Category: General Law


What Do We Owe Future Generations?

This afternoon and all day tomorrow, GW Law will be hosting a symposium: “What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century.” There will be an opening panel on the philosophy of justice between generations, followed by four panels discussing the implications for intergenerational justice of the following areas of policy: government spending and taxation, environmental law, reproductive rights, and consitutional law. The principal presenters for the five panels are, respectively, Bob Hockett (Cornell) and Ori Herstein (private practice), Neil Buchanan (GW) and Dan Shaviro (NYU), Jamison Colburn (Penn State) and Matt Adler (Penn), Sherry Colb (Cornell), and Mike Dorf (Cornell).

I have been working with the GW Law Review students to organize this symposium, which is based on my forthcoming article: “What Do We Owe Future Generations?” Over the last several years, I have been trying to work through the implications of the oft-heard claims that current generations are short-changing future generations. (Listen to almost any politician speak for more than five minutes and you’ll hear something about our irresponsibility toward the future). Usually, this is couched in terms of anti-deficit rhetoric, and it is often misleadingly tied to efforts to change the Social Security program. As my scholarly interests are solidly in the area of fiscal policy, I decided to see whether there is actually a strong argument that — as a matter of government spending and taxing policy in the long run — current generations are cheating future generations. What I found was surprising. Even given the long-term trends in spending and taxing, future generations’ per capita GDP will be higher than ours even under the most pessimistic scenarios. The issue is distributional (both within and across generations), therefore, because the averages look unexpectedly promising.

When I taught a seminar on the subject of intergenerational justice a few years ago at NYU Law, I found that my students were only mildly interested in the fiscal policy aspects of intergenerational obligations. No surprise there, I guess, as macroeconomics is not everyone’s idea of a fascinating topic. We thus expanded our inquiry and confirmed that, even if we are not cheating future generations in terms of pure economic income, there are enormous issues in the areas of education, the environment, reproductive rights, the rule of law, and many other areas of policy in which current generations are obviously harming the interests of future generations. This symposium is designed to stimulate discussion about those matters. I also am in the planning stages of turning this into a book.

I am very excited to hear what the other scholars at the symposium will say over the next two days. I will report back next week on some of what I hear.


FIU College of Law in the Roger Williams Survey

FIU College of Law (which opened in Fall 2002) is not yet a member of the AALS, which meant we were not included in the Roger Williams survey of faculty productivity at non-Top-50 law schools. So, as St. Thomas (MN) did last month, we ran our numbers. The result: a 4.590 faculty score, placing us around # 30, just behind Indiana-Indianapolis and just ahead of St. John’s, Tennessee, and Loyola-Chicago.

Not bad, especially since I had thought before we ran the numbers that our faculty might have a couple of built-in disadvantages, given the study’s methodology. First, we have a very bottom-heavy faculty–10 of our 22 tenure/tenure-track faculty are pre-tenure and five of those are in their second year teaching, and three of our senior faculty are newly tenured. Second, we have a lot of specialists doing legal history (including non-U.S./non-English legal history) and niche international work, stuff that tends to place in specialty journals and that also tends to be shorter. Third, several of our top senior people have focused almost exclusively on writing books (scholarly and casebooks) rather than law review articles over the past 3-4 years (although I wonder if the trend in the academy towards book projects makes this an issue across the board).

Anyway, I was happy to see us come out that well in a preliminary study. It gives us something to build on with a new dean (we are beginning a dean search as I write this) and in the never-ending search for new faculty.


$ 150 million worth of speech

The Obama Campaign announced Sunday that it raised $ 150 million in September, an obscene, record-breaking figure that more than doubles the previous record (which was Obama’s haul in August). This certainly justifies Obama’s decision to opt-out of public financing. What is especially interesting to me is that 3.1 million people have contributed to his campaign, including more than 630,000 new contributors in September. And the average donation was around $ 86. Of course, by definition “average” means there were donations of more than that, including several large fund-raising events, including one hosted by Barbra Streisand that netted $ 11 million.

But I would like to hear how these numbers–donors, new donors, average donation amount–compare with past primary and general elections. And what do these numbers tell us about the debate over campaign-finance rules and public funding? The theory of Buckley v. Valeo (which never has been entirely repudiated) is that making campaign contributions is a First-Amendment protected way of expressing support for a candidate, albeit a right subject to fairly close regulation and limitations in amount (a principle with which I generally agree). The theory of campaign-finance regulation has been that politicians will simply cozy-up to a small number of big-money donors who use large contributions to gain access and influence, resulting in various forms of corruption (indeed, that was the warning from the McCain Campaign in response to the Obama announcement).

But if a campaign can fund itself, at least in part, on smaller contributions from a substantial number of voters looking to do their part and have their say, do we come close (or at least closer) to a First-Amendment regime of “The People” speaking through their pocketbooks to support a candidate, without the same risk of corruption or influence-peddling? I think McCain’s criticism misses the mark because the corruption rationale works when a campaign receives $ 2 million from one contributor; it looks very different, and has a different effect, when the campaign receives $ 2 million from 20,000 contributors. The corruption criticism looks out of place when it becomes not a problem with the amounts of money people are able to contribute (which remain restricted), but of the number of people who are able to contribute, particularly in small amounts.

Can what Obama has achieved tell us anything about how candidate fundraising can work, especially with the power of the internet? Is Obama a unique candidate and no (or few) other candidate can generate this kind of excitement and support?

Updated and moved to top: Tuesday morning

Publius at Obsidian Wings links Obama’s expansive fundraising to Madison’s theory of republicanism. Recall that Madison argued that the way to limit the power of factions in a republic is to increase the size of the republic and thus the number of factions, preventing any one from seizing control. Similarly, dramatically expanding the size of the donor base, the Obama model (and Publius recognizes, as does one of our commenters, that Howard Dean started us down this road in 2004) prevents any one donor from gaining influence.

Banking Deregulation Denialism

Businessweek’s Robert Berner and Brian Grow examine the OCC’s role in blocking state regulation of subprime lenders in an in-depth article. Berner and Grow mention several “defenses” of the agency that are prime examples of “denialism” in the face of obvious problems. Consider this exchange:

“There is no question that preemption was a significant contributor to the subprime meltdown,” says Kathleen E. Keest, a former assistant attorney general in Iowa who now works for the Center for Responsible Lending, a nonprofit in Durham, N.C. “It pushed aside state laws and state law enforcement that would have sent the message that there were still standards in place, and it was a big part of the message to the industry that it could regulate itself without rules.”

“That’s bull—-,” says Hawke, the former comptroller [of currency]. . . . [H]e denies that federal preemption played a role in the subprime debacle. Hawke blames much of the mess on mortgage brokers and originators who, he says, were the responsibility of states. The current head of the OCC . . .concurs. “To claim that it is our fault from preemption is just a total smokescreen to shield the fact that the state mortgage brokers and mortgage companies were just not regulated,” Dugan says.

I’ll believe that when I hear the proportion of problematic loans originated from these “state mortgage brokers and mortgage companies,” compared to the proportion of loans from the banks the OCC stopped the states from regulating. But even if it’s substantial, who’s to say that an imperial OCC would not keep trying to expand its authority, Watters v. Wachovia-style, to such brokers, provided they had some nexus of affiliation to banks? Moreover, both comptrollers’ arguments are aimed at a straw man Keest did not even propose–that OCC alone caused the crisis. Neither confront the real charge: that their interference with states helped contribute to the crisis. Why not follow Chris Cox’s line, admit that the deregulatory program failed, and try to learn from it?

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Lawyers’ Salaries: Mommy Penalties, Daddy Bonuses, and Pure Gender Effects

Even among highly educated professionals, there is a persistent difference in the salaries of men and women. Untangling the reasons for that difference is quite difficult, and it involves as a threshold matter trying to figure out whether there are factors other than gender that explain why women earn less than men. Some studies have suggested that the difference in salaries is not in the first instance about the gender of the worker but about the worker’s status as a parent or non-parent. Some empirical research, for example, has found that men with children earn more than everyone else in their fields but that there are no detectable differences among women with children, women without children, and men without children.

I recently finished a draft of a paper (available here) in which I looked at the results of two surveys of graduates of the University of Michigan Law School from the classes of 1970 through 1996. These surveys were developed by Richard Lempert, David Chambers, and Terry Adams, who used the data from the first survey to study the effects of race on lawyers’ careers in their fascinating article: “Michigan’s Minority Graduates in Practice: The River Runs Through Law School,” 25 L. & Soc. Inquiry 395 (2000). Professor Lempert and his co-authors administered a follow-up survey that gathered information about gender and parental status; and they allowed me to use their data for the empirical analysis summarized in my draft paper.

Most of my paper is focused on technical matters of survey techniques and econometric analysis. For those who find such matters tedious or worse, the most direct discussion of the statistical results is in the introduction and conclusion and on pp. 30-32. My tentative results confirm the “daddy bonus” that others’ have found in other studies, with the range of estimates suggesting a 15-20% salary advantage for fathers. Unlike previous studies, however, I also find a strong suggestion that women …

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A Sarbanes-Oxley of Law Review Rankings, Part II

Some years ago, I proposed (here) the idea of a random audit to reduce the chances of sketchy reporting to US News & World Report. It would seem based on commentary last week, (especially the retake of the SAT!), that these practices are alive and well.

Note, these are not (directly) reporting fraud. Rather, they would seem to be artful interpretations of the rules. Perhaps next year the magazine will fix various loopholes. Or, perhaps, there are other negative consequences to engaging in these types of legerdemain. One would think that if a law school did ask students to retake the LSAT, that would become publicized and then everyone would know that the law school’s scores were inflated. The end result might be that a school engaging in such practices might end up taking a hit on their reputation score. It’s one thing to raise your U.S. News ranking by raising the bar passage rate, decreasing student-faculty ratio, increasing scholarly reputation, etc. because these criteria are consistent with a law school’s mission of providing a quality legal education. These measures benefit students. It’s quite another when these are artificial dodges.

But until we see an overhaul (unlikely), I see the opportunity for someone to make a good deal of money. Someone, (let’s call this consultant Andy Fastow, just for kicks), could build a niche practice in this area. Andy would travel around the country and give law schools specific advice on how to inflate their numbers for U.S. News without improving educational quality or technically violating the rules. Some of Andy’s initiatives would have clever names too, say, “Chewbacca,” “Jedi,” or “Death Star.” Andy would pick up on the idea of auctioning off U.S. News reputation ballots on Ebay, in fact, he’d have a detailed pricing model monetizing your vote. (He’d also let you trade derivatives off of it). If interested in this description of Andy’s job, send me a resume. It’s nice over here on the dark side, Luke.


The Bizarre Thought Police

[Note: See important update/P.S. at end].

In an earlier post, I mused about the possibility of criminal responsibility for inflammatory campaign rhetoric, raising the issue as a thought experiment in much the same way that I would raise an issue in class. Predictably, the Thought Police quickly emerged to chastise me for committing crimethink – the unspeakable act of failing to address an issue in a manner pleasing to those speaking from the vantage point of an electronic soapbox. In particular, Thinkpol seems to champion the idea that the mere existence of the First Amendment invalidates the notion of criminal liability for political speech and to think otherwise is, well, “bizarre.”

I beg to differ.

Sure, courts in the United States have proven reluctant to impose liability for speech. But our courts have not said that liability may never be imposed. Could a court ever construe political speech as “advocacy … directed to inciting or producing imminent lawless action”? Could political rhetoric ever amount to “speech … brigaded with action”?

First Amendment rights are not absolute. Yet. And so, like Jell-o, there’s always room for argument. Mental manna keeps our brains sharp. In this case, hypothetical or otherwise, it might also keep our hands clean.

Fight the urge to crimestop. We don’t need no thought control.

Important P.S.: The tone of this post was intended to be defiantly tongue-in-cheek. In hindsight, however, I realize that someone as dedicated as Walter Olson to preserving our civil liberties might be affronted by my post. I have since spoken with Mr. Olson and assured him that I intended no harm. Hats off to Mr. Olson for his gracious response!


Why Would An Admitted Freshman Retake the SAT?

In keeping with the U.S. News topic that Geoffrey Rapp is blogging about, here’s a reminder that just when you think you’ve seen every imaginable ploy for gaming the rankings, something new comes along. As reported by the New York Times:

Baylor University in Waco, Tex., which has a goal of rising to the first tier of national college rankings, last June offered its admitted freshmen a $300 campus bookstore credit to retake the SAT, and $1,000 a year in merit scholarship aid for those who raised their scores by at least 50 points.

Of this year’s freshman class of more than 3,000, 861 students received the bookstore credit and 150 students qualified for the $1,000-a-year merit aid, said John Barry, the university’s vice president for communications and marketing. . . .

The offer, which was reported last week by the university’s student newspaper, The Lariat, raised Baylor’s average SAT score for incoming freshmen to 1210, from about 1200, Mr. Barry said. That score is one of the factors in the rankings compiled by U.S. News & World Report.

I bet that even as I type this last sentence, someone out there is already trying to figure out whether a law school could use a similar strategy to raise its LSAT scores.


Pole Dancing Reprise/Reprieve

I’ve greatly enjoyed my return visit to Concurring Opinions. As I depart, I can report that the right to instruct others in the art of pole dancing, which was the subject of my first post, has recently been vindicated. As reported here, the officials who originally denied a part-time dance instructor an occupancy permit that would have allowed her to teach pole dancing classes in a suburban strip mall outside Pittsburgh have relented. Authorities were apparently concerned that the strip mall business might turn into a strip club, or a sex toys outlet, or some other type of bawdy concern. Satisfied that this will not be the case, the town officials agreed to grant the permit. The instructor looks forward to helping women “release their inner goddess[es].”


Remember the 1970s

398px-Saturday_night_fever_movie_poster.jpgRobert Skidelsky (author of worshipful biographical tomes on Keynes) has a recent article in the Washington Post that is a good example of an emerging historical narrative about the current financial crisis. It goes something like this:

Once upon a time there was a massive economic catastrophe called The Great Depression. It was caused by riotous and unregulated speculation. Wise policy makers, however, learned from their mistakes and they created a heavily regulated financial sector that proved an engine of peace and prosperity until it was destroyed by a malicious group of deregulatory ideologues led by Reagan and Thatcher. Now we are reaping the whirlwind of destruction that comes from forgetting the lessons taught us by FDR and Kaynes in the 1930s.

It’s a nice narrative, particularly at election time, and like all powerful stories it contains a good bit of truth. On the other hand, it leaves out at least one very important chapter: The 1970s.

There is a reason that the West collectively soured on the post-war economic framework created by FDR and his successors. It had a good run, particularly in the United States (although economic dominance of a planet where all of one’s economic rivals had been bombed to smithereens may be less of an accomplishment in retrospect), but in the 1970s it went very badly wrong. The Keynesian dreamland gave way to high inflation, high unemployment, and low growth. New Deal era regulations kept interest rates on bank deposits artificially low, insuring that bankers had access to cheap credit, and the banks in turn were protected from competition by higher yield savings vehicles for depositors. The result was a stable financial system that provided bankers with healthy profits and lots of golf at 4 pm. It only worked, however, by insuring that middle class savings were excluded from investment in the ordinary capital markets, which under FDR’s system were to be a preserve for the wealthy. Rather, the system funnelled main street’s money to the local banker.

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