundit, Stewart doesn't explain why his original remark was "stupid"--apart from saying that the decision to use the atom bomb was "complicated"--but this reply to Stewart by Bill Whittle has been making the blogospheric rounds. I post it here because I know there are those who agree with Stewart's original remark about Truman, and this 16 minute video contains considerable information about the use of the atom bomb that I had never heard before.


Desperately Smearing Sunstein:

When President Obama first announced his intention to nominate Harvard law professor Cass Sunstein to head the Office of Information and Regulatory Affairs, most of the criticism came from the left. (Us VC folk were quite positive, and not just because he's been a guest blogger.) Now, however, some folks are going after Cass from the right. There's even some right-wing petition out there to block his confirmation. Julian Sanchez is not impressed.

Related Posts (on one page):

  1. Sunstein on Hold:
  2. Cass's Day in the Sun -- or the Heat?
  3. Desperately Smearing Sunstein:

"Thuggery" in Bankruptcy?

Bankruptcy attorney Tom Lauria is making incdendiary, and quite disturbing, charges against the Obama White House. On a radio show he claimed that one of his clients, a Chrysler bondholder, was told its reputation would be "destroyed" in the press corps if it did not accede to the Administration's wishes with regard to Chrysler's restructuring. Here's a transcript of the relevant portion of the interview:

people have asked me who I represent. That’s a moving target. I can tell you for sure that I represent one less investor today than I represented yesterday. One of my clients was directly threatened by the White House and in essence compelled to withdraw its opposition to the deal under the threat that the full force of the White House Press Corps would destroy its reputation if it continued to fight. That’s how hard it is to stand on this side of the fence.
In other words, the White House threatened severe retaliation against a creditor for standing on its legal rights. Glenn Reynolds calls this "White House Thuggery". If the allegation is true — and at this point it is just an allegation (and an allegation that could serve the interests of Lauria's clients) — I would be inclined to agree.

Assuming the allegation is true, it's more than Nixonesque thuggery. It's also stupid and short-sighted. Strong-arming secured creditors to take a back seat to unsecured creditors can't help but undermine overall faith in the sorts of economic deals necessary to quell the credit crisis and right the economy. (It certainly can't help the Administration's efforts to encourage private participation in its plan to handle toxic assets.) More broadly, letting the political class decide which creditors do or don't get paid is the sort of thing one expects to see in a Banana Republic. It is antithetical to the rule of law and undermines the trust necessary for liberal economic institutions to function.

Megan McArdle has more.

UPDATE: The White House denies Lauria's story. (Link via Instapundit)

UPDATE: More from Tom Maguire.

UPDATE: More from the NYT.

YET ANOTHER UPDATE: Still more worth reading from John Carney and Megan McArdle.

TUESDAY UPDATE: Other sources are now corroborating Lauria's allegations.


Does Gender Make a Difference on the Court?

From an interesting op-ed in today's Washington Post by Christina Boyd and Lee Epstein.

a diverse Supreme Court isn't just about a bench that looks like America. This is about jurisprudence, too. In research that we conducted with our colleague Andrew D. Martin, we studied the votes of federal court of appeals judges in many areas of the law, from environmental cases to capital punishment and sex discrimination. For the most part, we found no difference in the voting patterns of male and female judges, except when it comes to sex discrimination cases. There, we found that female judges are approximately 10 percent more likely to rule in favor of the party bringing the discrimination claim. We also found that the presence of a female judge causes male judges to vote differently. When male and female judges serve together to decide a sex discrimination case, the male judges are nearly 15 percent more likely to rule in favor of the party alleging discrimination than when they sit with male judges only.

This holds true even after we account for judges' ideological leanings. If Obama is considering two fairly moderate people, one a woman and the other a man, we would expect the woman to cast more liberal votes in sex discrimination cases. The same would be true if the president were considering two very liberal candidates, again, one a man and one a woman.

UPDATE: In a related vein, here's a student note finding a statistically significant difference in the way male and female judges handle cases involving sexual orientation.


Sunday Song Lyric: Depeche Mode has a new album. No, really. Here's the opening of NME's review:
While it’s obvious what to do when you’re too old to rock (buy a stool, invest in an acoustic, learn how to play ‘In The Pines’), there’s no real career path for synth-pop acts like Depeche Mode to follow. After all, they can’t play unplugged gigs, can they? On their 12th album and 29 years into their career, the Basildon bondage boys have switched down a gear by hunting for vintage synths and drum machines on eBay, imagining an alternative past where technology froze at some point round 1990, but their desire to make futuristic music didn’t.
I'm not sure if I'll pick up the CD. I rarely listen to all the old DM CDs I have now, though there was a time I couldn't get enough of Some Great Reward. The album title came from "Lie to Me," a song that could just has easily been about politics as seduction.
Promises made for convenience
Aren't necessarily
What we need
Truth is a word
That's lost its meaning
The truth has become
Merely half-truth
So lie to me
Like they do it in the factory
Make me think
That at the end of the day
Some great reward
Will be coming my way
Here's a live performance. And for those curious, here's the video for new single, "Wrong."

The Decline of the Billable Hour?

These guys say billable hours are being replaced by flat rates and other more cost-effective means of buying legal services.


Jack Kemp, RIP:

Jack Kemp has passed away. Kemp was a longtime Republican Congressman, HUD Secretary under President George H.W. Bush, a two time presidential candidate, and the Republican nominee for vice president in 1996. In the 1960s, he was a star quarterback for the Buffalo Bills. Others can better assess Kemp's career and legacy than I can. However, I wish to say a few words because Kemp was one of my superiors when I was an intern at Empower America during the summer of 1993. a I was a college sophomore at the time. EA was a public policy organization that Kemp co-founded with William Bennett and Jeane Kirkpatrick. My work was principally focused on school choice, which was also a major interest of Kemp's.

There are three things I will always remember about Kemp. First, unlike most politicians I have met or heard of, Kemp had a genuine interest in ideas. His office was filled with books about politics, history, and economics, most of which had the look of actually having been read and carefully studied. He was always interested in having discussions about policy issues - sometimes even with lowly interns like me. Kemp was much more knowledgeable about policy than most public officials with far more elite educational credentials.

Second, Kemp was one of those rare individuals who is genuinely at ease with people from all walks of life. Most politicians can affect an air of friendliness when necessary. But Kemp seemed to genuinely enjoy talking about a wide range of matters with all sorts of people. He was equally at home with policy wonks, athletes, and just ordinary voters.

Third, he had a serious and longstanding commitment to school choice, enterprise zones (a longtime focus of his efforts), and other policies by which market mechanisms can be used to advance the interests of the poor and disadvantaged. This came through both in his well-known public actions and in the passion he showed for these issues behind closed doors. Many Republican political leaders have endorsed similar policies at various times, but few showed anything like the same degree of genuine commitment to them.

I did not always agree with Kemp. For example, I did not fully share his faith in supply-side economics, and I thought that he was insufficiently attentive to the dangers of excessive government spending. Kemp was also more socially conservative than I am. However, I did greatly respect him, and there are precious few other politicians about whom I can say the same thing.

In closing, I would like to extend my condolences to Secretary Kemp's family, friends, and colleagues.