Anyone interested in the proper balance between market and government in the securities field should check out Roger Loewenstein's article on the ratings agencies from the NYT. Here's the bottom line:

[By 2006], [a]lmost all of . . . subprime loans ended up in securitized pools; indeed, the reason banks were willing to issue so many risky loans is that they could fob them off on Wall Street. But who was evaluating these securities? Who was passing judgment on the quality of the mortgages, on the equity behind them and on myriad other investment considerations? Certainly not the investors. They relied on a credit rating.

Thus the agencies became the de facto watchdog over the mortgage industry. In a practical sense, it was Moody's and Standard & Poor's that set the credit standards that determined which loans Wall Street could repackage and, ultimately, which borrowers would qualify. Effectively, they did the job that was expected of banks and government regulators. And today, they are a central culprit in the mortgage bust, in which the total loss has been projected at $250 billion and possibly much more.

What's particularly interesting here is how the ratings agencies' dominance in their field can be in part attributed to their own failure to foresee the Penn Central collapse:

Continue reading "Party at Moody's"

Posted by Frank Pasquale at 08:28 AM | Comments (0) | TrackBack (0)

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Never at a loss for finding innovative ways to avoid liability, nursing homes are now pushing arbitration clauses onto residents. The trend raises some interesting contract law issues. For example,

[One family] hadn't realized they had signed an arbitration agreement at all . . . . But their six-page admissions contract with the Attala County Nursing Center included a paragraph requiring arbitration. It also said that if the family challenged the agreement in court they would have to pay the home's legal fees. That type of provision was declared "one-sided" and "oppressive" by the Mississippi Supreme Court last year in a separate lawsuit. But it helped pressure [the] family to accept the arbitration . . . .

A sidebar claims to offer some strategies for dealing with arbitration clauses:

Lawyers say patients should question admissions personnel closely. If an arbitration agreement is mandatory, they say, patients should write on the contract that they're being given no choice. "Write on the page, 'I'm signing this, because I was told I have to' " for admission, says Cleveland plaintiffs lawyer Blake Dickson, to try to make it easier to challenge an agreement in court.

Even the staunchest advocates of arbitration find these agreements troubling; the "biggest arbitration provider, the American Arbitration Association, frowns on agreements requiring arbitration in disputes over nursing-home care and generally refuses such cases." What's particularly ironic here is that much of the same political coalition that moved heaven and earth to respond to the Schiavo situation is behind the limits on lawsuits (and regulatory cutbacks) that make increasing risks of neglect and dehydration of the elderly a far more attractive business strategy.

Posted by Frank Pasquale at 08:12 AM | Comments (0) | TrackBack (0)

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The process of building a new memorial in Washington, DC always creates controversy. The forthcoming Martin Luther King Jr., National Memorial is no exception. The U.S. Commission of Fine Arts, which has veto power over the design, recently announced its objections to a model of the mammoth statue planned as a centerpiece of the site. The statue, at 28 feet intended to be significantly taller than Lincoln's at his memorial, depicts Dr. King standing with his arms folded and a very serious expression on his face (see the model here). In a breathtakingly terrible choice of words, the Commission worried that the statute so envisioned is too "confrontational in character."

This objection comes on top of earlier protests at the choice of a Chinese sculptor, Lei Yixin -- some saying that a black person or at least an American should design the statue; others criticizing the use of Chinese granite instead of the good ol' American kind, and others objecting that some of Lei's earlier work celebrates Mao Zedong.

The new criticism claims to be aesthetic rather than political, but the two are so fundamentally intertwined in this setting that art cannot distinguish itself from politics. Take, for instance, the following from a Washington Post blogger:

Continue reading "Controversy at MLK Memorial"

Posted by William McGeveran at 05:00 AM | Comments (0) | TrackBack (0)

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As the academic year comes to a close, the calendar treats those of us in the educational lark to our semi-annual blend of relief and alarm. (My commiserations to those on the quarter system!) Each passing day brings our students closer both to the respite of holidays and the horror of another exam. Until recently, I didn't appreciate that professors quaffed a similarly pungent brew. The flurry of review sessions, exam composition, exam grading, recommendations, faculty meetings, &c., seems to reach a violent crescendo before the halls fall silent.

For diversion during this tumult, I turn to this kind of thing:

The British (and Irish) seem partial to peddling things with comedy, while Americans apparently prefer the more earnest pitch of upward mobility. And while American soap operas are filled with beautiful people living successful lives, the British gobble up decades of bleak dramas featuring unemployed people kippering themselves in the cigarette smoke of their local pub. But enough pop transatlantic sociology.

What really fascinates me at these busy times is how some of our colleagues in the field manage to sustain an incredible pace of productivity throughout the year: a feat that requires the unusual talent of staying focused through frenzied times such as these as well as during the wide open spaces of mid-summer.

So I've attempted to make something of a ludicrously unscientific study of what a week in the life of a super-productive academic looks like. I've asked a few people who strike me as fitting that description to describe how they combine the central academic requirement of scholarly output with all the peripheral administrative and personal demands of this business. I'll report my findings in the coming few posts.

Posted by William Birdthistle at 11:05 PM | Comments (0) | TrackBack (0)

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In the May 2008 Harper's, Kevin Phillips argues that current macroeconomic indicators systematically overstate the health of the economy:

[Over] the past five years, [the press could have been reporting] 8 percent unemployment (instead of 5 percent), 5 percent inflation (instead of 2 percent), and average annual growth in the 1 percent range (instead of the 3-4 percent range). . . .

Phillips focuses on the work of John Williams, whose "shadow stats" offer a skeptical look at official government reporting. Executive branch officials have manipulated the figures to the point that some commentators find GDP and CPI numbers useless. Food and fuel crises may barely dent current inflation figures due to a fateful decision during the Nixon administration:

[In the 1970s], Federal Reserve chairman Arthur Bums develop what became an ultimately famous division between "core" inflation and headline inflation. If the Consumer Price Index was calculated by tracking a bundle of prices, so-called core inflation would simply exclude, because of "volatility," categories that happened to be troublesome: at that time, food and energy. Core inflation could be spotlighted when the headline number was embarrassing, as it was in 1973 and 1974. (The economic commentator Barry Ritholtz has joked that core inflation is better called "inflation ex~inflation"-i.e., inflation after the inflation has been excluded.)

What happens to our view of the economy when statistics better represent reality?

Continue reading "Pollyanna Creep"

Posted by Frank Pasquale at 10:46 PM | Comments (0) | TrackBack (0)

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In an essay on films that concentrate on memory, Davin Heckman offers this taxonomy of reality TV:

[C]ontemporary reality television shows can be broken down into eight general themes: sociocultural, makeover, survival, professional, romance, fame, reform, and practical joke shows.

Though Heckman concedes that "none of the shows operate exclusively in any single category," their sheer number confirms his thesis that "reality television has metastasized in recent years." Certain economic imperatives fueled the genre's growth--especially the lack of actors or script-writers to pay in what Writers Guild President Daniel Petrie, Jr. calls "a 21st-century telecommunications industry sweatshop." Beyond the supply side, the demand side is also leading to pressures for a more fragmentary and immediately comprehensible entertainment experience. Virtually all the reality TV I've seen has been watched en passant. But the snippets make perfect sense standing alone, or briefly introduced on a show like Talk Soup or Best Week Ever. Like the cell phone novel in Japan, the disjointed parade of stereotyped scenes can be taken (or left) in whatever chunks are most convenient.

Heckman connects reality TV "stars'" fluid personas to movies of memory, like Eternal Sunshine of the Spotless Mind or A Scanner Darkly. He says that the "common thread running through these films is the idea that a self that can be encoded, erased, and re-written." Adam Kolber has thoughtfully addressed these issues in his work on "freedom of memory;" Heckman suggests that our new entertainments reveal a darker side to that freedom:

Continue reading "A Reality TV Taxonomy"

Posted by Frank Pasquale at 06:09 PM | Comments (0) | TrackBack (0)

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Over at Convictions and Balkinization, Orin Kerr and Jack Balkin are having an interesting discussion about Justice Scalia's constitutionalism versus liberal constitutionalism.

Orin Kerr writes:

Justice Scalia's view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it's up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it's "we the people."

Kerr notes that liberal constitutionalism can be defended by arguing that "some limitations on democratic rule making actually enhance democratic rule making." But, Kerr notes: "This is a very popular move among academics, although it can be hard to sell to the public." Kerr also contends that another option is "to forget about theory and instead focus on results. . . . The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones."

Jack Balkin contends that "Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application." Balkin goes on to argue:

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution's text and principles, and apply them faithfully to new circumstances and new challenges.

I have a few thoughts to add to this debate:

1. The quest in theories of constitutional interpretation has often been to find a way to legitimate judicial review. What gives courts the power to stop the will of the majority? The problem is that in a post-realist age, we realize that the Constitution is not very constraining and that justices can interpret it as freely as they can a Rorschach blot. This makes the quest for legitimacy a very difficult one, in at least two senses: (1) we need a theory for why a document written hundreds of years ago can bind us today, even when a large majority of us may want to do something; (2) we need a theory for why judicial interpretations of this document are authoritative and not merely the gussied-up projection of a justice's preferences. All sorts of valiant efforts have been made to find legitimacy in these two senses.

2. I'm not sure we should be so obsessed with legitimacy, because I'm not sure that we'll ever come up with a satisfactory way to achieve it. Kerr might very well be right that most theories to find legitimacy might appeal more to theorists than to the general public, and that's a big problem, for at least one main reason why legitimacy is sought is to convince the public of the validity of the Court's decisions. Paul Kahn's Legitimacy and History (1993) makes a very powerful argument for why the quest for legitimacy is futile.

3. Justice Scalia's populist constitutionalism is also deeply flawed. He says he's reluctant to overturn the will of the majority, but as Balkin notes, that's just false. Scalia's brand of originalism is just one theory among many to claim legitimacy, a way to argue that Scalia's interpretations are somehow more grounded than other justices' interpretations, that he somehow has insight into the true meaning of the Constitution. But there is no true meaning of the Constitution. And Scalia's method of interpretation is no more legitimate than many other methods. The realist in me says that this entire debate is about sloganeering. Everybody wants their vision to be the true meaning of the Constitution, and it devolves into a silly game of "I'm more legitimate than you."

Continue reading "Constitutionalism and Legitimacy"

Posted by Daniel J. Solove at 05:32 PM | Comments (5) | TrackBack (0)

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Like a good many law professors, I teach and write about digial rights management: the technological “locks” copyright owners use to keep people from getting at digital media without authorization. Exhibit A in any discussion of DRM is the DeCSS saga. CSS, the “Content Scramble System,” is the encryption system that keeps you, the home user, from watching DVDs without permission. The way it works is that some DVDs (the ones Hollywood cares about) come encrypted. The decryption key is stored in each and every DVD player, but manufacturers can’t get a license to make DVD players (and thereby get authorized access to the key) unless they sign an extensive license agreement with the DVD Copy Control Association. By obvious linguistic principles, DeCSS is the thing that makes CSS not do its thing. In particular, a Norwegian teen (fun fact: seven of the first ten Google hits for “Norwegian teen” are about him), frustrated at the lack of software DVD players that run on the open-source operating system Linux, wrote a program that decrypts CSS-protected DVDs. The idea is that one could then take the unencrypted version from your computer, burn it to a blank DVD, and then view the DVD on a Linux computer.

As normally told, this story illustrates all sorts of useful points. It shows how a classic DRM-based business model works: sell individual copies with DRM that keeps them from turning into lots of copies. It shows how painfully insecure such business models can be: DVD Jon was easily able to find the super-seekrit CSS decryption key in the code of a Windows DVD player (every DVD player in existence, after all, must contain a copy of the key). And it shows the might of the law descending with fury and malice in response: lawsuits under the Digital Millenium Copyright Act soon followed.

But there’s a gaping technological hole in this story. You see, CSS as I’ve described it above, tries to block one specific attack vector: copying an encrypted DVD onto a computer and decrypting it, then using the computer’s DVD burner to make a new, unencrypted DVD version. DeCSS opens up this attack again. But why would anyone bother with this slow, clumsy way of making copies? Why not just read the encrypted contents of the DVD onto the computer, keep the bits encrypted, and burn them back onto a new DVD in exactly the same form? You wind up with a new DVD, exactly identical to the old. And, of course, thanks to the convenient fact that every DVD player in existence has a copy of the decryption key, that new DVD is playable on any DVD player in existence.

In other words, CSS sounds like a gigantic dust-up over nothing. Would-be pirates already have a perfectly good way of making any number of perfect copies. Worrying about DeCSS, it would seem, is like worrying about the barn’s windows when the wide-open door is just gaping at you. Hasn’t the legal system—and by extension, the legal academy—just spent who knows how many hours on a massive intellectual boondoggle?

Thus, a question for the readership. What crucial fact is missing from the story above? I’ll post the answer tomorrow, along with some pointed observations about the implications.

Posted by James Grimmelmann at 02:25 PM | Comments (13) | TrackBack (0)

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Following up on postings in February 2008 and May 2007, here's this month's SSRN download ranking, measured by total new downloads. (The numbers in parentheses are the rankings from February. Total new downloads for these fifty institutions: 914,252)

1 George Washington University - Law School (1)
2 Harvard University - Harvard Law School (2)
3 Columbia University - Columbia Law School (3)
4 University of Chicago - Law School (4)
5 Yale University - Law School (6)
6 University of Texas at Austin - School of Law (5)
7 University of California, Los Angeles - School of Law (7)
8 Georgetown University - Law Center (9)
9 Stanford Law School (8)
10 New York University - School of Law (11)
11 University of Illinois College of Law (10)
12 University of Pennsylvania Law School (12)
13 University of California, Berkeley - School of Law (13)
14 Vanderbilt University - School of Law (14)
15 University of Minnesota - Twin Cities - School of Law (16)
16 George Mason University - School of Law (18)
17 Duke University - School of Law (17)
18 University of Tennessee, Knoxville - College of Law (15)
19 University of San Diego - School of Law (19)
20 University of Michigan at Ann Arbor - Law School (20)
21 University of Southern California - Law School (21)
22 Northwestern University - School of Law (22)
23 Temple University - James E. Beasley School of Law (28)
24 Florida State University - College of Law (25)
25 Boston University - School of Law (27)
26 Fordham University - School of Law (24)
27 Yeshiva University - Benjamin N. Cardozo School of Law (26)
28 American University - Washington College of Law (31)
29 Loyola Law School - Los Angeles (23)
30 University of Virginia - School of Law (29)
31 Cornell University - School of Law (34)
32 Ohio State University - Michael E. Moritz College of Law (30)
33 Suffolk University Law School (32)
34 Emory University - School of Law (36)
35 University of Louisville - Louis D. Brandeis School of Law (37)
36 Brooklyn Law School (35)
37 Indiana University School of Law-Bloomington (33)
38 Chapman University - School of Law (38)
39 St. John's University - School of Law (43)
40 University of Florida - Fredric G. Levin College of Law (47)
41 Case Western Reserve University - School of Law (41)
42 Notre Dame Law School (40)
43 Boston College - Law School (39)
44 Rutgers, The State University of New Jersey - School of Law-Camden (44)
45 University of Houston Law Center (Off-list)
46 Wayne State University Law School (Off-list)
47 Loyola University of Chicago - School of Law (Off-list)
48 University of Arizona - James E. Rogers College of Law (46)
49 Northern Kentucky University - Salmon P. Chase College of Law (Off-list)
50 Seton Hall University - School of Law (48)

Posted by Dave Hoffman at 11:41 PM | Comments (0) | TrackBack (0)

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Cornell Law Review, Volume 93 Number 4 (May 2008)

Articles

Grand Jury Discretion and Constitutional Design
Roger A. Fairfax, Jr.

Can Law Manage Competitive Energy Markets?
David B. Spence

Notes

Striking a Better Public-Private Balance in Forum Non Conveniens
Emily J. Derr

Restitution and the Lacey Act: New Solutions, Old Remedies
Kenneth B. Meyer

Book Review

The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making
Gregory C. Sisk

Posted by Cornell Law Review at 12:33 PM | Comments (0) | TrackBack (0)

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There's an interesting discussion going on over at Balkinization about whether theories of interpretation matter. For example, see the posts of Brian Tamanaha and Sandy Levinson.

I've always wondered about a related question. The judiciary adheres to stare decisis for many principles of law, but it seems to allow a free-for-all when it comes to interpretative method. Interpretative method (for both the Constitution as well as statutes) is left to the discretion of each individual judge or justice. So one judge might be an originalist, another might be a textualist, and yet another might adhere to the "living constitution." On the Supreme Court, for example, its institutional opinions -- those of the majority -- seem to shift from one interpretative method to another depending upon which justice authors that opinion. Why isn't the method of constitutional or statutory interpretation governed by stare decisis?

Stare decisis is justified based on the need for stability and consistency in the law. We frequently hear lofty pronouncements by courts about the great value of precedent. But these same values that underpin and justify stare decisis seemingly also apply to interpretative method. Wouldn't constitutional law be more stable and consistent if all the justices were to adhere to stare decisis about what method (originalism, textualism, etc.) should be used to interpret the Constitution? Why not bind justices in this way?

Of course, if methods of interpretation don't matter in the end, if cases are just decided on ideology and interpretative methods and theories are just elaborate window-dressing, then my question doesn't matter all that much. But if these methods do carry some influence or weight, if they do matter at all, then why do they remain so unsettled? Why not bind them with stare decisis? Perhaps justices might feel too constrained. If Justice Thomas couldn't be an originalist because of stare decisis, would this impinge upon his own individual prerogative, his unique judicial style? But stare decisis is about constraining justices based on what past justices have decided. So why not bind justices in this manner?

Is there a good argument for why stare decisis should not apply to interpretative method?

Image credit: David Lat (who has photos on my favorite photo site, Stock.xchng)

Posted by Daniel J. Solove at 12:03 AM | Comments (13) | TrackBack (0)

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Last week’s release of Grand Theft Auto IV (actually somewhere between the sixth and ninth game in the series, depending on how you count) was big news in the gaming world (even if some observers questioned the suspiciously universal acclaim). Players cleared their calendars and in some cases emptied their wallets to play the latest installment in this series of open-ended games, which drop the player into a vast city of cars to steal, bystanders to gun down, insane stunt jumps to make, and real-life references to spot.

Among lawyers, the games may be best-known for the regular moral panics they induce over fears of copycat violence, and for attorney Jack Thompson’s increasingly bizarre crusade against them. We might also ask what kind of a legal world the GTA series envisions within its famously capacious in-game universe.

The series’s built-in attitude of rampant lawlessness—it’s named after a crime, after all—might suggest a kind of deliberate criminality. That’s certainly the interpretation that fuels the regular calls for the games to be banned. And yes, the plots typically chart the protagonist’s Scarface-style rise as he carries out errands both murderous and larcenous for an entertaining assortment mob bosses. This interactive representation of lawlessness—the player playing at the role of criminal—puts the Grand Theft Auto games squarely within the tradition of deliberate shockers like Postal.

But this may be an unduly harsh take, and not just because the claim that playing violent games leads to violence in meatspace rests on some dubitable social science. San Andreas may well show us the world as Holmes’s bad man would see it, but consider the lessons he’d learn from it. Crime doesn’t always pay. In fact, offhandedly casual offenses—driving on the sidewalk to circle around traffic, say, and in the process clipping a pedestrian—can put the police on your tail. And the aggresive things you do to try and shake them often wind up making matters worse. Before you know it, you have a six-star wanted rating, they’re sending in the black helicopters, you’re crouched in a doorframe, and there’s pretty much only one way this story can end. Exaggerated though the arc may be, it does illustrate some of the vicious circles trapping the poor, the desperate, and the criminal.

Or consider the in-game depictions of the legal system itself. Get arrested by the police, and you’re back on the streets within seconds—minus some bribe money. Call it an indictment of revolving-door-prison liberalism, or call it an indictment of police more interested in protecting their turf than in doing justice or confronting Liberty City’s very real problems. The lawyers don’t come across much better: Ken Rosenberg is a paranoid cokehead who asks our hero to fix a case by intimidating jurors.

One last thought. Given the games’ increasingly humongous alternate reality, how about building in a penal code? Grand Theft Auto’s legal geekery index would soar if every unlawful act were accompanied by a statement of exactly what crime the player had just committed. “Arson in the second degree!” “Involuntary manslaughter!” “Grand theft garbage truck!” For added fun, the crimes could be correlated with a set of sentencing guidelines, so that the in-game statistics screen would tally up precisely the number of years of imprisonment the protagonist deserved.

Posted by James Grimmelmann at 11:19 PM | Comments (6) | TrackBack (0)

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When Bush v. Gore was decided in December of 2000, everyone thought it was a hugely significant case. But was Bush v. Gore a significant case after all?

When the votes were actually counted, after the fact, they showed that Bush would have won anyway. Nearly eight years later, it is safe to say that the case has not generated a jurisprudential revolution, even though a panel of Ninth Circuit judges tried to stop the California recall election by relying on Bush v. Gore, only to be overturned by an en banc panel of the Ninth Circuit. The Supreme Court has not cited the case at all, as far as I know, since Bush v. Gore was decided. Indeed, it is hard to imagine a constitutional law case decided in the past eight years that has been referenced less than Bush v. Gore has been referenced.

Many predicted that Bush v. Gore would undermine public support for the Court. Justice Stevens wrote in his dissenting opinion that "[t]ime will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Most of the studies of which I am aware show that Bush v. Gore has not, over the longer term, affected the Supreme Court's image in the public eye. Some studies show that there were short-term effects, but other research has demonstrated that over the longer-term the image of the Court has not been affected. If anything, some research has shown that public knowledge of the Court has increased, which is probably a good thing.

There is evidence that, consciously or not, law professors have tended to regard Bush v. Gore as not too big of a deal. As I taught my first Constitutional Law class this past year, I was shocked to see that Bush v. Gore was not even excerpted in the casebook I used, and was only referenced in passing in a few places.

But still, it HAS to be a big deal for the Supreme Court to intervene and essentially decide a presidential election. The case might not have made a big difference in measurable ways--or at least the measurable ways mentioned above--but when a court intervenes in that way, it has enormous symbolic importance in a democracy. So, even though Bush v. Gore does not affect any of the doctrinal issues in the (structural) constitutional law class, I assign excerpts of the case, for reasons of cultural literacy.

What do others do? I have not surveyed all of the casebooks, but my sense is that the casebook I used was not alone in not paying too much attention to the case. Do people assign this case? In what part of the class?

Posted by David Fontana at 07:09 PM | Comments (25) | TrackBack (0)

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Many thanks to Doug Berman over at Sentencing Law and Policy for his kind words about my last post discussing Begay v. United States. Doug ended his post by noting that “the only thing missing” from my analysis was an assessment of what the Court’s ruling in Begay might mean for the soon-to-be-decided United States v. Rodgriguez. Taking up Doug’s gently-placed gauntlet, here are my thoughts on the likely outcome of Rodriguez, as informed by the Justices’ voting/reasoning in Begay:

First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.

Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez:

Continue reading "Predictions for United States v. Rodriguez"

Posted by Anita S. Krishnakumar at 03:55 PM | Comments (1) | TrackBack (0)

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Southern California Law Review, 81:3 (March 2008)

Articles

Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. Cal. L. Rev. 405 (2008)

David Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477 (2008)

Notes

Padraic Foran, Unreasonably Wrong: The Supreme Court's Supremacy, the AEDPA Standard, and Carey v. Musladin, 81 S. Cal. L. Rev. 571 (2008)

Michael Moulton, Effecting the Impossible: An Argument Against Tax Strategy Patents, 81 S. Cal. L. Rev. 631 (2008)

Posted by Southern California Law Review at 01:44 PM | Comments (0) | TrackBack (0)

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Wired reports that the FBI subpoenaed the Internet Archive and demanded that Brewster Kahle (the Archive’s founder) provide records about one of the library's registered users, asking for the user's name, address and activity on the site. The FBI used a National Security Letter (example) to make the request. As Wired explains this type of letter does not require judge’s review before issuing it and often (almost always) has a gag order “forbidding the recipient from ever speaking of the subpoena, except to a lawyer.” The Archive, EFF, and the ACLU went to court and had the subpoena quashed.

As I argue in Property, Persona, and Preservation, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a related issue of once preserved what can be done with the information. Here, the Archive is preserving the information and then as a library allowing people to use that information. But because of the method of access, the FBI was able to ask for great detail about who looked at what information and when. Julie Cohen’s A Right to Read Anonymously: A Closer Look at "Copyright Management" In Cyberspace offers an explanation as to why the Archive’s win is so important. In short, reading anonymously involves identity of the reader and how we foster “freedom of thought and expression.”

In addition, the Wired article points out that despite the settlement the details of what was sought for example, the “kind of information the target was looking at or uploading -- such as animal rights information or Muslim literature” were kept secret. There may be reason for such secrecy. Still, when Congressional audits show that “hundreds of thousands of NSLs” have been issued, the use has not been tracked, the FBI “can only estimate how many NSLs it has issued,” each time an NSL has been challenged, it has lost (only three times according to the article), but one needs the help of a major public interest law group to fight the subpoena, something is wrong.

One disturbing thing is that no one knows exactly how these NSLs are being used or managed or if they do, they can’t talk about it. That situation reminds me of the private military context where the government also had little sense of how many and under what terms the PMCs were used. In other words, lack of oversight often leads to abuse, but then many know that, right? Another problem is that again like the PMC context, it seems quite difficult to have any sunshine fall upon this process. Why not have a judge look at such a letter? It seems the information is not going anywhere. Quite the opposite; remember it is preserved.

There is more to say on secrecy but for now I recommend Secrecy: The American Experience by Daniel Patrick Moynihan. I think I have recommended it before and probably Patrick O’Donnell has offered other books on the topic (which is always welcome). But as it is on my mind and an excellent look at how secrecy can help and harm a fight against whoever our enemies may be, I offer it again.

Posted by Deven Desai at 12:45 PM | Comments (2) | TrackBack (0)

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Texas Law Review, Volume 86, Number 6 (May 2008)

ARTICLES
Technocracy and Antitrust
Daniel A. Crane

Standards, Testing, and School Finance Litigation
James E. Ryan

BOOK REVIEW
Of Cabbages and Kings: A Review of Our Undemocratic Constitution by Sanford Levinson
Charles D. Kelso & R. Randall Kelso

NOTES
Remedying Daubert's Inadequacy in Evaluating the Admissibility of Scientific Models Used in Environmental-Tort Litigation
Matthew W. Swinehart

Standing Up for Justice: A Case for Amending a Rule that Unreasonably Restricts Who May Sue for Injury to Real Property
Claire B. Chandler

Posted by Texas Law Review at 01:18 PM | Comments (0) | TrackBack (0)

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Boston University Law Review, 88:2 (April 2008)
For prior issues, please visit our website.

SYMPOSIUM: THE ROLE OF THE PRESIDENT IN THE TWENTY-FIRST CENTURY

Contents

Introduction, 88 B.U. L. Rev. 321 (2008)

Saikrishna Bangalore Prakash, A Taxonomy of Presidential Powers, 88 B.U. L. Rev. 327 (2008)

Robert D. Sloane, The Scope of Executive Power in the Twenty-First Century: An Introduction, 88 B.U. L. Rev. 341 (2008)

Michael D. Ramsey, Presidential Originalism?, 88 B.U. L. Rev. 353 (2008)

Gary Lawson, What Lurks Beneath: NSA Surveillance and Executive Power, 88 B.U. L. Rev. 375 (2008)

Dawn E. Johnsen, What’s a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. Rev. 395 (2008)

John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421 (2008)

Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B.U. L. Rev. 459 (2008)

Julian E. Zelizer, The Conservative Embrace of Presidential Power, 88 B.U. L. Rev. 499 (2008)

William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. Rev. 505 (2008)

Harold J. Krent, From a Unitary to a Unilateral Presidency, 88 B.U. L. Rev. 523 (2008)

Daniela Caruso, (Presidential) Powers in the European Union, 88 B.U. L. Rev. 561 (2008)

Posted by Boston University Law Review at 10:04 AM | Comments (0) | TrackBack (0)

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Conservative pundit Arthur C. Brooks has been discussing his book Gross National Happiness in a number of venues, including the NYT Freakonomics blog. Having criticized the progressive Robert H. Frank for using such data to support egalitarianism, I'll now question Brooks's subjectivism (which has led him in exactly the opposite direction as Frank on the inequality question).

Brooks is happy to report that his political allies are "winning the happiness game hands down." He gives several hypotheses for conservative joy; stronger religiosity, more time with family, a preference for "simplicity" over "complexity," and less likelihood to see oneself as a victim. Brooks occasionally concedes Mill's argument that it is "better to be Socrates dissatisfied than a pig satisfied." But he appears most amenable to the view that liberals are likely to be whiny, complaining, resentful people, while conservatives resolutely consider themselves in control of their fate and satisfied with their lives.

Brooks's research raises a number of interesting policy questions. First of all, what's his root concern--happiness or virtue? We might map the classic tension between freedom and virtue to the present case: is it good action or the subjective feeling (Brooks alleges) it creates the desideratum here? If the latter, why not just provide people with soma? If the former, it's a bit odd to introduce the "happiness evidence" as a reason for being, say, conservative, or good. Who's Brooks's audience? Exhausted hedonists just on the brink of giving up their Don Juan days to find more lasting pleasure at anti-tax rallies?

Continue reading ""In much wisdom there is much grief . . .""

Posted by Frank Pasquale at 11:18 PM | Comments (4) | TrackBack (0)

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A U.S. District Judge has enjoined a defendant from using a term for its business. That is not an unusual result. The one part of the order that may be of note is that the defendant is not allowed to purchase ad words using the plaintiff’s mark and the defendant must use negative adwords as well on search engines. Here is the pertinent language:

[Defendant is enjoined and restrained] from purchasing or using any form of advertising including keywords or “adwords” in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term “ORION” as negative keywords or negative adwords in any internet advertising purchased or used.

So here the mark is Orion. The defendant has been found to have infringed. The normal range of prohibited future activities is in place. But in addition, the defendant must take steps to prevent its appearance on a search engine results page when someone is looking for the plaintiff’s services. The court explains:

For purposes of this court order, a “negative keyword” or “negative adword” shall mean a special kind of advertiser keyword matching option that allows an advertiser to prevent its advertisement from appearing when the specific terms are a part of a given user’s internet search or search string. It does not infer that the Defendant may use the specified negative keywords or adwords for any other purpose.

Now it seems the defendant was rather blatantly trying to use the plaintiff’s mark (counsel appeared but an answer was not filed). Yet, if the plaintiff’s mark and business match the litany of strength that the court offers (“ranked fourth in the nation among community bank holding companies and thrifts for outstanding performance,” “In June of 2006, Plaintiff was ranked as Florida’s Top Performing Community Bank for the second consecutive year, and was also ranked among the nation’s top performing bank holding companies,” “In June of this year, American Bankers Association’s (ABA) Banking Journal, ranked Orion Bancorp, Inc., fifth in the nation for outstanding financial performance”), wouldn’t a competitor want to be able to appear when someone searched for the premiere bank of the region? Shouldn’t that be allowed?

Continue reading "Don’t Even Think About It: Negative Ad Words and Trademark Injunctions"

Posted by Deven Desai at 06:50 PM | Comments (3) | TrackBack (0)

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Sure, it was a leak, possibly politically motivated. But for 24 hours, every Italian's tax information was publicly available on the web.

The finance ministry described the move as a bid to improve transparency.

Deputy Economic Minister Vincenzo Visco said he could not understand what all the fuss was about.

"I can't understand what the problem is," he is quoted as telling Italy's Corriere della Sera newspaper.

"This already exists all around the world, you just have to watch any American soap to see that. We had the system ready by January but we delayed publication to avoid arguments during the election campaign."

I can't imagine what Visco means by American soap opera's treatment of tax law, but I myself would be perfectly happy in a world where folks' tax filings were transparent. (In part, of course, the cost to me isn't terribly low, as I'm sure that the public institution I work for will eventually be compelled to disclose salary data. Similarly, government officials, whose salaries are knowable, have small incentives to care about privacy). But even so, wouldn't the privacy losses we'd all feel be balanced by the pro-social consequences of transparency? For example, I'd bet that you'd see a rise in competitive charitable giving, and more pressure on unequal pay for equal work.

Posted by Dave Hoffman at 05:54 PM | Comments (8) | TrackBack (0)

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Check out this terrific article in Fortune about Steve Jobs. As the article points out, far more than most corporate leaders, Jobs is personally identified with Apple's brand:

Jobs is also among the most controversial figures in business. He oozes smug superiority, lacing his public comments with ridicule of Apple's rivals, which he casts as mediocre, evil, and - worst of all - lacking taste. No CEO is more willful, or more brazen, at making his own rules, in ways both good and bad. And no CEO is more personally identified with - and controlling of - the day-to-day affairs of his business. Even now, Jobs views himself less as a mogul than as an artist, Apple's creator-in-chief. He has listed himself as "co-inventor" on 103 separate Apple patents, everything from the user interface for the iPod to the support system for the glass staircase used in Apple's dazzling retail stores.

That personal identification makes disclosure of an executive health issues a tricky materiality problem. When Jobs was diagnosed with cancer in 2003, the relationship between Jobs' body and Apple's SEC filings was front-and-center:

Jobs put the procedure [surgery] off for more than nine months, raising the thorny issue of disclosure. He told the board, and the board decided to say nothing. Palo Alto attorney Larry Sonsini, the company's longtime outside counsel, advised the directors that the CEO's right to privacy trumped any disclosure requirement as long as he could continue to perform his duties. A second outside lawyer agreed.

So Apple conducted business as usual, disclosing nothing and letting the tiny circle of insiders who knew about the situation continue to trade Apple shares.

Had Jobs' health gone sour, could investors have successfully claimed that Apple failed to disclose material facts? I tend to think so, and don't think much (at all) of the balancing privacy interest. It strikes me that, no less than presidential candidates, CEOs of publicly traded firms have contracted away their right to a private medical life. That said, the authority on these issues is really Joan MacLeod Heminway, whose Personal Facts About Executive Officers: A Proposal for Tailored Disclosures to Encourage Reasonable Investor Behavior really sets up the problem nicely.

Posted by Dave Hoffman at 04:09 PM | Comments (7) | TrackBack (0)

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The Oregonian reports that Adidas won an astronomical $305 million trademark infringement verdict against discount retailer Payless Shoes this morning. Trademark blogger Marty Schwimmer can't think of another infringement verdict even close to this size, and neither can I. Most trademark litigators would consider any case worth more than $25 million a very big one.

Payless lost most of its key legal arguments in a set of pretrial rulings back in February, as Rebecca Tushnet explained at the time. But even if one might have predicted an Adidas victory at that point, I think its magnitude is pretty surprising. It doesn't look like this award is vulnerable to a due process attack in the vein of BMW v. Gore and State Farm, however, because the punitive damages appear to have been calculated to represent double the Payless profits attributable to the infringement ($30.6 million in actual damages, $137 million in profits, and $137 million in punitive damages). In those cases, by contrast, the ratio of punitive to actual damages was many times greater (145:1 in State Farm).

The dispute centers on 268 different Payless sneakers with parallel stripes. (Images here.) Adidas has a trademark for three parallel stripes on the side of a shoe. The jury found that all but one of the Payless versions, with various numbers of stripes on the side, infringed on that trademark.

Some might consider those stripes a pretty basic aspect of sneakers. I remember all my sneakers as a kid looking like that, and I think they were usually Keds. Indeed, one of my 4-year-old daughter's favorite books, Alexander and the Terrible, Horrible, No Good, Very Bad Day, written in 1972, illustrates the point very nicely (sign into Amazon here for the image):

So then we went to the shoestore to buy some sneakers. Anthony chose white ones with blue stripes. Nick chose red ones with white stripes. I chose blue ones with red stripes but then the shoe man said, We're all sold out. They made me buy plain old white ones, but they can't make me wear them. ... It was a terrible, horrible, no good, very bad day.

I think the Payless attorneys know just how you feel, Alexander. ("The jury found that stripes on sneakers identify Adidas as their source in the public mind, and I still have to pay the lawyers, and now we have to file the post-verdict motion to set aside the damages and then the appeal. And I have to wear my railroad train pajamas, and I hate my railroad train pajamas.")

[Cross-posted on Info/Law]

Posted by William McGeveran at 04:02 PM | Comments (1) | TrackBack (0)

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I'm happy to point out that my article, Docketology, District Courts and Doctrine, is now in print in Volume 85 of the Washington University Law Review. You can find previous discussion of the piece on this blog, starting here. The final version is significantly improved over the drafts, so I hope you'll check it out. If anyone is motivated by the article to try some dockets research, let me know know, and I will tell you all the ways I've messed it up in the past!

Coming next: Docketology, Part II.

Posted by Dave Hoffman at 03:41 PM | Comments (0) | TrackBack (0)

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What is happening at Princeton University? My sense of this is not exactly systematic, but it is real--Princeton's political science faculty seems not to have become capture to many of the methodological features of the behavioral revolution that have captured many of the political science departments of other universities, at least when it comes to the study of law and courts.

Consider, first, that Princeton's political science department is called its Department of Politics rather than its Department of Political Science. At the time when the behavioral revolution (or more exactly, the attitudinal revolution) was initially sweeping political science studies of courts, Princeton had the interdisciplinary but not really deeply attitudinal Walter Murphy (who in many ways followed in the steps of Edward Corwin). Now, Princeton has had on its politics faculty in recent times Gary Bass, Christopher Eisgruber, Kenneth Kersch, Andrew Moravcsik, Kim Lane Scheppele, Anne-Marie Slaughter, Keith Whittington, and Jennifer Widner--all writing about courts and law, one way or another.

All first-rate scholars, but none really behavioralists. Compare this to the approach to courts and law of other elite political science departments, where scholars either ignore courts altogether (if Cindy Skach does not count, then Harvard has not really had a judicial politics scholar since Martin Shapiro left) or study courts as behavioralists. And even departments that have judicial politics scholars do not have as many as Princeton has now and has had in the past.

I cannot admit to as much knowledge about Princeton's other departments, so I wonder if this is true of their other departments, and what explains these (notable) dissents from behavioralism in their political science department and potentially other departments.....

Posted by David Fontana at 10:29 AM | Comments (7) | TrackBack (0)

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The New York Times has run a feature article about my colleague John Duffy, who has written a very influential paper on the appointment of patent judges. John's paper, Are Administrative Patent Judges Unconstitutional?, is available at SSRN. From the abstract:

As amended in 1999, 35 U.S.C. § 6 authorizes the Director of the Patent and Trademark Office (PTO) to appoint all administrative patent judges of the Board of Patent Appeals and Interferences. That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority. The full extent of the problem was revealed in a recent statement to the press by a PTO spokeswoman, who disclosed that nearly two-thirds of the agency's administrative patent judges were appointed under the new statute. If administrative patent judges are being randomly assigned to three-judge panels, then a simple probability calculation shows that more than 95% of Board panels are likely to include at least one unconstitutionally appointed judge.

According to the New York Times:

Law professors are sometimes influential, but in a general way. Their insights can help shape the law, over time and at the margins.

But John F. Duffy, who teaches at the George Washington University Law School, is a different kind of law professor. He has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes, and his short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars. . . .

The problem Professor Duffy identified at least arguably invalidates every decision of the patent court decided by a three-judge panel that included at least one judge appointed after March 2000.

John's paper began as a blog post. It is now a short paper on SSRN. It is quite an achievement to turn an entire field upside down in just 11 pages!

Posted by Daniel J. Solove at 01:51 AM | Comments (2) | TrackBack (0)

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