Monthly Archive: November 2007


The Georgetown Law Journal, Issue 96:1 (October 2007)


The Georgetown Law Journal, Issue 96:1 (October 2007)


School Naming Rights and the First Amendment’s Perfect Storm

Joseph Blocher

The One Court That Congress Cannot Take Away: Singularity, Supremacy, and Article III

Laurence Claus

Privacy’s Other Path: Recovering the Law of Confidentiality

Neil M. Richards & Daniel J. Solove

Witchcraft and Statecraft: Liberal Democracy in Africa

Nelson Tebbe


The Ties That Bind: The Constitution, Structural Restraints, and Government Action Overseas

Jessica Powley Hayden

A More Reliable Right To Present a Defense: The Compulsory Process Clause After Crawford v. Washington

Martin A. Hewett


What To Do With Left-Over Class Action Money

Adam Liptak has a nice piece in today’s New York Times about the growth of left-over money from class action suits. Judges are finding that after a case is complete there is often a large pool of money that is unclaimed, and the judge must then decide what to do with the money. In one case involving models the judge designated an eating disorder and a drug abuse charity as recipients of the money. The problem is that the Second Circuit and some academics think the plan to use cy pres as a way to dispose of the money has flaws. Judges are being lobbied for money which raises corruption concerns according to Professor Issacharoff of NYU. As Dean Levi of Duke notes, this role “is not a true judicial function and can lead to abuses,” and requests to give an instiution money as a cy pres award put judges in “uncomfortable” positions. The awards can be large. For example, according to the article, George Washington University Law School and The Illinois Institute of Technology have each received $5 million from law suit settlements. Whether judges are best-placed to dole out the money might merit some research and writing. In addition, some argue that the money must go to plaintiffs. Yet, if only a handful of plaintiffs end up filing the paperwork and receive a windfall the system is apparently flawed again. Nonetheless perhaps allowing such windfalls will provide incentives to others to claim their otherwise small payments. It seems that the system fails to provide a good way to get the money to the plaintiffs which alone suggests that judge should not be in this position in the first place. That alone might be worth some writing and thought.


The Death of a Legal Writing Memo

I imagine that this video will speak to many first-year law students, currently working to finish their legal writing memos. Having once barbecued college rejection letters, I can appreciate the value of a little paper-directed violence.

One More Interest Against Universal Coverage

Many Beltway insiders believe fundamental reform of the health care system will happen after the 2008 elections. Just think of all the “there but for the grace of God go I” stories like Sergio Olaya’s:

Mr. Olaya, 21, is struggling with $255,000 of medical bills incurred by his mother before she died in April from an aggressive form of brain cancer. . . .To pay the bills, he is selling the Maryland home where he lived with [her].

His mother . . . had health insurance in most of her jobs over the last 20 years. . . . But she had been unemployed and uninsured since December. [She] had applied for a new federal job. When the job offer finally came in March, her son said, she had just suffered a stroke and could not get out of bed to answer the telephone. In another month or two, she might have had health coverage through her new job.

So Olaya loses big time due to our crazy quilt coverage system.

But I fully expect opponents of reform to discount every story like this as unusual, bizarre, a mere anecdote that isn’t a sound basis for policy. Their sage perspective will likely be amplified by powerful interests who now profit from medical debt. Businessweek has been covering the medical debt industry in depth, and this week’s installment newly demonstrates how eager financial interests are to advance “the transformation of medical bills into consumer debt:”

The pool of self-pay patients is mammoth: Some are among the nation’s 47 million uninsured; others are among the 16 million whose plans offer scant coverage or have deductibles as high as $10,000. . . . .General Electric’s powerful financial arm markets its CareCredit card to dentists, plastic surgeons, and some hospitals, with loan volume expected to hit $5 billion this year, up 40% from 2006. . . . “Everybody is saying [medical finance] is the next horizon—whether it is lines of credit or credit cards,” says June St. John, a senior vice-president at Wachovia. . . .

Before anyone discounts the disasters of people like Mr. Olaya as “mere anecdotes,” they might wish to consider whether a health care system that piles massive debt onto the tragic death of a family member really reflects American values. Regardless of anecdotes’ attention-grabbing power, it’s likely that whatever impact this one makes will be a drop in the bucket compared to the special interest money thrown off by the current system’s inequities.

Below the fold: a hidden TILA issue?:

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The Yale Law Journal, Volume 117, Issue 1 (October 2007)


The Yale Law Journal, Volume 117, Issue 1 (October 2007)


Contracting for Cooperation in Recovery

Gregory Klass


“I Did Not Come Here To Defend Myself”: Responding to War on Terror Detainees’ Attempts To Dismiss Counsel and Boycott the Trial

Matthew Bloom

Realizing the Potential of the Joint Harassment/Retaliation Claim

Eisha Jain


Cleaning House: Congressional Commissioners for Standards


Transition From Prisoner to Exonerated: Times Tracks Difficulties in New Life

The New York Times has interviewed 115 people whose convictions have been overturned based on DNA evidence. Apparently support systems for these people are often thin and in some cases the resources for those who did commit crimes are better than for those who did not: “despite being imprisoned for an average of 12 years, they typically left prison with less help — prerelease counseling, job training, substance-abuse treatment, housing assistance and other services — than some states offer to paroled prisoners.” The article details the compensation claims, the employment status, and the re-incarceration rates. I do not research in this area of the law but if anyone has studied this issue please send along a cite. The article highlights that once someone has the conviction some states are slow to remove the conviction after the error is found. In addition, earlier facts such as a college degree or a good job history are overshadowed. That point raises the question of when society truly forgives or forgets what came before. In these cases it seems that the vague knowledge that someone was convicted even though now found innocent is enough to hinder if not thwart efforts to rejoin society. Although the article focuses on what sort of compensation if any these people can receive and that issue is important, the Les Miserables aspect of being hounded by one’s past even if that reputation is undeserved poses problems. Dan’s work on online reputation and his earlier work about digital persons intersect here. The continual access to this information interferes if not prevents someone from re-establishing their identity, Whether society wants to provide the space to allow such acts may be what the lack of support for the exonerated points to.

The Times also has a multi-media, interactive feature that allows one to hear many of the voices and stories of the exonerated.


Ah the Good Life: Firms and Keeping Associates Happy

massage2.JPGIt seems that associates are not so grateful to be associates. At least the ones at the corporate or mega firms paying $160,000 plus a year are not so happy. But fear not, as the New York Times reports, law firms serve not only clients but their employees as well. So some firms have “happiness committees” to pick up these abused workers with candied apples and milkshakes when they least expect it. Others allow the use of concierge services to “pick up theater and sports tickets, the dry cleaning, take a car to the repair shop or even choose a Halloween costume.” All of these efforts are aimed at winning the talent war and providing a balanced life. A balanced life? The story reminds me of an on campus interviewed a friend had.

A partner sat across from a law student and told the tale. The firm had suspended the use of messengers to pick up dry cleaning. An associate came in his office and was furious. How dare the firm suspend this service? He had no wife to take care of these details! He worked hard. The partner beamed as he told his quick response: no committee meeting needed; policy revoked; messengers for everyone.

The friend smiled and appreciated the partner’s perspective: “We love and support an associate who gives us her life,” while thinking “Wow, you need a messenger to do your own errands? What kind of job is this?”

Of course megafirms lose talent all the time. And yes, the job is difficult such that high burnout rates are common. But the firms that offer training and a real shot at having a life might keep talent longer. Less pay might even be possible if a firm really cared about giving an associate a life. With the focus on profits per partner and other useless AmLaw criteria that concern will likely be given lip-service only. In addition, the rising cost of law school means that associates will likely want the high pay. Whether the law firm recipe for success means happiness for the young attorney is up for grabs. Still given the changes in training programs (albeit based on client pressures) and the need for happiness committees, maybe it is time to rethink what being an attorney means. One way to start the reflection is to remember there are many who struggle to have jobs and many who work just as hard if not more so to serve their deserving, non-corporate clients. Talent exists in these contexts as well but they battle in wars outside the zone of why didn’t I receive the in-house massage?

Conditions for the Digital Library of Alexandria

librarywall.jpgI have been in the middle of a major rethink of search engines’ efforts to digitize books. As it started I enthusiastically celebrated their potential to tame information overload. But major research librarians are now questioning search engines’ practices here:

Several major research libraries have rebuffed offers from Google and Microsoft to scan their books into computer databases, saying they are put off by restrictions these companies want to place on the new digital collections. The research libraries, including a large consortium in the Boston area, are instead signing on with the Open Content Alliance [OCA], a nonprofit effort aimed at making their materials broadly available.

As the article notes, “many in the academic and nonprofit world are intent on pursuing a vision of the Web as a global repository of knowledge that is free of business interests or restrictions.”

As noble as I think this project is, I doubt it can ultimately compete with the monetary brawn of a Google. And why should delicate old books get scanned 3 or 4 times by duplicative efforts of Google, Microsoft, the OCA, and who knows what other private competitor? I also worry that a fragmented archiving system might create a library of Babel. So what is to be done?

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Gallacher on Cite Neutrality

The law should be freely accessible to all, but in many ways it is not. Ian Gallacher’s Cite Unseen is a brilliant piece that works to solve this problem on two levels: 1) it offers keen insights about the legal profession, and 2) exposes an easily avoidable injustice perpetuated by the legal system’s inertia and neglect. It turns out that 1) explains a lot about 2), as I’ll try to show below.

1) I believe Richard Posner has called the Bluebook a “hypertrophy of ritual”–an elaborate manual of propitiation as involved (and useless) as the pyramid tomb of a Pharaoh. Given the near-universal availability of hyperlinking and searchable texts, why does anyone still bother with figuring out whether a committee report needs to be in small caps or italics? Gallacher suggests that the answer may by psychological:

Law school is place of almost existential doubt, a world in which the Socratic teaching method replaces knowledge with questions and understanding with incomprehension. For many law students, The Bluebook is a binary state refuge in the dismal swamp of hypothetical ambiguity that can be law school classes, replacing . . . blurred doctrine with a sharp focus, and principles with rules.

An almost Linnaean taxonomy (reflecting Langdell’s geological approach to precedents) vests law with the trappings of science. Just as a posh Etonian can spot a Cockney pretender on the basis of any one of thousands of well-trained social gestures, the elect can instantly identify the work of an outsider who writes “F. 3d” instead of “F.3d”.

Many of us are annoyed by this aesthetic tic masquerading as scientific precision. But where’s the injustice?

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