Category: General Law


Teach your children well

At Prawfs, Sonja West and Paul Horwitz both talk about the world that we introduce to our children in the wake of Obama’s election, let me share the following:

My wife and I decided to tell our almost-three-year-old daughter about Obama this morning, mainly because we were so excited about it. My wife explained that the country had chosen a new “boss” (give us a break, we were talking to a 3-year-old), a man named Barack Obama, who seemed like a very nice man who believed in many of the things we do, including tzedakah (the Hebrew word for righteousness, which includes within it concepts such as charity and justice, and something that they talk about in her pre-school). We then told her that Obama showed that she could be anything she wants when she grows up; she responded that she wants to be a teacher. Tonight at bed time, she brought up that Mommy had told her she could be the boss or she could be a teacher when she grows up. I agreed that she could be whatever she wants to be and do whatever she wants to do. Her response:

“OK, when I grow up, I want to be Barack Obama.”

So do I, Lily. So do I.


Know Hope . . . and Expletives

While everyone is running around worrying about that little election thing today, the Supreme Court will hear oral argument in FCC v. Fox Television Stations, considering the FCC’s policy on “fleeting” or “isolated” expletives in broadcasting. Officially, FCC v. Pacifica and the constitutional lunacy of the entire project of regulating indecent speech is not on the table. But, hey, today is a day for hope.

To that end, let me recommend this Atlantic essay by psychologist Steven Pinker. And this needs no introduction:


More on engaging “insane” views

Paul Gowder took the comments from my post about debating Westboro and the Phelps into his home forum. I wanted to respond more fully here. At one level, I think we are misunderstanding one another; at another, we are proceeding from different premises.

First, Paul writes that the Phelps message of “God hates fags” is a “foul, false, and offensive message.” True enough, but so are a lot of other messages and a lot of other speakers. Later, Paul argues that there is a difference between “non-mainstream but sane views (consider the various versions of anarchism, on both the socialist and the capitalist side) and completely nutso views.” As I said in the Comments, the whole point of my first post was to find the line between those two. Lots of messages are foul, false, and offensive and lots of messages–how do we decide which ones are OK to engage with?

Paul insists that “I know it when I see it” is close enough and, ultimately, all we have, since a meaningful objective line is impossible. And he probably is right. Of course, some people would have a very different views of the “sanity” of the Church’s views or, say, the views of the KKK or the views of many other speakers. This subjectivity works at the level of one individual’s choice about whom to engage with in a debate–my history professor’s flat refusal to sit down with deniers.

But it becomes problematic when it is the government doing the defining. And it is a short step from saying that a group is too insane to include in a debate than to saying it is too insane to be given access to a public forum where people will have to encounter that group’s expression–which will require a government definition. As I noted in the first post, that is the gravaman of the criticism directed at FIU by some faculty and students over allowing the Genocide Awareness Project onto campus–the group’s views are “non-mainstream-and-insane” and it was inappropriate to allow them onto campus and subject unwilling members of the FIU community to their “foul, false, and offensive” images of aborted fetuses and specious analogies.

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A Great Listen

Making my debut on Concurring Opinions this week has its risks. Depending on what happens tomorrow, my entries are either going to read like sweet nothings from Norman Vincent Peale, or a serialized suicide note. I’ve been obsessed with this election. I feel like I’ve scratched the electoral map into my own cheek.

In part, that’s because Minnesota has been wing-nut central in the 2008 elections – or at least it was until Ashley Todd put Pennsylvania in play. Sure, we haven’t had any hoax mutilations, but we’ve had:

Detentions of journalists during the Republican convention (eat your heart out, Beijing!)

Sarah Palin’s greatest shopping spree (who knew we had $75k worth of inventory?)

• The emergence of Al Franken as a serious candidate

• The emergence of Michele Bachmann as a serious lunatic

• Three little, permanently mortifying, words: “He’s an Arab.”

Minnesota has a reputation for niceness and understatement, but if you consider its political history, it’s not that surprising that it’s a little volatile. This is the state that gave the world Gene McCarthy and Paul Wellstone, but also Jesse Ventura and Michelle Bachmann.

One struggle for those of us who are history buffs is to convince our students that history did not begin with the emergence of Facebook. I think that to put this Presidential campaign in its historical perspective, it is necessary to know a little about birth of the Southern Strategy in the transformative campaign of 1968. With that in mind, I’ve suggested that my students give an ear to the outstanding American Radio Works documentary, Campaign ’68: The Dawn of a Conservative Era. You can listen at the website.


Defining what is beyond the pale of public debate

Last weekend, the Stonewall Legal Alliance at FIU College of Law hosted a day of panels on Florida’s Amendment 2, a ballot initiative amending the state constitution to define marriage as a union of one man and one woman and prohibiting creation of substantially equivalent unions. At the heart of the event was a debate between my friend and colleague Professor Jose Gabilondo (Stonewall’s faculty adviser) and Marge and Shirley Phelps of the Westboro Baptist Church–an anti-(inter alia) gay rights group best known for picketing at the funerals of fallen soldiers.

The invitation was met with anger and criticism from all sides. Some on the left argued the invitation gave Westboro legitimacy in the public debate that it did not deserve. Jose has told me that he received letters of protest from a number of groups, including the Anti-Defamation League and the Southern Poverty Law Center, as well as letters from individuals directly critical of him. Requests were made to both the COL and University administrations to intervene and rescind the invitation. And some campus student groups were urged by administrators not to attend the event so as to avoid being confronted by insulting words and ideas. Some on the right complained that inviting Westboro to present the pro-Amendment 2 position was stacking the rhetorical deck in the anti-amendment side’s favor, because the opponent is incapable of presenting the “true” intellectual arguments against same-sex marriage and can do nothing other than turn the event into a circus that will horrify observers into opposing the ballot proposal and make Prof. Gabilondo’s anti-amendment arguments look better.

Jose discusses the controversy here, including a strong defense of uniquely open intellectual exchange in a university setting, including the presence of non-“mainstream” speakers and views. (And, to the extent it matters, Stonewall invited a number of local and national amendment supporters, all of which declined the invitation.

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An Open Letter to Michelle Obama

Dear Michelle,

First, let me say how much I’ve enjoyed getting to know you over the last couple of months. I still remember the first time that you called. I was in the kitchen washing up after dinner. (Where were you?) You introduced yourself, and at first I assumed that you had heard about how Barack and I lived in the same apartment in law school. I figured you wanted to check up on all of his stories about his crazy experiences is Winter Hill. But, instead you started talking to me about hope and change and the need to make America work for everyone. That first night I just appreciated the call, and I was content to listen. Since then, I’ve come to look forward to our little chats. I’ll be putting the kids down or reading a book, and the phone will ring. My wife will call from downstairs, “Nate! The phone’s for you. It’s Michelle again.” At first, I think that I she was a little jealous of our relationship, but then I explained how you were just calling to chat about hope and change and the need to make America work for everyone. She says that she understands.

I first began to feel that there were problems with our relationship, however, when I tried to talk to you about Barack. Needless to say, I am a whole hearted supporter of hope and change and the need to make America work for everyone. On the other hand, I was more than a little concerned by Barack’s vote on the Colombian free trade deal. I like Colombians, and frankly our war on drugs has been turning much of their country into a violent and lawless shooting gallery. I figure making it easier for them to sell stuff other than cocaine to the American consumer was the least that we could do. And look you, Barack, and I all know that — despite what Barack says to the UAW — blocking trade with small Latin American countries isn’t going to return Michigan to an Eden of highly paid, low-skill union jobs. Of course, I tried to be diplomatic about my concerns, and I understand that he is your husband, so I didn’t take it personally when you just kept on talking as though I hadn’t said anything. I realize that it was an awkward moment for you as well.

I am saddened to say, however, that our chat over Colombian trade has come to set a pattern in our relationship. You’ll call to tell me about Barack and hope and change and the need to make America work for everyone. I’ll try to share with you my ideas about health care, Iran, or the future regulation of credit derivatives. Thinking back now on our friendship, I can’t think of a single time that you paused to listen. You just keep talking on about Barack. What about me? When are we going to talk about my ideas for hope and change and how to make America work for everyone?

Then came your call tonight. I brightened up at the sound of your familiar voice, only to be reminded that Virginians go to the polls on Tuesday and it was important for me to get out to vote for Barack. Is that all this has been for you? All of our talks about change and hope and making an America that works for everyone? Was it all just some play to get me to vote for your husband? Is that all I am to you, just another nameless swing-state voter? Frankly, Michelle, I thought that we had more than that. I thought that there was a real bond between us after all of these evening chats. Now I see, however, that I was mistaken. Much as it pains me to say this, I think that it would probably be best if you were to stop calling me.




Kevin Collins on In re Bilski

Kevin Collins has a post at Patently-O about the In re Bilski ruling. His thoughts focus on “the criteria that the court offers to draw the line between patentable and unpatentable transformations.”

I recommend reading the post but here are some questions he addresses just to entice you:

First, the move raises a normative question: Why should we treat information about tangible things in a manner that is categorically different from the manner in which we treat information about intangible things? … Second, the move raises concerns about administrability. Is data about my expected longevity about something physical, namely my body?

As I am working on questions regarding intellectual property and the body (yes, Mike Madison, I will respond to the larger question you posed), I look forward to more of Kevin’s thoughts on the topic. I understand part of Kevin’s point to be that tangibility seems to matter but that we need to understand why and in what contexts. I suggest that this problem, although appearing to be an old one, is appearing in many different ways across intellectual property. Put differently, what we mean by intangible and why that matters in one area may not fully capture what mean and why that does or does not matter in another. Yet one area is quite likely to borrow the words without the context and thus errors will ensue.

For those interested in more about IP and the body, check out Biolaw 2.0 which Andrew Torrance has developed. I will be commenting on Lee Silver‘s keynote. Silver’s work probes the way society understands genetic research and how religion clashes with such research. I will be looking at problems of the singularity and IP and how they may mirror the clash Silver identifies. As we have enhanced bodies with embedded devices that generate data, who owns the data? What control does an individual have or need? How does the possibility of individual control impact science and research? Is a balance possible?

Last, the Biolaw blog is another resource on the topic.


Lawyers and Economists: Division of Labor

Early last month, in my first guest post on Concurring Opinions, I posted some comments about the differences between the ways economists and lawyers think about problems. Today, in my last guest post, I return to the subject of lawyers and economists.

While any observation about the mindsets of lawyers and economists (or anyone else, for that matter) surely oversimplifies, I noted in my earlier post that — based on my experiences both as an economics professor and as a law professor — each profession seems to instill certain tendencies in its practitioners. While lawyers seem to take an all-or-nothing approach to problems (leading them too often to reject useful partial solutions because “that won’t solve the problem”), economists come to believe their models just a bit too much. On the latter point, Alan Greenspan’s recent testimony before Congress to the effect that he has been in “shocked disbelief” at the failure of his long-held model of how the economy works (unregulated markets will lead to good results) has shown the potentially enormous negative consequences of the economist’s default mindset.

Beyond the tendencies that are drilled into members of the two professions (or which, perhaps, lead to self-selection into the two professions), a more interesting question is what lawyers and economists actually do. More precisely, when we have a public policy problem, how do the skill sets of lawyers and economists determine their respective usefulness in dealing with the problem? Again, I make no claim that

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Berg v. Obama: Finding the proper defendants

One key to teaching procedural classes is to get students thinking about how to frame litigation when it is brought, incorporating all the doctrines and rules that we have been drilling into them. A good new example is Berg v. Obama, the lawsuit filed by a Pennsylvania lawyer to stop Barack Obama from being elected President on the ground that Obama is not a natural-born citizen. The lawsuit was dismissed last week, correctly, for lack of standing.

But let’s assume Berg had standing to challenge the deprivation of his constitutional right to vote for an eligible presidential candidate (since many commenters on this site have derided reliance on standing as a dodge by Obama and the court). It is worth thinking about how one could go about bringing such a lawsuit–whom to sue for what claims and what relief. Berg’s initial strategy was to sue Obama, the DNC, and the FEC–and only the latter two were targeted on the constitutional claims. The big problem (mentioned, but under-analyzed in the opinion) was that neither Obama nor the DNC is a state (or federal) actor, at least not for purposes of running for election. Moreover, I do not see how, even if a court were to find that Obama is ineligible for the presidency, the court could enjoin Obama from running for president. Enforcement of the prohibition on a non-natural-born citizen becoming President does not rest with the non-natural-born citizen–it is not a constitutional obligation to refrain from trying to become President. It is a duty on the federal and state government officials who control the machinery not to allow him to be selected as President or to take the oath and assume the office. It is true that, in any suit against some state or federal electoral official, Obama would intervene as a defendant under FRCP 24 to protect his interests. But that is different than making him a party in the first instance and having the injunction run against him.

So who should Berg have sued? Let’s have some fun. My thanks to my colleague Tom Baker, who wasted fifteen minutes talking through this with me.

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Live, From Tsinghua University, It’s Saturday Night!

Okay, just about everything in the title is false, except that I have been at Tsinghua University, in Beijing, to present a talk entitled “Enron Rerun: The Credit Crisis in Three “Easy” Pieces.” [ Download file]

Every year, Tsinghua, which partners with Temple’s China LLM program, puts on an international conference on corporate or commercial law. This year’s theme: Corporate Restructuring. Speakers from around the world (but mostly Asia) gathered to talk about everything from bringing the ineffable elegance of the reverse triangular merger to China to the scourge of needless transactional complexity.

Organized by Tsinghua Professors Wang Baoshu and Zhu Ciyuan, speakers included Helmut Kohl (University of Frankfurt); Professor Chih-Cheng (Spencer) Wang (National Chung Cheng University (Taiwan)); Professor Len-Yu Liu (Chengchi University, Taiwan; Professor Alain Couret (Sorbonne); Jennifer Hill (Sydney University); Daniel Ohl (Orleans); Nicholas Howson (Michigan) and Daniel Kleinberger (William Mitchell).

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