Starting with the Obituaries

I recently came across a great piece of Estates and Trusts scholarship: “Making Things Fair”: An Empirical Study of How People Approach the Wealth Transmission System, by Naomi Cahn and Amy Ziettlow.  I was hooked as soon as I read that Cahn and Ziettlow began their data collection by reading every obituary that appeared in Baton Rouge’s most popular newspaper over a seven-month period and then invited the decedents’ adult children and stepchildren to participate in their study. Because Cahn and Ziettlow started with obituaries, and not probate records, they were able to explore testate and intestacy experiences from both inside and outside the probate process. Most significantly, Cahn and Ziettlow’s methodology allowed them to include poor and middle class families, demographic groups that are often altogether ignored in estates and trusts pedagogy and scholarship.  Their interviews with decedents’ children suggest that family dynamics often determine inheritance and that black letter law often matters very little.  The interviews also show that children greatly appreciate any kind of estate planning by their parents, and Cahn and Ziettlow offer creative suggestions for prodding people to plan. Read More


Who Wrote This?

Greetings and salutations.  Chasing a toddler around while writing a book has knocked me offline for a while, but I’ve got some posts coming up this week.  Some of them will relate to my Bill of Rights research, as I’ve been grinding my way through hundreds of newspaper articles and periodicals going back to the 18th century to look at how the term was used.

Here is one tantalizing item that I want to discuss.  In September, 1792, an anonymous article “By a Farmer” appeared in a magazine and criticized future Broadway musical star Alexander Hamilton and his policies at the Treasury.  The author opened the article this way:

“As long as the state of America continue under the present form of government, the PEOPLE will have to lament the want of a bill of rights, which would clearly and unequivocally dictate to the legislature its duty, and to the people their rights.”

Anyone see the problem here?  The Bill of Rights was ratified in December 1791.  Evidently Mr. Farmer did not get the memo that this was a bill of rights or that we should celebrate its enactment into law.  The piece then went on to discuss the French Declaration of the Rights of Men, and then commented that the French were a highly enlightened people who:

“Have prefixed a bill of rights to their form of government, not as being applicable to their own situation alone, but as constituting the foundation of every just government.  Had the constitution of the United States a foundation equally firm and equitable; we should not at this day witness the law of the union stained with . . .” [then the author lists several of Hamilton’s initiatives].

What I want to see is if I can determine who the author of this was.  At that time prominent public men often wrote under a pen name.  This one obviously came from a Jeffersonian, but which one?

UPDATE:  The answer is George Logan of Pennsylvania, who earns his 15 minutes of fame as the namesake of the Logan Act.


Will the justices look themselves up on Spokeo?

As always, thanks to CoOp for the opportunity to guest post.  The views expressed are my own

One of the more interesting cases slated for review by the Supreme Court next term is Spokeo v. Robins (here’s a WSJ blog post with an outline of some of the issues).  First things first: several regular and guest contributors to this blog have written a ‘friend of the court’ brief in the case.  You can find that brief here; scotusblog has the dozens of other briefs supporting one side or the other.

While I’m planning to write more about the case’s substantive legal issues (which concern Article III standing), this post will be dedicated to the small bit of silliness outlined in the title.  Namely, what will the justices’ reactions be when they look themselves up on Spokeo’s service, and find results that may strike them as a bit… revealing?

You have to assume at least a few of the thirty+ law clerks at the Supreme Court next term will test run the free “people search” tool on Spokeo.com with their own names and — why not? — the names of their bosses.  Here’s what they will find displayed:

  • the justices’ various home addresses, home prices, and even a Google Earth photo of their residence;
  • the names of, and information about, the justices’ family members;
  • truncated phone numbers from various phones purported to belong to the justices (full numbers presumably can be unlocked with a subscription);
  • and social media accounts purportedly tied to the justices or their family members.

(I decided against posting screenshots of my test searches, although such screenshots would have undoubtedly been fair use in this context). Much of this information is available for free through Spokeo’s public search tool, with additional details made available with a subscription.  Obviously, I have no idea whether the results posted are accurate.

So what?

Read More


FAN 78 (First Amendment News) Alan Garten, Trump’s Lawyer, Threatens “Multi-million dollar” Lawsuit for Attack Ads Against His Client

Alan Garten, executive vice president & general counsel of The Trump Organization.

Alan Garten, executive vice president & general counsel to The Trump Organization 

Presidential candidate Donald Trump’s lawyer, Alan G. Garten, is helping his boss retaliate against the Club for Growth’s TV ads attacking Mr. Trump’s record on taxes. According to a New York Times story, Mr. Garten “sent a two-page letter to the group’s president, David McIntosh, accusing it of trying to damage Mr. Trump’s reputation by lying about his policies. The threat of litigation comes a week after the group started a $1 million advertising campaign that paints Mr. Trump as a disingenuous politician who intends to impose a huge tax increase if elected president.”

Here are some excerpts from Mr. Garten’s September 21, 2015 letter: “Simply stated, your attack ad is not only completely disingenious, but replete with outright lies, false, defamatory and destructive statements and downright fabrications, which you fully know to be untrue, thereby exposing you and your so-called ‘club’ to liability for damages and other tortious harm. For example, while your Attack Ad blatantly misrepresents to the public that Mr. Trump ‘supports higher taxes,’ nothing could be further from the truth. To be clear, Mr. Trump’s tax plan, which is scheduled to be released later this wek, supports a lowering of taxes. . . .”

[Video of Club for Growth ad here.]

“In the interest of avoiding what will certainly be a costly litigation process, we are prepared to offer you the one-time opportunity to rectify this matter by providing us with your prompt written assusrances that (i) you have stopped running the Attack Ads; and (ii) you will not generate or disseminate any misleading or inaccurate information or make any factually baseless accusations you know to be untrue with respect to my client at any point in the future. In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused to my client’s interests as well as pursue all other remedies available to us at law or in equity. [ ¶ ] Please be guided accordingly.”

Screen Shot 2015-09-22 at 11.17.06 PM

→ David McIntosh replies: “‘Tough guy Donald Trump starts whining when his liberal record is revealed. Trump has advocated higher taxes numerous times over many years, just like he’s advocated for universal health care, the Wall Street bailout and expanded government powers to take private property. “Trump’s own statements prove that our ads are accurate. They will continue to run.'”

Mr. Garten & His Client

  • Dec. 27, 2012 letter from Mr. Garten threatening to sue online petition organizer re campaign urging Macy’s  to “dump Trump” (US News & World Report story here)

Alan Garten: “Donald Trump is no bigot, he’s no racist, yet that’s what the accusations are.  Mr. [Angelo] Carusone basically says this is not about Donald Trump, it’s about Macy’s. This is all about Donald Trump. Mr. Carusone is basically trying to suppress Donald Trump’s free speech rights. . . He’s trying to suppress free speech by targeting Mr. Trump’s business partners and pressuring them through . . . bullying and mob-like tactics.” (full audio here

  1. NY ethics board drops Trump complaint about attorney general,” Associated Press, September 1, 2015
  2. Trump delivers on promise to sue chef Jose Andres,” Politico, August 1, 2015
  3. Donald Trump still battling lawsuits from defunct Trump University,” CBS/6, July 24, 2015
  4. Donald Trump’s lawyer: NBC in ‘breach’ on Miss Universe contract, CNN, July 5, 2015
  5. Lawsuit accuses Donald Trump of deceiving students,” CBS Money Watch, October 31, 2014
  6. Trump GC Must Give Deposition In D&O Sanctions Fight,” Law360, March 19, 2014

* * * 

  See also “7 times Trump has sued (or threatened to sue) over his wealth and brand,” Yahoo Finance, July 16, 2015
 See also “The Story of Donald Trump’s lawsuit against Bill Maher Over An Orangutan Joke,” YouTube, July 7, 2014 (see here, too)


Old or Modern Whig?  

Photo-illustration by Bobby Doherty. Trump photograph by Michele Asselin/Contour by Getty Images; Wig Styling by Sharelle Roberts for Raffaele Mollica; Body-double casting by Impossible Casting.

Photo-illustration by Bobby Doherty. Trump photograph by Michele Asselin/Contour by Getty Images; Wig Styling by Sharelle Roberts for Raffaele Mollica; Body-double casting by Impossible Casting.

EFF & ACLU file Amicus Brief Supporting Net Neutrality 
The case is U.S. Telecom Association v. FCC EFF. Here are some excerpts from the EFF’s press release:

“The Electronic Frontier Foundation (EFF) is asking a federal appeals court to approve Federal Communications Commission (FCC) net neutrality rules that prevent Internet service providers from interfering with and censoring content on the Web. U.S. telecommunication providers sued the FCC in Washington D.C. federal circuit court after the FCC published the rules, called the Open Internet Order, earlier this year. Among other things, service providers and their supporters argue that the order strips telecom companies of control over which speech they transmit.”

“In an amicus brief filed in the case today, EFF and the American Civil Liberties Union (ACLU) explain that the order is an appropriately-tailored measure that protects the Internet’s open and robust  “marketplace of ideas” without placing excessive or inappropriate restrictions on telecommunications providers or regulating their speech or messages.”

Among other things, the EFF/ACLU amicus brief argues:

  1. The Internet Was Built on Principles of Neutrality
  2. The Internet Is Now the Core Platform for Free Speech and Access to Knowledge.
  3. Permitting ISPs to Act as Gatekeepers Threatens Free Expression and Innovation.
  4. The BIAS Market Is a Dysfunctional, Government Enabled Oligopoly.
  5. First Amendment Principles Weigh in Favor of the Open Internet Order.
  6. The Order Constitutionally Regulates ISPs in Their Role as Conduits for Internet Speech.
  7. The Open Internet Order Is Facially Content Neutral and Survives Intermediate Scrutiny.
  8. The Primary Guideposts for Any “Unreasonable Interference” Analysis Should Be Free Expression and Application Agnosticism.
[ht: Josh Blackman]

Read More

Greene & Kesselheim vs. Kardashian

Jeremy Greene and Aaron Kesselheim have a fascinating piece on the new challenges facing the FDA as selfie-driven marketing reaches Instagram. After promoting an anti-nausea drug (for morning sickness, not in anticipation of celebrity-phobic viewers), Kardashian had to follow up with the following “corrective advertisement:”

#CorrectiveAd I guess you saw the attention my last #morningsickness post received. The FDA has told Duchesnay, Inc., that my last post about Diclegis (doxylamine succinate and pyridoxine HCl) was incomplete because it did not include any risk information or important limitations of use for Diclegis.

As Greene and Kesselheim observe:

The rise of social media has raised a parade of new questions for the agency: How is it supposed to monitor person-to-person pharmaceutical recommendations? Can something be considered an advertisement if it’s only 140 characters long? Who is responsible for the accuracy of tweets about a drug? But this isn’t the first time evolving technology has forced the FDA to rethink its role. Before Instagram, television advertising was once new; before television, radio. Since the agency’s founding, its ability to regulate drugs has been consistently challenged by new forms of communication.

For more on the controversy, check out The Week in Health Law, where Nicolas Terry and I discuss the case with Kesselheim. And don’t worry, it’s not all about Kardashians–we also cover a new study of ACOs, proposed budget cuts for AHRQ, worry over unintended consequences of readmission penalties, and EHR gag clauses (and developer codes of conduct).


Happy Constitution Day!

Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution — of whatever race, creed or persuasion.

Chambers v. Florida, 309 U.S. 227, 241 (1940).


Gifford and Jones on Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law

My colleague Donald Gifford (whose book we featured here) and his co-author sociologist Brian Jones have an important new piece up on SSRN entitled “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law.” The piece is provocative and original: it may the first paper to use cross-state comparisons in an empirical study of the impact of race, income inequality, regional variations, and political ideologies on tort law.

Here is the abstract:

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.


FAN 77 (First Amendment News) NPR & Other Press Groups Oppose Pentagon’s New “Law of War” Manual

Screen Shot 2015-09-14 at 11.55.14 PMThe report is titled Department of Defense War Manual, which was relased last June. The 1,176 page, 297 footnoted document is dense and stocked full of military jargon. But Michael Oreskes, the senior vice president for news and editorial director at National Public Radio, has plowed through it and took strong exception to some of its claims. In an August 19, 2015 letter to Secretary of Defense Ashton B. Carter, Mr. Oreskes began by stating: “A country that protects its journalists, protects the truth. The Department of Defense’s recently issued Law of War Manual fails to do that.” Among other things, Mr. Oreskes complained that:

  • “The document creates dangerous ambiguity around the collection of information for use in reporting.”
  • “The Manual does not explain the distinction between newsgathering and spying except to note vaguely that journalists should “act openlyand with the permission of relevant authorities” and that they should present “identification documents” to prove they are journalists.”
  • “The Manual, as it is currently drafted, might be read to empower governments to judge for themselves whether a U.S. journalist’s work is spying, and to punish the journalist accordingly.”

In a story by Benjamin Mullin, writing in Poynter, it was also repaired that “several other news organizations, including The New York Times, The Associated Press and ABC News, expressed disapproval of certain things in the Manual. “Writing for The New York Times, editorial board member Ernesto Londono said a possible Pentagon decision to revise the manual “can’t happen quickly enough.” In that regard, Mr. Londo noted:

Allowing this document to stand as guidance for commanders, government lawyers and officials of other nations would do severe damage to press freedoms. Authoritarian leaders around the world could point to it to show that their despotic treatment of journalists — including Americans — is broadly in line with the standards set by the United States government. . . .

Even more disturbing is the document’s broad assertion that journalists’ work may need to be censored lest it reveal sensitive information to the enemy. This unqualified statement seems to contravene American constitutional and case law, and offers other countries that routinely censor the press a handy reference point. . . . 

A spokesman for the National Security Council declined to say whether White House officials contributed to or signed off on the manual. Astonishingly, the official pointed to a line in the preface, which says it does not necessarily reflect the views of the “U.S. government as a whole.”

See also “U.S. Department of Defense manual allows some journalists to be held as ‘belligerents’,” Associated Press, August 25, 2o15 (“‘I’m troubled by the label ‘unprivileged belligerents,’ which seems particularly hostile,’ said Kathleen Carroll, AP’s executive editor. ‘It sounds much too easy to slap that label on a journalist if you don’t like their work, a convenient tool for those who want to fight wars without any outside scrutiny.'”)

[hat tip: Ashley Messenger]

FCC Defends Implementation of Net Neutrality Rules

76582a77da3d81000ca6d19ea20e5924This from Jon Brodkin at ArsTechnica: “The Federal Communications Commission yesterday said it did not violate the First Amendment rights of Internet service providers when it voted to implement net neutrality rules.”

“Broadband providers who sued to overturn the rules claim their constitutional rights are being violated, but the FCC disputed that and other arguments in a filing in the US Court of Appeals for the District of Columbia Circuit. . . .”

“‘Nobody understands broadband providers to be sending a message or endorsing speech when transmitting the Internet content that a user has requested,’ the FCC wrote. ‘When a user directs her browser to the New York Times or Wall Street Journal editorial page, she has no reason to think that the views expressed there are those of her broadband provider.'”

“First Amendment objections have been briefly raised by AT&T, CenturyLink, CTIA-The Wireless Association, and the United States Telecom Association. The argument that net neutrality rules violate broadband providers’ First Amendment rights was also made by Verizon back in 2012.”

“In the current case, the First Amendment objections have been made most forcefully by Alamo Broadband, a small provider in Texas. Alamo argued that ISPs ‘exercise the same editorial discretion as cable television operators in deciding which speech to transmit.'”

See here re FCC’s Net Neutrality order.

Jonathan Keane, “Net neutrality doesn’t violate ISPs’ first amendment rights says FCC,” Digital Trends, Sept. 15, 2015

Arkansas AG Calls on Court to Overrule Abood Read More


Slavery and the Bill of Rights

95px-CharlesCPinckneyThere were many reasons given by the Framers for the omission of a bill of rights from the original Constitution, but Charles Pickney of South Carolina gave one to his State House of Representatives that was jarring (if honest):

“Another reason weighed particularly, with the members from this state, against the insertion of a bill of rights. Such bills generally begin with declaring that all men are by nature born free. Now, we should make that declaration with a very bad grace, when a large part of our property consists in men who are actually born slaves.”


Declarations vs. Bills of Rights

There are many famous Declarations of Rights.  The Universal Declaration of Human Rights of 1948, the French Declaration of the Rights of Man of 1789, the Virginia Declaration of Rights of 1776, and the English Declaration of Rights in 1689.  Other canonical texts, most notably the first set of constitutional amendments, are described as bills of rights.  What is the difference?

In the modern era the answer seems to be that declarations of rights are aspirational (at least in significant part) while bills of rights are concrete.  In 1991, President Bush stated during the bicentennial of the Bill of Rights that the Framers were practical men who “gave us not a declaration but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government.” And Mary Ann Glendon’s book on the drafting of the Universal Declaration explains that the authors of that document tended to refer to their work as an “international bill of rights” until they started adding aspirational language, at which point they began calling the draft a “declaration.”

Now this was not the basis of the original distinction between a Declaration and a Bill of Rights.  In 1689, the English Declaration was given that title because that text was the product of a illegal Parliament (sitting without a King). The Bill of Rights of that same year was a duly enacted statute (after William was crowned).

By the Founding-era, though, this distinction was irrelevant.  People used the two terms interchangeably, and some states called its list a “declaration of rights” while some said “bill of rights” even though they looked the same.  This rhetoric continued into the late 19th century, but by 1900 “bill of rights” became the favored term.

Why was that?  I’m not sure, but the answer may be that the Declaration of Independence became THE Declaration for Americans such that calling anything else a Declaration of Rights would have seemed strange.  The Declaration of Independence, of course, was aspirational, which may have led people to view other declarations in that way.

Anyway, food for thought.