Author: Alex Kreit


Chase Bank’s “Community Giving” Contest Comes Under Fire

This Wednesday, JP Morgan Chase & Co. announced the winners of the first round of its “Community Giving” online fundraising contest.  The contest let facebook users vote for their favorite charitable organizations, with the top 100 vote-getters winning $25,000 each (and the opportunity for additional funds after the first round.)

Via an article from the New York Times this afternoon, however, Chase appears to have disqualified at least three of the top 100 organizations–Students for Sensible Drug Policy, the Marijuana Policy Project, and Justice for All (an anti-abortion group)–seemingly due to concerns about the organizations’ missions.  Though Chase has refused to release the vote totals, all three of the groups seemed to be among the top 100 organizations at the time that the vote tallies were removed from the contest pages.  (In the interest of full disclose: I was one of a group of about 30 people who help form Students for Sensible Drug Policy when I was in college and I served on the group’s Board of Directors for a number of years.)

The official rules for the contest gave Chase the discretion to “disqualify any Charity for any reason whatsoever.”

Still, from a PR perspective, one wonders why Chase waited until the final results to disqualify these organizations, especially since it sounds as if all three were consistently among the top 100 groups for the duration of the contest.  And, at least in the case of SSDP, the organization appears to have spent a good deal of time organizing its members and supporters to vote for them in the contest.  (See, for example, here.)  In addition, according to this press release (warning .PDF), SSDP’s Executive Director Micah Daigle said that he been in contact with several Chase representatives during the month-long contest about various issues and none mentioned that the group might be disqualified.

I’m a bit rusty in the area of Contracts, so if any Contracts prawfs out there have any thoughts about whether the disqualified groups might have a claim, please chime in in the comments.  (As a side note, at least with a few tweaks of the facts, I wonder if this incident could form the basis for an interesting Contracts exam fact-pattern.)


What does decriminalization mean?

Earlier this week, the Czech government approved a proposal made by its Justice Ministry to decriminalize the possession of small amounts of drugs starting January 1.  (More here and here.)  As some readers may recall, drug decriminalization made some headlines earlier this year after the CATO Institute released a report by Glenn Greenwald that provided a very favorable picture of Portugal’s 8-year-old drug decriminalization policy.

But, what does “decriminalization” really mean?

This is something that I’ve been spending a fair amount of time thinking about recently as I’ve been working to finish up a paper that I presented at the University of Chicago Legal Forum’s Symposium on Crime, Criminal Law, and the Recession and that compares decriminalization to criminal drug courts.  When I mention to my friends what I’ve been working on and note that Portugal has decriminalized all drugs, most say–“really, all drugs?  Wait, so, what does that mean exactly?  Can people there just go around using drugs on the streets?”

In the United States, I think that when most people hear “decriminalization” they think of the elimination of all criminal penalties for possession of a drug for personal use, perhaps accompanied by a fine.  (“Legalization,” meanwhile, is often used to refer to a system in which it is legal not just to possess a substance but also to manufacture and distribute it.)  I suspect that this is in part because the only time decriminalization typically comes up as a serious policy option in the U.S. is in the context of marijuana policy.

But, as the Portuguese system demonstrates, decriminalization can be much different than what I think most of us typically envision of when we hear the phrase.  In Portugal, it is true that simple possession of small amounts of drugs is not a crime (hence, it is referred to as “decriminalization.”)  And yet, possession and use of drugs in Portugal is still very closely regulated.  If an individual is found in possession of a legal amount of a drug, he or she is issued a civil citation to appear before what is called a “dissuasion panel.”  The panel is made up of 3 individuals, two of whom typically have a medical background.  The panel then assesses whether the individual has an abuse or addiction problem and recommends a course of action.  The recommendations can range from nothing more than a warning with information about the dangers of drug abuse (for an occasional user who does not appear to have an abuse problem) to an order to get treatment.  And individual can be subjected to a fine only if he or she fails to seek treatment after being ordered to by the panel.

Interestingly, when I explain this to my friends, many of them respond by saying: “I thought you said Portugal decriminalized drugs.  From what you’ve described, it sounds like they just have a drug court system.”  And, personally, I think that’s a great description of Portugal’s policy–a civil drug court system.  But of course, in the U.S., “drug court” has traditionally meant a criminal court in which defendants can get treatment but will face prison if they fail.

Unfortunately, none of the reports that I’ve seen so far on the new Czech decriminalization policy have contained a great deal of detail about it (other than regarding the drug amounts that will be decriminalized for each drug.)  But, as Portugal demonstrates, “decriminalization” may not necessarily mean what most of us would think of.  Whatever the Czech system will look like, however, between the positive reviews of Portugal’s policy and this new development (not to mention decriminalization policies taking shape in Mexico, Argentina, and other Latin American countries), it appears that drug “decriminalization” may be becoming a policy trend (at least outside of the United States.)


California to Vote on Taxing and Regulating Marijuana in 2010

Via the National Organization for the Reform of Marijuana Laws blog, comes news that supporters of a California initiative that would allow for marijuana to be taxed and regulated like alcohol have gathered the necessary signatures to place it on the ballot in 2010.  The initiative would not legalize the sale and distribution of the plant outright within the State.  Instead, under the measure, possession and cultivation of up to an ounce of marijuana by adults would be made legal State-wide.  In addition, cities and counties would be given the option to adopt their own laws regulating the sale and commercial cultivation and distribution of marijuana.

What are its chances of passing?  If I had to guess right now, I would give the measure a 40% chance of passing.  A Field Poll conducted this past Spring showed 56% of Californians support taxing and regulating marijuana like alcohol.  Of course, the conventional wisdom is that ballot initiatives tend to lose support on election day for a variety of reasons (many folks do not take the time to vote on ballot initiatives, many people who are a “soft” yes or undecided end up voting no, etc. etc.).  Nevertheless, there is certainly a realistic possibility that by this time next year, California will have become the first State to legalize marijuana since the drug was first made illegal.  Calitics has more.


Music to Grade Exams By (Favorite Songs of 2009)

Like most law professors, I’m always trying to think of ways to make exam-grading as tolerable as possible.  Right now, for example, I’m in the middle of what I like to call a “grading vacation,” in which I combine the monotony of grading with the fun of a vacation by taking my exams with me to visit my friends on the east coast.  By day, I grade while my friends are at work and by night I enjoy catching up old friends.

One other key to maintaining my sanity while reading 150+ essay exams is listening to music.  I find the grading season to be great time to listen to some of my favorite albums or to catch up on some of the new music I’ve been meaning to check out.  So, in that spirit, I thought I might offer a post for all us who enjoy listening to music while grading to share some of our favorite tracks of the past year so that we can all get some ideas for new artists and songs to check.

I’ll kick things off with my 20 favorite songs of 2009 .  All are available either on iTunes or emusic with perhaps one or two exceptions.  I’ve included links to youtube videos for the songs where available.

  1. Ida Maria — Forgive Me
  2. Yeaysayer — Ambling Alp
  3. Justin Townes Earle — Someday I’ll be Forgiven for This
  4. The Avett Brothers — I and Love and You
  5. P!nk — Please Don’t Leave Me
  6. Diamond Rings — All Yr Songs
  7. Clyde Carson (feat. Mistah F.A.B. & Kaz Kyzah) — Smokin’ on Purple
  8. Bon Iver — Woods
  9. Parry Gripp — Jackie Johnson
  10. The Big Pink — Dominos
  11. Frightened Rabbit — Swim Until You Can’t See Land
  12. Lightning Dust — I Knew
  13. Bright Eyes — Papa Was a Rodeo
  14. Weezer — (If You’re Wondering If I Want You To) I Want You To
  15. Neon Indian — Psychic Chasms
  16. We Were Promised Jetpacks — Quiet Little Voices
  17. Camera Obscura — Honey in the Sun
  18. Super Furry Animals — Helium Hearts
  19. Rye Rye — Bang
  20. Cut Off Your Hands — Turn Cold

So, what are your favorites?  No need to list 20, of course.  Comments with even just one or two of the tracks you’ve most enjoyed from the past year are welcome and encouraged.


Ed Baker

Yesterday brought sad news of the passing of Ed Baker, the Nicholas F. Gallicchio Professor of Law and Communication at the University of Pennsylvania Law School.  Others have written posts paying tribute to Professor Baker’s significant contributions as a scholar (see here, here, and here.)  I would like to take a moment to add some brief thoughts about Professor Baker’s brilliance as a teacher.

I was extremely lucky to have Professor Baker as my Constitutional Law Professor and can report that he was as fine a teacher as he was a scholar.   In class, Professor Baker had a knack for posing whimsical hypotheticals that seemed simple at first blush but quickly revealed themselves to be impossibly, but wonderfully, difficult.  I remember his hypotheticals spilling outside of the classroom and sparking, on more than one occasion, intense conversations over beers with classmates.  One of us would comment about how humorous Professor Baker’s remarks had been that day.  And, the next thing we knew, we’d spent an hour or more of our Friday night talking about the dormant commerce clause!  This wasn’t the usual obsessive 1L banter about our classes, but full-on inebriated debates.  In short, Professor Baker had the rare ability to make the material he taught so infectious that his students could not stop themselves from talking and thinking about it.

Outside of the classroom, Professor Baker was always kind and and unusually generous with his time.  I’ll never forget, for example, how he became the first person to give me (very informal) advice about a career in law teaching.  A friend and I were having lunch on campus one day.  We had gotten to talking about how great it would be to lead the life of a law professor when Professor Baker happened to walk by.  My friend, who is much bolder than I am, decided to stop him in his tracks and ask how he became a professor and if he might have any advice for law students interested in pursuing an academic career.  Instead of telling us to come see him during office hours (which would have been an imminently reasonable reply to our spur of the moment inquiry), Professor Baker stood and chatted with us for 15 minutes about his career and what he would do if he was a law student who wanted to find a teaching job today.

I’m sorry to say that I did not keep in contact with Professor Baker after I graduated.  But, I did run into him by the escalators at the AALS conference my first year of teaching (the 2007 New York conference.)  Not surprisingly, he did not remember me very well (I was not an especially frequent classroom participant and so not the most memorable student) but he was friendly as usual and happy to hear that I’d landed a teaching position.

As a teacher, Professor Baker touched thousands of students lives.  He will be sorely missed.


Huckabee Weighs in on Commutation (Again)

Via Jeralyn Merritt at TalkLeft, I see that former Presidential candidate and Arkansas governor Mike Huckabee has an op-ed out in the Washington Post further explaining his decision to commute the sentence of Maurice Clemmons (discussed earlier at Co-Op here and here.)

The op-ed, and Jeralyn’s post, are worth a read in their entirety, but here are the key points from Huckabee’s piece:

Between 1,000 and 1,200 requests for some form of clemency came to my desk each and every year of the 10 and a half years I was governor. An overwhelming majority of the time, I denied the requests. When I did grant them, it was based on the recommendations of all five of the members of the PPTB [the Post Prison Transfer Board], with consideration given to input from public officials and my own personal review of each and every file.

Maurice Clemmons was 16 years old when he committed the crimes of burglary and robbery. He was sentenced to a total of 108 years in prison, dramatically outside the norm for sentencing for the crimes he committed and the age at which he committed them.

In 2000, the PPTB unanimously recommended that his sentence be commuted after he had already served 11 years in prison. As per the recommendation, I commuted his sentence to the term of 47 years (still a long sentence in comparison to others for the type of crime he had committed), making him parole eligible. It did not parole him, as governors do not have that power in Arkansas. He would have to separately apply for parole and meet the criteria for it.

Three months after the commutation, Clemmons met the criteria for parole and was paroled to supervision in late 2000. When he violated the terms of his parole, he was returned to prison and should have remained behind bars. For reasons only the prosecutor can explain, he ended up dropping the charges, allowing Clemmons to leave prison and return to supervised parole.

Clemmons moved to his native Washington State and engaged in intermittent criminal activity that increased in violence and frequency. He was arrested on charges of raping a child, yet was allowed to post bail in Washington. While out on bail, he committed the unspeakable acts of murdering four valiant police officers.

Based on Huckabee’s account, his clemency decision in this case does not seem extraordinary or unusual.  Similarly, while I don’t have the statistics before me, my bet is that the 11 years Clemmons served is probably closer to the average (or higher than the average) sentence that a 16-year-old convicted of burglary and robbery would receive.

In short, as Jeralyn concludes, the prosecutor’s decision not to pursue charges on the parole violation and the failure to heed warning signs that Clemmons was mentally ill indicate that perhaps we should be looking at the support and oversight of parolees or at our mental health system, rather than at Huckabee, if we want to try and prevent tragedies like this one in the future .  Of course, the prosecutor was not a former candidate for President.  And thinking about the systemic shortcomings of our mental health and corrections systems is hard work.  So I guess that the focus on playing the political blame game with Huckabee shouldn’t be all that surprising (even if it is disappointing) given our current media climate.


More On the Huckabee Clemmons Commutation

Following up on Adam’s great post about Mike Huckabee’s commutation of Maurice Clemmons (the Arkansas man who murdered four police officers outside Seattle last week), I see that Huckabee is continuing to defend his decision.  In an article for Human Events, Huckabee presents his case:

The reasons were straightforward — a unanimous recommendation from the board, support from a trial judge and no objections from officials in a case that involved a 16 year old sentenced to a term that was exponentially longer than similar cases and certainly longer than had he been white, upper middle class, and represented by effective counsel who would have clearly objected to the sentencing.  (His race, economic status, or education level are not excuses for his behavior because many people of color who are uneducated and living in abject poverty are civil, trustworthy, and honest to a fault and many well-educated, wealthy, white people are dirtbags — think Bernie Madoff).  But sadly, Arkansas has had numerous instances of disproportionate sentencing in which a probation and fine would be meted out to white upper class kids whose parents were able to obtain the services of excellent defense attorneys, while young black males committing the same crimes and represented by public defenders would end up with inexplicably long prison terms.  Blacks comprise 15% of the state’s population, but 50% of the inmate population, some of which is due to the fact that their sentences are often longer and they are less likely to be paroled.

(More on Huckabee’s continued defense here and here.)

Whatever the merits of this particular clemency decision, like Adam, I admire Huckabee’s practice of taking the clemency power seriously when he was Governor and his decision to defend and explain his actions rather than buy into the attempt by some in the media to paint this as a black and white issue.  The fact is that there will always be a risk that a person released from prison, whether after a commutation or the natural termination of a sentence, will commit a crime after they’ve been released.  Unless we are prepared as a society to sentence every 16 year old who commits a robbery to life in prison (which, of course, is what a 108 year sentence effectively was), I think we’d do well to focus on how to better monitor and re-integrate prisoners once they are released.  And, as Doug Berman notes, the Clemmons tragedy certainly seems to raise as many, if not more, questions about those issues as it does about the clemency process.  (Jonathan Simon at PrawfsBlawg also has a thoughful post on some of the bigger-picture issues raised by this case.)


Acquittal in California Medical Marijuana Case

Yesterday saw a major development in California medical marijuana law, with the acquittal of Jovan Jackson, the operator of a medical marijuana collective (more here and here.)  The case was the first big test of the San Diego County District Attorney’s narrow reading of what constitutes a collective or cooperative under California state law and may have major implications for deliberations on the regulation of medical marijuana dispensaries in Los Angeles and San Diego.  (As a disclosure, I am currently serving as Chair of the City of San Diego’s Medical Marijuana Task Force.)

The issue is a somewhat complicated one (and one that may hold some lessons for the do’s and dont’s legislative drafting.)  I may blog in more detail about the law before my guest-blogging stint here is done.  But, in a nutshell, the California legislature passed a law in 2003 in an effort to clarify the scope and application of the State’s landmark 1996 medical marijuana  ballot initiative.  The law provides, among other things, that medical marijuana patients who “collectively or cooperatively . . . cultivate marijuana for medical purposes shall not solely on the basis of that fact be subject to” a variety of state criminal laws pertaining to marijuana (including possession for sale, maintaining a place for purposes of sale, etc.).

Since the law’s passage, most folks across the state (including prosecutors) have interpreted it to mean that medical marijuana collectives and cooperatives that operate as a store-front (much like a, say, a food co-op might) are legal.  Accordingly, over three dozen cities and counties across the state have enacted land use ordinances to regulate these entities and many cities and counties actively support their existence (for some background, see here, here, and here.)  Within the past year or so, however, a handful of prosecutors and other local government officials (mainly in San Diego and Los Angeles) have begun to push a much more narrow view of the law, arguing that collectives cannot sell marijuana to their members.  These officials have argued that collectives and cooperatives are only legal if they operate, in essence, like a commune with each member contributing labor to cultivating medical marijuana.  There are a number of problems for this view, including Guidelines from the State Attorney General (which state that storefront collectives and cooperatives are lawful if they comply with other legal requirements.)  In addition, local officials who have taken this view have steadfastly refused to provide a detailed account of what they think the law does allow other than to say that storefronts are illegal and that some sort of labor on the part of members must be involved.  Beyond that, however, they say that the line is “rather blurred” as to what the law allows.

While most observers view the narrow “commune” interpretation of the law as quite a stretch, California courts have not addressed the issue and so it technically remains an open question.  As a result, a great deal of confusion has developed over the past year or so in Los Angeles and San Diego counties about just what is necessary for a collective or cooperative to be legal under state law.  The Jackson case was the first (to my knowledge) to really put this new narrow interpretation of the law to the test.  It involved the prosecution of a medical marijuana patient who managed a collective with over 1,500 members.  In essence, the case boiled down to whether or not a collective that operates as a store front like a food co-op constitutes a local medical marijuana collective under state law.  Not only did the jury acquit Mr. Jackson, but the foreperson directly questioned the prosecution’s view of the law during a press conference after the verdict, saying that “the prosecution gave his narrow definition during the closing arguments but there was nothing in the law that backed that up.” (the quoted comment is at about 1:30 into the video.)

While one jury verdict certainly does not provide an authoritative resolution of the underlying question of law here, it may nevertheless make local officials think twice about continuing to push unusually narrow interpretations of the law.  After all, why pursue expensive investigations and prosecutions that are already politically unpopular if they are only going to result in an acquittal?  Given the overwhelming consensus that state law does permit these entities, hopefully the hold-outs will come around to that view as well.  I also hope that the hold-outs will decide to join in the process of regulating collectives and cooperates to ensure that they operate in safe and sensible manner.


Alternative Approaches to Exam Feedback

With the end of the semester upon us, exams are once again a topic of conversation in the blawgosphere.  I’d like to jump into the exam conversation by looking ahead a few weeks to a time when we’ve graded all of our exams and are thinking about how best to provide feedback to students about the exam.  I’ve seen some discussion about exam feedback, and I am sure there has been a lot of additional discussion that I have missed, but the subject seems to have been somewhat under-explored relative to other exam-related subjects.  My sense is that most folks provide a model answer, model issue analysis, sample student answer, or some combination of the three.  I’ve used each of these approaches myself.  Lately, however, I’ve been finding myself thinking about alternative methods.

Specifically, inspired in large part by this fantastic post by Orin Kerr from a couple of years back, I’ve been considering whether to try a tiered approach to my model answers by providing three example answers: one “bad” answer, one “good” answer, and one “excellent” answer.  Why three example answers?  I’ve found a model answer alone to be of relatively limited value to a student who has not done well on an exam and wants to figure out how to improve.  While a model answer may give students a good idea of my ideal exam answer, it doesn’t really let students know what it is that distinguishes the model answer from lesser answers.  I’ve been struck by this when I’ve met with students to review their exam.  I always have them review the model answer prior to our meeting.  And, quite often, it seems like they draw the wrong (or, at least, not the most important) lessons from the model answer.  They see, for example, that the model answer references some of the cases we read while their answer didn’t mention a single case and they think “if only I’d referenced the cases, I probably would have done great.”  Or, they see that the model answer discussed facts that they failed to and think “if only I had simply referenced those facts I would have had an “A” answer.”  In short, many students seem to mistakenly believe that each exam has a simple formula where if they spot the issue, state the correct rule, merely mention facts A, B, and C, and make some sort of reference to case Y, they will get all the points and a high grade.  As we all know, of course, this is not the case.  Indeed, one of the most common exam errors I see is that the student approaches the problem as a sort of a checklist–they mention many of the relevant facts and state the law accurately, but fail to really apply the law to the facts.  Meanwhile, students toward the bottom of the class often look at the model answer, see that their answer falls far far short of the model, and wonder “where do I even begin if I want to improve.”

All of this has led me to think about how I might be able to give students a clearer picture of what distinguishes the model answer from a good answer and a good answer from a bad answer.  Orin Kerr’s post, which gave brief examples and explanations of bad, good, and terrific answers using a short and fictional legal set-up, seems to provide a pretty effective structure for achieving this goal.  Giving students examples of a “bad” and “good” answer, in addition to the traditional model answer, would provide them with a clearer picture for how they can improve.  A poorly performing student, for example, would be able to see a detailed explanation of why a “bad” exam answer is “bad” and get a concrete idea for how she might be able to raise her performance to the next level.

Of course, there are some downsides and limitations to this idea.  Perhaps the biggest downside is that it would take a lot more time to write up three example answers along with explanations than to write up a single model answer (and even more time that simply distributing the top 2 or 3 student answers as models).  As for limitations, there are a wide variety of reasons that an exam answer might be sub-par, so it would be impossible to include them all in any example of a “bad” and “good” answer.  Still, on balance, I think that the additional effort needed to write three example answers would likely be worthwhile, especially for dedicated students who truly want to make the time and effort to improve their performance but are honestly unsure of how to do it.

I’d love to hear any and all comments about this approach (especially if others have adopted it themselves) or any other thoughts or suggestions folks might have about alternatives to the standard methods of exam feedback.


Monday Morning Distraction: Alexander Hamilton Rap

For those of you in search of fun procrastination items to ease back into post-Thanksgiving work mode, here’s a fun video that appears to have been posted on youtube a few weeks ago and that I just came across via  The clip is of Lin-Manuel Miranda performing a very clever and entertaining rap song about Alexander Hamilton at a White House event.  I’ve been running into some odd technical problems embedding youtube clips, so just hit the TPM link or this one directly to the youtube clip to view it.  I promise, I am not rickrolling you.  (h/t to my friend at for passing this along to me.)