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November 20, 2008

No civil libertarians here

The most interesting thing about this quarrel between New York City police commissioner Raymond Kelly and attorney general Michael Mukasey over the surveillance of terrorism suspects is what they agree about: the public is safer with more surveillance.

Kelly's argument is that the DOJ has been dragging their feet on asking the FISA court to approve NYPD surveillance requests.

Mr. Kelly complained that Justice Department lawyers imposed a needlessly high standard to be certain that every surveillance application submitted to the court would be approved. “Intelligence collection operations against potential terrorist threats to the homeland often involve considerable uncertainty,” he wrote. “D.O.J. should not hesitate to present judges with close cases. Some requests for warrants will inevitably be denied.”

Mukasey's argument isn't that the surveillance is excessive, but that the court will scrutinize surveillance requests more closely if too many of them are submitted.
But Mr. Mukasey said that submitting such cases to the court would be a mistake. “The less the FISA court comes to trust the validity of the applications, the more inclined the judges will be to impose on all applications the kind of scrutiny that doubtful applications merit, which of course takes more time and causes more delay because the court’s resources are limited,” he said. “The greater the delay, the fewer the applications can be processed and granted within a given time. The fewer successful FISA applications, the less intelligence can be gathered. The less intelligence gathered, the greater the danger to all Americans, including New Yorkers. That is not a complex formula.”

So this argument is just a tactical one over how to extract the widest latitude for law enforcement surveillance from the FISA court. Unsurprisingly, both sides assume that more surveillance = greater public safety. There's no civil libertarian side to this squabble. The good news, I suppose, is that both officials still seem to think getting the court's approval to eavesdrop is a necessary evil.

October 03, 2008

Interesting lawsuit

Read all about this 7-1/2 year pregnancy.

May 23, 2008

Another civics lesson

Glenn Greenwald says he used to be a constitutional law and civil rights litigator in New York. But he doesn't need that background to make the following obvious point:

. . . a court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government. That's because, strictly speaking, the U.S. is not a "democracy" as much as it a "constitutional republic," precisely because constitutional guarantees trump democratic majorities. This is all just seventh-grade civics. . . .

Point taken, Mr. Greenwald. But to pick a small bone: seventh-grade civics like this died a quiet death sometime in the late 1970s.

January 10, 2008

Law vs. Medicine, and law school vs. medical school

I've gotten several email requests over the past few weeks from people who are trying to decide whether to pursue a career in law and/or medicine, asking what the professions are like and what the training for each of them entails. Since more people with the same question may find my blog but won't want to email me directly, I thought I'd post a generic version of what I've said about the subject here.

Keep in mind, of course, that my insight is limited. Yes, I've finished both law school and medical school, and I'm now a medical resident. This gives me an interesting perspective on the training programs for both professions. But remember that I've been practicing medicine for eighteen months as a resident. I've never practiced law. My knowledge of law practice comes from my time as a summer associate with a very large firm called Sidley Austin in Chicago, and from talking with law school friends that have been practicing in various capacities and places for eighteen months.

Nevertheless, that's still some pretty unique (*smirk* to you-know-who) experience, and I'm happy to share it.

Both professions are hugely diverse, and this makes it hard to generalize about them. In my opinion this also makes both fields very interesting -- there's a million little niches in each that
suit very different kinds of people.

With the disclaimer out of the way, let's move on to the generalizations:

Medicine is literally a hands-on profession. Most docs end up pushing on stomachs and listening to various organs with a stethoscope. True whether you're an emergency doc or an internist or a surgeon. Even the pathologists and the radiologists are probing individual patients in some way (dead patients and pictures of patients respectively).

The mental work that docs do is usually diagnostic -- pattern recognition -- which sometimes doesn't feel like "thinking." They gather all the data together, recognize from past experience what kinds of data are missing and what questions haven't been asked, and then fit all those data into the patterns they've got floating around in their head. This process of diagnosis is usually instantaneous. "Ok ma'am, you've been vomiting for two days, you've had an appendectomy several years ago, you're not a diabetic, and your abdomen is diffusely tender. Badda-bing, I think you've got a bowel obstruction." Why? Because it fits the pattern.

When you're doing this, it doesn't really seem to be a mental process in the same way that writing out an argument in the social sciences or humanities does. In fact, it can seem mindless. So much so that many docs feel they need to do something else to get their intellectual kicks -- research, philosophy as a hobby, health policy, whatever.

The plus side is that you are actually helping a real person who's standing in front of you (or curled up in the fetal position in front of you). You're doing something in the real world and you see the effects of what you do.

Contrast this with law: this is a writing profession. Lawyers deal with written documents and produce written documents, almost without exception. This can mean that the effects of what you do aren't so immediate as they are in medicine. As a lawyer, you certainly have no special manual skills like most
doctors do -- you can't put a central line into some guy'sneck, you can't do any kind of surgery. The skills you have are all about documents.

Even if you're a trial lawyer that argues to a jury, you're still dealing with words, arranged in a particular way, only this time delivered orally instead of on paper. Even trial lawyers spend the majority of their time going over written depositions, writing motions to the judge, etc. And most lawyers who don't do trials work almost exclusively in writing -- corporate lawyers drafting documents for deals, appellate lawyers writing briefs, government lawyers reviewing policies.

There's a lot of room to think, in the traditional academic sense, if you're a lawyer. (Not so much as a junior associate, but as you get more experienced.) You can strategize, persuade, marshal evidence, and all the other stuff that lawyers are famous for doing. It's not as free-wheeling as arguing with your friends about Barack Obama's health plan, but hey -- it's still an intellectual and creative kind of brain work.

The downside, in my opinion, is that the effects of what you do are often much more difficult to discern in law than they are in medicine. You slave away on a motion for weeks, and then the judge denies it. Or, worse, the motion is granted, but then your client settles. You have to use your imagination sometimes to believe that what you did had some direct effect on the world. True, in medicine the patient may still end up dead, but in general you'll see the effects of what you do in medicine more than you will in law.

If you hate being in a cubicle, realize that most of the really well-paid lawyers do
just that -- sit in a cubicle. Lawyers who like to be on their feet are usually prosecuting or defending small-time crime, or (occasionally) they make a name for themselves and work on the big stuff. But this is only one small niche within the legal profession. Most lawyers are desk-driving wordsmiths.

Then there are other factors. In my own biased opinion based on limited experience:

Lawyers are much better conversationalists than doctors.
Doctors can't write worth a damn, and they're less curious.
Most people in both professions are risk averse.
Lawyers are much more money and status conscious than doctors.
But the doctors who are money-conscious are insufferable.


One other thing I should mention: the road to getting a medical license is a long one. That shouldn't stop you if you want to do it, but you've got to be prepared for the long haul, and you have to enjoy the journey.

Speaking of school: in medicine, the trick is to get into *any* American medical school. There are relatively few of them, and they all have high admission standards. Law school is different. The trick for law school is to get into a *good* law school. There are a million law schools, and for most of them, all you need to do to get in is have a pulse and be able to sign for student loans.

What this means is that in medicine, so long as you get in, it doesn't matter where you go to med school. Sure, Hopkins would be nice, but if you don't like Baltimore you can go to your state med school and do just as well. In law, if you don't go to a good law school, you'll find your employment prospects limited when you graduate. Don't let the schools tell you any different: shoot for the best law school you can get into.

For a list of good law schools, see Brian Leiter's rankings. There are other rank lists out there and these rankings are absurd, but I've said a lot about that already and won't repeat myself here. These list just give you an idea of which schools will give you the most options as a graduate.

Remember, too, that you might want to consider why you want to enter either profession. The word on the street is that both lawyers and doctors don't have as much prestige as they used to. Practitioners of both professions are, more and more, becoming highly-paid employees, and there's nothing very highbrow about that. So if prestige is what you're after, think twice. Think about starting your own business, or becoming an artist. There's many more than two ways to skin a cat.

October 13, 2007

EMTALA and the torture memos



Just as no one ever expects the Spanish Inquisition, I'm sure no one ever expected that EMTALA would be used like this....

Jack Goldsmith, now a law professor at Harvard, used to head the Justice Department's Office of Legal Counsel.  He's famous for having retracted John Yoo's "torture memo" of August 1, 2002, on the grounds that it was "legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary." [p. 151]

One of the ways that it was flawed, Goldsmith reveals in his book about his time at OLC, was its definition of torture.  According to the memo, in order for pain inflicted on a prisoner to amount to torture, it "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."  Goldsmith doesn't think this assertion had very much legal authority to back it up.  Which isn't surprising, given that the description of pain was not derived from any authority having to do with torture, but instead was lifted from EMTALA's definition of the kind of pain severe enough to constitute an "emergency medical condition" triggering a requirement for most US hospitals and doctors to provide certain kinds of medical treatment.  Goldsmith calls this use of EMTALA's language in the Torture Memo  "clumsy definitional arbitrage" that "didn't seem even in the ballpark" for definining what kinds of severe pain might amount to torture [p. 145]

Fascinating.  Creative use of authority like this is why some lawyers make the big bucks, are given top-level jobs in government, and occasionally suffer professional humiliation.

October 07, 2007

And now for an absurdly untimely comment

There are some issues that irreconcilably divide the world's people into one side versus another. Pro-life or pro-choice. Cats or dogs. Beach or mountains.

Pro- or anti- Anthony Ciolli.

Me? I think the decision by Ciolli's old law firm to rescind its offer of employment is nauseating. Not unexpected, but nauseating. At least Ciolli never claimed to be something he wasn't. Hypocrisy wasn't one of Ciolli's sins, but a biglaw firm preaching primly about "the kind of language exhibited on the message board" that Ciolli was affiliated with, while at the same time doing what most biglaw firms do -- whore itself out for absurd amounts of money defending corporate clients that harm people in ways far worse than Ciolli ever did -- is nauseatingly hypocritical, if rarely remarked upon.

Now, I don't know everything about the AutoAdmit scandal. I don't know exactly what was posted by the people who were eventually sued by Rosen/Lemley/et.al. I certainly don't know whether the plaintiffs in the lawsuit couldn't get a job because of what was posted on AutoAdmit, or because their grades sucked. But as a former poster on the previous iteration of AutoAdmit (when it was still run by the Princeton Review), I believe that participants on this board have clear warning about what kind of juvenile/infantile/potentially dangerous climate they're getting into when they post there. And they have to be idiots not to know that the kinds of employers they're angling to attract -- risk-averse and often hypocritical Biglaw firms -- might act stupidly and take what was posted on AutoAdmit as an excuse not to hire them, for whatever reason.

Even, allegedly, because some anonymous poster calling himself The Ayatollah of Rock-n-Rollah said that the plaintiff had a lesbian affair with the admissions director at Yale Law School. To believe that even a Biglaw firm would take that claim seriously is a stretch. Look, a lot of things were said about me by fools and morons when I posted on xoxohth.com. That was one of the things that made it fun. But when a biglaw firm didn't give me a job, I assumed (naively, perhaps), that it was because they had other applicants that they liked better than me, for substantive reasons, like, say, law school grades and an enthusiasm for golf. Suing xoxo would have been too embarrassing to contemplate. Apparently, not for everyone.

I admit, I'm a mountain guy. I like cats. I'm pro- legal abortions (but not because I'm "pro-choice" -- that's the worst justification in the world for fighting to keep abortion legal). And I'm a free-speech guy. No one should think getting a Biglaw job is such a shoe-in that "it must have been those xoxo posters who ruined it all for me." I bet if your resume were a bit stronger you'd have gotten a few more offers. Or, conversely, you should have realized that the hiring committees at Biglaw firms really are stupid enough to pay attention to some anonymous dumb ass calling himself Pauliewalnuts.

May 25, 2007

Mark Helprin: Seventy years after I'm dead is not enough

If I were still in law school (and not post-call on the trauma service), this article from the novelist and occasional current-affairs commentator Mark Helprin would have provoked a long post many days ago: A Great Idea Lives Forever. Shouldn’t Its Copyright?

Helprin makes the provocative, because so seldom-heard, argument that copyright terms extending to 70 years after the death of the author just aren't long enough:

Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.
This argument deserves a reasoned refutation instead of (in addition to?) a dismissive guffaw. Helprin has wandered off into cuckoo-land here, and if I weren't so sleep-deprived, I'd tell you now why I think so.

But alas, wisdom demands that I grab a beer, curl up in bed with my book for half an hour, and go to sleep. I'm back in the hospital again tomorrow....

February 27, 2007

"assault" on corporate speech?

"Free speech" is universally acknowledged in this country to be a good thing, and it seems obvious that it is. Which probably explains why, when George Will wants to attack a proposed rule change making it easier for workers to join a union, he chooses to characterize the rule change that he doesn't like as an "assault on corporate speech." Will suggests by the accusation that the new rules would be un-American or vaguely unconstitutional, but the question for us is: is Will correct?

The House is scheduled to vote on a bill this week that would change the procedure for establishing unionized workplaces. Under the new rules, union representation would be established whenever a majority of workers sign a card declaring that they want a union. Currently, unionizing requires a formal secret-ballot election supervised by the National Labor Relations Board.

I'm far from understanding all the subtleties of these proposed rule changes, but suffice it to say that union organizers think the new procedures will make it easier to organize workers (which is why they support them), and employers agree (which is why they oppose them). There are many arguments that can be made for and against the rule changes -- many involve the extent to which workers would be exposed to pressure from either employers or from union organizers; others involve the benefits and costs to our economy that a more unionized workforce would entail. George Will, however, knowing the power that the idea of "free speech" has in our country, chooses to attack the rule change as an "assault on corporate speech."

We should be suspicious of Will's argument, for many of the same reasons that this sentence of Will's just sounds odd: "[McCain-Feingold's] speech restrictions -- applauded as virtuous by the (exempt) media -- have legitimized talk about "drawing lines" to circumscribe the speech rights of entire categories of Americans, in this case employers."

Employers -- the "category of Americans" that Will has in mind -- apparently includes not just Bob Smith down the block who owns a plumbing supply company, but also PepsiCo and Wal-Mart. It's reasonable to ask whether the virtues of free speech enjoyed by individual citizens and human beings are equally as virtuous when applied to behemoth corporations that are "persons" in a legal sense only. Corporations are constructs formed for the sole purpose of concentrating more capital in one place than any single human being could ever possess, are non-existent apart from the hundreds of thousands of individual human beings that invest in and are employed by the corporation (all of whom presumably have opinions of their own that cannot be said to be Pepsi's "opinions"), and are, to the extent that we can speak of them as single entities, single-mindedly devoted to the pursuit of monetary profit to an extent far greater than any of the real human beings that collectively make it up. You shouldn't expect to reason with a corporation in the same way that you can reason with a human being. You can't "persuade" it like you can persuade the individual who may be its CEO.

It's a simple point, really. It's why we can call the same words uttered by our neighbor Fritz "persuasion," but when they're uttered by the Government we call it "propaganda." One of the reasons Americans love free speech so much is precisely because we think that allowing individuals to voice their opinions protects us from the overbearing influence of messages delivered from on high -- usually by the government. The question is, is "corporate speech" in the context of union organizing more like government propaganda or more like discussing the issues of the day with the lady who waits tables at Bennigan's? George Will may have a good point about the union organizing rules, but his equation of "corporate speech" with free speech generally is much more suspect.

June 08, 2006

A bad idea: implied preemption of state law requirements for drug labels

Should drug manufacturers, assuming they meet all the labeling requirements imposed by the FDA, be subject to liability for failing to meet more extensive or different labeling requirments imposed by the states?

This article in the NEJM ($), criticizing the FDA's new labeling regulations, buries its most important paragraph deep in the middle of the piece:

The most troubling aspect of the FDA's new plan, however, has nothing to do with providing information to prescribers. In an unusual move after the end of a five-year period of comments on the initial rule, the agency used the passage of the new labeling regulations to quietly add a new section to its preamble that will make it extremely difficult for anyone to bring legal action against a drug manufacturer for harm caused by one of its products.

Whether you find this troubling or not will depend on what you think about the trustworthiness of the FDA and drug manufacturers, the appropriateness of private lawsuits in areas subject to extensive government regulation, and the relative role of state and federal law.

For years, the pharmaceutical industry had sought to pass legislation that would prohibit litigation over adverse effects as long as the medication was approved by the FDA; Congress has consistently rejected this idea. But after the comment period for the new labeling regulation had closed, language was added to the final rule stating that any FDA-approved label, "whether it be in the old or new format, preempts . . . decisions of a court of law for purposes of product liability litigation."

Drug manufacturers would love for Congress to explicitly preempt state laws governing drug labeling, but so far, Congress has chosen not to do so. There's nothing that explicitly prevents states from passing drug labeling laws that impose more extensive requirements on drug manufacturers than imposed by the FDA under the federal Food, Drug, and Cosmetic Act.

Usually when an industry wants federal preemption of state laws, but can't convince the Congress to go along, the industry relies on the doctrine of implied preemption to argue that courts should refuse to enforce state laws anyway. Their argument is that when Congress legislates extensively about a given subject, it has implicitly exercised its power to preempt state law. State legislation on the same subject, even if it doesn't actually conflict with federal requirements, would alter the federal regulatory regime in ways that Congress would never have intended.

This doctrine leaves the preemption decision to the courts. But federal agencies do influence the final decisions about implied preemption, and that's why this new language from the FDA is important. When courts are presented with the argument that federal law implicitly preempts state law, they will often grant some deference to the interpretation of that federal law by the agencies charged with implementing it. For example, if the FDA interprets the Food, Drug, and Cosmetic Act to preempt state labeling requirements, it's more likely that a court will find that state law is preempted. That's why this part of the article is misleading:

Beginning at the end of this month, the new regulations would preempt nearly all action by patients in state courts against drug manufacturers for unanticipated injuries resulting from the use of their products. This immunity would apply even if a company failed to warn prescribers or patients adequately about a known risk, unless a patient could prove that the company intentionally committed fraud — a very hard test to meet.

The FDA's opinion about preemption isn't itself legally binding, but it does make it more likely that the courts will go along with drug manufacturers' preemption arguments.

Is any of this a good thing? There's a strong case to be made that in the absence of any state law to the contrary, a state jury shouldn't be able to hold a drug manufacturer liable for a "failure to warn" in a case where the manufacturer complied with FDA labeling requirements. The FDA does rely on clinical trial data to determine what warnings are appropriate. Its judgments shouldn't be routinely discarded by lay juries.

However, things are different when a state passes a specific law requiring warnings in addition to those imposed by the FDA. Contrary to what the FDA suggests, a drug's "safety" isn't something objectively inherent in the drug, and that can be objectively determined in scientific studies. Does a 1 in 5 chance of constipation make a drug unsafe? A 1 in 300 chance of a heart attack? Although the statistical likelihood of adverse side effects can be objectively measured, the safety of a drug is in the eye of the beholder. There's no reason why the FDA's decision that some risks are insignificant enough to be left off a warning label should prevent states from requiring that these risks be disclosed anyway. At least, not until the Congress decides to explicitly preempt state laws that require this additional disclosure.

The FDA argues that "State-law attempts to impose additional warnings can lead to labeling that does not accurately portray a product’s risks, thereby potentially discouraging safe and effective use of approved products or encouraging inappropriate use and undermining the objectives of the act." But this just amounts to an assertion that what's "appropriate," "safe," and "effective" is exclusively a matter for the FDA to decide -- and Congress hasn't explicitly given it this authority.

Implied preemption arguments should be approached skeptically, especially in cases where Congress has considered and declined to exercise its power to expressly preempt state law. The FDA's arguments for preemption should be treated even more skeptically, since they essentially restate the position of the drug manufacturers that has not succeeded in Congress.

The new regulations are here: www.fda.gov/OHRMS/DOCKETS/98fr/06-545.pdf.

April 04, 2006

The best argument against prosecuting midwives is...

I'm not one of those people who thinks that watching a baby get born is such a miraculous and transformative experience -- I'm just not that transfixed. So I suppose it isn't surprising that the debate over home births and midwives doesn't matter much to me one way or the other. Feminism, the medical establishment, the miracle of birth. . . yawn. If the state made home births illegal, or if they went to the other extreme and stopped regulating midwives altogether, I'd get along either way.

What really gets my goat, though, is that a mom or a newborn baby would encounter an unexpected problem and because of some yawner of a law, not get the emergency care that they need. This is why the prize for the best argument against prosecuting unlicensed midwives goes to:

"The current law, Ms. Welch said, drives midwives underground. "I don't want to have a midwife hesitate to take a woman to the hospital because she is afraid she will be arrested," she said.

April 02, 2006

And the most conservative circuit is . . .

Here's a simple test for ranking the federal circuit courts of appeal according to how liberal or conservative they are:

Step 1: Shepardize Lawrence v. Texas, 539 U.S. 558 (2003) on Lexis. Or use Westlaw if you prefer Pepsi.

Step 2: Count how many times each circuit follows Lawrence. Count how many times each circuit distinguishes Lawrence.

The most liberal circuit is the one that follows Lawrence the most. That'd be the Ninth Circuit, following Lawrence twice and distinguishing Lawrence once. The most conservative circuit is the Fourth, distinguishing Lawrence three times and not ever following it.

I know, I know; you're going to say that it's silly to draw any conclusions from such a small number of cases, and that the value of my little test depends completely on what you mean by "liberal" and "conservative." To which I say, no test is perfect -- but at least mine is simple.

February 23, 2006

Prime-time executions

An LA Times editorial calls for bringing executions out into the open:

Like the crimes for which it is a punishment, the death penalty is an affront to civilized society. It should not be reformed — it should be abolished. But if California is going to keep at it, let's try a reform that will remind us what we are doing while at the same time making sure, without help from a doctor, that the condemned prisoner is really dead. The state should convene a firing squad — and be certain to schedule the execution for prime time.

Regardless of whether you support or oppose the death penalty, I think this is a good idea. Watching executions won't change the minds of many diehard supporters or opponents of the death penalty. But it would challenge those of us who've ignored the issue to make a decision. It would force all of us to confront the reality of what the state is doing in our name.

The point is to encourage us to take responsibility for what we do. We can't do that until we know just what it is we're doing.

January 24, 2006

New blog quiz

Via Prof. Bainbridge, here's a fun quiz:


You are the Golden Rule! You presume that the legislature would not want to apply the statute to achieve an unreasonable or absurd result inconsistent with its purpose. It's not what's on the surface that matters for you, and you try to do what's best in any given situation. You're a bit unpredictable, but you don't mind.


Which Canon of Statutory Construction are You?
brought to you by Quizilla

January 19, 2006

How much is too much?

Perhaps meaning to reassure those of us who still believe that separation of powers is a good idea, Vice President Dick Cheney had this to say about the warrantless domestic wiretapping that his administration insists is lawful:

"The entire program undergoes a thorough review within the executive branch every 45 days. After each review, the president determines once again whether or not to reauthorize the program. He has done so more than 30 times since Sept. 11, and he has indicated his intent to do so as long as our nation faces a continuing threat from Al Qaeda and related organizations."

According to Cheney, we don't need to worry about all this secret exercise of power because the President reviews his own decisions regularly.

Forgive me if I remain suspicious. Apart from the fact that this kind of unilateral declaration of unfettered authority by any president would be frightening, this isn't just any president -- it's George W. Bush. If he's anything, Bush is unreflective and unrepentant, two qualities that in many cases are fine ones for a leader to possess, but aren't exactly what you want in a leader with unchecked power.

It's also not very reassuring to know that the review of these secret wiretaps is being conducted by an administration that would compel a retired Army colonel with as much experience in government as Larry Wilkerson to say:


"This is really a very inept administration. As a teacher who's studied every administration since 1945, I think this is probably the worst ineptitude in governance, decision-making and leadership I've seen in 50-plus years. You've got to go back and think about that. That includes the Bay of Pigs, that includes -- oh my God, Vietnam. That includes Iran-contra, Watergate."

Hugh Hewitt says a lot in favor of Presidential authority to disregard FISA and make stuff up in the name of national security. It seems to me that the problem with Hewitt's position (and all of Bush's apologists) is that he a) mischaracterizes the threat to the United States from Al Qaeda as an imminently existential one that puts our very existence as a nation in jeopardy (which is just hogwash), and b) fails to see that the kind of power Bush is claiming for himself is incompatible with a separation of powers and a system of checks and balances. Nothing and no one can ever check the President when national security is offered up as an excuse.

If I misunderstand Hewitt, would someone please let me know where he thinks the limits on Presidential power lie? Surely he'd be in favor of some limits--just in case the mob should go crazy and actually elect President Hillary Clinton.

The argument that the NSA wireless wiretapping is illegal is much more persuasive. The Bush administration has fired back with a 42-page "white paper" defending itself. Should be a good source of blog fodder for weeks.

Meanwhile, Osama bin Laden is rattling the sabers again. We should of course protect ourselves. Of course, we should destroy Al Qaeda. Also, of course, we shouldn't let these terrorists frighten us into giving up our system of government checks and balances that helps to protect us from domestic tyranny. Sadly, we are well on our way to letting them do just this.

January 13, 2006

Legislative mugging? Not by a long shot.

When a state or city government decides to give a big corporation a tax break in order to persuade it to relocate, everyone yawns. When the Maryland legislature votes to require Wal-Mart to spend more on health care for its workers, it's immediately accused of "legislative mugging" by none other than the Washington Post. Something's wrong with this picture.

If it's OK for a government to hand out goodies to a specific corporation, then why isn't it OK for the government to impose burdens on a specific corporation? If one is acceptable, than the other should be also. Even better: if one is bad, than the other is too.

As an aside, the Maryland legislature in this case hasn't even singled out Wal-Mart. It voted today to override Gov. Ehrlich's veto of legislation that would require all employers with more than 10,000 employees in Maryland to spend 8% of its payroll on health benefits for its workers or compensate the State. As it happens, of the four employers that are subject to the requirements, only Wal-Mart does not currently meet them. So, yes, only Wal-Mart will have to scramble to comply with the new law, but it's not "unfair and overbearing," and it's certainly not specific to Wal-Mart. As critics of the bill have pointed out, Wal-Mart is free to avoid the requirements by reducing their workforce in Maryland to fewer than 10,000 people. That's the difference between this bill and one that says "Wal-Mart shall. . . ."

But -- to get back to my main point -- even if the bill had targeted Wal-Mart, I fail to see the difference between this and a decision by the state of Michigan to give company-specific tax breaks to Delphi and Visteon. Both measures are corporation-specific. Both, say the politicians, are for the benefit of their respective states. The only difference is that in one case, a specific corporation is subject to special burdens, while in the other it's given special exemptions from burdens. Either both are OK, or they're both not.

Any legislative action that singles out a specific company is a bad idea. It blatantly violates the ideal of equal treatment under the law, and it invites corruption when the legislature gets into the business of handing out special goodies or dispensing special punishments. So I'd prefer not to see any company-specific legislation. But it's even worse when corporations take their yummy tax breaks and then complain about special requirements.

I'd like to say that the corporations can't have it both ways, but in this country, they often do.

January 08, 2006

Yay, Bayh-Dole!

Ever since the Bayh-Dole Act was passed, universities have scrambled to patent everything they could in the hopes of reaping rich rewards from the licensing revenues that are occasionally possible when you hold a lot of patents.

This article from JAMA ($) suggests that that revenue is not in fact very significant for the vast majority of universities, and that in many cases the costs of maintaining a technology transfer office to handle the patent applications and the licensing eats up any revenues that flow from technology licenses.

Only a few universities reap large net revenues from licensing. Surprisingly, these aren't always the universities that spend the most on research. Harvard? Stanford? Neither make a ton of money from licensing, at least relative to their research expenses. The universities that score big usually score big because they get lucky. For example, Florida State pulls in big cash because they have the patent on the anti-cancer drug Taxol. The University of Florida cashes in on the Gatorade trademark (wtf??).

The authors argue persuasively that, as a tool for motivating productive research, technology licensing hasn't had a huge effect in the U.S. They point out that other countries considering this model ought to worry that if they don't have a robust system of publicly-funded research, relying on technology licensing is more likely to slant research toward the benefit of the rich, who can pay large licensing fees. That this hasn't happened in the U.S. is probably because we still have a healthy amount of public research funding available.

November 01, 2005

Plant patents: what am I missing?

It's not surprising that the American provisional authority in Iraq under Paul Bremer would rewrite Iraq's patent laws to allow for patents on plants. (See this and this.) But it raises the issue once more about whether plant patents are a good thing or not.

I understand why patents are useful. In cases where innovation costs a lot of money and/or where it's easy for an inventor to exploit his invention while keeping it secret, patents help inventors to recoup their development costs while ensuring that the public gains access to new information.

But I never understood why patents should be issued for plants, especially crop varieties like wheat and corn. Patents for plants seem less like a means of spurring innovation and more like a tool for redistributing political and economic power from one group of people to another, specifically, from farmers to corporate plant breeders. I don't see how doing this makes anyone other than the corporations better off.

First of all, I don't understand why developing innovative new seeds should cost a lot of money. When it comes to plants, nature takes care of innovation largely by itself. Farmers simply pay close attention to what kinds of plants grow best on their farms, and they save the seeds from those plants to cultivate again later. That kind of innovation is cheap.

Genetic engineering of crops, on the other hand, is expensive. But it's not obvious that this kind of innovation produces superior products. Genetic engineering produces many "new" kinds of tomatoes very quickly, but many of these are inferior plants. They aren't adapted well to the places where they're grown, and so they need lots of pesticides and fertilizers to keep them alive. Very often these varieties are engineered with specific features that are actively detrimental, such as an inability to reproduce, or a dependence upon pesticides and fertilizers. It's no coincidence that these innovations benefit the corporations that "invented" them; it's harder to see how these innovations benefit the society as a whole.

The argument for patents has never been simply that they promote innovation per se; it's always been that they promote socially useful innovation. It's hard to see how patents on plants do this.

Second, I don't understand why agricultural knowledge would suffer from excessive secrecy if patents on plants weren't available. Farmers have always benefitted by sharing their seeds with other farmers -- they've always had the incentive to exchange seeds in the hope of developing better varieties for their own farms.

Plant patents seem less about promoting innovation and knowledge than about shifting power from farmers to agribusiness. If farmers have to purchase seeds from biotech labs that they are forbidden to save or to trade, then the farmers have been deprived of a function which they have performed ably for centuries, namely, adapting their crops to the place where they farm. That function has been transferred to agribusiness, which performs it through biotech rather than by natural selection. I don't understand why this redistribution of power should be good for any society, including Iraq.

Am I just missing something?

October 28, 2005

Who's next?

Michael McConnell, Janice Rogers Brown, Edith Brown Clement, Edith Jones and Emilio Garza have all been "ruled out" by the White House for the next Supreme Court nomination, according to an article by Jan Crawford Greenburg in the Chicago Tribune.

The most likely candidates are Samuel Alito, J. Michael Luttig, Priscilla Owen and Karen Williams, with J. Harvie Wilkinson a "less likely choice."

October 13, 2005

Stop trusting Bush about "enemy combatants"

Let's quickly tick off some recent instances where our trust in George W. Bush may have been misplaced. We trusted Bush to take homeland security seriously, and he gave us Michael Brown. We trusted Bush when he told us that Iraq was an imminent threat because of its WMDs, but there were no WMDs. Bush is now asking us to trust him about Harriet Miers, and for good reason, many of us aren't. Why, then, should we continue to trust him about Guantanamo?

Former Solicitor General Seth Waxman gave a lecture at the law school this week. He discussed the role of the judicial branch in the "Global War on Terrorism" (which he helpfully informed us is often abbreviated "GWOT") and suggested that the country might be better off if the courts changed their approach. Along the way, he read a chilling transcript from a hearing for a prisoner in Guantanamo that should make us all question the deference we've been willing to give to George W. Bush.

Continue reading "Stop trusting Bush about "enemy combatants"" »

October 03, 2005

Let's all just trust him

In his post entitled "Do You Trust Him?" Hugh Hewitt attempts to placate conservatives disappointed with the Miers nomination by posing the following rhetorical question:

Wake up people: Do you really think W is going to elevate a friend who doesn't agree with him on the crucial issues of the day just because she's a friend?

Come on, Hugh. Everyone knows that there is no such thing as a person who simultaneously a) is a friend of George W. Bush, and b) disagrees with Bush on the crucial issues of the day.

The reason the hard-right social conservatives are worried about Miers is that, for good reason, they're beginning to doubt whether Bush is committed to anything beyond loyalty to his friends. If he did (these conservatives reason), Bush should have passed up a loyal friend with an asshat resume in favor of a McConnell or a Luttig -- a competent person with a proven record of supporting socially conservative values.*

The real gripe that Hewitt has with conservatives who don't like Miers is betrayed by the title of his post. Hugh Hewitt trusts Bush, and he thinks everyone else ought to trust him as well. Never mind Michael Brown; never mind Bush's willingness to tolerate the abasement of our armed forces by condoning torture in Guantanamo and Abu Ghraib. One wonders how bad Bush's performance would have to get before Hugh Hewitt would stop blindly trusting George W. Bush.

I suspect that this overenthusiasm for Bush is behind Hewitt's drivel about Miers being an "Article II-inclined justice" (whatever that means) who understands the "GWOT" (conservative code for "global war on terror"). Apparently, Hewitt thinks the best way to win the GWOT is to let a strong President do what he wants, and for the Article I and Article III branches of our government to get out of the way. I think that's just ridiculous, but it certainly does reinforce the impression that a nation of Hugh Hewitts would be a nation that would turn to fascism to defeat terrorism.

* I put aside the question about whether it makes sense to talk this way about judges.

Miers: Bush crony?

We'll learn more about Harriet Miers in the next few weeks. But at first glance, she looks like an underqualified Bush crony.

It's not that she's unqualified; she's had a long career as a lawyer and it seems to have been a reasonably successful one. It's when you compare Miers with the other qualified candidates that she looks like a lightweight.

Bush could have chosen a competent and widely respected conservative like Michael McConnell. He could have chosen a competent and very devisive conservative like J. Michael Luttig. But no -- Bush passed over all these leading lights of conservative jurisprudence to nominate one of his friends from Texas.

Senate Democrats and those Republicans who value competent governance over blind party loyalty should tell Bush to find somebody else. We've seen what damage this president's crony picks can do to an agency like FEMA. None of us want a Michael Brown on the Supreme Court.

October 01, 2005

Tort reform and HMOs

Most physicians who talk about "tort reform" today are talking about changing the mechanics of malpractice suits against doctors. I wonder, though, whether we're not overlooking some important issues that have nothing to do with malpractice liability caps.

Dr. Wax says the following:

Managed care plans require that a physician accept all patients who choose him, dictate how often he may see the patient, the amount he'll be paid and when, and, in many instances, what he can prescribe. They can rescind previously paid compensation at will, and do. In reality, HMOs are practicing medicine since they must approve every test, course of treatment, and referral to a specialist, yet they are rarely, if ever, legally responsible. Meanwhile, the physician is left to suffer the consequences of any malpractice suit.

Back in the late 90s this kind of complaint seemed to be a lot more common. Now, though, you almost never hear it anymore. The only issue that seems to matter these days is malpractice reform, specifically liability caps and the rising cost of malpractice insurance. What ever happened to the HMOs?

Continue reading "Tort reform and HMOs" »

September 22, 2005

What if the USDA really is full of stooges?

Can the state of Montana impose testing requirements for mad cow disease that exceed those required by the USDA?

Montana Gov. Brian Schweitzer has said that regulators at the USDA are "a bunch of stooges" who have been bought by the big meat packing companies, and has criticized federal mad cow testing requirements as too lax.

The governor has ordered additional tests of Canadian cattle imported into Montana, which will be paid for by a $3- to $5-per head fee charged to the packing companies. Officials at the USDA say that these requirements may be an illegal burden on interstate commerce. Gov. Schweitzer claims that they are a necessary and permissible health and safety regulation.

May the state of Montana do this? Do these regulations unconstitutionally burden interstate commerce? Are they preempted by any federal statute?

I haven't looked too closely at the controlling precedent, but as far as I know the answer to the constitutional question may turn on whether the burdens on commerce imposed by the increased testing requirements outweigh the health and safety benefits for the citizens of Montana. Kessel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). If so, statements like this might come back to bite the governor:

Critics have said Schweitzer is embracing a protectionist policy, but the governor said he was concerned about Canadian cattle imports driving down the price of Montana cattle.

“Bottom line, I’m trying to keep family ranchers in business,” he said.


I realize the political temptation to pander to in-state ranchers is almost overwhelming. In this case, though, Schweitzer ought to stick to his protecting-citizens-from-mad-cow-disease rhetoric. That's all the excuse he really needs.

September 15, 2005

Vioxx and the jury system

Evan Schaeffer has posted his defense of the jury's decision in the first Vioxx trial:

That was the promise of Vioxx, but it wasn’t to be. And now, as a result, a very small minority of commentators are calling for tort immunity for drug companies and discussing reforms to the jury system that would benefit drug companies. I think these ideas are radical and unnecessary. The tort system and the jury system may not be perfect, but they are certainly better than any of the alternatives, especially those involving granting favors to drug companies that might lead to even greater health risks.

August 04, 2005

Ridiculous drug war

Before we start to wring our hands about police insensitivity to cultural and language problems in a sting operation called Operation Meth Merchant that nabbed 44 indian-immigrant convenience store clerks in Georgia, we ought to ask ourselves -- again -- whether this war on drugs is doing more harm than good.

The operation was designed to enforce a federal law making it a crime to distribute any product with knowledge or with reasonable cause to believe that that product will be used to produce drugs. 21 U.S.C. 843(a)(6-7). Convenience store clerks, most of whom presumably do not harbor any aspirations of becoming police officers (or drug dealers), can be locked up for terms in excess of ten years because they sold legal products with legal uses to their customers, and didn't concern themselves enough with what the customers were going to do with these legal products after they left the store.

That's draconian on two levels. It harshly penalizes clerks when they merely do their own jobs, and don't try to do the jobs of DEA agents without pay. It's also draconian for customers, many of whom would like to be able to buy some cold medicine and some kitty litter without the sales clerk wondering what they're going to be doing with such suspicious products. "One's for my nose, and the other's for my cat's shit" is what I'd say if anyone asked. Or, better yet, "it's none of your business. What are you, DEA?"

The drug warriors will always tell you that methamphetamine is dangerous, and that it's bad for you. But the drug warriors can't seem to realize that this doesn't justify limitless law enforcement intrusion into other areas of our lives. So let's not be distracted by the cultural issues here. Even if all of the Operation Meth Merchant perps were white guys named Floyd from Atlanta, this sting operation and the law it was designed to enforce would still be a problem.

May 03, 2005

Two disconnected thoughts

Ian Ayres lists the top six reasons why Connecticut's civil union rights for same-sex couples are substantively different from marriage rights. I don't know what this says about me or about my legal education, but my eye was caught by the lurking presence of my favorite (or not) federal statute, ERISA. Here's Ayres' #2:

2. The civil union statute may allow employers to deny benefits to same-sex couples who are joined in Civil Union but unmarried. "[B]y calling the status a Civil Union, a self-insured employer (and that includes most large employers) will have to amend its plans to include Civil Union spouses whereas married spouses would automatically be covered under self-insured plans that defer to a state-law definition of who is married." If the marriage exclusion were abolished, it is more likely that an employer would be prohibited from discriminating between same-sex and different-sex married couples.

Whatever virtues ERISA might have, providing common-sense regulatory outcomes is probably not one of them. Why, really, should the question of whether an employer is required to offer health insurance to the same-sex partners of its employees turn on whether its health benefits plan is self-insured or not? There's really no functional reason that I can think of.

Moving on: anyone who at any time in their lives has ever liked Rush, but who has rejected the group for whatever reason (succumbed to peer pressure, became a eunuch, or whatever) should check out some of the songs on Vapor Trails.

Earthshine is magnificent.

March 25, 2005

No words of comfort? None at all?

I'm disappointed that someone as erudite as Prof. Bainbridge feels that he has "no words of comfort to offer" to a person who sent an email to Bainbridge complaining that:

I now consider 1/3rd of our government, the unelected, permanent system of the courts, to be hostile to the good ....
"Hostile to the good?" The entire American court system? Does Bainbridge agree with this? If he does, I'd sure like to hear his reasons.

March 15, 2005

AHP bill expands feds' power

Today promises to be another busy day.

In these few free moments I'd like to send you all to Nathan Newman's warning about the creeping federalization of health care policy.*

What's the next legislative atrocity coming down the pike from the GOP Congress? So many to choose from, but a sleeper is H.R. 525, labeled the "Small Business Health Fairness Act of 2005," which has a committee hearing this Wednesday. With a name like that, you know evil's afoot and the plan here is to exempt more health insurance plans from state regulation.

* * *

This bill is so bad that thousands of organizations oppose it, including the Republican Governors Association.

---------
*WARNING: those of you allergic to ERISA should premedicate yourselves first.

March 13, 2005

HIPAA: train wreck?

Seems like people in small towns don't like HIPAA because it mandates too much privacy, while at the same time, the plaintiffs in this Third Circuit case don't like HIPAA because it provides too little.

Me, I haven't looked too closely at HIPAA yet. My curiousity has been piqued.

February 26, 2005

Why federal court?

I was skeptical that last week's legislation shifting some class-action lawsuits from state to federal court was really as consequential as the politicos on both sides of the aisle made it seem. Are the federal courts really so much more hostile to class-action plaintiffs than the state courts are? And if so, should it bother us?

I still don't have any answers, but after asking around at the law school, I do have some more information.

First, it's unclear whether removing class-action lawsuits from state to federal court actually favors defendants. Some studies have shown that win rates drop significantly when a case is removed from state to federal court on diversity grounds. See Clermont & Eisenberg, 83 Cornell L. Rev. 581 (1998). The question is, why? The difference might be due to increased costs for plaintiffs, or to less favorable procedural rules. It may be due to a case-selection bias -- the plaintiff's strongest cases are settled, and the weakest claims are removed. We can't tell from win rates alone whether federal court is actually more favorable to class-action defendants.

But let's assume for the moment that federal court makes a difference. The most troublesome explanation for this would be that the federal courts are populated with less sympathetic judges. "Less sympathetic" being in this case a euphemism for "politically slanted towards corporate defendants."

It does make some intuitive sense that the federal judiciary might be more hostile to class-action suits. Since the presidency has been held by republicans for most of the past thirty years, and since right-wing presidents can be expected to appoint judges whose rulings tend to favor big business, we might expect that the federal judiciary would be less indulgent of class-action plaintiffs than the state judiciary would be.

Do we really want to say that the federal judiciary is politicized? I don't want to say it. If any judges are going to be making decisions based on their political leanings, I'd rather it be an elected state judge who favors in-state plaintiffs and who can (theoretically) be given the boot, than a tenured-for-life Article III federal judge.

I'd like to think that most all judges, state and federal, aren't overt politicos and don't decide more than a tiny fraction of their cases under the influence of their own political beliefs. I'm also sure that at the margin, a judge's political leanings do make a difference. (See, for example, criticism of Justices Thomas, Scalia, and all the rest except O'Connor in Johnson v. California, the racial-segregation-in-prison case.) The political leanings of the federal judiciary, though, seem to me unlikely to have any real impact on the outcome of most class-action lawsuits.

So I suppose my point is this: there's good reasons for believing that last week's legislation is not going to make a whole hell of a lot of difference. And if it does, the reasons for it are not likely to be ones that worry me a whole lot.

But, still...

Why does the corporate lobby seem so thrilled? And does passage of this legislation suggest that more pernicious legislation is on the way -- like a federally-mandated cap on noneconomic damages in malpractice suits?

With the kind of Congress we've got now, I never really stop worrying altogether.

February 22, 2005

Short posts on Tuesdays

Because Tuesdays are so busy, I'll just send my readers here, so they may learn of the nefarious (non)activity of Utah's U.S. Attorney, Paul Warner. He seems to be hesitant to enforce federal law against a bunch of red-state hooligans who happen to also be state government officials.

(Oh, and the Supreme Court has agreed to hear the appeal of Oregon v. Ashcroft (now known, sadly, as Gonzales v. Oregon). Those dastardly feds are trying to enforce the federal Controlled Substances Act against a poor innocent blue state whose voters have legalized assisted suicide.)

Now I'm going to get some sleep. For some reason, I'm thinking I should be well-rested for my Federalism class tomorrow...

(EDIT -- The NYT provides some background on Gonzales v. Oregon.)

February 21, 2005

Legal ethics blog

I hope the folks in my Legal Ethics course this semester will enjoy the Legal Ethics Forum, a new blog I found thanks to Brian Leiter.

February 17, 2005

Class-action lawsuits

I'm not sure whether shifting more class-action lawsuits to federal court (via Howard Bashman) is really as bad as some Democrats are portraying it.

The idea is that state courts are much more likely than federal courts to award huge damage awards to class-action plaintiffs. Although there have been some recent examples of large awards in tobacco lawsuits, for example, I'm not sure why plaintiffs would be systematically disadvantaged in federal court. Maybe if the federal cases were decided by judges while the state courts used juries--but I don't know whether this is the case. Maybe the procedural rules are more favorable for defendants in federal court, because they give the judges more discretion, and federal judges just love big business. But this seems weird. I can't see juror bias being a whole lot different between the two court systems, either.

My skeptical half thinks that this legislation might be more effective as a way for members of Congress to build their pro-business bona fides (or pro-average consumer bona fides) than it is as a substantive piece of tort reform. This is, of course, the first piece of Bush's reform agenda to make it through Congress, which suggests it may be the least consequential.

February 11, 2005

Lynne Stewart aided terrorism?

I wasn't on the jury, so I won't second-guess their verdict. But I'm trying to put my finger on the reasons why Lynne Stewart's conviction bothers me.

Stewart was the lawyer who represented the "blind sheik" Omar Abdel Rahman. She apparently violated prison rules intended to prevent Abdel Rahman from communicating with his followers from prison -- for example, she read a statement from the sheik withdrawing his support for a cease-fire in Egypt to a reporter in Cairo. The government charged her with providing material aid to terrorism, while Ms. Stewart insisted that she was fulfulling her professional obligation to provide her client with zealous representation.

On one hand, I understand the importance of preventing terrorists like Sheik Abdel Rahman from inciting violence from prison. I can see how Stewart's violation of the rules could result in serious harm (although in this case it did not). Perhaps I'd be a lot more comfortable with the verdict if Stewart had been charged with something like endangering public safety by violating these rules.

I guess one of the things that bothers me is that Stewart's behavior doesn't obviously amount to "aiding and abetting terrorism." (By the way, I hope the charge was really of aiding "terrorists.") If someone can be guilty of aiding and abetting every time they do something that may conceivably benefit a terrorist, than it's not clear to me why virtually every American citizen shouldn't be convicted. I'm not sure why anyone in government who's ever done anything that might help terrorist recruitment (most of Bush's team) shouldn't be thrown in jail.

When our political climate allows John Ashcroft to sit before the Senate Judiciary Committee and, without being savagely rebuked, imply that anyone who doesn't support the Patriot Act is flirting with treason, we ought to worry when defense lawyers are convicted of aiding and abetting terrorism. Especially when no one alleges that any actual terrorist acts resulted from this supposed aiding and abetting.

I don't suggest that Stewart ought to escape punishment for violating the no-communication rules applied to Abdel Rahman. But I'm worried that her conviction for aiding terrorism is a little too much.

February 09, 2005

State senator has brilliant insight

I got an email a few days ago from Ken Gordon, the Colorado State Senate majority leader (I'm on his listserve). He's got a fantastic idea to help wean those upper-income suburbanites off the government dole.

Continue reading "State senator has brilliant insight" »

January 31, 2005

Erisa excitement

Jeremy Blachman's reaction to the first session of a law school class called "Health Care Institutions" is one that I can sympathize with:

But it seems like the most interesting parts of some of the subjects we can study -- the most compelling pieces of the puzzle, the most engaging angles to look at -- are not the legal ones. I think talking about how to improve patient care is a lot more interesting than talking about the legal regime surrounding managed care health insurance programs.

Fortunately for Jeremy, I can offer some encouragement. If his class is good, he'll soon be wrestling with the issue of whether changes to the legal regime governing managed care plans can, in fact, lead to improved patient care. My whole Note is focused on that exact topic.

Ordinarily, I would not have given two stones about managed care or ERISA. That all changed this summer when I was working for a managed care organization. The Supreme Court decided Aetna v. Davila in a way that preserved (and strengthened) the virtual immunity from liability that MCOs enjoy under ERISA for a very particular type of decision (a type of prospective utilization review). This kind of decision is one that often has profound consequences for the quality of patient care, and yet the Supreme Court had treated it as merely a decision about payment.

Bullshit, I thought. These are effectively medical decisions, and MCOs ought to be held accountable when they are made negligently. Unjust! Unfair! Meanwhile the managed care industry was practically peeing in their pants with excitement, which made it all worse.

Maybe I'm just fortunate that my experience last summer sparked an interest in ERISA. More likely I'm just weird. But I still think there's hope that Jeremy's class will get much more interesting in a few weeks.

January 30, 2005

Merck: "about" means "exactly"

Merck's recent string of bad news was extended by last Friday's ruling by the Federal Circuit invalidating its patent on once-a-week Fosamax:

Merck received yet another blow yesterday when a federal appeals court unexpectedly invalidated a patent on Fosamax, an osteoporosis treatment that is Merck's second-best-selling drug.

. . . The decision reverses an August 2003 ruling in Federal District Court in Delaware that upheld a patent on a once-a-week formulation of Fosamax. The patent on Fosamax in its original daily dosage expires in 2008. The vast majority of patients take the weekly dose, whose patent protection had been expected to last until 2018. Yesterday's decision means Merck could face generic competition for both the daily and the weekly versions of Fosamax as early as February 2008.


The main issue in the case, Merck v. Teva Pharmaceuticals (2005 WL 181711), was whether Merck's patent on once-weekly Fosamax was invalid as obvious. An interesting subsidiary issue was whether Merck had successfully redefined the word "about" in its specification. Merck's argument was that when the claim used the words "about 35 mg" of alendronic acid, it really meant "exactly" 35 mg.

The CAFC rejected this argument, but it's not as patently absurd as it first seems (please forgive the pun). A patentee is "its own lexicographer," meaning it can define the terms in its claims however it wants. Merck argued that it wasn't just redefining the word "about." Instead, it defined the entire phrase "about 70 mg of alendronate monosodium trihydrate, on an alendronic acid basis" to mean "whatever amount of total compound is necessary to provide exactly 70 mg of alendronic acid."

The case may still have come out against Merck even if it had won this claim-construction argument, but the argument is still pretty fierce. There's a vigorous dissent from Judge Rader about the claim construction issue, and about the issue of Fed. Cir. deference to trial courts. If you're a patent law junkie, it makes for good reading.

January 28, 2005

Here's an exciting post for ya.

Last semester's classes were all very interesting, but if I could do it all again, I think I'd make some scheduling changes. Specifically, I'd take Administrative Law instead of Federal Antitrust.

Not that I have anything against antitrust, mind you. Antitrust is now my bitch. So to speak. But with administrative law, the situation is sadly reversed: I am administrative law's bitch.

After months of wrestling with my Note (even if only intermittently), I have come to the sad realization that it all comes down to administrative law. And I don't know anything about it. I'm trying to argue about the relative merits of different regulatory schemes for managed care organizations (since, of course, their regulatory immunity under the status quo is unacceptable.) My knowledge of federal antitrust law has not helped me very much with this.

I've been forced to do what every good law student should do if they have to write something about which they know very little: make shit up.

Perhaps it's all for the best. I'll come back later and shore up my arguments with some admin law that I learn on the fly. I'll continue to read newspaper articles about lawsuits against Microsoft with the deep understanding that comes with having taken Federal Antitrust in law school. And maybe I'll sign up for Administrative Law next year.

January 26, 2005

Hmm...



take the WHAT INTENTIONAL TORT ARE YOU test.
and go to mewing.net. because law school made laura do this.

(via Heidi.)

January 24, 2005

Tax cheaters

Just another example of how law and policy favors those who make money from investments, and disfavors those who make money from work:

Overstating of Assets Is Seen to Cost U.S. Billions in Taxes
By DAVID CAY JOHNSTON

Published: January 24, 2005

Investors, entrepreneurs and landlords annually avoid paying at least $29 billion in taxes by overstating the price of stocks, businesses and real estate, two professors say in an article being published today in Tax Notes, an influential tax policy journal.

...Congress could easily reduce this cheating to a minor problem through changes in tax laws that, the professors wrote, would apply the same rules to those harvesting capital gains that now apply to workers, home owners and parents.

...The problem, the professors wrote, is that the Internal Revenue Service has no effective means to determine the price, known as the basis, paid for an asset that has been sold.

Capital gains and losses are reported on an honor system, unlike the rigorous verification regimes that Congress has imposed for wages, home mortgage interest deductions and tax breaks for parents.


Until Bush's "ownership society" frees us all from making a living with our hard work, we'd best keep trying to find a way to live on our investments.

Good luck.

December 03, 2004

Magic words

In today's good news department, it seems the words "national security" haven't yet attained the shamanistic power to establish secret government whenever they are spoken.

The U.S. Army Court of Criminal Appeals has suspended a preliminary hearing for three soldiers charged with murdering an Iraqi general, and given the officer in charge of the hearing ten days to show why the non-classified portions of the hearing should not be open to the public.

Capt. Robert Ayers had taken the rare step of closing the entire hearing to the public on the grounds of "national security" and the risks of publicity to the defendants.

Legal analysts said it was extremely rare for a military preliminary hearing to be closed to the public, and appeals courts frown on such decisions. Media attorney Steve Zansberg had asked Ayers to close only portions of the hearing that could threaten national security.

"This is information the American people are profoundly and legitimately interested in knowing," he told Ayers on Thursday. He also said many details in the death have already been publicized.

November 29, 2004

Law school teaching methods

Anyone naive enough to doubt that law schools pursue multiple goals--beyond just teaching law students--should simply look at law school pedagogical practices.

The standard law school classroom method, which involves reading appellate opinions all term and then doing one timed issue-spotting exam at the very end of the course is so suboptimal from a learning point of view that it's hard to understand why law school faculties have failed to make improvements.

The [non]billable hour has assembled five thoughtful pieces from well-known law students discussing what might be done to make things better. AI has a some good follow-up comments.

If law schools existed only to teach students, I don't doubt that the smart people who sit on law faculties would have left our current system behind long ago. The fact that they haven't is perhaps the best evidence that law schools are committed to doing things other than teaching (what things??). Perhaps that's a good thing; perhaps it isn't. But law students have plenty of reasons to bitch, and I'm glad to see some of them doing it in a thoughtful and enlightening way.

November 23, 2004

Medical-legal symposium

Today I attended a symposium on medical-legal reform at the Medical Center here at Michigan. The quality of the speakers was uniformly high, and the presentations were generally to-the-point and useful. Here are a few choice bits from today's event:

Continue reading "Medical-legal symposium" »

November 22, 2004

"Marriage" and natural law

My recent response to IrishLaw about same-sex marriage has provoked a very thoughtful return response--which I'm not sure I entirely deserve given the sarcastic tone of my post.

Despite Anthony Rickey's suggestion that IL refrain from making the "much weaker" argument that marriage between a man and a woman is "some form of natural right," IrishLaw sticks to her guns:

Continue reading ""Marriage" and natural law" »

November 17, 2004

More Scalia

I got to listen to Justice Scalia again today, this time at the Law School. The format was mostly Q & A, and the quality of the questions today was generally better than yesterday. A little too many social policy questions for my taste, but hey. Even though Scalia may not like it, the Supreme Court is an enormously powerful arbiter of social policy, and the chance to ask one of the nine Justices a question about abortion, or gay rights, or whatever other social policy issue floats your boat, should not be passed up.

I'm still curious about Scalia's judicial philosophy, and to what extent it reduces the number of instances that require judges to exercise their own personal discretion to obtain a result. Here I'm mostly thinking about statutory interpretation, not constitutional interpretation. What should a judge do when the statute is ambiguous? In the realm of statutory interpretation, Scalia says that a judge ought not to construe the text "strictly" or "leniently," but "reasonably." My question is, reasonably according to what, and according to whom?

Continue reading "More Scalia" »

November 16, 2004

Scalia's originalism

I was lucky enough to hear Justice Antonin Scalia speak today. One of his arguments was that the Supreme Court has become so politicized because of the pernicious view of many Justices that the Constitution is a "living document" and that its meaning changes with the times. I'm curious about how far this argument goes.

Justice Scalia defends "originalism" as superior to any other constitutional interpretive philosophy. In fact, Scalia hints that there is no other such philosophy--every non-originalist approach is merely an unprincipled picking-and-choosing of whatever seems to make sense to a judge on any particular day.

Originalism has a lot to recommend it; but like every other interpretive approach, it must deal with the reality that the outcome of many cases is underdetermined by the law. In many disputes, there may be no one "right answer" compelled by existing law, leaving the judge free to choose from among several (often conflicting) rulings.

Scalia says that judges ought to interpret the Constitution to mean what it meant when it was written. That's fine, as far as it goes, but this technique doesn't turn all hard cases in 2004 into easy ones. Even if you're right about what the Constitution means, the text of the Constitution won't determine the outcome in every constitutional case. For example, would the constitutional prohibition on unreasonable searches and seizures apply to the government's copying the files on your hard drive? Have they "seized" anything tangible here? (I'd like to acknowledge the place where I got this example, but damn--I can't remember.) The point is, even originalist judges are going to have to rely on something other than written law to decide hard cases.

The interesting question is, where should they look? Precedent would be good, but it's not always slam-dunk. Same goes for legislative history, or agency interpretations. The truth is, there's no one particular philosophy of constitutional or statutory interpretation that will relieve a judge from having to exercise a personal choice among outcomes. That's why they call it judging.

Even if the entire Supreme Court were packed with Scaliaesque originalists, the values and political preferences of each judge would still matter. They might matter less than if the Court were packed with "evolutionists" and non-originalists, but they would never be wholly irrelevant.

Does originalism render the values and political preferences of judges irrelevant enough to abandon a close political scrutiny of high court nominees? I'm not sure that it obviously does.

----

As an aside, if I were Heidi I would not liveblog Scalia's Q&A tomorrow. But that's mostly because I would be distracted by the blogging, and I would really want to be listening. But I'm not Heidi. So all I'll say is, if Heidi wants to liveblog and she's sitting next to me, I wouldn't be distracted by her typing. HTH.

November 09, 2004

marriage "rights"

My classmate Denise has been conversing with Irish Law (1, 2) about whether same-sex marriage is a "right" or not. I'm wondering why this debate has to be confined to same-sex marriage--why should one side's version of marriage enjoy all the scrutiny? Why can't we ask the same questions of man/woman marriage? It's only fair, after all. . .

Continue reading "marriage "rights"" »

October 31, 2004

In praise of the "deviant strain"

Robert Bork and others characterize any use of our antitrust laws other than the promotion of efficiency as a "deviant strain." Aside from the fact that this "deviant" view of the goals of antitrust were important for the authors of the Sherman Act, the idea that our antitrust laws should be used to support small competitors and prevent the formation of overly powerful concentrations of private capital is a good idea. From this month's issue of Orion, here's Wendell Berry:

As the poor deserve as much justice from our courts as the rich, so the small farmer and the small merchant deserve the same economic justice, the same freedom in the market, as big farmers and chain stores. They should not suffer ruin merely because their rich competitors can afford (for a while) to undersell them.

Furthermore, to permit the smaller enterprises always to be ruined by false advantages, either at home or in the global economy, is ultimately to destroy local, regional, and even national capabilities of producing vital supplies such as food and textiles. It is impossible to understand, let alone justify, a government's willingness to allow the human sources of necessary goods to be destroyed by the "freedom" of this corporate anarchy. It is equally impossible to understand how a government can permit, and even subsidize, the destruction of the land and the land's productivity. Somehow we have lost or discarded any controlling sense of the interdependence of the Earth and the human capacity to use it well. The governmental obligation to protect these economic resources, inseparably human and natural, is the same as the obligation to protect us from hunger or from foreign invaders. In result, there is no difference between a domestic threat to the sources of our life and a foreign one.

October 27, 2004

Richard Epstein

Listening to University of Chicago law professor Richard Epstein is mind-blowing. He speaks in complete, complex, well-organized paragraphs without ever slowing down to search for a word; he never relies on verbal crutches like "um" or "ah." He'll throw in all sorts of parenthetical expressions and subclauses without ever losing track of the main thought or forgetting to complete his parentheticals. Most of us, myself included, rarely speak in complete sentences. I usually only do it when I'm angry, but even then the sentences I speak aren't nearly as complex as Epstein's when he's giving a talk about the law of eminent domain.

Today I heard Epstein talk for the second time in my life (the first was when I was an undergraduate at the University of Chicago). He said a lot of interesting things about the takings clause, eminent domain, and the Kelo v. New London case before the Supreme Court this term. Most of what he said was over my head, or else it came in such a torrent of amazing speech that I can't remember it all. It was a very intense experience.

One thing I do remember was his answer to a question about Richard Posner's recent diatribe against student-edited law reviews. Although I can't convey the warmly humorous context, I'll paraphrase:

"Oh! Why is he doing this? The system works; there are faculty-edited journals out there. . . . I edited one myself! Sure, there's bad editing going on at the law reviews, but that's usually because of one individual editor who's bad, and you find the same thing with bad editors on faculty journals. . . . I'll just take his comments as the offhand thoughts of a very intelligent federal judge."

October 17, 2004

Question for Professor Bainbridge

EDIT: Professor Bainbridge has revised the post I refer to below to account for new information he received directly from Bruce Bartlett. Bainbridge makes clear that his disagreement with Bartlett is over whether a society can adhere to time-tested moral principles over the long run without faith. Bartlett thinks it can; Bainbridge thinks it cannot.

I hope that this debate doesn't remain solely between "big-C" and "small-c" conservatives. These questions are important for everyone who thinks that moral principles ought to be reflected in politics. I suppose that would include just about everyone, even libertarians. Surely the libertarians would agree that their concern for individual choice is itself a moral principle, and that this principle ought to be reflected in the laws and policies of the government.

This libertarian principle, like all moral principles, depends for its strength upon faith of some kind. It is no more capable of empirical proof than any religious tenet, and yet some libertarians bristle when anyone suggests that "faith" has anything to do with politics. In some general sense, only a political amoralist (neither conservative, liberal, nor libertarian) could plausibly say that politics should have nothing whatsoever to do with faith.

There seems at first glance to be a profound difference, though, between claiming simply that politics should be moral, and claiming that politics should be moral in a way that is guided by a religious faith. But I'm not so sure that the difference is as large as it seems, or that it even exists. The acknowledged source of the morality seems irrelevant. As soon as you say that politics should be moral, you're asserting the right to specify which morality politics should include. Excluding specifically religious formulations of morality is as great an imposition on religious people as embodying a specifically religous morality is an imposition on those who are non-religious. Democracy can't solve this conflict, since no one is prepared to submit their most deeply-held moral beliefs to a vote.

Whether or not you think that the Rawlsian solution of "political liberalism" makes democracy possible by restricting the scope of political discourse to "public reasons," the issue of moral principles in politics isn't just a conservative issue. It's one that liberals, libertarians, and agrarians have to wrestle with as well.

Vaccine liability

In which a post about liability rules turns inexorably towards a rant against right-wing zealots and libertarian ideologues...

The flu vaccine shortage has called attention to the dangerous consequences of relying on a flawed system for assigning liability.

This article (via Kevin, M.D.) by William Tucker argues persuasively that the threat of lawsuits has reduced the number of firms willing to manufacture and sell vaccines. Tucker suggests that this has resulted in higher vaccine prices, vaccine shortages, and an increased chance that the available vaccines won't be effective.

Prior to 1986, liability for vaccine-caused injuries was assigned by the regular product-liability tort system. If you or your child were injured by a vaccine, you called your lawyer and sued the manufacturer. Most jurisdictions adhered to the "strict liability" doctrine that required the plaintiff to prove only that the vaccine was defective, not that the manufacturer was in any way at fault. This led to unpredictably high costs for manufacturers, many of whom simply stopped selling vaccines entirely.

In 1986, Congress tried to solve these problems by changing the liability system. It established the National Vaccine Injury Compensation Program, which set up a system whereby the federal government would compensate families injured by childhood immunizations out of a trust fund financed by a surcharge on vaccine sales (more details here). The maximum amount of compensation under this plan was fixed, however, and plaintiffs were still able to sue the manufacturers. Tucker suggests that this continued exposure of vaccine makers to liability has led to the failure of the compensation program to preserve the number of vaccine suppliers.

If Tucker is right, we might go a long way toward solving our vaccine problems by making some small changes to the legal regime. One attractive option might be to abandon the strict liability standard. Everyone who chooses to bypass the government's no-fault compensation system would have to prove that the vaccine maker was negligent, instead of merely that the vaccine was defective. This higher standard of proof might lower the number of lawsuits. Another possible solution might be to cap the size of damage awards in successful suits, or permit suits only after the government's compensation program review process determines that the injury was actually caused by the vaccine.

It seems like the tort liability system is actually one of the culprits behind our vaccine shortages. Admitting this should be our first step. However, this admission might itself be more dangerous than it should be, thanks to the unrelenting pressure from right-wing "tort reformers" whose goal is primarily to insulate corporations from all liability regardless of the consequences for public health. Often, these right-wing tort reformers are also in favor of reduced government regulation. They want to free corporations from responsibility both before and after they cause accidents. They say it's "good for the economy," but it's really a threat to our public health and safety.

Corporations, like individuals, should be held accountable. Unlike the right-wing tort-reform zealots, most people don't believe that this accountability can be provided entirely by the unregulated market. There are simply too many imbalances of purchasing power and information. In cases where corporations are not subject to significant tort liability, and are freed from regulatory oversight at the same time, the public becomes dependent upon the goodwill of corporate executives. Even if these people are the sweetest and most lovable individuals on Earth, in their role as corporate executives they are (should be?) under enormous pressure to maximize profits, often over the short-term. This pressure can override ethical concerns, and subject the public to harm. The corporate scandals that have stained our economy--Enron, Arthur Anderson, Tyco, MCI--happened because of the Republican ideological commitment to "small government" that "stays out of the way." This ideology might make sense as a rule of thumb for regulating individuals, but as a policy for governing gigantic multinational corporations whose structural imperative is to maximize profits over the short-term, it's a complete disaster.

In an environment where the right-wing zealots are breathing down our necks and control the White House, it doesn't seem safe to suggest that we tinker with the liability system. It's likely that any reform process will be hijacked for the benefit of the corporations and the detriment of the public. Perhaps, if the zealots lost control of the Presidency, the time might be ripe for some real progress on liability reform. Vaccines, medical malpractice. . . passenger trains. Sigh.

It's past time to replace George W. Bush.

October 11, 2004

Notice

I found this notice included with the folding bookcase that I bought at Target this weekend:

CAUTIOUS:
PLEASE DO NOT WORRY IF STILL SOME SMELL FROM THIS FRESH PRODUCT WHEN OPEN IT. AS IT IS NON-TOXIC AND NO DANGEROUS WHILE USING. IT WILL GONE IN FEW DAYS AFTER EXPOSURE IN THE AIR.

I hope someone gets sick from smelling this bookshelf, and sues the manufacturer. I'm curious whether this notice would get them off the hook.

October 05, 2004

Socratic method

What's the value of the "socratic method" in law school classes?

Professor Bainbridge asks:

Over at his legal theory blog, Larry Solum has a fascinating post arguing that the very concept of the holding of a case is "inherently ambiguous." Since figuring out the holding of the case is a staple of the Socratic method (at least when that method is done superficially), doesn't this [provide] yet another reason to call into question the pedagogical validity of that method?

This provocative question got me thinking about my own views of the Socratic method, where the professor conducts the class by asking questions of the students rather than simply lecturing.

I think the socratic method works best in exactly those situations where the answer to the professor's question is "inherently ambiguous." Assuming that both the professor and the student have prepared for class, the process of question-and-answer can reveal the ambiguities of a subject more effectively than a straight lecture can. This is because the method can go beyond merely identifying an ambiguity; it can actually demonstrate it. For the student being questioned (the "socratic bunny"), the method demonstrates that almost any answer that isn't hedged against ambiguity can be revealed by the professor to be inadequate. A student who's been interrogated like this is much more likely to focus on the ambiguites than if she had passively taken notes while the professor warned her that there was "no easy answer" to the question of blah, blah, blah. The effect on the other students in class is similar (if they pay attention).

The strongest criticism of the socratic method--that much of the class time is taken up with comments by students who lack knowledge at the expense of comments by the professor, who has knowledge--is at its strongest when the subject matter is unambiguous. "I'm going to tell you what the three tallest buildings in the world are: blah, blah, and blah" is a lot more efficient than "Mortimer, what do you think the world's third tallest building is?"

The question really comes down to whether the advantages of the socratic method for demonstrating ambiguity outweigh the drawbacks of slowing down the rate at which large amounts of factual material can be conveyed. I think the answer depends on how important an understanding of the ambiguities are. My Patent Law professor strikes the right balance, I think. Her classes are a mix of straight lecture when the subject is less ambiguous (statutory text, for example) and socratic questioning when the subject is more ambiguous (the rationales for those rules, or the policy arguments for the rules).

There's another reason apart from all this to like the socratic method: it can keep students awake. Professors who think there's no role for interrogating students in class should remember that many of their students will be sitting in their third straight hour of class (or, like me this term, their fifth). Any teacher concerned about pedagogical techniques has to recognize that this many hours of passive listening to lectures can dull the attention of even the most conscientious student.

Of course, the caveat is that the socratic method can't work if a) the professor has no talent for it, and b) the students haven't prepared and don't pay attention. Of course, these limitations apply to any pedagogical method, not just the socratic one.

September 29, 2004

Places vs. Commodities

The Supreme Court has agreed to review a case from Connecticut challenging the town of New London's use of eminent domain to seize people's homes in pursuit of a nefarious utilitarian scheme (Kelo v. New London, No. 04-108). New London wants to make the land available to developers to build swanky hotels and offices that city leaders claim will increase tax revenues and improve the town's economy.

As the petition for the writ of certiorari puts it, the issue is simply "whether the public use clause of the Fifth Amendment to the U.S. Constitution authorizes the exercise of eminent domain to help a government increase its tax revenue and to create jobs." 2004 WL 1659558.

The Court should decide that it doesn't. I'm sure that it will have no trouble finding solid legal reasons to reject the city's position, which is a fairly extreme interpretation of the "public use" requirement for the exercise of eminent domain. The biggest winners here will be the private developers and private businesses that make use of this gift of land by the State.

In one way, though, the city of New London's thinking is very conventional. It's become normal to think of all property as fungible, because we've made the mistake of treating land as a commodity rather than as a place. This is the kind of thinking that enables city leaders to disregard their citizens' love for their homes, and makes it possible to think that a cash payment for the "value" of their land is always fair.

This kind of thinking will let us cut down the last of the old-growth forests on this continent because the trees are "worth more" as lumber than they are as old trees.

This kind of thinking, where every piece of land can be exchanged for any other on the market, and can always be converted to cash, disregards much of our actual experience as human beings on this planet. It ignores our love of places, and our recognition that places are unique and irreplaceable.

The town of New London shouldn't be able to get away with this.

September 27, 2004

My poor, poor blog!

My poor blog has been ill lately. It was unavailable for several days, due to an error in my hosting company's processing of my domain name renewal. As much as I'd like to think my blog is "mine," it's not entirely under my control. At least for now...

Hopefully I'll get back to regular posting soon. I have no intention of abandoning my poor, poor blog. It's been too good to me, and I will nurse it back to vibrant good health.

Plus, it's got all my links to the other blogs I love to read. I'm not givin' those up, neither.

September 13, 2004

Real malpractice reform?

I'm still without domestic internet service, so I'm forced to blog on the fly whenever I can. If I never face any problems worse than this, I'll have truly lived a charmed life.

Ahem. It seems that physicians who propose "malpractice reforms" that amount to simply capping noneconomic damages are asking for too much, and for too little.

They ask for too much, because their proposals would artificially shield them from responsibility in cases where patients have suffered because of negligent treatment. They also ask for too little, because damage caps will not fix many of the most serious problems caused by our current malpractice liability system. These problems include the mismatch between injured patients and compensated patients, the reluctance of physicians to report errors and mistakes, and the lack of incentives for organizations to pay for systemic quality improvements, among many others.

It's not even clear that caps would necessarily result in lower malpractice insurance premiums. Even if it did, physicians would still bear the psychological burden of knowing that a malpractice suit could blindside them even if they never made a single mistake.

Arbitrary caps on damages make far more sense in other contexts, such as products liability. Although I'm deeply skeptical of them, supporters of these kinds of caps can argue that society would be better off overall with the caps in place. The Republican Party's "tort reform" campaign relies on these arguments, and to the extent that the Republicans also tend to support caps on malpractice damages, it's mostly as an afterthought to their attempts to shield manufacturers from large jury awards.

If physicians want to see real malpractice reforms that will solve many of the problems they identify with our current system, they're going to have to move beyond the rhetoric of caps. They're going to have to convince patients that they aren't simply trying to disavow responsibility for their mistakes.

One possible solution is enterprise liability for medical malpractice. This idea was floated in the debate over Clinton's health care proposals, but has largely been ignored since the Clinton plan turfed. Rather than hold individual physicians legally responsible for malpractice, hold the hospital or the health plan responsible.

It's an intriguing idea. And as soon as I get some internet access in my apartment, I'm sure I'll have more to say about it.

September 08, 2004

Call me a critic

Now that I've attended all my classes at least once, I can say that I'm glad I picked the ones I did. I mean that in the sense that I'm sure I'll learn good shit in every one of them, and one or two might end up being fantastic.

But it's too early for me to tell. Unlike certain other students at my law school, I don't usually get all gooey about classes. Or, if I do, it usually takes me a long time, usually so long that the class is long over and done with before I get gooey about it. Until then, it's just a class, more or less fun to go to every day, with more or less interesting reading.

The things I get gooey about are my new abilities to interpret old problems through the new lenses that my classes sometimes provide me with. Take Contracts, for example (a class that ended back in May, but that I'm now gooey about because I can use the ways of thinking I learned there to think about what I'm doing and seeing now). Why didn't I get gooey about it sooner? Probably because in one sense I expect every class to either teach me new ways of thinking, or new knowledge about a subject. When they succeed, I'm satisfied. When they fail, I'm pissed off, and disappointed. I get gooey only after the class is done, and lo! The knowledge and skills are still with me!

A good example is the Calculus 150 sequence, which I took my first year of college and which was at the time an interesting, grueling class. I was not gooey. Now, though, I'm completely gooey about it, because I know that it sharpened my ability to think about virtually everything, not just calculus. When I was taking the class, I was just wrestling with the problem sets, and I didn't have the perspective to realize that it was really my thinking ability that was getting exercised. I had no way of knowing that the positive effects of that class would last for years and years.

I suppose this might make me seem, while classes are in session, like more of a critic than a reveler, a celebrator, or a cheerleader. You know what? I am. I've always been that way, and I'm comfortable with it. Just remember that if I say a class is OK, it might be great. Otherwise, the critic in me will usually say that it sucks and ought to be eliminated from the curriculum.

So far, all my classes are OK. That's just a first impression, though, so take it for what it's worth. . .

September 05, 2004

2L year begins...

This morning, I started reading for my 2L classes: legislation, patent law, health law, and federal antitrust. I think that this means the 2L year has finally begun.

In some way I feel that I ought to commemorate it somehow. So, to mark the beginning of this new year of law school, I will:

  • make certain resolutions, e.g.: to learn as much as possible, to be a positive element in the lives of my classmates, to answer emails from my friends from medical school (I'm working on it, K!), to keep in better touch with my family than I did last year, to write the best note that I can, to learn to cook new things, etc. etc.
  • post this commemorative post on my blog
  • unpack more boxes in the new apartment
  • make shitloads of pesto sauce from all the basil we bought yesterday
  • finish the fantasy novel I'm reading

    If I had a doggie, I'd take the doggie for a commemorative "first day of 2L year" walk in the Arb, but since I don't have a doggie...

    Oh, well. 2L year will be great, but owing to the lack of a doggie, it won't be perfect. I've got to save some room for improvement for 3L year!

  • August 30, 2004

    Wearing the suit

    Today was the first day of our school's Early Interview Week ("EIW"), which, despite the misleading name, is the major On-Campus Interviewing ("OCI") program according to the number of students and employers who participate.

    Actually, it isn't exactly "on campus." It's at a very suburban-looking Holiday Inn on the outskirts of town. But that's beside the point.

    Presumably, the point of the whole exercise is to provide an opportunity for employers and students to meet, talk, and get to know each other. Although each interview is usually limited to 20 minutes in order to accomodate everyone, there is some small chance that accurate impressions of one another are formed during the interviews. Obviously, these can't be very deep or detailed after only twenty minutes, but that's what callback interviews are for, I suppose.

    Needless to say, you can't learn very much about a firm in only twenty minutes. Nor can a firm learn very much about you. There just isn't time. The inherent limitations of information exchange in such short interviews make some of the conventions of this program seem even stranger than they would otherwise.

    For example, one convention that all students follow is to wear a very conservative suit. There might be a few rebels out there, but for the most part everyone today did what they were supposed to do, and wore virtually the exact same clothes as everyone else. Variety among men was limited to whether you had a button-down collar or not; among women, whether you wore pants or a skirt. Looking around the room, I was impressed with how successful everyone seemed to be at dressing just like everyone else.

    Now, this convention might not really matter to an employer looking for information about potential new associates. The firms want lawyers who look professional, and if wearing a conservative suit to an interview can demonstrate that you're capable of this, I'm sure the employers appreciate the demonstration. But there are other conventions, about things other than clothes, that probably do diminish the value of the limited amount of interview time. These conventions are about what to say in an interview. Some of the ones I heard recently: "never let the word 'lifestyle' pass your lips"; "don't ask about the firm's summer program"; "give this kind of answer if you're asked why you want to work in this particular city."

    Advice like this is probably not bad--no one wants to make real gaffes in any interview. I wonder, though, if there aren't too many of these pieces of advice floating around. I know my classmates are a diverse bunch of people, with different talents, personalities, and goals. But how can an employer know anything about this in only twenty minutes? Especially if every student is trying so hard not to say anything unconventional?

    I'm going to guess that these interviews aren't actually very useful for learning much about students or about employers. That's probably not their purpose. In only twenty minutes, the only thing that a student can count on learning about a firm that goes beyond what they've learned already is that the firm isn't (or is) peopled entirely with troglodytes. The only thing that an employer can count on learning about a student is that the student isn't (or is) a troglodyte. Sometimes both sides get lucky and learn more about each other than just this basic information. But I'm guessing that in the vast majority of cases, the most important information that's exchanged in these short interviews is that the previously known information about the other party (from the website, or from the resume) is more or less reliable. The real information exchange has to happen later at the callback interviews.

    So what, if anything, follows from this? From a student perspective, don't get too uptight about the interviews, unless you really are a troglodyte. And don't draw too many conclusions about a firm, unless you were interviewed by a panel of green-skinned lawyers with horns and long canine teeth.

    From a firm perspective, well. . . If the student walks in wearing a tie that ends midway between his sternum and his navel, he might really be a troll. Sometimes you can't tell from the resume.

    August 08, 2004

    Ranking law journals by quality of student notes

    There have been many attempts to rank law reviews (some listed here), most commonly by the number of citations to the articles they publish (a recent example is here).

    While law professors might want to know where the best articles get published, it seems to me that law students might instead want to know which law reviews (and other student-edited law journals) publish the best student notes.

    Although student work in law reviews isn't going to be cited anywhere near as often as articles are, student notes and comments occasionally do get a cite or two. I'm curious to know which law reviews and journals consistently publish the most-cited student notes, because this might tell us something about what factors lead to good student scholarship in the first place. Especially if the routines at these journals differ significantly from one to another, we might be able to conclude that the environments provided by certain journals at certain schools are more supportive of good student research. Other journals might be able to grab a good idea or two for the benefit of their student editors.

    For instance, it might be that having too many associate editors relative to the number of issues published, or the number of articles published, leads to poorer-quality student notes because the students have too little time to research their note. Or, if a law journal publishes more frequently, does this provide a better experience for students relative to their own research and writing? Until we know which journals put out the best notes, we can't really answer these questions.

    Citation rankings for student notes might not be reliable because of the low total number of citations. But that's just a worry, not a firm conviction, and there are other ways of doing the rankings, like reputation surveys, that might also be helpful.

    And after we rank law journals based on the quality of student notes, we can rank law schools based on the quality of student blogs. I'm sure Michigan will lock that one up. Yeah.

    July 18, 2004

    Law school competition

    On the eve of my school's law review announcements, and the emotional reactions that will probably follow, let me tell you what I don't want to talk about.

    I don't want to talk about whether we should eliminate competition in law school. This just isn't possible. As long as there are more law students than there are desired post-law school positions, there will be competition in law school. Eliminating grades won't get rid of competition; neither will eliminating the competitive law review selection process. Students would find other ways to compete, like kissing up to professors, judges, and firms, or competing to market themselves most effectively: the best resume, the best summer jobs... The best blogs... Please God, no!

    I also don't want to talk about the benefits of competition. I'll be the first one to acknowledge that competition often pushes people to do great things that they wouldn't do otherwise. I enthusiastically agree that competition can be exhilarating. Especially if you win. (I feel superbly qualified to speak on this topic, having both won and lost competitions that mattered to me. Of course, virtually every law student is superbly qualified by these criteria.) Competition is usually the best way to select a limited number of students for highly-desired positions. The students who want it the most have a higher chance of getting it, and the position is usually filled with a highly competent, enthusiastic person.

    Here's what I do want to talk about: the costs of competition, and the ways competition harms us individually, and harms the law school community. These costs don't make competition any less unavoidable or any less beneficial, but this is no reason to ignore them. Making them explicit helps us to understand what actually happens in law school, and allows us to put competitive successes and failures in the proper context.

    Continue reading "Law school competition" »

    July 12, 2004

    Prestige?

    I got this bulk email a while back from my law school's career services office. A law firm hoping to recruit new associates was advertising what the social literati among us apparently refer to as a "meet-and-greet." You know, a shmooze session.

    The firm's invitation made prominent mention of the fact that there would be a "fromager" present at this little informational soiree. I suppose that's something; it's not every day that one actually gets the chance to talk to a fromager. Maybe the occasional sommelier, but almost never a real fromager.

    I meet so few fromagers--dealers in cheese--cheesemongers--that I'm afraid I may not have developed the right mental associations yet. I imagine a short, very plump, red-faced and slightly drunk man in green overalls and a small round hat, talking just a bit too loud and waving his arms around. In each pudgy hand, he grips a wheel of Brie.

    That must be wrong. No foofy law firm would invite this guy to a social event designed to seduce young law students with the lure of prestige.

    July 03, 2004

    law school laptops

    Ann Althouse has a very common-sense post about law school laptops. She describes how many schools, including mine, have chosen to use exam software that won't run on Macs, and she accurately identifies the revulsion that this inspires in people like myself. I've handwritten all my exams so far because I stubbornly refuse to go out of my way to satisfy the demands of my school's favored exam software. Life's too short.

    But I'm disappointed, if not exactly revolted, by the need for any exam software at all. The only reason apparent to me that law schools feel they have to use it is that they think their students will cheat on exams if they get the chance. This is insulting, probably false, and counterproductive.

    1. Insulting

    Insisting that law students use exam software is insulting. It sends the message that the school thinks you might be a dishonest cheat, in spite of all their palaver about how great they think you and your classmates are. If the school really believed that, why do they think it's necessary to depend upon technology to restrain students from lying and cheating? Answer: because they believe that students won't be able to resist the temptation to succumb to their base impulses.

    I came to law school from medical school, where we all signed a pledge every year to abide by the school's honor code. When we picked up an in-class exam, we could go anywhere we liked to take it: the back row, the classroom down the hall, the Starbucks. So long as we turned it in on time, we were trusted not to cheat. In some ways, the temptation to cheat was much greater in medical school than in law school. Med school exams were almost always multiple-choice, a format that lends itself well to cheating. Don't remember which antibiotics are effective against TB? It's easy enough to look it up, i.e., to cheat. And the rewards are great. Only a few more right answers could make the difference between a "P" and a coveted "H." But I don't think too many people cheated. It would have been too embarrassing; after all, we were treated like honest professionals.

    Now, I don't know how this law school thing works. Maybe exam software is required by the ABA or some other national accrediting organization. Still, though, the disappointment remains. It's just that I'm disappointed in another decision-maker.

    2. False assumption that law students cheat absent technological restraint

    So whoever it is that requires exam software must think that cheating would be rampant if the software wasn't there to prevent it. I'm open to being proved wrong with historical evidence, but just thinking about it, this doesn't make sense.

    If, as has been my experience, doing well on a law school exam does not depend so much on writing down the black-letter law as on applying the law to the facts given on the exam, I don't understand how cutting and pasting notes would really be an effective way to cheat. In fact, it seems to me that if you decided to waste your time doing that kind of thing, you'd be almost guaranteed not to write a high-scoring answer to the exam question. It's not like a medical school multiple-choice test, where cheating can be effective because all you need to do is look up the answer in a textbook.

    Take away the exam software, and assume that some students try to cheat, and I'd bet those cheating students wouldn't get the top grades in the class, or even get any better grades than they would have gotten without wasting their time trying to cheat. A few rounds of failed cheating, and the few dishonest law students out there would either stop trying or cheat their way to the bottom of the class.

    3. Counterproductive to insist on anti-cheating technology

    Even if I'm wrong about (1) and (2), I think the benefits of using anti-cheating software are outweighed by the long-term drawbacks. In my limited experience, people tend to perform to your expectations of them. If you send the message to neophyte lawyers that the solution to dishonesty is technology, there's going to be a lot of practicing lawyers who will learn this lesson too well. Later in their careers, when they find themselves unrestrained and able to cheat, lie, and steal at will, they'll be more likely to do it because they're not accustomed to handling the burdens of trust.

    Beyond the fact that exam software that can't be used on a Mac fills me with revulsion and scorn, the whole idea of exam software period is very disappointing.

    July 02, 2004

    Pinheaded lawyer miasma of doom

    I was going to write about ERISA 502(a) preemption of state "patient protection" laws.

    I was planning to argue against the HMOs' assertion that because they merely contract to pay for certain medical treatments, and do not make medical decisions, they should continue to be immune from consequential damages when that medical treatment is inadequate as a result of a negligent interpretation of the plan's coverage requirements. Then I was going to highlight Justice Ginsburg's concurring opinion in Aetna v. Davila, where she writes that--and I quote-- "fresh consideration of the availability of consequential damages under 502(a)(3) is in order."

    But alas. I've changed my mind.

    I know you're all terribly disappointed, but please let me explain myself. Although I'm sure some of you will disagree, I think I've found something more interesting to talk about:

    Learning the law can turn a vigorous argument into a pinhead lawyer's miasmic dream.

    Before I knew anything about the intricacies of ERISA, I thought about issues of HMOs and patients in "big picture" terms. I had no choice. The small details were all in ERISA 502(a)(1)(B), of which I was blissfully ignorant. I was limited to contemplating big questions, like "what should be the role of private health insurance companies?"

    Now, though, I'm not an ERISA virgin. I'm an ERISA neophyte, and like all neophytes, I want to show off my knew knowledge. Now I have options--I can argue like I used to that a complete reliance on the private sector for basic health insurance is a public health failure, because some people will always drag down the profitability of every risk pool. The power of the market bends itself toward excluding these people from coverage entirely, leaving them without any insurance at all. Lyndon Johnson knew this, but today's conservatives seem to forget--willfully, I suspect. It's only one of the many things about the political right that perplexes me...

    Ahem, uh, where was I? Oh, yes. ERISA. Now that I know something about the law, I can choose to either make the argument I just made, or I can show off my neophyte's knowledge of ERISA by arguing about whether the Court's reading of 502(a)(2) in Pegram v. Herdrich should be extended beyond staff-model HMOs to include most instances of prospective coverage decisions that result in inadequate treatment. Indeed, that's what I was originally planning to do in this post.

    The problem with this show-offery is that can lead straight into the pinhead lawyer swamp of miasmic doom and despair. In other words, instead of asking fundamental questions about what the healthcare system should look like, I'm reduced to making pinheaded arguments about the minutiae of a system that I believe is fated to utterly collapse. This transformation is profoundly conservative, and I don't mean that in the pejorative, political sense of the word. It's simply that the law-student focus can shift one's attention away from the wide view of everything that's possible, and limit it to the smallest of incremental shifts in current doctrine and practice. That's what I mean by conservative.

    I don't believe this narrowing of vision is inevitable, by any means. A knowledge of minute detail can inform and strengthen one's arguments about the bigger picture, and sometimes, small changes can lead to profoundly different results. But even if it isn't inevitable, I'm wary of the possibility that legal training can leave you stranded in the swamp, sinking hip-deep in the slime, with the biting flies buzzing in your ears and the cloying, miasmic odor of rotting putrescence turning your face a revolting shade of puce.

    June 23, 2004

    Anonymous law student notes

    Good discussion on anonymous Notes from the Harvard Law Review.

    June 21, 2004

    Do HMOs practice medicine?

    The Supreme Court didn't actually decide that question today. Its ruling in Aetna v. Davila (consolidated with Cigna v. Calad) that a patient who developed bleeding ulcers requiring the transfusion of seven units of blood and five days in a critical care bed could not sue his HMO under a Texas patient's rights law does, however, lead one to ask the question again.

    Rather than summarize the holding, I direct you to the SCOTUSBlog*, and to the Health Law Blog, both of which have good summary links and commentary.

    Most observers seem to think the Court "got the law right" (which I hope is true given the 9-0 decision). The concurring opinion, written by Ginsburg and joined by Breyer, raises the question of whether the limited remedies available to injured patients under ERISA mean that Congress ought to consider changing ERISA.

    The question that most interests me, though, is one that was sidestepped in the Court's opinion, namely: when are HMOs making decisions that exclusively concern coverage under an insurance plan, and when are they making "mixed coverage and eligibility decisions," i.e. practicing medicine?

    The question was explicitly raised in Julie Rovner's audio piece on NPR, which pointed out that much of what HMOs do can't be neatly described as merely deciding whether or not to pay for a particular treatment. Especially when HMOs engage in "disease management" for chronic conditions like diabetes, it seems factually inaccurate to say, as Clarence Thomas did in his opinion for the Court, that an HMO is deciding only whether or not they will pay for a particular treatment. The fact that HMOs do more than this is something that HMOs use to sell themselves to employers looking to cut costs: the HMO claims that its payment strategies will really "manage care."

    At what point does this management of care shade over from coverage decisions into treatment decisions?

    During the oral argument, the counsel for the respondents (the patients) described the reality of what happens when an HMO makes a "coverage decision." In the case of Ruby Calad, who had just undergone a hysterectomy, the decision by the HMO's discharge nurse that Cigna would not pay for any more than one post-op day in the hospital, despite the surgeon's opinion that she should stay longer, meant that she left after one day.

    I'd like to know the way this decision was presented and acted upon. I suspect it wasn't like the Court's opinion describes it. It probably wasn't the case of someone informing Ms. Calad that the HMO was only ponying up for one day, but that if she wanted to stay longer she could certainly do so if she found alternative sources of funding. I suspect it was more like a real medical decision: "the HMO says you gotta go home lady; so I'll bag up your stuff and take out your IVs."

    The Court may have gotten the law right, but I'm not so sure they got the facts right.
    ----------

    * Not a pinpoint link, secondary to the site's annoying javascript linking scheme...

    June 15, 2004

    Confining religion

    I usually won't even read most blog posts about religion, because this topic is one on which back-and-forth debate is almost always impossible. One side believes something; the other side doesn't. What next? Usually an avalanche of vituperative text of diarrheic proportions that's useless for anything but making its author feel good about him-or-her self.

    Time spent reading this ineffectual drivel is in my opinion a pure waste of time.

    Sometimes, though, the topic of religion can't be avoided. Why? Because certain religious zealots (almost all of them on the political right wing) can't stop trying to set up a kingdom of heaven down here on Earth (or whatever other verbiage they use). On my way home from work today I heard an interview on the radio with the leader of the Southern Baptists, who didn't himself argue that every nonbeliever is dirt, but did a fine job of annoying the shit out of me with his self-righteous blather about the "literal truth" of the Bible. Having been thusly annoyed with a religious belief I despise but recognize as something I have no right to forbid with the power of the law, I come home and read blogs.

    Brian Leiter recognizes that any requirement that one recite the words "under God" in the Pledge of Allegiance demands a personal profession of faith that the government has no right to demand. Another of my favorite law professor bloggers, Stephen Bainbridge, seems not to.

    Perhaps it's just my mood, but I'm getting fed up with the apologists for George W. Bush, like Stephen Bainbridge, who dream of "winning" the "culture wars" by among other things requiring me, or (if I had any) my kids, to affirm a belief in a deity they believe exists, but that I haven't made up my mind about yet. (Uh, yes, that would make me an agnostic.) I'd hate to put Bainbridge in the same bucket as Orson Scott Card, but it's hard not to after reading posts like his--if winning the culture wars means requiring me to profess a particular religious belief, you'll never win. I guarantee it.

    In a modest effort to restate my position vis-a-vis writing religion into law, I'll just quote Leiter's post, and go take a long shower to wash off the theocratic grime I've been exposed to.

    The Supreme Court permits the government to mandate that anyone who wants to affirm their patriotism by pledging allegiance must do so by affirming the existence of the deity, and Stephen Bainbridge thinks the High Court isn't conservative enough.

    Wow!

    But in fairness to Steve, he's at least right that we should view the Supreme Court as a naked political actor in cases like this, such that a vote for Bush is a vote for more religion in public life via judicial fiat, and a vote against Bush is a vote for less by the same means.

    Gimme Bainbridge on wine any day....

    June 10, 2004

    Spitzer doing the right thing

    New York Attorney General Eliot Spitzer is acting in the public interest by suing drug maker GlaxoSmithKline (GSK) for fraud under a state law prohibiting the "deception, misrepresentation, concealment or suppression" of data.

    The suit alleges that GSK conducted at least five clinical trials evaluating the effectiveness of the antidepressant Paxil for treating depression in children, but chose to publish only the results of the one trial that demonstrated that Paxil was more effective than placebo. Meanwhile, GSK was actively marketing Paxil as safe and effective for treating depression in children. Although GSK submitted all of its data to the FDA, an internal memo reveals that the company's goal was to "effectively manage the dissemination of these data in order to minimize any potential negative commercial impact," and recommended publishing only the favorable results.

    Pharmaceutical firms like GSK have consistently demonstrated a penchant for conducting their research efforts primarily for the sake of commercial, and not scientific, ends. At the same time, the pharmaceutical manufacturers attempt to justify the exorbitant prices for their products by claiming that high prices are necessary to conduct research into new medication therapies. Since the federal government has so far been willing to buy this argument, the public is at least entitled to expect--in exchange for continued high drug prices--that the pharmaceutical companies will adhere to the highest standards of scientific inquiry when conducting clinical trials. GSK seems to have fallen short of that standard.

    June 01, 2004

    Law school classes

    If you're a pre-law, I'd recommend reading Heidi Bond's suggestions for what to do when you attend a law school class.

    Not because every suggestion she makes will be right for everyone (and God knows she's included enough disclaimers to that effect in her post), but because I think her post is a good example of an attitude that might make law school both more fun and more productive. It's an attitude of proactive curiosity.

    I've been in school a long time. I've done very well at times, and I've been mediocre at others. In my experience, the times I've done my best were the times that I cultivated a proactive curiosity about what I was doing. This hasn't been possible for me all the time; in fact, I think that if I could turn on the attitude of proactive curiosity like a light switch, there would be something seriously wrong with me--I would be a zombie, or a soulless plastic shell that only looks like a person, and which can sometimes be found doing a residency in pediatrics.*

    Nope; you won't always be curious enough in law school to attack a class in the way that Heidi suggests. You may never be curious enough. But that's an unfortunate and inescapable fact of life, in the same category as the fact that you'll occasionally feel nauseous and full of intestinal gas. If you are curious, though, I think Heidi has good advice for putting it to work in law school.
    -----------
    * That's a story from my pediatrics rotation in medical school that's grist for another post. Later.

    May 28, 2004

    ACRONYMS

    So I'm into my summer job now for a few days, and I'm swamped with acronyms. I work for an office that's a sub-acronym of the main acronymal entity serving the University.

    And we're doing health law, which has got to be the most acronym-crazy subfield of law there is. You know all those MCOs? HMOs and PPOs? Well, they're just the beginning. And that's just the three-letter acronyms.

    There seem to be acronyms for things that don't need them: today I came across a form--just a form--that's put out by this organization known by another acronym. Guess what: the form is referred to by an acronym that's surprising only in that the last letter isn't F, for "Form." I think the last letter was A, for "Application."

    Sheesh.

    Every job has to have its specialized knowledge, I guess. Even if it is just acronyms.

    May 25, 2004

    A life-in-being?

    We joked about this in Property class all semester. Now, like too many other bad jokes, it's real!!!

    Bwahahaha!!!

    (hat-tip to Larry)

    May 04, 2004

    Thinking like a storybook wolf

    I've been reading a story that involves a wolf. In comparison to humans, the wolf lives in the present, and has a hard time thinking about the past or about the future.

    Humans who think like this wolf does are probably better off around finals time. Now that I'm close to wrapping everything up, I realize again how what seemed to be a mountain just two weeks ago was really just a collection of little steps. Any stress I felt always came from thinking not about what I was doing, but about what I had to do, or didn't do yesterday.

    Someone should remind me of this post if I ever decide to do a residency.

    April 28, 2004

    Making fun of Arkansas

    Throughout the semester, our property class made fun of Arkansas for failing to abolish the Rule in Shelley's Case. Those people in Arkansas were so backward!

    Well, now that I'm done with my property final--and have no reason whatsoever to care about the Rule in Shelley's Case ever again--I've gone and found this (second one down).

    No more making fun of Arkansas.

    April 24, 2004

    Whom should we not trust?

    The debate over the prisoners at Guantanamo seems sometimes to turn on whom you trust the least: George W. Bush, or the Supreme Court.

    April 20, 2004

    Two words: law. lessness.

    The Bush administration will argue before the Supreme Court today that American courts have no jurisdiction over the incarceration of foreign nationals held in prison camps at Guantanamo Bay.

    The Bush Justice Department will base its arguments on technicalities--that Guantanamo is not US soil--and on an odd political theory which boils down to this: "unless we, the crackpot politicians and extremist neoconservative hacks who brought you such peace of mind in places like Iraq, are able to act without any oversight whatsoever, America's very existence will be placed at risk."

    Have the terrorists won already?

    Are only a few successful attacks enough to cause America to abandon the rule of law, in exchange for an overweening deference to a strongman President who soothes our fears by relieving us of our responsibilities? How committed are we, really, to the rule of law? To democracy? How courageous are we, really?

    We acted from fear when we gave Bush a free hand to invade Iraq. Fear was responsible for the eagerness of Congress to give Bush greater domestic surveillance powers under the Patriot Act. Fear is behind our unwillingness to hold Bush accountable for his detention of prisoners on Guantanamo.

    We hear a lot about courage, but we haven't been demonstrating much of it lately. Hopefully the Supreme Court will start to calm things down by ruling against the Administration in these war-on-terrorism cases. We can and should act to defend ourselves from terrorists, but this does not mean that we ought to sacrifice our commitments to the things that make us different from terrorists. We supposedly hold values that extend beyond just "achieving our objectives." We recognize the value of restraint; of leadership by persuasion and by example rather than by force alone; of rationality in the face of threats, rather than reflexive and fear-driven retaliation; of democracy as a strong and vibrant thing, rather than a vulnerability that should be sacrificed at once to keep us safe.

    The Bush Administration has been advocating too many of these latter alternatives and too few of the former. Not only should the Supreme Court rule against the Administration in these cases before it, the American people should rule against Bush in the upcoming election before them.

    April 12, 2004

    I buried my truffle

    Blog readers, like judges, should not be like pigs, hunting for truffles buried in posts (briefs). United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

    Readers shouldn't have to hunt for the truffles in a post because most blog readers don't make very good pigs.

    I apologize for burying my truffle. Yesterday I posted about corporate obligations. Will Baude noted this response from "Ben," who blogs at That's News to Me. While his post is full of interesting ideas and viewpoints, Ben hasn't rooted up the point of my argument. I apologize for this; my key paragraph should have been at the top of my post, instead of buried in the middle. I'll highlight it here:

    What I want to say is that the corporate organization in its current incarnation as a fictive legal entity with rights of speech, ownership, and due process, dangerously obscures the responsibility of the human beings who make decisions in its name.

    Continue reading "I buried my truffle" »

    April 11, 2004

    Corporate obligations

    Professor Bainbridge reminds us, without meaning to, why the modern corporation, unrestrained, is such a threat to civilized and ethical society.

    In a post critical of L.A. Times columnist James Flanigan's suggestion (registration) that corporations aren't paying enough in taxes, Bainbridge describes some facts about corporations:


    1. Corporations are not moral actors.
    2. Directors and managers owe duties to shareholders rather than society.
    3. Directors and officers are obliged to maximize shareholder wealth within the law.

    Fact #1 reminds us that a corporation is a collection of human beings knit together by legal relationships, and that we make a mistake when we say that this abstract set of relationships itself has moral obligations. Instead, as Bainbridge points out, it's the people who act in the name of the corporation who are morally obligated. "Enron" didn't act; Ken Lay did. Punishing "Enron" is like punishing a concept. (It's like declaring war on "terrorism.")

    Facts #2 and #3 simply state the job duties of the director and managers. It's no more surprising that obligations to society aren't included than it would be for these to be included in the job description of a car mechanic or golf pro.

    But I'm sure Bainbridge doesn't deny that the people who do these jobs have obligations which go beyond their job descriptions. A human being doesn't stop being a moral actor when she takes the reins of the legal fiction called a corporation. Just like the car mechanic (and even the golf pro), this human being remains constrained by ethical obligations even if the constraints are not imposed on her by her job.

    What I want to say is that the corporate organization in its current incarnation as a fictive legal entity with rights of speech, ownership, and due process, dangerously obscures the responsibility of the human beings who make decisions in its name.

    Continue reading "Corporate obligations" »

    April 09, 2004

    Tape recording Scalia

    Does anyone find it disturbing that Antonin Scalia, Associate Justice of the Supreme Court, Public Servant, and one of the most powerful individuals in America, does not consent to the recording of his public appearances?

    Justice Scalia isn't objecting to the paparazzi taping his dinner conversations with his wife at a restaurant. His objections aren't to recording his private statements. He's not objecting to reporters taping his discussions with his law clerks in his chambers, and possibly interfering with the performance of his duties as a Justice.

    Justice Scalia objects to reporters taping his public comments, made in his capacity as a Supreme Court justice, to an audience of high school students. Actually, we don't know this with certainty, since the federal marshall who ordered the tapes erased may have been acting more on his own initiative than Scalia's.

    In either case, the press should not tolerate this. Scalia's public comments should be fair game.

    Howard Bashman has links.

    April 05, 2004

    Wal-Mart Government

    Where do you stand on issues of democracy and corporate rule?

    One way to find out is to consider a case where they seem to be so closely interwoven that it's hard to clearly separate the democracy from the corporate bullying. The city of Inglewood, California, will vote tomorrow on whether to allow Wal-Mart to build a superstore largely exempt from local ordinances governing the rest of the city.

    Is Wal-Mart Government a good thing when the people vote for it?

    Continue reading "Wal-Mart Government" »

    April 01, 2004

    Rankings insanity

    This year's USNews rankings of American law schools have been leaking out all week in advance of their official release. Brian Leiter's blog has an interesting discussion of the rankings insanity that has inevitably followed. Please follow the links on Leiter's page to get a sense for what this insanity is like.

    But don't stop there. The insanity runs deeper than that.

    It isn't just that, as Brian Leiter points out, USNews' ranking methodology is not credible. It isn't just that students overestimate the influence of USNews' rankings on hiring. It isn't even that any attempt to rank law schools individually from best to worst, whether done poorly (USNews), or better than that (Brian Leiter), becomes ridiculous and silly as soon as you treat the resulting list as anything more than just a list of selectively compiled statistics.

    The real insanity is what the furor over school rankings reveals about the priorities of law students. To wit: get a job with a lot of prestige that pays a lot of money.

    To the extent that employers rely on the rankings, their insane behavior is revealed as well: hire students from highly-ranked schools whose interest in the legal profession is limited to the amount of their compensation.

    Fortunately, this extreme characterization does not apply to many prospective law students who use the rankings merely as tools to gather information that they will then thoughtfully integrate with their own interests and reasons for attending law school, in order to decide where to apply. One of Professor Leiter's posts quotes a letter from a student like this.

    But I think this extreme characterization does apply more often than you might think.

    It isn't that the students are bad. They're not (most of them). They are simply unsure of why they want to be lawyers. I don't mean that they don't know what legal specialty they'd like to pursue, or that they don't know if they'd prefer to work in government or in the private sector. What matters is that they don't know how or why a legal career will allow them to contribute anything of value to their fellow citizens. And this uncertainty is what draws so many law students into the insane world of Biglaw: big prestige, big money, big spending. Why? They don't know. They don't know why they do what they do. So they do what others tell them to do. It starts with automatically picking the higher-ranked law school. It continues with automatically working for the most prestigious firm which will hire them. And it ends with doing work which may be meaningless, unfulfilling, and occasionally simply evil.

    It isn't that practicing law at a prestigious firm is boring or evil. Usually, I suspect, it's the opposite. Especially if the lawyer knows why she is there, if she's thought about how her work contributes to the community and is valuable beyond just the paycheck it earns her. If she hasn't, though, she's an automaton, and that can sometimes be evil, not just at Biglaw but at small-law, government law, and non-law (doctoring, accounting, street-sweeping, and bus-driving).

    The rankings insanity is insane because it reveals the occasional thoughtlessness which can ripen by force of habit into blindness. This blindness can lead to scandals like Enron and Tyco. It can lead to governmental evil, like Naziism, fascism, and Stalinism. But usually, the blindness merely leads to the daily, low-level grunginess and lack of joy that plagues modern working life.

    March 31, 2004

    Jedediah Purdy goes to Duke

    Love him or hate him, Jedediah Purdy is definitely an interesting guy. And now it seems he's going to be teaching at Duke Law School.

    I've read Purdy's For Common Things and Being America, both of which were good solid books. But the thing about Jedediah Purdy that gets me is his resume. Not because it's good--there are a lot of people with good-looking resumes. No, the thing about Purdy's resume is that I would love to do what he's done!! It sounds so interesting.

    [NOTE: Several friends of mine think that Purdy is excessively pompous. They are probably right. But then, some friends of mine think I'm excessively pompous as well. The next step: get that fellowship at the New America Foundation and the clerkship with the Second Circuit. . .]

    March 21, 2004

    Medical law for the summer

    My big preoccupation these days is with finding a job for the summer. This, of course, is true because it was not my preoccupation back in January or February. Since it is, inevitably, something that every 1L must be preoccupied with at some point, I've decided not to put off being preoccupied any longer.

    I'm looking into several options, including government work and work with hospitals. Although I'm sure it's true that the 1L summer job doesn't have to be related to my career interests, I think I'll have a lot more fun if it is. I'd love to work with the in-house legal counsel for a hospital, since so much of what interests me about medical law is handled by hospitals. Malpractice defense, contracting, regulatory compliance, reduction of medical error... the list goes on.

    I'd also enjoy working with a government agency, especially a state government agency. The great advantage of state governments is that they're all over the country. Not that I don't like D.C., it's just that I don't think I can afford to live there this summer...

    March 16, 2004

    The real powers of student government

    The difference between running for office in law school and med school seems to be that in law school, there are a lot of candidates who are willing to give longish, prepared speeches about why their ideas are innovative, how they're responsive to student interests, and how they won't bog the Student Senate down with so much policy that there isn't room left for planning parties.

    In med school, there were a few committed candidates for elected office, but many of them wouldn't admit to wanting to give a speech, even assuming that any of their classmates were willing to listen to one. Which they weren't. The students knew the candidates already, or believed that they did, and didn't want to spend too much time on an election. Unsurprising, I guess, when you consider that they chose to go medical school. If they were interested in campaigning, they'd have gone to law school instead.

    Nevertheless, I suspect that law school and medical school student governments are very similar kinds of beasts.

    No, I'm not running for office. In med school I was drawn into student government by my dissatisfaction with certain policies of the Administration; in law school I've been fairly satisfied with things. At least, I have been so far.

    One thing that serving in med school student government showed me is that while students don't have much statutory power, they have a lot of persuasive power. Our student government was deeply involved in issues of curricular reform, a subject over which we had zero authority. Nevertheless, we had a great deal of persuasive ability. Our real handicap was a short institutional memory; students were limited to a maximum of four years of participation, and newcomers often weren't informed about what issues had preceeded them. As a result, the students were constantly re-inventing the wheel, while certain of the Deans could play the same tired old hand over and over again.

    Which is why I was troubled today, listening to candidate speeches, whenever anyone claimed that they "knew" where the dividing line was between what students could do, and what they couldn't. Any candidate who seemed to assume that some topics were simply not a matter for the student senate to address was crossed off my list.

    I want to vote for someone who recognizes the persuasive power that a student government can wield. I won't vote for a mere functionary, or for a brownnosing flunkie of the Administration. Even at the level of student government, there is a need for (and room for) real leaders.

    March 07, 2004

    Abbreviations

    I have finally figured out what the legal profession lacks. Abbreviations (abb's). Law doesn't have enough abb's, and the ones they have are often, well, just lame. As far as abb's go, law could learn a lot from medicine.

    There simply aren't enough legal abbreviations, either to mystify the lay public or to simplify the process of legal writing. Sure, there are some common legal abbreviations out there. Citation forms are a reliable source: F. Supp. 2d; S. Ct.; U.S.C.A.; for example. But there don't seem to be any standard abbreviations for routine note-taking. Some people still use 'π' for 'plaintiff' and 'D' for 'defendant,' but this practice seems far from standard. And what about other words and phrases which beg for abbreviations, like 'holding' or 'issue' or 'overturned' or 'fee tail male subject to divesting executory interest'? It takes me five minutes to write all that stuff out.

    Some of you will stop me here and say, "but, the Bluebook has many abbreviations." Don't tell me about the Bluebook. The abbreviations in there are just not cool. They're a pain in the ass. To see why, all you need to do is look at Table T.8 which purports to give "suggested abbreviations for citations of court documents and legal memoranda..." These abbreviations are lame. Counterclaim is abbreviated 'Countercl.' Deny is abbreviated 'Den.' And, here's some helpful ones: 'Answer' abbreviates 'Answer', Quash is abbreviated 'Quash'.*

    To see why the law seems so bereft of abbreviations, all we need is to turn to the field of medicine, and compare:

    "42 y.o. ♀ c/o RUQ abd. pain x 2 days. Hx of poorly-treated NIDDM, COPD, GERD. s/p MI one year ago, appy in childhood. Ob hx: G2P2. PE: wdwn ♀, NAD, AAOx3. PERRLA, no JVD. Abd: RUQ is TTP, no rebound. +BS . . ."

    Although they'd protest the thoroughness and organization of this note, most any medical professional would understand what was said here, without reaching for anything resembling the Bluebook.

    The great benefit of these abbreviations is that they speed up note writing AND mystify the lay public. The abbreviations in the Bluebook almost never do the former, and only occasionally do the latter.

    Can the law do better? I think it can. We could someday, if we choose, write:

    P, James Smith, AFSJ in fav. D re: SH under Title VII, 42 U.S.C. 2000e-2(a)(1), all. LC err R: I1-Standing. I2: excl. ev.
    I1: St.: Y
    I2: LC excl. ev.: O
    RR

    "Plaintiff, James Smith, appeals from grant of summary judgment in favor of defendant in sexual harassment suit brought under Title VII, 42 U.S.C. 2000e-2(a)(1). Smith alleges that the trial court erred in its ruling that he had no standing to sue, and on its ruling excluding certain evidence. We find that Smith did have standing, and overrule the trial court's exclusion of the evidence. We reverse and remand for further proceedings consistent with this opinion."

    (Gee, the legal writing here is almost as bad as the medical writing...)

    But the point, I think, is made nonetheless. Any lawyers in favor of more abb's??
    _________

    * I don't mind 'quash' so much, because 'quash' is too cool a word to abbreviate.

    March 06, 2004

    Extortion, or abuse of power?

    Anyone thinking of making a gift to the cops might want to think twice. Via The Proximal Tubule, this intriguing case of a website operator arrested for extortion when he told the Macomb County Sheriff's Department that he would shut down the website he maintained for the sheriff unless he was paid $300,000:

    "This is a case of someone trying to get rich quick," said Eric Kaiser, chief trial attorney for the Macomb County Prosecutor's Office. "He was given the privilege of carrying the banner of the Macomb County Sheriff's department and he tried to take advantage of it."

    "He built up the site so that we would rely on it so much and would pay him," Hackel said. "(But) that content belongs to all of us."

    The problem is that it looks more like a gratuitous benefit that's being withdrawn:

    Richard, a former reserve deputy in the sheriff's marine division, more than three years ago offered to provide the Web site at no cost to the county as an in-kind contribution. [Sheriff Mark] Hackel, who enthusiastically supported it, said Richard agreed to operate it in exchange for publicity for his company.

    Or, as reported here:

    Both sides agreed on a few points: that Richard started running the site for free a few years ago; that his site became so popular, the Sheriff's Department -- and the public -- came to rely on it. And that Richard decided the site was too costly to run for free any longer.

    I don't know the details of the extortion law that he's being charged under, but it seems at least that Richard hasn't been a naughty boy under contract law. There was no consideration for Richard's maintaining the site. Richard says the website was run for the sheriff in exchange for publicity for Richard's company. The publicity apparently was provided on the website itself, and (arguably) by printing the URL on the sides of patrol cars and on official letterhead. The sheriff seems to have been looking for a way to get a website on the cheap: "Hackel said he didn't want the county to run his department's site to ensure it wouldn't cost taxpayers any money."

    If there were no other terms, it seems likely that Richard could shut the site down if economic conditions changed and the site was losing money. In fact, it seems that Richard could shut the site down for no reason at all.

    But I'd like to know if there were other terms or promises. Did Richard ever promise to keep the site open for a given length of time, such that the sheriff's department justifiably relied on the promise (a la R2K 90)?

    I hope that more facts about this case become available. Otherwise, it just looks like a simple abuse of power by the Sheriff.

    March 05, 2004

    money

    When I was in medical school, it seemed that the big choices students had to make were rarely made on the basis of money. More than that, it seemed as though money wasn't a front-and-center issue. The big decisions about which specialty to go into depended upon time commitment and upon enthusiasm for the job.

    In law school, things sometimes seem different. Decisions that students make about where to work seem quite frequently to be made on the basis of money. Sure, the other considerations of quality-of-life and enthusiasm for the work are also huge, but compared with the decision-making in medical school, money seems to be a bigger factor.

    Perhaps one reason is the dramatic discrepancies in pay between entry-level legal jobs. Take summer jobs, for example. The difference between "volunteer" positions (which often equate to 'pay-to-play' positions because the student is not even compensated for room and board) and paid jobs at law firms is HUGE. You can make $1700 every week as a 1L at a firm. Or, you can pay for an apartment somewhere and work for free. The work you do as a 1L summer will probably not be that different in terms of its nature or of its quantity.

    What follows? I'm sure something does, but I've got to run along to class now. Maybe more will follow...

    February 22, 2004

    Rule 8(a)

    This quiz is actually pretty cool. Thanks to JCA, who is also a Rule 8(a).


    YOU ARE RULE 8(a)!

    You are Rule 8, the most laid back of all the
    Federal Rules of Civil Procedure. While your
    forefather in the Federal Rules may have been a
    stickler for details and particularity, you
    have clearly rebelled by being pleasant and
    easy-going. Rule 8 only requires that a
    plaintiff provide a short and plain statement
    of a claim on which a court can grant relief.
    While there is much to be lauded in your
    approach, your good nature sometimes gets you
    in trouble, and you often have to rely on your
    good friend, Rule 56, to bail you out.


    Which Federal Rule of Civil Procedure Are You?
    brought to you by Quizilla

    February 13, 2004

    Death penalty analysis

    In a New York Times article about the possible use of the death penalty against a white Mafia boss, we find this bit of "analysis":

    Mr. Massino's case is awkward for death penalty critics. To press for a capital case against him, they would have to abandon their opposition to execution. But if they oppose capital charges in the case of an alleged Mafia chief, they would undercut their argument that the failure to seek the death of mob boss shows the unfairness of the system.

    The first statement is obvious; the second is false. Perhaps the author is angling for a regular opinion column.

    February 02, 2004

    Judge Stephen Reinhardt answers 20 questions

    Judge Stephen Reinhardt of the Ninth Circuit, interviewed by Howard Bashman:

    Finally, after reading Slouching Towards Gomorrah: Modern Liberalism and American Decline, I reject any suggestion that I am in any way comparable to Judge Bork. I would not nullify the Bill of Rights by allowing Congress to overrule the courts' constitutional decisions by a majority vote. And, unlike Judge Bork, who once analogized the Ninth Amendment to a text covered by an "ink blot," I believe that each and every part of our Constitution has meaning that binds federal judges. Liberalism is still a part, a critical part, of the American mainstream; those who reject fundamental constitutional principles, such as judicial review, are not.

    January 29, 2004

    Cooperation

    Yesterday, I posted my grades. Far more risky, for me, was posting some of my reactions to my grades. Especially because these reactions are deserving of some guffaws. They basically say, "yeah, I got good grades, but I'm disappointed in them."

    The early results of this experiment are encouraging. People have helped me out, both by saying kind words (and some unkind words) about my decision to post my grades, and by saying words like "come off it, you loser, you're not making any sense" about my reactions to my grades. They're giving me a reality check, and I feel more grounded in the real world because of their comments.

    Another thing that's far more embarrassing for me than posting my grades is posting navel-gazing entries on my blog. But that's what life's all about: stretching, trying new things, taking risks. . .

    January 28, 2004

    My law school grades

    There's been a discussion in other places about grades. I've been thinking about this, and I've decided that keeping my grades secret is not what I want to do. So I will share them with all of you:

    Con Law: A-

    Torts: B+

    Civ Pro: A-

    ------

    I'm very disappointed in these grades. Why? Because I wanted higher ones. I'm under the impression that very high grades will help professors to remember me. And I want to be remembered by the professors. Since I don't know yet what I want to do after law school, I feel like I need mentors more than anything else. High grades, my thinking goes, will make it easier to find a good mentor.

    I suspect that grades are just one factor among many, but I think I have reasonable grounds for believing that if I had earned higher grades, my professors would be more likely to remember who I am. More than that, I sometimes suspect that they'd be more eager to help me get to where I want to go (or help me to decide where I want to go). Perhaps I'm wrong about this effect of grades. But now that everyone knows what they are and how I'm interpreting them, they might be able to tell me I'm wrong. That would be helpful.

    So now you know my grades, and you know some of my thinking about my grades. Sure, I have many other thoughts about these grades, but hey, this is only one post.

    What I really hope is that this will stir up the pot a bit. Now, you have examples of people who don't reveal their grades, and examples of those who do. Now there's slighty less reason to speculate about grades, because you have slightly more real information about grades. (I know it's only one person, but it's still technically true.)

    Property rights

    I've just spent the morning reading badly-written arguments on the internet. But I won't hold this against anyone. I, too, am going to indulge my ability, made possible by this blog, to start writing on impulse without waiting to refine my thoughts into something coherent. So let this serve as a disclaimer for what follows:

    In Property class, we've read an article by Harold Demsetz. He argues that a system of private property rights will tend to supplant a system of common ownership when it becomes really profitable. (This is a gloss. But listen to Demsetz's jargon: "...the emergence of new property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities." Eew.) Demsetz uses as an example the supposed emergence of property rights among the native peoples of Labrador after the fur trade began to heat up with the arrival of Europeans. He contrasts this with the continuing reliance on common ownership among the native peoples of the American Southwest, who weren't entertaining offers from Europeans to buy their buffalo hides. Apparently, his anthropological knowledge is woefully inadequate, but Demsetz's ideas may not be.

    If Demsetz were writing today, he might have chosen the Digital Millenium Copyright Act as his most powerful example. He might have said, "now that information is so much more in demand, and capable of being inexpensively exchanged, the chances to profit from its ownership are greatly increased. Hence, we are moving from an old system of modest intellectual property islands in the vast intellectual commons, to a system where people are claiming private ownership over great swathes of ideas, speech, performance, and art. We are privatizing the intellectual commons "in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities." Eew.

    Demsetz no longer has to be an anthropologist, he just has to read the news. Perhaps he could use his free time to write more about who "the interacting persons" whose desires are being responded to really are. The RIAA? Disney?

    January 27, 2004

    Teaching law

    Today I went to a lunch meeting about becoming a law professor. Since I still have no idea whether or not I want to be a law professor, the discussion about the pros and cons of law professoring was particularly interesting. According to at least one law professor, the pros are:


    1. Autonomy. i.e. no one really tells you what to do from hour to hour, aside from incidental stuff like requiring you to show up for class a few hours each week, and occasional administrative work.
    2. Solitude. I list this as a pro, but that's because I'm introverted. An extrovert might consider it a con and call it "loneliness."
    3. Little structure. I dislike most kinds of structure, so for me this is also a pro.
    4. Intellectual challenge. This wasn't addressed explicitly, but it was implicit in what was said. Apparently, you get to write about legal problems, publish what you write, and then take boatloads of criticism for it. This sounds like, on a larger scale, writing a blog.
    5. Teaching. For me, this is a big pro. As fish like to swim and cats like to scratch, I like to teach. Perhaps it's the pedantic nature of the enterprise. . .

    The cons are:

    1. Little control over where you live. It seems that in the competitive world of law professoring (all kinds of professoring?), you have to take what you can get. If you want to live in Wyoming, or in Durango, Colorado, you're pretty much screwed.
    2. Long-term projects. When I was in medical school, I liked emergency medicine because all my projects (patients) were short-term (in the ED, you work on them for a while and then send them home or give them to another service). I didn't like internal medicine because the same patient would be hospitalized for weeks, constituting, for me, a "long-term project."

    So far, the pros are more numerous than the cons, but that's not enough to make up my mind. After all, I would, in addition to many other things, have to write "The Paper" if I wanted to have any success at all becoming a law professor. What should this "paper" be about? What legal field am I interested in? I don't know. Liking the subject matter in all of my 1L classes so far isn't enough to go on.

    If I'm lucky, perhaps I'll even wind up liking Bankruptcy. I was told the supply of potential bankruptcy teachers relative to the demand is more favorable for getting hired. . .

    January 26, 2004

    Corporate law

    I'm interested in corporate law. Surprising? It shouldn't be. Since I have the sense that our society is being damaged by the behavior of large corporations far more than it needs to be, I'm curious about the law that governs corporations.

    We tend to think of corporations as natural features of the world, when they're really just artificial constructs of law. Like all institutions, however, the corporate construct influences the behavior of people. In my opinion, these people often act badly under the cover and influence of corporate law.

    Recently there's been a lot of debate over Article 1, 8, cl. 8 of the Constitution. That's the bit that gives Congress the right to issue patents (a legal construction) for a particular reason (to "promote the progress of science and useful arts").

    Corporations are like patents. They're legal constructions, established by state governments, for a reason. "We the People" established the corporation because we thought it would serve a purpose: the accumulation of large amounts of capital necessary for big investments which would benefit the entire society.

    We made corporations because we thought they'd benefit us. And they have. They've worked wonderfully well, made a lot of big investments, and benefitted society. But they've also behaved badly, and damaged the community around them, and committed injustice. Perhaps most perniciously, they've urged us to forget where they came from.

    Some people suggest that the corporate focus on the bottom line is established and encouraged by law. Others assert that the narrow-minded focus on corporate profits is solely due to shortsightedness on the part of corporate directors, and that the law governing corporations is not responsible for their bad behavior.

    Either way, we shouldn't forget that corporations aren't natural features of our world, but instead are human creations intended to benefit our society. Do they?

    January 20, 2004

    Try this with your principles

    What a great comment.

    Strict liability for vicious dog

    From the Rocky Mountain News, pit bull kills neighbor's dog:

    The death of a husky at the jaws of a pit bull has left residents shaken and calling for stronger laws against vicious dogs. . .

    According to a Broomfield police report, a pit bull named Lucky belonging to Jacob Talamantes went through a fence Jan. 5 and attacked the husky, ripping its chest and abdomen.

    "My dog was doing what any natural dog would do. That's his territory and a dog was coming through," Talamantes said. "It was a horrible situation."

    But, he said, "It's not anybody's fault really that this happened. Accidents do happen. This is just like you or I going out there and tripping and falling on top of somebody, and they accidently broke their leg. It isn't necessarily our fault."

    And that, Mr. Talamantes, is why we ought to impose strict liability on dog owners.

    December 20, 2003

    Who's to blame for Colorado's "woefully inadequate" law building?

    By now many of us know that the ABA thinks the Fleming Law Building at the University of Colorado is "woefully inadequate." (Via en banc.)

    School officials are blaming the lack of state funding, for lack of anything better to blame, I suppose. It is true that the current budget crisis prevents the state from bailing out the law school. There's just no money there.

    But what I'd like to know is, did the school fail to plan for this? Budget crises can be counted on from time to time, and a state school can't reliably predict that there will always be money available from the state. Especially not a state school in Colorado, whose legislature doesn't seem to enjoy funding higher education.

    Why hasn't Fleming been adequately maintained and updated? Surely this is much cheaper than an entirely new building. Who's decision was this?

    Somebody, somewhere, probably dropped the ball. It probably wasn't the current Dean, David Getches. He hasn't been there long enough.

    Was it the former Dean, Harold Bruff? It's hard to say. There are some postive-sounding surveys on Bruff floating around, but surveys can be woefully inadequate themselves sometimes.

    What about the students? Where are they? Are they upset? Happy? Do they care? So far I haven't seen much comment on this issue from Colorado law students. If the building is really so inadequate, you'd think the students would be more upset.

    Why hasn't the media looked into these questions? This would be a great piece for any student journalists at Colorado who wanted to scoop the bland, insipid reporting that's plagued this story.

    Here are some articles addressing the tuition hikes solution to the funding shortfall; here's a discussion of the ABA's other concerns about the school.

    December 12, 2003

    Law and Medicine, v.2: in which strange practices are identified in both professions

    The medical profession has its share of strange practices. In residency education, the most inexperienced and least knowledgeable doctors, the interns, are often the most sleep-deprived. These doctors (whose need to learn is the greatest) are often in the worst position to do it, physiologically speaking.

    There are reasons for this practice, of course, although none of them seem very persuasive to me. Many of the most persuasive have nothing to do with medical education itself, but instead are economic (interns are the cheapest medical labor around) or anthropological (they've always done that way, and since doctors are mere humans, they are often irrationally resistant to change).

    The good news is that the medical profession doesn't have a monopoly on strange practices. One strange practice that seems to afflict legal education is the overweening emphasis on a student's performance during the first year of law school. The stakes are highest right at the beginning, when most students still don't know what law school is really for, let alone know anything about the law itself. Nonetheless, first-year grades significantly determine whether a student will make law review, get the plum jobs, or be considered for a legal teaching position later in their career.

    Several of my professors this semester have expressed their dismay at what typically happens to students after their first semester grades come back. Many students, having received disappointing grades, decide that there's no chance for them to succeed in law school at the level they had wanted, so what's the point of paying attention in class? They decide (not without reason) that the game is already over; that their Bs for the first semester make shooting for As during the second semester a fool's errand.

    This behavior is properly criticized. It's true, as one of my professors pointed out, that these first three classes are just three out of 15-20 classes in law school. From the perspective of the whole law school record, it's irrational to put such great weight on first-year, or first-semester, grades.

    Unfortunately, though, the "whole law school record" isn't what matters. Employers don't screen students based on the whole record; they focus mostly on first-year grades and what follows from first-year grades, like law review. While it may be true that students who succeed in the first year are obligated to continue this level of success, the students who struggle during first-year cannot readily "make up for it" by performing well in the second two years.

    Does this make sense? If it's irrational for students to overemphasize the first year, is it irrational for schools and employers to do the same thing?

    In one fairly obvious way, the answer is no. The system mostly works, in the sense that the students picked out for law review and for the plum jobs are often highly capable, and don't often disappoint. In other words, the system doesn't make many mistakes. Perhaps this is because of the inevitable oversupply of highly talented students for the very few coveted legal positions. There's simply too many students.

    But if the system works from the point of view of the prestigious jobs, and the law reviews, and the clerkships, does it work from the point of view of the run-of-the-mill legal employers? One would think that if students were blowing off law school because of poor first-year grades, these students might not be qualified for most legal work.

    I don't know what the truth is, but I suspect many students who've given a half-assed effort in law school are still perfectly capable of functioning as competent attorneys after they graduate. If this were not the case, I would expect the legal community to start raising a stink about the performance of law schools generally, which doesn't seem to be happening.

    Sadly, I think one reason for this is that practicing law probably doesn't take as much formal education as getting a law license does. Those last two years of law school? Expendable. Go out and pick up a cocaine habit, or start gambling. It doesn't really matter, so long as you get your sheepskin to satisfy the state bar bureaucrats.

    But if law school isn't necessary for the majority of students, why does it continue to persist without significant change? One reason might be that law school is necessary for a minority of students, namely, those that did well during first semester and who therefore didn't decide to give up and coast. Remember, some jobs are prestigious because they're very demanding, and can only be adequately performed by students who've stretched themselves to their limits in law school.

    Another reason might be that law schools are fantastic generators of cash. Students are willing to take on huge debts to attend law school, in part because they realize that lawyers can get obscenely rich. So if the students are willing to pay, why should the schools cut their curricula back to one or two years? All that cash is nice. Law professors, although they don't make anywhere near as much money as the big-firm partners, are among the highest-paid academics; they certainly wouldn't want to be paid like the typical humanities professor.

    Given all of this, much of which is raw speculation on my part, we should come back to the law student at the very beginning of law school. This student will either do really well first-semester, in which case all options are still open, or he will not do as well as he wanted to, in which case he has a choice to make. Continue to work hard (and maybe make things a little more interesting for professors teaching the upperclass courses), or sit back, coast, and pick up the diploma before heading off to a routine law job.

    Given the (perhaps irrational) emphasis on the very earliest grades, I can't blame someone who chooses to slack off, even if it does disappoint the professors. But I have to believe that a student who is really interested in law, and who recognizes that excellence is in some sense always rewarded where it is found, should continue to learn as much as possible, struggle to perfect their skills, and zealously pursue their interests.

    Just because their colleagues have a rational basis for letting up on the gas is no reason that everyone ought to do so.

    December 10, 2003

    Supporters of the Patriot Act miss the point

    Professor Bainbridge links to an Opinion Journal (subscription req'd) article by John Yoo and Eric Posner defending the Patriot Act.

    Americans have never been eager to trust their government, yet Posner and Yoo ask us to accept the Patriot Act in part because we cannot point to any abuses of these new powers by Bush Administration officials. Even if they are correct when they suggest that the Act hasn't been abused yet, they sidestep the point of the most powerful criticism of the Act. Our civil liberties require protection more powerful than the simple goodwill of governmental officials who "choose" not to abuse their power.

    Continue reading "Supporters of the Patriot Act miss the point" »

    December 08, 2003

    Professional ethics?

    From a post on Ciceronian Review:

    When, approximately would an American lawyer of the first half of the nineteenth century be on notice that the moral horror [of slavery] had grown sufficiently to raise questions of professional duty?

    This seems like a very interesting blog; there's also an interesting discussion of the senate confirmation process for judges.

    Move for a 12(b)(6) dismissal?

    This goes out to all my homies in Civil Procedure.

    Strict Liability, or First Bite Free?

    This goes out to all my homies in Torts.

    Happy incidents of the federal system

    This goes out to all my homies in Constitutional Law.

    Selling organs

    A test case for one's willingness to place their faith in the market:

    Prosecutors in Durban have arraigned a South African man on charges of selling human body parts in a trans-Atlantic organ peddling scheme. . .

    According to the police in Brazil, the ring canvassed poor neighborhoods for people willing to sell one of their kidneys. Those who agreed were flown to South Africa, where the transplants were performed.

    Free choice, exploitation, or some mixture of both?

    December 06, 2003

    Unprecedented!

    I'm going to try something unprecedented among law student bloggers.

    I will not blog about final exams.

    I know, I know. The audacity! The perspicacity!

    The sheer overwhelming obstinacy!

    December 03, 2003

    How to sell out without really noticing

    All of the 1Ls here have (already) gotten a big white envelope from a Biglaw firm.

    Quoting from the colorful catalogue inside:

    [This Biglaw firm] is committed to providing a full range of services to the health care industry, including lifesciences companies, pharmaceutical manufacturers, managed health care organizations, hospitals, assisted living facilities and health care insurers. . .

    While there is a clear need for attorneys to provide these "services," let me be clear: I do not aspire to serve these entities in any way as long as they continue their current practices. All of these entities are valuable participants in any health-care system, but anyone who would build a career of serving their legal needs as they now stand does not share my vision of what our nation's health infrastructure should look like, work like, or be like.

    Fortunately for them, and for the Biglaw firm, there are plenty of 1Ls who disagree with me, and do so for thoughtful and respectable reasons.

    But I'm afraid that too many 1Ls haven't given it any thought. Not knowing what they stand for, they'll look at the colorful brochure and gloss over the text and think, passively, "that sounds good. It sounds like a job I could be proud of. I'd be doing something 'important.' Somehow. And, wow, I can make a LOT of money!!"

    If, later, they should give the matter some thought, and should decide that that's not what they stand for, I hope they'll think it's easy to give up the job and walk away from the money. Sadly, some of them won't find it so easy. They'll think they "need" the money. Their spouse needs the money. Or their kids need the money. Either way, they'll get up every day feeling trapped by a job they want no part of.

    I'm almost certainly making mistakes as I plan my career; but this is a mistake I'm trying hard not to make. Check back with me two years from now and I'll let you know how it's going. . .

    I'm withdrawing.

    Chris Geidner calls our attention to bar-passage rates in Michigan over at En Banc.

    I'm putting in an application for transfer to Ave Maria. They're clearly superior.

    December 01, 2003

    Judge Posner's Cat

    Want to see a picture of Judge Richard Posner's cat, Dinah?

    Of course you do. (Go to second page of pdf file.)

    You'll then want to read this interview with Posner at How Appealing.

    November 24, 2003

    That's more like it...

    This is what a law student blog entry should be all about...

    November 08, 2003

    Can we try to persuade others that a law is bad?

    A reader called my attention to Conant v. Walters, a case in the 9th Circuit upholding a permanent injunction against the Government's investigation of physicians merely because they choose to discuss marijuana with their patients.

    The majority based its holding on the first amendment rights of doctors and on the protection of physician-patient communications. Along the way, the opinion quotes language from the district court's ruling that supports the rights of people to discuss information as a prerequisite for deciding whether they will petition the government to change the law:

    "Petitioning Congress or federal agencies for redress of a grievance or a change in policy is a timehonored tradition. In the marketplace of ideas, few questions are more deserving of free-speech protection than whether regulations affecting health and welfare are sound public policy. In the debate, perhaps the status quo will (and should) endure. But patients and physicians are certainly entitled to urge their view. To hold that physicians are barred from communicating to patients sincere medical judgments would disable patients from understanding their own situations well enough to participate in the debate."

    Now that's a pro-democracy ruling if ever there was one. Thank you, Ninth Circuit!

    November 07, 2003

    Confirmation politics, v.2

    I posted some of my thoughts on the judicial confirmation process a few days ago, in the context of the nomination of Janice Brown to the federal appeals court. Here's a collection of other comments. Since then, George W. Bush has signed the partial-birth abortion ban into law and reminded us of why it's important to focus on a judge's ideology.

    Regardless of your views on partial-birth abortions (or, to maintain my political neutrality, "partial-birth abortions"), it is the case that the judiciary has appropriated for itself significant authority over this area of policy. If the judges think it should be legal, then it will be, in the absence of a Constitutional amendment. And their determination of its legality will turn on their ideology--there are principled judges with respect for the law and a disdain for "results-oriented" jurisprudence that come out on both sides of this issue.

    We care about this because the question of abortion goes to the heart of our moral views.

    The suggestion that the confirmation process should not consider a nominee's ideology is asking us to stop caring about whether fundamental rights are respected, or whether we're tolerating murder for the sake of convenience.

    If there's one thing people on both sides of the abortion debate agree on, it's that the compostion of the judiciary matters.

    Now, if the judiciary as a whole were to step back and say, "we aren't going to say anything about abortion, period," we might be able to disregard ideology in the confirmation hearings.

    Oh, wait. I spoke too soon. In order for us to completely disregard ideology in confirmation hearings, the entire judiciary would have to say "we disclaim all authority to issue any binding rulings on any subject that touches upon what any citizen believes is fundamental and of great importance."

    Until then, ideology will be, and should be, central to any confirmation hearing.

    November 06, 2003

    private police?

    Minnesotans, apparently, are already living in The Matrix.

    November 03, 2003

    The ideology of a judge still matters

    As a 1L who has just read Lochner for the first time, the debate over Janice Brown's nomination to the federal appeals court has caught my attention. As an embryonic lawyer, my layperson sense of things hasn't been educated out of me yet, and this layperson sense is telling me that what some of the academics seem to want is both impossible and undesirable.

    Much of the debate is centered on the question of whether Justice Brown's views on Lochner are outside the legal mainstream. What I want to address instead is the concurrent debate over whether her ideology should be the focus of the confirmation process.

    Lawrence Solum and David Bernstein think not. They criticize the New York Times editorial that argues against Justice Brown's confirmation, and suggest that the proper criteria for evaluating her fitness for the bench is, as Solum puts it, whether or not she tries to decide cases "on the basis of the law and not on the basis of [her] own political ideology or views about what the law should be."

    While I agree that this is an admirable (and perhaps an indispensable) attribute for an appeals court judge, I can't agree with Solum that we ought to simply disregard the nominee's ideology when we consider whether or not to confirm her nomination. Nor can I agree with what I (provisionally) believe to be another of Solum's points: that once we find a judge with the "judicial virtues" that he describes, the ideology of this judge will have no substantial effect on the results of the cases she decides.

    Why ideology matters (now, more than ever)

    If you ask an educated citizen (as opposed to a legal theorist) whether a judge's ideology should matter, you'll almost surely hear a vigorous "yes." Remember, we haven't forgotten Bush v. Gore, where all the conservative justices lined up behind a per curiam ruling that they knew would make George W. Bush President, and the liberal justices all dissented from this ruling. The average well-educated citizen knows that big political questions can be and are decided by the courts. They know that the conservative judges often bring about the kinds of results that conservatives are fond of. Lawrence v. Texas demonstrates that the liberal judges do the same thing.

    For the average citizen, the analysis typically stops here. The question of whether any of these results are founded on good or bad reasoning is irrelevant. After all, why should it be? A result is a result, both the well-reasoned and the poorly reasoned ones, and the results that judges arrive at carry the weight of "law." Which means that, well-reasoned or not, we all must live in accordance with them. There are many reasons for the bitterness in the Judiciary Committee over judicial nominations, but first among them is that the Senators' constituents know that the choice of federal judges will probably affect their lives in significant ways. And they also know that the ideology of a judge is often a good predictor of whether or not these affects will be welcome or not.

    The widespread belief that the legislative process has been captured by special interests, and is not responsive to the general political will of the people, only increases the importance of a judge's ideology. If it were the case that the public believed the legislative process was responsive to their interests, they might be more easily be persuaded that the damage created by "bad" judicial decisions--and by "bad" they mean decisions producing the "wrong" result-- could be mitigated more easily. The legislative branch, at least, would be on their side. But if the legislative branch isn't a reliable advocate for their interests, it is all the more important that the judicial branch be an advocate. Or at least, that the judiciary not be actively promoting undesirable policy.

    All this will, I think, make some legal theorists cringe. After all, if the public is uninformed about the differences between principled judicial opinions and opinions based solely on ideology, that is no reason to shift the focus of judicial confirmation hearings from "judicial virtues" to ideology.

    At least, not if you believe that judicial virtues can be separated from ideology.

    Judicial virtues can't be separated from ideology

    Here's the short, pithy argument:

    One of the most esteemed and widely-valued judicial virtues is a love of justice. Justice is inextricably a matter of ideology, almost by definition. Since even a 1L knows that "the law" isn't just there in the text of a case or of a statute, anyone asked to interpret a case or a statute must interpret the text. A virtuous judge will try to interpret the text in the way most consistent with justice. But since a judge subscribing to ideology A will inevitably hold a view of justice colored by her ideology, her opinion of the most "just" interpretation will not necessarily be the same as a judge subscribing to ideology B who interprets the same text with the same concern for justice.

    To believe otherwise is to bury your head deep in the sand.

    Of course, this is not to say that if you group all judges with ideology A together and ask them to interpret the same text, that those judges who possess more of the "judicial virtues" would always arrive at the same result as those judges who share their ideology but have less of a concern for justice, less of a "judicial temperament," or less "learning in the law." Ideology isn't dispositive. But neither are those things which Solum calls the "judicial virtues." Ideology still matters.

    Should we look for virtuous judges? Of course. Should we attempt to "de-politicize" the judicial confirmation hearings in the Senate? We can't, and we shouldn't.

    November 02, 2003

    Is employer-provided health insurance a good thing?

    There's some interesting points made here.

    October 29, 2003

    law school vs. medical school

    People often ask "what's the difference?" between law school and medical school.

    Well, I can only answer based on my own experiences and interpretations, but here's one difference:

    A few months into my first year of medical school, I began to realize that I wasn't getting very much out of the classes. I felt in virtually every case that if I had skipped class and spent that hour reading my notes or reading a textbook, I could have learned more than I did by listening to the lecture in class. (Of course, this doesn't apply to anatomy lab, which doesn't count as a "class" or a "lecture" in my opinion. Anatomy lab is a whole different kind of fish.)

    In law school, I'm often tempted to skip class. But unlike in medical school, I'm finding it difficult to justify skipping class in favor of just doing more reading on my own.

    Law school classes, so far, seem more valuable than the preclinical medical school classes.

    Why? My law school classes seem to offer something "beyond the textbook" in a way that medical school lectures never did. Take today's torts lecture, for example. We were discussing the doctrine of respondeat superior and vicarious liability, under which an employer is liable for the negligent actions of an employee even if the employer itself did nothing wrong. We'd seen the doctrine applied in a few cases from the casebook, and the casebook editor had discussed a few wrinkles, such as what happens when the negligent party isn't an employee but instead is an independent contractor? All that was fine and good. But in class, we didn't just rehash the discussion in the textbook. Instead, we asked "Why?" Why does this doctrine make sense? Should we keep it, or get rid of it? Using the cases in the book as weapons for our arguments, we advanced our understanding of the legal doctrine in a way that would have been much more difficult, if not impossible, if we had just stayed home and reread the casebook.

    I don't want to glorify my law classes (God forbid). Very often the rhythm of the professor's voice starts to put me to sleep, and my eyes glaze over when we stop to discuss a point I don't find very interesting. I get tired of straining to hear a student who's been called on and is giving a cautious, timid answer that doesn't move the discussion forward but just bogs it down and slows it up.

    But it is true that if I try to stay alert, I'll almost always find a way to make the hour irreplaceable in a way my medical school lectures never were.

    There could be many reasons for this. Medical textbooks could just be superior to law casebooks. Medical lecturers could be inferior to law lecturers. The Socratic method may make the law classroom a much more active place than the medical classroom ever was. All these could explain the difference, but I don't think they do.

    Here's the difference, in my opinion: in medical school the most significant goal by far was memorization. The lectures didn't help me to memorize anything, so they were, to put it bluntly, superfluous.

    In law school, although we need to memorize things, the real goal is making cogent arguments. And I find that attending class, listening to the professor, responding to the questions, and listening to classmates helps me to form and use arguments to a greater extent than it would help me to skip class in favor of rereading the casebook.

    I'm sure I'll start to notice some other differences between law school and medical school, and when I do, you can rest assured that I'll point them out on this blog...