Monday, December 21, 2009

Calling Their Bluff

As faithful readers know, I am immersed in exams and not likely to reemerge until after New Year's day. But a little tidbit to keep you entertained meanwhile:

In the Senate debate over health care, it now appears that the Democrats have 60 votes and can pass their bill. But the Republicans are determined to drag matters out by taking every hour the Senate rules allow. And the rules allow a lot: even having 60 votes for cloture doesn't mean that the Senate can immediately end debate and bring something up for a vote. The Senate's infamous Rule XXII provides that after 60 Senators vote for cloture, the matter under debate can still be debated for a further 30 hours before the actual vote.

So counting back from Christmas Eve, Majority Leader Reid figured out that he needed to hold a cloture vote at 1:00 this morning. This led to a lot of debate about who was responsible for dragging good, hardworking Senators, and even ill ones like Senator Byrd, out of their comfortable beds at that unseemly hour. There were a lot of pious objections from Republicans who claimed to want to spare Senator Byrd that discomfort. The Republicans claimed it was all Senator Reid's fault that the vote was at 1:00 am, because only the Majority Leader can schedule votes.

Well, Senator Harkin of Iowa figured out a way to call their bluff. As you can watch here (click on "Mr. Harkin" at 18:30), he sought unanimous consent that the vote be at 9:00 am, but that the time from 1:00 to 9:00 count as part of the 30 hours after cloture. The Republicans objected. So it's clear they're determined to make things as uncomfortable as possible and that it's really they who are forcing the 1:00 am vote. And as Harkin points out, it's all really for naught -- if the Dems have 60 votes, forcing endless hours of debate doesn't really change anything. Nice work, Senator Harkin.

(By the way, C-Span's video library stinks. You can only look at one clip at a time and there's not even a convenient way to link right to the next or previous clip. If you want to see what it should look like, check out the video library at the British Parliament. A single click gets you to an easily viewed tape of the entire day's proceedings.)

Tuesday, December 15, 2009

Exam Time

Sorry, Faithful Readers, but I am consumed with that semiannual joy of law professors, exams. I finally finished writing my exams -- and wow, that took a long time -- and now it's time for the worst task of all, grading them. Blogging will be minimal from now through the end of the year.

Happy holidays to all. Health and prosperity to you in 2010.

Thursday, December 10, 2009

Medicare and Cost

I usually try to blog about subjects where I have some value to add based on expertise. But most pundits today seem happy to mouth off about subjects they know nothing about, so why not me?

Mr. Rick Pollack, executive vice president of the American Hospital Association, expressed concern yesterday about the Senate proposal to allow persons age 55 or older to buy into the Medicare system. He explained: "Medicare pays less than the cost of delivering services. And as more patients are reimbursed at levels that are below the cost of providing the service, it obviously makes it difficult to maintain essential public services that patients and communities depend upon."

Now, can this possibly be true? If Medicare really pays less than the cost of delivering a service, then why would hospitals serve Medicare patients? They're losing money on each one.

Apparently, as summarized by Pollack's interviewer, part of the answer is that "Hospitals typically make up that shortfall by passing the cost to privately insured patients who pay more." But if other patients are willing and able to pay some higher cost that is necessary to make up for the loss hospitals incur on Medicare patients, then hospitals could make even more money by charging other patients that higher rate and still not serving the Medicare patients.

Do hospitals serve Medicare patients out of a sense of civic responsibility? Is it a public service? Or do they actually make money on Medicare patients but hide it with complicated accounting?

Are they just confusing marginal cost with average cost? If you imagine that each patient has to bear part of the cost of keeping the heat and lights on and paying the hospital's debt service -- all of which the hospital would do whether or not that patient showed up -- you can easily show a loss on patients when actually you're making a profit on them. The correct calculation would consider only the marginal (i.e. additional) costs that the hospital incurs because of treating that patient.

Here's a skeptical take on this costs question. But I don't really know the answer. Perhaps someone can elighten me.

Tuesday, December 8, 2009

Come Back Later

Interesting opinion today from the Supreme Court. Apart from being Justice Sotomayor's first opinion, the case presents the interesting question of whether a district court's order denying a claim of attorney-client privilege should be immediately appealable.

The normal rule in federal litigation is the final judgment rule: no appeal of a district court's order is allowed until the case reaches its final judgment, at which time all the orders the district court has made in the course of the case can be appealed. This rule saves time and energy by blocking parties from appealing each order the district court makes, one at a time. Also, if the party that would have appealed an order ends up winning the case anyway, or if the case settles, appeal may be unnecessary. So the final judgment rule is a good general rule.

But sometimes appeal after final judgment may not do anything for the appellant. For example, if the defendant in a criminal case seeks bail pending trial and is denied, an appeal after the trial is over does no good -- the harm of not getting bail is irreversible at that point. So the Supreme Court has allowed appeal of "collateral" orders -- orders that are collateral to the merits of a case, that raise an important issue, and that are not effectively remediable by appeal of the final judgment.

So why doesn't the denial of a privilege claim fall in that category? After all, if a party is made to reveal a privileged communication, the communication can't be unrevealed by an appellate reversal years later. The party needs appellate review before revealing the communication.

The Supreme Court's almost-unanimous opinion focuses more on the need to avoid too many piecemeal appeals than on the strict logic of the collateral order doctrine. The Court said that the attorney-client privilege, considered as a whole, can be protected sufficiently by appeal, even if the privilege is wrongly lost in some individual cases. That will be cold comfort to litigants whose privilege is wrongly denied by district courts.

The Court's opinion perhaps makes good policy sense, but it reveals some weaknesses in the official statement of the collateral order doctrine.

Friday, December 4, 2009

Estate Tax Compromise?

You always knew that the Bush plan for the estate tax couldn't possibly be allowed to happen: it first called for estate tax to fall a little, bit by bit, with the exemption raised bit by bit, over a decade, until it got down to 45% in 2009, with a $3.5 million exemption, where it in fact is now. Then it's supposed then to be zero in 2010. Not just lower, not just a higher exemption, but zero, nada, no estate tax at all. But only for people who die in 2010! Then it's supposed to snap back to the old rate of 55% with a $1 million exemption for anyone who dies after that.

Talk about your death panels! The Bush estate tax plan has wealthy parents hiring bodyguards and cancelling plans to invite their kids over for the holidays next year.

Just kidding -- I hope -- but it's certainly true that the plan creates the most perverse economic incentive ever. If your parents are wealthy (and are leaving their money to you), then if they die in 2010, you keep it all, but if they live one extra day, it could cost you millions.

Anyway, that's why I've been saying all along that the estate tax will never go to zero, but neither will it ever snap back to the old rates, which were too high. And now the House has voted to keep the 2009 rates on a permanent basis. Personally, I thought the best answer was a lower exemption and a rate of about 30%, but I'll live with the House proposal -- and hopefully, my parents can now keep living too!

Wednesday, December 2, 2009

Procedures Under Review

In the endless babbling about the White House party crashers (who say that they weren't party crashers), the thing I find most amusing is the suggestion that the Secret Service will have to review its procedures as a result of the incident.

What's to review? Here's my suggestion for procedures:

1. Check if people are on the guest list.

2. If they aren't, don't let them in.

There, I solved the problem.

You're welcome.

Saturday, November 28, 2009

Unanswered Questions Indeed

As the news reports, there are "plenty of questions" after Tiger Woods got in a car crash that sent him to the hospital. According to the story, Tiger hit a fire hydrant and a tree right near his own driveway, and his wife Elin had to smash a rear window with a golf club to get him out.

But the story is asking the wrong questions. "Where was he going at 2:25 am Friday? Why was there no word from the Woods' camp for nearly 13 hours?" That's not what golfers want to know. There's only one question on golfers' minds:

What club did she use?

Wednesday, November 25, 2009

That Holiday Spirit

With the holiday season officially kicking off tomorrow, an interesting decision arrives from the Third Circuit. The question: can a school district adopt a policy forbidding religious music in holiday celebrations, including school concerts?

The South Orange-Maplewood school district in New Jersey adopted such a policy in an effort to achieve religious neutrality. After receiving a complaint from a concerned parent following a holiday concert that included traditional Christmas carols, the district's Director of Fine Arts indicated that schools should avoid music representing any religious holiday of any faith and suggested instead secular seasonal selections of the "Frosty the Snowman" type. Needless to say, this decision raised concerns with different parents, who brought a lawsuit.

Although these kinds of issues have become excessively polarizing, this case has a fairly straightfoward answer, which all the judges (including appointees of Presidents Carter, Clinton, and G.W. Bush) reached. Although the court was handicapped by having to apply the somewhat tangled official doctrines surrounding Establishment Clause issues, the decision follows from pretty basic distinctions.

A school's decision not to have its students present religious music in the holiday concert is different from the decision to have the students sing such music. The school district can hardly be obliged to present religious music in school. If the school district's policy violated the Constitution, it would follow that an individual school's similar decision would too, with the impossible result that every school's choral director would be legally required to present Christmas music in the school concert, not to mention music requested by other religions represented among the school's families.

Of course no one is trampling on a parent's right to have their children exposed to religious holiday music -- and children will get ample such exposure. Just not in the South Orange-Maplewood schools. Just because you have a right to teach your children something doesn't mean you have a right to have the school teach that same thing, if it doesn't want to.

Sigh. I remember my high school holiday concerts fondly, with I and the other Jewish kids cheerfully singing Christmas songs and not worrying about it. The South Orange-Maplewood policy does seem unnecessarily churlish. But it's constitutional.

Monday, November 23, 2009

Finally, I'm Jon Siegel

After several years of trying, I am finally Jon Siegel. Of course, that's always been my name, but that name hasn't always been primarily me. Who decides who has the number one claim to being Jon Siegel? Google, of course.

For quite a while, the primary meaning of "Jon Siegel", as determined by Google, was a certain Jon Siegel, Ph.D. and Vice President (Technology Transfer) of the Object Management Group. Not only does he own (I had to be satisfied with the somewhat less appealing, but he was on the top of Google's Jon Siegel chart for quite a few years. Unfortunately, he had multiple myeloma, a form of bone marrow cancer, but fortunately, his "multiple myeloma blog" reveals that he experienced complete remission several years ago, and today he's still listed on the executive page at Object Management Group.

In any event, while I wish my namesake the best of health, I was happy to see myself creeping up the search results over the past year or two. At first I was hardly even on the first page of a Jon Siegel search (although I was always pretty high in the search rankings for Jonathan Siegel), but things got better and better until I recently became, pretty reliably, the number one result in a search for either Jon Siegel or Jonathan Siegel. I think it's probably the tax pages that helped -- I know they're a little eccentric, but they are the most-visited part of my website.

I'm still only on page 13 of a search for just "Siegel" -- right behind Rosenthal, Siegel & Muenkel, LLP. That's what you get for having a common name, and I have two of them. But at least I own the combination -- for now.

Sunday, November 22, 2009

He Was It

On weekends, even law professor bloggers get to relax and think about less serious topics.

I caught Michael Jackson's new film, This Is It. What a pleasure. Not only is it your chance to see Jackson perform his greatest hits one last time, it's your chance to see a superb craftsman at work.

The film consists of Jackson and his backups and crew rehearsing for the tour he would have performed if not for his untimely death. The film shows that, once you get Jackson away from all of the hoopla, and weirdness, and scandals that surrounded his life, and put him in his true milieu, where he works on doing that for which he was celebrated, no one could match him. Even though he's not giving it his all in this movie, because it's just rehearsal, not actual performance, his dancing is still amazing -- miles ahead of his backups, who are probably more than twenty years younger than him. And he brings and intensity and intelligence to his professional work that you couldn't see in his interviews during life.

In this day of endless parades of not-especially-talented people who are celebrated for being celebrated, or for showing us the "reality" of their lives, it's a pleasure to see someone who truly had the talent to back up his fame. He wasn't the King of Pop for nothing.

Friday, November 20, 2009


The University of California has put faculty and staff on furloughs amounting to an average 8 per cent pay cut, and yesterday voted to raise student by 32 per cent.

That's a huge increase. It's worth noting that, even after the increase, UC tuition will still be a bargain at $10,302 -- my own university charges a whopping $41,610 for undergraduates -- but still, a 32 percent increase in any price has to cause some severe sticker shock.

Professors have a funny relationship with tuition. On the one hand, I am stunned by the tuition my law school charges -- $42,205 -- and I feel we should at least show some restraint in increasing it. On the other hand, it pays my salary. My school doesn't have that big an endowment, so we are primarily tuition-dependent. If we want to restrain tuition increases, we have to restrain my salary too. So I'm caught in a conflict of interest.

Professors also have a funny relationship with furloughs. Thankfully, we don't have any at my school, but I wonder how professors at state schools are managing. An 8 per cent furlough presumably means that they're being instructed to take about 20 days off a year. (Apparently the actual number ranges from 11 to 26, with higher-salary employees expected to take more.) But given the way professors work, days off are pretty meaningless. We already have considerable control over our time -- apart from time when we're required to be in class, we work as much as we want to and take days off when we want to. I hasten to add that for most of us, including me, that ends up meaning working almost all the time, but the point is that getting extra time off doesn't take the sting out of a furlough. It's not like getting unpaid vacation time, it's just unpaid work time.

Of course, the life of a professor is so good that it's churlish to complain that furlough days probably won't actually get taken. I'm not expecting any sympathy with the fact that we already have so much flexibility that it's meaningless to give us more. But still, an 8 per cent pay cut has to hurt. My sympathies go out to the UC students and faculty.

Wednesday, November 18, 2009

Yes, Virginia, There is Law in Cyberspace

One annoying feature of Internet law is "Internet exceptionalism" -- the assumption that everything must be different if it's on the Internet. For example, as CNN reports, Courtney Love is being sued for sending a defamatory tweet out on Twitter (she accused a clothing designer of being a drug dealer). CNN claims that the suit confronts "new and unaddressed areas of American law."

Hardly. Look, there have always been lots of different ways of spreading defamatory messages. The Marquess of Queensbury left his calling card with a porter for delivery to Oscar Wilde, and wrote on the card, "To Oscar Wilde posing as a somdomite [sic]." Because the Marquess wrote this allegation down, because the porter saw it, it was a public libel. The law deals with such things.

The Internet is exciting and new, but there is nothing "new and unaddressed" about the notion of being responsible for written defamatory statements. The statements can be in books, newspapers, letters, on calling cards, or, yes, on the Internet. Accusing someone of commiting a crime is libel per se. "I only did it on the Internet" is no defense. Let's stop imagining that everything must be different in cyberspace.

Monday, November 16, 2009

The Future of War

Yesterday, I heard a RadioLab show featuring a survey question that journalist and teacher John Horgan has been asking people: will humans ever permanently stop fighting wars?

Horgan believes the answer is yes, even though the great majority of his survey respondents disagree. I have to disagree too. It seems to me that the answer arises from a game theoretical approach.

The higher the percentage of humans who stop fighting wars, the more advantage, I would think, would accrue to those who are prepared to keep fighting them. If 95% of humanity gives up war, the remaining militaristic 5% would have a big edge.

Will the 95% forever keep a standing army big enough to deter fighting from the remaining 5%? And never use it? Hard to believe.

Wednesday, November 11, 2009

Death Penalty

John Allen Muhammad, also known as the D.C. Sniper, was executed yesterday. I have to say that I don't particularly care.

On the one hand, there are certainly some good arguments against the death penalty. Most notably, there is the disturbing possibility that it results in the execution of the innocent. Given the number of innocent people convicted of crimes, it seems likely that at least some innocent people get executed. Execution is also very expensive -- the death penalty can add hundreds of thousands or even millions of dollars to the cost of a case, and it could be difficult to reduce that amount substantially without increasing the risk of an incorrect result. (There's an argument that should appeal to conservatives -- instead of arguing the injustice or immorality of the death penalty, its opponents should try to portray the death penalty as just another big, expensive, mistake-filled government program.) I wouldn't have been bothered to learn that Muhammed got a life sentence; I don't feel some strong need to have him die.

On the other hand, I have always felt that the amount of attention and opposition the dealth penalty receives is excessive, particularly in relation to the number of people it affects. In the entire period from 1976 to 2005, 1000 people were executed in the United States. That's about 33 people per year. Meanwhile, car accidents kill over 40,000 people per year, and tobacco kills over 400,000 people per year -- in the United States. Yes, death penalty deaths are different in character, but in the grand scheme of things, I think activists might do better to devote their time and energies to a cause that affects more people.

And in any event, if we are going to have the death penalty, it seems that Muhammed is the kind of person who should get it. There didn't seem to be any doubt about his guilt, and his crime involved terrorizing society and killing multiple people for monetary reasons. So while I wasn't feeling a strong need for him to die, neither do I find it especially disturbing.

Monday, November 9, 2009

Course Evaluations

My faculty voted on Friday to change the course evaluation form that we ask students to fill out. It's a small thing, but that didn't stop us from debating it for nearly two hours.

The length of the debate partly reflects our idiosyncratic love of long meetings -- we seem to have a Law of Conservation of Meeting Length, so that we find something to discuss regardless of the actual magnitude of a proposal's importance -- but it also reflects the fact that, although a change in the course evaluation form may seem trivial, it can actually have subtle and important implications.

For example, we voted to ask students to rate professors on their "ability to present the subject matter in a clear and organized manner." That seems pretty straightfoward, and it won't bother me, because the students have always regarded my teaching style as clear and organized. But what if a professor believes that the essence of the Socratic method is to revel in the ambiguities of the subject matter and to require the students to figure out the answers for themselves, with no clear guidance from the instructor? I can certainly remember professors who ran their classes that way. (Although I may be giving them too much credit for thinking about their teaching styles -- perhaps they were just intrinsically unclear and disorganized). They will be disadvantaged.

Also, we deleted an inquiry about the professor's "enthusiasm." That seems to me to be an important component of good teaching. I was sorry to see that one go.

So while it might hardly seem worth debating, the centralized choice of the specification of the components of good teaching actually has subtle but important impacts on academic freedom. Maybe our debate was worth it after all.

Another Guest Slot

Having come off my guest appearnce at Concurring Opinions, I'll be spending this month guesting at PrawfsBlawg. Faithful readers can follow me here or there.

Wednesday, October 28, 2009

Counting Up

Republican Senator David Vitter proposes that the U.S. Census should count citizens only. Traditionally, the census counts all persons living in the U.S., whether they are citizens or not. Because the census is used to apportion the House of Representatives, Vitter's proposed change in practice would have a marked impact on the makeup of the House. States with substantial noncitizen populations (most notably California) would lose; other states would gain.

Vitter says that counting noncitizens would "strip these states [the ones that would stand to gain from his proposal] of their proper representation in Congress." You might think that Vitter would avoid references to stripping, but that's another story.

I have to confess that my first reaction was surprise that the census traditionally counts noncitizens for apportionment purposes. Of course we want to have the count of everybody, because that's important information for a lot of purposes, but the main purpose of the census is to apportion the House, and for that purpose my first instinct was that only citizens would count. After all, shouldn't the size of a state's congressional representation depend on how many actual voters a state has? If two states each have 1,000,000 citizens, but one of them has an additional 250,000 noncitizens who can't vote, don't we really care about the voting populations?

But on further reflection, the matter isn't quite so simple. If you think about it, Senators and Representatives represent a whole lot of people who can't vote. Children can't vote, but no one would suggest leaving them out of the census, even though including them disadvantages states with disproportionately adult, and therefore voting, populations (Florida?). In some states, convicted felons can't vote, but they count in the census too.

You might say that these examples don't carry over to noncitizens because at least children will someday be able to vote, whereas noncitizens will never be able to vote. But in fact many noncitizens will be able to vote someday -- a lot of them are legal permanent residents who are working their way toward citizenship, and therefore toward voting rights. Even illegal immigrants might be able to vote someday if Congress regularizes their status.

So, given that all politicians represent lots of people who can't vote, and given that many noncitizens will, like citizen children, be able to vote some day, I conclude, in the end, that counting everybody makes sense. I wouldn't go so far as to say that it's constitutionally required. The Constitution says that the census shall be conducted in such manner as the Congress may direct, and I could see a rational basis for Congress to conclude that only eligible voters, or perhaps even only citizens, should count for apportionment purposes. But on balance the traditional practice of counting everybody seems correct.

Saturday, October 24, 2009

Lost in Space

The bizarro story of the week was two pilots on a commercial airplan overshooting Minneapolis airport by 150 miles before turning around and landing safely. They were out of touch with ground control for over an hour.

What gets me is this: ground control tried numerous times to contact the pilots, including sending them text messages, but were unable to get their attention. Putting aside the question of what happened -- whether the pilots were asleep or distracted by an argument or just doing something innocuous that they can't go into -- why doesn't ground control have the ability to make a really loud noise in the cockpit? There's something in the cockpit that says "TRAFFIC!" loudly when the plane gets too near another plane. Why doesn't ground control have a button they can press to say "HEY DUMMIES, PAY ATTENTION TO US!" when necessary?

Wednesday, October 21, 2009

Disturbances in the Blogosphere

The FTC recently churned up the blogosphere by releasing new “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that indicate that bloggers — bloggers! — have a duty clearly and conspicuously to disclose whether they have a “connection,” such as the receipt of free product, with the makers of products that they endorse. (See particularly section 255.5, Example 7.) We thought that we were just posting stuff on our blogs, but suddenly it’s a federal matter.

Like most bloggers, I believe in freedom to blog, but I have to say I think the FTC has a point. The FTC’s statutory mandate is to stamp out “unfair methods of competition . . . , and unfair or deceptive acts or practices in or affecting commerce.” This venerable proscription should apply to new media as well as to old. The Internet is new and cool, but deception over the Internet is still deception. Deception on a blog is still deception.

If you’re representing yourself as a source of unbiased information about consumer products but (to take the simplest case) you’re actually getting paid by someone to say something nice about their products, there’s some deception going on. Whether it’s deceptive not to reveal that you’re reviewing a product that you received for free because you’re known to be an influential reviewer is a closer question. I expect magazine reviewers get free stuff all the time, but they don’t necessarily reveal it conspicuously, precisely because it’s already keyed into our assumptions. If the proscription against deception carries over to new media, the assumptions that mitigate deception should carry over too. So it’s ultimately a question of fact whether people assume bloggers get free stuff. But the basic point that it should be as unlawful to use a blog to deceive as to use anything else for that purpose is sound.

Also churning up the blogosphere is the opposite trend — the consumer use of blogs and other Internet avenues to say not-so-nice things about products and services they received. Usually big corporations have an edge in battles with consumers, but the Internet levels the playing field somewhat in this regard — the manufacturers and service providers have to be concerned about the ability of one dissatisfied consumer to communicate the problem to millions.

Let me join both trends at once. I recently redid my kitchen, and got all-new KitchenAid appliances. I’m sensitive to noise, so I carefully investigated the noise levels of the refrigerator and dishwasher, and they’ve turned out great. (FTC-Recommended Full Disclosure: I didn’t get a dime for saying that but I would be happy to accept an appropriate fee. KitchenAid, call my agent.)

But the oven! Would it even occur to you to check whether an oven might make too much noise, or, indeed, any noise at all? Well, my consumer friend, I want you to know that if you’re thinking of buying a KitchenAid range, you’d better check into it. Every time you switch on the oven (on my model at least), a fan comes on — quite a noisy fan, too, in my (admittedly sensitive) estimation. And it stays on the whole time you’re cooking. The purpose of this fan, I learned from a quite unapologetic KitchenAid representative, is just to cool the range’s electronic instrument panel. There’s progress for you — first they install a souped-up electronic panel you don’t really need (what was wrong with knobs, exactly?), and then they have to add a noisy fan so the panel won’t overheat.

The range had to go. I knew I couldn’t live with that fan noise, so I set out on a search for a range with a quiet oven. But it turns out to be impossible to search, because you can’t listen to ovens in stores — they’re not connected up. And they’re not rated for noise either. There’s no way to tell whether an oven is noisy short of buying it and installing it. After calling every appliance store for 50 miles around, I finally found a knowledgeable salesman who recommended GE Profile, and (after spending just a few hundred bucks to get the countertop reconfigured) I got a GE Profile Double Oven, which, thank goodness, is much, much quieter. So that’s what I recommend.

And I didn’t get a dime for saying that either.

Friday, October 16, 2009

Fire -- Good or Bad?

Today is the 175th anniversary of the Great Fire of 1834, which destroyed most of the British Parliament buildings. A vivid audio description, by the Parliament’s current Clerk of the Records, can be found here.

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century. In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire. But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department. On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part of the heating system of the House of Lords. About 4 pm that afternoon, the deputy Housekeeper, Mrs. Wright, was conducting some visitors through the Lords chamber, and the visitors noticed that the floor was hot and had smoke seeping through it so thickly that they couldn’t see their hands in front of them. But she did nothing.

By 6 pm, the House of Lords was on fire. Through the night, the fire spread to the House of Commons chamber, the Commons Library, and other Parliament buildings. Heroic firefighting action by fireman, soldiers, and private citizens saved Westminster Hall.

Obviously the fire was a terrible, devastating event. But it did have consequences that some might regard as beneficial. Even as the fire occurred, Augustus Charles Pugin, an architecht, rejoiced that later additions to the Parliament buildings, which he regarded as ruining the original medieval structure, were finally gone.

And there is something else too. I became familiar with the 1834 fire when researching my forthcoming article, Law and Longitude. The article is a legal analysis of the controversy occasioned by the Longitude Act of 1714, which established a public prize for the discovery of a method of finding longitude at sea. (If you’ve read Dava Sobel’s delightful book, Longitude, you know all about it.)

Much of the controversy concerned the proper interpretation of the Longitude Act, and, in accordance with modern interpretive practices, I wanted to research the Act’s legislative history. But I couldn’t! The history was destroyed in the fire, except for such small portions as were preserved in the official Journals of the House of Commons.

Today there is, of course, a lively controversy about the use of legislative history in statutory interpretation. But one thing is certain: courts couldn’t use legislative history if the history were destroyed. Then we would be compelled to live in the textualists’ ideal world, in which we could only look at the text of the statute and try to determine what it means.

If you had the choice, would you put all legislative history to the fire?

Tuesday, October 13, 2009

Curricular Reform Revisited

Another Concurring Opinions visitor, Spencer Waller, yesterday offered this post in response to my recent post on curricular reform. Spencer agrees with my basic idea while challenging the usefulness of spending quite so much time on personal jurisdiction in civil procedure.

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments. So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

The basic idea of my previous post was that the amount of time devoted to a subject in a law school course does not have to be proportional to the amount of time students will spend on that topic in their actual practice — if that was required, civil procedure would be primarily about discovery practice with much less time devoted to personal jurisdiction and Erie. My reason was that law school is not so much about learning particular skills and knowledge as it is about acquiring the ability to acquire skills and knowledge.

This basic thesis came in for a lot of critical comments. “Mike” and “shg” kicked things off by suggesting that I was in the wrong job and that I was making my students suffer by teaching a philosophy of law course instead of giving students the skills they need to become lawyers. Mike said that “In Civil Procedure, we should have learned the Federal Rules of Civil Procedure as they are actually applied,” which means “a lot of mundane memorization and synthesi[s] of many inter-related rules. That’s it.”

I disagree with these comments, particularly with the suggestion that students only need a lot of mundane memorization of rules and “that’s it.” There are many reasons for this.

Real practice is not just about mundanely applying rules. In my own practice of law, prior to entering academia, I was constantly amazed at how frequently, in routine situations that must arise every day, the law was utterly unclear. As a real practicing lawyer, I was constantly called upon to sort through conflicting opinions as to what the applicable rule was. No amount of memorization could have helped me. It was up to me to discern the rule from, and argue for the rule based on, conflicting authorities. That is the skill students acquire from considering matters from a more doctrinal, policy-oriented, and theoretical perspective.

The law also changes all the time. Suppose, in teaching civ pro ten years ago, I had avoided all theory and had just required my students to memorize the rules and requirements for complaint drafting as they existed at that time. The Supreme Court recently blasted those requirements to smithereens in Twombly and Iqbal. Now what? Oh, you say, the student (now the lawyer) will now just rote-memorize the new rules. But how is the lawyer to know what the new rules are? Everyone’s still struggling to interpret the Supreme Court’s pronouncements. The lawyers who will gain an advantage by knowing the new rules are not going to be rote rule memorizers, but those who are best able to discern the new rules, which requires not just reading them from the opinions (because there is widespread disagreement as to what the opinions means) but a fine sense of how the opinions fit with the whole subject of civil procedure and what the trend is. It requires skills not available to rote rule-memorizers.

A student who has done nothing more than memorize a set of rules is not going to be well positioned to understand and memorize new rules. That takes the skill of knowing how to acquire knowledge. The student who has the latter skill can learn the rules that become relevant in the student’s actual practice after graduation, but someone who has done nothing but memorize rules will be ill suited to handle the changes that constantly come up.

This point also addresses another commentor’s question, about why I thought it important for students to understand how legal change interacts with social change (I observed that personal jurisdiction provides an excellent illustration of this point). Lawyers need to know this because the law is not static. A lawyer’s duty to the client includes anticipating where the law is going, because it might be going there right now. A lawyer needs to understand how legal change interacts with social change because that process might be occurring right now in connection with a matter the lawyer is handling.

Of course, this whole discussion is somewhat unrealistic, just as the comments on my post were unrealistic to imagine that I don’t teach my students rules. It is unrealistic to imagine that anyone is either solely a rule-memorizer or solely a theoretician. A class must include both. As my old civil procedure professor, Harold Koh (now legal adviser to the Department of State), used to say, you have to consider the law on multiple levels — five levels, in his view. You need to have actual clinical practice skills, you need to know the black-letter rules, you need the doctrine and policy that underlie the rules, you need a theoretical and interdisciplinary perspective, and you need a critical perspective. All of these come into play in actual legal practice, and I teach all of them in my course, including a lot of black-letter rules and practice pointers. But theory is an essential part of the picture.

Finally, as any teacher can tell you, a successful teacher must inspire interest in and love for the subject. Some commenters on my previous post complained about those who have never practiced law but who imagine they can teach it. Well, I have practiced law quite a bit, but let me complain about those who have never taught law and who imagine that they could teach it. Let’s have one of you come in and teach a class that consists of nothing but having students memorize mundane rules about civil procedure, and I’ll teach my class, which inspires students to love civil procedure. We’ll see whose students actually learn more. I predict that all of the other class’s students will be asleep and won’t learn much of anything except how to hate civil procedure.

Now, with all of that under our belts, let’s turn to Spencer Waller’s post. Spencer makes the good point that a focus on litigation procedure (not, as I understand him, a mundane rule-memoriazation focus, but more emphasis on that part of the course) rather than personal jurisdiction might be better tied to actual litigation today and might lead to a better understanding of the litigation process. I am not wholly wedded to our customary fascination with personal jurisdiction and Erie and would be open to rethinking things. (Although actually, at my law school, Civ Pro is divided into Civ Pro I and Civ Pro II and we have to adhere to general understandings of what goes in which part, because students may have different professors for the different parts of the course.) But even if I altered my overall time allocations, I wouldn’t alter my overall approach, which would still devote time to policies, doctrines, and critical and theoretical perspectives, rather than having nothing but rule memorization. Even if I increased my focus on discovery, the course wouldn’t be about memorizing every facet of every discovery rule. There would be some of that, but more doctrinal and theoretical analysis of discovery rules.

In my view, a course that was nothing but rote memorization of discovery rules would be the course that would really make the students suffer.

Thursday, October 8, 2009

At a Loss for Words?

Nobel laureate Herta Mueller was "at a loss for words" when she learned that she'd won this year's literature prize.

Not to be snarky or anything, but shouldn't the literary prize winner be particularly good at finding the right words?

Tuesday, October 6, 2009

Legal TV Review

I don’t watch much TV, but I will admit to enjoying “House.” “Polite Dissent,” an engaging blog by someone with medical knowledge, publishes a useful medical review of each House episode, which runs down the medicine in each show and notes the medical errors committed each week. But what House really needs is a legal review. Because really, whatever medical errors they commit, House and his team also commit almost unbelievable torts and crimes on a regular basis.

CAUTION: Many spoilers ahead.

House and most of his team belong in jail for lengthy terms. But it almost never seems to occur to anyone on the show that their blatantly illegal behavior might have actual consequences.

* A major theme of the show for a long time was how House and his whole team break the drug laws to get House the Vicodin he was addicted to because of pain in his leg. The possible consequences were at least explored over several episodes, but the whole team shows great disregard for drug laws.

* House routinely has his team break into his patients’ (and each others’) homes for diagnostic purposes. These crimes seem particularly bizarre since I expect most of the patients would consent to having their homes searched if told that a search is needed to help them, since almost all of them are in desperately ill condition. House seems to get a thrill out of doing things illegally even when it isn’t necessary.

* When Foreman was ill with a probably deadly disease that the team was unable to diagnose, he deliberately infected Cameron with it so that she would have an incentive to investigate in the way he thought would be helpful. Foreman was in a tough spot, but I don’t think he’d get out of a pretty serious criminal charge. He might not have committed attempted murder (he didn’t actually intend Cameron to die), but it was a pretty serious assault or battery all the same. And if she had died, he could certainly have been up for murder on a “depraved indifference” theory.

* On multiple occasions, House has kidnapped people in order to treat them. In yesterday’s episode, he drugs someone in his (the patient’s) own home and ties him up with duct tape. He had good motives, but you can get 50 years for that kind of thing.

* When a man with a gun takes House and numerous patients hostage to force House to diagnose him, House eventually convinces the man he has to give up the gun to get an MRI (the MRI won’t work with the metal gun inside). But then when the MRI fails to solve the medical mystery, House gives the man back his gun so that the hostage standoff can continue long enough for House to come to a diagnosis. I’m sorry, but at that moment House became an accomplice to kidnapping. Another 50 years.

* In this season’s opener, House spirits a mental patient away from the institution in which he is staying and feeds his perception that he is able to fly. The patient then jumps out of a building and is severely injured and perhaps permanently crippled. Even if this one wasn’t necessarily another kidnapping, it’s amazing that no one says to House, “wow, are you ever going to get sued.”

*Foreman, temporarily put in charge of the diagnostic team because House has temporarily lost his medical license (not for any of the above crimes!), fires his girlfriend Thirteen from the team because he feels that having her work for him, instead of with him, will be damaging to their romantic relationship. Ding ding ding! Can anyone say “Title VII violation”?

* Finally, in yesterday’s episode, Chase deliberately and with clear malice aforethought produces a fake blood test so that a patient will be treated for the wrong disease and will die, because Chase thinks that will be best for the public good (the patient is a dictator who, Chase believes, is going to commit genocide on a segment of his own population, even though the patient claims he’s taking necessary action to protect his nation’s security from internal enemies). Putting aside the question of whether Chase’s amateur diplomacy is likely to help (Chase has very limited knowledge of the actual situation in the dictator’s country, and who knows what would really happen after the dictator’s death — it might lead to peace or it might lead to even more bloodshed than if the dictator carried out his plans), it’s as clear-cut a murder as one might desire. Foreman then becomes Chase’s accomplice by destroying evidence.

Based on the preview for next week, it looks like the show is at least going to have a little exploration of the question of what should happen when one of the team commits a murder. Well, good for them, because most of the time the characters seem to live in a law-free bubble, in which they get to do anything and everything without legal consequences.

Some doctors don’t like House because they don’t like the way the show glorifies “disruptive physicians.” They claim it’s unrealistic in that regard. What really seems unrealistic to me is the way the characters commit constant crimes and torts and nothing comes of it. The show obviously has some doctors consulting on the scripts — couldn’t they hire at least one lawyer (sheesh, I’m available) to give basic advice so that the show is not so legally absurd?

Monday, October 5, 2009

First Monday

It’s the first Monday in October, the day when the Supreme Court begins its annualTerm. You can enjoy previews from Adam Liptak of the NYT and Nina Totenberg on NPR.

Totenberg’s piece reveals the amusing distress the Justices are feeling over the appointment of a new Justice. “You quickly get to view the court as composed of these members, and it becomes kind of hard to think of it as involving anyone else,” says Chief Justice Roberts. “We had a long run together. And you get comfortable with that, and then it changes,” according to Clarence Thomas.

Oh, the poor bubbies! Life must be tough when all you have is a lifetime appointment to the nation’s highest court. I mean, a few times in your career, you have to put up with a new Justice! Imagine that. Maybe we should bring them tea and cookies and their favorite blanket.

The hottest case on the new docket (apart from the campaign finance case that was specially argued in September) is probably the Chicago gun case, which will test whether the recent ruling in District of Columbia v. Heller that the Second Amendment creates an individual right to bear arms applies to the states as well as the federal government.

It will be interesting to see how this case plays out, because it tugs in the opposite direction from the usual ideological lines. A ruling for the plaintiff would require holding that the Second Amendment, which originally applied only to the federal government, is “incorporated” into the Fourteenth Amendment and so applies against the states as well. You would expect the conservatives, who normally believe in states rights, to be the ones most opposed to incorporation, and the liberals, who are more amenable to expansive federal power, to be for it. But somehow I’m guessing that’s not how it will turn out.

As I observed in some previous posts on the Heller case, the same could be said of Heller itself. Liberals are usually more amenable to ruling in favor of individual rights and conservatives more to ruling in favor of the government — but not when it comes to guns. Instead, we see a drearily predictable ideological lineup, and not even based on general ideology, but on the ideology of the precise issue. It will be interesting to see if even one of the Justices can vote against their ideological predilictions on this new case.

Thursday, October 1, 2009

Celebrity Legal Claim of the Week

Those celebrities just can’t stay away from strange legal theories. After Roman Polanski claimed last week that his sex crime should be excused because he’s a great artist, Jon Gosselin, former star of “Jon & Kate Plus 8,” is now claiming the right to exclude television crews from the home he owns jointly with his wife.

Jon Gosselin and his wife had a “reality” TV show about their life with their eight children. But now they are estranged, and Jon recently got fired from the show, which is to be renamed “Kate plus 8.” Not taking this lying down, Jon has demanded that TLC, the network filming the show, stay out of his house. If they enter to film, he claims he’ll have them arrested as trespassers.

Sheesh, if I were TLC’s general counsel, I would tell Jon, “ooh, we’re scared.” How about some basic property law? Every law student knows that joint owners of property (known in property law as “joint tenants” or “tenants in common”) each own an “undivided interest” in the whole property and each has a right to occupy the property without the consent of the other. Heck, each of them has a right to lease the property without the consent of the other.

In 1861, the California Supreme Court considered the case of a lessee who had leased property from a joint owner and was then asked to leave by the other joint owner. The Court said, “We have no doubt that one tenant in common may occupy the common premises, and as little that he may permit another person to occupy a part of them; and it is impossible for us to see how that tenant in common could sue such person, so lawfully entering or occupying, as a trespasser, or how his cotenant could maintain such suit.” Ord v. Chester, 18 Cal. 77 (1861).

More recently, a California court considered a case quite like the Gosselins’: an estranged husband and wife jointly owned a home, which the husband leased to a third party. The wife showed up and tried to oust the lessee. The court said: “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common. . . . When a joint tenant leases to a third party he confers upon the latter the same right of possession that he himself has.” Verdier v. Verdier, 152 Cal.App.2d 348, 313 P.2d 123 (1957).

If one of the estranged spouses can lease the property without the consent, and indeed over the objection, of the other, then either can certainly invite guests onto the property without the consent and over the objection of the other.

So if I were TLC, I would tell Jon to get lost. Kate’s permission is all they need.

Tuesday, September 29, 2009

Polanski's Ancient History

Much ado about the arrest of film director Roman Polanski on a 32-year-old charge of having sex with a minor. French Culture Minister Frederic Mitterrand says that it doesn’t make any sense to “throw him to the lions” because of “ancient history.” Some opinion writers go so far as to term his arrest “outrageous.” Others think it was the right thing to do.

Let’s regain our bearings here. Mr. Polanski, according to news accounts, gave champagne and drugs to a 13-year-old girl and then had sex with her. This is no mere technical, statutory rape — it’s not a case of some 19-year-old boy having consensual sex with his 17-year-old girlfriend. This was a bad act indeed. He pled guilty to a reduced charge and then fled the country when it looked like a judge was not going to go along with a plea bargain that would have had Polanski serving just 42 days in jail. Trying to pass this off as “ancient history” seems a bit much. If we imagine that Polanski were not a famous film director, but some everyday, middle-aged lawyer who seduced a neighbor’s 13-year-old daughter with alcohol and drugs and then had sex with her, I can’t imagine that there would be a lot of sentiment on his side.

As far as I can make out, some people think Polanski should be let off because (a) he’s famous, (b) he’s a great artist, (c) he’s been through a lot in his life, (d) it’s been a long time since he committed the crime, (e) the victim has forgiven him and would rather the whole thing just went away, and (f) there was some governmental misconduct in the initial proceedings.

I would hope we could agree that (a) and (b) are irrelevant. We’ve endured a spate of celebrity crimes. Celebrities don’t have a license to break the laws that the rest of us have to live with. The law should be enforced even-handedly. Of course, the law is generally more lenient on first-time offenders than on habitual criminals, so Polanski is entitled to the same break that any first-time offender who is generally a good person would get. But no break for being a famous artist.

(c) could be relevant — we have taken to considering a defendant’s harsh upbringing when passing sentences — but it doesn’t get him wholly off the hook. At most it gets him a reduction.

(d) is not wholly irrelevant, but it’s mostly Polanski’s own fault. The matter could have been resolved 32 years ago if he hadn’t fled the jurisdiction, and he could have come back to face the music any time.

(e) is also not wholly irrelevant, but it’s not just the victim who needs protection; it’s also other 13-year-olds who need protection from other adults, including other adult celebrities.

(f) is relevant but the judge who engaged in the irregular proceedings has died and another judge will now be making the decisions about Polanski’s fate (assuming he gets extradited). So this issue is reduced.

I conclude that Polanski should face the music. Again, if some 40-something accountant you hadn’t heard of seduced a 13-year-old girl with alcohol and drugs and then had sex with her, and then skipped the country, I don’t think we’d be arguing about whether it’s unfair to catch up with him later and throw him in jail.

Wednesday, September 23, 2009

Curricular Reform

Professors on the Civil Procedure professor listserv are debating the recurring question of why we devote so much energy to topics that come up only rarely in practice, particularly personal jurisdiction and Erie. Some are suggesting that the civil procedure curriculum should be much more practice oriented, which would mean spending a lot less time on these subjects and more time on what most lawyers actually do in practice, particularly discovery.

I think it is an error to imagine that the law school class time devoted to a particular subject needs to be proportional to the time students will spend on that subject in actual practice. Law school is partly about acquiring particular skills and knowledge, but also, and probably more, about acuqiring the ability to acquire skills and knowledge. We will never teach the students all they will need to know as they practice law, but we can teach them how to learn what they need to know.

The amount of time devoted to personal jurisdiction and Erie in many Civ Pro classes makes little sense in terms of the practical importance of those topics in typical litigation. But personal jurisdiction provides a lovely illustration of the process of legal change over time that students can appreciate as the law they learn changes over the course of their careers, and Erie provides an illustration about how imoprtant theoretical issues relating to federalism impact practical doctrines. The students need to know how to appreciate the ways in which legal change interacts with social change and the ways in which theory impacts doctrine just as much as they need to learn what Rule 26 says about discovery and disclosure.

Tuesday, September 22, 2009

Lieutenant Governor Ravitch Indeed

A fascinating turn in the saga of New York Governor David Paterson’s attempt to appoint a Lieutenant Governor: New York’s highest court, the Court of Appeals, has upheld it! Reversing prior decisions, the court holds that the Governor of New York is empowered to appoint a Lieutenant Governor when that office is vacant.

For those just tuning in, NY Lieutenant Governor David Paterson became Governor when the previous Governor, Eliot Spitzer, had to resign admist a sex scandal (this factoid was discreetly left out of the judicial opinions, but we bloggers get to put it back in). The post of Lieutenant Governor was then vacant — which was no big deal until the NY State Senate had a deadlock crisis that occurred because some Democrats switched to supporting the other side for control of the Senate. The Lieutenant Governor is supposed to break ties in the state Senate, but there was no Lieutenant Governor! So there was a crisis.

To break the deadlock, Governor Paterson wanted to appoint a Lieutenant Governor, but did he have the power to do so? Section 43 of the state Public Officers Law appeared to give him the power to appoint a replacement for any vacant office not otherwise provided for, so he picked Richard Ravitch to fill the slot.

But that just started the ball rolling. Lower courts held that Section 43 didn’t apply to the post of Lieutenant Governor, and they blocked the appointment. Finally, today, the matter fetched up in NY’s highest court, and that court has approved the appointment.

I remarked before that it’s difficult to opine on this case without scouring all of New York’s constitution and statutes. And boy, is that right. Every time you think you understand the issue, yet another relevant provision turns up and needs to be considered.

But having read the majority and dissenting opinions (the vote was 4-3), I’m sticking with my most recent view (which was a change from my initial view). I think the dissent has the better of it.

Section 43 doesn’t provide for the Governor to fill vacancies; he only gets to appoint someone to “execute” the powers of the office until the vacancy is filled by election. In the specific case of the Lieutenant Governor, the constitution itself (Art. IV, s. 6) provides that the President of the state Senate shall “perform” the powers of that office. We can’t have one person “executing” the powers of the office while another “performs” the powers of the same office. So the constitutional provision trumps the statute.

The majority makes the good point that the constitution provides that the legislature shall provide for filling vacancies in office, so it interprets section 43 as providing for filling the vacancy in the LG office even though that’s not exactly what it says. Which would be a pretty good argument, except that the constitution (Art. XIII, s. 3) provides that people appointed to fill vacancies can serve only until the next annual election, but it also provides that the Governor and LG specifically can be elected only simultaneously and quadrenially (so as to avoid having them be from different parties).

So while it’s a close case, and both sides have good arguments, I would say the better view is that the LG post is excepted from the vacancy-filling appointment process.

One thing is clear: as state Senator Dean Skelos says, the legislature should revise the confusing web of interlocking statutes that govern this area, and make clear its desire as to whether the Governor can appoint a Lieutenant Governor or not.

Monday, September 21, 2009

Czar Wars

Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House. These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation. Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers. Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.

Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong. As Rivkin and Casey point out, the President can get advice from whomever he wants. He could get all his advice from me if that’s what he wanted to do. He doesn’t need Congress’s permission to seek anyone’s advice.

Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.” But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that? The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example). But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what?

Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so. Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me. Everyone else who serves at my pleasure, do what Joe Biden tells you to do.” Could there be anything wrong with that? I think not.

And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs. So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”

So I think Hutchison is wrong to suggest that there’s a constitutional problem. Of course, whether having so many czars makes sense as a public policy matter is a different question.

And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars. I’m not so sure about that. If the President wants to seek my advice, Congress can’t stop him. But if someone wants to be on the federal payroll, then Congress is footing the bill. If Congress wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so. The President has a lot of power, but the power of the purse is pretty potent, too.

Sunday, September 20, 2009

Sunday Poll

Q. Did you participate in International Talk Like a Pirate Day yesterday?

A1. Arrr, be sure that I did, me hearties!

A2. Nay, ye scurvy scoundrel!

Wednesday, September 16, 2009

Watch What You Say

Excellent article by Olivia Judson in the NYT about how British libel law impacts science journalism. A British science journalist is being sued by the British Chiropractic Association for writing that the association “happily promotes bogus treatments.” A judge has ruled that the author’s use of the word “bogus” implied that the members of the BCA were not only promoting ineffective treatments, but treatments that they know are ineffective. And that’s a statement of fact that might be libelous.

The case illustrates a clash between important principles. On the one hand, it’s important to get the word out to the gullible public that they are being taken in by ineffective products, including — indeed, especially including — medical products. I am frequently amazed at how people (including otherwise intelligent people) can fall for things such as those “homeopathic” products in which the allegedly effective ingredient has been diluted to the point where there is not likely to be even a single molecule of it left in the medicine the patient is supposed to take. It’s important to educate the public about such things. (Magician James Randi has dedicated decades to this effort.)

On the other hand, even a thief can complain if he is wrongly charged as a burglar. (Jackson v. Virginia, 443 U.S. 307 (1979).) If people are promoting products that they honestly, but mistakenly, believe to be effective, it does seem libelous (although I’m not expert in libel law) to assert that they are deliberately engaging in fraud.

My snap judgment on this case is that the problem lies not so much in the rule as in its application. I would say the judge erred in determining that the word “bogus” necessarily implies that the author is accusing chiropractors of deliberate fraud. To me, the word “bogus” implies only that the treatments in question (and the article wasn’t a blanket condemnation of all chiropractic treatment, but only of claims that such treatment can cure certain, specified conditions) were in fact ineffective, whether or not the doctors performing them thought so. Indeed, in the context of the full paragraph, it seems that the word “bogus” might have meant even less — only that the value of the treatments was unsupported by evidence.

According to the OED, “bogus” means “Counterfeit, spurious, fictitious, sham.” I don’t see the necessary implication that people promoting bogus things know that they are bogus. So without reaching the question of whether free speech trumps libel law in this kind of situation I think I would have determined that the critical sentence wasn’t as fraught with meaning as the judge thought.

Tuesday, September 15, 2009

Modern English Usage

On the way back from teaching class today, I passed two women students in the hallway, one of whom was saying to the other, “I was in the same situation. But I manned up.”

Do women man up? I was interested to learn that they do.

Your Tax Dollars At Work

The New York Times reports today that people who suffer from ALS (Lou Gehrig’s disease), and who require a technological device to assist them with speaking, may be able to get their insurers to spend $8,000 for a Medicare-approved, dedicated computer that has all functions other than speech assistance disabled, but they can’t get an insurer to spend $450 on an iPhone with a speech app. Medicare won’t approve iPhones because they can be used by people who aren’t ill. (Strictly speaking, it’s up to private insurers to decide what to do, but many of them follow Medicare’s lead, according to the article.)

This sure sounds like a classic example of excessive “command and control” regulation where a “standards” based regulation would serve everyone better. If an insurer will cover specific device at a certain costs, I’m hard pressed to understand why the insurer and its patients won’t be better off if the insurer approves any cheaper device that performs the same function. Could this be some of the “waste, fraud, and abuse” that President Obama hopes to squeeze out of the health care system?

I suppose insurers are afraid of fraudulent claims by patients who really just want free iPhones. But with a cost difference of over $7,500, insurers could spend a couple of thousand dollars investigating each claim and still come out way ahead.

Or are we just offended at the thought that insurance would buy a sick person something that everyone wants anyway? I don’t know how many patients need this kind of device, but if we could save $7,500 apiece I’d be happy to get over my annoyance.

Sunday, September 13, 2009

The Smallest Change

It’s the weekend, so we get to relax from more serious subjects.

When you use something every day — and when collectively we use it millions of times per day — you notice small changes. So have people noticed that Google changed its fonts? Type something into the search box. The font is bigger. I think it happened on Wednesday or Thursday of this week.

Google’s webpage has remained remarkably similar over the years of its meteoric rise. It turns its logo into a creative doodle on holidays and other special occasions, but basically the page still consists of a search box, two buttons, and a whole lot of white space. New services appear discreetly in the upper left. As other websites are constantly reinventing themselves with new looks, Google stays the same. Even the original, cheeky “I’m feeling lucky” button, which one might have exepected to change or disappear as the site grew into a mature company, is still grinning at users every day.

That makes it all the more noticeable when the site does change. A few months ago it started offering suggestions as you type in your search terms. That was a little creepy at first, but I’ve gotten used to it, and it does actually save a few seconds sometimes. (And I’m pleased to observe that if you type in “law prof ” (note the space at the end), then ”law prof on the loose” is the second suggestion.)

And now there’s a font change. Everything is bigger and they may have dropped the serifs (although I can’t remember whether they had serifs before).

Obviously it’s no big deal, but it’s like seeing an old friend with a new hairstyle, or discovering that the city has cut down a tree in your favorite park. It takes a little getting used to. I’m reminded of August, 2007, when the New York Times got smaller. It was still the Times, but it wasn’t quite what you expected.

Of course, now when I pick up the Times I can’t remember that it was ever bigger. I’m sure I’ll feel the same way about Google’s font in a month or two. But it is interesting to think that each tiny change will be seen by hundreds of millions, or perhaps billions, of users.

Friday, September 11, 2009

The Future of Education

Zephyr Teachout, a law professor at Fordham, predicts in Slate today that the Internet will tear apart education much the same way it has affected newspapers. In the future, says Professor Teachout, most classes will be offered online, students will pay by the class, a few big star teachers will get all the money, and the rest of us will be glorified TAs. “Within a generation, college will be a mostly virtual experience for the average student,” Professor Teachout says, and degrees will come from education “aggregators” rather than traditional colleges.

Professor Teachout may be one of the big stars in the new order (well, her webpage at Fordham does say that she is “an immensely talented and creative scholar”) but I’m not buying her theory just yet. If universities just sold educations, there’d be more to it. As Professor Teachout observes, universities incur big expenses that may prove unnecessary in the digital age. If we ran universities on a business basis, employed technology to the fullest degree, and got rid of a few bits of archaic nonsense such as tenure and scholarly research, I’m sure we could deliver education much more cheaply.

But universities also sell their students something else: the reputational value of the degree. An Internet “aggregator” of education services can’t duplicate that easily. Part of the reputational value of a degree comes from just those aspects of a university that the Internet would shed: having faculty who are research stars, not letting just anyone take classes, etc. Face it: if you were making hiring decisions, would your first choice be someone who graduated from a virtual school?

I think the reputational value of the degree is a big part of what universities sell, and I don’t think the Internet is going to erode that so quickly as Professor Teachout seems to believe. And that’s before we get to other things that real colleges offer, such as enjoyment, friendships, networking, and other things that come from actually being in the same place as your classmates.

Well, it’s always dangerous to say that the Internet won’t accomplish something. And in fairness, Professor Teachout does say that the more elite, “brand name” universities will be less affected by the developments she foresees than smaller, less known institutions. And that makes sense: the less reputational value your degree has, the more you really are selling education. But I don’t think my job is going to be outsourced to the Internet just yet.

Wednesday, September 9, 2009

Iqbal Empirics

In response to my post yesterday, my colleague Orin Kerr asks whether Iqbal might lower the high costs of civil litigation by reducing the use of costly mechanisms such as discovery and summary judgment motions. This is a good question.

In analyzing Orin’s question, the first thing to notice is that, while Iqbal might save some costs, the decision also imposes costs. Because of Iqbal, pleading becomes more expensive. Not only is it more expensive to draft the initial complaint, because no one knows any more exactly what needs to be in the complaint, but, as numerous cases already show, Iqbal is returning us to the days when a case begins with “polishing the pleadings”: the defendant moves to dismiss, the court grants the motion with leave to replead, the plaintiff tries again, and we may go around multiple times (possibly including an appeal) before the plaintiff has a complaint that passes the applicable standards. And then we get to the costs of discovery and summary judgment.

The view of the drafters of the Federal Rules (particularly Dean Clark, who was very clear on this point) is that polishing the pleadings is a waste of time and money and we might as well get right to the other mechanisms that we’re just going to get to anyway, after polishing the pleadings.

So it’s not as simple as saying that Iqbal might save costs. What’s going to happen is that Iqbal will save some costs while imposing different costs. And I think the biggest cost that Iqbal is meant to save is not so much disovery costs per se, but the costs of settlements coerced by plaintiffs bringing doubtful claims against defendants who end up settling to avoid litigation costs (this is suggested by the Court’s opinion in the predecessor case of Bell Atlantic v. Twombly). The ultimate question is whether Iqbal will save or impose costs on balance.

As I have previously acknowledged (before I gained fame and fortune on Concurring Opinions) this is an empirical question — and one that would be quite difficult to answer reliably. The Civil Procedure professor community, including myself, is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that’s what we’ve been teaching the students for the last 70 years. But really, we should admit that it is at least possible that Iqbal would produce savings in the long run.

But I am inclined to doubt it. It seems more likely that Iqbal will just end up raising costs, by adding more pleading costs to discovery costs that will end up getting incurred anyway. And more important, Iqbal seems unfair. As some lower court cases are showing, Iqbal is trapping some plaintiffs in a Catch-22: they can’t successfully plead their cases because they don’t have information that they can’t get without discovery, which can’t get started until they successfully plead. (I suppose this will result in some savings, but again, I question whether there will ultimately be net savings.)

Given that it’s very difficult to tell whether Iqbal will save or cost money in the long run, I am inclined to say that we should continue the fairer system of letting cases get started without insisting on too much detail in the pleadings. But I would be open to rethinking the matter if anyone could come up with good empirical cost data on Iqbal.

Tuesday, September 8, 2009

Iqbal Keeps Spreading

I previously discussed how the Supreme Court’s Iqbal decision is going to have a big impact on federal civil litigation. Jaya Ramji-Nogales suggested that maybe it won’t have such a big impact after all. It’s still too early to say definitively who’s right, but take a look at this – Iqbal applied to a slip-and-fall case!

For those just tuning in, the Supreme Court’s decision last term in Ashcroft v. Iqbal upended some long-standing rules of pleading in civil procedure. The previous understanding was that a civil complaint — the document that by which the plaintiff starts a civil case — just had to give the defendant a general notice of what the case was about. It didn’t have to go into specifics or detail. If the plaintiff says, “I worked for the defendant and the defendant fired me because of my race or religion,” that states a sufficient claim. The plaintiff doesn’t have to say how she knows what the defendant’s motives were. Sure, the defendant is eventually entitled to that information, but it doesn’t have to be in the complaint. That’s what discovery is for.

Iqbal throws the rules into confusion. Under Iqbal, the trial court gets to disregard allegations it regards as conclusory (a term the Supreme Court didn’t clearly define) and make some judgment about whether the complaint is sufficiently plausible to require a response. Under this new regime, it’s far less clear that a one-sentence allegation about why the plaintiff got fired would be sufficient without some further allegations that show some evidentiary support. Courts have been dismissing all kinds of cases on the basis of insufficient allegations, such as this dismissal of a case in which plaintiff alleged that she took the defendant’s drug and suffered a terrible injury as a result, which got dismissed because, in the court’s opinion, the plaintiff didn’t sufficiently allege how she knew the drug caused her injury.

Now we have the ultimate in Iqbal dismissals — a dismissal in a slip and fall case! Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store. Insufficient! says the district court. Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery?

This is what’s wrong with Iqbal. Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose. But what does it matter if every last point is in the complaint? The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible. We don’t need any more to get started. There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment.

As this case shows, Iqbal is going to send us back to the era of endless wrangling about exactly what has to be in the complaint. We’re going to waste a lot of time polishing the pleadings. And apart from everything else, it’s going to cause years of confusion. Before Iqbal I could at least give a confident judgment about whether a complaint was sufficient. Now I have no idea. If people can’t even get a slip-and-fall case into court, we’re in trouble.

Wednesday, September 2, 2009

What's a Tweet?

Twitter's application for a trademark registration on the word "tweet" was recently rejected, which led to a discussion among some colleagues and myself as to whether the word is a generic term. The argument in favor is that the word "tweet" has become a common term, which has entered dictionaries and even the AP style guide, as the linked article shows.

A basic principle of of trademark law is that no one can trademark a "generic" term, which is to say, the common term for article or service being sold. Thus, no one could own the exclusive right to sell toothpaste under the name "toothpaste." That would hardly be fair to competing sellers of toothpaste, and the generic term also doesn't perform the basic function of a trademark, which is to tell consumers the source of the product, not what the product is.

Nonetheless, I would say that "tweet" is not generic. Yes, "tweet" has become a common term, but with what meaning? To me, "tweet" means, "a short message carried via the Twitter service." It doesn't mean, generically, "a short message," or even "a short message carried via some social networking service." It is specific to Twitter. I don't think of the short messages I send to my Facebook friends as "tweets."

This usage is confirmed by that eminently reliable source, Wikipedia, which defines "tweet" as "A micro-blog post on the Twitter social network site, or the act of posting on it." And says that a "tweet" is "A post on Twitter, a real-time social messaging system."

So I would say that "tweet" still performs a trademark's source-indicating function. It tells you that the thing named is associated with Twitter specifically. Perhaps people will soon start referring to any short message as a "tweet," but it hasn't happened yet. So I say that "tweet" is not generic.

Tuesday, September 1, 2009

Back in the Saddle Again

Two hours from now I will teach my first class in 15 months. My sabbatical is over.

I'm actually looking forward being back in the classroom. I didn't feel this way so much on my first sabbatical back in 2001-2002, or even in the first semester of this sabbatical, but beginning around January or so I started to think, hey, where are my students? I miss them.

The funny thing, which I do remember from my first sabbatical, is that the students have no idea. As I walk in today, they won't be thinking, whoa, this is his first class in 15 months -- I wonder how he'll do -- better cut him a little slack. No, they'll just expect the same polished performance as always.

Which leads to a more general observation: That's what the students always expect.

Think about a water tap. When you turn it on, you expect water to come out. It occurs to you only rarely, if ever, to think about the amazing amount of labor, planning, and ingenuity that went into bringing the water to that tap. You just expect it to work.

If you're a professor, that's how your students think about you. To them, you are a water tap. When they turn you on, they expect a class to come out. They never think about the preparation and planning involved. Your need to prepare a class while juggling your writing projects, committee responsibilities, and personal life, and the possibility that you may be ill or out of temper, are equally outside their consciousness. When I was a student, I was among the more academically minded (I did become a professor, after all), and still, I had only the dimmest notion that professors spent time preparing for class.

The result is that students will sometimes be insufficiently prepared to receive the benefits of the class you have worked hard to plan for them and they may show less appreciation than your efforts deserve. Professors, never resent this or expect it to be otherwise than it must inevitably be.

Monday, August 31, 2009

Blog Envy

I saw the movie Julie and Julia, a melange of Julia Child's experience in getting her famous cookbook published and Julie Powell, a blogger from New York City who cooked her way through Julia Child's cookbook and blogged about it.

The movie is endearing and enjoyable, but, speaking from a blogger's perspective, can I just say, wait a minute? This Julie Powell committed herself to cooking the recipes in Julia Child's cookbook over the course of a year and blogged about how it was going? And she got famous doing that? How could anyone possibly be interested?

I must really be doing something wrong in my blog. I suppose I could have visited every historic site, park, and museum in the Washington, DC area and blogged about each of them. Or I could have requested a 15-minute interview with every member of Congress and blogged about that for 535 days. But why would anyone care? I mean, really, if you thought you were going to get famous by blogging your way through someone else's cookbook, I would have told you that the odds were about one in several million.

Well, she started early: her first entry is August 25, 2002. I don't think there were so many blogs back then. Now there are millions. And she persisted. And she had a good focus, instead of just looking at "the News, the World, and Life," the way I do. And it worked! Her blog was made into a book and then a movie, while I'm still waiting.

But my first taste of fame starts tomorrow! Faithful readers, next month's posts will appear here and on Concurring Opinions, a group blog hosted by my colleague Dan Solove. They've got thousands of readers, so I'll have a wider audience. Look out, competing bloggers.