Category: General Law

4

Salary Disparities At Boalt

There has been a burst of activity on the University of California faculty salary expose front here, here, here , here, and here. Most exciting for the law porn crown (Playprof?) is the list of top earners among UC law faculty. We discover, in this list, that of the 16 top earning tenured full time faculty at Boalt, all but two are men. Compare that with the overall faculty: 13 of 51 full professors (according to my quick count on the Boalt website) are women. Perhaps this can be explained by seniority and market competition. In any case, I suspect that a few folks – perhaps Kathryn Abrams or Pamela Samuelson – will have some questions for Dean Edley (who is inexplicably not on this list but is listed elsewhere at 280 large per year.)

2

Uncle Sam wants you . . .

. . . to hand over your search records.

From Findlaw:

The U.S. Department of Justice filed a motion in federal court seeking a court order that would compel search engine company Google, Inc. to turn over “a multi-stage random sample of one million URL’s” from Google’s database, and a computer file with “the text of each search string entered onto Google’s search engine over a one-week period (absent any information identifying the person who entered such query.”

The Complaint is available on the Findlaw site.

1

Drug Package Insert Regulations

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The Times this morning offers this revealing story about the FDA’s new drug package insert regulations.

There is lots here for the legal blawgosphere to chew on. Administrative law profs will be interested in claims about the pre-emptive effect of the regulation’s preamble. Behavioral researchers will like the discussion of information overload. And, needless to say, food law folks will wonder if they are next.

But I’m interested in a detour around halfway through the story, where the author notes (and I’m going to take his word for it) that:

But the rule does not address the information sheets routinely provided to patients by pharmacists. These sheets are lightly regulated and often fail to include important drug warnings.

Here’s my (perhaps silly) question. What economic explanation is there for the “fail[ure] to include important drug warnings”? Even if consumers don’t want this information,* why don’t drug companies want to marginally reduce their liability costs? Perhaps they are more interested in making “extra” profits on off-label use (which could be deterred by pharmacy information sheets) than they are concerned about reducing accident costs (which might be relatively fixed). But perhaps I haven’t thought about this hard enough. Does anyone else have an idea?

* I’m skeptical, that that is a topic for another post.

1

A “Stealth Rottweiler”

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Following up on a story the blawgosphere chewed on a few weeks back, Peter Lattman of the WSJ blog posts on the latest Martin Singer cease-and-desist letter controversy.

Singer’s letters usually claim that they are copyrighted and may not be published further. (The particular letter on Lattman’s radar has an interesting commentary on its recepient’s likely response. But you are going to have to go through the WSJ’s blog to find it.)

As I know almost nothing about copyright law and libel, I can’t comment on the merits of the dispute. However, I can say that Lattman has unearthed a great quote from Singer client Priscilla Presley, who apparently once said “Marty Singer is a very nice man who loves his family. But if he thinks someone has done me harm, he is a stealth rottweiler.”

A stealth rottweiler? Isn’t the whole point of rottweilers that you know they are coming?

1

Sunstein and Barnett at AALS

Some of you missed the Friday morning session at AALS about the Constitution in Exile, with Cass Sunstein and Randy Barnett. It was your loss – the session was phenomenal. It was the best session of any that I attended at the conference (including the blogging session, which was itself very good). Both Sunstein and Barnett are very good speakers, and the material they covered was very interesting.

What I’m posting here is a summary and highlights from my own notes on the session, followed by my more detailed session notes. I don’t claim to have gotten it all, but I think I got the important parts. Hopefully I won’t misrepresent anything in my hastily transcribed, condensed notes; if any of this looks misleading or wrong, please let me know.

Summary and Highlights

Sunstein made the interesting tactical decision to almost entirely avoid the stated program topic during his prepared remarks. (Note: I arrived a few minutes late, so it’s possible that he spent the first 3 minutes on Constitution-in-Exile and then moved on.) From the point where I arrived, Sunstein’s sole nod to the official program topic during his prepared remarks was a curious, wholly unexplained aside that “the idea of a Constitution in exile comes from Judge Ginsburg, and we can be sure others are taking the idea seriously.”

Instead of discussing the constitution in exile, Sunstein spent his prepared remarks focusing on the possibility of a Burkean minimalist approach – basically, a minimalist approach that would also place a high value on tradition. His comments were quite interesting. He said that he evaluated competing interpretive approaches based on consequentialist criteria, and that based on consequences, originalism was unacceptable. He noted that originalism would make sense in some possible worlds, but that this world is not one of them.

Barnett, not surprisingly, took Sunstein to task for skipping out on the stated program topic. Barnett effectively criticized Sunstein’s use of the term “fundamentalist” in his new book, but then went into a not-entirely-convincing side argument where he compared Sunstein’s liberal credentials to his own.

Barnett made the argument (which he has previously made on blog) that there is no Constitution in Exile movement, and said that the lost constitution is not the Republican Party’s ideals, but rather the constitutional provisions that no longer operate (e.g., 9th amendment, 2nd amendment, privileges and immunities, and so on). He closed with some thoughts on Sunstein’s newly-articulated Burkean minimalism discussion.

In the responses and then the Q and A, a number of interesting points came up. First, it was quite clear that Sunstein and Barnett explicitly agreed on many things. They agreed on the need to judge interpretive approaches by consequentialist criteria. Barnett stated that his approach is “identical at the meta level to Cass; we disagree about results.” They also agreed that Justice Scalia is not really an originalist – Sunstein alternatively labeled him a “fainthearted originalist” and a “perfectionist” while Barnett labeled him a judicial restraint person.

Disagreements came up as well. In particular, Sunstein pushed back on the constitution in exile meme that he had avoided in his opening remarks. He argued first that “there is a movement, but Randy isn’t part of it.” Who then comprises the movement? He mentioned unnamed persons in the Meese justice department; unnamed Republicans; “fundamentalists.” He asserted that this group comprises a “monolithic political movement” (which still, to me, sounded like a dodge).

However, when pressed, Sunstein came up with his most effective argument of the morning relating to the “is there really a movement?” question. Hammered by Barnett and by questioner David Bernstein, who focused on disagreements between conservative academics, Sunstein fired back: “Even though Brennan and Marshall disagreed on many things, it would be disingenuous to say that there was no movement on the Warren court.” From there, he pointed out that it is quite possible that a Constitution-in-Exile movement could exist even though many of its proponents disagreed on some of the details.

Other interesting notes: Barnett articulated the idea that originalism is a protection against rootless pragmatism. Barnett argued that “today’s conservatives are unreconstructed New Deal jurisprudes; progressives are reconstructed” (which drew a “What!?” from Sunstein). Sunstein elaborated on minimalism, arguing that there is no Thayerian on the court today; there is no Frankfurter. “The closest we have is Breyer, and he’s not very close.” Barnett asserted (not particularly convincingly, I thought) that “most conservative Republicans are perfectly satisfied with the New Deal jurisprudence.”

Expanded notes below the fold.

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2

To D or not to D, that is the question

Let’s talk for a second about every law student’s favorite subject – grades.

Back when (and where) I attended law school, the curve was right around B+. For any given class, perhaps 25 or 30 percent of students would receive an A or A-minus, perhaps 30 percent would receive a B-plus, and another 30 or maybe 40 percent a B. A small group of stragglers might receive B-minuses, but only truly derelict students – serial killers, for example, or Republicans – ever stood to receive anything less.

Things are different at my current employer. There is a 2.5-2.8 mandatory average, and there are caps for each grade level. As a result, my curve required me to assign a number of B-minuses, C’s and C-pluses.

Below that group lay a subset of exams which is the topic of this post: Those which were clearly going to end up below C level. The question on my mind was just how far below C level these should fall. Should I lump them all together under the C-minus umbrella? Or were some of them destined to receive D’s?

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0

AALS Contracts Session

As ContractsProf Blog spotlighted here, today was the Contracts Section meeting at the AALS Conference. The theme was empirical studies in contract law. Section Chair David Snyder moderated a discussion of papers by: Mitu Gulati (presenting on disclosure and sovereign debt contracts); George Geis (presenting on the optimal specificity of default rules); Debora Threedy (presenting on “legal archaeology”, i.e., qualitative research on leading cases); and Stewart Macaulay.

Macaulay in particular provided a good perspective on the field, based on his long experience as one of the founders of the law and society movement. He noted the increasing prevalence of private dispute resolution for contractual disputes, and evidence (some presented today) of contracts’ lawyers lack of interest in the existence of, or changes in, governing default rules. The message of his talk – somewhat implicit – was that there would be surprisingly few economic consequences were contract law to pick itself up and disappear off of the face of the earth. That is, the hierarchical model of American legal education, which posits that judges (and professors?) generate law, lawyers interpret it, and clients follow it, bears little to no relationship to observed experience. Obviously, Macaulay said it better than I could, and certainly this isn’t a novel idea (he’s said it before, in many places and in many forms) but it was a good thing to be reminded of as I begin to get ready to teach the second semester of my contracts course.

1

Thanks

Thanks to all who attended the happy hour last evening. We had a great turnout and a terrific time.

21

Hollywood and “Asians”

geisha.bmpI used to live in South Korea; a fact, I think, that tends to make me a bit touchy about the linguistic, cultural, and — yes — physical differences between various Asian countries. People are fond of talking about things “Asian” without always realizing that there is a huge difference between say Thailand and Korea, or Japan and China. For example, linguistically Chinese has more in common with English than it does with Japanese or Korean. (Setting aside the vocabulary that both languages have borrowed from China.) Needless to say “Asians” also do not constitute a single ethnic group.

Which brings me to Memoirs of a Geisha, just released by Sony pictures. According to all of the reviews, it is a beautifully filmed movie. However, I can’t help but notice that in this very Japanese story all of the lead actresses are Chinese. I don’t think that there is any need to become some sort of fundamentalist about ethnic or national identities, but could you imagine Hollywood producing a movie about a group of Greek women and casting a trio of Norwegian actresses in the lead roles?

6

The Atticus Challenge

atticus.jpgOne of the joys of private practice is that I get constantly peppered with mail from the local bar associations asking me to join this or that group or threatening me with dire professional consequences if I don’t get my CLE all done on time. A recent flyer from the Virginia Bar Association, however, has risen to a new level of non-sequitor advertising in professional junk mail. This is what the front page of the flyer says, word for word:

The Atticus Challenge

Did you know that…

Atticus Finch of To Kill a Mockingbird is the most famous movie hero of all time?

Why?

Because he is the paradigm gentleman, father, citizen, public servant and lawyer

“Stand up Miss Jean Louise, your father’s passin.”

Every lawyer should be so respect as to have something like that said about him or her.

What would Atticus do?

Atticus would be a member of the Virginia Bar Association and challenge all Virginia lawyers to give of their time and talent to volunteer bar services — because it is our duty and our heritage.

Answer Atticus’ Challenge

Become a lifelong and active member of the Virginia Bar Association and encourage at least one other lawyer to join.

I am not quite sure where to begin or what to say, other than “What the @#$$%?!” To be sure Atticus was a laudable hero (in a book before a movie, by the way), and I am sure that lawyers would do well to strive to emulate his better points. I am at a loss, however, to see what that has to do with becoming a member of the Virginia Bar Association (which is different, by the way, from the Virginia State Bar, the licensing authority for attorneys in the Commonwealth). As I recall Atticus’ great virtues lay in his honest and willingness to represent an unpopular client who was falsely accused. He stood up against racial bigotry, spoke truth to power, and seems to have been a good daddy to Scout into the bargain. I don’t recall, however, the part of the story where he proudly joined one of the state’s lawyer clubs…