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Law Student Elections: YouTube Special

About this time of year, law students run for election to student leadership offices. I’ve seen some really strange, and sometimes funny, election materials, but this video takes the cake:

I’ll take nominations for most arresting/funny/bizarre student election campaign slogan in the comment thread.

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The Law and Economics of Smoking Bans

smoking.jpgThe big news out of Philly recently is Mayor Street’s decision to begin enforcing the City’s smoking ban. But, as commentators have observed, the City isn’t putting real resources into enforcement: only two officers will be assigned to the smoking beat, and will not work after business hours. That’s City time, not Bar time. Given the miniscule probability of being caught, the $25 fine seems ludicrously low.

Nevertheless, the City is confident that the ban will have bite. Although anecdotes from Kentucky suggest otherwise, the City argues that:

“The majority of the people will comply,” [interim Health Commissioner Carmen Paris] said. “The majority of the people will put that cigarette away. Those that don’t, then the establishment owner is required to call us and file the complaint.”

Self-policing by bar owners and smokers themselves should be effective, said Joe Minott, the executive director of the Clean Air Council.

“People do it because it’s required by law,” he said. “I suspect that after a settling-in period there’s not going to be a lot of problems.”

The law and economics of the enforcement of regulatory offenses interests me. Traditional analysis would suggest that self-enforcement is unlikely (or discounts the role of social pressure). But I suspect that Philly is onto something. Because of the long, public, debate about the utility of smoking bans, most citizens know about the issue, and probably feel invested in the compromise that finally emerged from the City Council. Unlike, say, a normal low-enforcement regulation (e.g., an EPA rule, or the rule against home poker games), the smoking ban will be pushed along by significant social norms of compliance. Dirty looks, over-loud coughs, muttered comments, and (ultimately) illegal self-help will clear the air.

Theorists of deterrence might consider whether the success of low-enforcement/high-compliance rules provides a model to rescue low compliance rules where social-enforcement is possible (like anti-drug and anti-graffiti criminal codes, and plagarism in school). Maybe we need to sunset the existing criminal code every ten years, and force legislators to re-authorize the law through public debate. That debate, in turn, will increase public buy-in and lower deterrence costs. This analysis (not incidentally) explains the need to publish federal regulations, but also suggests that mere publication isn’t enough: real, political, debate is necessary to ensure that social sanctions help legal rules penetrate and affect their intended audiences.

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Anthony Trollope on Lawyer TV Shows

trollope.jpgOne of the unhappy side effects of a legal education is that it destroys your ability to enjoy lawyer movies and attorney TV shows. After I acquired the vast expertise of a single semester of law school, my wife informed me that I had become absolutely insufferable as a partner for watching “Law & Order” because I kept saying things like “That isn’t really how it works…” And “Law & Order” is actually a pretty accurate lawyer show. (Of course, watching ER with my wife is a pain.) Well, it would seem that legal nitpicking of the portrayal of the law in fiction is not new. I recently found the following complaint written by Anthony Trollope in his novel Phineas Finn (1869):

The poor fictionist very frequently finds himself to have been wrong in his description of things in general, and is told so, roughly by the critics, and tenderly by the friends of his bosom. He is moved to tell of things of which he omits to learn the nature before he tells them – as should be done by a strictly honest fictionist. . . . And then those terrible meshes of the Law! How is a fictionist, in these excited days, to create the needed biting interest without legal difficulties; and how again is he to steer his little bark clear of so many rocks, — when the rocks and the shoals have been purposefully arranged to make the taking of a pilot on board necessary? As to those law meshes, a benevolent pilot will, indeed, now and again give a poor fictionist a helping hand, — not used, however, generally, with much discretion.

McCoy.jpgIt would seem that litigation (notice that there are no TV shows – or Victorian novels – about transactional lawyers) has been “the biting interest” of fiction in “excited days” for some time, and the springes of the law (to use Holmes’ wonderful phrase) have been trapping unwary writers for many years.

Of course it could be worse. I once watched “24” with a friend of mine who works for the CIA. He would constantly be saying things like, “I can’t tell you guys any more, but this part is SO NOT realistic.” In his heart of hearts, however, I know that he wants to be Jack Bower. (He claims to be an accountant for the CIA, but my wife and I are convinced that he is actually a free-lance assassin on the “Company’s” payroll.)

Of course it goes without saying that no matter how often lawyers pick at “Law & Order’s” nits, they all want to be Jack McCoy.

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Hierarchies of Legal Scholarship

J.B. Ruhl recently came out with his hierarchy of legal scholarship, ranking types of articles from 0 to 10. His hierarchy has generated a ton of controversy (see here, here, and here). Here’s his ranking:

0 – Blog posts

1 – Publication of what are essentially blog posts with footnotes

2 – Doctrinal review of the state of the law

3 – Doctrinal study of interesting questions of law

4 – Doctrinal synthesis of developments in law

5 – Normative policy analysis of law

6 – Normative policy analysis of law with substantial reform proposals

7 – Legal theory

8 – “Law and” interdisciplinary studies

9 – Empirical study of legal institutions

10 – Empirical study of law’s impact on society

Now, in playful mockery of Ruhl’s hierarchy, Eric Muller has created another hierarchy of legal scholarship. A small taste:

2 – Work in my field that totally ought to cite my work but fails to do so

3 – First novels by professors at Yale Law School

4 – Student-written work by me

5 – Work that cites my work

Hat tip: Above the Law

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Liberation blogology

Earlier this month, lawprofblogger Doug Berman wrote a post for published an article in the National Law Journal. In it, he argues that blogs set lawyers and law professor free by allowing them to avoid overwrought legalisms in their writing. He argues (warning — block quote):

Many legal documents and most traditional law review articles can be ponderous, with assertions over-wrought, arguments over-made, principles over-cited and everything over-written. The blog medium fosters and rewards succinct expression. For legal writers and legal readers, it is liberating and refreshing to have thought-provoking ideas about the law expressed in only a few paragraphs or even a few sentences.

I will more fully address the substance of Professor Berman’s argument in the 172 painfully footnoted pages of my forthcoming law review article, Bargaining in the Shadow of the Blogosphere, 15 J. L. & Ponder’s Assert’ns. 101 (forthcoming 2008). For now, let me just throw out a few half-baked ideas on why Professor Berman’s argument, while interesting, may be overstated.

It is absolutely true that there are stuffy lawyers who write with too much legal-ese, and who could use a good editor. It is also absolutely true that there are many samples of bad legal writing which one could locate with a minimum of effort. (No, we won’t name any names. We’re simply going to take judicial notice of this one.)

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Further Thoughts On Abortion, The Death Penalty, Mental Illness, and M’Naughten

In a recent post about mental illness and the death penalty, I attempted to raise the question of how some abortion opponents justify their support for executing people with mental illness. In particular, I wondered how such an inidividual would deal with some future research which allows us to predict whether a fetus will have an exceptionally high disposition to violence – and thus to murder. For the sake of this hypothetical, at least, imagine that this research actually tells us that a person with X genetic makeup will try to kill someone later in life. Could one oppose abortion of this fetus, while simultaneously approving execution of that person, in adulthood, when his overwhelming disposition ripens into an actual murder?

Rick Garnett offered comments which helped me recognize that my own language was imprecise. I asked whether such new research might logically provide a moral justification for “pre-emptive abortion” of a likely future killer. I now see that this sounds like I was making a utilitarian argument, which was not my intent. Rather, I meant to suggest a couple of things. First, we know that many people on death row have mental health issues – so many that one can now infer, and future research could conceivably establish, that many people on death row are there as a but-for result of their mental problems. Second, if one supports execution of individuals who would not be there but-for the mental problems, one essentially supports execution of people where free-will is not the sole, or even determinative, explanation for their acts. That is, one supports execution of individuals who are, in at least some sense of the word, innocents. Third, this argument suggests that the distinction between the “inncoent” fetus and the “guilty” murderer is far less clear cut. And it suggests that if the information we might need to know about a person to determine whether they will kill can be obtained pre-birth, any moral justification for execution at a later date might have at least some force at the earlier date as well. I am not claiming that one actually should abort for these reasons. I’m merely questioning how one can call the killing of the adult any more or less “retributive” than the abortion, if the factor that created culpability – say, a mental illness – existed both before birth and after. The only thing that changed was the actual fact of a killing, but a killing that was essentially beyond the offender’s free will.

The obvious retort to all of this is that the criminal law does not allow execution – or even conviction – of an individual whose crime is caused by a mental disease or defect. The problem is that the dominant test for insanity today, the M’Naughten rule, provides a defense only when a person is not aware of the nature and quality of his act (e.g., he thought he was cutting a melon, but it was really a head), or, if aware, did not know the act was wrong. Notably missing from this standard (but present in the old ALI version of the insanity defense, which became far less common after the assassination attempt on Ronald Reagan) is a defense for individuals who cannot control their acts. Yet if support for the death penalty among abortion opponents hinges, as I suspect it must, on the idea of free will – the notion that the offender has transcended his early innocence and now makes decisions independently, and thus fully culpably – must not that abortion opponent exclude from execution any person who cannot control his act?

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The Digital Person: Now in Paperback

digital-person-1.jpgI’m pleased to announce that my book, The Digital Person: Technology and Privacy in the Information Age, is now out in paperback and has a much more affordable price. From the cover blurb:

Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. For each individual, these databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases—which Daniel J. Solove calls “digital dossiers”—has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.

The Digital Person sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

Links to reviews of the book are at The Digital Person website.

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KPMG: A Contracts Cornucopia

A few weeks ago, Judge Kaplan of the SDNY denied KPMG’s motion to dismiss the KPMG defendants’ complaint against it for indemnification of the defendants’ legal fees. (See coverage at TaxProf, and for background, my previous post.)

The opinion is really fascinating. Although I disagree with parts of Judge Kaplan’s analysis, I think it will ultimately come to be seen as a paradigmatic modern contract case, and classic casebook fodder.

I’ll assume your background with the underlying facts, and jump right back in where we left off. Why is the opinion worth casebooking?

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Compulsory Education At Age 8

Today I attended an ABA Roundtable session on children at risk. The discussion was led by Karen Mathis, president of the association. One of the most remarkable facts that surfaced during this conversation was that, each year, 3000 kids don’t start in the Philadelphia school system until age 8. Apparently only Pennsylvania, and one other state, begin compulsory education at such a late date. As one can imagine, many of these 8 year olds start first grade at a huge disadvantage compared to kids who entered school at age 3 or 4. While these aged youth may be lagging educationally, they’re physically out of place as well. Compared to the 5 and 6 year olds, the older children are sometimes massive. And that physical gap explodes around the time these children are in 6th grade (at age 14.) As a result of the behavioral difficulties that follow, many kids in this cohort drop out – at age 16 or 17- while they’re still in middle school.

I found this state of affairs both surprising and sad. With all the other challenges we have focusing kids on education, who knew that we were failing at this most fundamental level: the minimum age for compulsory education?

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More on the Origins of the Footnote Fetish

A few weeks ago, I blogged on my theory of the legal footnote fetish, arguing that it arose out of the reliance of American lawyers on American editions of English treatises where the most important material was in the footnotes. Today, while doing research on another project, I came across additional evidence in support of my theory. S.M. Phillipps’s Treatise on the Law of Evidence was published in England in 1815. (There had been earlier English editions.) A year later, John A. Dunlap published an American edition to the treatise. In his introduction, Dunlap discussed — of course — his footnotes:

The design of the editor was, principally, to collect the decisions of the different courts in the United States, connected with the subject of the following work, the undoubted merit of which justly entitles it to a preference to all former treatises on the law of evidence. The exuberance of the subject itself, and a solicitude to insert every thing which could be deemed useful, have swelled the notes greatly beyond what was originally expected and intended: and yet the learned reader will perceive tha they might have been made still more extensive; that much has beeen omitted by design, and much, no doubt, through inadvertence.

My claim is that law review editors inherited from this tradition of Americanizing English treatises the same “solicitude to insert every thing which could be deemed useful” no matter how much it might “swell[] the notes greatly beyond what was originally expected and intended”.