Category: General Law

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Let Down Your Golden Hair!

The academic. Sequestered in an ivory tower. Alone with his books. Deep in thought. Tome to his left, pipe in hand, Abyssinian in lap.

While this does describe me to a T, I’m trying to change. I’ve already removed some of the elbow patches from my tweed jackets in hopes of better feeling the world and I’m thinking over my policy about responding to the public.

In truth, I write a fair number of op-eds and short commentaries for popular markets and one of the issues that arises is whether to write back to people who read my work and pen a response. Many newspapers like to post your email address these days and as I tend to address controversial topics, I often get notes back. They vary from insightful questioning of the data I rely on to ALL-CAPS RANTS ABOUT MY CORRUPTED SOUL AND MY PC B*LLSH*T NONESENSE!!!

As a result of time limitations and a fear of further engaging certain ever-so-slightly threatening individuals, I’ve settled on a policy of carefully reading every email I’m sent and thinking about the contents, but almost never writing back a personal note.

I wonder if that’s the best approach. And I wonder why I don’t employ it to the same degree when I blog.

On a certain level, it would seem prudent to have a more rigorous procedure for my blogging. After all, the emails I get after writing an op-ed are private, whereas anyone can read the feedback I receive on a blog post.

Isn’t the worst policy of all to respond in a haphazard and inconsistent manner? Aren’t people liable to think that since I respond sometimes, my not responding in a particular instance is a signal that I must find the argument of the commenter compelling?

Should I have a policy of only responding to friends? Or only responding to other legal academics? Is not responding a dereliction of duty given the purported merits of “scholarly debate”?

Hmm . . . maybe the answer is to retreat back to the cat, pipe, and tower.

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If Cows Could Read

In my forthcoming article, Copyright and Copy-Reliant Technology, I investigate the significance of transaction costs in the context of technologies that copy expressive works for nonexpressive ends. These “copy-reliant technologies”, such as Internet search engines and plagiarism detection software do not read, understand, or enjoy copyrighted works, nor do they deliver these works directly to the public. They do, however, necessarily copy them in order to process them as grist for the mill, raw materials that feed various algorithms and indices.

Copy-reliant technologies usually, but not invariably, incorporate some kind of technologically enabled opt-out mechanism to maintain their preferred default rule of open access. For example, every major Internet search engine relies on the Robots Exclusion Protocol to prevent their automated agents from indexing certain content and to remove previously indexed material from their databases as required.  A robots.txt file at the root level of a website in the form of: User–Agent:* Disallow: / will banish all compliant search engine robots from a website.

The Robots Exclusion Protocol is pretty easy to implement and it is highly customizable. The interesting question for copyright law is “does the provision of an opt-out make any difference?”

In the Article, I argue that it opt-outs are significant in the context of a fair use analysis. The doctrinal analysis is in the paper, but the basic point is that when transaction costs are otherwise high, opt-out mechanisms can play a critical role in preserving a default rule of open access while still allowing individuals to have their preferences respected.

The notion that the rights of the property owner can be protected under permissive default rules coupled with an opt-out is hardly new.  Robert Ellickson famously describes the “fencing out” rule whereby cattle were allowed to roam freely on the property of others unless that property was fenced.  Landowners still maintained their property rights, subject to the burden of fencing out neighbors’ cattle.  Presumably, if cows could read, a sign not unlike the Robots Exclusion Protocol would have been sufficient.

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Do Initial Allocations of Property Rights Matter?

If the last two years of American economic life have demonstrated anything, it is that property rights are not static.  Sometimes things that were once private property become public property (see, e.g., Motors, General).  Sometimes things that were once public property become private property, then become public property again, before they presumably become private property again (see, e.g., Mae, Fannie).  And sometimes things that were once considered inherently communal and thus inamenable to private property rights at all, become divided and privatized (see,e.g., the air).

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how initial allowances to fill airspace with carbon gases should be allocated.  Options include auctioning off all of the allowances, giving the allowances to existing carbon producers, and, most politically palatable, something  in between — some mixed proportion of free allocations and auctions.

coase-nobel-a

Economist Robert Stavins, in the Coasean tradtion, has insightfully argued that  (with some caveats, including that transaction costs in this cap-and-trade program are similar to the transaction costs in others) the initial allocation of allowances doesn’t matter in most significant ways:  it will have no effect on the distribution of allowances after trading, and will have no effect on the total magnitude of emissions and their attendant social costs.

But there is another factor economists have not addressed, that could effect the total magnitude of emissions and their attendant social costs, and that may well depend in part on the method of initial allocations: compliance.

Law Professor Christine Parker and political scientist Peter May, among others, have demonstrated that compliance with business regulation is highest when the regulated businesses believe that the regulatory regime is fair.  Lower levels of compliance reduce the effectiveness of the regulation in producing the desired outcome, and increase the costs of achieving it.  In the world of carbon emissions, this would mean a higher total magnitude of emissions and a reduced benefit to the public through the higher costs required to achieve them.

HakonSnaefellsnesi

My research into Icelandic fisheries suggests that in moving natural resources from communal to private property through cap and trade programs, initial allocations of rights do have an important effect on the perceived fairness of the regulatory regime, and thus on the willingness of the regulated to comply with it.

In Iceland, the government decided to protect fish stocks by freely allocating tradeable fishing rights and implementing catch quotas.  Permits were issued to fishing vessel owners based on their average catches during a three-year test period.  New entrants to the industry must now buy their way in by purchasing or leasing rights from others through the Icelandic Quota Exchange.  Although the system has been successful in reducing the overall catch, the perception that it is unfair has led to open defiance.  In an extraordinary case before the Icelandic Supreme Court, one fishing company did openly what many apparently do quietly — defied the system on the grounds that it was unfair.  

Transactions costs, of course, are inevitable, but it is not transaction costs that have produced resistance to the Icelandic system.  Rather, resistance is itself is a type of transaction cost, broadly construed, produced by the perceived unfairness of the initial allocation of rights.  In other words, the initial allocation of rights does indeed effect the overall effectiveness of a private property system. 

There has been considerable uproar over the potential free allocation rights to current carbon emissions producers.  Whether or not, as a matter of classical economic theory, the initial allocation of rights should effect the overall effectiveness of the program, the perception of fairness or unfairness will probably effect compliance with the system, and that in turn will effect its overall effectiveness.  It is important, therefore, for policy makers to bear in mind that the perceived fairness of initial allocations of property rights does indeed matter.

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When International Sanctions Fail . . . There’s Always the World Cup Draw

As shocking as it might seem, North Korea (or the Democratic People’s Republic of Korea, as it’s known to its friends) will be playing some footie next summer in South Africa.

Denizens of Kim Jong-il’s own private Neverland Ranch were overjoyed when their soccer team qualified for the 2010 World Cup last June and were, like the rest of the globe, eagerly anticipating the draw today.

Unfortunately, their team was cruelly slotted into the “Group of Death” (by a smiling Charlize Theron) along with (1) arguably the best team in the world, Brazil; (2) African-powerhouse, the Ivory Coast (led by the unstoppable Chelsea striker Didier Drogba); and (3) Portugal (a squad which, despite underperforming in qualifying, is ranked 5th in the world by FIFA).

Now, there have been plenty of conspiracy theories out there over the years about World Cup draws, but I personally didn’t see anything nefarious in the picking of the ping pong balls this go around, which means that North Korea could just as easily have landed in “the group of milk and honey.”

That doesn’t seem right. After all, North Korea has been scaring us all for a long time, which leads me to a (not completely-and-utterly unserious) proposal. Countries that fail to abide by international rules when it comes to enriching uranium, torturing dissidents, etc. should receive bad draws for the World Cup group stage.

In support of this proposal, I would point out that people in many countries of the world care more about soccer than just about anything (making this a particularly effective sanction). Yet, the mechanism here is unlikely to actually lead to direct bodily harm to citizens, unlike many traditional sanctions. Moreover, while it does penalize countries for misbehavior, it still encourages engagement with the international community because it does not bar countries like Iran and North Korea from participating in (or even winning) the tournament.

Plus, even if it didn’t work, it might be kind of fun to watch Spain’s Fernando Torres smashing shots straight into the heart of the axis of evil.

(The entire World Cup draw appears after the break.)

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President Obama Rides To The Defense of John Yoo

John Yoo Has a Powerful Friend

John Yoo Has a Powerful Friend

(I haven’t seen this blogged elsewhere, so I’ll make an exception to my rule of not blogging about con law.)

The government has just filed an amicus brief in Padilla v. Yoo, currently on interlocutory appeal (from this order) and pending before the Ninth Circuit.  The brief argues against recognizing a Bivens action in the context of advice rendered “relating to war powers and national security.”  Part of the argument depends on the availability of other forms of relief, including habeas and disciplinary proceedings against Yoo, as well the potential for congressionally sanctioned damages.  Note this brief is separate from the substantive defense of Yoo that the government has undertaken: this is the position of the United States on the policy question of whether government officials like Yoo ought to be liable in civil court for the consequences of their advice.  Because the government obviously had no need to file this brief, it is sure to be greeted by Obama’s liberal base as quite demoralizing.    I guess it’s lucky that Obama’s too big to fail.

(Update: Footnote 1 is fun.  I translate as: “We’d like to join and expand on Yoo’s arguments about his good faith behavior.  But other parts of us are  still holding onto a report which may call into question the accuracy of that claim. Coincidentally and luckily, that report continues to be delayed, making it unnecessary for us to commit to a position that would be internally incoherent.  Do us a favor and resolve this on constitutional grounds, would ya?”)

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More On the Huckabee Clemmons Commutation

Following up on Adam’s great post about Mike Huckabee’s commutation of Maurice Clemmons (the Arkansas man who murdered four police officers outside Seattle last week), I see that Huckabee is continuing to defend his decision.  In an article for Human Events, Huckabee presents his case:

The reasons were straightforward — a unanimous recommendation from the board, support from a trial judge and no objections from officials in a case that involved a 16 year old sentenced to a term that was exponentially longer than similar cases and certainly longer than had he been white, upper middle class, and represented by effective counsel who would have clearly objected to the sentencing.  (His race, economic status, or education level are not excuses for his behavior because many people of color who are uneducated and living in abject poverty are civil, trustworthy, and honest to a fault and many well-educated, wealthy, white people are dirtbags — think Bernie Madoff).  But sadly, Arkansas has had numerous instances of disproportionate sentencing in which a probation and fine would be meted out to white upper class kids whose parents were able to obtain the services of excellent defense attorneys, while young black males committing the same crimes and represented by public defenders would end up with inexplicably long prison terms.  Blacks comprise 15% of the state’s population, but 50% of the inmate population, some of which is due to the fact that their sentences are often longer and they are less likely to be paroled.

(More on Huckabee’s continued defense here and here.)

Whatever the merits of this particular clemency decision, like Adam, I admire Huckabee’s practice of taking the clemency power seriously when he was Governor and his decision to defend and explain his actions rather than buy into the attempt by some in the media to paint this as a black and white issue.  The fact is that there will always be a risk that a person released from prison, whether after a commutation or the natural termination of a sentence, will commit a crime after they’ve been released.  Unless we are prepared as a society to sentence every 16 year old who commits a robbery to life in prison (which, of course, is what a 108 year sentence effectively was), I think we’d do well to focus on how to better monitor and re-integrate prisoners once they are released.  And, as Doug Berman notes, the Clemmons tragedy certainly seems to raise as many, if not more, questions about those issues as it does about the clemency process.  (Jonathan Simon at PrawfsBlawg also has a thoughful post on some of the bigger-picture issues raised by this case.)

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Judges as Umpires, Revisited

The analogy starts to ring true.  You must read these allegations about how NBA games are refereed.  Does this happen in baseball? Who knows.  Can you think of any other explanations for why America’s team beat my beloved Phillies this year?

(H/T: Reader CDP.)

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New Books by My Colleagues

I’m pleased to announce that two of my friends at IU–Indianapolis have new books coming out.  One is the The Political Centrist by John Hill, which is being published by Vanderbilt University Press.  (You can find a description of the book here.)  The other is Persistent Inequality:  Contemporary Realities in the Education of Undocumented Latina(o) Students by Maria Lopez (with G. Lopez) and is being published by Routledge Education.  (That link is here.)

Congratulations!

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Acquittal in California Medical Marijuana Case

Yesterday saw a major development in California medical marijuana law, with the acquittal of Jovan Jackson, the operator of a medical marijuana collective (more here and here.)  The case was the first big test of the San Diego County District Attorney’s narrow reading of what constitutes a collective or cooperative under California state law and may have major implications for deliberations on the regulation of medical marijuana dispensaries in Los Angeles and San Diego.  (As a disclosure, I am currently serving as Chair of the City of San Diego’s Medical Marijuana Task Force.)

The issue is a somewhat complicated one (and one that may hold some lessons for the do’s and dont’s legislative drafting.)  I may blog in more detail about the law before my guest-blogging stint here is done.  But, in a nutshell, the California legislature passed a law in 2003 in an effort to clarify the scope and application of the State’s landmark 1996 medical marijuana  ballot initiative.  The law provides, among other things, that medical marijuana patients who “collectively or cooperatively . . . cultivate marijuana for medical purposes shall not solely on the basis of that fact be subject to” a variety of state criminal laws pertaining to marijuana (including possession for sale, maintaining a place for purposes of sale, etc.).

Since the law’s passage, most folks across the state (including prosecutors) have interpreted it to mean that medical marijuana collectives and cooperatives that operate as a store-front (much like a, say, a food co-op might) are legal.  Accordingly, over three dozen cities and counties across the state have enacted land use ordinances to regulate these entities and many cities and counties actively support their existence (for some background, see here, here, and here.)  Within the past year or so, however, a handful of prosecutors and other local government officials (mainly in San Diego and Los Angeles) have begun to push a much more narrow view of the law, arguing that collectives cannot sell marijuana to their members.  These officials have argued that collectives and cooperatives are only legal if they operate, in essence, like a commune with each member contributing labor to cultivating medical marijuana.  There are a number of problems for this view, including Guidelines from the State Attorney General (which state that storefront collectives and cooperatives are lawful if they comply with other legal requirements.)  In addition, local officials who have taken this view have steadfastly refused to provide a detailed account of what they think the law does allow other than to say that storefronts are illegal and that some sort of labor on the part of members must be involved.  Beyond that, however, they say that the line is “rather blurred” as to what the law allows.

While most observers view the narrow “commune” interpretation of the law as quite a stretch, California courts have not addressed the issue and so it technically remains an open question.  As a result, a great deal of confusion has developed over the past year or so in Los Angeles and San Diego counties about just what is necessary for a collective or cooperative to be legal under state law.  The Jackson case was the first (to my knowledge) to really put this new narrow interpretation of the law to the test.  It involved the prosecution of a medical marijuana patient who managed a collective with over 1,500 members.  In essence, the case boiled down to whether or not a collective that operates as a store front like a food co-op constitutes a local medical marijuana collective under state law.  Not only did the jury acquit Mr. Jackson, but the foreperson directly questioned the prosecution’s view of the law during a press conference after the verdict, saying that “the prosecution gave his narrow definition during the closing arguments but there was nothing in the law that backed that up.” (the quoted comment is at about 1:30 into the video.)

While one jury verdict certainly does not provide an authoritative resolution of the underlying question of law here, it may nevertheless make local officials think twice about continuing to push unusually narrow interpretations of the law.  After all, why pursue expensive investigations and prosecutions that are already politically unpopular if they are only going to result in an acquittal?  Given the overwhelming consensus that state law does permit these entities, hopefully the hold-outs will come around to that view as well.  I also hope that the hold-outs will decide to join in the process of regulating collectives and cooperates to ensure that they operate in safe and sensible manner.

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14 Penn Plaza v. Pyett and the Fairness in Arbitration Act

Thanks to Dan, Sarah and all for inviting me to continue as a guest for awhile. They did not even require me to promise not to say any more about Ricci!

I finished my Labor Law class with 14 Penn Plaza v. Pyett. My position is that the case represented dysfunctional litigation in a number of ways. First, and foremost, Justice Thomas’ opinion appears to fail to understand anything about how collective bargaining arbitration works. The provision pouring statutory discrimination claims into arbitration is the basis for his conclusion that this “requires union members to submit all claims of employment discrimination claims to binding arbitration.”  Collective bargaining agreements, including arbitration provisions, have only two parties to them – the union and the employer. The employees covered by the collective bargaining agreement are decidedly not parties to the agreement and nothing in the provision Justice Thomas quotes does anything to make them parties to the collective bargaining agreement, the arbitration agreement, or the particular grievance of any individual employee. One wonders if any Justice or any clerk of any Justice has actually taken labor law. A problem was that the union was not a party to the case and did not weigh in until it filed an amicus brief at the Supreme Court.

 Second, the fig leaf of “consent” or voluntary agreement to arbitrate employment claims in individual employment contracts that are contracts of adhesion has been ripped away in 14 Penn Plaza. There is simply no basis for finding that the employees whose discrimination claims now can only go to arbitration ever agreed to that. So, arbitration has been deprived of any claims to being voluntary as to the employees whose claims are being determined. Finding that a union can waive the statutory right of employees simply does not make the resultant arbitration voluntary as to the employee.

 Third, once the union withdrew the grievance from arbitration because it claimed that it had agreed to the change that disadvantaged the employees, the employees should have filed a discrimination claim against the union in addition to the claim it had filed against the employer. With the two parties to the arbitration agreement now both respondents to discrimination claims, it seems hard to conclude that the arbitration process, controlled by these two parties, could be found to be fair. The conflict between the employees on one side and the employer and union on the other should have allowed the employees to seek a neutral forum in the courts.

Fourth, the opinion references the union’s duty of fair representation but the standards of proof for that are so high that a straight discrimination claim might work better for the employees. The employees should, however, have filed duty of fair representation charges with the NLRB on the chance that it would have pursued their claims on their behalf. In sum, it is my position that 14 Penn Plaza is another, in a long line of cases that is transforming voluntary arbitration into a private justice system that is inconsistent with the idea that we follow a rule of law.

The students raised some interesting points that did not necessarily agree with my position. Read More