Category: General Law


Book Recommendation

The professor who influenced me the most as an undergraduate was Bruce Bueno de Mesquita, an iconoclastic political scientist who uses game theory and other behavioral tools to assess domestic and international affairs.  I was so absorbed in writing my book that I missed his new co-authored book on The Spoils of War: Greed, Power, and the Conflicts that Made Our Greatest Presidents. Here is the abstract:

It’s striking how many of the presidents Americans venerate-Abraham Lincoln, George Washington, Franklin D. Roosevelt, and John F. Kennedy, to name a few-oversaw some of the republic’s bloodiest years. Perhaps they were driven by the needs of the American people and the nation. Or maybe they were just looking out for themselves.

This revealing and entertaining book puts some of America’s greatest leaders under the microscope, showing how their calls for war, usually remembered as brave and noble, were in fact selfish and convenient. In each case, our presidents chose personal gain over national interest while loudly evoking justice and freedom. The result is an eye-opening retelling of American history, and a call for reforms that may make the future better.

Bueno de Mesquita and Smith demonstrate in compelling fashion that wars, even bloody and noble ones, are not primarily motivated by democracy or freedom or the sanctity of human life. When our presidents risk the lives of brave young soldiers, they do it for themselves.



Copyright Eminent Domain

28 U.S.C. Sec. 1498(b) provides that the United States may (in effect) convert any copyright into a compulsory license by authorizing the reproduction of a copyrighted work subject to the need to pay  reasonable compensation to the copyright owner.  Does anyone know if this authority has ever been used?  It’s hard to think of a situation where the Government would need to do this.


FAN 145.1 (First Amendment News) First Amendment Society to Host The Slants @ Flying Dog Brewery

The Slants (credit: KGW)

On Sunday, April 16th at 6.00 p.m., The First Amendment Society will host the rock group whose case is waiting to be decided by the Supreme Court — yes, The Slants. They are the all-Asian American dance-rock band (music video) whose request to trademark their name was denied by the Patent and Trademark Office. The Portland-based band will perform “in a very casual setting” — the Flying Dog Brewery’s tasting room.

The case: Lee v. Tam (transcript of oral arguments)

Federal Circuit Court opinion here

Complete hyperlinked list of briefs here

“We’re rooting for Simon Tam because it is beyond crazy for bureaucrats to tell an all Asian-American band that they are disparaging themselves by naming their band The Slants, and therefore the PTO won’t trademark the name.  Simon should be allowed to name his band whatever they hell he wants,” said Jim Caruso, CEO of Flying Dog Brewery. “And we’re thrilled,” he added, “to host The Slants at the brewery because they are one seriously talented band!”

Flying Dog’s CEO Jim Caruso

Related Items 

  • Malcom L. Stewart, Deputy Solicitor General,  Department of Justice, counsel for Petitioner

Vanderbilt Law Review, Volume 70, Number 2

The Vanderbilt Law Review is pleased to announce the publication of our March 2017 issue:


Daniel Farbman, Reconstructing Local Government, 70 Vand. L. Rev. 413 (2017)

Aaron-Andrew P. Bruhl, The Jurisdiction Canon, 70 Vand. L. Rev. 499 (2017)

Dmitry Karshtedt, Causal Responsibility and Patent Infringement, 70 Vand. L. Rev. 565 (2017)


Alexander Tsesis, Terrorist Speech on Social Media, 70 Vand. L. Rev. 651 (2017)


Hannah Frank, Unambiguous Deterrence: Ambiguity Attitudes in the Juvenile Justice System and the Case for a Right to Counsel During Intake Proceedings, 70 Vand. L. Rev. 709 (2017)

Soraya Ghebleh, No VIP Treatment: ACOs Should Not Get Waiver Protection from the Prohibition on Beneficiary Inducement, 70 Vand. L. Rev. 737 (2017)


Probable Cause for an Indictment or Charge

I’m in between rounds of edits on my book, so I’m going through the stack of articles that I wanted to read but hadn’t. One was “Probable Cause Revisited,” a terrific article in Stanford Law Review. The paper persuasively argues that probable cause was not the consensus standard for charging at the Founding. Many judges who gave grand jury charges instead argued for something closer to “certainty of guilt” and some expressly rejected probable cause. This changed in the late 19th and early 20th century with the development of more sophisticated criminal trial procedures, which may have left people more confident in a relaxed charging standard.  (Maybe, the article concludes, we should reconsider the probable cause standard in light of our era’s reliance on plea bargaining.)

One thing the article made me think of was whether the presence of the probable cause standard in the Fourth Amendment played a role in its adoption into the Fifth Amendment’s Grand Jury Clause or the state information procedures. There is no reason why this must have occurred, of course, but I wonder to what extent there is “off the rack” borrowing. In other words, the presence of “probable cause” in the Constitution may have exerted a certain gravitational pull towards that standard.  (In turn, I wonder why probable cause was the standard used for warrants, though I’m sure many have answered that question.) I was trying to think of other examples, but I can’t other than the opposite fact that three-fifths will probably never be used again as a constitutional fraction because that was used in the Three-Fifth’s Clause pertaining to slavery.


Alan Morrison Interviews Justice Stephen Breyer

Professor Alan Morrison

If you have yet to see it, the current issue of the Journal of Legal Education contains an interview Professor Alan Morrison did with Justice Stephen Breyer. The interview is from the January 7, 2016 annual meeting of the American Association of Law Schools. Here are a few excerpts from the transcript of that exchange.

  • Morrison (three things I won’t ask) When I was told, Justice Breyer, that we were going to have this conversation I said there were three things we were not going to talk about: 1) cameras in the courtroom; 2) collegiality among the members of the Court; and 3) the presidential election. . . .
  • Justice Breyer (On why he writes books): I was a professor for a long time. I wouldn’t have been in that job, and you wouldn’t be in your jobs unless you like explaining things to people. Isn’t that true? We learn things, and you like to explain them. We can’t control it if they want to benefit or not from what we explain—that’s their problem. But, my goodness, that’s what we do. So stop me before I write again! . . . . The best way for me to do it—as is often the best way for you to explain law in general to a  rst-year class—is to take a subject and go through the whole thing. What you are doing in teaching that subject, you are really teaching something about law, you’re teaching something about American life, and you’re teaching something about how we live today, yesterday, tomorrow in this country. All right, I’ll try. And so I’ve written three books about the Court.
  • Justice Stephen Breyer (credit: The Nation)

    Alan Morrison (on the Steel Seizure Case): When you discuss the Youngstown case in your book, you spend a lot of time talking about the backstory. Do you think that law professors should spend more time talking about the backstory in cases when they’re trying to explain what the outcome is? . . . In a lot of other cases in the book, you talk about things that don’t readily appear in the opinion, or you’ve got to dig for them, and really did in influence the outcome. I’ve always thought that, for example, in Youngstown, the fact that Truman could have stopped the strike by letting the steel companies increase their prices the next day always had a bearing on the willingness of the Court to go along with Truman.

  • Justice Breyer (response): Truman was told by his people in charge—Charlie Wilson, electric Charlie—he was told that if you do this and break your price controls, you will see prices going up all over America, and that’s going to create a pretty bad in ation, which we don’t want at the time of the Korean War. So yeah, maybe, maybe not. I mean, the story there to me shows there’s nothing obvious. Truman’s decision wasn’t that unreasonable, in my opinion. But the Court did think that. Now why tell the backstory? There, I think the backstory is important. Why is it important? There might not be an ERISA case, probably isn’t, but it probably is there. I think the truth of that area of the law was well said by Justice Jackson. He said—I’ve had to look up a few of these, as many of us have—he says, “When you look to see what the founders thought” (and I would add to that “what prior cases hold in this big area, security versus the inherent powers of the President”) “when you look to see what the President said, what the founders thought… it’s like Joseph interpreting the dreams of Pharaoh.” Yeah, that’s right. I mean, you try it. We had a case not too long ago that was something like that, that was the case of the President’s recess appointment power. What law is there on that? All I can say is, no matter how little you think there was, there was still less than that. . . .
  • Morrison (on judicial interpretation): I’d like to talk about your approach to interpretation. [In your book] you say you use “text, history, precedent, purposes and values, and consequences.” Is there anything you don’t use?
  • Justice Breyer (response): . . . Well, we’re a statutory court. We deal with statutes, and most courts do now. And we’re interpreting a text, we’re interpreting some words on a piece of paper. And there are, at least in our Court, several different interpretations that are pretty difficult to say which is which. We take cases where lower courts have come to different conclusions on the same matter of law. They’re good judges, but they’ve reached different conclusions as, in all likelihood, there are going to be different reasonable interpretations of those words. I do believe all judges—if you look into it, I think all judges do, in fact, use those six factors.The first thing they look to is the text. The text doesn’t always answer the problem; I think it usually doesn’t in our Court. But if the text says fish, that does not mean a carrot. A carrot is not a fish. The text does put limits on what you can say. And history, tradition—what’s res ipsa loquitur, I mean, what is habeas corpus? Indeed. And what was the history from which this statute emerged? Indeed. Precedent. Again, the precedent doesn’t answer the question, normally, because, if it did, why is this case here? Consequences, I think, are very important. Not any consequences in the world. I want to know purposes  first. There was some human being who wrote those words. Why? What was the object? Given the statute, what was the object? Purposes. They always have a purpose, those words.
  • Breyer (re interpretation: history & text vs purposes & consequences): . . . I think the differences between us within the Court, insofar as they’re general, are often a question of how much weight you tend, over time, to put on purposes and consequences compared with tradition, history, texts, and precedents. . . . There are risks on both sides, and there are arguments on both sides. And we’ll talk about it—it turns up, those differences will often turn up in individual cases, but I think those kinds of differences really play a much greater role in reaching di erent results than anything that would normally be called politics. . . .

Justice Jackson and Originalism

Supreme Court confirmation hearings are full of rituals, and one of the recent ones is praise for Justice Jackson’s concurring opinion in The Steel Seizure Cases. (Judge Gorsuch called the opinion “brilliant” earlier in the day.) I find this attitude curious for a couple of reasons.  First, until 1981 the Jackson concurrence was not seen as anything special, and I’m not sure how or why that changed. Second, I’m not clear whether the concurrence matters in real cases–it seems like something people pay lip service rather than something they use. Third, the Jackson opinion contains a rather acerbic criticism of originalism:

“A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

Strange that a self-professed originalist would think the opinion containing this passage is brilliant.



Stop Citing Trump’s Campaign Statements

Some recent judicial opinions on the President’s immigration Executive Orders have cited or referred to statements that he made as a candidate about immigration policy. I hope that this practice is rejected soon, as it’s terrible.

The problems with relying on political statements in interpreting an executive are greater than the well-known criticisms of using legislative history to interpret a statute.  First, candidates say many contradictory things on an issue depending on their audience and on the news flow. Trying to make sense out of that is an almost impossible legal ask. Second, statements made during a campaign are not necessarily connected with an executive order. Legislative history at least has the virtue of being part of a formal process that culminates with a statute. Third, if public comments by a candidate are fair game, then why not private comments? (Say, a leaked tape of statements made to a group of donors? Or Richard Nixon’s presidential tapes?) Finally, it’s worth pointing out that candidates lie sometimes–how is that supposed to be taken into account?

Judges are certainly aware of what was said in the campaign–they do watch the news.  But relying on that as authority is ill-advised.


Some Thoughts on the Gorsuch Hearings

We know a few things about Judge Gorsuch’s nomination to the Supreme Court.  First, he will be confirmed. Second, Senate Democrats will mention Merrick Garland’s name many times.  Third, I think we will learn a lot about Chevron deference, given that Judge Gorsuch has taken a stand on the viability of that precedent and that there is growing academic criticism of Chevron. (A new article in the Yale Law Journal, for instance.)

Some people complain that confirmation hearings for the Court aren’t revealing.  I think that this observation is overstated, but to the extent that it is true it’s a result of a structural reality.  Not since Justice Thomas was confirmed in 1991 has a Supreme Court confirmation hearing occurred where the President and the Senate were controlled by different political parties. If Democrats controlled the Senate, then Judge Gorsuch (or whomever was nominated), would simply have to answer more questions in order to get confirmed. When the President’s party controls the Senate, by contrast, a nominee can skate through pretty easily.


The Mind of the Law . . . & the New Intelligence

Jason Koebler (credit: US News & World Report)

Jason Koebler has just published an article in The Atlantic entitled the “Rise of the “Robolawyers: How legal Representation Could come to Resemble TurboTax.” Here are a few highlights:

  1. Handicapping Lawsuits: “For years, artificial intelligence has been automating tasks—like combing through mountains of legal documents and highlighting keywords—that were once rites of passage for junior attorneys. The bots may soon function as quasi-employees. In the past year, more than 10 major law firms have “hired” Ross, a robotic attorney powered in part by IBM’s Watson artificial intelligence, to perform legal research. . . .”
  2. Chatbot Lawyers: “Technologies like Ross and Lex Machina are intended to assist lawyers, but AI has also begun to replace them—at least in very straightforward areas of law. The most successful robolawyer yet was developed by a British teenager named Joshua Browder. Called DoNotPay, it’s a free parking-ticket-fighting chatbot that asks a series of questions about your case—Were the signs clearly marked? Were you parked illegally because of a medical emergency?—and generates a letter that can be filed with the appropriate agency. So far, the bot has helped more than 215,000 people beat traffic and parking tickets in London, New York, and Seattle.  . . .”
  3. Minority Report: “. . . .In many states, judges use software called compas to help with setting bail and deciding whether to grant parole. The software uses information from a survey with more than 100 questions—covering things like a defendant’s gender, age, criminal history, and personal relationships—to predict whether he or she is a flight risk or likely to re-offend. . . .”
  4. An Explosion of Lawsuits: “Eventually, we may not need lawyers, judges, or even courtrooms to settle civil disputes. Ronald Collins, a professor at the University of Washington School of Law, has outlined a system for landlord–tenant disagreements. Because in many instances the facts are uncontested—whether you paid your rent on time, whether your landlord fixed the thermostat—and the legal codes are well defined, a good number of cases can be filed, tried, and adjudicated by software. Using an app or a chatbot, each party would complete a questionnaire about the facts of the case and submit digital evidence. ‘Rather than hiring a lawyer and having your case sit on a docket for five weeks, you can have an email of adjudication in five minutes,’ Collins told me. He believes the execution of wills, contracts, and divorces could likely be automated without significantly changing the outcome in the majority of cases. . . .”

There’s more in the Koebler piece, including a “Brief Chronicle of Legal Technology” — so check out the full article.

Forthcoming: Related Works 

  • Coming next year from Cambridge University Press: Collins & Skover, Robotica: Speech Rights & Artificial IntelligenceThe book (the main text of which is now complete) will include commentaries by Ryan CaloJane Bambauer, James Grimmelmann, Bruce Johnson, and Helen Norton along with a rejoinder by the authors.