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 urbandictionary.com 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.