9

Note to U.S. Bar Examinees: It Could Be Worse

japanese flag.jpgAmerican University Washington College of Law, where I teach, has recently established an exchange program with Ritsumeikan University, a law school located in Kyoto, Japan. Our students and faculty regularly visit there, and a group of Ritsumeikan students comes to American University each summer for three weeks to study U.S. law. As a result of my law school’s connection to Ritsumeikan, I have learned a little about the Japanese legal education system, which is in a fascinating period of transformation right now.

Until very recently, Japan has offered no post-graduate legal education. Instead, students would study law as undergraduates and then take the National Law Examination, a wickedly difficult exam with a less than three percent pass rate, producing only 1,200 new lawyers a year. (Compare that with the 2005 U.S. bar passage rate of 64% percent, which produced 51,958 newly-licensed U.S. lawyers that year.) Whatever one may think about the number of lawyers in the United States, the paucity of Japanese lawyers is widely recognized as a problem for the world’s second largest economy. Without lawyers, Japanese businesses and citizens are denied access to courts, with inevitable consequences for the growth of the economy and the advancement of social justice.

In June 2001, the Justice System Reform Council proposed major changes to the Japanese legal education system, which it had developed during its two years of studying the problem. In response to the Council’s recommendations, Japan has established post-graduate professional law schools, such as Ritsumeikan, to provide a three-year legal education with the goal of improving the quality and quantity of Japanese lawyers. A J.D. degree is now a basic requirement for those who will take the new National Law Examination. The pre-established pass rate is higher than before, though still extraordinarily low by U.S. standards – only 3,000 students will be permitted to pass the exam each year. It will be interesting to see how these changes affect Japan in the years to come.

So for those recent graduates of U.S. law schools (and a certain professor at Stanford Law School) who are awaiting their bar results, take a moment to be grateful that your chances of getting licensed to practice law are considerably higher than those of your Japanese counterparts.

1

Skillz and Influence

ucc-web.jpgIn a very interesting recent post at Credit Slips, Bob Lawless laments the poor drafting of the recent amendments to the bankruptcy code and the fact that lobbyists wrote most of the statute. He writes:

That’s not surprising. Most legislation is drafted, at least initially, by lobbyists. In 1978, there were around 200,000 total bankruptcy filings, and in 2005, there were over 2,000,000. I don’t expect to see a return to the days when Congress looked to bankruptcy experts for advice in how to draft the bankruptcy law. The stakes are higher than they were in 1978.

Generally speaking, I am very sensitive to claims about quality or the lack of it in legal craftsmanship. In practice, I hated dealing with O’Connor opinions because, among other things, I thought that they were frequently shoddily drafted. (Lest one thinks this is an ideological thing, I think Brennan was a superb legal craftsman, even when he was glaringly and obviously wrong.) To the extent that Lawless means “law professors” when he is talking about “bankruptcy experts” (and I doubt that he means only law professors), I wonder if there is another explanation.

I have heard a number of profs lament the fact that the professoriate no longer seems to have the influence that once it did. Generally speaking, this is explained in ideological terms. Congress is a lot more conservative than it was thirty years ago and accordingly treats the academy with far greater suspicion. I wonder, however, if other forces are not at work. A generation ago, there was considerable academic prestige to be won by virtuoso legal craftsmanship. Llewellyn and Gilmore were lionized within the academy (and without — Gilmore made the cover of Time) on the basis of — among other things — statutory drafting ability. Such is no longer the case. I suspect that with the rise of theoretical sophistication within the academy many law professors simply aren’t as good as their counterparts a generation or more ago were at legal craftsmanship. They certainly spend less time reading primary legal materials. The decline in influence may be a result of the fact that law professors on average simply lack some of the skills that gave them access to the corridors of power in years past.

To paraphrase Napolean Dynamite, maybe Congress only loves law profs if they have skillz. Numbchuck skillz, drafting skillz…

4

Now Playing in a Bankruptcy Court Near You

Imagine that, for the past several years, you’ve worked diligently and dutifully as a bankruptcy judge. Unlike your Article III colleagues on the federal bench, you don’t have lifetime tenure or salary protection. But that doesn’t really bother you all that much because you care about what you do and you feel you make a difference. What’s more, you love the substance of your work—applying the Bankruptcy Code day in and day out. Sure, it has its share of inconsistencies and ambiguities that present some interpretive difficulties, as any statute would, but, at the end of the day, it’s elegant and workable. And then, BAM! Your life as a judge as you know it comes to a screeching halt.

On April 20, 2005, President Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) into law, thus becoming Congress’s willing accomplice in committing statutory massacre. And when I say statutory massacre, I’m not even thinking about how BAPCPA substantively changes the Bankruptcy Code. Rather, I’m focusing on BAPCPA’s inartful drafting. As recently blogged by Bob Lawless over at Credit Slips: “Regardless of one’s views about the substance of the amendments, most everyone seems to agree that the legislative drafting left something to be desired.” And that’s putting it quite mildly. A quick glimpse at some of the statements from members of the bankruptcy bench during the past year gives the impression that some of the judges are not too happy with Congress.

Read More

2

NSA Surveillance and the First Amendment

NSA3.jpgEarlier today, a federal district judge struck down the Bush Administration’s NSA surveillance program which involved intercepting international electronic communications without a warrant. The opinion is available here. I have not had time to read the opinion carefully yet, but I am especially intrigued by the court’s use of the First Amendment as one of the grounds to invalidate the program. I just completed an article entitled The First Amendment as Criminal Procedure in which I argue for First Amendment regulation of government information gathering. In the final section, I have a discussion of the NSA surveillance program.

The court’s First Amendment analysis is very brief, and I agree with Jack Balkin who observes that the “first amendment holding is novel although plausible, but it is not supported by very good arguments.” The First Amendment argument is indeed a difficult and complex one and it deserves more than just a few pages to develop. My article attempts to flesh out the First Amendment argument. Here’s the abstract:

This article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person’s private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people’s private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls “First Amendment criminal procedure.” Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

I welcome any comments. Eugene Volokh has some interesting analysis of the court’s First Amendment analysis here.

11

Law Review Submissions, Final August Version

question2.jpgContinuing Co-Op’s tradition of law review related public service, I thought I’d open up a space for law review editors to provide some information to folks thinking of submitting in the next “cycle”. (Kaimi has a post up for law reviews that want off-cycle submisssions).

[Update: I started this thread back in June. It is now August, and I assume the window of submissions is fully open. Editors should feel free to use the comment thread to make any submissions related announcements they deem relevant and useful.]

0

Privacy, Information, and Technology

Spinoff Cover 2e.jpgMy new casebook, PRIVACY, INFORMATION, AND TECHNOLOGY (ISBN: 0735562548) (with Marc Rotenberg & Paul M. Schwartz) is now hot off the presses from Aspen Publishers. It is an abridged version (300 pages) of our regular casebook, INFORMATION PRIVACY LAW

(2d ed.), which is about 1000 pages in length.

Privacy, Information, and Technology is designed as a supplement to courses and seminars in technology law, information law, and cyberlaw. It will provide between 2-4 weeks of coverage of information privacy issues pertaining to technology, government surveillance, databases, consumer privacy, and government records.

More information about the book is here. If you’re interested in getting a review copy of the book, please send an email to Daniel Eckroad.

The book will sell for $35 and can be purchased on Aspen’s website.

The book consists of four chapters. Chapter 1 contains an overview of information privacy law, its origins, and philosophical readings about privacy. Chapter 2 covers issues involving law enforcement, technology, and suveillance. Chapter 3 focuses on government records, databases, and identification. Chapter 4 covers business records, financial information, identity theft, privacy policies, anonymity, data mining, and government access to private sector data.

The full table of contents is available here.

8

If It Can’t Be Sold, It’s Worthless

tiger.jpgThom Lambert offers this post on a “property rights” theory of endangered species protection (in essence, creating a market to increase supply). The arguments (also found in this Times’ opinion piece) are standard neo-classical economics. Trading, not regulation, increases supply of “goods,” therefore permitting endangered species to be “farmed” by hunters and others will ultimately “manage” them toward a sustainable population. “Some objections might be raised to this scheme,” to quote Daniel Farber’s An Economic Analysis of Abortion, “but rigorous analysis shows them to be unfounded.”*

Even though the arguments are hoary, I still feel torn about this issue.

On the one hand, as Lambert observes, some empirical evidence suggests that prohibitions don’t work well to preserve populations against development pressure. On the other hand, (1) the approach is useless for species that are commercially worthless (the owl, for example); and therefore (2) it has all of the problems of ordinary market valuations, and produces irreversible results (extinction) among the losers. (For a really good discussion of this problem, I recommend Matthew Scully’s Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy. The chapter on hunting, economics, and commodification is amazing.)

*The fun goes on in Farber’s footnote: “One commentator has said that this approach ‘seems almost pathological in its disregard of the moral values on both sides.’ . . . That commentator’s work evidences all too clearly a lack of rigorous economic training.” 3 Const. Comment. 2 (1986)

6

NewsFlash: Westlaw is Fallible!

Like many lawyers, I rely heavily on Westlaw and other electronic databases for research. So I was disturbed to discover that Westlaw had failed to note some pretty important developments in a case I had been litigating — omissions that may have affected the way other courts view the issue.

The case is Peoples v. CCA, which I have discussed in a previous post. My petition for rehearing en banc was granted on December 22, 2005, but Westlaw failed to note that information in either a yellow flag or in the history link. I called Westlaw to report that problem as soon as I noticed it in late January, and Westlaw fixed it quickly by attaching a yellow flag to the case and noting that en banc review had been granted. In the meantime, however, the Fourth Circuit had already cited to the panel opinion as supporting its view of the issue, apparently unaware that the Tenth Circuit had agreed to rehear the case en banc. (Though in fairness I do not believe that information would have changed the Fourth Circuit’s mind).

Then the en banc court issued a per curiam opinion in which it affirmed the district court by an evenly divided vote, which vacated the panel opinion. Westlaw has failed to note this change in the panel opinion’s status, despite the two telephone calls I have already made reporting this problem. And courts continue to cite the panel opinion as if it is good law.

No system of recording cases and their histories is failsafe, and I think that Westlaw and Lexis both do a pretty good job most of the time. I certainly don’t have a better system to propose. But this citation error makes me realize how heavily we all rely on electronic databases for our information about case law, and how one mistaken citation can affect a rapidly developing area of the law.