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Introducing Guest Blogger Laura Heymann

heymann1a.jpgWe are delighted that Laura Heymann will be joining us as a guest for the next few weeks. Laura is currently a law professor at the College of William & Mary’s Marshall-Wythe School of Law in Williamsburg, Virginia, where she joined the faculty in 2005 and teaches in the fields of intellectual property and torts. Before joining the W&M faculty, she was the inaugural Frank H. Marks Visiting Associate Professor of Law and Administrative Fellow in the Intellectual Property Law Program at The George Washington University Law School. She’s also served as an assistant general counsel at America Online, Inc.; as an associate at Wilmer, Cutler & Pickering in Washington, D.C.; and as a law clerk to the Hon. Patricia M. Wald of the U.S. Court of Appeals for the District of Columbia Circuit.

Some of Laura’s publications include: Inducement as Contributory Copyright Infringement: Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 37 International Review of Intellectual Property and Competition Law 31 (2006) and The Birth of the Authornym: Authorship, Pseudonymity, and Trademark Law, 80 Notre Dame Law Review 1377 (2005).

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On Exxon, Corporate Salaries, and Gouging

exxon.jpgThe blogosphere was abuzz toward the end of last week about Lee Raymond’s reported $398,000,000 retirement package. The obscene package contrasts sharply with Raymond’s congressional testimony, at the height of the post-Katrina gas gouging crisis, that “”We’re all in this together, everywhere in the world.”

Nope.

When you make $190,915 7 days a week, 365 days a year you aren’t in it with us. You don’t pump your own gas. In fact, I doubt you even see the guy who pumps your gas. Why would you? Let’s say your driver stopped to pump your gas on the way to your jet. It takes 3 minutes. That’s $400 of time, wasted. You could have jawboned oil prices up to $50/barrel in that time! Or doodled out a plan for world domination!

Sheesh. It’s numbers like this that have to give folks who believe in shareholder democracy some pause. This information was available last year, at the latest, but Exxon’s stock has been on a flier of late. Nor will forseeble changes in corporate governance prevent this type of compensation plan, whatever happens in Disney.

Needless to say, I think that the scope of this compensation package provides further evidence for the need of a windfall tax on Big Oil, not least because it would amount to the Kaldor-Hicks transfer that nominally supports arguments for permitting price gouging after catastrophes. Other taxes are equally attractive, because there is no incentive based reason that I buy that justifies a $398,000,000 pension plan.

Now, I’ll admit that Raymond was CEO of Exxon from 1993-2005, and had led the company from strength to strength. But Exxon wasn’t downtrodden when he assumed control, and reaping profit from an oil company couldn’t have been incredibly hard in an era of global instability, increasing demand for oil worldwide sparked by growth in China, the continued immunity of OPEC to antitrust liability, and, shucks, a war in the Mideast or two. I don’t know what in my book would qualify you for a retrospective paycheck like the one Raymond will collect. But steering the ship to its berth when the moon was full and the waters calm sure isn’t it.

[p.s. If you want to read a great case talking about oil company profit-taking during oil shocks, check out Eastern Air Lines v. Gulf Oil, 415 F. Supp. 429 (S.D. Fla. 1975), which I taught my class last week. Fun case. Great facts.]

[Update: Bill Sjostrom corrects my reliance on mainstream media reports and suggests that the real value of the pension is slightly under $100,000,000. Fair enough Bill. The other $200,000,000 looks to be largely composed of previously issued options and restricted grants of stock, i.e., potentially incenting compensation. But the windfall argument remains.]

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William Stuntz’s Misguided Theory of Privacy and Transparency

stuntz1.jpgWilliam Stuntz (law, Harvard) has long been advancing thoughtful provocative ideas about criminal procedure. I’ve always found Stuntz to be insightful even when I disagree (and I have disagreed with him a lot). Stuntz’s recent essay in The New Republic entitled Against Privacy and Transparency has me not just disagreeing, but doing so rather sharply.

Stuntz begins with an interesting historical generalization. He argues that privacy and transparency (open government) “seem like quintessentially liberal ideas,” although historically they had long been conservative ideas. Stuntz notes that the call for greater government transparency “flowed from pro-business conservatism” because it made it hard for an activist government to alter the status quo. He argues that privacy helped make it hard to regulate big business during the progressive movement in the early 20th century. Stuntz observes: “Privacy, once the right’s favorite right, became the left’s friend thanks to the civil rights movement. In a time when J. Edgar Hoover was spying on Martin Luther King Jr. and Southern sheriffs were enforcing America’s own version of apartheid, police snooping had a decidedly right-wing cast.” As for transprency, “Vietnam and Watergate made the left suspicious of government power generally and executive power in particular. When liberals looked for a way to make Richard Nixon’s imperial presidency a little less imperial, they stumbled on weaponry that Taft’s Republicans had used against Harry Truman: force the president to disclose as much as possible.”

The historical picture is far more complicated than the one Stuntz paints. Justice Louis Brandeis, one of the leading liberals in the early 20th century, was one of the main proponents of privacy and transparency, and he was strongly in favor of New Deal politics. Indeed, it was Brandeis who wrote the famous article, The Right to Privacy in the Harvard Law Review that gave birth to the privacy torts; it was Brandeis who penned the powerful dissent in Olmstead v. United States, 277 U.S. 438 (1928) where the Court held that the Fourth Amendment didn’t cover wiretapping; and it was Brandeis who wrote the famous line in favor of transparency, “Sunlight is said to be the best of disinfectants.” Stuntz is right when he acknowledges that privacy and transparency have strong roots in conservative thinking. But they also have strong roots in liberal thinking, and they are not concepts that have been passed like a baton from the conservatives to the liberals.

But this is not the part of Stuntz’s essay that makes my blood boil. It is his main thesis, where he argues:

Today, the danger that American democracy faces is not that rulers will know too much about those they rule, nor that too many decisions will be made without public scrutiny. Another danger looms larger: that effective, active government–government that innovates, that protects people who need protecting, that acts aggressively when action is needed–is dying. Privacy and transparency are the diseases. We need to find a vaccine, and soon.

Huh? The problem with our government stems from privacy and transparency? To justify this startling conclusion, Stuntz argues that:

[D]ifferent forms of evidence-gathering are substitutes for one another. Anything that raises the cost of one lowers the cost of all others. The harder it is to tap our phones, the more government officials will seek out alternative means of getting information: greater use of informants and spies, or perhaps more Jose Padilla-style military detentions with long-term interrogation about which no court ever hears, or possibly some CIA “black ops,” with suspected terrorists grabbed from their homes and handed over to the intelligence services of countries with fewer qualms about abusive questioning. In an age of terrorism, privacy rules are not simply unaffordable. They are perverse.

Stuntz’s logic seems to be that we should let the government invade our privacy to a significant degree, because if we don’t, the government will resort to even worse things. The argument that if you stop somebody from doing something bad, they’ll do something even worse can be used in almost any situation to defeat almost any law or regulation. Using this logic, one might argue that we should let thieves steal, because if we don’t, then they’ll resort to even worse crimes. The argument proves way too much, and as a result, winds up proving nothing in the end. Moreover, the kinds of information gathering techniques Stuntz lists as examples of “alternatives” rest on very uneasy legal and constitutional ground. Perhaps one of the reasons they have occurred is because of a lack of adequate transparency and a lack of sufficient checking of the Executive Branch. But Stuntz, however, sees transparency as part of the problem.

Stuntz has many more arguments which are worth responding to.

Read More

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An Early Law and Economist?

supply_demand.jpgShimeon Ben Gamaliel was a Jewish jurist (of a sort) who lived sometime around the year 50 C.E. Before tonight, the only thing I knew about him was his famous endorsement of capital punishment on deterrence grounds, sometimes quoted in law reviews:

[Jewish scholars asserted that a Court of Law] that kills [i.e., convicts on a capital crime] once a week is called “destructive.” [But a scholar then glossed:] “Once in seventy years.” [Two other even more luminary scholars objected], “If we had been on the [Court], there would never have been a person killed.” [But] R. Shimeon ben Gamaliel [replied], “They would have increased the number of spillers of blood in Israel.”

Sounds like Sunstein and Vermeule, remixed. Tonight, through my father at our interesting Seder, I heard a different story about Ben Gamaliel:

The price of a pair of pigeons [used for ritual purposes] in Jerusalem once reached a golden dinar [which was out of the reach of the poor]. Rabban Simeon ben Gamaliel then said: By this Temple (an oath), I shall not rest tonight until a pair of pigeons are sold for [a silver] dinar. He went into the court and taught: If a woman underwent five definite births or five definite issues, she brings only one pigeon as a sin-offering and she may then eat of the sacrifices, and no obligation devolves on her to bring the other offerings. That very day the price of a pair of pigeons stood at two quarters [of a silver dinar]

You never know which of these stories are apocrypha. But it is fun to think of this ancient jurist as an early legal economist, before Coase, Posner, Becker and others made it trendy. And best of all, he is apparently the first known jewish juggler. Altogether a fairly interesting guy!

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Reading Justice Kennedy’s Tea Leaves

Scholars like myself who write on the formerly-arcane-now-bizarrely-fashionable issue of the role of international law in U.S. courts were sorely disappointed by Justice Anthony Kennedy’s keynote address a few weeks ago at this year’s Annual Meeting of the American Society of International Law. The past four years of ASIL having witnessed Justices Breyer, Ginsburg, O’Connor, and Scalia speak at length on the issue, Justice Kennedy departed from established tradition and instead gave the crowd a moving (even if somewhat depressing) speech on the dangers of genocide and our obligations as lawyers to do something about it. (Peggy McGuinness at Opinio Juris blogs about it here. Tony Mauro reports on the speech here.) He even declined to answer a question asking him for his views on using international law from none other than Anne-Marie Slaughter (former president of ASIL and now dean at Princeton), simply responding that “we should be judged by what we write.” But Justice Kennedy has not always been so reticent. In a speech just last year before the Eleventh Circuit Judicial Conference, he discussed at length the numerous international law issues before the Court, and defended the Court’s use of foreign legal sources in its decisionmaking.

All of which leaves me wondering: Has Justice Kennedy suddenly lost interest in the debate over the role of foreign and international law? What explains his reluctance to share his views? Have Congressional resolutions condemning the use of foreign authority in US courts lessened his enthusiasm for the practice? Have the diatribes of irresponsible politicians — inspiring death threats from those whom Justice Ginsburg calls the “irrational fringe” – played a role? In short, is Kennedy backing away from his now-famous statement in Roper: “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom”? Or is it simply that the battle lines have now been drawn, everyone has chosen up sides in this Crossfire-esque debate, and so Justice Kennedy reasonably believed that there is nothing new to be said on the subject?

What does the CoOp crowd think? IS there anything new to be said on this subject? And will Justice Kennedy back away from Roper in future decisions?

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Rejected in a Hurry

Who says that the law review article consideration process is slow? Brian Leiter writes about how Ohio State law professor Christopher Fairman’s article was rejected by the Kansas Law Review in only 25 minutes. Apparently, all it took for the editors was to read one word. To find out more about this article and why it was rejected, check out the article and abstract here. There’s a very fitting two word response that Professor Fairman could give to the Kansas Law Review . . .

14

Mobbing in Academia?

This article [registration required] in the Chronicle claims that academia is rife with mobbing, or:

‘an impassioned, collective campaign by co-workers to exclude, punish, and humiliate a targeted worker.’

To flesh out the concept, [an academic] drew up a list of 45 mobbing indicators. It amounted to an impressive catalog of bureaucratic nastiness: ‘You are interrupted constantly'; ‘you are isolated in a room far from others'; ‘management gives you no possibility to communicate'; ‘you are given meaningless work tasks'; ‘you are given dangerous work tasks'; ‘you are treated as if you are mentally ill.’

Notably, this work bears many similarities to Prof. Livingston’s post on law professor happiness, discussed here not so long ago. The article explains that mobbing is (allegedly) quite prevalent in universities:

[I]nstitutions where workers have high job security, where there are few objective measures of performance, and where there is frequent tension between loyalty to the institution and loyalty to some higher purpose.

To be honest, I just don’t see the problem here. Even if “mobbing” were a real phenomena, and even if it occurred at relatively higher rates in institutions, so what? Most faculties have a few marginalized folks. Most for-profit enterprises do not. Because the for-profit enterprises fire people who don’t fit in. Bearing with irritating colleagues is the trade-off that academics have made to retain tenure. Since tenure isn’t wildly unpopular among professors, I imagine that people think it is worth it.

Thus, I doubt the article’s claim that “mobbing” could be reduced by changing governance structures or training better administrators. If you can’t fire people who offend, and setting up positive incentive structures is similarly difficult, managing behavior will be left to informal social sanctions. Like shunning, and shaming, and, I suppose, mobbing.

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What Is the Definition of a “Blog”?

The other day, I posted about the New York Times blogs that weren’t free and asked: “A blog you have to pay for? Huh?” In the comments, several commenters wrote that being free is not a necessary element of being a blog. So how, precisely, is a “blog” to be defined? Blogs are typically free, online, created in the style of chronological entries, written in a distinctive voice, interactive (comments and trackbacks), and connected to others (links, blogrolls, etc.). Of these elements, perhaps the only necessary requirement is that a blog be online. The rest are optional, although without at least some of these elements, a blog would be no different from a website. What, then, makes a blog a blog?

7

A shout out to my home state

First, thanks to all the folks at Concurring Opinions for the invitation. I’ll no doubt be a pale substitute for my W&L colleague David Zaring and other illustrious alums of ConOp — but I’ll do my best to keep the random insights on a thousand different topics (which is what sets ConOp apart from its fellow blogs, no?) coming.

It’ll come as no surprise to those who know me well that I begin my sojourn through the blogosphere with a little news item from my beloved home state of Arkansas. (Plenty of time to brag about my scholarship (um, I mean dialogically engage with like-minded scholars about topics of mutual interest) in later posts. . . .)

Seems that Arkansas is about to become the first state in the country to ban smoking in cars where children under the age of 6 are along for the ride. The bill was passed by an overwhelmingly Democratic legislature, and our Republican-possible-Presidential-contender-health-nut governor Mike Huckabee says he intends to sign it into law. Progressivism and bipartisanship at its best — folks in Washington, take a page from the Razorback playbook. And Arkansawyers everywhere, say it with me … whoo pig sooie!

(To my fellow former Judge Buzz clerks out there (Nate? Geoff?), am I wrong? What would our “old dad” say on this one?)

Arkansas.jpg