Category: General Law

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FAN 126 (First Amendment News) Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times”

This issue of First Amendment News reproduces the text of a speech (The Aims of Education Address) Professor Geoffrey Stone delivered at the University of Chicago on September 22nd. The Aims Address is given each year by a member of the University of Chicago faculty to welcome the entering college class. It is delivered in the University’s Rockefeller Chapel. (A video of Professor Stone’s address can be found here.

Given the controversy over campus speech codes and the University of Chicago’s open letter to its students, I thought the following remarks would help inform reasoned discussion of the issue of free speech on college campuses. I have added subheadings, hyperlinks, bullets, and photographs to Professor Stone’s text.     

Professor Stone is is the Edward H. Levi Distinguished Service Professor at the University of Chicago and the author of Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) and Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, W.W. Norton, Mar 21, 2017). 

 ________________________

Welcome to what you will come to know as The University and to the beginning of what I hope and trust will be one of the great adventures of your life. Whenever I think of students arriving here for the first time, I can’t help but recall an incident involving Justice Oliver Wendell Holmes.

Professor Stone delivering the Aims Address

Professor Stone delivering the Aims Address

At the time of this incident, Holmes was a very old man, nearing 90 years of age, in the autumn of his very long and very distinguished career as a Justice on the Suprme Court of the United States. On this particular occasion, Holmes was on a train headed north from Washington. He was deeply engrossed in reading a legal brief when the conductor knocked on the door to his compartment. Recognizing Holmes, the conductor respectfully asked for his ticket. Holmes looked in his coat pocket — no ticket. He looked in his vest pocket — no ticket. He reached into his trouser pocket — no ticket. Growing ever more frantic, Holmes began rummaging desperately through his briefcase — still no ticket.

At this point, the conductor, trying to calm Holmes, said “Never mind, Mr. Justice. It’s really not a problem. When you find the ticket, just mail it in to the company.” To which Holmes exploded: “You dolt! I don’t give a damn about your ticket, I just want to know where the hell I’m supposed to be going!”

In your first days on this campus, you will likely feel a bit like Justice Holmes — you will want to know where the hell you’re supposed to be going. My task this evening is to offer at least some sense of direction.

[A True Story about Rebels, circa 1918]

I should like to begin by telling you a bit about my world. It is the world of the law. More specifically, it is the world of constitutional law. Law is about stories. It is about real people involved in real disputes with real consequences. So, I shall tell you a story.

This story begins during World War I. As you may or may not know, World War I was not a particularly popular war with the American people, whose sympathies were divided. Many Americans vigorously opposed the Wilson administration’s decision to intervene in the conflict that was then raging in Europe, arguing that our intervention was both unwise and immoral.

Not surprisingly, such opposition did not sit well with the government. In 1917 Attorney General Thomas Gregory, attacking the loyalty of war opponents, declared: “May God have mercy on them, for they can expect none from . . . an avenging government.”

Gregory wasn’t kidding about the “avenging” government. In 1918, Congress enacted the Sedition Act, which made it a crime for any person to utter “any disloyal, . . . scurrilous, or abusive language intended to cause contempt . . . for the . . . government of the United States, the Constitution, or the flag.” True to the Attorney General’s threat, federal authorities launched more than 2,000 prosecutions against individuals who wrote or spoke against the war or the draft.

The defendants in Abrams v. US

The defendants in Abrams v. United States

One such prosecution involved five young, Russian-Jewish emigrants who were roughly your age at the time. In the summer of 1918, the United States sent a contingent of marines to Vladivostok in Russia. Concerned that this was the first step of an American effort to crush the Russian Revolution, these five self-proclaimed socialists threw several thousand copies of each of two leaflets — one in English, the other in Yiddish — from several rooftops on the lower east side of New York City.

The leaflets, which were boldly signed “The Rebels,” were addressed to other Russian emigrants. After stating that the Rebels hated “German militarism,” they warned those who worked in ammunition factories that they were “producing bullets, bayonets and cannon to murder not only the Germans, but also your dearest, your best, who are in Russia and are fighting for their freedom.”

The “Rebels” were immediately arrested by the military police. After a controversial trial, they were convicted of violating the Sedition Act of 1918. The trial judge, disgusted by their behavior and their beliefs, sentenced the Rebels to terms ranging up to twenty years in prison.

The Rebels appealed their convictions to the Supreme Court of the United States, claiming that their convictions violated the First Amendment, which guarantees that “Congress shall make no law . . . abridging the freedom of speech.” In Abrams v. United States, the Supreme Court, in a seven-to-two decision, rejected this claim and upheld the convictions. For the majority of the Court, this was an easy case. Because the natural tendency of the defendants’ speech was to generate opposition to the war, it was not within “the freedom of speech” protected by the Constitution.

Justice Holmes

Justice Holmes

Justice Oliver Wendell Holmes, the same Justice Holmes who some years later was to lose his railway ticket, dissented. Holmes’s dissenting opinion in Abrams is worth reading, for it remains one of the most eloquent statements ever written by a Justice of the Supreme Court about the freedom of expression.

Holmes wrote: “Persecution for the expression of opinion seems to me perfectly logical. If you have no doubt of your premises . . . and want a certain result with all your heart you naturally [want to] sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

Holmes therefore concluded that “we should be eternally vigilant against attempts to check the expression” even of “opinions that we loathe and believe to be fraught with death, unless they so imminently threaten” compelling government interests that an immediate check is necessary to save the nation.

Professor Harry Kalven (1914-1974)

Professor Harry Kalven (1914-1974)

I first read this passage, written almost a century ago, when I was a law student at this University, almost half-a-century ago. It has engaged my energy and curiosity ever since. Indeed, I think it’s fair to say that it was my puzzling over this passage under the probing tutelage of my law school professor Harry Kalven that, for better or worse, put me on the path to my career and, indeed, to where I stand before you this evening.

[The Aims of Education]

But now I must change direction, for this is not to be a discourse on the First Amendment. It is, rather, to be a talk about the aims of education. Happily, these are not unrelated subjects. To the contrary, the longer I have puzzled over the meaning of free expression, and the longer I have thought about education, the more the two seem to me to converge. Indeed, neither really is worth all that much without the other. And, with that in mind, I would like to turn to what I see as the intersection of free expression and education, and to the subject of academic freedom, for it is at this intersection that we will find the most fundamental values of the world you are about to enter.

I hope to accomplish three things in this part of my talk:

  • First, I will trace briefly for you the history of academic freedom, for it is only by understanding where we have been that we can appreciate — in both senses of the word — where we are today.
  • Second, I will talk a bit about this University and about the special role it has played in the struggle to establish and to preserve academic freedom.
  • And third, I will offer some thoughts about what all this means for you and about the responsibilities that we today bear in common.

It is important to understand that, like the freedom of speech, academic freedom is not a law of nature. It does not exist of its own force. It is always vulnerable, and should never be taken for granted. Indeed, until well into the 19th century, real freedom of thought was neither practiced nor professed in American universities.

To the contrary, any real freedom of inquiry or expression in American colleges in this era was smothered by the dominance of religion and by the prevailing theory of “doctrinal moralism,” which assumed that the worth of an idea must be judged by what the institution’s leaders declared its moral value to be. Thus, through the first half of the nineteenth century American colleges squelched any notion of free and open discussion or intellectual curiosity. Any student or faculty member who dared argue, for example, that women were equal to men, that blacks were equal to whites, or that homosexuality was not immoral would surely be expelled or fired without hesitation.

Similarly, through the first half of the nineteenth century, as the nation moved towards Civil War, any professor or student in the North who openly defended slavery, or any professor or student in the South who openly challenged slavery, could readily be dismissed, disciplined, or expelled. When a professor at the University of North Carolina expressed sympathy for the 1856 Republican presidential candidate, the students burned him in effigy and he was dismissed by the trustees. When a professor at Franklin College in Pennsylvania admitted he was not an abolitionist, he was promptly fired.

Several decades later, a furious battle arose over Charles Darwin’s theory of evolution, with traditionalists charging not only that Darwin was wrong, but also that his beliefs were dangerous, immoral, and ungodly. As a consequence of the furious battle in the academy over evolution, new academic goals came to be embraced.

Dean William Rainey Harper (1856 – 1906)

President William Rainey Harper (1856 – 1906)

For the first time, to criticize, as well as to preserve, traditional moral values and understandings became an accepted function of higher education, and by 1892 William Rainey Harper, the first president of the University of Chicago, could boldly assert: “When for any reason the administration of a university attempts to dislodge a professor or punish a student because of his political or religious sentiments “at that moment the institution has ceased to be a university.”

But despite such noble sentiments, the battle for academic freedom has been a continuing and fiercely contentious one. In the closing years of the 19th century, for example, businessmen who had accumulated vast industrial wealth began to support universities on an unprecedented scale. But that support was not without strings, and during this era professors who offended wealthy donors by criticizing their business practices were dismissed from such leading universities as Cornell and Stanford.

Then, during the World War I, patriotic zealots persecuted and, as we have seen, even prosecuted those who questioned the wisdom or morality of the war. In the face of such outrage, universities collapsed almost completely in their defense of academic freedom. Students and professors were systematically expelled and fired at colleges and universities across the nation merely for encouraging a spirit of indifference toward the war.

Similar issues arose again, with a vengeance, during the Cold War in the age of Joseph McCarthy. In the late 1940s and 1950s, most universities excluded those even suspected of Communist sympathies from university life. Yale President Charles Seymour, for example, went so far as to boast that “there will be no witch hunts at Yale, because there will be no witches. We will neither admit nor hire anyone with Communist sympathies.”

As this history demonstrates, the freedom to question, the freedom to challenge, the freedom to inquire is not to be taken for granted. Academic freedom is, in fact, a hard-bought acquisition in an endless struggle to preserve the right of each individual, student and faculty alike, to seek wisdom, knowledge, and truth, free of the censor’s sword.

[The Univ. of Chicago & Academic Freedom] Read More

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FAN 125.1 (First Amendment News) 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns

“[A] lawyer for Mr. Trump, Marc E. Kasowitz, emailed a letter to The Times arguing that publication of the records is illegal because Mr. Trump has not authorized the disclosure of any of his tax returns. Mr. Kasowitz threatened ‘prompt initiation of appropriate legal action.’”

“Trump himself tweeted early Sunday: ‘I know our complex tax laws better than anyone who has ever run for president and am the only one who can fix them.’ Again, he did not deny or dispute the Times‘ findings.”

The headline in the New York Times read: “Trump Tax Records Obtained by The Times Reveal He Could Have Avoided Paying Taxes for Nearly Two Decades.” Here is how that story began: Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years, records obtained by The New York Times show. . . . The documents were the first page of a New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return. . . .”

Here is how The Times says those documents were obtained: “The three documents arrived by mail at The Times with a postmark indicating they had been sent from New York City. The return address claimed the envelope had been sent from Trump Tower.”

Susanne Craig, The Time I Found Donald Trump’s Tax Records in My Mailbox, New York Times, Oct. 2, 2016 (“I walked to my mailbox and spotted a manila envelope, postmarked New York, NY, with a return address of The Trump Organization. My heart skipped a beat.”)

Trump Reply: According to Eli Stokols writing in Politico: “A statement from Trump’s campaign neither confirmed nor denied that he filed a $916 million loss in his 1995 tax returns, but charged that the documents were ‘illegally obtained’ in what it said was “a further demonstration that the New York Times, like establishment media in general, is an extension of the Clinton Campaign, the Democratic Party and their global special interests.'”

As reported Dylan Stableford in Yahoo: “‘Mr. Trump is a highly skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required,’ the Trump campaign said in a statement. ‘That being said, Mr. Trump has paid hundreds of millions of dollars in property taxes, sales and excise taxes, real estate taxes, city taxes, state taxes, employee taxes and federal taxes, along with very substantial charitable contributions.'”

Federal & State Laws

26 U.S. Code § 7213 (a) (1): “It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution. . . .”

“(3) Other persons. It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.”

Marc Kasowitz

Marc Kasowitz

Trump’s Lawyer: According to The Times, Marc Kasowitz, a lawyer for Mr. Trump, has threatened “appropriate legal action.” Here is how Mr. Kasowitz is described on his firm’s biographical page:

  • “Described by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator'”
  • “[He] is widely regarded as one of the preeminent trial lawyers in the country.”
  • “He has been honored as a ‘Litigation Trailblazer’ by the National Law Journal.” 
  • “Opponents cited by The American Lawyer have acknowledged Marc as a ‘powerhouse’ and ‘the toughest of the tough guys,’ and a foreign publication has referred to him as ‘one of the most prominent and feared lawyers in the United States.'”

Related items

10 First Amendment Experts Respond

In light of what was written in the New York Times, I invited several First Amendment experts (practicing lawyers and noted scholars) to respond to the purported threat of litigation. Their comments are set out below. Following this post, I sent an e-mail to Mr. Kasowitz inviting his response.

Floyd Abrams:  The relevant body of First Amendment law that would be applied is not that of prior restraint –the Times has already published so there’s nothing to restrain any more — but cases relating to efforts to punish the publication of truthful information about matters of public interest. Those are cases that have held unconstitutional, on First Amendment grounds, statutes such as the following: barring publication of charges before a judicial panel passing on the alleged  misbehavior of judges; barring publication of the names of juveniles before juvenile courts (I argued those two cases in the Supreme Court); and barring publication of the names of rape victims. None of those cases laid down absolute rules. Neither did the most recent case in this line–the Bartnicki v. Vopper case. Taken together, however, all the cases make it extremely unlikely that the Times could constitutionally be held liable for publishing such a newsworthy story, a month before a presidential election, about a candidate for President.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle. 

Jane BambauerDonald Trump’s arguments are foreclosed by Bartnicki v. Vopper, where the Supreme Court said that the dissemination of information about a matter of public concern could not be penalized even if it was obvious that the information was originally obtained illegally. (Bartnicki involved the broadcast of a private phone conversation that was captured by third party using an illegal wiretap.) For hard cases, reasonable minds may differ about whether speech pertains to matters of public concern (e.g. Hulk Hogan’s sex tape), but the public interest in Trump’s tax records is not a hard case.

This episode also illustrates the tension between free speech and privacy, and shows why courts will tip the scales toward speech even if a generally applicable privacy law has been broken somewhere along the chain. Privacy scholars and advocates have done a very good job showing why privacy is important even if we have nothing to hide. But Donald Trump exposes the costs of privacy: sometimes those who take refuge in claims of privacy do in fact have something to hide. The Bartnicki rule lets us cheat the consequences of our own privacy rules. Privacy law may prohibit certain types of intrusions people’s private affairs, but when the intrusion has happened and produces something valuable, the public will get to reap the benefits of that transgression.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle.

Burt NeuborneThere is no conceivable basis for an action against The New York Times for publishing the income tax returns of a candidate for President. That’s why we have a First Amendment. Trump’s First Amendment privacy interest in whether he pays his taxes went out the window when he decided to run for the office of chief law enforcer. Why should anyone pay taxes if the President refuses to pay his fair share? Trump’s so used to bullying people into silence that he thinks he can do it to The New York Times. Fat chance. Remember the Pentagon Papers. 

Martin RedishIf the Pentagon Papers established anything, it’s that no prior restraint can be imposed on the Times in this situation to prevent them from publishing the tax records. If no criminal action was involved in obtaining the records, it is clear that no subsequent punishment can be imposed, either.

Where there may exist some doctrinal ambiguity (flowing, I believe, from the widespread and misguided assumption that prior restraints are somehow more invidious to First Amendment interests than subsequent punishment) is if the party providing the records to the Times obtained them illegally and subsequent punishment is sought. Purely as a normative matter, I have no doubt that under no circumstances should the act of publication of the records, in and of itself, be punishable. 

However, if The Times was actively involved in a criminal conspiracy to unlawfully acquire the records in the first place, I see no First Amendment bar to criminally punishing them for those acts. The First Amendment does not shield non-communicative criminal acts. For example, one is not constitutionally immune to prosecution for battery, merely because the battery was in an effort to coerce the victim to reveal information that is subsequently punished.

Steven R. Shapiro: The voters can decide what weight to attach to any information contained in Trump’s tax returns – or the returns of any other political candidate – but there can be no serious question about the right of the Times to publish that information. The Supreme Court has clearly and repeatedly held that the First Amendment protects the right of the press to publish information on matters of public concern, and that is true even if the information was unlawfully obtained by someone who then gave it to the press.

Steven Shiffrin: Except in very rare circumstances, newspapers are legally free to publish information provided by confidential sources. A politician may not want his financial records subject to public scrutiny, but he has no power to prevent or punish a newspaper for publishing records he would like to keep from public view. The protection of such a newspaper publication is part of the central meaning and purpose of the First Amendment. The suggestion of Mr. Trump’s counsel that this publication of the New York Times is not protected by the First Amendment is both idle and ignorant.

Geoffrey StoneThis is open-and-shut. As the Supreme Court made clear in the Pentagon Papers decision, the press cannot be held liable for publishing truthful information that is relevant to the public interest in the absence of a clear and present danger of grave harm. There is the question of invasion of privacy, but that tort applies only to information that is not “newsworthy.” That is hardly the case here. The First Amendment unquestionably protects the publication of Trump’s tax returns.

Nadine Strossen: The New York Times clearly has the right to publish Trump’s tax returns, and its readers have the right to read those returns, even absent Trump’s authorization.  The only authorization that is required is provided by the First Amendment, as well as multiple Supreme Court precedents.  The Court has consistently held that the First Amendment shields the publication of true information of public concern, including information that could be considered private, so long as the publisher did not act unlawfully in obtaining the information. The Court has upheld this right even when the parties who obtained the information and provided it to the publisher did act unlawfully. For example, the Court upheld the Times’ right to publish the Pentagon Papers regardless of whether Daniel Ellsberg acted unlawfully by providing these classified documents to the Times.  The Court also has upheld this principle when the information was illegally obtained from a private, non-governmental source.  As the Court explained: “[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance….One of the costs associated with participation in public affairs is an attendant loss of privacy. . . . [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 

The Court has repeatedly held that the First Amendment trumps various state and federal laws that impose criminal or civil liability for publishing truthful information about matters of public concern.  Although the Court has declined to rule categorically that the First Amendment defense will always prevail, it has stressed that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.”  (emphasis supplied) This is a very demanding standard, which the Court has never found to be satisfied, even in factual situations involving more pressing privacy concerns, and less compelling public information concerns, than those involved in the current situation.

Laurence Tribe: The idea of suing The New York Times to prevent or penalize publishing Mr. Trump’s tax returns is ludicrous. Regardless of who leaked that information to The Times, the First Amendment flatly forecloses any such use of judicial power to deprive the public of truthful information, especially given its relevance to a national election. [Twitter handle: @tribelaw]

* * *

The authors of the New York Times story were:

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The Fleecing of America’s Poor: Dan Hatcher’s The Poverty Industry

9781479874729_full

 

Having written about and represented many poor fathers in child support cases, I am familiar with the way federal and state child support policy undermines families. I understand how laws requiring recipients of public benefits to identify the fathers of their children and “cooperate” in child support enforcement hurt fragile family relationships. And I am aware that aspects of public functions like child support enforcement have been privatized in many states; I know this development has often resulted in prioritizing “revenue-maximization” over sound family policy.

But I had no idea about the extent of the harm caused by the broad web of contracts between the state and private industry to maximize profits from public benefits owed to vulnerable citizens until I read Dan Hatcher’s book, The Poverty Industry: The Exploitation of America’s Most Vulnerable Citizen’s (NYU Press 2016). I should start this review with two disclosures. Dan is a friend and has been my colleague for over ten years at the University of Baltimore law school. I have also followed this book from its inception to its publication. But my enthusiastic review here will echo much of the praise he has received in the many positive reviews of The Poverty Industry in both the academic and popular press.

In this book, Dan describes what he calls “Poverty’s Iron Triangle”– the relationship between the federal government, state government, and private contractors that cash-strapped states hire to provide services and maximize federal aid. As he describes it, “The revenue strategies begin with state human service agencies. Facing shrinking budgets, the agencies subvert their service missions to their own fiscal interests and turn their intended beneficiaries into revenue tools.” But “the revenue strategies often do not provide the agencies with additional fiscal capacity . …. Human service agencies extract funds from their own impoverished beneficiaries, states take aid funds from their agencies, and the private contractors in turn take their cut.”

Hatcher begins the book with stories of two boys in foster care in Maryland, Alex and Ryan. Both boys, now adults, had lived in multiple foster homes and “aged out” of foster care without adequate education or other resources to support themselves. Both were designated beneficiaries of their fathers’ social security survivor benefits. But, without their knowledge or consent, the foster care agencies entrusted with their care applied for the benefits in the boys’ names and converted the benefits to agency revenue. Both boys were Hatcher’s clients. He uses their own words to describe both the financial and emotional harm to children that result when the state engages in these practices.

Hatcher returns to Alex and Ryan in a later chapter where he lays out the incentives state foster care agencies have to remove children like Alex and Ryan from their homes. These incentives trump the agency’s mission to provide assistance to impoverished families accused of neglecting their children. Removing children, rather than supporting their families to provide safe homes, opens multiple federally financed “revenue streams” from which the agency, with the help of private contractors, can draw. Federal funding is linked to the number of children in need of services. The more children identified and the more services they need, the more revenue to the state. These funds often do not go toward helping the identified children; the money goes to the agency but often ends up diverted to the state’s general budget.

Depending upon the condition of the child or, often enough, the aggressiveness of private contractors like MAXIMUS, Inc., the agency may become eligible for a range of federal programs or other payments intended to benefit the child directly or increase aid to the agency to provide services to the child. These include federal assistance that comes directly to the agency by virtue of the child’s placement in foster care–Foster Care Assistance, Medicaid Assistance (enhanced by eligibility for therapeutic, psychiatric and pharmaceutical benefits) and Adoptions Assistance. Revenue can also be diverted to the state from benefits designated for the individual child by virtue of his/her parents’ payments or benefits. These include parent-paid child support payments, Veteran’s Dependent Benefits, Social Security Survivor or Disability Benefits and assets the child may own.

I have to admit that the level of detail in this part of the book, while a testament to Dan’s painstaking research, will likely be challenging for most readers. It is often difficult to follow  the many federal statutes that underlie these benefit schemes. The illustrations and graphs Hatcher includes do help in understanding how an agency and private contractor can “mine” for so many potential benefits that may ultimately be diverted for other uses.

Later chapters lay out the ways in which theses schemes are expanded to include benefits for the sick and the elderly, particularly Medicaid. Through the use of freedom of information requests and other careful digging, Hatcher reveals how private contractors refer to children, the sick and the elderly as “units” whose eligibility for services is maximized to increase revenue. These contractors use “data analytics, algorithms, prioritization and dissection” to increase the range of services each “unit” is eligible for and, thus, increase revenue. For example, private contractors encourage the diagnosis of mental health issues in children and the elderly for therapeutic and drug treatment to tap into broader Medicaid or Social Security Disability benefits. These chapters includes specific state examples to illustrate the complicity of various state actors and the lack of oversight necessary to uncover these schemes.

The final chapters of the book look ahead to warn about the expanding risk of government and private industry collusion to use poor kids and others receiving public benefits as “revenue tools.” These chapters also include broad suggestions for reforms to realign “the practices of human service agencies with their intended missions.” The usual punch line in an article or book about governments failing poor families is an argument for more public funding. Hatcher shifts that focus. Instead, he argues that the first step for politicians and policymakers who want to reform and improve social services is to understand the way the poverty industry is misusing existing funds.

One concern after reading the book is the risk in exposing these practices. Given the many examples of misused funds in the book, why wouldn’t those who argue for “small government” use these abuses as support for cutting federal funds for the poor? But Hatcher makes clear that cutting funds is not the route to reform. Instead, by exposing these practices, he calls for more agency accountability and less reliance on private industry to perform public functions. Knowing what has gone wrong is the first step toward creating a structure that will fulfill the critical mission of these agencies—to provide a safety net for the most vulnerable and promote more promising futures for abused and neglected children.

The depth of knowledge Dan brings to this project is extraordinary. It reflects his many years as a passionate advocate for foster children.  This advocacy has included representing individual clients against state agencies in trial and appellate courts as well as testifying before Congress and other legislative bodies with resulting law reform. But his passion for protecting the poor and vulnerable never interferes with his meticulously researched descriptions and assessments of these public private relationships.

Indeed Dan’s credibility and authority on these issues is demonstrated by the inquiries he has received from Congressional offices seeking ideas about how to address the problems he has identified in the book. Dan recently described to me a trip to Capitol Hill he made at the request of a mid-western Senator. Walking into the Congressional hearing room designated for the meeting, he found about twenty-five Senate staffers who had read his book and were ready to take notes on how to draft reform legislation. Can any of us engaged in legal scholarship, often with the modest hope that it will be read, envision a more satisfying scene? Remember that scene and The Poverty Industry the next time someone asks you why law schools should continue to fund and support legal scholarship.

 

Jane C. Murphy is the Laurence M. Katz Professor at the University of Baltimore School of Law.

 

 

 

 

 

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The American Role in International Surrogacy

At the beginning of September, I attended a conference on international surrogacy at the University of Hong Kong.  It confirmed my growing recognition of the importance of globalization of fertility treatments.   It also reinforced my sense of an extremely dynamic area of medical practice, with cutting edge new medical procedures increasingly taking place outside of the United States while the U.S. regulatory environment contributes to the systemization of controversial practices such as surrogacy and sex selection.

As part of my preparation for the conference, I started with a review of fertility clinic on-line sites.  The first time I did such a review more than a decade ago, I discovered that clinics were advertising the availability of preimplantation genetic diagnosis (PGD) to increase success rates.  I later spoke to a woman who gave birth to healthy twins after years of failed treatments and attributed it all to PGD and the ability to select the genetically healthy from the petri dish.  The doctor congratulated her, saying “you see, the problem wasn’t with you, it was with your embryos.”  The next time I checked, the clinics were offering sex selections services.  If you use PGD, after all, you can choose which embryos to implant, and sex is often the most obvious characteristic to consider in making the choice among healthy embryos.   My most recent internet survey found the globalization of fertility practice, recruiting the wealthy of the world to come to the United States and helping Americans find more affordable treatments abroad.

The Fertility Institutes, for example, which has offices in Los Angeles, New York and Utah, offers on its website “world renowned infertility and IVF programs, as well as leading egg donor, surrogacy and gender selection options.”  It works with affiliated clinics in 42 different countries, making it easier to recruit patients from around the world and refer them to appropriate facilities that match the patient’s needs and finances.  These developments also facilitate the evasion of restrictive regulations or local customs that might restrict patient access to the services of their choice.

Beyond looking at fertility clinic services, Naomi Cahn and I reviewed changes in American surrogacy over the last decade.   We were not surprised to find that surrogacy had increased, rising from one half of one percent in 1999 to two and a quarter percent in 2013.    More striking, however, were the changes in the percent of births to American women on behalf of non-U.S. residents intended parents.  As a percentage of all surrogate births, those involving non-American intended parents were just under 10 percent of the total in 1999.  They fell to 3 percent in 2005, but have risen steadily to over 18 percent of the total in 2013.  What changed during that period?

I learned at least part of the answer in Hong Kong: foreign practice is changing.  Thailand, which had been a surrogacy destination, adopted legislation restricting the ability of foreign residents to hire commercial surrogates, and India is considering doing so. The result has decreased the number of less expensive locations, with the United States again becoming a destination of choice for those who can afford it.  Particularly in states such as Connecticut and California that secure intended parents’ rights to recognition as the legal parents of the child, American surrogacy is seen – by overseas fertility tourists — as combining high quality medical facilities and legal certainty about the determination of parenthood.  Moreover, children born in the United States are regarded as American citizens and can receive American passports.  Wealthy parents in unstable parts of the world may view such citizenship as added insurance for their children’s futures.  And American services are open to many, such as gay men or single individuals, who may not find a welcome reception in their home countries.

The ease of access to the American market poses dilemmas for countries that do not recognize commercial surrogacy.  France attempted to deny French citizenship to children born to foreign surrogates, even if it recognized their French parents’ parental status.  But the European Court of Human Rights ruled that such practices deny the children their rights, and the French courts have reversed their stance.  In the UK, which also prohibits commercial surrogacy, the courts have consistently refused to punish the children for the circumstances of their birth.  The results are a series of decisions that skirt British law in the name of the children’s best interests.  These decisions recognize the commissioning parents as legal parents where the surrogate has relinquished custody.  They also find surrogacy payments, which would appear to violate the law in the U.K., to be reasonable reimbursement for expenses rather than payments for the surrogates’ labor or relinquishment of the child.   The UK is considering law reform efforts to address surrogacy, but at the core of the effort is a dilemma.

On the one hand, many countries and some American states outlaw commercial surrogacy as unethical.  On the other hand, there does not appear to be an effective way to prevent commercial surrogacy entirely in an era of globalization.  Negative publicity has created greater political will to shut down international surrogacy in Asia.  In the United States, however, the number of states that expressly authorize surrogacy, with legislation allowing the commissioning parents to receive certainty through pre-conception or pre-birth orders of parentage, has increased.  California, in particular, adopted comprehensive legislation that took effect in 2013, authorizing such orders and legislatively confirming what has long been the California judicial practice of recognizing intended parents as legal parents in gestational surrogacy cases, a practice that dates back to the initial case of Johnson v. Calvert in the early nineties.

The California legislation imposes no limitation on intended parents or on agency selection of gestational surrogates in terms of age, marital status, prior birth history or other characteristics.  Rather, the legislation requires that independent counsel be provided to surrogates and commissioning parents, payments be made to certain specified parties, and the commissioning parents identify how they will provide for the surrogate’s medical expenses.  This allows a pre-birth determination of parentage and recognition of the intended parents as parents immediately upon the birth.

California, unlike Thailand, is unlikely to rescind this legislation in the face of international opposition or embarrassing publicity.  And it offers much greater security for prospective parents who can afford the high costs.  At the same time, California law does not address some of the ethical issues that may concern countries in other parts of the world.  For example, it does not limit the number of embryos that may be implanted at one time.  This has given rise to concerns about the potential impact on the health of surrogates and about the commissioning parents’ potential desire for selective reduction of multiples.  Surrogacy contracts routinely assign decisions about abortion, whether in the face of birth defects or selective reduction, to the commissioning parents.  Yet, such clauses are typically not subject to specific enforcement.  This can lead to difficult and emotionally heated disputes.

Is there any way to regulate this practice that assuages other countries’ concerns about valid ethical issues?  The solutions that had been under consideration in the Indian context might well work in the United States.  That discussion involved regulation of the agencies rather than international practices.  For example, a country like the UK could take the position that it would recognize the parentage of commissioning couples who use agencies that agree to follow recommended practices.  Such practices might include limits on who could become surrogates, with appropriate age ranges, requirements that the surrogates have previously given birth, or limits on the number of times a woman could serve as a surrogate.  The practices might also involve limits on the number of embryos to be implanted at any one time, or on the contract provisions addressing abortion.  The UK would then agree that if commissioning couples use an agency that agrees in advance to follow such practices, the UK will in turn recognize the couples’ parentage of the child under UK law.

There are of course limits to such provisions.  First, as a practical matter, the UK cannot prevent commercial payments, because there would be little international surrogacy without them.  It could, however, provide some guidelines for appropriate payments if the agencies are willing to agree.  Second, the UK cannot require that agencies discriminate on bases that would violate U.S. law, but it could limit recognition on such terms.  For example, if the UK wished to limit its automatic grant of parentage to couples using a gamete from at least one of the intended parents, it should do so only as a matter of UK law.  Agency contracts with intended parents using donated gametes might still occur in the United States, but they would not have to be entitled to automatic recognition under UK law, in effect leaving the situation as it is today.

Instead of a country-to-country negotiation over particular terms, individual countries would in effect establish criteria for agency practices, encouraging agencies that wish to recruit foreign commissioning couples to the United States to meet such requirements.  The result would not be very different from the specialized agency practices that already exist in the United States, with many agencies, for example, welcoming same-sex couples while others appeal to Christian couples who oppose abortion.  The one thing such regulations will be unable to do, however, is to stop international surrogacy entirely.

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The Many Options Available to Resolve the Brangelina Family Break-Up

by Jane C. Murphy and Jana Singer

The recent announcement that Angelina Jolie has filed for divorce from Brad Pitt and is seeking sole physical custody of their six children has triggered tabloid speculation about the ugly fight to come. But as family law teachers and scholars, we doubt that there will be a grisly courtroom showdown and we think its absence is a good thing.

That’s because families with money can now largely bypass the court system when it comes to divorce. The options for private dispute resolution have expanded significantly over the past two decades, particularly for divorces involving children. As we explain in our 2015 book, Divorced from Reality: Rethinking Family Dispute Resolution (NYU Press), there has been a dramatic shift in the legal system’s approach to child custody cases that began in the 1970’s. In part, this “paradigm shift” was driven by changes in substantive legal doctrine, particularly the shift from fault to no-fault divorce and the legal system’s embrace of joint custody. The elimination of fault as a prerequisite to divorce both reduced the role of judges and undermined the utility of traditional adversary procedures. With fault requisites to divorce removed, it was no longer necessary for a judge to determine whether a spouse had engaged in blameworthy conduct or which spouse was responsible for the breakdown of a marriage. Instead, the main job of the legal system in a no-fault regime is to determine the financial and parenting consequences of the marital dissolution – forward looking tasks for which court-based adversary procedures are, at best unwarranted.

A second catalyst for change has been the growing body of research demonstrating the detrimental impact of adversary divorce processes on children.  Extensive social science research indicates that children are adversely affected by parental conflict during and after divorce. While experts disagree about the magnitude and long-term effects of divorce on children, virtually all researchers acknowledge that parental conflict is toxic for children in divorce. Relying on traditional court processes at best fails to mitigate parental conflict; at worst, it exacerbates and prolongs discord. For example, traditional adversary tactics – such as advising the client not to talk to the other parent, making extreme demands to gain leverage in negotiations, and filing pleadings that characterize the other parent in a negative light – diminish the prospects for future cooperation, even if the dispute settles rather than proceeding to trial.

One of the centerpieces of the new dispute resolution paradigm is a shift away from adjudication. The focus is now on consensual, private ordering, either through negotiations conducted outside the court system or through court-connected processes designed to help parties reach agreement without the intervention of a judge. As two leading reformers put it, “in the last quarter century, the process of resolving legal family disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room.”

As a result of these developments, a wide range of options are now available to couples like the Jolie-Pitts. They can have their lawyers negotiate a settlement outside the glare of public scrutiny. The couple can also engage in mediation, with or without their lawyers present. Although traditional lawyer-directed negotiation still accounts for many settlements in family cases, mediation is increasingly the preferred method to resolve divorce-related parenting disputes. In mediation, a neutral third party helps disputants articulate their interests, improve their communication and reach an agreement about parenting their children post divorce. Rather than designating one parent as the custodian and the other parent as a visitor, parties in mediation attempt to devise a detailed parenting plan that specifies how the parents will share both care-taking and decision-making responsibilities for their children after the divorce.

In addition to using mediation to develop a parenting plan, divorcing parents now have access to a variety of other non-adversary processes designed to address particular stages in the separation and post-divorce parenting process. These include “early neutral evaluation” in which an outside attorney or court professional provides the parties with an objective assessment of what parenting arrangements would best serve their child’s interests and how a court would likely rule if the case were to proceed to trial. The expectation is that having this information early in the process will encourage the parties to settle rather than litigate. At the other end of the process, parents who continue to squabble after a parenting plan has been negotiated and approved can retain a “parenting coordinator to help them implement the plan.

Choosing a “collaborative” divorce is yet another option for avoiding adversary court procedures. In a collaborative divorce,parties and their attorneys sign a “four-way collaborative participation agreement” in which they commit to resolving their dispute without court intervention and in a way that meets the interests of both parties and of any children involved. They also agree that, if the case does not settle and ends up in court, the collaborative lawyers must terminate their representation and the parties must retain new counsel. Proponents of collaborative divorce argue that this withdrawal obligation provides a powerful incentive for lawyers to focus on creative problem-solving and to help their clients work through impasse.

Many of these out-of-court processes involve expensive lawyers or other experts or both. As a result, they have been out of reach to the vast majority of American families seeking a less painful, more private and child-friendly break-up. But a number of efforts are underway to make these processes more widely available to families of modest means. For example, the Denver-based Center for Out-of Court Divorce offers comprehensive and affordable dispute resolution, counseling and financial planning services for families undergoing separation and divorce. The Center offers mediation, legal education and parenting plan assistance, as well as both individual and group counseling. Services are provided on a sliding fee scale by an interdisciplinary staff of legal and mental health professionals.

These and similar community-based processes will not replace family courts; formal judicial proceedings are necessary when partners or parents harm vulnerable family members and when high conflict couples are unable or unwilling to work together. . But courts should not be the only option for families undergoing divorce or parental separation,. Rather, all families should have access to what Brad and Angelina are likely to choose – a divorce process that provides them with support, healing and respectful resolution of their disputes.

 

 

 

 

 

 

 

 

 

 

 

 

 

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Is the iPhone Defectively Designed?

This is a question raised by a fascinating NYT article on Sunday.  Here’s the argument: Apple has a patent on a technology that would prevent the iPhone from sending or receiving texts in a moving car.  This technology is not, though, part of the iPhone.  Since texting while driving is a significant cause of accidents, Apple could be liable on a design defect theory for any car accident where texting on an iPhone while driving causes the harm.

The missing information here is whether Apple’s patent actually works and at what cost.  I’m dubious that such a patent can tell the difference between a driver texting vs. a passenger texting, or someone texting in a car vs. someone doing that in a train or on a bus.

Suppose, though, that a patent could lock out only texting while driving.  Then I would think that, unless the technology was pretty expensive, the failure to include it as a standard feature would be a serious problem for Apple even if many customers would be angered by such a lockout.

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FAN 124 (First Amendment News) Ellen DeGeneres raises First Amendment defense in defamation case

Under the First Amendment to the United States Constitution and under well-established Georgia law, courts have consistently recognized that humor, parody, name-calling and other forms of ‘rhetorical hyperbole’ are simply not actionable as defamation or under any other legal theory. — Thomas Clyde, Warner Bros. lawyer (Sept. 16, 2016)

Thomas Clyde

Thomas Clyde

Thomas M. Clyde is a partner at the Atlanta, Georgia law firm of Kilpatrick Townsend. He has has “extensive experience in defending publishers, broadcasters and other information providers against claims alleging defamation, invasion of privacy, infringement of intellectual property rights and newsgathering misconduct. . . . Mr. Clyde was recognized in The Best Lawyers in America for First Amendment Litigation in 2017 and the four years immediately preceding. He was also named a 2017 ‘Atlanta Lawyer of the Year’ in the area of First Amendment Law by The Best Lawyers in America. Mr. Clyde was recognized as a Georgia ‘Super Lawyer’ for First Amendment, Media and Advertising Law in 2012 and 2013, for Constitutional Law in 2014, and again for Media and Advertising Law in 2015 and 2016 by Super Lawyers magazine.” He is also the past co-chair of the Media Law Letter Committee of the Media Law Resource Center.

Now his First Amendment expertise is being summoned to defend TV comedian and talk-show host Ellen DeGeneres who is being sued for defamation. Here is how it happened: Seems that on one of her national TV shows Ms. DeGeneres referred to Ms. Titi (pronounced ‘TEE TEE) Pierce as “Titty Pierce.”

According to LawNewz,  “[d]uring a segment of her daily talk show called, ‘What’s Wrong with These Signs? Ellen showed a photograph of a real estate sign advertising broker Titi Pierce, and pronouncing the name ‘titty’ instead of the phonetic ‘tee-tee.’ Ellen made the ‘Titty’ wisecrack right after showing a sign that read ‘Nipple Convalescent Home,’ and continued to joke, “Titty Pierce, sounds like she might have spent some time in that nipple home, I don’t know.’

 “It was all in good fun,” reported Elura Nanos, “until Ms. Pierce’s phone blew up with harassing calls and messages. And to make matters worse, she was on her way to a family funeral. Comedic timing really is everything.” In light of that, on “Ms. Pierce filed a lawsuit in Georgia Federal Court against  DeGeneres, alleging Invasion of Privacy, Misappropriation of Likeness, Defamation, and Intentional Infliction of Emotional Distress.”

As Mr. Clyde sees it, “This was silly, lighthearted fun,” and nothing more. Even so, his response to the complaint raised a First Amendment defense.

The Plaintiff is being represented by Stacey Godfrey Evans.

See video clip, courtesy of LawNewz, here.

Copy of Complaint here.

Katie Couric, film company & distributor sued for defamation

Katie Couric

Katie Couric

This from Larry Iser writing in Forbes: “Back in May, Katie Couric faced a heap of controversy over an edited scene in the 2016 documentary Under the Gun. This week, Couric, along with the documentary’s director Stephanie Soechtig, Soechtig’s company Atlas Film LLC and the film’s distributor Epix were named defendants in a $12 million defamation lawsuit filed by the Virginia Citizens Defense League (VCDL), a gun rights activist group appearing in the documentary, and two of its members, licensed firearms dealer Patricia Webb and Daniel Hawes, a firearms and personal defense litigator. Couric is the narrator and an executive producer of Under the Gun. According to the complaint, Couric’s interviews of VCDL members were heavily edited and portrayed them in a false light.At one point in the documentary, Couric asks members of the group, ‘If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”The film portrays the activists as speechless and apparently unable to answer the question for about eight or nine seconds. However, the complaint alleges that audio tapes prove that the activists had, in fact, provided an immediate, substantive six-minute response to Couric’s query. . . .'”

Larry Iser (the author of the Forbes piece) is a litigator at Kinsella Weitzman Iser Kump & Aldisert. He frequently litgates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.

→ See also Bob Ownes, Katie Couric Sued for $12 Million For Defamation In Anti-Gun Documentary, Bearing Arms, September 13, 2016

Headline: “Some defendants dismissed in BPI-ABC defamation case”

In an article by Nick Hytrek, writing in the Sioux City Journal, it was reported that “in the wake of the dismissal of five defendants in Beef Products Inc.’s $1.2 billion defamation lawsuit against ABC, court officials believe they do not need to move the trial out of the Union County Courthouse.The dismissal means fewer lawyers will be present at the trial, scheduled for June 5, and courthouse facilities should be adequate after some minor modifications, said Kim Allison, First Circuit court administrator. . . .”

unknown“In August, lawyers filed a stipulation to voluntarily dismiss ABC News, David Kerley, Gerald Zirnstein, Carl Custer and Kit Foshee as defendants in the lawsuit. The suit will now focus on what BPI’s attorney said are the three main defendants: American Broadcasting Companies Inc., former ‘World News Tonight’ anchor Diane Sawyer and news correspondent Jim Avila.’

“Circuit Judge Cheryle Gering entered an order dismissing the defendants on Aug. 24.”

“‘BPI’s decision to dismiss some of the other defendants does not release the primary targets of the litigation, nor does it have anything to do with the merits of our case,’ BPI attorney, Erik Connolly, of Chicago, said in a written statement. . . .”

“BPI sued ABC, its correspondents, federal officials and a former employee in September 2012 in Union County Circuit Court and will attempt to prove that a series of stories and broadcasts that began in early March 2012 defamed the company’s Lean Finely Textured Beef. . . .”

Headline: “Anti-Defamation League Boosting Presence In Silicon Valley” Read More

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A Forthcoming Book to Recommend

I was at The University of the South (Sewanee) for a conference on the 150th anniversary of Tennessee’s ratification of the Fourteenth Amendment. There were many terrific presentations there, but I wanted to single out one by Dan Sharfstein about his upcoming book entitled Thunder in the Mountains: Chief Joseph, Oliver Otis Howard, and the Nez Perce War.  (It’s available for pre-order here.)  Here is the Abstract:

The epic clash of two American legends―their brutal war and a battle of ideas that defined America after Reconstruction.

In 1865 Union Army General Oliver Otis Howard took charge of the Freedmen’s Bureau, tasked with helping millions of former slaves become free and equal citizens. He was so committed to civil rights that Howard University was named for him. But when Reconstruction failed, General Howard was sent to the Pacific Northwest to force Native Americans onto reservations. His biggest adversary was Chief Joseph, a Nez Perce leader who doggedly pushed federal officials to save his ancestral territory and to give Native Americans equal rights. Although Joseph echoed Howard’s earlier views about liberty for freed slaves, in the summer of 1877 the general and his troops ruthlessly pursued Nez Perce families who refused to leave their homes. Thunder in the Mountains is the story of two remarkable Americans who fought vicious battles across 1,400 miles of the northern Rockies and waged a war of ideas about freedom, equality, and the role of government in American life.

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FAN 123 (First Amendment News) When you think of free speech, think of “45” — New book by Stephen Solomon explains why

It is said that the dead live on the lips of the living.  And so it was at the Floyd Abrams Institute for Freedom of Expression at Yale Law School last Friday when it co-hosted the tenth First Amendment Salon.

The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Stephen Solomon, Nadine Strossen & Akhil Amar

Stephen Solomon, Nadine Strossen & Akhil Amar

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

Much of the lively discussion focused on dissenting speech (including symbolic expression) in the revolutionary era. In the course of an animated, opinionated, and sophisticated dialogue, there were several references to the number “45” and its significance in the history of free speech. So why?

Here is where Professor Solomon’s well-researched book came into play (as the excerpts below reveal):

“[T]he number forty-five [was] symbolically linked to John Wilkes, a member of Parliament who gained renown for going to jail after criticizing the king in the forty-fifth issue of the newspaper [The North Briton] he published” in 1763.

“First in England and then in America, those who sympathized with Wilkes began engaging in an endless variety of symbolic protests with the number forty-five as the common theme.”

unknown-1 “On the evening of March 14, 1770, a prison guard opened the doors of Alexander McDougall’s jail cell so that visitors could enter.  There were forty-five visitors, to be exact, and all of them were women. . . . For publicity sake — and all of this was for publicity sake — the forty-five women had been described to the public as virgins. McDougall had been jailed for criticizing the royal governor and the New York general assembly, and his supporters aimed to to draw attention to him as a martyr for the cause of liberty.”

“In 1769, the Boston Gazette noted that forty-five ladies engaged in spinning linen and cotton, providing cloth to replace the British goods boycotted in the non-importation agreements. The Sons of Liberty in Boston made a procession of forty-five carriages, while . . . [at] an orchard outside Charleston, patriots decorated their Liberty Tree [see above] with forty-five lights and fired forty-five rockets.”

There is more, to be sure, but you’ll have to read Revolutionary Dissent to find out what you’re missing.

One more notable point: The text of the First Amendment contains, yes, 45 words!

Amar & Strossen channel Madison 

One of the high moment of the event came toward the end when Amar began to recite portions of James Madison’s November 27, 1794 speech in Congress. As soon as he begun to mouth the opening words, Strossen joined in memorized unison and harmony: “If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.”

A video of this salon will be posted in an upcoming issue of FAN.

The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

Headline: “Supreme Court won’t block Senate subpoena for Backpage.com” Read More

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Does Law Matter? The Economics of the Family Revisited

Economist Shoshana Grossbard’s book, The Marriage Motive: A Price Theory of Marriage: How Marriage Markets Affect Employment, Consumption and Savings (2015), provides important insights into the impact of the legal system on families.  It sheds new light on many of the questions that today’s law professors and family policy analysts address; yet, it a book that that only professional economists are likely to read.  The reasons tell us a lot about what has happened to the law and economics movement of the last thirty years, and the different directions its influence has taken.

At the time I started writing about Family Law at George Mason in the eighties, law and economics was in its heyday.  Peg Brinig and I, my George Mason colleague at the time, began to explore the implications of what seemed to be an exciting new field for our work on the financial consequences of divorce.  The articles we wrote were characteristic of the law and economics scholarship of the era.  We took the economic analysis of contract damages, applied it to the theory that justified spousal support, and reported on the insights it generated in critiquing the normative foundations of family obligations.  In process, we did no empirical work, nor did we rely to any great extent on empirical work in our law review articles.  Instead, we argued that contract theory, then dominated by economic analysis, accurately framed the normative choices judges and legislatures faced about such matters as the role of spousal support in the legal system and the likely impact of such choices on divorce rates.

Thirty years later, the intersection of law and economics looks quite different.  Within both Economics and Law, abstract equations and arm-chair legal analysis, respectively, have given way to much more rigorous empirical work.  Brinig, who is now at Notre Dame, obtained a Ph.D. in Economics and does empirical work informed by the type of questions lawyers ask about issues such as the role of custody rules on women’s inclination to initiate divorce or the response to domestic violence.   I have found my own work less influenced by economics and more by sociology, as sociology offers a deeper qualitative analysis of the reasons for family decisions, particularly the class-based split in family form, fertility, and father involvement.  Grossbard’s work reminds us that we have retreated to our disciplinary silos; while law professors cite other law professors who use economic or sociological methodologies, they have become less likely cite economists and even in the social sciences, imperial Economics has given way to a greater variety of methodologies, with proponents of each freer to ignore the work in other fields.

But what about Economics itself?  What has happened to the economic analysis of family decision-making?  And what lessons, if any, does the work of economists like Grossbard offer for Family Law?  To answer these questions requires starting with the legacy of Gary Becker.  Becker, a University of Chicago economist, won a Nobel Prize for his efforts to extend economic analysis generally and price theory in particular to nonfinancial realms such as crime, discrimination and the family.    He is viewed as almost single-handedly creating the modern economic study of the family, and while law professors no longer spend much time on Becker, economists do.  Virtually every economic article on the family starts by acknowledging the debt to Becker, even as these economists immediately go on to note that Becker’s major predictions were wrong and (cough, cough) we can now therefore ignore him.

Grossbard, who studied under Becker at Chicago, does something quite different.  She wishes to reclaim Becker’s original work on the family, work that was more eclectic than the later efforts for which he is known, and to use his methodologies without the hubris that characterized his more famous pronouncements.   Becker’s best known work, which Grossbard describes as one of the most frequently cited books in Economics (p. 8), is his 1981 Treatise on the Family.  It describes a unitary model of family decision-making that rests on two widely criticized assumptions.  The first is the idea that the benefits of marriage come from a gendered exchange between wives who “specialize” in cooking, cleaning and childrearing while their husbands specialize in “the market.”   He predicted accordingly that higher earning women would be the least likely to marry and dual earner couples who brought home carry out dinners and hired others to clean the toilets for them would be less stable.  The second is that, remarkably for an economist, he incorporated ideas of altruism into family decision-making.  The problem is that he asserted that a presumptively male head of the family would value the interests of the entire family while an egotistic second spouse would place her own interests ahead of those of other family members.  Becker’s critical predictions proved wrong – the only group in society whose marriage rates have increased are the highest earning women – and perhaps more importantly he proved tone deaf in describing the changing role of women and families in an era of greater gender equality.  Moreover, he tends to be associated with neoliberal political prescriptions, some of which he enthusiastically embraced.  While Becker’s work is more nuanced than his critics (and this brief description might suggest), it is easy for those who disagree to dismiss him altogether.

Within the economics of the family, however, Becker’s influence lives on.  After all, he invented the field and even his critics acknowledge the debt they owe him.  Grossbard begins her book by acknowledging his influence and attempting to refocus the field on the traditional subjects of economics.  Her subtitleHow Marriage Markets Affect Employment, Consumption and Savings” emphasizes that marriage is a product of markets, and that market exchanges depend on prices.  The book thus closely examines the factors that affect “price,” including gender ratios that alter the terms available to men and women who want a relationship with a member of the opposite sex.  More fundamentally, though, she is interested in how market terms affect employment, consumption and savings.   While Grossbard does not assume that marriage necessarily rests on a gendered exchange of men’s income for women’s services, she does see a trade-off, with some spouses investing more in household services than others (p. 181).  Much of the discussion of employment and consumption (and to a lesser degree savings) in the book involves this tradeoff: how do we understand the factors that determine the terms of the exchange.  In other words, if we see both paid employment and the consumption of domestic services as a product of markets, what determines their price?  When does it make sense for a spouse to stay in the paid labor market, while hiring others to provide child care and domestic services, and when does it make more sense for a spouse to provide such services directly?  This is the traditional subject of price theory and Grossbard attempts to reclaim the analysis as central to the economics of the family.

As someone who also wrote a book in 2014 on “Marriage Markets” (with Naomi Cahn), the part that immediately fascinated me was the discussion of gender ratios.  Grossbard assembles data across the United States and finds that gender ratios do appear to validate some of the empirical predictions the theory suggests.  She finds, for example, that holding other things constant, where men outnumber women in a given market, men’s labor participation increases and women’s declines, as men need a higher income to land a partner, and women find that they do not need to rely on the same degree on their own earnings (p. 8).  These findings have deep implications.   They suggest that gender performance, while not exactly the same as in the Ozzie and Harriet world of the fifties, is still alive and well.  Moreover, she offers empirical support for the same conclusion we reached that these effects are greater for the better educated.  The result contributes to the growing statistical portrait of class divergence in family formation practices, but without venturing very far into the possible explanations.   Economics still resists any real discussion of class as either a cultural or economic construct.

For most of the family law world, however, her most interesting findings involve the effect of legal differences.   Central to economic theory is the notion that an exchange of income for service requires trust; that is, protection of the vulnerabilities of a spouse who forgoes economic independence to contribute to the family.   The marital exchange has historically required permanence in order to encourage that exchange.  Yet, critics have also long noted that marital permanence came as well from women’s powerlessness in a system in which men can leave with their market-based resources intact while family-oriented women cannot.  Grossbard relies on an updated version of these theories.  By incorporating the tradeoffs into price theory, she suggests that they exist on a continuum.  The issue is not whether women should invest in the home instead of the market (Grossbard’s interest in positive, not normative analysis).  Nor is the question whether it is more “efficient.”  Instead, the question is the entirely empirical one: to what degree does it occur?  Her answer is that it depends in part on the extent to which the law protects the exchange.

Grossbard attempts to measure the effect by exploring jurisdictional differences.  And one of her most intriguing chapters addresses common law marriage.  As a general matter, one would expect unmarried cohabitants to forego paid labor to a lesser degree than married couples and most studies (again holding constant for other factors such as mothers’ income) find that to be true (p. 86).  Grossbard asks a rarely pondered question: what about common law marriage?  On the one hand, common law marriage extends to unmarried couples the same benefits as marriage if they show that they intended to be married.  On the other hand, only a minority of states recognize common law marriage and it’s not clear that couples in common law marriage states know that the courts might treat them as married.  Grossbard runs a statistical analysis of the difference in women’s workforce participation in common law marriage and non-common law marriage states and finds that the law matters (Chapter 7).   Should we believe her?

The question goes to the heart of the differences between the ways that economists and law professors approach such issues.  Roughly a decade ago, I moved from California to Missouri, to a neighborhood six blocks from the Kansas line.  As a law professor I knew that Missouri did not recognize common law marriage while Kansas did.  Yet, during the many discussions I had with my friends, colleagues and now adult children about where to live, the subject of common law marriage never arose.  With State Line Road running through the middle of the metropolitan area, there was an awareness of legal differences; for one thing, liquor and gas taxes are higher on the Kansas side and so is the likelihood of being stopped for a minor traffic infraction.  But not once did I hear a discussion of common law marriage, expect when I raised it in my family law class.

Grossbard finds that the state line matters.  Her statistical correlations show that, holding constant for demographic and other measurable factors, in the states that recognize common law marriage, female cohabitants work less outside the home.  Is she right?  I have no doubt that her statistical analysis is correct.  The question is whether she accurately captures the effect of the law or of differences among those states that recognize common law marriage versus those which do not.  Grossbard has attempted to control for things like the ability to afford a house on the Kansas side of the state line and easily measured attributes such as race.  The question is whether she can capture traits such as a preference for diversity (in which case one in more likely to live on the Missouri side) versus a preference for distance between neighbors (making Kansas residence more likely).  It is hard to test for these differences, but they may well correlate with the issue of whether unmarried female cohabitants have more traditional versus progressive attitudes and thus work outside the home.  On the other hand, she draws her data from a national sample, not just those unusual states whose borders transact a single metropolitan area.

This leaves Grossbard’s work as both simultaneously intriguing and frustrating.  When I read Peg Brinig’s current work, I see questions informed by legal analysis, rooted in vocabulary to which law professors are responsive.  When I read Grossbard’s work, I see questions framed by economists.  As a family law professor teaching at a law school within a few blocks of a state line, I spent a lot of time wondering about what difference the state line – and the corresponding differences in family law – meant.  Over time, I discovered that, at least then, second parent adoption was easier in Missouri while adoption without paternal consent was easier in Kansas, and that many people made very conscious decisions about where to live or give birth based on these differences.  I am prepared therefore to believe that common law marriage also makes a difference.  Yet, never being involved in a discussion of the issue, I remain a skeptic, though after reading Grossbard, that skepticism has moved from a conviction it did not make much difference to agnosticism about whether it might.

This ambivalence summarizes the current state of the interaction between law and economics.  Grossbard is a true economist.  She focuses on issues that have historically been the subject of economics such as price theory.  She uses an empirical methodology associated with rigor in economics that is off-putting to lawyers (as least those of us who glaze over at extended discussions for regression analyses).   She describes her theories in terms that do not necessarily ring through to lawyers, who are more focused on conscious thought processes than statistical correlations.  Yet, Grossbard, whether right or not, should get us to think again about things we take for granted.  Legal theorists assume that the law reflects different values.  We further assume that it affects case outcomes.  Does it also affect culture; that is, does it create feedback loops that reinforce behavior in ways that we cannot fully trace?  Grossbard’s work, like that of other economists who try to map statistical correlations, challenges our intuitive understandings of causality.  She suggests that the connections may not be at the conscious level and that we may not have figured at all the relationships between law and behavior.  Her work is worth reading for that reasons alone.

Within the realm of family law and policy, there are two worthwhile ways to read her work.  The first is quick and dirty.  Read the introduction to the book and to the chapters that interest you.  Look for the evidence she marshals that support your preconceived notions.  It is excellent footnote material and along the way it may get you to think twice about some of your preconceptions, but it will be a quick read.  For those more ingrained in empirical analysis, the question is how to translate Grossbard’s work into language that makes more sense to those of us engaged in family law.  What part would be more persuasive with a minor change in vocabulary?  And what part needs to be reconceived?

True interdisciplinary analysis requires something more than the simplification that law and economics, at its imperial height, promised.  Instead, it involves genuine integration of different forms of analysis into a shared discourse.  Law, as an applied field, offered the potential to supply the fulcrum that could integrate these various forms of analysis.  Today, instead, we seem to retreating to our disciplinary silos, with J.D./Ph.D.s forced to choose the discipline in which they hope to make their mark.  Grossbard’s work is economics – no question there.  The issue is the terms on which her discussion of the law can be framed to challenge legal scholars to address the issue: does law matter and, if so, can we measure its impact?