Saturday, November 10, 2012
Two New Conspirators
If you don't read The Volokh Conspiracy with much regularity (a cast that includes me), you may have missed some cool news on their end: they recently added to their perma-crew both former guest Prawf, Eugene Kontorovich of NW, and the inimitable Nick Rosencranz from Georgetown. Welcome Eugene and Nick to the blovgosphere :-)Posted by Dan Markel on November 10, 2012 at 02:43 PM in Blogging | Permalink | Comments (1) | TrackBack (0)
That's it, I'm done!?
Sad news: Philip Roth has announced his abandonment of writing and reading. I feel like this is like giving up breathing. I often think I'll have to be pulled out of the prawf job feet first, but I wonder if there's a point at which, like Roth, you just announce: Basta!
Maybe Bill Miller's book, Losing It, will provide some solace.
Posted by Dan Markel on November 10, 2012 at 02:27 PM in Books | Permalink | Comments (0) | TrackBack (0)
Score 1 for Quants, but Score 5 for Pollsters
There's been a lot of talk after the election about how one big winner (after Obama, I imagine) is Nate Silver, of the FiveThirtyEight blog. He had come under fire in the days/weeks leading up to the election for his refusal to call the race a "toss up" even when Obama had only a narrow lead in national polls. He even prompted a couple of posts here (in his defense). Turns out that Silver called the election right - all fifty states- down to Florida being a virtual tie.
But that's old news. I want to focus on something that may be as, or even more, important. The underlying polling. We take it for granted that the pollsters did the right thing, but their methodology, too, was under attack. Even now, there are people - quants, even - who were shocked that Romney lost because their methodology going in to the election was just plain wrong.
So, that's where I want to focus this post after the jump - not just on "math" but on principled methodology.
Continue reading "Score 1 for Quants, but Score 5 for Pollsters"
Posted by Michael Risch on November 10, 2012 at 12:51 PM in Law and Politics, Legal Theory | Permalink | Comments (5) | TrackBack (0)
Friday, November 09, 2012
Review Granted in VRA Case
The Supreme Court has granted review in Shelby County v. Holder, the Voting Rights Act case where the DC Circuit by a 2-1 vote upheld the preclearance provisions of the Voting Rights Act. Looks like it's going to be a big year for race at the Court. Any tentative predictions/thoughts?Posted by Bill Araiza on November 9, 2012 at 07:01 PM | Permalink | Comments (0) | TrackBack (0)
Making and Taking
David Brooks is not my favorite New York Times columnist, though he’s certainly not the worst (I’m looking at you, Gail). And sometimes he says things that are both right and really important. He said something like that today, when he advised Republicans to start thinking about ethnic groups (in my own experience, Latinos) in ways that transcend this foolish and disgusting makers-takers/"they want stuff" theme that is oozing into the post-election discussion.
What he points out is that many ethnic groups (again, I’m thinking personally about Latinos) have immense respect for hard work, but also immense appreciation for the good government can do. Without spilling too much of my unabridged biography here I’ll just say that I have a lot of personal experience with people working exceptionally hard. And valuing it. My father used to tell me that his father, a barber, would say “If I don’t cut hair, we don’t eat.” My father got that lesson. My other grandfather started as a dishwasher in a hotel restaurant and eventually bought a Mexican restaurant: he used his wife and his daughter (my mother) as waitresses and cashiers, and he did all the cooking and purchasing himself. The only outside person who did any work there was a bookkeeper he used at tax time.
But a lot of whatever success we achieved as a family could not have happened without government programs. I’ll start with the biggest program of them all: the military, which, while nearly killing my father more than once, nevertheless ended up providing us housing, discounted groceries, education (from first grade to, in the case of my father, vocational education), and yes, the biggest evil of all, government-run health care (which was excellent, by the way). We also benefitted from food stamps, Pell Grants and guaranteed student loans, state universities, Medicare, and Medicaid. I’m sure I’m leaving something out.
Continue reading "Making and Taking"
Posted by Bill Araiza on November 9, 2012 at 11:02 AM in Culture, Current Affairs | Permalink | Comments (9) | TrackBack (0)
Thursday, November 08, 2012
Interesting News Out of Florida
According to this Miami Herald news story it seems like President Obama nearly won the Cuban-American vote in Florida. (Thanks to Pedro Malavet for the tip.) I'm not sure how big a deal it is that the President lost by "only" 52-48, but the people quoted in the article think it's significant. Any thoughts from people who follow this issue on how significant this is, either this time around or long-term?Posted by Bill Araiza on November 8, 2012 at 02:05 PM in Current Affairs | Permalink | Comments (0) | TrackBack (0)
Recognizing Your Biases
In Brown v. Board of Education, the Supreme Court held that segregation in public schools violated the Equal Protection Clause. Brown was a major blow to the separate but equal regime ratified by the Supreme Court’s decision in Plessy v. Ferguson. Brown is (rightfully) one of the most important constitutional cases ever decided, but it is still contested to this day whether Brown is consistent with the original understanding of the Fourteenth Amendment. Nonetheless, any legitimate theory of constitutional interpretation has to justify Brown, or it will not be taken seriously.
This is true for many of the decisions that we often view as "progressive" or that significantly changed the way in which society operates. In the years after Brown, various minorities groups turned to
the Court to effectuate broad changes in society. Civil rights, women’s rights, fairness in the
criminal justice system – the Warren Court, in particular, remade the landscape of America in a series of decisions in the 1950s and 1960s. As an African-American and a woman, I am especially proud of what they accomplished, but for constitutional law theorists, it is often difficult to justify many of these decisions as consistent with the "original" understanding of the Constitution or the Court's decision to intervene as consistent with the constitutional text and structure. Some scholars have been successful (in my view), but we still argue over these issues in the legal scholarship.
Despite my pride in certain Warren Court decisions, I have to be honest and admit that when I teach cases like Plessy v. Ferguson or the Civil Rights Cases or Parents Involved or Washington v. Davis, I question whether it is wise to give courts the ability to "remake" the landscape of America. Talk about outcome oriented expedient, right? Not surprisingly, like most people (though they won’t admit it), I only like the Court to intervene when it furthers something I believe in. But I find this view to be problematic for a legal scholar, and as a result, I go to great lengths when I am writing to try to neutralize this bias.
Indeed, my scholarship is my attempt to overcome this weakness and be as intellectual honest as I can. Sometimes, the result is that I make "liberal" and "conservative" arguments, but at the end of the day, it is my honest assessment of what I think the constitutional text and structure require rather than advocating for judicial intervention to achieve my desired outcome. Plessy and cases like it make me realize that the Court does not always get it right, and sometimes, because of the limitations of its power, cannot get it “right” (see Giles v. Harris as a particularly egregious example). The problem for me and my particular bias is that, if one is intellectually honest, you have to take the good with the bad. Take the Plessy with the Brown, so to speak. This does not mean that I have to believe Plessy was decided correctly; rather, in advocating for judicial intervention, one has to recognize that sometimes you might get a Plessy. Other times, you might get a Brown but you have to believe that judicial intervention is justified in both instances (Lochner and Roe is another tough one).
But the risk of a Plessy makes me wonder why we, as a society, are comfortable with the idea of the Supreme Court as being the change agent and in the process, promoting judicial intervention in lieu of the political process. I am always taken back by how pro-Court my students are. After teaching constitutional law for almost four years, it is not immediately obvious to me that this is right - that the Court, rather than the political process, should be the one to effectuate change. And that is why, in my scholarship, I focus on the constitutional text and the structure so I won’t have to decide if this is right (because I fear that my answer might be “yes, it is right if I like the outcome”). I recognize that the text and structure will only get us so far in deciding tough questions, but I leave it to others braver than I to formulate theories of constitutional interpretation to fill in the gaps.
Posted by Franita Tolson on November 8, 2012 at 12:52 PM | Permalink | Comments (5) | TrackBack (0)
Reforming Legal Education's Finances: Let's Debate Specifics
This fall a lot of law schools are talking about finances. While the blawgosphere and even the national press have addressed the basic market changes driving these discussions, I have not seen a lot of specifics about the difficult financial choices at stake. Next week, I'll be posting a series of questions comparing different strategies for dealing with the new market realities. The intent of these questions is to get folks talking about the costs and benefits of different approaches, so we may have a better handle of how to address them at our own institutions.
Here are the questions I was thinking of posing:
- Is it better to cut tuition or class size?
- If tuition is to be cut, is it better to cut the sticker price or increase the scholarship pool?
- If a school is cutting costs, is it better to cut positions or cut salaries?
- If salaries are to be cut, is it better to have an across-the-board cut or cuts based on different principles?
- Should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration?
Obviously, these questions are not exclusive -- one can cut tuition and class size, for example, or cut salaries both across the board and based on certain principles (teaching load, etc.). But the purpose of these dyads is to pit them against one another and talk about their specific strengths and weaknesses. If a school has $X in potential savings, would that savings be better spent on reductions in tuition or class size? The questions are intended to get readers and commenters to debate the relative merits in specific terms.
If you have an idea for a dyadic question like the ones framed above, please feel free to leave it in the comments. I'll start up with the questions on Monday.
Posted by Matt Bodie on November 8, 2012 at 11:34 AM in Life of Law Schools | Permalink | Comments (12) | TrackBack (0)
Cease and Desist
For nearly 10 years, scholars, commentators, and disappointed downloaders have criticized the now-abandoned campaign of the Recording Industry Association of America (RIAA) to threaten litigation against, and in some cases, sue downloaders of unauthorized music. The criticisms follow two main themes. First, demand letters, which mention of statutory damages up to and including $150,000 per infringed work (if the infringement is willful), often lead to settlements of $2,000 - $3,000. A back of the envelope cost-benefit analysis would suggest this is a reasonable response from the receipient if $150,000 is a credible threat, but for those who conclude that information is free and someone must challenge these cases, the result is frustrating.
Second, it has been argued that the statutory damage itself is unconstitutional, at least as applied to downloaders, because it is completely divorced from any actual harm suffered by the record labels. The constitutional critique has been advanced by scholars like Pam Samuelson and Tara Wheatland, accepted by a district court judge in the Tenenbaum case, dodged on appeal by the First Circuit, but rejected outright by the Eighth Circuit. My intuition is that the Supreme Court would hold that Congress has the authority to craft statutory damages sufficiently high to deter infringement, and that there's sufficient evidence that Congress thought its last increase in statutory damages would accomplish that goal.
We could debate that, but I have something much more controversial in mind. I hope to convince you that the typical $3,000 settlement is the right result, at least in file-sharing cases.
Continue reading "Cease and Desist"
Posted by Jake Linford on November 8, 2012 at 09:30 AM in Information and Technology, Intellectual Property, Music, Web/Tech | Permalink | Comments (1) | TrackBack (0)
Marriage equality in the Supreme Court
With the success of marriage equality at the ballot box on Tuesday, nine states and the District of Columbia, now allow marriages between same-sex partners. And the failure of the ballot initiative in Minnesota, which would have preemptively halted any judicial or legislative allowance of marriage equality, could be taken as a reflection of new societal views.
The question is how that affects the SCOTUS's decision as to whether to take any of the marriage-equality cases currently pending before it and, if it does, how to resolve them. One view has been that SCOTUS would not take the lead on this; instead, (as it did with anti-miscegination laws), it would await some critical mass of states getting to equality on their own, then step in to yank the remaining states into line. Of course, we do not know what that critical mass would be.
Before Tuesday, I would have said this would mean the Court denying cert in Perry (the Prop. 8 case), especially in light of the narrowness of the Ninth Circuit decision. But is 9 states, and some momentum on ths issue, enough? And is it enough for the Court to take the leap and say that barring same-sex marriage violates the Fourteenth Amendment (assuming there are five votes for that position)?
The DOMA cases present a much trickier issue on this point, because the Court is virtually obligated to take one of these cases. It cannot leave a situation in which a federal statute is unconstitutional, and thus inappicable, in just the Second Circuit (where two of the nine equality states are and a third recognizes same-sex marriages performed elsewhere). No we're back to the question of whether nine states is sufficient to give the Court popular cover (again, assuming five votes for marriage equality).
Posted by Howard Wasserman on November 8, 2012 at 08:33 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 07, 2012
Co-religionist Commerce
Since I'm no expert on election politics, I figure I'll leave those posts to the election law gurus like Franita Tolson and my Pepperdine colleague Derek Muller.
Instead, I wanted to spend a couple of posts discussing what I take to be the rise of "co-religionist commerce" (full disclosure: my soon to be co-author Barak Richman coined the phrase). What I mean by the phrase is the relationships and interactions between members of the same religious community that are simultaneously religious and commercial. Prime examples of co-religionist commerce include various types of religious legal instruments such as sharia compliant financial insturments, employment agreements with religious institutions, Islamic mahr contracts, and wills that divide up money in accordance with religious principles.
Of course, once you have these various forms of religious legal instruments, it's only natural that litigation over religious torts comes next. The recent class action lawsuit against Hebrew National for having insufficiently kosher hotdogs serves as a great example of how co-religionist commerce spills over into the tort context - as does the recent allegation leveled against the Rabbinical Assembly for functioning as a cartel. If you have religious legal insturments then you'll invariably have religious torts too.
The challenge of co-religionist commerce is that it poses a host of unique private law and public law questions each of which threaten to destabilize the predicatbility and enforceability of legal arragnements that simultaneously touch upon religious and commercial interests - questions that I plan on exploring in my next batch of posts.
Posted by Michael Helfand on November 7, 2012 at 09:05 PM | Permalink | Comments (0) | TrackBack (0)
Religion and Politics, circa 2012
At the New Republic, Amy Sullivan has a pretty good takeout on why religion didn't figure as much, at least in terms of public discussion, in the 2012 election. The relationship between religion and politics, of course, is of perennial interest to law and religion scholars, so I hope this post is at least tangentially related to "law" and not just politics. Sullivan certainly has a point of view in other posts and pushes it, and I don't always agree with that viewpoint, but she has also done a lot of good reporting in this area and this is a pretty decent piece.
One thing I think she underemphasizes is that both parties, in addition to what I hope was the fundamental decency of their nominal leaders on this issue, had good reasons to bilaterally disarm with respect to each others' religion. There was also some plain old cognitive dissonance involved: some evangelical voters who really do hold strongly negative views about the LDS were forced to reconcile themselves to it in this cycle. (And I should add that those views, for all I know, may have affected their turnout; and, for that matter, that every now and then I saw an anti-Mormon letter in the local paper, or fairly anodyne but quite unnecessary Mormon jokes from Democratic friends on Facebook.) Still, in general it is interesting how little of a real role religion played in this race.
Given the circles I travel in, many of my friends may find most interesting, and perhaps irksome, the third part of Sullivan's article, titled "The Catholic Bishops' Religious Liberty Campaign Has Flopped" and linking in part to an interesting essay written by a local priest in Washington, DC. I've pasted it in full below the fold. Here I think she is a little too forceful, and would add some counterpoints: 1) Catholic doctrine isn't, and by its lights shouldn't be, determined by vote; 2) that doctrine may legitimately hold that specific life issues are more doctrinally central than a variety of "seamless garment" issues; and 3) some of the reactions to the Church's views on these issues still held more than a little whiff of anti-Catholic sentiment, or at least ignorance about Catholicism.
But...I think Sullivan, and the writer she links to, make two important points, points that are relevant both for observers of these issues and for the leadership. The first is that the "religious liberty campaign," with specific regard to the contraception mandate, takes place in a context in which Americans seriously distrust many institutions, often including their own institutions and certainly including the Church. The second is that, although I happen to think the scope of exceptions to the mandate should be wider and that there are real religious liberty issues involved here, there is genuine room for reasonable disagreement about how religious liberty doctrine should be structured: whether generally applicable laws should require or merely permit accommodations, about whether those accommodations should be absolute or subject to a balancing test, about which entities should be able to claim those accommodations, and so on. I'll let the priest's op-ed speak for itself here, as Sullivan does, while noting that it's possible to agree with him on this and still support greater accommodations in this area:
“Bishops and Catholic publications used words like ‘alarming,’ ‘unprecedented’ and ‘unconscionable’ about the HHS mandate. But most people did not see it as an existential threat to our religious liberty. They saw it as a disagreement over government policy.”
Continue reading "Religion and Politics, circa 2012"
Posted by Paul Horwitz on November 7, 2012 at 08:50 AM in Paul Horwitz | Permalink | Comments (11) | TrackBack (0)
The Libertarian Case for Positive Educational and Welfare Rights
OK, not exactly. I'm not sure whether he'd consider it a post about his libertarianism. And he doesn't argue for positive educational and welfare rights, constitutional or otherwise. Apart from that, though...
What spurred this post is Ilya Somin's argument on the VC yesterday that knowledgeable children ought to be allowed to vote. He addresses some standard objections in his post, but a number of his commenters wrote to argue that such a rule, if enforced by knowledge or literacy tests, would end up privileging some groups and disadvantaging others (as, indeed, previous tests have done in the United States). Indeed, given massive educational inequality in this country, it's hard not to see how this proposal wouldn't give much more electoral power to the wealthy, well-educated, mostly white elite. Unless....perhaps Ilya would welcome a trade-off: knowledgeable children get the vote, in exchange for guarantees of massive public/private efforts to assure meaningful educational and welfare rights to ensure that the opportunity to be a knowledgeable child voter is fairly and widely distributed among the entire population rather than limiting that vote to enclaves with better resources. I'm just going to go ahead and consider this Ilya's very subtle case for overruling San Antonio School District v. Rodriguez.
Posted by Paul Horwitz on November 7, 2012 at 08:23 AM in Paul Horwitz | Permalink | Comments (9) | TrackBack (0)
Some thoughts on the election
My political views have been made obvious in this forum in the past, so I'm pretty happy this morning. A couple of random thoughts.
1) My confidence level picked up around 5 p.m. yesterday afternoon when I picked my daughter up from school; that's when I heard the results of the "election" at her school, which went 125-75 for Obama. As we all know, as Temple Beth Am Day School goes, so goes the country.
2) We had a split decision on sports predictors. A National League team won the World Series, which means a Democratic President; this is now 17/27 (62.9%). On the other hand, the Redskins lost at home on Sunday, their final home game before the Election, but the incumbent party retained the White House; this is now 17/19 (89 %). I have to admit, my anxiety level actually rose after that game.
Continue reading "Some thoughts on the election"
Posted by Howard Wasserman on November 7, 2012 at 01:51 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack (0)
Tuesday, November 06, 2012
Naming Rights Gone Wild?
When I had some free time during a conference I attended this past weekend in Chicago I wandered over to Millennium Park, the beautiful downtown park adjacent to the Art Institute. While looking for directions I ran across this sign, which startled me for the sheer number of corporate names attached to various parts of the park:
I know naming rights have been handed out pretty freely over the last couple of decades or so, starting, I guess, with sports arenas. (I still remember the Simpsons episode about 10-15 years ago where Federal Express bought the naming rights to the Constitution.) But is this this park an extreme version of that phenomenon? Or have I missed a major ratcheting up of corporate naming? Or is this just a case of the changed face of philanthropy? I mean, Central Park has Wollman Rink, and (on a different scale) a large number of bench plaques that you can buy. But this seems different: I mean, you take the BP Bridge to the Exelon Pavilion to the Boeing Gallery, ending at AT&T Plaza? Really?
Posted by Bill Araiza on November 6, 2012 at 03:54 PM | Permalink | Comments (4) | TrackBack (0)
An Election Day Question: Is Joe Biden Demented?
Yesterday, I linked to a nonprofessional's diagnosis suggesting that the Republican leadership is sociopathic. Today, I thought it only fair to link to a story providing further diagnoses, one by a nonprofessional and the other by a professional (which is not to say he was acting in a professional fashion). They suggest, respectively, that Mitt Romney is suffering from mental problems and/or that Vice President Joe Biden is suffering from dementia. The story containing those diagnoses, as it turns out, is actually about the increasing partisanship and bitterness of cable news networks. Talk about burying the lede! What if one or more of those diagnoses are right?
Admittedly, others might take other lessons from this rash of diagnoses, such as: 1) practicing politics through long-distance DSMification is unhelpful, both as politics and as psychology; or 2) just as we might look for structural and environmental causes and cures if a large number of people in some particular area turned out to suffer from mental illness, so if we conclude that large numbers of politicians are crazy, we might focus more on the pathologies of the entire American political and cultural system than on partial analyses--analyses that also, coincidentally, confirm our own sense that we are rational and just, while the only explanation for our opponents' beliefs and conduct is that they are not. Granted, the latter approach is something that even those Americans who usually focus on structural pathologies of American politics sometimes forget. You Americans must get tired of commentary from foreigners that begin "You Americans..." Still, I've got to say it: From my perspective, it sometimes seems to me that you Americans are all crazy, or at least that many aspects of your political structure and culture are.
And with that, have a great Election Day!
Posted by Paul Horwitz on November 6, 2012 at 08:26 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack (0)
Monday, November 05, 2012
An Open Letter from Seth Barrett Tillman to Professor Saikrishna B. Prakash (and other defenders of the unitary executive theory)
Dear Professor Prakash et al.,
Back in 2008, you and I had a short exchange in the Duke Journal of Constitutional Law & Public Policy. You may remember that in that exchange I argued that the Constitution’s varying usage in regard to office and officer was meaningful. Specifically, I argued that the Incompatibility Clause, using “Office . . . under the United States” language, did not reach the presidency (and vice-presidency), and as a result, that clause did not bar a sitting Senator (e.g., Clinton, McCain, or Obama) from simultaneously holding the presidency. In other words, the Incompatibility Clause bars Senators and Representatives from simultaneously holding appointed office (in any of the three branches), but it is not a bar to other elective positions (e.g., the vice presidency and the presidency).
In 2008, you did not agree with my theory.
Today, in 2012, we face a nearly identical question . . . should Representative Ryan win re-election to his House seat and be elected to the vice presidency, can he hold both offices? My position is “yes, he can (at least as far as the Incompatibility Clause is concerned).” I am wondering if your current position is the same as it was in 2008: i.e., the Incompatibility Clause applies to the presidency (and, by implication, to the vice presidency).
Part of the reason I ask is that I now have some additional evidence relating to the events of 1787-1797 – evidence which I did not put forward in our 2008 debate. And although you can still maintain that you are correct about the Incompatibility Clause, if you do, I think the consequence of your maintaining your 2008 position is that you will have to give up on the unitary executive theory (about which you have published from time-to-time). It seems to me your two positions contradict one another.
Let me explain.
Posted by Ethan Leib on November 5, 2012 at 07:48 PM | Permalink | Comments (11) | TrackBack (0)
An Election Eve Message
Elections can be emotional times, I know, so I thought a quick personal message might be appropriate and help provide some balm in this season. This is what I told my Facebook "friends," at least:
My own position on whom to vote for is fully thought-out, rational, and virtuous, most evidence of human limitations to the contrary. If you choose to vote for the other candidate, it cannot come down to a different but reasonable set of priors, priorities, and judgments. It must mean that you are ignorant at best, and possibly evil.* And although this country's two-party system and government structure is subject to a wide range of pathologies, those considerations are irrelevant to the basic fact that my position on any given candidate, although it necessarily involves a host of complex considerations and an overall balancing of interests, is wholly right and yours wholly wrong. Now let's have a clean, civil fight and remember our ultimate common brotherhood.
* After posting this, I realized I had misspoken. Apparently I should have said, ignorant, evil, and sociopathic.
Posted by Paul Horwitz on November 5, 2012 at 03:47 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack (0)
Underneath the Law Review Submission Process: Part XII The Elusive Fall Cycle
During my last visit to Prawfs I did a series of posts on the Law Review submission process. With a little help from the BYU Law Review, I did a bit of research into submissions and the timing of submissions. I also did some interviews with articles editors with tips for faculty and some interviews with faculty members with tips for current articles editors.
Several people asked if I could do something similar to investigate the elusive fall law review submission period. I've done a little research on this and will do a few posts, though I don't think I've really learned as much as I had hoped about this cycle. And unfortunately I don't think this information will conclusively resolve any of the questions some of us have: which cycle is better fall or winter? when is the best time to submit my piece? what is with all of the rejections or (worse?) silence from the law reviews? But I think the information may be helpful to some people who want to get a sense of the volume of articles submitted during each cycle and when the submissions occur. That way, we can continue to be superstitious and submit on the day/week we always submit and now how some numbers to back up our superstition.
As always, some disclaimers before I give you the numbers. BYU Law Review was again willing to give me some numbers during their fall submission window (Thanks especially to Heath Waddingham and Joe Orien for this). BYU may be unique and is just one law review, so take this for what it is. Obviously, a study of a random sample of law reviews would be better. Or better yet getting data from Expresso. Also, BYU's submission window was relatively short this year. They "opened" submissions from Expresso from August 11-August 31. Those three weeks were all they needed to pick up the articles necessary to fill their volumes. Certainly the fall submission cycle goes beyond August 31 but BYU closed by labor day and so I don't have any numbers beyond August 31 (I think that in itself can be a lesson to some of us who tend to submit after labor day that some law reviews fill their issues before we have even submitted). If any other law reviews want to give us information on submission numbers later in the fall, that would be really great. I'm happy to post them or if you want to just give us information in the comments, that would be helpful. In my next post, I'll compare the fall numbers with the winter numbers just so we can get a sense of the difference in volume.
Ok, so here is a chart of the numbers of submissions during three weeks of the Fall law review submission cycle:
And here is another one just showing which days of the week (during this three week period between Aug 11-31) the submissions were most prevalent:
And the final chart in this post:
I was surprised at how early the fall submission cycle started. While some of us are still in August vacation mode, others are busy churning out law review articles for submission. Impressive. More next time with comparisons.
Posted by Shima Baradaran on November 5, 2012 at 11:39 AM | Permalink | Comments (0) | TrackBack (0)
Stealing signs
This sign is on a house in my neighborhood in Miami-Dade County. The owners had been displaying an Obama sign for a couple of weeks, which was no longer there on Saturday (Jen and I noticed it and actually discussed whether the owner had taken it down or it had been stolen). This new sign, with the added message, was back this afternoon. This is not the sole example of alleged sign theft I have seen. Another house, displaying a number of Romney signs, included a homemade one reading "Obama Vandals, stealing only stiffens our resolve," which I infer means they also had signs stolen or destroyed.
I do not know what it means for something to be Un-American or American; I certainly do not want anyone defining for me (nor do I have any interest in defining) what is or is not "American." I am reading the sign to say something like "stealing signs is inconsistent with the freedom of speech, which so many think of as a core American value." If so, I want to push back on that.
I previously descibed what I call symbolic counter-speech, in which one counter-speaks (in the Brandeisian sense) to a symbol using the symbol itself as the vehicle for the counter-speech. I identified three forms of symbolic counter-speech: 1) disengaging from the symbol (think Barnette); 2) confronting it with a competing, overriding symbol; and 3) attacking, often by destroying or eliminating, the symbol itself. Stealing a yard sign falls within the third category. The homeowner was obviously expressing his support for President Obama by displaying the sign (in a medium that the Supreme Court has recognized as uniquely important). Whoever took the sign was counter-speaking, expressing his opposition to Obama, by attacking and eliminating the supporting symbol. That is an unquestionably expressive act.
This does not mean the expressive act is unconditionally protected by the First Amendment, of course. Were they to find the thief, he could not successfully assert the First Amendment as a defense to a charge of theft, vandalism, or some other neutral, non-speech legal rule. So his expressive interests yield, in this situation, to the homeowner's interests in his private property. But that does not mean the person who stole the sign was not exercising that core American value of free speech.
One other thing. The new yard sign is two-sided, placed so that both sides can be seen by someone on the street. But the added message only was placed on one side; it was printed out on a sheet of white see-through printer paper. The resulting effect, which you can see after the jump, is obviously unintended, but highly ironic in light of much of the dislike for President Obama.
Continue reading "Stealing signs"
Posted by Howard Wasserman on November 5, 2012 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack (0)
Jingle deprivation and other afflications at the center of the political universe
Here in the ultimate swing state, where Barack Obama and Mitt Romney are waging a pitched campaign for the Presidency of Ohio, the barrage of ads has even many adults weeping from exhaustion. And as we near the end of the race, a period in which dirty tricks are unlikely to attract enough media attention to be tactically unwise, the ambush political marketing has begun -- the paper inserted in an office printer that has a political flyer on its back side computer virus that causes the backside of every printed page of an outlook email to be a political ad; the unwanted "advisory" emails from the church webmaster; the post-it notes attached to gas pumps asserting some policy position; and of course, the classic sign stealing.
The Justices that signed on to Citizens United -- and any clerks that helped draft the opinions -- should be sentenced to spend eight weeks in front of a TV in Ohio during the next presidential election.
Perhaps the hardest thing about the end of this race is that I am suffering from an intense bout of jingle deprivation.
Continue reading "Jingle deprivation and other afflications at the center of the political universe"
Posted by Geoffrey Rapp on November 5, 2012 at 09:07 AM | Permalink | Comments (4) | TrackBack (0)
Sunday, November 04, 2012
Why Buy Insurance, Anyway?
Of the many criticisms I thought I might receive in response to my last post about the link between health insurance and job creation, I didn't expect to receive the primary criticism that I did: that buying insurance -- of any kind -- is simply a fool's errand. Jimbino makes the point in comments, and despite the somewhat "trollish" nature of the comments, there are enough good points in there that I started a reply. The reply grew so long that it became a new post.
Long story short, Jimbino points out that on average, people in the aggregate only get back 60% of their insurance premiums (and most never get anything). I have no idea if that's true, but it sounds reasonable enough. They would never tolerate such odds at the casino (though people, for some reason, seem to think that 98% payout slots are a good deal). My gut, unsupported by empirical evidence, is that most people who think this way have no dependents and have never suffered a catastrophic event outside of their control. Indeed, Jimbino notes how insurance helps aging widows and hypochondriacs at the expense of young, healthy black men. Jimbino also asks about all the suckers in Illinois who pay for insurance but never get hit by hurricanes (apparently Jimbino has not heard of fire). There is at least a kernel of truth here, but only a kernel, since insurance is priced higher for those more likely to use it. Insurance costs more in New York and Florida than in Illinois, I suspect. If it doesn't there is a problem with the market.
Here are some more general thoughts on why one might (or might not) buy insurance, after the jump.
Continue reading "Why Buy Insurance, Anyway?"
Posted by Michael Risch on November 4, 2012 at 06:11 PM | Permalink | Comments (11) | TrackBack (0)
Stupid Wistfulness About a Running Competition
This story is collossally stupid. Many parts of the greater New York metropolitan area, including large swaths of Long Island and Westchester County, continue to be without electricity and heat, with the weather getting colder and colder and the estimate for lights to go on sometime next weekend. I do not live in New York City itself, but there are large numbers of people (particularly the poorer residents) struggling there too. There is a large storm forecasted for Wednesday which is expected to bring more water to a devastated area. My own family has been without heat and electric power since last Monday (I'm at a coffee shop writing this, where I have gone every day to juice up). Many of my students and colleagues have suffered far worse than that.
I do not feel any regret or wistfulness at all that a running race got cancelled. The government's resources, state and local, are needed elsewhere. In our area, exactly one Con Edison crew has been dispatched for a town of nearly 30,000 people. One. I like running too, and even ran in a couple of marathons in Boston many years ago. I understand that maybe there might be some money that might come in to the City as a result of this race.
But many portions of the southern New York area are -- notwithstanding what one hears about how great a job the government is doing -- still in a state of disaster. Grow up.
Posted by Marc DeGirolami on November 4, 2012 at 10:03 AM | Permalink | Comments (16) | TrackBack (0)
Saturday, November 03, 2012
"The past is never dead. It's not even past."
Hello all and a tremendous thank you to Dan and the PrawfsBlawg crew for having me this month! I'm usually thinking about patent law, but today I've got a short note on other IP...
Last week, the estate of William Faulkner filed two lawsuits over quotes from Faulkner works – one against Sony for the movie, Midnight in Paris, featuring a misquote of the above quotation from Faulkner's novel, Requiem for a Nun, the other against the Washington Post and Northrop Grumman for an ad featuring a quote from a Harper’s piece on civil rights. The complaints can be found here and here. Both suits allege three causes of action: copyright infringement, trademark infringement and misappropriation for commercial advantage of Faulkner’s likeness and image. I’m guessing that the suits spark a little surprise and outrage in most folks, folks who feel like this shouldn’t be actionable copyright or trademark infringement because the use seems like a fair (and quite common) one. And I believe these mildly outraged folks would be right—both copyright and trademark fair use doctrines appear to protect this sort of use. We might give Faulkner his due on the misappropriation count, however—after all, the movie and ad are clearly commercial endeavors. Yet without delving too deeply into right of publicity torts, it seems reasonable that an incidental use in works of entertainment like a movie does not trigger liability. The ad may be a more difficult case because it’s not an entertaining work of fiction.
This is really interesting to Faulkner (and Woody Allen) fans. But an IP fan might have a couple more questions.
Continue reading ""The past is never dead. It's not even past.""
Posted by Amelia Rinehart on November 3, 2012 at 07:37 PM in Culture, Intellectual Property | Permalink | Comments (6) | TrackBack (0)
Signing On, and a Shout-Out
I'm delighted to be back on Prawfs for the month. It's been quite a week or two, and more interesting times appear to be on the horizon. In addition to talking about some legal scholarship I've done and heard about recently I hope to be talking this month about the broader world around us, and specifically, what's been in the news. As always, thanks to Dan for creating this wonderful community for making that type of exchange possible.
For now I want to just sign in, but also to give a shout-out to the con law faculty at Loyola-Chicago (Juan Perea, Alex Tesis, Mike Zimmer and the inimitable John Nowak) for hosting their fantastic annual con law colloquium, from which I just returned home. Like Prawfs, the Loyola conference is a wonderful opportunity to share ideas and hear what others have to say, and I'm grateful to them like I am to Dan for providing such a great forum.
Posted by Bill Araiza on November 3, 2012 at 07:29 PM | Permalink | Comments (0) | TrackBack (0)
