34

Using a feminine universal

In my lectures and class discussions (and out of class, for that matter), I tend to use a universal female pronoun. Not in cases where a universal is inappropriate because it conflicts with specific facts, obviously — “Mr. Jones went to the bank and she deposited her check.” But in cases where a universal pronoun is used, and where traditional English would therefore call for a “he,” I tend to use “she.” (Ditto for “her,” “hers,” and so forth). Thus, “for a testator to execute a will, she has to meet the following requirements.”

This is normally not much of a problem. Substituting she for he is not exactly rocket science.

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2

The Judicial Salary Problem

Peter Lattman highlights some recent comments by Chief Justice Roberts. The Chief Justice talked, in part, about the campaign to raise the salary of federal judges:

At current salaries, “you no longer can draw the best trial lawyers, on a regular basis,” to the federal bench, Roberts said. While no one becomes a judge to get rich, he said, the government “ought to pay them enough so they can educate their children and have a reasonable lifestyle.””We don’t want to get to the point where we have the judiciary staffed solely by people of independent means, or by people for whom the judicial pay scale is a raise,” he said.

A few comments.

First, I wonder why the Chief Justice refers to “trial lawyers” as the appropriate pool. Even to the extent that he means “litigators” (because there are vanishingly few trials for judges to preside over), is there any reason, in theory, to think that litigation departments produce better jurists than corporate departments? I wonder. Considering that most of the job of the modern district judge is management of a process through to settlement, it would seem that corporate attorneys – at least ones who like to write – have a leg up.

Second, I (along with many others) question the claim’s empirics. The studies I have seen suggest that pay is not correlated with judicial decisions to retire (early). (The evidence is concededly mixed). It would be also quite surprising if it is correlated with agreeing to be nominated to the bench in all but the anecdotal case. The legal profession is acutely status conscious: lawyers who are in the position to be nominated have already demonstrated (through public service, or political connections, or effort) that they are particularly motivated by prestige as a substitute for cash. Moreover, it is a well-accepted fact that it is better to be a hammer than a nail. In our system, judges aren’t the nails. (Most of the time). In short, I think that even if you cut real federal judicial starting salaries (by keeping them constant despite inflation) the applicant pool would not significantly change.

But those are, essentially, market-clearing arguments, and don’t persuade me that the Chief Justice’s “real” point is wrong. Roberts has a better argument.

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12

Populism, Markets, and Walmart

walmart.jpgI have a friend who is something of a populist. A political philosopher and sometime resident of the rural south, he is in favor of things like a living wage, dry laws, prayer at town meetings, and a high protective tariff. In particular, provided that there is substantial support by “the people,” he is willing to support all sorts of measures that are fairly authoritarian by the standards of traditional liberal political theory. Needless to say, his thinking is much, much more nuanced than I have presented it here, and he can talk about Rousseau, Marx, and Herder is all sorts of sophisticated and interesting ways. He doesn’t, however, much like markets, and in this he is typical of many self-described populists. I can’t help but thinking that there is something odd about this.

In a real sense populism is all about taking expressed preferences seriously. The populist response to liberal concerns about the distinction between the right and the good, public reasons, and all of the other conceptual hedges against overweening democracy is to point out that much of this stuff is simply elitist clap trap, a set of spurious distinctions designed to insulate what affluent and well-educated coastal populations happen to like from the rawer, more authentic sensibilities of the heart land. “Down with it!” the populists argue. People ought to be able to live in a society that actually reflects the values and commitments that they have, rather than one where the expression of those values has been manipulated by elite categories into a more antiseptic form that conforms to elite sensibilities rather than popular sensibilities.

Markets are also about taking expressed preferences seriously. They are frequently not pretty. Both Britney Spears and Walmart are products of the market, and both seem to satisfy expressed preferences. Nor are these preferences the atomized, individualistic things that the heirs of Rousseau like to impute to liberals. Price is about the aggregation of preferences, and it is price that allocates goods within the market. Hence, the desire for cheap stuff — and with it a bit more real disposable income — is, like school prayer and dry laws, an authentic expression of the will of the people. Indeed, given that participation in politics is sporadic at best, while participation in the market is ubiquitous, if anything prices have a greater claim to expressing the General Will than plebiscites.

2

Welcome to the Blogosphere: Jurisdynamics

chen-jim.jpgJim Chen (law, Minnesota) has a new blog called Jurisdynamics. From the introductory post:

This blog openly embraces a dynamic model of legal change. Jurisdynamics describes the interplay between legal responses to exogenous change and the law’s own endogenous capacity for adaptation. The world that law tries to govern has has become “so vast that fully to comprehend it would require an almost universal knowledge ranging from” economics and the natural sciences “to the niceties of the legislative, judicial and administrative processes of government.” Queensboro Farms Prods., Inc. v. Wickard, 137 F.2d 969, 975 (2d Cir. 1943). Within the realm of legal scholarship, this blog aspires to the goal that historian David Christian set out for his discipline: “that the appropriate time scale for the study of history may be the whole of time.” David Christian, The Case for “Big History,” 2 J. World Hist. 223, 223 (1991). Jurisdynamics will present the case for “big law,” for the proposition that the substantive scale on which law should be studied, taught, and learned is the entirety of human experience. . . .

Jurisdynamic tools include:

* Mathematics, statistics, and empirical analysis, including bibliometrics

* Language, linguistics, and interpretation

* Complexity theory

* Evolutionary biology and behavioral psychology

Naturally jurisdynamic subjects include:

* Innovation policy and intellectual property

* Economic regulation, antitrust, and competition policy

* Environmental protection, natural resources, and agriculture

* Natural disasters and other emergencies

* Trade, development, and public finance

* Constitutional law and democratic governance

Jim is a wide-ranging scholar and is always fascinating. Not only has he written dozens of law review articles and several books, but he has also penned seven articles as alter ego Gil Grantmore, making him the only law professor who would have a claim to tenure under two different names. Some of his Gil Grantmore articles include But cf., 20 Const. Comment. 5 (2003); Lex and the City, 91 Geo. L.J. 913 (2003); The Phages of American Law, 36 U.C. Davis L. Rev. 455 (2003); and The Death of Contra, 52 Stan. L. Rev. 889 (2000). Welcome to the blogosphere, Jim! And I look forward to Gil’s blog sometime soon.

5

The NSA Bill in the Mainstream Media vs. the Blogosphere

NSA3.jpgIn reading the mainstream media accounts, one would get the impression that Senator Specter’s NSA surveillance bill is a compromise with the Administration, a way to limit Executive power, and that the Administration is reluctantly capitulating to judicial oversight.

New York Times: “Bush Would Let Secret Court Sift Wiretap Process.” The article states that the “proposed legislation represents a middle-ground approach.”

Reuters: “Bush agrees to court review of spy program”

LA Times: “Bush Agrees to Review of Domestic Spying Program: The tentative proposal would let a secret court decide whether the NSA can eavesdrop on Americans without first obtaining warrants.”

Associated Press: “Bush Agrees to Eavesdropping Court Review”

Washington Post: “Bush Compromises On Spying Program: Senate Bill Would Permit Court Review”

How can it be that they all seem to have almost identical news stories? Did they all get together to write the same story? The content of these stories is quite similar — they all seem to be based largely on interviews with Specter and his staff. Occasionally, there’s a quick soundbite from Senators Leahy or Feingold, but by and large, the mainstream media accounts are remarkably the same. It is as if Senator Specter and the Bush Administration’s PR team had written the stories.

The articles barely contain a whiff of what the blogosphere contains, which paints a very different picture of Specter’s bill.

Orin Kerr: “Maybe I’m missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander-in-Chief power.”

Marty Lederman: “So what does Specter do in the wake of the momentous Hamdan decision, which put all the cards in Congress’s hands? He introduces a bill, with Administration blessing, that gives the Administration everything it ever wanted, and much, much more. Indeed, come to think of it, the Specter bill is basically the sort of legislation one would expect if the Supreme Court had just held that Congress is powerless to enact legislation constraining the President’s “inherent” war powers — something that not a single Justice in Hamdan so much as suggested.”

Steve Vladeck: “The bill is remarkable in a number of respects, including that it does not require the President to submit the [NSA surveillance program] to the FISA Court, but does require transfer of a whole host of other actions to the FISA Court, where proceedings are ex parte and often secret.”

Hmmm. So the Bush Administration agrees to do what the law already requires it to do. It’s like a bank robber agreeing to set up a legitimate bank account. But what’s more, the bill doesn’t even require the Administration to go to the FISA court; and it gives the Administration a ton of new powers. To return to the bank robber analogy, it’s like authorizing the robber to continue to steal if he wants to; and providing him with a special entrance to the bank and a personal set of keys to the vault.

Of course, the mainstream media need not be as extreme as I am in describing the bill, but perhaps just a tiny bit of balance might be in order. At least provide a more complete account of the bill, not one that comes with the incredible spin that Specter and the Administration have put on it. Perhaps consult an independent expert or two. I thought the media’s job is to do some independent reporting, not just copy down what they’ve been told. I guess I was wrong.

0

Jack Balkin on the NSA Bill

Jack Balkin has some insightful analysis of the Senator Specter’s NSA Bill over at Balkinization:

In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of– a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President’s constitutional authority to collect foreign intelligence surveillance.

Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.

No wonder why the Bush Administration is willing to “compromise” and support this bill — it’s easy to compromise when you get everything you want.

Is it better to have the Administration flaunting the rule of law while a few in Congress groan? Or is it better to simply change the law to suit whatever the Administration wants to do? The latter has the appearance of legitimacy, but it makes a mockery of the issue. The penalty for the Executive’s violating the law and overreaching in its powers shouldn’t be to get more power, especially not raw power cloaked under the illusion of legitimacy.

Jack Balkin has much more analysis in his excellent post. The text of the bill is available here. A summary of the bill is available here.

Orin Kerr and Marty Lederman also weigh in.

UPDATE: Orin Kerr has a new insightful post here.

8

“In Kind” Just Compensation

According to the Hartford Courant, the last two of the Kelo plaintiffs recently reached agreements with the New London Development Corp. over the condemnation of their homes. According to the Courant, Susette Kelo, “agreed to have her pink cottage moved elsewhere in New London.” Pasquale Cristofaro, the other remaining holdout, “agreed to give up his home but is entitled to purchase a new one in the neighborhood at a fixed price if new homes are built.”

I think this final chapter of the Kelo case is very interesting, for a variety of reasons. First, I wonder whether much of this dispute could have been avoided had the city been willing to offer creative deals like this from the start. It’s not clear that such offers would have been fruitful without the looming threat of eminent domain, so perhaps this is just the best deal that Susette Kelo and her co-plaintiffs believed they could get under the circumstances. On the other hand, after the outpouring of public anger in reaction to the Kelo decision in the Supreme Court (fueled in no small part by a brilliant public relations campaign by Scott Bullock and the other folks at the Institute for Justice), there was fairly substantial political pressure on New London to avoid resorting to outright condemnation in this particular case. So the threat of condemnation may not have been all that salient in these negotiations. That makes me think that this may have been a deal that came fairly close to giving Kelo and the other plaintiffs much of what they were looking for from the beginning.

Which leads to my second observation. Why don’t cities use these sorts of creative, in-kind compensation schemes more often (instead of merely providing monetary compensation at market value, or even at some premium on market value)?

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5

Carving Up Contracts

butcher.jpgI’ve been spending the day carving up my Contracts course. This coming year, Temple, following in the footsteps of many law schools, is transitioning from a two-semester, six-credit, glorious romp through the law of contracts to a one-semester, four-credit, forced march.

This isn’t a data point, it’s a trend. There is an article to be written – perhaps it has been? – about the long, slow, decline of the year-long first year course. While a generation ago, most courses were taught in the year format, today only a few schools have as many as one course taught this way. [I myself had year-long civil procedure and criminal law classes, but we were the only section at school so blessed.] For some reason, until recently contracts had been the holdout. Why? My preferred theory is that the course is uniquely complicated and foundational. Or, you might believe that contracts is so doctrinally incoherent that it demands more attention. Or, perhaps, it was Kingsfield‘s ghost.

So I’m cutting away. First, the fat of the class: cases marbled through with neat applications to other classes, wonderful diversions of history and policy, but not totally dedicated to the project of determining when and how to enforce promises. Tortious interference and the Texaco case? Gone. The restitution interest? Mostly ignored. Farewell as well to agency, third-party bennies, assignment and delegation, duress, incompetency, and infancy.

But that wasn’t enough. So, with a heavy heart, I’ve started to trim closer to the bone. Less interpretation and parol evidence, (much) less consideration, and now barely a touch on relational theory and impracticability. A consolation prize: I get to cut most of my promissory estoppel unit in good conscience. Good riddance!

Of course, I realize that the entire first year curriculum has experienced this loss over time, and law students have reaped compensatory benefits: electives in various subjects, less focus on common law instruction, more skills courses, and a greater variety of teachers in the first year. All to the good. But I can’t help thinking that each of the grand old first year subjects has lost a case (or a facet of its subject matter) to shrinkage, and (as a result, hypothesizes Larry Solum?) some areas of law aren’t getting the scholarly focus they used to. I know it isn’t a big tragedy for law students to graduate without having learned a thing about the infancy defense to a breach of contract action, but just now, as I cut that concept from my notes, it feels like a small one. And I’ve only taught the course twice through. Imagine if I’d gotten really attached!

29

Shoplifting At Wal-Mart

According to NY Times accounts, Wal-Mart has decided to cut shoplifters a bit of slack. If you’re under 18 or over 65, and try to swipe merchandise under $25 (and it’s your first time being caught by Wal-Mart security), they’ll give you a tough lecture and send you packing. Why the generosity? The article suggests – and this is surely true – that the local infrastructure (i.e., the cops and local prosecutors) don’t like to foot the bill for enforcing shoplifting laws. This raises some interesting questions. First, should shoplifting be a crime? Probably, if only because if allowed to grow, it would (in aggregate) devastate retailing. Second, who should bear the cost of shoplifting enforcement? Perhaps the right answer is the retailer. Offenders are the logical payors, but they are often too poor to bear actual costs. And while society at large could pay the cost (and does, right now), it seems to me that it would be easier to impose the tax on the retailer. Why? Because, in many respects, the retailer is in the best position to reduce theft. Cameras, good layout, ever-present security all help reduce attempted thefts. If stores see that they save more than mere shrinkage by stopping shoplifting, perhaps they’ll introduce those preventive steps.

In my experience, shoplifting cases are a major source of docket junk in criminal courts. DA’s typically don’t care much about them. The victims – and there are real victims – are mostly corporations, and these corporations don’t get exercised like other victims. To the DA, the company’s face is the security guard who shows up to testify – and he or she is usually a low-paid worker bee who doesn’t much care the outcome of the case.

Sounds to me like Wal-Mart is just trying to get along better with the local community. Perhaps they should talk to Target, a leader in the national fight against crime, for tips.