Monthly Archive: April 2009

0

 30 Apr, 2009

  ·  by

Vanderbilt Law Review, Volume 62, Number 3 (April 2009)

Vand-L-Rev-Logo.jpg

Vanderbilt Law Review, Volume 62, Number 3 (April 2009)

ARTICLES

Tomer Broude & Doron Teichman, Outsourcing and Insourcing Crime: The Political Economy of Globalized Criminal Activity, 62 Vand. L. Rev. 795 (2009).

Terry A. Maroney, Emotional Common Sense as Constitutional Law, 62 Vand. L. Rev. 851 (2009).

Caren Myers Morrison, Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records, 62 Vand. L. Rev. 921 (2009).

NOTES

Lesley R. Attkisson, Putting a Stop to Sprawl: State Intervention as a Tool for Growth Management, 62 Vand. L. Rev. 979 (2009).

Lauren Gaffney, The Circle of Assent: How “Agreement” Can Save Mandatory Arbitration in Long-Term Care Contracts, 62 Vand. L. Rev. 1017 (2009).

Georgia Lee Sims, The Criminalization of Mental Illness: How Theoretical Failures Create Real Problems in the Criminal Justice System, 62 Vand. L. Rev. 1053 (2009).

Interested in writing a response to one of these articles? Check out En Banc to find out how.


  Law Rev (Vanderbilt) / Law Rev Contents

48

 30 Apr, 2009

  ·  by

Public opinion on same-sex marriage

Thanks again to Danielle and Dan for inviting me to blog here this month. I didn’t expect, when I started this guest-blogging stint, that same-sex marriage would be a primary focus of my posts–it’s something I care about as a citizen, but not one of my academic research fields. But my posts have been largely driven by events, and it seems clear that April 2009 will be looked back upon as a turning point in this civil rights movement. The month started with major developments in Iowa, Vermont, and DC, and today it ends with what strikes me as even bigger news: the Washington Post and ABC News released what I think is the first nationwide poll showing that more respondents support same-sex marriage than oppose it. The split (49% to 46%) is within the poll’s margin of error, but even so, it represents a pretty dramatic shift–less than three years ago, the same poll split 58% opposed and 36% in favor.

The Post article treats this as being largely a story about demographics, and of course that is part of the explanation: young people are much more likely to support marriage equality than older people. But the composition of the population hasn’t changed fast enough to explain shifts of this magnitude in a few years–it’s also got to be that a lot of people, young and old, have changed their minds. As I suggested in an earlier post, court decisions might have contributed to that change–by direct persuasion, by starting a statewide or nationwide conversation that gets people to question traditions, or simply by allowing gay and lesbian couples to begin to marry (which could shape public opinion as people realize that fears about the effects on marriage as a social institution have not panned out).

In any event, whatever the role of courts in bringing about this cultural shift, now that it’s happening, it suggests that the courts will probably play a less central role in pushing the movement toward marriage equality forward in the future. This is increasingly becoming a battle that marriage equality advocates can win in legislatures and at the ballot box. As the poll numbers shift, we’re likely to see increased support for same-sex marriage from politicians who might have been reluctant to take that stand previously. (I suspect this will eventually include President Obama.) That support may be led by Democrats, but it will cross party lines. Of course, this cultural shift is far from being complete, as California voters demonstrated a few months ago. There are still a substantial number of energetic opponents (like the National Organization for Marriage, which I’ve noticed seems to have dropped its priceless “2M4M” slogan). But the road ahead may not be that long. Check out statistician Nate Silver’s state-by-state projections–a few weeks ago, he predicted that every state will have majority support for marriage equality by 2024. Silver also projected that marriage equality would achieve majority support nationwide by “sometime in the 2010s”–so if the Post/ABC News poll is correct, Silver’s projections may have been on the conservative side.

Increasing public support matters, and not just because it is likely to affect the ultimate state of the law–I suspect that given a choice between achieving marriage equality through the courts and achieving it through the democratic process in the same timeframe, just about every equality advocate would prefer the latter (even if the court decisions couldn’t be overturned by referendum). That’s because the battle over same-sex marriage is ultimately one about social meaning–it’s about the expressive power of the law. Sure, it’s about the various legal benefits attached to marriage too, but if that were all it was about, then both sides of the struggle would treat civil unions as being interchangeable with marriage, and they don’t. The recognition of committed same-sex unions as marriages is a social statement that such unions, and the men and women in them, are worthy of respect rather than stigma. So if the ultimate goal is to foster inclusive social norms, then changing public opinion isn’t just a sign that the movement may achieve its goals–in an important sense, changing public opinion is the central goal. Court decisions, in contrast, can only ever be a step along the way.


  Civil Rights / Constitutional Law / Politics

0

 30 Apr, 2009

  ·  by

Columbia Law Review, Volume 109 Issue 3 (March 2009)

CLR-logo2jpg

Columbia Law Review, Volume 109 Issue 3 (March 2009)

Article

Contracting for Innovation: Vertical Disintegration and Interfirm Collaboration

Ronald J. Gilson, Charles F. Sabel & Robert E. Scott

Notes

Paradox of Presumptions: Seller Warranties and Reliance Waivers in Commercial Contracts

Kabir Masson

Equal Justice Under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendants’ Sentences?

Ryan Scott Reynolds

Essay

Corporate Philanthropy and the Market for Altruism

M. Todd Henderson & Anup Malani


  Law Rev (Columbia) / Law Rev Contents / Law School

7

 30 Apr, 2009

  ·  by

Foreign Law in U.S. Constitutional Interpretation

A litigant challenges a state statute as unconstitutional under the Due Process Clause. The Supreme Court rejects this claim in spite of powerful evidence that the statute is inconsistent with the original understanding of the Constitution. In part, they rest this conclusion on European law, which sanctions the state practice at issue and “informs” the meaning of due process. According to the Court:

“The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.”

So who wrote this internationalist claptrap? Justice Kennedy? Justice Breyer? Harold Koh?

Read More


  Constitutional Law

5

 29 Apr, 2009

  ·  by

Orwell on Law Scholarship

I recently rediscovered George Orwell’s wonderful essay “Politics and the English Language,” which I read years ago in college but had essentially forgotten. Rereading it years later, I was struck by how much it had to say about the business of writing legal scholarship. In the essay, written in 1946, Orwell makes the case that over-complex and vague language in nonfiction writing leads to laziness of thought and poverty of discourse. (A copy of the essay is here, but Orwell is better read, I think, on paper than on a computer screen.)

Orwell makes the case for simplicity and directness in nonfiction writing, for the avoidance of tired and misleading metaphor, and the rejection of words chosen to confuse the reader or create deliberate ambiguity. Reading the essay made me think immediately of law scholarship, especially scholarship written by beginning legal scholars (including some of mine). Law professors often adopt tired or jargony metaphors (“slam dunk,” “atmospherics”) or use needlessly complicated words (many uses of “deontological”). Part of this trend, I think, is the feeling among untenured scholars to appear smart and able to use fancy words – to sound like a scholar. This can be a reinforcing trend – when your colleagues use needlessly complicated words, there’s often a feeling that you need to as well, in order to seem as scholarly as everyone else. Another overuse of complicated words can occur to hide meaning, or to avoid engaging in serious analysis. Lots of euphemisms (“transaction costs”) would seem to fall into this category.

Orwell concludes his essay with a summary of his rules for good nonfiction writing:

(i) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

(ii) Never use a long word where a short one will do.

(iii) If it is possible to cut a word out, always cut it out.

(iv) Never use the passive where you can use the active.

(v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

(vi) Break any of these rules sooner than say anything outright barbarous.

My point is not to pick on legal scholarship, as much as to suggest that a simpler and more direct style in legal scholarship (and legal discussion generally) should be the way to go, and that there’s a lot for all of us to learn in Orwell. As he puts it, language should be “an instrument for expressing and not for concealing or preventing thought.” When we make our arguments simply and directly, and we don’t hide behind euphemism or wordiness, readers can undersand what we say and agree (or disagree) more readily. There’s a lot to like in such an approach, and it reminds me of some scholars whose work I admire whose work really embodies this approach to writing. Orin Kerr (GW) and Eugene Volokh (UCLA) come to mind. I often disagree with the arguments in their work, but their plain style makes disagreement more obvious, and allows for a more direct, lively, and constructive disagreement.


  Law School (Scholarship)

0

 29 Apr, 2009

  ·  by

President Obama’s Facebook Friends: Web 2.0 Technologies and Privacy

1146297_numbers_women.jpgPresident Barak Obama has 6,239,925 Facebook friends. To be sure, this friendship has its privileges. FOPs can post questions on the economy and vote on others’ submissions and questions. Have we awoken to a new era of participatory democracy where Web 2.0 technologies mediate conversations between the Executive Branch (and maybe the President himself as he reportedly reads selected public mail weekly) and the interested Facebook friendly public? Do these social media technologies tap public participation in ways that e-Rulemaking proponents envisioned but to date has not? Quite possibly. But before we rush headlong into social networking political nirvana, we need to think about the privacy implications of friending (or watching You Tube videos of) the President, Senators, or your favorite Councilwoman.

When we interact with Government on private social media sites like Facebook or YouTube, have we implicitly forsaken any privacy in those communications? Does the President and his helpers get to collect personal data we post on our Facebook profiles and scurry back to agency information systems for processing, say data mining programs looking for threats to critical infrastructure or data matching programs looking for dead beat dads? On the one hand, we gave up that information voluntarily: if we set our privacy settings on Facebook accordingly, we know that what we tell our friends is “out of the bag” so to speak. On the other hand, do we really expect that the President, as my friend, is going to take my data and use it for purposes other than what his Facebook page promotes: conversations with the President about public policy, not whether we pay child support or engage in antisocial activities?

120px-Facebook_svg.png

While the answers to these questions may not be simple, recent developments suggest that, at the very least, the EOP is taking seriously the privacy concerns implicated by government use of social media. Earlier this year, Columbia professor and superb CoOp commentator Steve Bellovin and CNet blogger Chris Soghoian raised questions about the use of cookies and other tracking technologies on government sites like whitehouse.gov that embed YouTube videos. EFF got involved and asked the Obama administration “to find a technical solution that would protect the privacy of visitors to government sites.” It appears that the White House did so, shifting from using YouTube-hosted videos to posting the president’s Saturday address with Flash-based video hosted on government servers. As a result, visitors to whitehouse.gov no longer had third party cookies that enable tracking of their web use placed on their computers when they choose to view a video. Moreoever, the Department of Homeland Security recently announced that it is holding a public workshop to bring together leading academic, private-sector, and public-sector experts to discuss privacy issues posed by Government’s use of social media. The April 17, 2009 announcement in the Federal Register asserts that “[t]he purpose of the workshop is to help Federal agencies to engage the public through social media in a privacy-protective manner and to explore best practices that agencies can use to implement President Obama’s January 21, 2009 Transparency and Open Government Memorandum.” The DHS Privacy Office is soliciting written comments on, among other things, the privacy and legal issues raised by Government use of social media. (You can submit comments here under Government 2.0 Workshop (DHS-2009-0020).

Read More


  Privacy

57

 29 Apr, 2009

  ·  by

Justice Scalia’s Dossier: Interesting Issues about Privacy and Ethics

justice-scalia.jpgEarlier this year, I blogged about Justice Scalia’s remarks about privacy at the Institute of American and Talmudic Law. According to media accounts:

“Every single datum about my life is private? That’s silly,” Scalia [said]. . . .

Scalia said he was largely untroubled by such Internet tracking. “I don’t find that particularly offensive,” he said. “I don’t find it a secret what I buy, unless it’s shameful.”

He added there’s some information that’s private, “but it doesn’t include what groceries I buy.” . . . .

Considering every fact about someone’s life private is “extraordinary,” he said, noting that data such as addresses have long been discernible, even if technology has made them easier to find.

At a recent conference at Fordham University sponsored in part by the Center on Law and Information Policy, Professor Joel Reidenberg discussed an assignment he gave to his class this past semester — find any public information about Justice Scalia and compile it into a dossier. As Kashmir Hill reports at Above the Law:

“Justice Scalia said he doesn’t care what people find out about him on the Internet,” said Reidenberg during his presentation on the transparency of personal information. “So I challenged my class to compile a dossier on him.”

Now four months later, at the end of the semester, the dossier (available online somewhere, but password protected) is 15 pages long. Among its contents are Nino’s home address, his home phone number, the movies he likes, his food preferences, his wife’s personal e-mail address, and “photos of his lovely grandchildren.”

“When the discrete bits of personal information were assembled at the end of the semester, the extent of the overall dossier and some of the particular items of readily available information on the web concerning his family and family life were astonishing to the class,” Reidenberg wrote to us.

Before the news of the dossier was reported by Above the Law, Reidenberg had sent a letter informing Justice Scalia about the dossier and offering to allow him to see it if he desired. The dossier was not made public.

Justice Scalia recently responded to the Above the Law post about Joel Reidenberg’s experiment:

Read More


  Privacy / Privacy (Consumer Privacy) / Supreme Court

4

 29 Apr, 2009

  ·  by

State Franchise Laws

Today I’m fielding last-minute questions from students about the exam, so I’ll be brief. On Monday, GM proposed its 438th restructuring plan. One sticking point is that GM has far too many dealerships given its future production (brands are being eliminated) and as compared to its competitors. The problem with cutting those excess dealerships, though, is that state franchise statutes make it very difficult for firms to close some dealerships rather than others within a state and gives dealers a cause of action for damages if they are closed wrongfully.

My question is this: Are these laws vulnerable to a Dormant Commerce Clause challenge? It seems like a plausible argument can be made that they place a substantial burden on interstate commerce, but I am unaware of any case law on the issue. I’d be interested to hear your thoughts.


  Constitutional Law

2

 28 Apr, 2009

  ·  by

Best for Whom?

As an aside, I recently suggested that breast-feeding advocates organize a public information campaign about how breast-feeding can promote weight loss. An article from last week’s New York Times reminds me that such a campaign could point to other potential benefits as well. A recent study of 139,681 women enrolled in the Women’s Health Initiative showed that:

Women who reported a lifetime history of more than a year of breast-feeding were 20 percent less likely to have diabetes, 12 percent less likely to have hypertension, 19 percent less likely to have high cholesterol and 9 percent less likely to have had a heart attack or a stroke by the time they enrolled in the Women’s Health Initiative.

The word “potential” is important. The Women’s Health Initiative study showed an association between breast-feeding and reduced risk; it did not demonstrate a causal relationship. The study was not able to account for all differences in the lives of women who breast-fed and women who didn’t. In this regard, the study suffers from the same deficiencies as those that attempt to evaluate the effect that breast-feeding has on babies. Researchers cannot account for all the differences in the lives of children who are breast-fed and children who are not.

The idea that breastfeeding is beneficial for women is not new. For example, the association between breast-feeding and lower risks of breast cancer, ovarian cancer, and osteoporosis have been known for some time.

All of this brings me to back to the question of why public health organizations that are eager to promote breast-feeding don’t focus more on the potential benefits for women. I suspect that it has something to do with an overly-simplistic take on the maternal mind: mothers want to do what is best for their children, period. The reality, however, is that most maternal decisions involve trade-offs between what is best for the mother and what is best for the child.

Read More


  Feminism and Gender

Follow:

Our Books

Bloggers

Contributors

Archives

Blogroll

Categories