Ready, Set…Recruit! When Law Professors Come To Visit

The visiting law professor parade has begun! Every law prof on a lateral search committee will surely want to visit Brian Leiter’s blog to see his list of profs at top drawer schools. Is Brian Leiter turning his back on his much beloved Texas, or is he just trying to twist the knife on Northwestern? Is Chris Slobogin turning his back on the ABA Florida death penalty assessment, or is he just looking for a break from the humidity? And is Kenji Yoshino really thinking that the uber-liberals at NYU will ever take Judith Butler seriously?

Only a few of these visitors will actually move to these schools permanently. The rest are perfect targets for the ambitious faculty recruiter. In conference rooms of “regular” law schools all over the country, people are wondering: what would it take to get Rick and Nicole Garnett (visiting at Chicago) to leave Notre Dame.

Let me just say, as the chair of faculty recruiting at Drexel Law, that we have a bright and enthusiastic faculty, a load of smart and eager students, and incomparable access to soft pretzels and Tastykakes. And believe me: Hyde Park has nothing on West Philly. Call anytime before 8:30; that’s when the kids go to bed.


When Do Judges Get to Use Judgement in Interpreting a Statute?

Via How Appealing comes an interesting statutory interpretation issue: in reading a statute, what does a court do with outcomes that are required by the plain language of the statute, but that Congress may not have intended? According to Judge Boudin on behalf of a unanimous First Circuit panel ten years ago, the answer is that the court should intervene when it “is patent that Congress as a whole did not appreciate the great variety and complexity of state provisions that would have to be meshed with the new federal statute or the odd results that would follow.” But according to a decision written by Judge Easterbrook and issued yesterday by a unanimous Seventh Circuit panel, the answer is that the court should intervene only when the “statute is … absurd as written;” that is, if its text does not “parse[ ]” or there is “linguistic garble.” “The canon [of absurdity] is limited to solving problems in exposition, as opposed to the harshness that a well-written but poorly conceived statute may produce.”

The statute at issue in both cases is the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

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Property Rights Initiative in Washington State

Property Rights groups in Washington State appear to have managed to gather enough signatures to get an initiative put on the ballot in the fall that would, if approved by voters, require compensation for government regulation that results in any decline in property value. Faced with a successful claim, the regulating body will have the option of paying compensation or releasing the landowner from the applicable regulation. The text of the initiative (I-933) is here. I-933 largely mimics Oregon’s famous Measure 37, which was recently upheld against constitutional challenge by the Oregon Supreme Court. Measure 37 has been, by most accounts, a disaster for Oregon land use planning. To date, over 1000 claims have been filed, seeking over $3 billion in damages. Of claims resolved as of October 2005, 90% have resulted in waivers of regulation. Only 10% have been denied. No compensation has been paid.

What’s wrong with these sorts of laws? Plenty.

First, they are based on the wrongheaded and frankly antisocial premise that we should not be expected to bear any burden in our use and enjoyment of property, no matter how trivial. The simple fact is that we all enjoy the benefits of life in society, and life in society entails obligations, including the occasional regulatory burden. These laws reinforce the bizarre notion that we should be able to reap all the benefits of life in community but never be asked to suffer even the least inconvenience. Now, the Washington law has some interesting wrinkles that make this assertion a little more complicated and that, if narrowly interepreted by the courts, might make the impact of the law far less dramatic than Measure 37. For example, I-933 defines a regulation that damages property values as one that “prohibit[s] or restrict[s] the use of private property to obtain benefit to the public the cost of which in all fairness and justice should be borne by the public as a whole.” Property students will recognize this as one of the Supreme Court’s favorite formlulations for a regulatory taking. Accordingly, on a narrow reading of this initiative, it merely requires what the Constitution already mandates and therefore accomplishes, exactly, nothing. But the law goes on to provide specific examples of the sorts of things that might (or should? or would? or do?) qualify under this definition (e.g., prohibition on the replacement or maintenance of a beach wall). Because many of the items on that list would not normally be considered regulatory takings, if the list is read to provide examples of regulations that (per se) satisfy the more general formula, then the law will constitute a dramatic expansion of takings law in Washington State.

Second, these laws are plainly unbalanced in their approach to the consequences of state action, since they do not require property owners to compensate the state for actions by the state that enhance their property values (UPDATE: in a way not shared with other taxpaying property owners). In this, they faithfully reflect the selfishness of their underlying assumptions. The property owner is permitted to freely reap a unique benefit when the state, for example, opens up a freeway exit next to his commercial property, but he cannot be asked to bear an equivalent (or even much smaller) burden without receiving compensation.

Third, while they are often portrayed as the result of broad grassroots outrage at over-regulation, these laws are often the consequence of narrower interest group politics. In this case, I-933 was put on the ballot with the help of paid signature-collectors. Funding came from a variety of property-rights interest groups, including $200,000 from an out-of-state property rights organization. According to the Seattle Times, “Initiative campaigns with the resources to employ paid signature-gatherers almost always qualify” for the ballot.

Fourth, the laws are often downright hypocritical, favoring property rights only for those of whose land uses they approve. Both the Oregon and Washington measures, for example, specifically exclude the regulation of adult businesses (through zoning law) from their ambit. Apparently, their libertarian individualism only goes so far.


The Political Wikipedia

Confused about the latest Propositions on the ballot? Wonder who the heck is on Team America? What is the One America Committee? And to what the Center for Responsive Politics responds?

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Jimmy Wales has come to the rescue and declared independence from the hurly-burly of FoxNews, CNN, talk radio, and the like by launching Campaigns Wikia.

He declares: “I am launching today a new Wikia website aimed at being a central meeting ground for people on all sides of the political spectrum who think that it is time for politics to become more participatory, and more intelligent.”

And in what strikes me as a Yocahi Benkler-evoking moment Wales writes:

This website, Campaigns Wikia, has the goal of bringing together people from diverse political perspectives who may not share much else, but who share the idea that they would rather see democratic politics be about engaging with the serious ideas of intelligent opponents, about activating and motivating ordinary people to get involved and really care about politics beyond the television soundbites.

Together, we will start to work on educating and engaging the political campaigns about how to stop being broadcast politicians, and how to start being community and participatory politicians.

So what do you all think? Can a Wiki or Wiki approach change the way politics runs in the U.S.? While you formulate your answer note there is an irony here. Remember that a little while back Wikipedia changed its anyone can edit policy to have protected and semi-protected pages. Furthermore, Wikipedia had to investigate and block edits from certain Congressional IP addresses precisely because the politicians has been editing content with spin and the like.

There is also the question of just how well Wikipedia and the Wiki method work. I will get to that after I have read some articles I have found that tackle the question in an engaged way and I think merit some reflection.


Why is the Borgata Closed?

dice.jpgAlthough rumors are swirling of an end to New Jersey’s government shutdown, as of this hour the state, and its casinos, are closed for business. It is pretty remarkable, when you think about it, that a huge and productive industry has been closed for lack of immediate government oversight. Linda Kassekert, chair of the New Jersey Casino Control Commission (CCC), lamented the turn of events:

Today, I had to do something that none of my predecessors ever had to do…..and something I hope and pray none of my successors will have to do. Today, New Jersey shut down its casino industry. This is something that no one ever wanted to see happen, but, as you know, Gov. Corzine ordered the shutdown of non essential state services on an orderly basis. On Sunday, after consulting with casino executives, security officials, with the Division of Gaming Enforcement, New Jersey State Police as well as Mayor Levy and Chief of Police Mooney, I issued an order for the cessation of gaming as of 8 o’clock this morning.

Why did the Borgata, and like-palaces of bad decision-making, have to close?

The easy answer is that gambling is presumptively illegal, authorized by 24-hour operation of the CCC. Easy, true, and boring.

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Hiding Behind The Fourth Amendment

As I mentioned in an earlier post, a Birmingham suburb is considering an ordinance that criminalizes possessing a house in which an “open house party” occurs. An open house party occurs whenever two or more underage people consume alcohol in the home. As a consequence, any time parents allow their two kids to have wine at dinner they’re hosting an illegal house party. Mountain Brook’s police chief suggests that this won’t be a problem because the police can’t enter the house without some suspicion of misconduct and “no one really calls and says, `my mom lets my brother drink at dinner.'”

I’m not sure I like seeing the Fourth Amendment used in this fashion. It seems to me that a criminal law should be narrowly drawn to address the problem at hand. If we really think that it should be a crime for two or more underage kids to drink at home, regardless of the circumstances, we shouldn’t find excuses for why the law won’t be enforced at inopportune times. We should exclude those situations. And if we don’t exclude them, it seems to me that we want to find ways to stop those evil-doing parents who toast the new year with their underage issue.

While this law is minor, it’s relatively easy to see how hiding behind the Fourth Amendment becomes a way to encourage unnecessary lawmaking: the consequences of overbroad new laws are explained away as unlikely and irrelevant to selected citizens. At the same time, these provisions can be used, selectively, to generate a justification for entering homes that might otherwise be of interest to police. In my view, the only acts that should be crimes are those that a family in Mountain Brook – or Scarsdale or Winnetka or anywhere else – would be willing to forego in the privacy of their home. If the regulation seems to intrude too much on personal or family matters, it’s probably a bad law.


Strict Liability For Parents

Alabama’s most affluent suburb, Mountain Brook (home of Natalee Holloway, whose apparent abduction and murder in Aruba was a Greta Van Susteren / Nancy Grace panic-TV staple), is considering adopting a new “open house party” ordinance. It would fine homeowners when two or more underage people drink alcohol in the house. On the third offense, the law provides that the homeowners would be guilty of a misdemeanor. Homeowners, by which we really mean parents, would be criminally liable even if they were unaware that kids were drinking in their homes. They are strictly liable – guilty even if they had no intent to break the law, had no knowledge it was being broken, and were not even negligent in allowing the infraction to occur.

In my juvenile justice class, I ask whether it is really possible for parents to control their kids’ behavior. Inevitably, most people say no. “You can’t control what kids will do.” I then ask about the efficacy of a statute holding parents financially liable for all damage caused by their children. Most students think this would provide only a limited incentive to control children. In the end, my students insist, kids are out of parents’ control. Then I push a step further: what if the parents are held criminally liable for whatever crimes the child commits. If a child commits a burglary, the parent is guilty. When little Eddie Jr. robs and kills an old lady walking down the street, Eddie Sr. spends the rest of his life in the pokey. At this point, students see that parents probably can significantly control a child’s conduct. Unfortunately, with such high stakes, they may resort to abusive behavior, such as beating their children or imprisoning them in their bedrooms.

There are really two different issues here. The first is effectiveness. Can a strict liability ordinance punishing parents really affect the conduct of a child? The answer, it seems to me, is yes – provided that the stakes are high enough. I’m not sure that Mountain Brook has raised the stakes very high and a statute that does so may generate unacceptably high collateral costs. The second question is moral. Should a parent be liable for the acts of the child even she worked hard to prevent them? This is tough for me. If a parent is not negligent – she does every single thing a reasonable person would do to keep her child in check – I think it’s hard to justify punishing her. What more can we ask of a parent? On the other hand, perhaps we want parents to go beyond mere reasonable behavior. The reasonable parent seeking to prevent open house parties will lock up the booze and perhaps install a nanny-cam to monitor the house. But maybe we want parents to go further; maybe we want parents to construct their entire lives around teaching children to behave in good ways. Perhaps a strict liability law is really trying to change overall parenting strategies. Mountain Brook wants parents to teach a different value set from early on: don’t disobey parents, follow house rules, don’t break the law.

I doubt the Mountain Brook ordinance will change behavior too much. Rational Brookies will understand that every home is entitled to two open house parties without serious consequence. And I suspect that the local judges will be loathe to burden a community leader with a criminal record, even if little Eddie got a bit wild while his folks were at the beach. But start holding parents strictly liable for the crimes of their kids, and I suspect you’d see a whole new construction of parenthood. And some interesting collateral effects. Parents would quickly give up custody of their “problem children” – burdening the state’s family protection office. On the other hand, some people might think twice about having children before they were able to properly supervise them.

Is strict liability for parents a good idea? I’m not sure that socially tolerable provisions will work, or that effective provisions are socially tolerable. But it’s certainly worth a conversation.


NY Court of Appeals Decides Same-Sex Marriage Case

New York’s highest court handed down its eagerly anticipated decision in Hernandez v. Robles this morning. The court first decided that New York statutes did in fact limit marriage to opposite-sex couples, then proceeded to analyze that restriction under a rational basis test, defining the relevant right as not the right to marry a person of one’s choosing, but “[t]he right to marry someone of the same sex.” It found that the New York legislature could have had rational bases for drawing a line between opposite-sex and same-sex couples:

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Ken Lay: R.I.P.

Ken Lay, R.I.P. at 64. A few thoughts.

1. I’m not running for office, and I don’t think this blog counts as journalism, so I must be a fool. I think that Lay deserved prison time. (Whether or not Lay would have been sentenced to a life term, as Larry Ribstein claims here, or its functional equivalent is unclear). Now, did he deserve as much time as a murderer? (Assuming that murder was a federal crime). It is a tough question, as I admitted in January. Ribstein describes Lay’s crimes as follows:

He was convicted for lying about [Enron being a Ponzi scheme] at the tail end. Some people bought in at that point because they didn’t know the truth, and maybe that was partly Lay’s fault. But others (not Lay) got out – the gains and losses of these traders net out.

Alot of the people who feel hurt here simply hung onto their stock too long. But did they get hurt by Lay? If he had told the truth at his first opportunity, or even just remained conspicuously quiet, they just would have gotten hurt sooner.

Let’s put aside the factual disputes [But note: weren’t the locked-in employees owed some sort of duty by their boss?], and also put aside the point on timing [But note 2: if the truth had been revealed earlier, perhaps JKS wouldn’t have quit, or the firm would have been saved, etc. Lies fester.] Larry’s argument would seem to prove too much – there will often be non-wrongdoer “winners” from fraud, as there are winners from murder, theft, etc. Does this mean that fraud ought not be criminal in the ordinary case?

The punishment point is more troubling to me. Is fraud as bad as murder? On considered reflection, of course not. But that doesn’t mean that fraudsters ought not be punished like murderers. Ordinary deterrence intuitions suggest that punishment needs to be ratcheted up as enforcement goes down. Thus, murder is almost always prosecuted. Stock market manipulation and lying to banks to secure loans almost never are. Larry would have punishment in corporate law instantiate lex talonis. But punishment in this arena dances to Becker’s drum, not Markel’s. To make the laws against securities fraud work, we need tough penalties, or many more prosecutions. I’d rather the former than the latter.

2. Peter Henning says that the criminal conviction has now been expunged,and that “the plaintiffs cannot rely on it as proof in their case, if my dim memory of collateral estoppel serves me right.” My memory of CE is also obscure, and I wonder if any of our regular and/or expert commentators care to weigh in on this civil procedure problem. Separately, can the civil plaintiffs use Skilling’s conviction against either Skilling or the Lay estate before it becomes final? It is hard to believe that the civil trial has to be stayed for the pendency of the coming appeals, but such would seem to be the consequence of the rule that Henning has unearthed.