12

Should Professors Ban Laptops in Class?

computer8a.jpgOrin Kerr writes about June Entman, a University of Memphis Law School professor who has decided to ban laptop computers in her class. While certainly of interest to law students and profesors, I’m a bit surprised that the AP thought that this was a national news story. [I should ban something from my classes and make national news, too.]

Anyway, the issue is interesting, and Orin posts an email he received from Professor Entman explaining her rationale for the policy. She observes that when students use laptops, they “focus primarily on transcribing everything said,” and don’t develop good note-taking habits. She also explains that the “wall of vertical screens” prevents her from seeing her students’ faces and that keystroke noise is a distraction.

An interesting discussion has ensued on Orin’s post. I have a comment there, disagreeing with Professor Entman’s policy. I will give students advice on good study and note-taking habits, but in the end, it is for the students to decide for themselves. Students need to learn to make their own choices and to live with the consequences of those choices. I don’t think that turning back the clock and taking students’ laptops away will help them. These are the tools we use today, and I think that it is better to teach students how to more effectively use today’s technology than to take it away. As I concluded in my comment:

There are many things I’d like to force my students to do. I’d like to force them to be prepared, to study diligently throughout the semester, and so on. I tell them all this, but in the end, I leave the choice to them. Otherwise, I begin to feel too much like parent, and I don’t always know what’s best for each student.

Will students be better off without laptops? I doubt it. Most won’t suddenly learn good habits; they’ll just resent the no laptop policy.

To keep the conversation in one place, please comment in Orin’s post (if he’ll allow you to).

1

Obit

James O. Freedman was a law professor and dean at Penn, and a president of Iowa and Dartmouth. Those of us with roots in the hinterland remember him as an Iowan of statewide popularity, who – with the assistance of a southern-fried football coach – turned a Big Ten also-ran into a big-time college athletic powerhouse. I always suspected that Freedman was delighted to leave Iowa for someplace with a smaller football stadium. He retired from Dartmouth to Cambridge, Mass.

3

Blog Block

I’ve been gone awhile so I thought I’d at least pop in to say hello. It seems I’ve discovered a new (but unsurprising) aspect to my personality: I get blog block. When I’m writing every day, I find I have more and more to say. But when I take several days off, I lose the inspiration. Then I forget how to get it back. I’m sure other bloggers have this problem (which explains why it helps to have a gang of co-bloggers.) In the hopes that others might share their recovery techniques, I thought I’d describe how I’ve attempted to get back in the saddle. I spent several hours this evening reading other blogs. (I found Law and Letters to be most helpful. Belle offers a particularly nice mix of academics and introspection.) I read the Supreme Court’s opinion-o-the-day (thankfully, a criminal procedure matter.) I waited for a fabulous new idea, but none was forthcoming. I ate M&M’s, left over from Halloween, and fortune cookies. (There really are mysteries in the pantry!) And I did what any person in my shoes would do. I attempted to go to sleep.

Thanks to the desperate cries of my sleeping baby daughter, rest was not an option. So I trudged back to the computer with one small objective: to acknowledge that the Supreme Court done good yesterday. In the Georgia v. Randolph decision, a five vote majority limited the ability of police to search a house when two people are at the door. In this case, a matter involving an estranged married couple, the wife granted consent to search while the husband refused entry. The officers acted on the consent of the wife and ignored the husband. They found drugs inside.

As usual, Orin Kerr offers a very thoughtful analysis and taxonomy of the opinions. This is a very pleasing opinion to me. First off, it is in accord with my criminal law libertarian values. I operate on the assumption that police ought not be breaching the privacy of a person’s home except in the narrowest circumstances. But it also makes me happy because Breyer did not take Roberts’ bait and conclude that the need for entry in cases of domestic violence requires a degradation of personal privacy under the Fourth Amendment. In the past, Breyer has shown a notable lack of interest in a robust Fourth Amendment. (I’m thinking of his approval of suspicionless drug testing of students in non-athletic extracurricular activities in Board of Education v. Earls.) In addition, the voting alignment suggests that Kennedy will continue to operate independently, nothwithstanding the arrival of a new true-believer.

This case may be fairly consequential, but in a different way than Roberts suggests. As a public defender, I discovered that a surprising number of people call the police to manipulate friends, neighbors, and loved ones. To be sure, most 911 calls are legit. But sometimes a call to the police is simply punishment for someone else’s perceived misconduct. “You cheated on me? Fine. I’ll call the cops.” This decision may limit the effectiveness of these calls. Or perhaps KipEsquire is right: the police may manipulate circumstance to move the objecting resident away from the door.

I hope the blog block has been broken. Perhaps tomorrow, when I wake up, I’ll have a genuine epiphany. Or maybe I’ll just update the lateral moves list!

2

Three Interesting Things About The New Source Review Decision

The DC Circuit’s invalidation of EPA’s Clean Air Act regulations exempting certain equipment replacements from the new source review process led the Times last weekend, and one look at the number of lawyers who participated in the appeal tells you that a lot of parties thought the case was important. What happened and why should you care?

Very roughly, if you build a new source of air pollution, you have to get a permit to pollute – this is the so-called new source review process. However, if you’re replacing equipment on an old pollution source, you may be able to avoid new source review – or so thought EPA, which passed a rule providing that “the replacement of components with identical or functionally equivalent components that do not exceed 20% of the replacement value of the process unit and does not change its basic design parameters is not a change” triggering new source review. The court held that EPA’s reg was inconsistent with the plain language of the CAA, which, it held, requires new source review upon any modification of the old source that increases pollution. As the court held, “Congress defined ‘modification’ in terms of emission increases, but” EPA’s proposed reg “would allow equipment replacements resulting in non-de minimis emission increases to avoid” the permitting process.

1. This panel included Judge Janice Rogers Brown, the controversial and only recently confirmed libertarian. Perhaps Brown’s hostility to regulators in general explained her hostility to this business friendly interpretation of a congressional directive … but perhaps also this was an easy textual case, or she was persuaded by the brilliant judge who wrote the opinion, Judith Rogers (a judge who has, in the past, hired some law clerks I greatly admire).

2. As is often the case these days, the lineup was states + environmental groups v. federal regulators + industry. I’ve been impressed for a while by the number of legal foot soldiers that environmental groups have gotten out of state attorney general offices.

3. The Times notes that the arena of Clean Air Act combat has shifted from Congress, which wrote an incredibly detailed and quite constraining statute (a very different statute than those with New Deal era broad grants of regulatory authority) to EPA and the courts, who are interpreting that statute in a context where legislative review is unlikely – “there has been no real movement in that direction in recent years.”

3

If anything, they should be rewarded

I’m not a particularly ardent fan of the U.K. version of The Office, but I’ve seen a few bits of it here and there, and they can be pretty funny. One of the classic exchanges is between David and Gareth, on the subject of, well, boobs:

[David is mocking a porn site, and reads off of the computer screen]

David: ” ‘Dutch girls must be punished for having big boobs.’ Now you do not punish someone, Dutch or otherwise, for having big boobs.”

Gareth: “If anything they should be rewarded.”

David: “They should be equal.”

Gareth: “Women are equal.”

David: “I’ve always said that.”

With that background, one can fully appreciate this recent news story: “A dancer has launched a $100 million lawsuit against the American musical Movin’ Out, claiming she was emotionally abused and lost her job because her breasts grew too large for her costume.” Yes, it turns out that, according to the lawsuit, some people are punished for having big boobs. Best of all, however, is her lawyer’s statement to the press, in the same newsclip: “In the ballet world, obviously, people are small-breasted. On Broadway, what happened should be an attribute.”

Or in other words, “if anything, they should be rewarded.”

Single-Payer Music Care?

Les bon temps roulez! It appears the French legislature has picked up on the conversation started by one of Christine Hurt’s posts here a few weeks ago on the iPod, and wants to do something about Apple’s iTunes lockout of rival music sellers and players. The IP blogosphere is abuzz over the move, which directly challenges Apple’s aggressive efforts to leverage dominance in the portable-player market into a monopoly over digital music retailing.

Libertarians are likely to applaud moves like this, as this Cato Institute Report demonstrates. But I want to push the dialogue in an even more market-oriented direction. Since we’re thinking big here, why don’t consumers take some self-help measures? The recording industry is extraordinarily concentrated, provoking antitrust investigations left and right. So why don’t consumers form buyers’ cooperatives? If the “big four” own 90% of the music, why don’t consumers form four or so buyers’ groups that will negotiate access to music? Each would manage a library with about one-fourth of recordings. That seems to be the model behind Europe’s efforts to hold down health care costs—have one or a few big players form a monopsony (or oligopsony?), and bargain down the price.

Now I’m not saying that’s always the best solution for health care—as Cutler, DiMasi, and others have noted, a lot of innovation is funded by the fragmented buying pool in the U.S. system. But while I care a lot about innovation in health care, I’m a bit agnostic about innovation in music. Can we reliably say that the whole lot of music composed and performed after 1980 is worth more than J.S. Bach’s oeuvre? I don’t know. So I don’t care if “single-payer music care” ends up reducing revenues to the culture industries. Admittedly, in the end, I think it would actually help those industries, as William Fisher so skillfully documents in his Promises to Keep. But that’s another post…

12

SLUSA, SCOTUS, and Unintended Consequences

Yesterday’s unanimous securities opinion in Merrill Lynch v. Dabit was unsurprising, but somewhat interesting. [More here on the same topic from Ribstein.] Some background. In 1975, the Court (in Blue Chip Stamps v. Manor Drugs [BCS],) held that private parties lack standing under the ’33 and ’34 Securities Acts to bring causes of action for fraud that fails to result in either the purchase or sale of securities. The Court reasoned that the statutory hook, “in connection with purchase or sale,” should not be read to mean merely holding on to securities. Chief Justice Rehnquist’s opinion evinced considerable fear of encouraging “vexatious litigation”: his decision explicitly rested on prudential concerns.

In Merrill Lynch, the Court considered this same “in connection with language” in a different statute, the Securities Litigation Uniform Standards Act of 1998 (SLUSA). SLUSA was passed (according to the Court) to deal with the “unintended consequence” of the allegedly onerous Private Securities Litigation Reform Act of 1995: forum shopping by the class action securities bar.* SLUSA, in relevant part, thus preempted state class actions “by any private party alleging [fraud…] in connection with the purchase or sale of a covered security…”].

The Second Circuit below had reasoned that Congress must have intended this “in connection with” requirement as a gloss on BCS. Thus, it held that state securities class actions that remained in the space left open by BCS survived SLUSA as well.

Not so fast, said Justice Stevens. Because BCS was just a standing decision, not flowing from the “text of Rule 10b-5,” and because more recent decisions found liability in the absence of purchase or sale, and because the SEC has long advanced this broad interpretation of the “in connection with” requirement, Justice Stevens held that SLUSA preempts even state court class actions that couldn’t be brought in federal court.

Why is this interesting? For at least three reasons.

Read More

0

Reading List

There’s a lot of information out there, but lots to learn. As Judge Posner reminds us, “intelligence data are collected” among other ways, “by scrutiny of publicly available … materials such as newspapers, magazines, the Web, and scientific and technical journals.” We already know about Liptak, Glater, Lithwick, and Leiter. Who else can provide us with crucial open source intel? I’m reading this and this, to keep up with the kids. I’m enjoying the new law beat lady’s work in the Observer. And jd2b is my one stop source for a random collection of press releases from law schools. When they get an editor, that site is gonna be huge.

5

Judging Securities Law

Steve Bainbridge has a new post up on the Supreme Court’s securities law “jurisprudence.” He seeks to rebut the arguments contained in Mark Loewenstein’s draft article (on SSRN here) to the effect that the Supreme Court’s “much-heralded ‘new federalism’ philosophy of the Supreme Court is not a factor in securities law cases or in business cases generally.” I’ve just downloaded the paper (but haven’t yet read it), so my reactions here are just to Bainbridge’s argument.

Basically, Bainbridge says that the Supreme Court should not be expected to demonstrate a coherent federalist philosophy in its securities cases. Indeed, expecting any coherent philosophy would be a surprise: (a) such cases come before the court rarely because the court believes them to be boring and therefore not cert-worthy; and therefore (b) the court doesn’t get the repeat-player experience or know how that would polish their work . (This summary flows from Steve’s article, co-authored with Mitu Gulati, on the bounded rationality of securities decision making. I have recently criticized this view, arguing that securities law, at least in the lower federal courts, does “push” a coherent model of “good” shareholder behavior.)

However, I do agree that the Supreme Court is institutionally pretty weakly positioned to govern federal securities law. This institutional weakness arises, however, not just out of a lack of interest by the justices. Supreme Court clerks and Supreme Court practitioners both are traditionally conlaw folks, not experts in behavioral finance, comparative financial regulation and accounting, state blue sky laws, or any of the other hot issues likely to be litigated before the court in the next decade. Even “easy” issues, like materiality, can thus be made into a mess. See Basic v. Levinson (sheesh).

But criticisms of the Court’s work in securities cases may give its work in constitutional, criminal, tax and federal statutory cases too much credit. It is my experience, listening to colleagues who live with (i.e., teach) these cases on a daily basis, that the problems of incoherence, inattention to future consequences, lack of expertise in the foundational material, and triumph of rhetoric over craft that corporate scholars see in the Court’s work are quite common. Indeed, the federalism rhetoric that Bainbridge discusses is itself an example of a missing coherence, at least according to folks like Randy Barnett. So, what makes securities law exceptional? Is it just that the cases have more at stake in dollar terms, and are not, on first glance, as politically charged?