Author: Sarah Waldeck


Wayne Tompkins and the Innocence Project of Florida

Concurring Opinions receives many emails from individuals seeking to promote various issues and points of view. Such correspondence rarely results in actual posts. Today, however, we received an email from the Innocence Project of Florida, about an inmate scheduled to be executed at 6:00 p.m. today. I haven’t had a chance to do any independent investigation, but the content of the email is likely to interest many of our readers:

Read More


Not Textbook Eminent Domain

Property professors spend so much time talking about regulatory takings and the post-Kelo definition of public use that it’s easy to forget about good old-fashioned eminent domain.

Here’s a scenario reported by the New York Times that is seemingly too straightforward to use on an exam. The National Park Service wants to build a park on the Pennsylvania site where Flight 93 crashed. The Park Service and a group representing Flight 93 families own or control approximately 1,300 of the 1,700 acres that the Park Service wants to acquire, and is in negotiations for roughly 430 acres, including the site where the plane actually crashed. Flight 93 families are eager for a transfer of the property because construction must begin by Fall 2009 for a memorial to be ready by the tenth anniversary of 9/11.

So just take the land, right? Not so fast. The 2002 legislation authorizing the memorial stated that no land could be acquired through eminent domain. (Perhaps because we value property rights more than extraordinary heroism which prevents a second terrorist attack on Washington, D.C.?) A provision in a September 2007 spending bill finally authorized the use of eminent domain, but the Park Service has continued to try to negotiate with the landowner. What a surprise that they can’t agree on a price.

Read More


Yes We Can Go Digital

The New York Times is reporting that Obama’s transition team is urging Congress to delay the February 17 cutoff date for analog broadcasting. The team is particularly concerned that the federal coupon program which subsidizes the cost of converter boxes has temporarily run out of funds, and that the department responsible for distributing the coupons is about to be overwhelmed by requests. Some high-ranking Democrats and owners of major networks have indicated that they will support a delay.

Anyone feeling a bit of deja vu? Technology has existed since the 1980s that would allow terrestrial broadcasters to replace their analog signal with a digital one. Over the ensuing decades, the United States has been acutely interested in this switch, primarily because digital signal requires much less spectrum than analog. The liberated spectrum—or the freed-up public airwaves—can be auctioned off by the U.S. government, most likely for use in wireless telecommunications services. In 1997, Congress passed legislation that set an analog cutoff deadline of December 31, 2006. By mid-2005, however, less than 4 percent of households had TVs that were capable of receiving a digital signal. Then in February 2006, Congress acknowledged that the move to digital had floundered and passed new legislation that set a hard deadline of February 17, 2009. Or not so hard, apparently.

In an article soon be published in the Oregon Law Review, Professor Erik Lillquist and I use the attempted switch to digital to argue that our government, with its careful system of checks and balances, is ill-suited to legislate about rapidly-moving technologies. One reason is that the technology may be significantly less relevant by the time government actually acts. Another possibility is that the technology the government seeks to promote will remain important, so much so that it will eventually take off on its own without governmental intervention. In either case, government resources are better spent elsewhere.

Here another delay in the analog cutoff date may help guarantee that the government-engineered digital TV revolution is mostly irrelevant. For a while now, media outlets have been reporting that Americans are abandoning traditional television sets for programs that are streamed directly to their computers. The Consumers Electronic Show, taking place right now in Las Vegas, is featuring technology designed to facilitate the connection between the Web and TV screens.

Hindsight suggests that we may have been better off if the government had just stuck to its deadline back in 2006. Then, as now, there was particular concern that the population that relies on analog television is disproportionately poor, minority, or elderly. But Congress knew this when it tried to engineer the switch to digital. The government could just abandon its efforts and wait until traditional TV goes the way of the dodo. But with at least $1.3 billion in sunk subsidies already, Congress isn’t just going to give up. But regardless of whether Congress extends the deadline another two months or another two years, I bet that I’ll be able to write another post about how the United States is wringing its hands about whether now is finally the right moment to go digital.


Are They Loaded?

gun picture.JPG

Barack Obama caught plenty of heat for his comments about clinging to guns and religion, but listen to Grover Norquist quizzing the six candidates running for GOP Party Chair about their conservative credentials.

Well, I guess it appeals to the base.

(photo by J.M. Griffen)


A Skyrocketing Bar Passage Rate

The New York Times has reported on the controversy surrounding the dismissal of Donald Guter, who had been dean of the Duquesne Law School for three years. The story also has been covered on and other legal blogs. One detail from the reports is particularly striking: under Guter’s leadership, bar passage rates increased from 68 to 97 percent.

This seems like an extraordinary increase for a three-year time period. If anyone wants to explain how Duquesne managed to do it, I’d be interested. (Or if this kind of increase is more ordinary than I think, I’d appreciate learning that as well.)


Just Turn Off Your Phone!

T’is the season and all of that, so I’ll begin by noting that last year my husband gave my mother a hands-free cell phone kit. I thought the gift was motivated by a concern about her tendency to talk on the phone when she’s making the 90 minute trip to and from our house, but maybe the gift was more nefarious than I realized. Last week’s Economist is reporting on a study that shows even hands-free phones can dangerously impair driving skills:

Melina Kunar of the University of Warwick, in England, and Todd Horowitz of the Harvard Medical School ran a series of experiments in which two groups of volunteers had to pay attention and respond to a series of moving tasks on a computer screen that were reckoned equivalent in difficulty to driving. One group was left undistracted while the other had to engage in a conversation about their hobbies and interests using a speakerphone . . . . Those who were making the equivalent of a hands-free call had an average reaction time 212 milliseconds slower than those who were not. That, they calculate, would add 5.7 metres (18 feet) to the braking distance of a car travelling at 100kph (62mph). The researchers also found that the group using the hands-free kit made 83% more errors in their tasks than those who were not talking.

To try to understand more about why this was, they tried two further tests. In one, members of a group were asked simply to repeat words spoken by the caller. In the other, they had to think of a word that began with the last letter of the word they had just heard. Those only repeating words performed the same as those with no distraction, but those with the more complicated task showed even worse reaction times—an average of 480 milliseconds extra delay. This, the researchers suggest, shows that when people have to consider the information they hear carefully, as they might when making decisions about a business deal, it can impair their driving ability significantly.

Different studies have suggested that two other driving past-times—chatting with passengers and listening to the radio—do not have the same negative effects on driving. Researchers speculate that talking on the phone competes for the brain’s resources in ways that these other activities do not.

Read More


Deferred Debt and Alumni Giving

A recent New York Times article by Ron Lieber asked whether alumni will give to colleges and universities this year, particularly if the institutions have mega-endowments. As Lieber put it:

Against the real likelihood of financial doom for so many people, it feels almost unseemly to consider a donation to a college or university. Surely there must be a food bank or job retraining program that is more deserving.

If past experience is any guide, don’t expect the food banks and job retraining programs to win out. One persistent trend in philanthropy is that groups providing social services tend to receive a smaller slice of the charitable dollar than both educational and arts organizations. Perhaps this year the needy are so salient that these patterns will shift a bit, but old giving habits die hard.

Lieber writes that for him, debt is the most persuasive reason for continuing to give to his alma mater; his education was made possible by generous scholarship support. Almost every college student has this sort of debt, because at most places not even full tuition covers the total cost of an education. Most alums are at least vaguely aware of this and, for some, it may provide an adequate reason to give.

But I wonder how long the notion of a deferred debt will continue to have practical or rhetorical force. With tuition rising at a rate that outpaces inflation and students and their families feeling increasingly strapped, tomorrow’s alums may conclude that even if tuition didn’t cover the cost of their education, it should have. The gap between what higher education costs and what students actually pay may soon be seen as more symbolic of the runaway costs of higher education than of an institution’s generosity towards its students.


Thanksgiving Entertainment

Regular Co-Op readers may have realized that I am a big fan of the radio program This American Life. Here’s the link to one of my all-time favorite stories: Opening Night. There’s not a legal connection; there’s not even a Thanksgiving connection. It’s just flat-out hilarious.

Best Thanksgiving wishes to everyone, with a special thought for those who may feel less fortunate than they did last year.


Simulated Disorder in the Netherlands

While the broken windows theory of crime control has much intuitive appeal, empirical support has always been a bit thin. Now researchers in the Netherlands have conducted a series of experiments which seem to confirm the core hypothesis that visible signs of low-level disorder increase the likelihood that people will violate behavioral norms. The experiments showed that disorder not only increased the possibility that individuals would engage in mildly anti-social behavior (like littering), but also more serious criminal behavior. As described by the Economist:

The most dramatic result . . . was the one that showed a doubling in the number of people who were prepared to steal in a condition of disorder. In this case an envelope with a €5 ($6) note inside (and the note clearly visible through the address window) was left sticking out of a post box. In a condition of order, 13% of those passing took the envelope (instead of leaving it or pushing it into the box). But if the post box was covered in graffiti, 27% did. Even if the post box had no graffiti on it, but the area around it was littered with paper, orange peel, cigarette butts and empty cans, 25% still took the envelope.

My own reaction to these experiments is mixed. On one hand, of course, it is satisfying to have empirical data that tends to confirm a hypothesis that has helped shape policing over the course of the last 25 years. But other empirical work tends to disprove the broken windows theory, most notably an analysis of crime data in New York City over a ten-year period, as well as results from the Moving to Opportunity experiment, in which individuals from areas with high levels of social disorder moved to more advantaged and orderly communities.

A quick survey of the blogosphere suggests that the headline for the Netherlands experiment is “Broken Windows Works!” or some similar variant. A survey of all the empirical evidence, however, suggests that the story is not nearly that tidy. Moreover, as I’ve previously written on this site, many unanswered questions remain, such as whether constraining disorder is the best use of limited police resources, or how the police choose their targets in a public order campaign, or whether addressing disorder can ever mean more than moving it to a less visible place.


Volume Liver Transplants

Of all the issues raised by the Wall Street Journal’s recent reporting on volume liver transplants, those concerning property law may be the least salient. But the questionable behavior of Amadeo Marcus, the former director of clinical transplantation at the University of Pittsburgh Medical Center (UPMC), reminded me of the infamous Moore v. Regents of the University of California. In Moore, the California Supreme Court decided an individual has no property right in his excised cells. Moore helps introduce students to questions of commodification and inevitably leads to discussions about whether people should be allowed to sell organs and other bodily materials. Regardless of their position on this question, students sometime need to be reminded about the extent to which such bodily materials have already been commodified. The next time I teach Moore, I’m going to use recent events at UPMC to amplify this point:

The transplant program is a source of both profits and prestige that UPMC leverages to attract star doctors and build its other businesses, which include a health-insurance arm. Hospitals charge $400,000 to $500,000 for a liver transplant. UPMC’s transplant program produced $130 million of revenue in its latest fiscal year . . . .

Liver-transplant volume in Dr. Marcos’s first full year [at UPMC] jumped to more than double the volume in the year before he came, according to data from the United Network for Organ Sharing, or UNOS. But the way he boosted it raised questions for some colleagues.

A shortage of transplantable organs from cadavers is a perennial constraint on the number of liver transplants. Dr. Marcos overcame this in part by using organs from so-called expanded-criteria donors — deceased people who had been older or sicker than preferred liver donors. . . . Dr. Marcos put some of these organs into patients who were in the early stages of liver disease. . . . These were patients, [some experts say], who sometimes didn’t need a transplant. . . .

Besides using more expanded-criteria livers, Dr. Marcos sharply increased the number of transplants from living donors. In these, part of the liver of a healthy person is cut off and grafted into a sick patient. If all goes well, both pieces eventually grow to normal size. The procedure is controversial because it could be risky for the otherwise healthy donor.

UPMC did 150 such surgeries while Dr. Marcos was there, according to UNOS. No donors died. However, in 69% of the cases, the recipient had [various medical indicators suggesting] that UPMC was putting some living donors at risk to do transplants on patients in which the risks of the operation may have outweighed the benefits.