Monthly Archive: October 2011


The Law and Economics of Tort Accidents, Illustrated

Via Andrew Sullivan comes this nice figure illustrating the effect of a car driver’s care level on pedestrians.  It might have come directly from the chapter on the economics of tort law in Mitch Polinsky’s famous  An Introduction to Law and Economics.  The chart’s authorpresumably unlike most mainstream law and economists, argues that local governments ought to be permitted more freedom to regulate driver speed (as opposed to letting the level vary ex post through a liability regime.)  I think it might be a better example of the importance of regulations requiring sidewalks.




(Re)Introducing Guest Blogger Jeffrey Kahn

I am delighted to welcome back Professor Jeffrey Kahn, who will be guest blogging with us this month.  During his last visit, Professor Kahn provided serious insight into national security concerns, and I’m excited to learn more about what he is up to.  Professor Kahn just received tenure (congratulations, well deserved!) and a promotion to Associate Professor of Law at the SMU Dedman School of Law where he is also a Colin Powell Fellow at the John Goodwin Tower Center for Political Studies.  He teaches and writes on American constitutional law, Russian law, human rights, and counterterrorism.  In 2010, he received SMU’s Outstanding Faculty Award, a university-wide award given each year to a junior, tenure-track faculty member for excellence in teaching, curricular development, and scholarship. In 2011, he received the Law School’s Excellence in Teaching Award.  He is also a member of the founding Advisory Board for the SMU Human Rights Education Program.

Prior to academia, Professor Kahn clerked in the Southern District of New York and then served as a trial attorney in the Department of Justice in Washington D.C.  His first book, Federalism, Democratization, and the Rule of Law in Russia, was published by Oxford University Press.  William Butler, reviewing the book for the Michigan Law Review book issue (100 Mich. L. Rev. 1444-52 (2002)) wrote: “… I have not seen a better account, or a more perceptive one, in any language. … Kahn’s study is the best and the most thoughtful account available of the early experience.”  His second book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, will be published next year by the University of Michigan Press.

His recent scholarship includes:

International Travel and the U.S. Constitution, 56 UCLA Law Review 271-350 (2008).

Zoya’s Standing Problem, or, When Should the Constitution Follow the Flag? 108 Michigan Law Review 673-725 (2010).

No-Limit Texas Hold’em, or, The Voir Dire in Dallas County, 13 Green Bag 2d 383-97 (2010).

The Extraordinary Mrs. Shipley: How the United States Controlled International Travel before the Age of Terrorism, 43 Connecticut Law Review 819-888 (2011).

The Case of Colonel Abel, 5 Journal of National Security Law & Policy 263-301 (2011).

The Rule-of-Law Factor, in Institutions, Ideas and Leadership in Russian Politics 159-83 (J. Newton & Wm. Tompson eds., Palgrave Macmillan, 2010).

Adversarial Principles and the Case File in Russian Criminal Procedure, in Russia and the Council of Europe: Ten Years After 107-33 (K. Malfliet & S. Parmentier eds., Palgrave Macmillan, 2010).

Vladimir Putin & the Rule of Law in Russia, 36 Georgia Journal of International & Comparative Law 511-58 (2008) (quoted by name in a New York Times editorial, Russia’s Dictatorship of Law, Nov. 21, 2010).


Extralegal Detention of Chen Guangcheng

For my final post as a guest blogger for October, I wanted to draw people’s attention to a hearing that the Congressional-Executive Commission on China is holding in DC tomorrow titled “Examination into the Abuse and Extralegal Detention of Legal Advocate Chen Guangcheng and His Family.” As described by the Commission, “Chen is a self-trained legal advocate who has represented farmers, the disabled, and other groups. He is perhaps best known for the attention he drew to population planning abuses, particularly forced abortions and forced sterilizations, in Linyi city, Shandong province, in 2005. In deeply flawed legal proceedings, authorities sentenced him in 2006 to four years and three months in prison for, among other things, ‘organizing a group of people to disturb traffic order.’ While imprisoned Chen was reportedly beaten by fellow inmates and denied medical treatment. Following his release in September 2010, Chen, his wife Yuan Weijing, and their six-year-old daughter have faced stifling conditions of home confinement and constant surveillance.” I discussed Chen’s case at an earlier Commission roundtable on the challenges facing human rights defenders and lawyers in China.

Chen has been in the news as people from around China have attempted, unsuccessfully, to visit him at his home. The PRC Government’s concern that Chen is receiving increasing attention is reflected in the decision to ban keywords related to his name on micro-blog sites, as reported here by China Digital Times. Although Internet censorship certainly is not new to China, government officials have recently emphasized the need to regulate micro-blogs like Sina Weibo, as reported by the Wall Street Journal.

While the extra-legal detention of Chen carries on, debate also continues regarding pending reforms to the PRC Criminal Procedure Law, which are expected to pass into law next spring. The National People’s Congress received approximately 70,000 comments on the draft during a one-month comment period. Domestic and foreign commentators have particularly focused on provisions regarding residential surveillance (i.e., the ability for police to restrict people to a location, not necessarily people’s own residences, while they are being investigated), as further explained by Prof. Donald C. Clarke of George Washington Law in his blog here. Chen has completed his prison sentence and, at least based on public reports, he is not being held as part of an investigation for additional crimes. The current restrictions on the liberty of Chen and his family unfortunately highlight the limits of law as a constraint on government action in China today.


In Praise of Cannibalism

I just finished Walter Issacson’s biography of Steve Jobs.  It’s not a great book and confirms that Jobs was bizarre, but I did find one aspect of his career telling for the debate about information regulation.

Issacson says that one of Jobs’ rules was not to fear cannibalizing your products.  Apple followed this principle many times (the Mac hurt the Apple II, the iPhone took sales away from the iPod, and the iPad did the same to the iPhone).  This approach is unusual.  Most firms that create a dominant platform do everything they can to crush threats to that system, as Tim Wu demonstrates in his book on The Master Switch.  Indeed, Apple’s embrace of creative destruction may not continue now that Jobs is dead.

The upshot of this, though, is that the issue for technology regulation is not whether we want open or closed platforms.  The real question is whether a firm will use its market position or political lobbying to stop innovation that threatens their core business.  A relatively open service such as Google is capable of this abusive behavior; it’s just that we think it is less likely because their broader interests are served by something like net neutrality.  On the the other hand, the mere fact that Apple is committed to end-to-end integration of hardware and software does not mean that it is bad for innovation, though it is more likely that such a firm will engage in defensive tactics over time.  Consequently, product cannibalism or the lack thereof should be the relevant test.

I’m tempted to link to the Monty Python sketch of the cannibals on the lifeboat, but I shall restrain myself.


Introducing Michael Zimmer

I’m pleased to welcome Michael Zimmer back to Concurring Opinions. A professor of law at Loyola University Chicago, Mike is a widely recognized scholar in the areas of employment discrimination law, labor and employment law and constitutional law. He is also co-author of one of the first (and still the leading) employment discrimination casebooks as well as co-author of the first casebook on international and comparative employment law.

Mike received his A.B. and J.D. from Marquette University, where he was Editor in Chief of the Marquette Law Review.  He also holds an LL.M from Columbia University, where he was named a James Kent Fellow. Following law school, he clerked for the Honorable Thomas E. Fairchild of the United States Court of Appeals for the Seventh Circuit and then served as an associate at Foley & Lardner in Milwaukee.

He began his law school teaching career at the University of South Carolina and he has taught at a number of law schools, most recently as a visiting professor of law at Northwestern University. He joined the Seton Hall University School of Law in 1978, served as Associate Dean from 1990 to 1994 and was on the faculty until 2008.

Welcome back, Mike!


The Yale Law Journal Online: “The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Be Protected After Prosecutorial Misconduct” and “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches”

This month The Yale Law Journal Online published two new pieces: The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Be Protected After Prosecutorial Misconduct and When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches.

In The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Be Protected After Prosecutorial Misconduct, four Yale Law School students—David Keenan, Deborah Jane Cooper, David Lebowitz, and Tamar Lerer—address the issue of prosecutorial accountability in the wake of Connick v. Thompson, a recent Supreme Court case overturning a $14 million jury verdict awarded to a man who spent fourteen years on death row after prosecutors withheld key exculpatory evidence during his trial. The Court based its decision to overturn in part on the availability of other measures to check prosecutorial misconduct, including state professional disciplinary procedures. Keenan, Cooper, Lebowitz and Lerer challenge this presumption by undertaking a detailed analysis of these procedures in all fifty states. They demonstrate that these measures are ineffective tools for accountability and recommend several strategies for strengthening professional conduct rules and grievance procedures to deter and sanction prosecutorial misconduct.

In When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches, Priscilla J. Smith, Nabiha Syed, David Thaw, and Albert Wong examine the relationship between law enforcement’s use of GPS surveillance technology and the Fourth Amendment’s warrant requirement in anticipation of the Supreme Court’s upcoming consideration of United States v. Jones (oral argument to take place on November 8th). The authors argue that the Court must consider the impact of new surveillance technology on traditional privacy analysis as well as the potential for such technology to be abused. They ultimately conclude that the warrant rule should be applied to the law enforcement use of GPS surveillance technology.

Please visit The Yale Law Journal website to read the latest YLJ Online Essays and to view print content in an electronic format.



Feminist Legal Theory Collaborative Research Network at Law and Society

The Feminist Legal Theory Collaborative Research Network (CRN) is a newly-constituted group that seeks to bring together scholars across a range of fields who are interested in feminist legal theory.  This year CRN is hoping to organize a number of panels at Law and Society (LSA), which will take place in Honolulu, Hawaii from June 5-8, 2012. 

All are invited to submit paper proposals for these panels. There is no single topic or theme to which paper submissions must conform: they should simply relate to feminist legal theory in some shape or form. CRN particularly welcomes proposals which would permit it to collaborate with other research networks, which have organized around topics such as Critical Research on Race and the Law, or Gender, Sexuality and the Law. Also, because the LSA meeting attracts scholars from other disciplines, multidisciplinary proposals are welcome. CRN’s goal in organizing these panels is to stimulate focused discussion on papers on which scholars are currently working. Thus, while proposals may reference work which is well on the way to publication, CRN is particularly eager to solicit proposals for works-in-progress which are at an earlier stage, and which will benefit from the discussion that the panels will provide.

Paper proposals are due by November 14, 2011.  Instructions for submitting proposals are after the jump.

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Illinois Law Review, Issue 2011:5 (October 2011)

University of Illinois Law Review Logo

University of Illinois Law Review, Issue 2011:5

Please see our website for past issues

Symposium: Law and Economics Conference to Honor Thomas S. Ulen

Introduction – John Colombo  (PDF)

Law and Economics in Japan – J. Mark Ramseyer  (PDF)

Maturing into Normal Science: The Effect of Empirical Legal Studies on Law and Economics – Robert Cooter  (PDF)

Formats for Law and Economics in Legal Scholarship: Views and Wishes from Europe – Carole M. Billiet  (PDF)

The Law and Economics of Legal Parochialism – Nuno Garoupa  (PDF)

Two Culture Problems in Law and Economics – Alan Schwartz  (PDF)

The Future of Law and Finance After the Financial Crisis: New Perspectives on Regulation and Corporate Governance for Banks – Dirk Heremans & Katrien Bosquet  (PDF)

The Legal Academy As Dinner Party: A (Short) Manifesto on the Necessity of Inter-Interdisciplinary Legal Scholarship – Paul J. Stancil  (PDF)

The Cross-Atlantic Law and Economics Divide: A Dissent – Ben Depoorter & Jef Demot  (PDF)

Present Bias and Criminal Law – Richard H. McAdams  (PDF)

Bail-Ins: Cyclical Effects of a Common Response to Financial Crises – Amitai Aviram  (PDF)

What Comes After Victory for Behavioral Law and Economics? – Russell Korobkin  (PDF)

The Psychological Foundations of Behavioral Law and Economics – Jeffrey J. Rachlinski  (PDF)

The Optimism Bias of the Behavioral Analysis of Crime Control – Doron Teichman  (PDF)

The Origins, Nature, and Promise of Empirical Legal Studies and a Response to Concerns – Theodore Eisenberg  (PDF)

An Empirical Analysis of Empirical Legal Scholarship Production, 1990–2009 – Michael Heise  (PDF)

Measuring Maximizing Judges: Empirical Legal Studies, Public Choice Theory, and Judicial Behavior – Joanna Shepherd  (PDF)

Very Like a Law Professor: An Essay in Honor of Tom Ulen – Ian Ayres  (PDF)

Empiricism and the Rising Incidence of Coauthorship in Law – Tom Ginsburg & Thomas J. Miles  (PDF)


Who’s Behind Door Number One?: Problems with Using Confidential Sources in Securities Litigation – David Artman  (PDF)

Whose Right Is It Anyway?:The Evisceration of an Infringer’s Seventh Amendment Right in Patent Litigation – Devon Curtis Beane  (PDF)

Keep it Quiet: How Facially Neutral Affirmative Action Passes Constitutional Scrutiny – Alan Wendler Hersh  (PDF)


An Anthem for OWS?

The “Occupy” movement, which started in September, made this an esepcially timely guest visit for me.  My thanks to Danielle for inviting me, to the CoOp regulars for allowing me to make use of their terrific forum, and to those who commented on my posts. 

I’ll close with this:  If “I Am America,” sung by Krista Branch, is a plausible Tea Party “anthem,” then what anthem might be appropriate for OWS?  If, as Frank Pasquale has observed, there is considerable substantive overlap between these movements, might this be an anthem for both

The lyrics:

Pay no attention to the people in the street
Crying out for accountability
Make a joke of what we believe
Say we don’t matter ’cause you disagree
Pretend you’re kings, sit on your throne
Look down your nose at the peasants below
I’ve got some news, we’re taking names
We’re waiting now for the judgment day

I am America, one voice, united we stand
I am America, one hope to heal our land

There is still work that must be done
I will not rest until we’ve won

I am America

You preach your tolerance, but lecture me
Is there no end to your own hypocrisy
Your god is power, you have no shame
Your only interest is political gain

You hide your eyes and refuse to listen
You play your games and abuse the system
You stuff your pockets while Rome is burning
I’ve got a feeling that the tide is turning

I am America, one voice, united we stand
I am America, one hope to heal our land

I will not give up on this fight
I will not fade into the light, I am America

You stuff your pockets while Rome is burning
I’ve got a feeling that the tide is turning

I am America, one voice, united we stand
I am America, one hope to heal our land

I will not give up on this fight
I will not fade into the night, I am America