Monthly Archive: June 2006


Mastering The Art Of Redaction. Or Not.

Adam Liptak at the New York Times reports that:

About eight pages of a 51-page government brief filed in federal court in San Francisco on Wednesday were electronically blacked out to protect what prosecutors said was sensitive material concerning a grand jury’s investigation into steroid use in baseball. But the secret passages can be viewed by simply pasting the document into a word processing program.

Forget the substance of this case. And I assume that the material was supposed to be blacked out. (The general counsel for Hearst newspapers, an opposing party, elegantly suggested this might have been an intentional leak, saying “it is our hope that the government did not leak the document”. Nice!) I can’t help but wonder who screwed up (lawyer, paralegal, or secretary) and whether any heads will roll.

Speaking as a former legal assistant at Heller, Ehrman in San Francisco, and junior associate at Debevoise & Plimpton in New York (roughly equivalent positions, given that SF paralegals routinely conducted cite-checks, a task left to junior associates in NY), I can only imagine the horror transpiring at DOJ. The low level employees responsible for these redactions no doubt live in daily dread of a – shall we say it? – fuck up of this magnitude. The good news is that this incident will be a helpful training vehicle for law firms across the country. The bad news is that the median blood pressure of paralegals and junior associates just went up a notch.

Meanwhile, at this very moment, somebody is holding his or her head very low. He or she may already be toting a pink slip. Given our small world, I’ll bet that there’s no more than one degree of separation between Co-Op readers and this sorry soul. If you know him or her, tell him my heart goes out. Thank the lord it wasn’t me.


Price Discrimination in the World of Medicine

The WSL had an article today about drug pricing and the power that big purchasers have with the drug manufacturers. The article got me thinking: Am I the only one who cares that small retail pharmacies (to the extent that they still exist) get the short end of the stick with drug manufacturers (or have historically, anyway)?

A nice example, albeit dated, deals with birth control pills. Most colleges sell to their students birth control pills at somewhere around $10 per package. The colleges get their birth control pills for perhaps . . . $5 per package. The retail pharmacy on Main Street, however, gets the pills for $14 per package, and it sells the package for $19 to the person with insurance and $38 per package to the person without insurance. How is that fair? There is no way the retail pharmacy can ever compete with the University pharmacy (or the Wal-Mart pharmacy, that likely gets a similarly significant discount).

The birth control pill manufacturers typically evade antitrust scrutiny b/c they maintain that they are giving the university a “volume discount.” Last I checked, however, most antitrust lawyers agreed that the true volume discount in situations like that was nowhere near the discounts universities, Wal-Marts, etc. were actually being given. The discounts given were far larger than the discounts that could be justified on a basis of costs saved due to volume purchases. Yet nobody squawks.

On a related note, why is it that I have to pay $75 for my doctor’s appointment if I miss it and don’t call to cancel, but, if I had actually gone to the appointment, my insurer would have only been billed $48 or some such? I realize that my insurer has negotiated better prices with my doctor than have I, but why is that not price discrimination in violation of the Robinson-Patman Act? Where are our antitrust lawyers? I cannot believe that the volume discount math really works out in this case – my gut instinct is that the doctors are just caving to the insurers and sticking it to the poor individuals when insurance does not apply.

In my pursuit to be like Harvey Goldschmid, I have long wanted to teach antitrust, but Richmond could not really afford to have me give up a corporate class to teach antitrust. Hopefully, if I were teaching antitrust, I could answer my doctor’s appointment question myself.


New Postal Wonders


As many of you know, I routinely look to the U.S. Post Office (as well as church elections) to see exactly what’s happening in America. Today I noticed two interesting commemoratives: “Wonders of America: Land of Superlatives” and “Amber Alert”. The Wonders series features 40 stamps, each boasting of a “highest”, “hottest”, “windiest” or otherwise super-est American landmark or feature. (Not surprisingly, the largest delta is the Mississippi River Delta. But did you know the largest flower is the American lotus? Or that the windiest place is Mount Washington? And did our representatives lobby to have features of their own states included? Why was there no “deepest mine”? Or “furriest peach”?)

The great thing about this series is that, with its subtitle “Land of Superlatives”, it seems to be tongue-in-cheek or at least a bit ironic. This is indeed the land of superlatives and hyperbolia. And so in this vein it seems appropriate to celebrate? commemorate? acknowledge? the Amber Alert, one in a series of initiatives produced as a result of moral panic about child abduction. The media has been relentless in flogging the issue of child abduction and murder, generating near hysterical fear among suburban parents. In reality, of course, there are probably fewer than 400 serious abductions of children by strangers each year. (There are far more child kidnappings in total, but these are almost all by non-custodial parents. Amber Alerts can address these crimes, but the creation of Amber Alerts was hardly inspired by concern over custodial disputes.)

As Eric and Dan have discussed, our media live and breathe overheated rhetoric. Is that really something to commemorate and celebrate? The USPS apparently thinks so, but whoever created that Wonders of America: Land of Superlatives series probably knows better.


The Real Bellweather Elections?


Bob Dylan was right. You don’t need a weatherman to know which way the wind blows. The best way to learn that is by following major church elections. Before I moved to Birmingham, I would never have noticed the incredibly important votes being held at the annual conventions of Episcopalians, Presbyterians, and Southern Baptists. If you want to get a sense of the American mainstream, look no further than these meetings.

The Episcopalians, desperately trying to maintain a balance between their American progressive membership and the broader Anglican church, rejected a ban on gay bishops, but then adopted a non-binding resolution urging Episcopal leaders “to exercise restraint by not consenting to the consecration of any (bishop) candidate whose manner of life presents a challenge to the wider church and will lead to further strains on communion.” And here in Birmingham, Alabama, of all places, Presyterians (by which I mean Presbyterian Church USA, the largest group of American Presbyterians) gave local church groups leeway to decide whether to ordain gay clergy, or allow gay members to become deacons and elders. While hardly an endorsement of gay clergy, the vote – by a relatively narrow 57% margin – was a significant step for the recognition of gay people as full members of the church.

Meanwhile, all three groups elected new leaders. The Episcopalians elected their first woman leader, a Nevada bishop named Katharine Jefferts Schori. (Schori voted in support of naming the first openly gay Episcopal bishop back in 2003.) Many Anglicans continue to believe that women should not be priests so, notwithstanding the generally progressive approach of American Episcopalians, this remains a “fashion forward” move. The Presbyterians elected their own new female leader; Rev. Joan Gray was elected moderator for the next two years. And most interestingly of all, the Southern Baptist Convention elected Frank Page their new president. Page is no liberal – for most northeasterners he’d be viewed as extremely conservative – but he is what I’d call a “lifestyle Baptist.” He seems willing to soften SBC on some of the edges in order to compete with the mega-churches (known for cutting parishoners a break when church demands conflict with lifestyle) and the likes of Rick Warren (author of “A Purpose Driven Life.”) As Page put it, “I believe in the word of God. I’m just not mad about it.” Page may be plenty conservative, but for a convention that has often cottoned to the radical right (former SBC prez Jerry Vines once said that Mohammed was a “demon-possessed pedophile” – a comment which inspired my article, Terrorism, Panic and Pedophilia), the election of Page suggests that some vaguely moderate winds might be blowing over at the SBC.


Paging Eugene Volokh: The First Amendment in Kentucky

Have you been following recent events out of Kentucky? As first reported by the BlueGrassReport, and later explored by (among others) TPMuckraker, Gov. Ernie Fletcher directed his IT folks to block state employees from reading blogs late in the day yesterday. Although early reports connected the ban to the BlueGrassReport’s focus on Fletcher’s legal troubles, the governor’s staff has made its anti-blog crusade more ecumenical over the course of the day. (Suggesting, perhaps, a email from the lawyers last night, reading “Ban more sites.”) But other political and media sites remain unfiltered.

As Mark Routledge, Deputy Commissioner of the state’s Commonwealth Office of Technology explained to TPM’s Paul Kiel, newspapers and other MSM sites have “some value, some relevance to somebody’s job,” while blogs are extensions of “interest groups.”

First, it has got to be said that this is simply a bizarre and self-defeating action by the governor’s office. Censorship at the state level is seldom particularly useful, especially in an era where information is cheap and readily available. And this is just the kind of story to get national – followed and augmented by local – press.

But can the state government constitutionally ban blogs? Rep. Ben Chandler (D, KY) thinks that the ban violates the “equal protection clause of the Constitution,” and “flies in the face of a fundamental right of free speech.”

I don’t get the EP argument, at all. The action here is in the 1A claim, but is made more difficult because the law governing the state’s rights to act as an employer is complex and mutable. Unfortunately, I’ve previously vowed not to blog about the First Amendment “unless Eugene Volokh is on vacation on a desert island without WiFi access.” Those are strong words, and EV appears to be in country. So I guess I’ve got to ask our commentators. Under what argument or sets of arguments can the government of Kentucky decide to install internet filtering software that bans state employees from surfing, while at work, blog sites but not “ordinary” media outlets. Assume that it is possible to distinguish between a blog and a newspaper site (perhaps the filter recognizes snark and parasitism). Assume also that the policy does indeed ban all blogs, not simply ones reporting on the governor’s indictment.


Should Professors Join the “Debate”?

smith-mark.jpgIn a very interesting post earlier today here at Concurring Opinions, Eric Muller wonders why law professors do not join in the debate against right-wing commentators who argue that the federal judiciary has been commandeered by the “loony left”: “We do not respond to the Mark Smiths and Andrew Napolitanos and William Pendleys and Robert Dierkers with popular-press books, or on the airwaves. Why not?”

I think that the problem stems from the sad state of modern media. There’s no shortage of news shows that will host the Malkins, the Coulters, and the like. And there seems to be an increase in commentators who love to spew their often nasty, rude, and uninformed opinions with remarkable arrogance. With these shrill voices constantly being given air time, constantly being published by major commercial publishing houses, it’s hard to have the same kind of thoughtful discussions in the popular media as professors have in the academy. Few professors want to go on the TV news or radio anymore just to get into shouting matches and trading soundbites. Few professors want to publish books by commercial presses if it means writing in a Coulter-like style.

The problem, in short, is that there isn’t really much of a discussion — it’s just a lot of rhetoric. While joining in this so called “debate” is important to produce counter sound bites, I don’t think that many professors are interested in something that is best done by any hothead in a suit. In other words, “liberals” can just find their screamers, bullies, and sophists too, but it takes a special breed to do this, and I’m not sure that professors, who are trained to be respectful of other’s opinions, nuanced, and interested in a real debate, find the current media formats for “debate” to make such discourse possible.

My attitude is very similar to Jon Stewart of the Daily Show when he appeared on CNN Crossfire and urged them to simply stop doing the show. The problem wasn’t with Tucker Carlson; it was the show itself, its format, and the kind of discourse it produced.

I’m not arguing that there shouldn’t be folks willing to present the alternative soundbites to the conservative soundbite makers, but I wonder to what extent that the academy can do this. Many professors are not good shouters and are not good at making quick reductive one-liners or at producing books with empty rhetoric and little factual accuracy or balance. Professors want to have a different kind of debate than what mainstream media often allows.


Where Is The Academic Truth Squad?

Have you heard of Mark W. Smith? He is a ’95 graduate of NYU Law School and a partner at the New York office of Kasowitz, Benson, Torres, and Friedman. More to the point, however, he is an up-and-coming Fox-News-style “legal affairs commentator.” He is described as “one of the fastest-rising legal stars in the country” by no less a legal luminary than … Ann Coulter. Get the picture?

I just heard Smith on our local talk radio station flogging his latest book, “Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts,” about which its publisher (Random House) says this:

America’s courts, legal culture, and law schools remain solidly in the Left’s camp. Decades of liberal legal precedents fill volumes of law tomes. Absent a sweeping change—precisely what bestselling author Mark W. Smith calls for in Disrobed—liberals will ruthlessly exploit their dominant position in the law to continue advancing their radical agenda, as they have for the past seventy years.

So steamed was I by Smith’s harping on the theme that the federal courts are in the grips of “loony leftists” (like, you know, David Souter and Anthony Kennedy) that I called in to the program. Smith agreed to talk with me on the air, but he has studied the Fox News Playbook, so after I said “hi,” Smith launched into a two-minute filibuster about how, as a law professor, I am so mired in the liberal atmosphere of the American legal academy that I can’t possibly perceive the truth about how dominated the entire legal system is by the legacy of “fifty years” (!) of radical leftist control of the courts. The show’s hosts had to interrupt him to create space for me to ask my question, which was this:

Richard Nixon was elected President in 1968. In the 38 years since then, Republican presidents (including presidents elected from right of the center of their party) have appointed federal judges for 26 of them. Democrat presidents have done the appointing for just 12 years, and those two presidents, Carter and Clinton, were candidates from the center or right of their parties who defeated candidates to their left (Ted Kennedy in 1980; Tom Harkin and Paul Tsongas in 1992) in the primaries. So how is it possible to maintain that the federal judiciary is currently staffed by judges of the “loony left,” or for that matter, of any kind of left, loony or otherwise?

Smith’s response was, predictably, a filibuster about how the supposedly conservative Rehnquist Court was really a court of the radical left, endorsing the killing of unborn children while forbidding the killing of baby spotted owls, encouraging the seizure of private property, and so on.

Smith is not alone in this venture. The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. I can’t imagine that you could fill a telephone booth with legal academics of any political stripe who would defend the claim that the current personnel of the federal courts is shot through with “loony lefties,” or lefties of any stripe.

These sorts of claims — because of their prevalence, even their ubiquity — play a crucial role in American political discourse about the judiciary. We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public. We do not respond to the Mark Smiths and Andrew Napolitanos and William Pendleys and Robert Dierkers with popular-press books, or on the airwaves.

Why not?


Parole After Samson

Yesterday, in Samson v. California, the Supreme Court held that the Fourth Amendment does not prohibit police officers from conducting suspicionless searches of parolees. Justice Thomas argued that prisoners are subject to suspicionless searches. And because, in his view, parole is essentially a prison sentence that continues on the outside, the state retains the right to continue those searches during parole. Thomas made a clear distinction between those on probation (who have greater privacy rights) and those on parole. Stevens, writing for Breyer and Souter, argued that this decision constitutes an expansion of police power because it allows, for the first time, suspicionless searches in the absence of governmental “special needs.”

The dissent correctly views the decision as a doctrinal shift, but it is only one more step in a lonstanding move towards a “common sense” (i.e., defendant unfriendly) approach to criminal justice. Frankly, the Fourth Amendment horse left the barn when Humphrey’s campaign against Dick Nixon fell short.

The more interesting questions for me involve the long-term implications of Samson. The dissent states that only one or two states allow searches of the type experienced by Samson. I have to think that most states wil now join the bandwagon. DA’s will rarely lose a Fourth Amendment suppression motion submitted by a parolee. Other than states with a special interest in parolee privacy – and I have yet to meet that state – I would expect most jurisdictions to encourage officers to conduct these suspicionless searches. (Will an officer have to know she’s searching a parolee? Or will she get the free-pass search so long as she has probable cause to believe she’s about to search a parolee?)

Samson also creates new incentives for DA’s at sentencing. There is now a clear distinction between probation and parole: only parolees are subject to suspicionless searches. A savvy DA will ask for sentences that involve long paroles rather than long probations. (Thus, for example, a defendant who had served nine months awaiting trial might get an indeterminate sentence like “9 months to 5 years”, rather than simply “time served plus five years probation.” On the flip side, perhaps this enhanced supervision will make parole boards (or judges) a hair more comfortable placing inmates back on the street earlier in their sentence. (I’m not holding my breath.)

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Benjamin Nelson and “Good Faith”

Benjamin Nelson (who appears to be a lawyer *and* philosopher) from Law & Society Blog fortuitously took an interest in my “not in good faith” theory and my “good faith” debate with others. (**In a great addition to Mr. Nelson’s comments, law professor Steven L. Winter from Wayne State sent Mr. Nelson an e-mail, with permission to post the e-mail on See here.) Before I say anything about “not in good faith,” let me thank Mr. Nelson and everyone else who has commented on my posts here, on truthonthemarket, and on theconglomerateblog. Commenting on posts (posting in general) takes time, and I appreciate the generosity folks have shown me in commenting. Those comments and criticisms allow me to look for new ways to bolster my arguments, modify my arguments, or consider disgarding them.

Luckily, Mr. Nelson was able to support my “not in good faith argument.” He does it, however, with a super diagram that is different from the one that I would have drawn. Upon reading his post and seeing his incredible color diagram, I undertook to draft a responsive diagram with my new “Visio” software. Easier said than done. When I finally completed my pathetic diagram (after days of effort, while on vacation, nonetheless), I could not upload the diagram as a pdf. So I am trying now to upload it below as a text document. Hopefully this will work.

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