Saturday, September 5, 2009

Could a Government Regulator of Systemic Risk Avoid the Next Economic Meltdown?--

One of the goals of proposed regulatory changes of the financial industry is — as President Obama has argued — to create "a 21st century regulatory framework to ensure that a crisis like this can never happen again":

1. [L]et's put in place some financial regulations to make sure that this doesn't happen again.

2. My job is to help the country take the long view, to make sure that not only are we getting out of this immediate fix but we’re not repeating the same cycle of bubble and bust over and over and over again . . . .

We’re going to put forward some regulatory architecture that ensures that we don’t see these kinds of systemic risks again.

Yet can a government — whether run by Republicans or Democrats — really anticipate future bubbles or meltdowns? And if it could, would the government have the political will (or political power) to prevent future meltdowns?

As David Walker has argued, “Our off balance sheet obligations associated with Social Security and Medicare put us in a $56 trillion financial hole—and that's before the recession was officially declared last year. America now owes more than Americans are worth—and the gap is growing!"

Even if the problem is only a half or a third of the size that Walker identifies, it still constitutes a huge systemic risk. At some point in the future – perhaps quite suddenly a decade or two hence — it is likely that the purchasers of the government’s massive debt will decide that they won’t buy it without a huge increase in interest rates. As Alistair Thompson said in August 2007 as the credit crisis first hit, “Liquidity can just be turned off, and essentially it is a confidence game.”

Indeed, the last time that we had a recession as deep as the current one was in 1980-82 when a Federal Reserve induced credit crunch caused short term interest rates to reach about 19%.

So if today we had an all-powerful systemic risk regulator who could act to prevent a future melt-down, she might consider taking bold steps to:

Reduce government spending dramatically, especially in the future;

Prevent cap-and-trade from passing;

Stop any expensive health care reforms (and favor cost-cutting measures);

Stop dangerous lending practices at the FHA and the Veterans Administration;

Cut the future costs of Social Security, Medicare, and Medicaid;

Finance much of the existing federal debt with 30-, 50-, and 100-year bonds while interest rates are low; and

Begin orderly sales over the next decade of substantial unused lands owned by the federal government (“It’s time for America to start an annual yard sale of stuff for which the government has little use. This has the ancillary positive effect of reducing excessive government power over its citizens and resources. Does the government really need to own 45% of the state of California?”).

That would be my list to consider. David Walker, the former head of the GAO, has a somewhat different list, but like my ideas, only a few of his proposals are likely to be implemented.

If Walker and a slew of financial commentators are right, our profligate spending is threatening the long-term health of the economy. Excessive borrowing is highly likely to lead eventually to another big credit crunch in a decade or two, and another deep recession.

My point is this: if there were a systemic risk regulator today, very few of the steps she should favor to prevent a future crisis would be supported by the current administration and many would also be opposed by Congress, the last administration, and the American people. I just don’t see how even a reasonably far-sighted super-regulator would be able to do much to reduce the systemic risks that our current policies are fostering.

Related Posts (on one page):

  1. Could a Government Regulator of Systemic Risk Avoid the Next Economic Meltdown?--
  2. FHA Adopts Countrywide's Business Model and It's Not Working . . . Again.--
  3. Former GAO Head Warns of Impending Deficits.--

FHA Adopts Countrywide's Business Model and It's Not Working . . . Again.--

Nick Timiraos and Deborah Solomon at the Wall Street Journal have an excellent report on problems at the FHA (Federal Housing Administration).

"They're probably going to need a bailout at some point because they're making loans in a riskier environment," says Edward Pinto, a mortgage-industry consultant and former chief credit officer at Fannie Mae. " . . . I've never seen an entity successfully outrun a situation like this." . . .

Before the boom, the FHA wasn't a big player in the housing business because it didn't follow private lenders in loosening its standards. Borrowers had to fully document incomes and insured loans were capped at $362,000. Congress increased those limits last year to as high as $729,750 in the most expensive markets. In August, the FHA and the U.S. Department of Veterans Affairs backed 40% of loans for all home sales. . . .

While most private lenders have raised lending standards and now require minimum 20% down payments, the share of borrowers who are able to make down payments of less than 10% hasn't changed in the last two years, largely because of the FHA, says Mr. Pinto . . . .

Marketwatch summarizes the problem:

The government seems to have taken over Countrywide's business model, and it's not working out much better the second time around.

The Federal Housing Administration may be next in line for a government bailout because it's losing a lot of money on bad mortgages, according to a report in the Wall Street Journal.

When the subprime mortgage industry self-immolated a couple years ago, the staid FHA was ordered into the breach to try to stabilize a market in freefall. As the bubble expanded earlier in the decade, the FHA hadn't relaxed its lending standards, unlike its swashbuckling counterparts in the private sector.

But once the housing market started to collapse, the government decided the FHA should try to prop up the market. The FHA loosened its standards a bit, though not as far as the subprime sharks had. FHA guaranteed loans with a down payment as small as 3.5% and let borrowers take a lot of cash out of refinancings. Congress also doubled the maximum loan to $729,750 [in some areas].

The federal agency, which guarantees loans made by private companies, also briefly allowed sellers to finance down payments.

The result was predicable, at least to anyone who was paying attention to the way the housing bubble collapsed. The FHA increased its market share from 3% to about 23%, and more of its loans began to go sour.

The Congress, not just the FHA and the Veterans Administration, have been trying hard to reinflate what's left of the real estate bubble. This reminds me of the successful efforts of the Hoover and FDR administrations in the 1930s to prevent wages in manufacturing from dropping to their market-clearing level, actions that helped create and then lengthen the Great Depression. The quicker housing prices reach their market-clearing level, the sooner a strong housing recovery can start.

Related Posts (on one page):

  1. Could a Government Regulator of Systemic Risk Avoid the Next Economic Meltdown?--
  2. FHA Adopts Countrywide's Business Model and It's Not Working . . . Again.--
  3. Former GAO Head Warns of Impending Deficits.--

No Immunity for Aschroft:

Yesterday, a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that former Attorney General John Ashcroft is not entitled to absolute or qualified immunity against a lawsuit by Abdullah Kidd, who alleges he was unlawfully detained under the federal material witness statute in the wake of the 9/11 attacks. The opinion, but Judge Milan Smith, begins:

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.

Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd’s claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.

Judge Smith was joined by Judge David Thompson. Judge Carlos Bea concurred in part and dissented in part.

Howard Bashman rounds up press coverage here.


Former GAO Head Warns of Impending Deficits.--

John Fund interviews former GAO director David Walker:

David Walker sounds like a modern-day Paul Revere as he warns about the country's perilous future. "We suffer from a fiscal cancer," he tells a meeting of the National Taxpayers Union, the nation's oldest anti-tax lobby. "Our off balance sheet obligations associated with Social Security and Medicare put us in a $56 trillion financial hole—and that's before the recession was officially declared last year. America now owes more than Americans are worth—and the gap is growing!" . . .

"We have four deficits: a budget deficit, a savings deficit, a value-of-the-dollar deficit and a leadership deficit," he tells one group. "We are treating the symptoms of those deficits, but not the disease."

Mr. Walker identifies the disease as having a basic cause: "Washington is totally out of touch and out of control," he sighs. "There is political courage there, but there is far more political careerism and people dodging real solutions." He identifies entrenched incumbency as a real obstacle to change. "Members of Congress ensure they have gerrymandered seats where they pick the voters rather than the voters picking them and then they pass out money to special interests who then make sure they have so much money that no one can easily challenge them," he laments. He believes gerrymandering should be curbed and term limits imposed if for no other reason than to inject some new blood into the system. . . .

What kind of reforms would Mr. Walker hope the commission would endorse? He suggests giving presidents the power to make line-item cuts in budgets that would then require a majority vote in Congress to override. He would also want private-sector accounting standards extended to pensions, health programs and environmental costs. "Social Security reform is a layup, much easier than Medicare," he told me. He believes gradual increases in the retirement age, a modest change in cost-of-living payments and raising the cap on income subject to payroll taxes would solve its long-term problems.

Medicare is a much bigger challenge, exacerbated by the addition of a drug entitlement component in 2003, pushed through a Republican Congress by the Bush administration. "The true costs of that were hidden from both Congress and the people," Mr. Walker says sternly. "The real liability is some $8 trillion."

That brings us to the issue of taxes. Wouldn't any "grand bargain" involve significant tax increases that would only hurt the ability of the economy to grow? "Taxes are going up, for reasons of math, demographics and the fact that elements of the population that want more government are more politically active," he insists. "The key will be to have tax reform that simplifies the system and keeps marginal rates as low as possible. The longer people resist addressing both sides of the fiscal equation the deeper the hole will get."

Michael Scharf on International Law in the First Year:

My colleague Michael Scharf, who teaches several international law courses and is currently Chair of the ABA’s International Legal Education Committee, asked me to post his view on taking international law in the first year of law school, in response to Eric's thoughts below.

At Case Western we offer international law in the spring of the first year as one of five electives (and have done so for over a decade). Currently, more than half of our first year class enrolls in the course, which I teach. The course is not strictly public international law, but a hybrid of public and private international law (actually, most international practitioners and academics will tell you that the lines have blurred between the two over the years). I use the Carter, Trimble, Weiner casebook, which introduces students to the fundamentals of treaty interpretation, customary international law, the law of state succession, international organizations, numerous substantive areas (international trade law, international environmental law, law of the sea, international criminal law, international human rights law), as well as international law in the U.S. (including questions of constitutionality of Executive actions, the role of customary international law in U.S. courts, the foreign sovereign immunities Act, the act of state doctrine, choice of law, and recognition/enforcement of foreign judgments). The advantages of taking international law as a 1L include: (1) it gives students an edge in competing for international law-related jobs for their first summer (a number of our 1L students obtain placements at foreign law firms, war crimes tribunals, international institutions, and NGOs); (2) it gives students an early indication of the various areas of specialty within the field, so that they will know what international law specialty courses they would benefit from when they sign up for upper level courses in the spring semester (we have 47 international law courses, seminars, and Labs to choose from at Case); and (3) it exposes students to a field of law that is becoming pervasive in the practice of law in the United States (everything from family law to property law now often has an international law component).

I will just add that I think there is some common ground. Michael is not calling for making international law a required course, and Eric acknowledges that if a student is interested in the subject, that is a good enough reason to take it. I agree that most students at most schools will rarely get an opportunity to work on public international law issues as practicing attorneys, but I also think Case Western may be an exception in this regard (at least that's what Michael tells me). I would also stress that if a student is interested in working in an international law field, private international (and comparative) law is far more important, and its relevance for many practicing attorneys is likely to increase over time.

Related Posts (on one page):

  1. Michael Scharf on International Law in the First Year:
  2. It's Like Ping-Pong of the Mind!
  3. Should 1Ls take international law?

Is “Sexual Battery” A “Crime of Violence”?

The question would seem to answer itself. Isn't "sexual battery," almost by definition, a violent act? That was my initial reaction when I read the opening of United States v. Wynn, a decision handed down by the U.S. Court of Appeals for the Sixth Circuit. Yet as it turns out, the question is not so simple, at least not given the relevant statutes and case law, and it divided the Sixth Circuit panel.

Antonio Wynn pleaded guilty to possession of cocaine with intent to distribute. Wynn had previously been convicted of assaulting a peace officer and pleaded guilty to “sexual battery” under Ohio Rev. Code § 2907.03. The district court concluded both constituted “crimes of violence for purposes of the federal sentencing guidelines, resulting in a longer sentence, but on appeal two judges on the Sixth Circuit were not so sure.

The reason for the uncertainty was that the relevant Ohio statute defines “sexual battery” to include actions that do not necessarily involve a threat or use of force as an element of the offense. For this reason, Judge Moore (who wrote for the majority) and Judge Gibbons were not sure that Wynn’s guilty plea necessarily constituted a prior conviction of a “crime of violence” because the plea had not specified the subsection of the statute that covered his alleged offense. Given the expansiveness of the relevant Ohio statute, the fact of conviction and the statutory definition of the offense alone were not enough to establish what Wynn had been convicted of an action with the requisite level of “violent and aggressive” conduct under United States v. Begay. Further, the majority concluded, the district court could not rely upon the factual recitation of Wynn’s offense in the presentence investigation report – which indicated that Wynn’s conduct had been violent.

Judge Friedman, sitting by designation from the Federal Circuit, dissented, concluding it was proper for the district court to rely upon the factual recitation of Wynn’s prior offense. Wynn had failed to challenge any of the factual allegations contained in the presentence investigation report and, Judge Friedman concluded, the relevant facts “leave no doubt that the generic state crime to which he pleaded guilty was categorically a crime of violence.” Further, Judge Friedman argued, the district court could “take judicial notice of publicly available Ohio judicial records that show unequivocally that the state sexual battery offense of which Wynn was convicted was a ‘crime of violence.’”

UPDATE: Perhaps coincidentally, another Sixth circuit panel split over how to define a "crime of violence" in another case released Friday, United States v. Young.


Friday, September 4, 2009

George H.W. Bush's 1991 Speech to Schools.--

I was intrigued by the links to a Washington Post story about George H.W. Bush speaking to school children on October 1, 1991. My daughter was in school then and I didn’t remember hearing about her watching any such event.

On WESTLAW, I looked up other news stories about the speech. It was reported as 10 minutes in some reports and 12 minutes in others. It was carried live on CNN, PBS, and [the NBC] and Mutual radio [networks]. The Secretary of Education sent a letter urging schools to have their students watch, but I didn’t find any evidence of how many schools followed that recommendation. And most striking: Bush laid out goals — to increase the graduation rate, improve student competency and better prepare students for entering school — and said, "Let me know how you're doing. Write me a letter. I'm serious about this one. Write me a letter about ways you can help us achieve our goals."

Here are some excerpts:

10/1/91 USA TODAY

President Bush takes to the airwaves today to promote his education goals, a day after the Education Department released a bleak report on students' achievement. Bush is scheduled to make a noontime speech to be carried live by CNN, PBS and Mutual Radio. He'll speak from Alice Deal Junior High School, in Washington's affluent suburb of Chevy Chase, Md.

10/2/91 Cincinnati Post

Bush told students to write him to let him know how they were doing in school and to suggest ways to help achieve his national education goals — to increase the graduation rate, improve student competency and better prepare students for entering school.

10/4/91 Washington Times

Majority Leader Richard Gephardt said Wednesday the Education Department was financing "paid political advertising" by paying technical costs of broadcasting the president's 12-minute speech from Alice Deal Junior High School. . . .

Public Broadcasting Service and Cable News Network televised the speech live and Mutual Radio carried it on its network. Educators had been alerted by mail to encourage classroom viewing.

10/2/91 Baltimore Sun

Yesterday was one of those occasions White House image-makers love.

They gave their boss the hated task of reading a prepared speech from TelePrompTers but put him into one of his favorite places to do it — a small classroom.

Walking casually around the room as he spoke, President Bush gently exhorted 27 rapt eighth-graders — and pupils watching his televised performance throughout the nation — to take control of their own destinies by making sure they get the most out of school.

The effect was part bully pulpit, part campaign ad. Mr. Bush was simultaneously employing the power of his office in the drive to improve American education and making another bid to focus voter attention on what he considers the centerpiece of his domestic agenda.

"I'm asking you to put two and two together," Mr. Bush told Cynthia Mosteller's history class at Alice Deal Junior High School in Northwest Washington. "Make the connection between the homework you do tonight, the tests you take tomorrow, and where you'll be five, 15, even 50 years from now. . . . You're in control." . . .

In one of the few ad-libbed lines of his 10-minute appearance, the president added: "I can't understand for the life of me what's so great about being stupid."

Mr. Bush's speech was part of a broader effort to promote the goals of America 2000, a program that calls for vast improvements in student learning levels by the end of the century. With little new money to put toward the cause, the Bush administration has focused on encouraging students, parents and communities to pressure their schools to meet higher standards.

10/3/91 Orlando Sentinel

President Bush gets nearly a quarter-million letters a year from America's schoolchildren. Now he's looking for more. He has appealed to students to write him with ideas for improving their schools. He made the pitch Tuesday at the end of a nationally televised speech from an eighth-grade classroom, urging students to ''make it your mission to get a good education.'' Perched on a stool in front of a blackboard at the District of Columbia's Alice Deal Junior High School , the president said, ''Let me know how you're doing. Write me a letter. I'm serious about this one,'' he emphasized. ''Write me a letter about ways you can help us achieve our goals.'' Bush also exhorted students to insist on ''a first-class education. Take control. Don't say school is boring and blame it on your teachers. Make your teachers work hard. . . . Tell them that you're here to learn.''

10/2/91 San Jose Mercury News

President Bush appealed to students Tuesday to write him with ideas for improving their schools. He made the pitch at the end of a nationally televised speech from an eighth-grade classroom, urging students to "make it your mission to get a good education."

Perched on a stool in front of a blackboard at the District of Columbia's Alice Deal Junior High School , the president said, "Let me know how you're doing. Write me a letter. I'm serious about this one. Write me a letter about ways you can help us achieve our goals."

"I think you know the address," he added with a smile.

Bush exhorted students to insist on "a first-class education."

10/1/91 Cincinnati Post

President Bush visited a Washington junior high school today to deliver a televised appeal to American students to hit the books harder. . . .

Bush's lunchtime address at Alice Deal Junior High School was being broadcast live by CNN and public television, and Education Secretary Lamar Alexander exhorted educators to let their students watch it.

I didn't bother to excerpt most of the criticisms of Bush because I was more interested in the substance of the speech and the dissemination of it.

While perhaps not "on all fours," this 1991 precedent seems to be a solid one for President Obama's speech — indeed, in some respects it's uncannily similar.

UPDATE: Here is the official text of the 1991 speech (which was not checked against a tape):

Thank you, Ms. Mostoller, and thanks for allowing me to visit your classroom to talk to you and all these students, and millions more in classrooms all across the country.

You know, long before I became President I was a parent. I remember the times that my kids came up with a really tough question or a difficult decision. I tried my best never to shut them down with a quick ``no.'' I would simply say those three magic words that made that problem disappear: ``Ask your Mother.'' [Laughter]

Let me tell you why I've made the trip up from the White House to Alice Deal Junior High. I'm not here to teach a lesson. You already have a very good teacher. I'm not here to tell you what to do or what to think. Maybe you're accustomed to adults talking about you and at you; well, today, I'm here to talk to you and challenge you. Education matters, and what you do today, and what you don't do can change your future.

Every day, we hear more bad news about our schools. Maybe you saw today's headline, I don't know if you had a chance to look at it, about the release of the new National Goals Report. Get the camera to come in and take a look at this for a moment. In math, for instance, this national report card shows that, nationwide, five of six eighth graders don't know the math they need to move up to the ninth grade.

In spite of troubling statistics like this one, I don't see this report, however, as just bad news, and I'll tell you why. This report tells us a lot about what you know and what you don't know. It gives us something to build on. It shows us our strengths and the weaknesses that we've go to correct. It sets forth a challenge to all of us: Work harder, learn more, revolutionize American education.

I know you've heard about stanines and percentiles, surveys and statistics, but here's what all that fancy talk really means: Education means the difference between a good future and a lousy one. Reports don't give us the right to make excuses. Our scores will tell us where we are and where we need to go.

I mentioned earlier the bad news we hear about schools today. But what we don't hear enough about are the success stories. You know, all over America, thousands of schools do succeed, even against tough odds, even against all odds. Kids from all over the District of Columbia petition to get into Alice Deal School here because parents know this school works. It works because of teachers like the one standing over here, Ms. Mostoller, who decided at the age of 25 -- maybe you all know this, but a lot of people around the country don't -- she decided at the age of 25 that she wanted to teach. She was standing in a supermarket checkout line when she saw a magazine ad about college. She went back to school, worked her way through in 7 years, waiting tables to pay tuition. She made it, and so can you.

This school here works because of students like the ones with me today, students like Rachel Rusch -- where's Rachel? Right there, okay -- a member of Alice Deal's award-winning ``Math Counts'' team. Rachel, you tell me if I'm wrong, but you and six other students in this class alone have taken part in the Johns Hopkins Talent Search. They took the college entrance exams on an experimental basis last year as seventh graders. Even in junior high, some of them scored well enough to get into college right now. So, let's just put it on the line. You've got the brains. Now, put them to work -- certainly, not for me, but for you.

Progress starts when we ask more of ourselves, our schools and, yes, you, our students. We made a start nationally now by setting six National Education Goals to meet the challenges of the 21st century. By the year 2000, at least 9 in every 10 students should graduate from high school. We should be first in the world in math and science. We need to regularly test student's abilities. Every American child should start school ready to learn; every American adult should be literate; and every American school should be safe and drug-free. Reaching those goals is the aim of a strategy that we call America 2000, a crusade for excellence in American education, school by school, community by community.

But what does all this mean, you might say, what is he doing, what does this all mean for the students right here in this room? Fast-forward -- 5 years from now. Unless things change, between now and 1996 as many as one in four of today's eighth graders will not graduate with their class. In some cities, the dropout rate is twice that high or higher. Imagine: Out of a total of nearly 3 million of your fellow classmates nationwide, an army of more than half a million dropouts.

I ask every student watching today: Look around you. Count four students. Start with yourself. No one dreams of becoming a dropout, but far too many do. Which one of you won't make it through school?

The fact is, every one of you can. Let's make a pact then right here. Let's work to see that 5 years from now, you and your friends will be more than sad statistics. Give yourself a decent shot at your dreams. Stay in school. Get that diploma.

Let's go back to the future. In the fall of 1996, 5 years from now, nearly half of today's eighth graders who get their diplomas will enter the working world. More than half the graduates will stay in school and become the college class of the year 2000.

The question each student watching today should ask is: Where will I be, where will I be 5 years from now? Will I be holding down a good job and maybe working toward a better one, or will I be out of school and out of work? Will I be on a college campus, or out running the streets?

Think about that tonight when you're at a kitchen table doing some homework; while your parents are meeting your teachers like so many millions do this year at back-to-school nights all across our great country.

I'm asking you to put two and two together: Make the connection between the homework you do tonight, the test you take tomorrow, and where you'll be 5, 15, even 50 years from now. You see, the real world doesn't begin somewhere else, some time way down there in the distant future. The real world starts right here. What you do here will have consequences for your whole lives.

Let me tell you something, many of you may find very hard to believe this. You're in control. You're thinking: How can the President say that about kids like us when we don't even have our driver's license? But think about it, and you'll see what I mean.

Think about drugs. You see films. You hear police experts and tough speakers from the outside. You get stern lectures from everyone: movie stars, athletes, teachers, parents, friends. But you know and I know that all the drug prevention programs, all the pledges, all the preaching in the world won't pull you through that critical moment when someone offers drugs. At that moment, everything comes down to you. Yes or no, you've got to choose, and the answer will change your life. Your parents won't make the decision. Your teachers won't make the decision. Your friends won't make the decision. It's up to you. It takes guts to take control.

A sound body and a sound mind, they go together, as my friend, and he is a friend, Arnold Schwarzenegger says. He's crossing the Nation talking with students about the importance of fitness. And real fitness means no drugs.

Studies show a decline in drug use, and that's good, that's encouraging, I think. And every student who draws the line against drugs really deserves credit for that. But drugs and violence continue to threaten every school, every small town and suburb in America. And as students, you have a right to be physically safe at school. You should never have to worry that a quarrel in the hallway will lead to gunfire in the playground. Fear should never follow you into the classroom.

If you have to take the long way home after school so you don't cross paths with the gang hanging on the corner, if outsiders roam the halls of your school hassling kids, hassling students, you must take control. Go to your teacher, or go to your principal, or go to your parents, as difficult as it may be, go to the school board if you have to. Demand discipline. If good people chicken out, bad people take control. Together, we can -- I really believe this -- we can drive the drugs and guns and senseless violence out of our schools.

When it comes to your own education, what I'm saying is take control. Don't say school is boring and blame it on your teachers. Make your teachers work hard. Tell them you want a first-class education. Tell them that you're here to learn.

Block out the kids who think it's not cool to be smart. I can't understand for the life of me what's so great about being stupid. If someone goofs off today, are they cool? Are they still cool years from now when they're stuck in a dead-end job? Don't let peer pressure stand between you and your dreams.

Take control -- challenge yourself. Only you know how hard you work. Maybe you can fake, maybe, just maybe you can fake your way into a job, but you won't keep it for long if you don't have the know-how to get the job done. Maybe you can cram the week before that marking period ends, and turn that C into a B. But you can't con your way past the SAT and into college. If you don't work hard, who gets hurt? If you cheat, who pays the price? If you cut corners, if you hunt for the easy A, who comes up short? Easy answer to that one: You do.

You're in control, but you are not alone. People want you to succeed. They want to help you succeed. Here at Deal, teachers like your outstanding teacher standing here with us today, Ms. Mostoller, from your principal, Mr. Moss, to your custodian, Mr. Francis. Right now in classrooms across this country, in the communities you call home, when things get tough, when answers are hard to come by, there's a teacher, a parent, a friend or family member ready to help you. They want to see you make it.

If you take school seriously, you won't have to settle for a job, just any job. You'll have a career. If you make it your business to learn, one day you'll be a better parent. You may not think about it now, but one day your children will want to look up at you and say, ``I've got the smartest Mom and Dad in the world.'' Don't disappoint them.

Let me leave you with a simple message: Every time you walk through that classroom door, make it your mission to get a good education. Don't do it just because your parents, or even the President, tells you. Do it for yourselves. Do it for your future. And while you're at it, help a little brother or sister to learn, or maybe even Mom or Dad. Let me know how you're doing. Write me a letter -- and I'm serious about this one -- write me a letter about ways you can help us achieve our goals. I think you know the address.

Now we're going to walk over to the school auditorium to say hello to the rest of the student body. To all the students across the country who watched us here in this great classroom today, may I simply say thank you and good luck to you this school year.

And now, Ms. Mostoller, if you'll kindly lead the way. Thank you all very much. Nice to be with you.

A Doctor's Plan for Legal Industry Reform:

This column in today's WSJ is pretty dang funny, I think.


DOJ Honors Applications: Over at ATL, David Lat notes that applications for the Justice Department's Honors Program are due soon (next Tuesday). If any VC readers who are 3Ls or current clerks are thinking of applying but haven't yet, I strongly recommend it: I joined DOJ though the Honors program in 1998, and it was pretty much the best experience a young lawyer could have. Great work, lots of responsibility, and great people.

It's Like Ping-Pong of the Mind!

OJ Co-Blogger Duncan Hollis Responds to VC Co-Blogger Eric Posner on the question of classes in public international law. (I will try to find a moment to weigh in on this, but I'm trying to make the final copy edits to my Targeted Killing chapter, finish my long-suffering UN-US relations manuscript, and help my daughter paint her room a tasteful eggshell blue while my Beloved Wife is in Guatemala over the weekend.) I'm also going to add, apropos of nothing in particular, that while I like the title of Eric's book, The Perils of Global Legalism, I probably would have named it, Parlous Global Legalism. I've always wanted to have an academic title with "Parlous" in it.


C-Span Interviews The Justices on the Arrival of A New Justice and A New Term: Excerpts are here, via the BLT:

"He Who Beats His Sword into a Plowshare

ends up plowing for those who kept their swords." Sad but true, at least outside the original context of the beating swords into plowshares phrase, which involved Someone undertaking the task of protecting those who give up their swords.

Let me know, please, if you have a verifiable source for this saying. I've seen this credited to Franklin, for instance, but lots of stuff gets erroneously credited to Franklin (and Churchill, Wilde, Parker, Bierce, and Twain).


From the Bridge to Nowhere to the Airport for No One - How Public Ignorance Facilitates Porkbarrel Spending:

When the Republicans controlled Congress, they were rightly pilloried for subsidizing such ridiculous porkbarrel projects as the notorious "Bridge to Nowhere." For their part, the Democrats have been funneling money to the equally dubious "Airport for No One:"

If you hate the hubbub of crowded airports, you might want to consider flying out of Johnstown, Pa. The airport sees an average of fewer than 30 people per day, there is never a wait for security, you can park for free right outside the gate, and you are almost guaranteed a row to yourself on any flight.

You might wonder how the region ever had the air traffic demand to justify such a facility. It didn't. But it is located in the district of one of Congress's most unapologetic earmarkers: Democrat John Murtha.

In 20 years, Mr. Murtha has successfully doled out more than $150 million of federal payments to what is now being called the airport for no one. I took a trip to southwestern Pennsylvania to explore how this small town received so much money and whether the John Murtha Airport is a legitimate federal investment.

There are many in Johnstown who see the airport as crucial. Johnstown Chamber of Commerce President Bob Layo tells me: "If the airport isn't paying dividends now, it will in the future." But those dividends appear to be a mirage.

There are a total of 18 flights per week, all of which go to Dulles Airport in Washington, D.C. I was visiting the airport from Washington, but because flights cost a pricey $400, I drove. The drive took less than three and a half hours and cost about $35 in gas—not to mention that it was arguably faster than flying. And this isn't a remote area of the state: Murtha airport is less than two hours from the Pittsburgh airport.

Pork is highly unpopular with most voters. Outrage over pork even helped end Republican control of Congress in 2006. So why does pork persist? In significant part because of widespread political ignorance. As I explained in this 2006 post, Most porkbarrel projects are unknown to the vast majority of the electorate. The only people likely to be aware of them are the small, well-organized interest groups who benefit. Only on very rare occasions (such as the bridge to nowhere) does a particularly egregious project get enough press coverage to enter into the public consciousness. Thus, politicians have incentives to vote for porkbarrel projects despite their unpopularity.

It's true, of course, that some voters like pork that goes to their districts, even if they dislike it in general. However, a well-informed electorate would still force its representatives in Congress to enact a general ban on pork, because most districts lose far more from the porkbarrel projects that go to other parts of the country than they gain from their own. Voter ignorance also explains how politicians from both parties - including President Obama - can get away with promising to eliminate pork and then supporting a bill laden with thousands of new pork projects. In sum, porkbarrel spending is yet another negative aspect of government that is in large part the result of political ignorance.


So There's No Shante Clause After All,

as Kenneth Anderson's post tells us. Thanks to subpatre for pointing this out.

Related Posts (on one page):

  1. So There's No Shante Clause After All,
  2. Shante Contract Clause Too Good to Be True:

Political Ignorance and Curt Schilling's Possible Senate Candidacy:

Former Red Sox pitcher Curt Schilling is contemplating a run for the Senate seat just vacated by Ted Kennedy's passing. And Newsweek's Mark Starr claims that he could actually win. At this point, Schilling is downplaying the possibility of running, but refuses to rule it out. Although I'm a huge fan of Schilling the baseball player, I am skeptical that he would be an effective senator. The viability of Schilling's potential candidacy and others like it is largely a result of widespread political ignorance.

If he does run, Schilling would instantly become a viable candidate - at least as viable as any conservative could be in strongly Democratic Massachusetts. Why would a candidate with no prior political experience and little apparent expertise in public policy be taken serious by voters? Because of his name recognition as a recent Red Sox star. Many former athletes and other celebrities have successfully turned their earlier fame into a political career: Arnold Schwarzenegger, Bill Bradley, Steve Largent, baseball Hall of Famer Jim Bunning, and others. Other candidates with few or no qualifications win simply because they are members of prominent families. Ironically, Ted Kennedy - the man Schilling might try to replace - initially won his seat largely because of his own family connections. As his 1962 opponent put it, "[i]f your name were Edward Moore [instead of Edward Moore Kennedy], your candidacy would be a joke." George W. Bush is, of course, another politician who gained high office in large part on the strength of family connections.

Celebrity status and family ties would not be major political assets in a world where voters were highly knowledgeable about candidates and their qualifications. Rational, well-informed voters would be unlikely to pick a candidate with few or no qualifications for the job over an opponent with genuine public policy expertise. However, the real-world electorate is "rationally ignorant," and most voters knows very little about candidates. Moreover, voters also tend to do a poor job of evaluating what little information they do have. As a result, celebrity candidates and scions of famous families enjoy a major advantage thanks to their superior name recognition. Political ignorance causes political nepotism, and also gives a leg up to sports and entertainment celebrities. Although a few celebrity candidates went on to become outstanding political leaders (e.g. - Jack Kemp), on balance the electoral success of celebrities and members of famous families probably reduces the average quality of our office-holders.

This problem is very far from the worst result of political ignorance, But it is yet another way in which ignorance reduces the quality of government.

UPDATE: Some commenters cite Ronald Reagan as an example of a celebrity who became a highly effective political leader. But Reagan was involved in political activism for some 15 years before he ran for governor of California in 1966. Unlike Schilling and others who try to go straight from nonpolitical celebrity into electoral politics, Reagan had quite extensive political experience before seeking public office.


Is Poker a Game of Chance or Skill?

Whether poker qualifies as a "game of chance" has significant legal implications. In can determine whether a game is legal or not, as many states exempt games of skill from anti-gambling rules. No surprise then (as the Los Angeles Times reports), the definition of poker has become a question for the courts.

Many games are easy to identify as either games of skill or games of chance, even though they combine a bit of both. Football is mostly about the skill of the players and coaches, but chance influences the games as well. There are some things that can influence the outcome of a game, such as the weather in an outdoor stadium, that are completely beyond human control. We still would not say football is a "game of chance," as the better team with better coaches will win more often than not.

Sports are easy. More difficult are games in which chance plays a larger, if not wholly determinative role. Consider Backgammon. Chance -- the rolls of the dice -- can determine the outcome in any single game. Yet there is significant skill involved in playing well and, over time, a better player will beat a worse player more often than not. Other games, such as Blackjack, are clearly games of chance even if they involve some small amount of skill. In Blackjack, for instance, there is a "best" way to play that will minimize one's losses against the house, but the result is still up to chance. If you play the perfect Blackjack game (without counting cards), and the dealer follows house rules, whether you win or lose is completely up to chance (and your odds are not that good).

So what's poker? In my opinion, playing poker at a high level requires an immense amount of skill, and better poker players will regularly outperform their less skilled competitors. Yet skill is no guarantee of victory in poker; the cards may still have their say. According to a judge quoted in the LA Times article: "A poker player may give himself a statistical advantage through skill or experience, but that player is always subject to defeat when the next card is turned." Nonetheless, some charged with organizing or participating in illegal poker games are pressing the argument that poker is not a "game of chance" and is not illegal under state statutes prohibiting gambling on such games. I wish them luck when they make this argument in court.


Stuart Taylor on CIA Prosecutions:

The National Journal's Stuart Taylor has a typically excellent column up this week on the CIA prosecutor, Obama, and Holder. ("Why Holder May Enrage the Left," Opening Argument, National Journal, September 5, 2009.) The column speculates - Stuart's term; he doesn't suggest he is doing otherwise - that hard-boiled political calculations drive Obama and Holder:

I doubt that Holder or Obama has any intention of prosecuting such underlings as the CIA agent who strayed beyond Justice Department legal guidance by threatening terrorist mastermind Khalid Shaikh Mohammed with the murder of his children.

I also see no reason to disbelieve Holder's and Obama's promises not to go after interrogators who acted "in good faith and within the scope of legal guidance," or to suspect them of targeting the high-level Bush administration officials who approved brutal methods such as waterboarding.

Although Holder was reportedly horrified when he read detailed accounts of brutal interrogations, he must understand that horror cannot justify explosive prosecutions -- with little chance of convictions -- of honorably motivated public servants.

That's not to deny the possibility that John Durham, the career Justice Department prosecutor from Connecticut to whom Holder assigned the inquiry, may bring more cases like the one in which a CIA contractor, David Passaro, has already been imprisoned for torturing a detainee to death. But Passaro's actions were so outrageous that his prosecution was relatively uncontroversial.

The column then offers a series of more specific reasons why Holder would take the step of naming a prosecutor, even though the result, in the article's view, is likely to be anticlimactic. I myself am not so sanguine....



Police Report in Case of 17-Year-Old Girl Who Converted to Christianity and Doesn't Want to Return to Her Muslim Family:

From the AP:

The police report, which was ordered sealed for 10 days by a Florida judge, contains the results of a two-week investigation by the Florida Department of Law Enforcement into Rifqa Bary's family and her home life....

The FDLE report is "favorable" to Bary's parents and "indicates there is no evidence out there whatsoever to corroborate these accusations," said Roger Weeden, an attorney for Rifqa Bary's mother, Aysha.

Weeden was cut off from saying any more about the report because it has been sealed....

The case is headed for a trial in which the judge will hear testimony and decide whether Rifqa Bary should be returned to [her parents]....

More on the case in this earlier post. Naturally, if the court concludes that the girl's claim that she is in jeopardy — a claim contested by her parents — is not supported for the evidence, she needs to be returned to her parents. To be sure, her own statement may be sufficient evidence, if she testifies credibly enough, and explains why she should be believed. But if indeed a police report uncovers no corroborating evidence, and the parents testify credibly, a judge would be unlikely to believe the girl unless her testimony appeared extremely persuasive notwithstanding the parents' contrary statements and the absence of supporting evidence from the police report (if the police report indeed reveals such an absence of evidence). Parents' rights can't be permanently abrogated simply based on allegations -- as opposed to proof by clear and convincing evidence -- even if those allegations echo what some of those parents' coreligionists may have done in other cases.

UPDATE: I initially wrote that, "Naturally, if there's no evidence other than the girl's claim — contested by her parents — that the girl will be in jeopardy, she has to be returned to her parents' custody. Parents' rights can't be permanently abrogated simply based on unsubstantiated allegations, even if those allegations echo what some of those parents' coreligionists may have done in other cases." But on reflection I realized that this was an overstatement, and corrected the post accordingly.


For Men, Cognitive Functioning May Temporarily Decline After Interaction with an Attractive Woman: From The Telegraph:
  [R]esearch shows men who spend even a few minutes in the company of an attractive woman perform less well in tests designed to measure brain function than those who chat to someone they do not find attractive.  Researchers who carried out the study, published in the Journal of Experimental and Social Psychology, think the reason may be that men use up so much of their brain function or 'cognitive resources' trying to impress beautiful women, they have little left for other tasks.
. . . .
  Each [male subjext] performed a standard memory test where they had to observe a stream of letters and say, as fast as possible, if each one was the same as the one before last.
  The volunteers then spent seven minutes chatting to male or female members of the research team before repeating the test.
  The results showed men were slower and less accurate after trying to impress the women. The more they fancied them, the worse their score.
  But when the task was repeated with a group of female volunteers, they did not get the same results. Memory scores stayed the same, whether they had chatted to a man or a woman.

Left/Right agreement: Repubs unlikely to retake House in 2010:

The National Journal poll of political bloggers returns from August vacation. This week's first question was "On a scale of 1 (no chance) to 10 (virtual certainty), how likely are the Republicans to take over the House in the 2010 elections?" The Left bloggers gave it an average of 2.5, and the Right said 4.4.

I gave it a 3, and wrote: "Fortunately for the Blue Dogs, the backlash against Obamacare has come early enough in the legislative cycle that they can spend late 2009 and 2010 making sure to vote their districts and letting their districts know that they are not Obama's men in Congress. Besides that, most of the Democrats in tough seats have been voting pro-gun; in 1994, not one incumbent Democratic U.S. Rep. who was endorsed by the NRA was defeated." (For more on 1994, see this Independence Institute monograph, "Does the National Rifle Association Influence Federal Elections?" which studied the 1994 and 1996 U.S. House races.

Question two asked about Republican Senate gains in 2010. The Left expected them to lose 0.5 seats, while the Right expected a pick-up of 4.4. I voted for +4, based on general off-year trends (even though the Republicans have a tough map in 2010), but like several bloggers on the Left and the Right, thought that it's very hard to tell at this time.


Shante Contract Clause Too Good to Be True:

I linked a couple of weeks back to a heart-warming NY Daily News story about Shante, who was supposedly a 1980s early hip-hop wonder who never made stardom, but whose recording contract had a clause providing for her education for life. Several readers have been kind enough to email me this Slate article by Ben Sheffner debunking the entire story, start to finish. Ouch. Here's the introduction to the story, which goes on to walk point by point through everything, fact checking everything, and finding it all wanting. Thanks to various readers for pointing this out.

It was the feel-good story of the summer. According to the New York Daily News, Roxanne Shanté, a 1980s female hip-hop pioneer famous for the 1984 underground hit "Roxanne's Revenge," had finally gotten her own revenge on Warner Music, the record label she accused of "cheating with the contracts, stealing and telling lies," to avoid paying her what she was owed. How? After valiantly fighting, reported Daily News freelancer Walter Dawkins, Shanté had convinced Warner to honor a contractual agreement to "fund her education for life." Warner ended up paying more than $200,000, Dawkins reported, to finance Shanté's education, which Shanté said included an undergraduate degree from Marymount Manhattan College and a Ph.D. in psychology from Cornell. And now, said the Daily News, "Dr. Roxanne Shanté" has "launched an unconventional therapy practice focusing on urban African-Americans," in which she "incorporates hip-hop music into her sessions, encouraging her clients to unleash their inner MC and shout out exactly what's on their mind."

The story was endlessly blogged and tweeted, heralded as an example of a heroic triumph by a girl from the projects over her evil record label. Credulous music-industry critics lapped it up; Techdirt, after stating flatly that Warner had "tr[ied] to cheat [Shanté] out of her contract," reflected the online sentiment: "It's nice to see how Warner Music actually did some good in the world, even if it had to be dragged there kicking and screaming."

One problem: Virtually everything about the Daily News' heartwarming "projects-to-Ph.D." story appears to be false.

Related Posts (on one page):

  1. So There's No Shante Clause After All,
  2. Shante Contract Clause Too Good to Be True:

A Small Case of Voter Fraud:

Atlantic City councilman Marty Small and thirteen others who worked on his failed mayoral campaign have been indicted on charges of voter fraud. Among other things, they are accused of destroying absentee ballots and submitting fraudulent absentee ballots -- to no avail, apparently, as Small lost the election. (HT: Jim Geraghty)


President Obama's Speech to Children.--

One of the things that President Obama does best is inspire children. Accordingly, whether his speech is appropriate or not, it is likely to do more good than bad. At least I hope so.

Of course, we haven't seen the text yet, though we will before the speech is given:

Then Obama aides said they would release the text of Obama’s address on Monday, a day before his speech is to be beamed into the classrooms – an apparent attempt to show skeptical parents ahead of time what he plans to say.

Rich Galen may have it about right:

Republican strategist Rich Galen said he didn’t have a problem with Obama reaching out to school children because “he is everybody’s president. But you have to be very careful that it is not seen as literally propaganda. The original idea to have them write letters about how to help the president crossed the line and the White House realized that.”

In other words, the Obama administration has backed off its earlier suggestion for students to write "Dear Leader" letters. The sad thing is that government bureaucrats had to be told how inappropriate their plans were before they wised up.

Whether the Republican pushback plays well with the public or not, it may have dissuaded Obama from making statements as aggressively statist or collectivist as he would have made without the pushback. Personally, I will be watching for Obama's statements about his 2008 campaign goal to have every middle and high school student perform 50 hours of community service every year. I suspect that the unexpected Republican opposition will cause him to softpedal this goal in his speech.

Inducing students to spend an hour listening to the president and setting goals for achievement is probably on balance a good thing — and certainly a much better prospect than the administration's plans to put community organizers in the schools and have them run the new service learning programs contemplated by the service learning act that Congress passed last spring.

Thursday, September 3, 2009

A Weird Epiphany While Teaching Bremen v. Zapata in IBT:

My international business transactions course is a heavily transactional course - at my school, with its very strong international orientation and huge numbers of foreign LLM students, we separate out introduction to trade from IBT. But in order to get to transactions, we start with a discussion of cross border litigation and why it is so difficult and expensive and, naturally, focus on choice of law/choice of forum clauses in international contracts. That quickly leads us to one of the relatively few cases read in the course, the US Supreme Court decision in Bremen v. Zapata.

Bremen v. Zapata was a Chief Justice Burger opinion in 1972 which blessed the idea that international contracting parties could specify choice of law and choice of forum - and should not expect to reverse course later on if it turned out to be more advantageous to go for home court advantage. (I simplify somewhat a complicated record.) Zapata was Houston corporation that ran deep sea oil platforms, and it contracted with a German corporation, Unterweser, to have the German tug Bremen haul a Zapata rig from the Gulf of Mexico to the Adriatic Sea. A storm arose, and there was significant damage to the rig, and it put into port in Tampa. Once it arrived, Zapata commenced a damages action against Unterweser. Unterweser pointed out that the parties had agreed to a clause stating that all disputes would be settled in English courts in London. The District Court refused to give up jurisdiction, and a sharply divided Fifth Circuit en banc agreed, relying on a SCOTUS precedent. The Supreme Court reversed and remanded, with a lengthy disquisition dear to the heart of international lawyers about the needs for accommodation and comity and global commerce, and moreover a ringing endorsement of the rights of parties to set their own law of the contract.

Interestingly, however, Justice Douglas dissented. He did so on the grounds that notwithstanding the free consent of Zapata to English law and forum, requiring the District Court to give up jurisdiction would result in narrower rules of English contract damages, and this, in his view, meant denying American citizens their sovereign rights, substantive legal rights, and due process of law.

I was struck, in a classroom of 90 students, perhaps half US JD students and half foreign LLM students, that quite beyond the "freedom of contract" issue, it was difficult for them even to articulate a basis for Justice Douglas's view that there could be sovereign rights of Americans that had to be vindicated by American courts according to the American view of the rule of law. I asked who had heard of Justice Douglas, and was not so surprised to find that he was unknown to nearly all of them. Asking their impression of his view, I was told that he seemed to be an American conservative.

Definitely surprised by now, I said, look, Justice Douglas was a liberal's liberal, a New Deal Progressive Democrat. He was, I told them, very close to radical on important measures - for heaven's sake, he did once order a halt to the bombing of Cambodia in the midst of Vietnam war. My ephiphany? I assumed, quite erroneously, that I would hear a sort of collective interior gasp among the students at such judicial overreaching. Nothing of the kind. I was extremely puzzled. They had no idea on what basis I thought Justice Douglas was a liberal. My brilliant rhetorical ... fizzle.

But afterwards, a student came up to me leaving class and said, I don't understand, Professor Anderson, what's the big deal about ordering the bombing to stop? Justice Kennedy has ordered lots of things in the war on terror, and it wouldn't seem like a big deal if the Supreme Court ordered the Obama administration to end the war in Afghanistan or Iraq, or at least ordered the military to stop bombing people, or using drones, or many other things. That Justice Kennedy might order that and many such things in a Supreme Court majority opinion did not seem to him - and, I gather, to a number of other of my JD students - in the least bit out of the ordinary. Call me old-fashioned, but that was a bit of a surprise to me.


Co-Blogger Eric Posner's New Book:

The Perils of Global Legalism is just out from University of Chicago Press, and I have just received my copy via Amazon. I read an early ms. draft, but am looking forward to reading the final version. This is yet another book from Eric that promises to provoke lots of people in the international law community, but which I find to be full of insights. I strongly recommend it. Once I've actually had a chance to read the final version, I will come back and post some more about it. Here is the description from Amazon:

The first months of the Obama administration have led to expectations, both in the United States and abroad, that in the coming years America will increasingly promote the international rule of law—a position that many believe is both ethically necessary and in the nation’s best interests.

With The Perils of Global Legalism, Eric A. Posner explains that such views demonstrate a dangerously naive tendency toward legalism—an idealistic belief that law can be effective even in the absence of legitimate institutions of governance. After tracing the historical roots of the concept, Posner carefully lays out the many illusions—such as universalism, sovereign equality, and the possibility of disinterested judgment by politically unaccountable officials—on which the legalistic view is founded. Drawing on such examples as NATO’s invasion of Serbia, attempts to ban the use of land mines, and the free-trade provisions of the WTO, Posner demonstrates throughout that the weaknesses of international law confound legalist ambitions—and that whatever their professed commitments, all nations stand ready to dispense with international agreements when it suits their short- or long-term interests.

Provocative and sure to be controversial, The Perils of Global Legalism will serve as a wake-up call for those who view global legalism as a panacea—and a reminder that international relations in a brutal world allow no room for illusions.

Should 1Ls take international law?

So asks Duncan Hollis. The answer is No! There is no reason to take international law in your first year. There is no reason to take international law in any year unless you want to work as a lawyer in the State Department or certain obscure precincts of the Justice Department, hope to work for an international organization such as the United Nations or an international NGO with a legal agenda such as Human Rights Watch, or have an academic or intellectual interest in international law and international relations. If you are in any of these categories, wait till your second year. For most law students, who aspire to work in regular law firms, or in prosecutor’s offices and other government agencies outside the State Department, the chance that you will encounter the type of issue taught in a public international law course over the course of your career is close to zero. So don’t take it at all--unless you think it might be interesting.

Do not confuse public international law and private international law! Private international law, which essentially involves choice-of-law issues, could be useful if you expect to work for a law firm whose clients include corporations that do business across borders. Do not confuse public international land and comparative law! Comparative law, which introduces you to foreign legal systems, could conceivably be useful but probably is not. The types of public international law concepts that might come in handy for a law firm lawyer—such as treaty interpretation—are easily picked up.

Law schools have always offered public international law courses, as they should. These courses have always been poorly attended, which is also how things should be. In recent years, a number of law schools have expanded and highlighted their international law offerings, and have created elective or mandatory international law courses for the first year. These changes do not rest on any coherent theory of pedagogic priorities. They are marketing gimmicks that play off buzzwords like globalization. They do little more than reflect transitory intellectual fashions. They are patronizing efforts to turn you into citizens-of-the-world. If you have time on your hands and want to learn something that might increase your value to future employers, take statistics!


The Lottery, in Canadian Health Care:

It's much nicer than The Lottery in the Shirley Jackson short story. Instead of stoning a person to death once a year, a small town in Canada lets four people per month get a primary care physician. Because of budget cuts, lots of families Ontario do not have a primary care physician, so one small town spent its own money to entice a doctor to move there, provided he takes on four additional primary care patients per month. The town holds a monthly lottery to choose the lucky winner. Video here, from Adam Shapiro of Fox Business News.



The post about groomsmaids and bridesmen -- i.e., women as attendants to grooms in a wedding, and men as attendants to brides -- led to this comment:

All of this is very odd to most people. A sort of mocking of the ceremony, saying, in effect, I'm not one of those common people, I'm cool.

If one is not going to follow [most] general wedding customs, then why go through the elaborate exercise at all?

This, it seems to me, is a good occasion for a few more general words about traditions (and customs, a term I'll use interchangeably with tradition here). I'm not at all against traditions; I see their social significance, I think they generally have presumptive social value, and I think they often have esthetic value as well. The trouble is that appeals to tradition often take too narrow a view of tradition, and as a result often fail to see how even traditionalists must accept that traditions may change.

It seems to me that there is not one traditional custom involved here, but three:

  1. The custom of having female attendants for brides and male attendants for grooms.

  2. The custom of having attendants accompany the person to whom they are personally closest, whom they symbolically "attend" and "stand up for."

  3. The custom of having attendants be one's closest friends (including siblings).

Now the thing is that in my wedding, and -- judging by the comment thread -- many other weddings, it's impossible to adhere to all three customs. My closest friends, setting aside my brother (who was best man), were both women. So I could either have adhered to customs 2 and 3, as I did, and have the women be my groomsmaids. Or I could have adhered to customs 1 and 3, as many people do, and have the women accompany my wife (though they knew me a lot better, and though this would have meant that my wife would have had 5 attendants and I would have had none, excluding her matron of honor and my best man). Or I could have adhered to customs 1 and 2, and substituted some somewhat less close male friends for my close female friends, who would then have been out of the wedding.

With any of the solutions, I would have adhered to "[most] general wedding customs," even if one counted only these three as the denominator. With all, I would have departed from at least one custom. Some custom had to give; it was only a matter of choosing which one.

Now that choice is of course not entirely arbitrary, and reveals something about my (and to a lesser extent my wife's) attitudes. For instance, adhering to customs 1 and 2 or 1 and 3 would have involved a less visible departure from custom, at least from the perspective of people who didn't know me well. But adhering to customs 2 and 3 struck me as a less significant departure from custom, because to me customs that turn on friendship, or on symbolism that represents friendship, are more important to me than customs that turn on people's gender. It's not that all customs that turn on people's gender are unimportant to me, but it's just that they are less important than customs that turn on friendship.

So as reality changes -- here, the reality that many brides and grooms today have many very close friends of the opposite sex, likely much more than before -- some tradition must yield, and it's a matter of which one yields. Over time, if it yields often enough, the tradition stops being the custom and becomes one of many customs.

And more broadly people may depart from one custom simply because they are trying to honor other customs, customs that they see as more important to them. It's certainly not mockery, and neither is it a rejection of wedding customs more generally. It's a necessary choice -- a choice of the sort on which customs themselves are built over time.

Related Posts (on one page):

  1. Tradition!
  2. Groomsmaid:

Another OLC Opinion Published:

The Justice Department's Office of Legal Counsel released another opinion today/yesterday (depending on what time zone you're in). Its subject matter is a real bread-and-butter OLC issue, and thus characteristically (to use a term that has fallen into regrettable desuetude since I was a kid) "dullsville." To paraphrase the opinion, it presents the question whether "[t]he Small Business Act . . . compel[s] the prioritization of awards under the Historically Underutilized Business Zone Program over those under the 8(a) Business Development Program and the Service-Disabled Veteran-Owned Small Business Concern Program"--in other words, whether "contracting officers must set aside federal contracts to qualified HUBZone small businesses . . . before they can set aside such contracts for award to small businesses under the 8(a) or SDVO Programs."

For those of you who have not fallen into a stupor or lapsed into hysterical blindness as a result of reading the issue, the reason this is of interest is that the SBA regulations indicate that it has the discretion to award set-asides under 8(a) or SDVO before HUBZone. And the Government Accountability Office, an agency of Congress, has concluded that "the [Small Business] Act mandates that priority be given to the HUBZone Program when certain statutory conditions are met." (The Ninth Circuit has expressed a view of the relevant language similar to GAO's, based on the characterization of the HUBZone language as "mandatory" and the language of the other programs as "discretionary." See Contract Mgmt., Inc. v. Rumsfeld, 434 F.3d 1145, 1149 (9th Cir. 2006).)

In an opinion signed on August 21 and published today/yesterday, OLC concludes that the statute is ambiguous, and thus the SBA has discretion under Chevron to interpret the Act as its regulations have. The opinion concludes by saying that "Our conclusion . . . is binding on all Executive Branch agencies, notwithstanding any GAO decisions to the contrary." It is the longstanding view of OLC that it, and not GAO (which is, after all, a legislative entity), provides authoritative legal interpretation for the Executive Branch, and the new opinion duly underscores that point by citing precedents from each of the past three presidential administrations for that proposition. That won't cut any ice on the Hill if the relevant committee chairs are inclined to agree with the GAO, but perhaps the volume of any disagreement will be muted since the relevant personae are all from the same political party.

Following up on my post last week, today's opinion is another in a line of decisions published very promptly after signing, although there is an obvious reason for prompt publication here. The SBA undoubtedly has been feeling increasingly uncomfortable with the GAO opinions out there (the most recent one was handed down in May 2009), and I'm sure it was eager to be able to point to a published OLC opinion that validates the reasoning of its regulations.


Wednesday, September 2, 2009

Geoengineering and the law, Part II.

A number of people writing in the comments thread asked what would happen under international law if the United States undertook a massive geoengineering project that went horribly awry and wiped out Bangladesh or some other country. The short answer is—nothing. Bangladesh could complain until it is blue in its face but it would have no legal claim against the United States. There is nothing like tort law in international law; tort principles have to be put together from the ground up in treaties. Those treaties are few and far between; Bangladesh and the United States belong to no treaty that would create liability for a geoengineering failure. Domestic remedies would be unavailable because of sovereign immunity.

This is not to say that the United States would not pay compensation of some sort. Americans would have to deal with world opinion and their own consciences. But suppose, as I suggested in my earlier post, that the United States alone engaged in geoengineering while the rest of the world merrily free rode. One can imagine Americans believing that if other countries are not paying for the benefits, then they should not complain if they end up bearing some of the costs of failure.

All of this underscores the point I made in my first post: the potential for geoengineering does not eliminate the need for a climate treaty, and instead just complicates negotiations. Ideally, negotiators would resolve in advance how the costs of geoengineering would be shared, and who would be responsible for harms caused by failure.

A few people asked how I could be so sure that geoengineering doesn’t eliminate the need for limits on emissions. The answer is: that is what scientists think. But common sense suggests this as well. The question is like asking why we don’t just eliminate all environmental and nuisance law with the expectation that the government will come up with a device that extracts all pollution from the air, rendering regulation of the polluting activities of individuals and businesses unnecessary. Geoengineering will take place at a scale that only governments can afford, and will require close coordination among the different governments that engage in it. It is hard to understand why people think that geoengineering would avoid top-down government regulation, or cooperation among governments, of the sort that they find so distasteful about limits on emissions.

Related Posts (on one page):

  1. Geoengineering and the law, Part II.
  2. Geoengineering the climate: legal implications.

Google's New Privacy Village Program:
Google Opt Out Feature Lets Users Protect Privacy By Moving To Remote Village

An Order to Place an Order:

Here's something I hadn't seen before, though maybe it's common but just rarely gets noticed:


IT IS HEREBY ORDERED that the Jury Commissioner shall furnish morning refreshments and lunch in the above entitled matter at the expense of the United States District Court through Le Boulanger for the members of the jury during deliberations effective for August 27, 2008 through August 28, 2009 and as needed for August 31, 2008 through September 4, 2008.



A commenter, asks -- responding to my use of the word -- "What's a groomsmaid?" I take it that the commenter isn't really puzzled by what this means, but suggests that either the title or the role is somehow inapt. Another commenter follows with, "Bride, Groom, Best Man, Maid of Honor, Matron of Honor, Bridesmaids, Groomsmen, Ring Bearer, Flower Girl, plus an assortment of juniors of some of the above. That exhausts my list of wedding titles."

Is it really that odd for people to choose close friends of the opposite sex as their attendants at the wedding, and treat them this way rather than symbolically assigning them as attendants to the other spouse? (One way to tell, for instance, is if the groomsmaids are wearing dresses that don't match the bridesmaids' dresses.) Or is it just that "groomsmaid" (or "bridesman") is an odd title for it, even when used somewhat jocularly? I realize that it's probably still more common for one's dearest and oldest friends to be of the same sex as one rather than of the opposite sex, but I would think that there would be a sizeable minority of people who depart from this norm. Though maybe I'm wrong; "groomsmaid" gets only a titch over 500 real hits in Google (though it's initially billed as having over 12,000 hits), and bridesman gets only a bit over 900.

I should mention that I had two groomsmaids at my wedding (as well as my brother as best man). I was also a bridesman for each of them, one before and one after, though my identity as being a bride's attendant wasn't as clear, since I wore the same kinds of tuxes as the groom's attendants. It was therefore plausible just to treat all the men in the wedding as generic "attendants" rather than being divided into groomsmen and bridesmen.

In any case, I'd love to hear others' experiences and perceptions on this subject.

Related Posts (on one page):

  1. Tradition!
  2. Groomsmaid:

Lowering Taxes Doesn't Violate the Establishment Clause,

even when the elected officials lower the taxes because their constituents want to have more money to spend on private religious schooling (and don't use the secular public schooling that would be fund through the taxes). The court's decision in Incantalupo v. Lawrence Union Free School Dist. (E.D.N.Y. Aug. 24, 2009), which so held, strikes me as entirely correct. In fact, as the court pointed out, a contrary decision would itself have violated the Religion Clauses:

Plaintiffs seek to deny Orthodox Jews [and presumably other religious groups that heavily use private schools -EV] political rights possessed by every other group in the United States: the right to mobilize in support of religiously neutral government policies, and then have those policies enacted through normal democratic processes. And Plaintiffs seek to do so because, Plaintiffs allege, the School Board's religiously neutral government actions are motivated by the Jewish faith, instead of anti-tax sentiment generally.

Plaintiffs thus ask this Court to discriminate against Orthodox Jews by finding that lower taxes and smaller government are unconstitutional because many of the tax cut’s beneficiaries would choose to allocate their tax savings to Jewish education rather than secular pursuits. But if the First Amendment means anything, it is that the Government cannot prohibit individuals from spending their own money to fulfill the obligations of their religious faith. Thus, if lower taxes and school spending are not unconstitutional by themselves (and they most assuredly are not), these policies do not become unconstitutional simply because some taxpayers might spend their own money as they see fit, in support of their own preferred religious institutions.

For more, see this Religion Clause post.


The Lightning Rod Effect.--

In the summer of 2006, when some legal scholars feared that President Bush and the Republicans were so powerful that Bush had a king-like status, Steve Calabresi and I published a comment in the Yale Law Journal that pointed out that the existing political science literature had understated the degree to which there typically was a backlash against the party of the president. We showed that the usual erosion of support extended, not just to seats in the House and Senate, but to the states.

When one adds all gubernatorial races to the analysis, as we do in Figures 1 and 2, backlash against the President’s party in state races during a President’s term is actually stronger overall than the coattail effect in the presidential election year. To be more specific, we find that four years after a party wins a presidential election, it holds on average three fewer statehouses than it had before it won the presidential election. Perversely, winning the presidency seems to lead very shortly to losing power in the states. Since 1932 there have been eight changes of party control of the White House (1933, 1953, 1961, 1969, 1977, 1981, 1993, and 2001). In every instance but one, the party that seized the White House held more governorships in the year before it took office than in the subsequent year it lost the presidential election. The only exception is that in 1980, Republicans held four fewer governorships than they held in 1992, immediately before the Republicans were voted out of the White House. Similarly, of the eleven Presidents since 1933, every one except two, Kennedy and Reagan, left office with fewer governorships than his party had before he took office, and Kennedy served less than three years. Figure 1 shows this pattern.

click to enlarge

Note that the number of Democratic governorships tends to rise during Republican administrations and fall during Republican administrations.

click to enlarge

Figure 2 shows that the coattail effect of winning the presidency is only an increase of 1 governorship over the number in the presidential election year. By the last year of the presidency, the president's party has lost that seat and 3 more governorships.

During the Clinton administration, Clinton was criticized for losing so many seats in Congress and losing so many governorships. Yet that was more or less par for the course. And Calabresi and I were not at all surprised to see large Republican losses in the 2006 election (the normal losses had been avoided in 2002 by 9/11, much as the normal losses were avoided in 1962 by the Cuban missile crisis).

Now the process seems to be repeating today. President Obama's drop in popularity may be slightly larger than for most Democratic presidents early in their terms, but the process is a normal one. Further, while the contests for state governorships may be decided by local issues, the atmosphere is one in which the Democrats will be blamed for the perceived faults of Obama, yet this process is entirely normal.

Presidents make decisions and do or don't do things that make people angry or disappointed and they take out their disappointment on the party of the sitting president — what we call the Lightning Rod Effect. The effect is usually larger than the president's coattail effect in his election year and can be shown even in the races for state offices.

Ignacio Anaya, Caesar Cardini, and József C. Dobos

have what in common with each other (and with very few other people)?


Chester Alan Arthur: The Barack Obama of the 19th Century:

Thanks to some comments in my previous post on presidential aspirants and citizenship, I found some interesting facts about Chester Alan Arthur, who served as President in 1881-85, succeeding to the office after the assassination of James Garfield.

Arthur's father was an Irishman who moved to Canada. There, he eloped with an American woman from Vermont. Canada and Ireland were, at the time, under the government of the United Kingdom. The couple had several children, including Chester. The father did not become a naturalized American citizen until long after Chester's birth.

During the 1880 presidential campaign, Democrats hired Wall Street lawyer Arthur P. Hinman to investigate Arthur's background. Hinman released his findings to the Brooklyn Eagle newspaper during the campaign, and later wrote a book, How a British subject became president of the United States (1884).

Hinman contended that Arthur had been born in Canada, and was thus constitutionally ineligible to be Vice-President or President. (The Natural Born Citizen clause, however, applies only to who "shall be eligible to the Office of President." It does not, on its face, apply to the Vice Presidency. The clause of course reflects the original system of presidential elections, by which the electors cast two ballots, and whoever came in second became Vice President. The 12th Amendment changed that system, but did not revise the NBC clause accordingly.)

Arthur specifically denied the claim, and said that he had been born in Vermont. There was apparently no birth certificate, since such certificates were not used in many areas at the time that Arthur was born.

Later biographers have concluded that Arthur lied about his own age, and perhaps about various aspects of his father's life. The American people obviously made a political judgement, in electing Garfield-Arthur, that they either did not believe the charge of Canadian birth, or did not care about it.

Personally, I probably would have voted for the Democratic nominee, Winfield Scott Hancock, a man of impeccable integrity and great regard for constitutional rights. He lost the popular vote to Garfield by few than 10,000 votes. In 1881, Hancock became President of the National Rifle Association. (Following in the footsteps of Ulysses Grant, who served as NRA President after serving two terms as United States President.)

In any case, the existence of the Arthur controversy is an example of political opponents raising questions about whether a president was really a natural born citizen, and raising such questions for reasons other than racism.

Related Posts (on one page):

  1. Chester Alan Arthur: The Barack Obama of the 19th Century:
  2. Presidential aspirants not born in the United States:

Me on

I've got an interview with Nick Gillespie on on the proposed Consumer Financial Protection Agency.

DOJ Asks For Stay In Comprehensive Drug Testing Case: The AP reports on the latest update in the Comprehensive Drug Testing case:
  Federal prosecutors have asked an appeals court to stay its decision that government agents illegally seized the drug testing records and samples of more than 100 baseball players.
  The move could keep baseball's infamous drug list from being destroyed for at least a few months.
  In a filing late Monday with the 9th U.S. Circuit Court of Appeals, the U.S. attorney's office in San Francisco said the Solicitor General, in consultation with the criminal division of the Justice Department and the U.S. attorney's office, was considering whether to ask the Supreme Court to review the decision.
  The deadline for a filing with the Supreme Court is Nov. 24.
Nothing very surprising here, as this appears to be just a stay while the DOJ bigwigs figure out what to do next. Even outside the possibility of Supreme court review, trying to implement this decision would presumably require considerable restructuring of computer forensics practices throughout the Ninth Circuit if not the entire country. That would take time to try to do.

Rifqa Bary case update:

Transcript of yesterday's conference call led by Frank Gaffney, with Noni Darwish and the Florida Security Council. Background here.


Justice Stevens Hires One Clerk Instead of Usual Four: This is probably a good sign that Justice Stevens is planning to retire at the end of the Term. You never know, of course, as there is still a lot of time. But if he doesn't hire any more clerks, that's a pretty good sign; retired Justices generally have only one law clerk.

Federal Contract to Archive Social Networking Sites.--

There is a debate in the blogosphere about the scope of a contract that has been sent out for bidding. Ed Morrissey sets the stage:

Today’s rumor of presidential overreach starts at the National Legal and Policy Center and the Drudge Report, which has launched a slew of e-mails about official spying on social-networking sites. The NLPC found an RFP from FedBizOpps, the site that publishes all opportunities to do business with the federal government, that offers a contract for a company to collate data from the Internet. Is Big Brother upon us?

Morrissey says that the National Legal and Policy Center has misread the proposal. I read the proposal last night and I think it's ambiguous. Morrissey correctly points to this language that suggests a narrow (and probably proper) scope for the project:

The contractor shall provide the necessary services to capture, store, extract to approved formats, and transfer content published by EOP [Executive Office of the President] on publicly-accessible web sites, along with information posted by non-EOP persons on publicly-accessible web sites where the EOP offices under PRA maintains a presence, throughout the term of the contract. The contractor shall if possible, capture, store, extract to approved formats, and transfer content published by EOP on non-public websites. The contractor shall include in the information posted by non-EOP persons on publicly-accessible web sites where the EOP maintains a presence both comments posted on pages created by EOP and messages sent to EOP accounts on those web sites. Publicly-accessible sites may include, but are not limited to social networking sites.

But Morrissey doesn't mention this language, which points to a broader enterprise:

5. Performance Objectives . . .

(G) Capture of comments and publicly-visible tags posted by users on publicly-accessible websites on which an EOP component subject to the PRA maintains a presence. Vendor must be able to either:

(i) Capture all comments posted to a list of websites provided to vendor; or

(ii) Capture a sample of comments posted to a list of websites provided to vendor, according to a sampling methodology that will be provided to vendor and approved by EOP.

The proposal is not artfully written. While the language says that a vendor must be able to EITHER collect all comments on the website OR capture a sample of comments, in context I think they mean that a vendor must be able to do both tasks (at least where a full collection would not be so large as to be impractical).

A literal reading of the rest of these two passages of the proposal would seem to say that the vendor "must be able to . . . capture all comments posted on a website" and that the collected information must "include . . . both comments posted on pages created by EOP and messages sent to EOP accounts on those web sites." Saying that the collection of ALL comments on the website must include comments to and from the EOP does not limit the information collected to that required under federal law.

Where does this leave us?

I think Morrissey is right about the purpose of the contract bid — to collect comments to and from the White House on social networking websites (particularly pages set up and run by the White House). It would not be fair to say that the White House has a plan to harvest private information in a general way from social networking sites. Yet the National Legal and Policy Center is also partly right because the proposal seems to require the vendor to be able to "Capture all comments posted to a list of websites," not just the ones appropriate to gather.

Of course, requiring a vendor to have the capability to collect all comments on Facebook and Twitter — or a random sample of them — does not mean that the White House will use that power. But it is explicitly seeking to obtain that technological capability.

A Quick Response to Orin.--

Orin responded to a post of mine on the Michelle Goldberg-Megan McArdle video.

First, I don’t know whether Orin is objecting to my pointing out that opposition to Obama is often attributed to racial hatred – something that I have seen again and again on MSNBC and on the internet (and even occasionally in comments) – or whether Orin is objecting to my opinion that for some on the left this is likely a matter of projecting their own hatred of Bush and Cheney. In the clip I linked, I read Michelle Goldberg as defending the idea that the Tea Party movement is racist.

Second, I don’t know whether Orin is objecting to my pointing out that some left-wing protests were astroturfed at least as much as the Tea Parties — remember ACORN,, and the AIG protests – or whether Orin is objecting to my opinion that for some on the left this is likely a matter of projection of their own approach to organizing.

Federal Governments Seeks to Condemn Land for Flight 93 Memorial:

As has been expected for some time, the federal government has filed an action to condemn 276 acres of property in order to build a memorial to those killed on Flight 93 on September 11, 2001.

As I have explained in previous posts (see here and here), I believe that this condemnation is constitutional even under a relatively restrictive interpretation of the Public Use Clause of the Fifth Amendment. After all, the land will be owned and used by the federal government for a public memorial. At the same time, as discussed here, I remain skeptical that the government really needs to condemn such a large area (the memorial site will encompass a total of 2200 acres). It seems to me that an appropriate memorial to the heroes of Flight 93 can be built on a significantly smaller area, and with much less infringement on property rights.


Expectations for Justice Sotomayor: With Justice Sotomayor having recently joined the Supreme Court, and with the first oral argument just days away, I thought it might be interesting to take a reader poll on roughly how we expect Justice Sotomayor to vote as a Justice. Here are a few possibilities, most of which use the Justice she replaced as a baseline. Please select the description that you think most accurately describes where you expect Sotomayor to fit on the Court's spectrum.

I expect Justice Sotomayorto vote. . .
Just like Justice Souter voted
As a more liberal Justice than Justice Souter
As a more conservative Justice than Justice Souter
As more liberal than Justice Souter on some issues and more conservative than Justice Souter on other issues
In a way that simply applies the law without any apparent ideological agenda
Free polls from


Quick Response to Jim: My co-blogger Jim Lindgren has closed comments in his post below, and I wanted to respond to this comment:
The biggest problem with the media's understanding of the Tea Party movement is that some on the left assume (1) that the Tea Parties are Astroturfed at least as much as some of the left's own demonstrations and (2) that the educated right hates Obama at least as much as the educated left hates Bush and Cheney. So far, I haven't seen much evidence of either.
  Taking the second point first, I don't think I recall anyone suggesting that "the educated right hates Obama at least as much as the educated left hates Bush and Cheney," much less that this is a view widely shared by "the media." Whether you like Obama or dislike him, he has been President for only seven months; he hasn't been around long enough for most people to actually "hate" him. In contrast, opinions of Bush took several years to reach the strength they did; a chart of Bush's approval ratings over the eight years of his Presidency suggests that the strength of opinion grew in a relatively linear way over the course of those eight years.

  As for the second point, I'm not sure what to make of Jim's claim that "some on the left" have a false assumption about "some of the left's demonstrations," without indicating who those people are and what demonstrations they have in mind. If this false assumption is really a major problem in media coverage of the Tea Parties, I think a few examples of it in the press would make the point more helpfully.

This Class Is Brought to You By . . . :

The City College of San Francisco is selling course sponsorships as a way to finance the restoration of classes canceled due to budget cuts. They initially considered giving donors naming rights for the courses, but then thought better of the idea.


Michelle Goldberg argues against heated rhetoric while mentioning that she "hated Bush so much" and talks of the "blessed day" when Dick Cheney dies.

Via Instapundit, I watched the long discussion between Michelle Goldberg and Megan McArdle over the Tea Party rallies.

Goldberg is attacking what she sees as right-wing rhetoric that "contribute[s] to a climate of incitement."

What struck me was how, in the course of the debate, Goldberg casually expresses her deep hatred for Bush and Cheney. At 64:20, she mentions in passing, "God, I hated Bush so much." And at 39:10 Goldberg refers to the "blessed day" when Dick Cheney dies and says, "I certainly wouldn't be shedding many tears if Dick Cheney dropped dead."

Goldberg also refers to the protesters by the sexually derisive term "tea-baggers" (at 54:03).

The biggest problem with the media's understanding of the Tea Party movement is that some on the left assume (1) that the Tea Parties are Astroturfed at least as much as some of the left's own demonstrations and (2) that the educated right hates Obama at least as much as the educated left hates Bush and Cheney. So far, I haven't seen much evidence of either.

Related Posts (on one page):

  1. A Quick Response to Orin.--
  2. Quick Response to Jim:
  3. Michelle Goldberg argues against heated rhetoric while mentioning that she "hated Bush so much" and talks of the "blessed day" when Dick Cheney dies.

Presidential aspirants not born in the United States:

The Constitution provides: "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

During the last presidential election, some people suggested that John McCain was not eligible for the presidency, because he was born in the Canal Zone. Radio Free Europe (Russian language station) interviewed me about the controversy last year. NY Times story here. The issue got serious enough so that Congress passed a resolution saying

I remember that during the 1968 presidential election, there was controversy about the eligibility of Michigan Governor George Romney, who was the GOP frontrunner for a while. Romney (father of the current GOP frontrunner) had been born in Mexico to U.S. citizens who were living in a LDS colony there.

A 1988 Note in the Yale Law Journal about the NBC clause states: "This constitutional uncertainty persists despite the fact that the issue has arisen frequently over the past twenty years in discussions over the potential candidacies of foreign-born politicians such as Barry Goldwater, Lowell Weicker, George Romney, Christian D. Herter, and Franklin D. Roosevelt, Jr. Goldwater was born in the territory of Arizona before it became a state; Weicker, in Paris of an American father and British mother; Romney, of American parents in Mexico; Herter, of Americans in France; Roosevelt, in Canada." Note, Jill A. Pryor, "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty," 97 Yale Law Journal 881 (1988).

Can commenters provide other examples of previous presidents or presidential aspirants regarding whom the "natural born Citizen" clause was raised? My guess is that the current crowd of Obama birthers may be part of a broader tradition in American history than is currently recognized. If you are really diligent, see footnote 2 of the Yale note for some citations to older law review articles (not available on Westlaw) which may have some more examples.

If we look back further into our Anglo-American history, in the Glorious Revolution of 1688, when William & Mary drove out the wicked James Stuart, we find that when William of Orange set sail for England, "William made no claim on his own behalf, but called only for a free Parliament and a study of whether James II's new son really was a son or had been smuggled into the birthing room in a warming pan." Kopel, "It Isn't About Duck Hunting: The British Origins of the Right to Keep and Bear Arms." Review of Joyce Malcolm's book To Keep and Bear Arms: The Origins of an Anglo-American Right. 96 Michigan Law Review 1333 (1995).

The historical cases are interesting to consider because they provide some perspective on the current claims that the birthers are active only because Obama is biracial. Historically, one can find some analogues; I saw enough anti-LDS prejudice during Mitt Romney's 2007-08 presidential campaign to indicate that religious bigotry might have played a role in George Romney birtherism. Unquestionably the concern of the James II birthers was not worry that the James Stuart (who was Catholic) had a low sperm count, but fear of his efforts to replace Protestant England's mixed form of government with absolutism modeled on Catholic, hyper-centralized France. However, for many of the other instances of birtherism (McCain, Weicker, Goldwater, Roosevelt, etc.), it is hard to see any angle involving racial or religious prejudice.

Related Posts (on one page):

  1. Chester Alan Arthur: The Barack Obama of the 19th Century:
  2. Presidential aspirants not born in the United States:

California to Seek Supreme Court Review of Order Requiring Reduction of Prison Population: News here; the lower court ruling is here. This could be a big case. Today's Supreme Court is likely to look at these issues pretty differently than judges Stephen Reinhardt, Thelton Henderson, and Lawrence Karlton.

   Justice Kennedy will be particularly interesting to follow. On one hand, Justice Kennedy has spoken out against the high incarceration rate in the United States. On the other hand, he has tried to give states relative flexibility in institutional reform litigation.

Castro, Morales, Nyerere named official UN heroes:

Story here. More information in this story in Spanish. Morales is officially "the maximum exponent and paradigm of love for Mother Earth." Castro is "World Hero of Solidarity." The late Nyerere is "World Hero of Social Justice."

General Assembly President Miguel D'Escoto Brockmann said, "What we want to do is present these three people to the world and say that they embody virtues and values worth emulation by all of us." They indeed worthy of emulation by anyone who aspires to becoming a famous tyrant while crushing freedom and the rule of law--as does the Sandinista government of Nicargua, whom D'Escoto represents at the UN.


Tuesday, September 1, 2009

Is the Copyright Royalty Board Unconstitutional? Part III - The Real Deal?

In two separate decisions in July, judges on the U.S. Court of Appeals for the D.C. Circuit noted that there are questions about the constitutionality of the Copyright Review Board, a three-member federal agency that sets copyright royalty rates whose members are selected by the Librarian of Congress and subject to removal only for cause. In SoundExchange v. Librarian of Congress, Judge Brett Kavanaugh wrote a separate concurring opinion raising questions about the Board's constitutionality, but noted the issue had not been raised by the parties. A few days later, in Intercollegiate Broadcast System, Inc. v. Copyright Review Board, the D.C. Circuit noted but passed on this issue again, as the issue had been raised too late.

It looks the D.C. Circuit will get another chance to consider the question. BLT reports that internet radio aggregator Live365 has filed suit directly challenging the CRB's constitutionality. Specifically, Live365 argues that under the Appointments clause Congress may not delegate authority to appoint the members of the CRB to the Librarian of Congress, a department in the legislative branch of government.

Will the third time be the charm? Perhaps, but the viability of Live365's suit likely depends upon how the Supreme Court resolves Free Eneterprise Fund v. Public Company Accounting Oversight Board, an appointments clause challenge to the constitutionality of the PCAOB. While the issues presented are not precisely the same, the two entities are likely to rise and fall together. If the current Supreme Court is willing to follow Justice Scalia's lead and embrace a relatively formalist view of the clause, both the CRB and PCOAB should go down. If, on the other hand, the Court adopts a more pragmatist posture, as the Court did in the independent counsel case, Morrison v. Olson, I would expect both to survive. Any predictions?

Related Posts (on one page):

  1. Is the Copyright Royalty Board Unconstitutional? Part III - The Real Deal?
  2. Is the Copyright Royalty Board Unconstitutional? - Take Two:
  3. Is the Copyright Royalty Board Unconstitutional?

The Misunderstood, Peaceloving Adolf Hitler:

By Pat Buchanan. Who else?


Woo Hoo!

I am thrilled to report that one of my dearest friends (and groomsmaids), Elaine Mandel, has just been appointed a judge on the L.A. County Superior Court, at the tender age of 41. She'll do a superb job, I'm positive. Congratulations, Elaine!


Fourth Amendment Violation in Police Policy of Test-Firing All Guns They Get, Even With No Individualized Suspicion?

From the Fayetteville Observer:

George Boggs thought he was doing police a favor last week when he handed over the firearm he kept in his car after he was in a wreck.

Boggs has a permit to carry a concealed weapon, and he wanted his handgun secured while he went to the hospital, he said. The permit requires him to notify police of his weapon. On Monday, when he went to the Fayetteville Police Department to retrieve his gun, he couldn't get it back. He was told that police first wanted to fire the gun to see if the spent shell casing and round would match data in a nationwide ballistics inventory used to solve crimes.

The gun is scheduled to be test-fired today, he was told.

Boggs complained to police supervisors that his new gun has never been fired. The ballistics test, he said, would diminish the value of the .45-caliber Taurus Millennium he bought last month for $399 at a local gun store.

He said the city is violating his Fourth Amendment rights that protect him from unreasonable searches and seizures.

Police defend their decade-old policy of checking most handguns that come into their custody -- no matter the reason -- to see if they have been used in a crime. They say public safety outweighs any inconvenience to the owner.

My tentative thinking is that any such policy of test-firing all guns that come into police custody, with no individualized suspicion that the gun had been used in any misconduct, violates the Fourth Amendment violation. It's a search, at least as much as moving the stereo equipment to see the serial number in Arizona v. Hicks was a search. (Hicks was a Justice Scalia opinion, by the way.) And it's hard to justify this under the special needs / administrative search rationale, because it does seem to be aimed at serving the general interest in law enforcement.

To be sure, this search is much less intrusive than many other searches, and it doesn't outrage me (though note that I'm generally far from a privacy maximalist). Still, it seems to be prohibited by standard Fourth Amendment doctrine. Or am I missing something?


Former Miss California USA Suing Pageant for Religious Discrimination (and Other Matters):

Religion Clause reports, and links to the complaint:

Former Miss California USA, Carrie Prejean, yesterday filed a lawsuit in a California state court against Miss California pageant officials accusing them of religious discrimination, as well as defamation, disclosure of private medical facts and intentional and negligent infliction of emotional distress. Prejean's title was taken away in June 2009, allegedly for breach of contract.... [Prejean] alleges in part that defendants ... [conspired] to have Prejean dismissed as Miss California USA because she insisted on publicly expressing her religious beliefs opposing same-sex marriage.


Writ of Certiorari: To get the Supreme Court to agree to hear a case, a party normally has to file a petition for a writ of certiorari. But what is a writ of certiorari? According to Stern & Gressman (8th ed, p.54), historically this was an order issued by a higher court to a lower court ordering the lower court to certify the lower court record. So a petition for a writ of certiorari would originally have been a request from a losing litigant to a higher court to order the lower court to certify the record in the lower court, presumably as a prelude to the higher court agreeing to hear the case to review the lower court. These days, the Clerk of the Supreme Court takes care of the record being certified without a formal writ being issued: the Clerk just sends a request to the lower court clerk after the petition has been granted (or whenever the Court requests the record). Still, the historical label remains.

Age 23:

The discussion on the "raising minimum age for hold office" thread remarked on how unusual an age 23 cutoff is, further evidence that this is all about going after one particular candidate. Here's one other appearance -- coincidental, I'm sure -- of the age 23 cutoff; in Missouri, that's the age one has to be to get a license to carry a concealed firearm. (In most other shall-issue states, the age is 21, and in most of the remaining ones it's 18.)

It's also the age one has to be in Alabama, Ohio, Virginia, or Wyoming to be a mine foreman (in Ohio, only as to "gaseous underground mines"), in Arizona to be a cosmetologist without having "at least two years of high school education," in Kentucky to be a barber member of the Board of Barbering, and in Pennsylvania to be a barber-teacher.


"Reprints: Yes or No?"

My colleague Prof. Stephen Bainbridge asks this question, and it's a very good one. I'd love to hear some thoughts on the answer myself, though I think it would be best to post the answers on his blog, since that way all the comments will be gathered in one place.

Raising Minimum Age for Holding Office:

The Cleveland Plain Dealer reports:

A Streetsboro man who two years ago nearly became the city's mayor at the age of 19 has been barred from this year's ballot because of a charter amendment that raised the age for holding office.

Brett McClafferty, now 21, came within about a half-dozen votes of winning the 2007 primary and a spot in a runoff.

Afterward, city leaders passed a charter amendment that raised the minimum age for becoming mayor to 23.

Pretty scuzzy, it seems to me, in a way that just setting minimum ages without any specific person in mind is not. Minimum ages are at least in principle plausible (though of course highly over- and underinclusive) proxies for an impartial judgment about who is likely to lack the sort of experience and maturity required for office. And of course they are a long-standing tradition, in both the U.S. Constitution (which requires a minimum age of 25 for Representatives, 30 for Senators, and 35 for the President and Vice-President) and in state constitutions.

They may not be sound, (1) because of their imprecision, (2) because voters are in a position to make the experience and maturity judgments themselves, and (3) because to the extent voters don't make the judgment well (likely because they aren't paying much attention to the race) there's little reason to think that the consequences would usually be that dire, since the maturity difference between a 23-year-old and a 25-year-old isn't really that great. But they are at least defensible. On the other hand, it's much less likely that a decision made in the wake of a nearly successful candidacy by a particular person, and one that is likely to disable at least one future candidacy by the same person, is similarly public-spirited, and much more likely that it is motivated by political opposition to this particular candidate. I can't speak to what exactly the motivations might be in Streetsboro, but as a general matter it seems to me there's plenty of reason to be highly skeptical of these sorts of changes that seem so closely tailored to one particular future candidate.

Thanks to Jason C. Miller for the pointer.

Related Posts (on one page):

  1. Age 23:
  2. Raising Minimum Age for Holding Office:

How Much Did Crop Diversity Decline in the 20th Century?

It is generally assumed that crop diversity declined dramatically during the 20th century. This trend is blamed upon market pressures and the rise of corporate agriculture, among other things. But is the underlying assumption accurate? Paul Heald and Susannah Chapman of the University of Georgia (law and anthropology, respectively) suggest we may need to rethink what we think we know about vegetable crop diversity. In a new paper, "Crop Diversity Report Card for the Twentieth Century: Diversity Bust or Diversity Boom?", they present evidence that crop diversity has not declined meaningfully at all.

According to the conventional wisdom, the twentieth century was a disaster of monumental proportions for vegetable crop diversity. The conventional wisdom is wrong. Our study of 2004 commercial seed catalogs shows twice as many 1903 crop varieties surviving as previously reported in the iconic 1983 study on vegetable crop diversity. More important, we find that growers in 2004 had as many varieties to choose from (approximately 7100 varieties among 48 crops) as did their predecessors in 1903 (approximately 7262 varieties among the same 48 crops). In addition, we cast doubt on the number of distinct varieties actually available in 1903 by examining historical sources that expose the systematic practice of multiple naming. Finally, by looking more closely at the six biggest diversity winners of the twentieth century (tomatoes, peppers, lettuce, garden beans, squash, and garlic), we suggest that patent law is virtually irrelevant.
These results will be a surprise to many, but I think they are largely consistent with what economic theory would predict. While there are pressures toward greater commodification and standardization of agricultural goods, there are also pressures to satisfy the demands of niche producers and consumers. As our ability to modify crop varieties improved, and the costs of customization declined, desired crop varieties should proliferate.

These trends might not occur in tandem. That is, the pressure toward commodification to increase productivity and reduce costs may precede the pressure toward the development of specialty crops. If so, then one would expect to see an initial decline in crop diversity before an eventual increase. (Think of something like the agricultural equivalent of the "Environmental Kuznets Curve.") Some crop varieties are lost along the way, to be sure, but new varieties emerge as well, and I see no reason to presume that the older varieties are necessarily superior than the new ones. In many cases they will each have been the product of human design.

Consider this example. During the initial "Green Revolution" there was a decline in crop diversity as it was too costly to breed desired traits into all existing varieties of individual crops. Increased agricultural productivity came at the expense of local crop diversity. Over time, however, more advanced techniques make it much less expensive and time consuming to insert a desired characteristic into a given plant. This has enabled the insertion of desired traits into traditional local varieties, so that crop quality can be improved without sacrificing crop diversity. Somewhat ironically, some of the same groups that complain the most about the loss in crop diversity also oppose the technologies that can enable agriculture to meet more human needs without sacrificing it.

UPDATE: Study co-author Paul Heald adds some thoughts in the comments.


Prelaw Is No Prep for the LSAT:

Paul Caron points to an interesting new study looking at the average LSAT performance prospective law students' grouped by major.

Using 1994-1995 and 2002-2003 data, Nieswiadomy (1998, 2006) found that economics majors scored well on the LSAT. These results are frequently posted on university web sites by Economics and other departments. This note, which updates the prior studies using current 2007-2008 data for the 2008-2009 class of students entering law school, finds that Economics majors still perform at or near the top of all majors taking the test. Economics majors (LSAT score of 157.4) are tied for first (with Philosophy) of the 12 largest disciplines (those with more than 1,900 students entering law school). Economics is tied for second (with Philosophy/Religion (157.4)) behind Physics/Math (160.0) in a set of 29 discipline groupings that are created to yield at least 450 students with similar majors.
Paul Caron also reproduces a table with the results.

What explains these results? Certainly there could be some amount of self-selection. For instance, I think it's reasonable to assume that only a small portion of physics and math majors take the LSAT, and it is possible that those who take the LSAT have have a greater aptitude for legal reasoning (insofar as that is what the LSAT tests) than do physics and math majors generally. But I also think the data suggests that those disciplines that place a greater emphasis on logic and syllogistic reasoning are better preparation for the LSAT than those that do not.

UPDATE: An interesting thought from the comments: The nation's most selective universities are less likely to offer a "Prelaw" major, therefore the results may reflect the fact that a Yale undergraduate who wants to go to law school may be a history or philosophy major, while an undergrad with the same interests at a less selective school might major in Prelaw or criminal justice. Also, it's curious that the study does not group political science and government majors. Assuming that few schools offer both majors, is it possible that more selective schools are more likely to offer one than the other? Might that explain the three point difference in LSAT averages between the two groups?


Mechanics of the Law Teaching Market: Brian Leiter has updated the advice given to University of Chicago Law School graduates on the law teaching market. Readers who are on or interested in the law teaching market should find it helpful.

  Reading over the materials, I'm reminded of how much more sophisticated entry-level candidates are today than just a few years ago. When I went on the market in the fall of 2000, for example, I didn't have much of a sense of what I was doing. I don't think other entry-level candidates did, either. My sense is that the Internet has changed that. There is so much more information about the process on the web that the average candidate today is much more savvy than the average candidate a decade ago.


Here's the answer to yesterday's puzzle -- cosinage is not related to cosines, cosigning, cozening, cosseting, or the Slavic "syn" (meaning "son"), or the Latin "sinus." Rather (isn't it obvious?) it's what happens when you can't get an ayle, besayle, de avo, de proavo, or mort d'ancestor. ("Very barbarous names," says Justice Duncan in Witherow v. Keller, 11 Serg. & Rawle 271 (Pa.).)

OK, it isn't quite that hard, since it is indeed (as some commenters noted) related to cousins and consanguinity. KeithKW was the first to note the consanguinity link, so the promised glory &c. goes to him. I turn to Sir William Blackstone (the quotation is from my 1847 American edition, though the link is to a different edition):

[An action by writ of] assize is a real action which proves the title of the demandant merely by showing his or his ancestor’s possession ...

If the [ouster of the demandant] happened upon the death of the demandant’s father or mother, brother or sister, uncle or aunt, nephew or niece, the remedy is by an assize of mort d’ancestor, or death of one’s ancestor. This writ directs the sheriff to summon a jury or assize, who shall view the land in question, and recognize whether such ancestor were seized thereof on the day of his death, and whether the demandant be the next heir; soon after which the judges come down by the king’s commission to take the recognition of assize: when, if these points are found in the affirmative, the law immediately transfers the possession from the tenant to the demandant. If the abatement happened on the death of one’s grandfather or grandmother, then an assize of mort d’ancestor no longer lies, but a writ of ayle or de avo; if on the death of the great-grandfather or great-grandmother, then a writ of besayle or de proavo; but if it mounts one degree higher, to the tresayle, or grandfather’s grandfather, or if the abatement happened upon the death of any collateral relation other than those before mentioned, the writ is called a writ of cosinage or de consanguineo.

By the way, though the main entry in the Oxford English Dictionary for this term is "cousinage," the dominant spelling in English and American cases has indeed been "cosinage." The origin is indeed "cousin," but, as the OED points out, "In mediæval use, the word [cousin] seems to have been often taken to represent L. consanguineus," though the actual origin of "cousin" is from the Latin consobrinus.]

More from Justice Duncan:

On the general doctrine of disseisin, Lord MANSFIELD has said, it was once well known, but is not now to be found; the more we read, the more we shall be confounded. Taking it for granted, that what would confound Lord MANSFIELD, would overwhelm me, I never have puzzled myself with this abstruse subject, and I never shall; the study of it neither affords profit nor pleasure, and I have no ambition to be wiser than Lord MANSFIELD.

Related Posts (on one page):

  1. Cosinage:
  2. Cosinage:

Geoengineering the climate: legal implications.

A British academic group has published a major report on geoengineering technologies that could be used to mitigate climate change. These technologies come in two flavors: carbon dioxide removal and solar radiation management (reflecting the sun’s energy back into outer space). The bottom line is that many of these technologies have potential, but also pose significant risks and are likely to be extremely costly. For example, capturing carbon dioxide from ambient air would be the most precise and accurate method of addressing climate change, since it would remove the source of the problem; but the know technologies are not cost-effective. Stratospheric aerosols (sending particles into the air to reflect solar energy back into space, as occurs after volcanic eruptions) are cheaper but could have potentially catastrophic effects on other aspects of the climate, such as the ozone layer.

It is not hard to anticipate that, despite these problems, geoengineering will become the rallying cry for skeptics of a climate treaty. Indeed, the British scientists clearly anticipated this reaction, and prepared for it with a rather gloomy title for their press release: “Stop emitting CO2 or geoengineering could be our only hope”—an otherwise puzzling start to what might seem like a pretty optimistic take on an approach to the climate problem which seemed out of the realm of possibility not many years ago. The first sentence of the press release drives the message home: “The future of the Earth could rest on potentially dangerous and unproven geoengineering technologies unless emissions of carbon dioxide can be greatly reduced, the latest Royal Society report has found.” Yet the conclusion of the report is that we should invest heavily in researching these technologies.

But the authors of the report are right to worry about climate-treaty skepticism. The right way to approach the climate change problem is first to force people and business to internalize the costs of their emissions. This can be done only through a climate treaty that imposes a tax or a (more-or-less) equivalent quantity restriction with tradable permits. If geoengineering can remove carbon from the atmosphere at an economical cost, then taxes can be reduced or quantities limits raised as necessary. But it is unrealistic to expect that geoengineering will simply eliminate the problem; much more likely, it will mitigate the problem at the margins, so that over the long term greenhouse gas emissions will not need to be lowered to zero, but they will still need to be curtailed, and only a climate treaty can accomplish that goal.

The most worrying implication of the report is that it injects an enormous dose of uncertainty into an already extraordinarily complex problem. It is not hard to imagine countries like China and India deciding that they would rather gamble with geoengineering than risk the short-term economic costs that would be imposed by any meaningful climate treaty. Indeed, they might reasonably expect to free ride on geoengineering initiatives undertaken by the United States and Europe, which would benefit everyone in the world. Ideally, international cooperation would ensure a fair distribution of costs. But the United States and Europe probably cannot credibly tell China that they will not fund geoengineering projects unless China participates, whereas they can credibly tell China that they will not cut emissions unless China does as well. The strategic settings are different. With respect to cutting emissions, the United States and Europe cannot solve the climate problem without Chinese (and Indian and Russian and Brazilian…) participation because of their enormous contributions to the climate problem (China is the leading emitter of greenhouse gases) and because of the “leakage” problem—industry will migrate from regulated countries to unregulated countries. With respect to geoengineering, it is at least possible that the United States and Europe can solve this problem, or at least make great inroads. If so, and if China and other countries respond rationally by free riding, then geoengineering may end up costing the United States a lot more than a reasonable climate treaty would.

Related Posts (on one page):

  1. Geoengineering and the law, Part II.
  2. Geoengineering the climate: legal implications.

Holder's Plans for DOJ's Civil Rights Division: Charlie Savage has the scoop in the New York Times. No big surprises, in my view: It's pretty much what any Democratic Administration would do.

Monday, August 31, 2009

One of the Coolest Things I've Ever Seen:

A picture of a single molecule.

The Daily Mail (UK) reports:

The researchers focused on a single molecule of pentacene, which is commonly used in solar cells. The rectangular-shaped organic molecule is made up of 22 carbon atoms and 14 hydrogen atoms.

In the image above the hexagonal shapes of the five carbon rings are clear and even the positions of the hydrogen atoms around the carbon rings can be seen.

To give some perspective, the space between the carbon rings is only 0.14 nanometers across, which is roughly one million times smaller than the diameter of a grain of sand.

Thanks to InstaPundit.



What does this word mean? The first person to correctly answer the question will get glory, and undying respect and admiration. No fair peeking.

Related Posts (on one page):

  1. Cosinage:
  2. Cosinage:

On a Roll:

I'm proud to report that my appellate colleagues at Mayer Brown (where I'm a part-part-part-time academic affiliate) have had a remarkable string of victories, five in the nine days from Aug. 19 to Aug. 27:

  1. Movsesian v. Victoria Versicherung AG (9th Cir.), holding that a California statute that "extends the statute of limitations until 2010 for claims arising out of life insurance policies issued to 'Armenian Genocide victim[s]'" is preempted because it "interferes with the national government's conduct of foreign relations."

  2. Salmeron v. Enterprise Recovery Systems, Inc. (7th Cir.), affirming dismissal of a False Claims Act suit against Sallie Mae and other defendants as a sanction for leaks of confidential material by the plaintiff's attorney to

  3. CSX Transportation, Inc. v. Bickerstaff (Md. Ct. Spec. App.), vacating damages awards totaling over $15 million, on the grounds that the trial court erroneously failed to instruct the jury to apportion damages to factors other than CSX's or the plaintiffs' negligence (such as the plaintiffs' age, obesity, or pre-existing medical conditions).

  4. Hensley v. CSX Transportation, Inc. (Tenn. Ct. App.), concluding that an erroneous failure to instruct the jury on the requirements to recover damages for fear of cancer was not harmless, and therefore required reversal of the $5 million verdict.

  5. Udac v. Takata Corp., reversing a $12.5 million product liability punitive damages award for lack of sufficient evidence of the punishable mental state, and vacating the remaining $4.5 million compensatory damages awards because of evidentiary and instructional errors committed by the trial court.

It's such a pleasure working with top-notch lawyers like this; with luck, I'll learn something from them.


"'Important Questions of Federal Law': Assessing the Supreme Court's Case Selection Process":

Looks like an excellent forthcoming conference -- put together by the Yale Law School Supreme Court Advocacy Clinic and the Yale Law Journal Online -- on Sept. 18, 2009, at the National Press Club in D.C. Participants include Judge J. Harvie Wilkinson, Linda Greenhouse, Lyle Denniston, Prof. Fred Schauer, and my Mayer colleagues Charles Rothfeld and Andrew Pincus, who teach at the Yale Clinic.


Best "Value" Law Schools

The National Jurist has just released its ranking of the best "value" law schools. The top five are: (1) North Carolina Central; (2) BYU; (3) Univ. of Nebraska; (4) Georgia State; (5) Univ. of Mississippi. For a full list of the best value rankings, click here.

Perhaps because my home school (the Univ. of Utah College of Law) is left off the list, the rankings seem screwy to me. The reason Utah is off the list is that only those schools with bar pass rates above the state average are included. Utah is a two-school state, with most bar applicants coming from either Utah or BYU. Accordingly, one school is above average and one below. The Univeristy of Utah has a bar pass rate of 86%, slightly below the state average of 87% — so Utah is not included in the rankings.

For other states, apparently ALL law schools are above the state average. I notice that, for example, all of the North Carolina law schools have bar pass rates above the state average. (For a school-by-school listing of bar pass rates. click here.) Perhaps North Carolina has a large number of unaccredited law schools pumping out weak applicants for the bar, that allow accredited law schools - like North Carolina Central — to have bar pass rates clearly above the state's average.

Finally, the rankings seems to give undue weight to tuition price. Perhaps the rankings should be "cheapest" law schools, as the value component doesn't seem very well thought out. The rankings also don't consider debt that students end up carrying at graduation. That seems like an important fact that should be considered, although apparently the data is not widely available.


Sunday, August 30, 2009

Alien Tort Statute Exchange over at Opinio Juris:

There's an interesting exchange going on over at the international law blog Opinio Juris on the Alien Tort Statute ... I put up a post citing to a short, decently explanatory, and even-handed news article in the Wall Street Journal by Nathan Koppel on the effect of ATS litigation as it reaches to corporations. I reproduce my post below. My co-blogger, international criminal law professor Kevin Jon Heller, responded with a post of his own criticizing one section of the article, quoting Joe Cyr, a New York attorney with a practice in corporate ATS defense. Mr. Cyr is kind enough to respond to KJH in the comments, and it unfolds from there. Interesting exchange; check it out.

Below the fold is my original ATS post at OJ. As readers of my stuff are aware, I am highly skeptical of the corporate liability claim in ATS litigation; I'm working, or will shortly be working, on something about it, but meanwhile, my basic view is set out in this expert declaration on behalf of corporate defendants in the Agent Orange ATS suit in front of Judge Weinstein a couple of years ago.



Fixing Health Care:

Truth be told, I have not been following the great Health Care debate very closely, and I do not pretend to any expertise whatsoever in the subject matter of reforming the US healthcare industry. But David Goldhill's recent article in the Atlantic ("How American Health Care Killed My Father") strikes me as an enormously sensible and straightforward approach to the issue (one reason - that, and its simplicity - that it will probably get little or no traction at all in the discussion).

"All of the actors in health care—from doctors to insurers to pharmaceutical companies—work in a heavily regulated, massively subsidized industry full of structural distortions. They all want to serve patients well. But they also all behave rationally in response to the economic incentives those distortions create. Accidentally, but relentlessly, America has built a health-care system with incentives that inexorably generate terrible and perverse results. Incentives that emphasize health care over any other aspect of health and well-being. That emphasize treatment over prevention. That disguise true costs. That favor complexity, and discourage transparent competition based on price or quality. That result in a generational pyramid scheme rather than sustainable financing. And that—most important—remove consumers from our irreplaceable role as the ultimate ensurer of value."

His focus in on consumer incentives -- because only a decentralized information-processing system (like a viable market) can possibly control and rationalize the billions upon billions of decisions that need to be made at all levels in order for health care to work.

"To achieve maximum coverage at acceptable cost with acceptable quality, health care will need to become subject to the same forces that have boosted efficiency and value throughout the economy. We will need to reduce, rather than expand, the role of insurance; focus the government’s role exclusively on things that only government can do (protect the poor, cover us against true catastrophe, enforce safety standards, and ensure provider competition); overcome our addiction to Ponzi-scheme financing, hidden subsidies, manipulated prices, and undisclosed results; and rely more on ourselves, the consumers, as the ultimate guarantors of good service, reasonable prices, and sensible trade-offs between health-care spending and spending on all the other good things money can buy."

I won't do Mr. Goldhill the injustice of trying to inadequately summarize his proposals - but it's the first thing I've read (and again - I don't claim to have read all that much) about this issue that makes a damned bit of sense to me.


Is Stimulus Spending Another Pork Barrel?

The AP reports politics-as-usual is influencing how at least some stimulus money is being spent.

A sleepy Montana checkpoint along the Canadian border that sees about three travelers a day will get $15 million under President Barack Obama's economic stimulus plan. A government priority list ranked the project as marginal, but two powerful Democratic senators persuaded the administration to make it happen.

Despite Obama's promises that the stimulus plan would be transparent and free of politics, the government is handing out $720 million for border upgrades under a process that is both secretive and susceptible to political influence. This allowed low-priority projects such as the checkpoint in Whitetail, Mont., to skip ahead of more pressing concerns, according to documents revealed to The Associated Press.

This isn't new. As the AP reports, political factors have long influenced spending decisions, even in the homeland security context. The stimulus was supposed to be different, but it looks like more of the same. (HT: Instapundit)


A Personal Demonstration of How "Voting With Your Feet" is Often Easier for the Poor than the Rich:

In the past, I have written about why, contrary to conventional wisdom, "voting with your feet" generally benefits the poor more than the relatively affluent - in part because it is much easier for the poor to do it. Ironically, I have now uninentionally confirmed my theory in my own life.

From 1997 to 2003, I moved five times to different parts of the country. Most of these moves were relatively easy to bear. Why? Because I didn't have much stuff to pack, transport, unpack, and generally worry about. Moreover, I was always moving into apartments or (in one case) a condo. So there was no contracting work to arrange for to get the place ready. Both the lack of possessions and the nature of the places I lived was dictated by the fact that I was fairly poor.

By contrast, my fiancee and I have recently moved into a new house a mere three miles away from my old condo. For me at least, this move has been more stressful than the previous five combined. Why? Because, due to my much higher pay since becoming a law professor, I now have many more possessions. The packing and unpacking have been a major pain, to put it mildly. Similarly, moving into a house required hiring contractors to do some work to get it ready, and dealing even with good contractors (like the ones recommended to us) is time-consuming and annoying, especially for people who are inexperienced with it. The process of selling the old home and purchasing a new one also requires an investment of time, effort, and money that people moving from one rental unit to another don't have to deal with.

In sum, while each of my previous moves involved merely two or three days of unpleasantness, this one has been a weeks-long ordeal. I hasten to add that no one should feel sorry for me. On balance, it is much better to be relatively affluent than to be poor (even if only temporarily poor, as I was during my pre-lawprof days). That much is obvious.

However, the much greater difficult of moving when you own a lot of stuff is an additional reason why voting with your feet is often easier for the poor. My experience is far from unique. Studies by economists find that homeownership (a proxy for wealth and possessions), tends to reduce labor mobility significantly. Another way of putting it is that the relatively high moving costs faced by the affluent make it less likely that they will move to a different jurisdiction to take advantage of its superior policies, unless the superiority is very great. The poor, by contrast, can often move to exploit relatively smaller interjurisdictional differences.

Obviously, if your wealth is really great, you can to some extent reduce the pain of moving by paying people to do everything for you. I did in fact pay movers to transport my stuff and pack a few especially hard to deal with items. However, that can get extremely expensive quickly, and only the really wealthy can easily afford to hire movers to do everything difficult. Even for them, the substantial additional cost of hiring professionals to do more things acts as a further deterrent to moving in the first place.


Lori Drew Opinion:

Orin is too modest to mention it, but Judge Wu's opinion in the Lori Drew case cites Orin's article on the Computer Fraud and Abuse Act, several times.