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.