Category: General Law


Collective Action, Copenhagen, and the Deus ex Machina

Today in Copenhagen, as the prospects for a workable climate change treaty grew very dim, President Obama said, “our ability to engage in collective action is in doubt.”  This couldn’t have been a revelation for a man who taught law at Chicago.  I think I could make a pretty good argument that what has made Chicago Chicago during the past half century is the attention its faculty has paid to the enormous obstacles to welfare-maximizing collective action in the management of a resource. 

There are several potential responses, of course, to the difficulties of welfare-maximization presented by collective action.  Most Chicagoan, perhaps, is to recognize that collective action is an inadequate instrument, and to overcome it by the allocation of private property rights in the resource instead.  This bottom-up approach works very well in many instances, but not very well between sovereign nations with regard to atmospheric emissions.  Among other reasons, attempting to create a system of allocation is itself beset by the collective action problems inherent in the management of the resource.

Another response to the collective action problem is to simply impose restrictions from above.  State-planned economies (including, in some respects and at some times, the United States) do this, in some cases disastrously, in some cases pretty well.  But there is no authority that can impose restrictions from above on sovereign nations with regard to atmospheric emissions. 

What we have, then, is the tragedy of commons without the usual means of overcoming it — dispensing with collective action.  If alternatives to welfare-maximization through collective action aren’t possible, what is left, other than collective action?  Not much.  That may be why even a man who taught at Chicago has pinned his hopes to that unlikely instrument. 

In my natural resources law seminar last semester, I had the students play a typical ‘tragedy of the commons’ game, in which a common resource was sufficient for the group to survive, but only if each member acted against her own strict self-interest, and someone was willing to incur the transactions costs associated with coordinatiing a group welfare-maximizing allocation system.  As Hardin would have predicted, the resource was soon destroyed and the students starved.  Something a student said to me then struck me as I watched President Obama’s speech today: “what we really needed was you to come in here and show us what we should do.”

In other words, what they needed — if they were to succeed collectively — was a deus ex machina to appear and, with the force of logic and moral suasion, persuade them to overcome their collective action problem.  It reminded me of Sophocles’s Philoctetes: even the good-hearted Neoptolemus cannot persuade Philoctetes give up satisfying his justifiable grudge against the Greek army at Troy, and by doing so make himself and the rest of the Greek army better off.  Only the last-minute intervention of Heracles, now a type of deity, can persuade him.  


Perhaps that is what President Obama is trying to be for the Copenhagen talks today.  It seems unlikely to work — after all, what makes the deus ex machina a deus is that it exists apart from the petty interests of the group.  President Obama will not be heard other than as the voice of one member of the group — a member which the others would rightly regard with suspicion, since it is likely to pursue its own self-interest.  I respect President Obama for trying, but I’m pessimistic.  Try as he might, he’s Neoptolemus, not Heracles.

Sorry if this sounds dramatic (so to speak), but consider this: one definition of tragedy is man’s realization that he can never be a god; that not matter how much he struggles, he is trapped within the bounds of human existence.  If that’s true, then if, as seems likely, we see President Obama fail today to successfully play the deus ex machina and persuade the individual nations from adherence to their own strict self-interest, then we will be witnessing a type of tragedy in the traditional sense of the word.  The inability of any one member of the group to assume a role above his self-interested existence, even if that is what he intends to do — in other words, to become a deus — would not surprise Sophocles.  But it’s sad to witness as member of the chorus.


UCLA Law Review 57:2 (December 2009)

Volume 57, Issue 2 (December 2009)


The Unexceptionalism of “Evolving Standards” Corinna Barrett Lain 365
The (Constitutional) Convention on IP: A New Reading Dotan Oliar 421


Unborn & Unprotected: The Rights Of The Fetus Under § 1983 Bram Alden 481
An Economic Crisis is a Terrible Thing to Waste: Reforming the Business of Law for a Sustainable and Competitive Future Erin J. Cox 511
Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians: An Argument for a Statutory Abrogation of Oliphant Samuel E. Ennis 553

The Benefits of Cultural Funding

In a reversal of the Bush years and later Clinton years, President Barack Obama has shown a firm commitment to the arts as a societal good.

He has brought musicians of all sorts to the White House for performances and educational sessions, as well as backing $100 million in new cultural funding. In addition, the National Endowments for the Arts and Humanities have received their largest allocations of federal money in 16 years.

Jim Leach, the former Iowa Republican representative and head of the humanities endowment has championed arts spending by arguing that public money spent on the arts and humanities helps “to bring perspective to issues of the day.” However, a new study from Norway of nearly 50,000 people suggests that cultural engagement may have a more direct positive impact on members of the public.

As summarized at ScienceDaily, according to researchers at the Norwegian University of Science and Technology,

[i]f you paint, dance or play a musical instrument—or just enjoy going to the theatre or to concerts—it’s likely that you feel healthier and are less depressed than people who don’t . . . .

. . .

“There is a positive relationship between cultural participation and self-perceived health for both women and men,” says Professor Jostein Holmen, a . . . researcher who presented the findings, which have not yet been published . . . . “For men, there is also a positive relationship between cultural participation and depression, in that there is less depression among men who participate in cultural activities, although this is not true for women.”

In the study, the researchers controlled for socioeconomic status, social capital, chronic illness, and smoking and alcohol use, among other factors.

For lovers of the arts, all of this is promising. Still, the verdict is out on whether Obama will truly be a “culture” president. His administration ran into trouble earlier this year when an official at the arts endowment, Yosi Sergant, encouraged artists to focus their work on assisting Obama’s agenda on health care, education, and the environment. This led the White House to issue guidance to agencies to be firm in not allowing politics to play a part in public grants. (For those who are interested, in a previous op-ed in the Washington Post, I considered the dangers that powerful non-governmental entities—particularly corporations—pose to the independence of art.)

We shall see what 2010 brings.


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.)


You Can’t Copyright “Convicted Rapist”

Former South Dakota Representative Ted Alvin Klaudt sent a notice to The Associated Press and a few other news outlets on Monday informing them that he was reserving a common-law copyright for his name and that anyone who used it without his express consent would be on the hook for $500,000.

Two years ago, Klaudt was convicted of second-degree rape for coercing his two teenage foster daughters into a fake “fertility” examination, purportedly to assist them in acting as egg donors.

He got 44 years.

And, oh, yeah, 10 more for witness tampering.

The Associate Press has decided to risk it, despite Klaudt’s warning. As reported in the New York Times:

Laura Malone, associated general counsel for intellectual property at The Associated Press, said names of people, companies and products cannot be protected under copyright law. Names can be protected under trademark law, but only in association with goods or services used in commerce, she said.

“Even if there was a valid trademark, the mere use of the name in a news story is not an infringement of trademark,” Malone said Tuesday.

“There is no legal substance to these claims,” she added.

Well, Mr. Klaudt, it was worth the try . . .


My favorite interrogation scene

It’s disturbing to realize I have a favorite interrogation scene, but now isn’t the time for introspection.  My students are taking their criminal procedure final tomorrow, and interrogation is much on my mind.  Thus I present you with what I believe is the finest interrogation in television history, and perhaps the most realistic fictional one, from the fantastic HBO series The Wire.

Bunk shows how it’s done


I love showing this clip to my students.  It’s a great antidote to the myopia that develops from breathing too much of the rarified air of Supreme Court opinions.  Warning: every third word is m@#$!%$*&^!r.

Do you have any clips you love to show your students — interrogations or otherwise?


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.


Buy Now! New and Improved Edition!

Say what you will about Aspen, West, and the rest, but the recent rise of the used textbook market (particularly online) has been tough on publishers seeking profit growth and to keep revenues up they have looked for ways to fight back.

One of the main approaches has been to pump out new editions of casebooks more and more frequently.

I have found this frustrating, not only because I would like my students not have to fork over a hundred and fifty bucks for a book unless it is absolutely necessary, but also because it requires constant updating of teaching materials by professors (or their assistants), which takes away from other academic pursuits. Clearly, some of this revision of teaching notes can be beneficial (e.g., learning about new developments in case law), but a lot of it is tedious make-work (e.g., updating page numbers).

I taught my current Business Organizations textbook exactly one time before it was “updated.” When I asked for a list of changes from the publisher so that I didn’t have to do a comparison myself, I was denied, which struck me as odd at the time, but made some sense after I completed the comparison. There wasn’t much different other than an altered thickness and width of the paper and a few changes to cases toward the end of the book.

It all seems like a waste of money, time, and paper.

Is there a better way forward?

Online enrichment tools? Rapidly disintegrating pages? Kindle copies?

If you have an idea, let’s hear it . . . operators at the major legal publishing houses are standing by.


Sidebar Publishes First in Series of Essays on Immigration Law

Sidebar Logo
Over the next few months Sidebar will be publishing a series of three pieces on the current state and future direction of immigration law.  The first piece in our series is by Professor Jennifer Chacón of UC Irvine Law and is titled “Managing Migration Through Crime.”

In this piece Professor Chacón examines the criminal prosecution of migration related offenses.  She highlights the ways in which the regulation of migration has increasingly become a subject of the criminal law and discusses the explosion of migration-related criminal prosecutions over the past few years.  She then provides several examples of the use of criminal prosecutions in the migration context in order to explore an undertheorized effect of this trend, namely, that the protective features of criminal investigation and adjudication are melting away at the edges in certain criminal cases involving migration-related offenses.