Month: April 2012

In this week’s issue of the New Yorker, there’s an important piece by Laura Secor that unmasks (at least to those who haven’t been willing to forthrightly acknowledge) the scope of tyranny in Iran. The PR folks at the New Yorker have sent along this description of the piece’s attack on the “tragic farce of voting in Iran.” After the jump, a quick description of this riveting article’s highlights and the questions and challenges Secor raises.

In “Election, Monitored” (p. 48), Laura Secor travels to Tehran, where she is taken on a highly orchestrated and controlled press junket to cover Iran’s parliamentary elections, and where, when she strayed from the proscribed agenda, she was taken into custody and interrogated by Iranian officials for three hours. During the visit, Secor is taken to a presentation about Iran’s remote-controlled satellite at the Alborz Space Center, bussed to chosen polling places, and forbidden from leaving her hotel during the day, except to conduct interviews in the company of her government-approved translator. “The regime was no longer even trying to mask its coercive nature,” Secor writes. At the regime-sanctioned electoral events she attends, Secor encounters much support for the nezam—Iran’s unusual political structure, which combines a theocracy, ruled by a Supreme Leader, and a republic, with democratically elected offices and public debates. At one polling place, a mob surrounds Secor and a middle-aged man tells her, in English, that the “United States, Great Britain, Sarkozy are just lying, lying, lying.” In four previous trips to Iran, Secor writes, “the only crowds I’d attracted were of curious and friendly young people. Anti-Americanism was harder to come by here than in Europe. English speakers were exceedingly rare. Given the choreography of our bus tour, I had to wonder.” Secor manages to speak with a former Green Movement activist, Amir, who tells her that “there is a big layer of people in Iran who favor changes more radical than they would have two years ago. But the dictatorship, the censorship¬—they don’t allow us to see each other.” The problem with the Green Movement, he tells Secor “was that the goal was not to change the system. It was to change just a little part of it. And, since your horizon is not toward changing the system, you’re scared to put everything you have into it.” Under the nezam, “with its autocratic and democratic elements in perpetual tension,” Secor writes, “Iranians were neither subjects nor citizens.” Though Secor is warned by her translator about discussing the U.S.’s sanctions against Iran, she talks to two young men employed in the energy sector about the effects of the most recent sanctions. “One of them said that, because of financial sanctions, oil and gas projects were too costly and had to be postponed. And conditions in the private sector were about to get much worse,” Secor writes. One man tells her that “it’s going to be terrible.” Secor notices the soaring inflation that has taken place since her last visit to Tehran four years before, and a clothing vender near Vali Asr Square tells her that he knows “people who have unplugged their freezers because they are empty and they don’t have money for electricity.” Far from inciting an uprising, however, Moussa Ghaninejad, a liberal economist and the head of research at the economic newspaperDonyaye Eqtesad tells Secor that the sanctions “facilitate the position of the hard-liners, the extremists in government. I don’t know if the Western powers understand that. The sanctions justify the incompetence—the mismanagement—of this state.” Ghaninejad does not believe that the government will capitulate anything under the sanctions, either: “If pressure and the discontent of people on the street increase, the last resort for the regime will be to provoke a war with foreigners,” he tells Secor. Amir tells Secor that, unless the government changed completely, “the system could still kill you.” Secor briefly becomes ensnared in that system when she and her translator are taken off of the street and to a government building for questioning. She is stripped of her recording device and accused of being a spy. The officials question her sharply about her research on Iran’s economy, and confiscate her receipts. Their questions revealed the truth about the sanctions: “The inflation, the devaluation of currency, the coming privation of when banking and oil sanctions took full hold: this, and not even the election turnout, was what the Islamic Republic wished to hide from foreign eyes.”

Posted by Administrators on April 30, 2012 at 10:28 PM

For my final two posts on the law review submission process, (see intro, part I and part II on timing of submissions,part III interview, part IV interview, part V interview and part VI interview, part VII expedites, part VIII memes and part IX fall submission timing if you are interested) I am going to leave with some advice for current (and future) law review articles editors. Besides Eugene Volokh’s great book (which all articles editors should read) there is not much out there as far as advice for new articles editors.

In this series of posts on the law review submission process, we professors have learned a lot from several articles editors through interviews and comments. We have been (mostly) humble and have tried to learn as much as we can from this process in order to improve our submissions and get a better sense of what exactly goes on after we submit a piece and how generally we can improve the quality of our work.

But of course, we wouldn’t be proper prawfs if we didn’t get a bit didactic here as well. So, this post is dedicated to teaching articles editors (which I hope will be as humble as we have been) a few things we have learned over the years. As a former editor-in-chief who was heavily involved in article selections (at BYU Law in 2003), I want to share a few thoughts. My next post will be advice from two former articles editors turned prawfs.

Four tips for articles editors:

1. Try to go back to when you used to be an interesting, well-rounded person and not a law student. Now you see your parents’ swimming pool as an attractive nuisance, your fifth grade class christmas party as constitutionally suspect, and every school yard fight you ever got into as a tort. This is all good and natural, but as you are evaluating articles, try to get out of your 1L frame of mind and think about things that really matter to the world that might intersect with the law.

In considering an article, think, would this be something I would see reported in a newspaper, magazine or on television? Would I want to share what I learned in this article with a friend? A law professor? Who might care about this article? Before you went to law school, you were a really bright person who thought about ideas, social problems, and various different fields. All of this is great and makes you part of a diverse law student body which can help you recognize the importance of submissions made to your law review.

In your first year of law school you’ve learned a few really important topics; but these topics are not necessarily the most important ones in the scheme of scholarship or to the legal world at large. Don’t let law school suck the interest you may have in a wide variety of topics out of you or narrow your interests into just what we teach you in the first year. Try to think about legal problems, but also think about other unresolved or broader public policy issues and see if the articles you are examining tackle those in any significant way–or help the world think about these issues in a different, but helpful light.

True story: despite my undergraduate premed science education, my major in sociology, research and interest in Africa and Iran, I thought given my successful first year law student transformation that the most important and interesting article that I read as an editor was one about the history of the Lochner court. Not that the Lochner court is not interesting and important, but in the scheme of things, there were a lot more important topics and articles that I came across that I probably thought were not “legal” or “scholarly” enough because they were not constitutional and did not cite cases. My own perception of this Lochner article being the best thing since sliced bread was matched by my fellow articles editors who were also equally brainwashed into thinking that constitutional law was the only true law and the best sort of legal scholarship. This “con law” bias I had has also been confirmed by at least one interview in a previous post, so it is something to beware of anyway. But the overall message is, don’t let your idea of good scholarship just be focused on what you learned in law school.

2. Think about whether you really understand what the article is saying. If you can’t understand the article, it doesn’t mean you are not smart enough. It may just be that the author was not clear enough. If on second thought, you don’t actually understand the article, it is probably not as good (or well-written) as you thought it was, and it probably needs to be clarified. The best ideas–and those that end up having a lot of impact in the field are not necessarily the most complex ones. I think articles editors may sometimes not give themselves enough credit and think that they may not have to understand every piece they are publishing. Yes, a piece may be empirical or technical, but you should still be able to understand it. And you should be able to explain the core idea of the article to a friend and they should be able to understand what you are saying.

3. Look into how important the topic really is. Law prawfs may tell you that the topic they are writing about is really important; but do your own work in figuring out how important it really is. To get a sense, you can see what else has been written on the topic by scholars, how or if courts consider the issue (for instance, how often courts do courts consider this issue? Is this “huge problem” something that plagues only 10 cases a year?),, whether the data says this is important (ie how many people/cases/countries/businesses does this impact?), or whether this is a debate in common every-day discourse.

Remember that as articles editors, you help keep law discourse at a level that most people can understand–not law professors alone but lawyers, judges and interested people. If the topic does not seem interesting to large enough group of lawyers, judges, or average citizens, then it probably is not that relevant.

4. Final tip, think about how hard this law review article was to write. Often, I see articles that show an impressive amount of important analysis of statutes, regulations, involving FOIA requests, unique cases or empirical studies of large proportions that do not get the requisite attention they deserve with a favorable placement. So, I would ask law review editors to think about whether this author was the first to find an important historical document and analyze it, whether the author assembled their own nationally or internationally representative dataset, whether the author scoured through mountains of case law, whether the author used unique methods like a randomized controlled trial or qualitative interviews, or whether they just read a handful of cases really closely? A consideration of the difficulty of putting together this article is one factor that you may want to consider. If the article was laborious to write and the database difficult to assemble (and of course if factors 1-3 are met) then this is an article that will likely be extremely important to the field.

Those are my tips. I’m sure others have tips on good scholarship as well, so I look forward to hearing from you on other thoughts or tips for articles editors.

My next post will include two interviews with former articles editors turned superstar academics: Ed Cheng (Vanderbilt) (former Harvard Law Review articles editor) and Josh Douglas (U. Kentucky) (former George Washington Law Review articles editor).

Posted by Shima Baradaran Baughman on April 30, 2012 at 06:01 PM

Comments

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YLJ Online on the Implications of Douglas

As part of it’s new “Summary Judgment” feature, the Yale Law Journal Online has a series of three essays up today on the Supreme Court’s February 22 decision in Douglas v. Independent Living Center of Southern California, a case about which I, Rick, and others have blogged previously.

All three essays are worth reading, but I particularly enjoyed Rochelle Bobroff’s take on the relationship between Douglas and the Court’s 2011 decision in Astra USA, Inc. v. Santa Clara County, and Cathy Sharkey’s really interesting reflection on the merits of Justice Breyer’s majority opinion–and how preemption claims should affect / precipitate / provoke agency action. [My far less interesting piece on the potential implications of the Chief’s dissent picks up on some of the posts I’ve previously written about the case…]

For those looking for quick (and hopefully provocative) diversions from exam writing / grading (or too embarrassed to watch game 2 of the Knicks / Heat series)…

Posted by Steve Vladeck on April 30, 2012 at 04:19 PM

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There has been much discussion in the news, blogosphere, and general ruminations about the Supreme Court’s January opinion in United States v. Jones case (ie the GPS case that said that attaching a GPS tracker and using that devise to monitor a car is a “search” under the Fourth Amendment). Scholars have started to discuss what this case means for the future of the Fourth Amendment, the future of technology in prosecution, and the future of police detection of crime. Fascinating stuff.

For those of you interested and writing on this topic, I wanted to make you aware that the AALS Criminal Justice Section has a call for papers out to add one lucky panelist to an already impressive panel on this at the AALS meeting in January 2013. Confirmed speakers for the 2013 panel are Christopher Slobogin, Vanderbilt University Law School, Tracy Meares, Yale Law School, and Orin Kerr, George Washington University School of Law. The panel will be moderated by Andrew G. Ferguson, UDC David A. Clarke School of Law.

Here is some more info on the panel:

Technology and Crime: The Future of the Fourth Amendment in Public

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.

The call for papers requires any interested faculty of AALS member and fee-paid law schools (teaching six years or less) to submit papers. The due date is August 15, 2012 and the Criminal Justice Section Executive Committee will anonymously review all submissions. (No, we will not check your CV, a cover letter OR do a citation count).

To facilitate anonymous review, please submit papers in electronic form to Professor Giovanna Shay ([email protected]). The paper should have identifying information contained on a cover sheet only; the cover page will be removed before the paper is distributed for review. The cover sheet should also include the year you began law teaching and a statement that the paper has not yet received any offers of publication.

Posted by Shima Baradaran Baughman on April 30, 2012 at 03:39 PM

This post is cross-posted on the Patently-O blog.

Self-replicating technologies, once the subject of theory and fantasy, are now upon us. The original self-replicating machine—the living organism—has already been harnessed by biotechnology engineers and, more to the point, their lawyers. The next wave of self-replicating technologies, be they nanomedical robots or organic computers, are not far behind. Rather than triggering a “grey goo” apocalypse, these technologies are, at present, raising far more prosaic issues of intellectual property and antitrust law.

Those issues have now apparently caught the attention of the Supreme Court. A few weeks ago, the Court called for the views of the solicitor general on the certiorari petition in the case of Bowman v. Monsanto. This is the latest in a series of cases in which the Federal Circuit has addressed the application of the doctrine of patent exhaustion to the genetic engineering technology embodied in Monsanto’s “Roundup-Ready” herbicide-resistant seeds. Seeds are the prototypical self-replicating technology, and a number of similar herbicide-resistant crops are in the pipeline of the largest agribusiness concerns. In each of the Roundup-Ready cases, a farmer has argued that Monsanto’s patent rights do not extend to the second generation of soybeans grown from a patented first-generation seed. In each case, the Federal Circuit found for Monsanto and against the farmers.

Patent exhaustion (or “first sale”) doctrine serves as a limit on patent rights, and provides that once a patentee has made an authorized sale of an embodiment of its patented invention, its patent rights with respect to that embodiment are exhausted, and the purchaser is free to use or re-sell the embodiment as it sees fit. Like analogous doctrines in copyright and trademark, it is motivated by competition concerns. Its aim is to enable the creation of downstream or secondary markets in patented articles, and to prevent patentees from using their intellectual property rights to gain market power in markets other than the market for the patented technology. When the Supreme Court last spoke on the issue, it rebuked the Federal Circuit for giving these pro-competitive policies insufficient weight. It seems to be considering an encore in the Roundup-Ready cases. For reasons I’ll explain after the jump, I think that would be a mistake.

The Federal Circuit’s analysis of patent exhaustion in the Roundup-Ready cases is admittedly not a model of the judicial craft. Framing the issue as a formal question whether a second-generation soybean is a different “article” than the first generation seed from which it grew, the court’s main justification for its result was the bare assertion that any alternative result would “eviscerate” Monsanto’s patent. But this is a question-begging explanation, and there are other, better reasons why a patentee’s sale of a single embodiment of its self-replicating technology ought not to exhaust patent rights with respect to the second, third, or nth generation of the technology that is propagated from that first embodiment. Moreover, these reasons are consistent not only with the reasons for granting patent rights in the first place, but with the pro-competitive principles that justify limiting those rights through exhaustion doctrine.

To get at these reasons, I propose a thought exercise. Let’s imagine that the Roundup-Ready cases came out the other way–that purchasers of Roundup-Ready seed from Monsanto were free, as a matter of patent law, to use all subsequent generations of soybeans grown from those first purchased seeds however they saw fit. What would we expect the Monsantos of the world to do? How do we believe their behavior might be influenced by this new legal framework?

One possible answer to this question is: not at all. It may be that the additional revenues to be derived from selling additional embodiments of a self-replicating technology to the same customer are trivial (perhaps due to the structure of demand), and that the prospect of any one customer re-selling a subsequent generation of the technology to another potential customer of the patentee is remote. Nanomedicine, particularly personalized nanomedicine, may one day prove that this is a possible result. But in the agriculture context, it strikes me as unlikely.

Where the technology at issue is an input for the production of a commodity, and the demand for that technology is broad and essentially undifferentiated, I would expect that the possibility of re-sale of nth generation seeds by the patentee’s customers would significantly eat into the patentee’s revenue stream, potentially making it impossible for the patentee to recoup the investment in research and development required to develop the technology in the first place. This is the classic free-rider problem that patent law is supposed to prevent: we preserve the incentive to engage in costly research and development by giving the inventor a limited-time monopoly. Other scholars have noted that this free-rider rationale is particularly salient for inherently self-disclosing inventions (inventions that are easy to copy once they have been introduced to the public). I would add that self-replication exacerbates the problem of self-disclosure: the patentee selling an embodiment of its invention would not only be teaching competitors how to practice the invention, it would in essence be building their factories as well.

So there are sound justifications grounded in the innovation policies underlying patent law for the Federal Circuit’s rulings in the Roundup-Ready cases. But of course, patent exhaustion doctrine is concerned not only with innovation policy, but also with competition policy. This brings me back to my earlier question: how would we expect the Monsantos of the world to react to the free-rider problem if patent law did not protect them against competition from nth generation copies of their own first-generation products? I can imagine two possible strategies a technologist might pursue to circumvent the free-rider problem: contract and secrecy. And I think both of these alternatives are inferior to the patent solution crafted by the Federal Circuit on competition grounds.

Take the contract approach, which has been explicitly advocated by Yee Wah Chin, one of the attorneys representing the interests of Monsanto’s farmer customers. To avoid the problem of free-riders Monsanto might, for example, restrict sales of its seeds to customers who sign a license agreement in which the customers undertake to monitor the uses of nth generation embodiments. So, a farmer might have to agree to sell his soybean crop only to buyers who have their own license agreement with Monsanto, or to Monsanto itself. Or Monsanto could include field-of-use restrictions in its licenses, as Ms. Chin proposes: “Monsanto could have licensed seedmakers to sell seed embodying Monsanto technology on condition that the second-generation seed be either consumed or sold to buyers who agree to either consume the seed or isolate that seed from other seed and sell the seed only for consumption.”

This does not strike me as a pro-competitive result, for a few reasons. First, it incentivizes Monsanto to extend its influence into downstream markets–such as the market for commodity soybeans and their derivative products–in ways that it would have little incentive for under the Federal Circuit’s approach. This downstream market creep is precisely the type of expansion of patent rights that exhaustion doctrine is supposed to prevent, out of fear that the patentee’s interests are not likely to be consistent with the efficient functioning of those downstream markets. Second, and perhaps more importantly, forcing Monsanto to look to contract rights to protect its investment in research and development shifts the costs of monitoring and enforcing the Roundup-Ready patents from Monsanto itself onto its customers, who are likely to face higher monitoring costs.

We must remember, Monsanto’s customers are largely farmers, who lack Monsanto’s economies of scale, its greater expertise with its own technology, and its understanding of the functioning of the markets for that technology. Moreover, shifting enforcement responsibility from the patentee to its customers is likely to create agency costs where they would not otherwise exist. A farmer who is paying Monsanto a premium for Roundup-Ready seeds probably has far weaker incentives to vigorously monitor for violation of Monsanto’s license terms than does Monsanto itself, which is reaping the premium. Finally, in the event that a customer breaches these monitoring obligations, either maliciously or negligently, Monsanto’s technology could fall into the hands of a competitor who is not in privity of contract with Monsanto and thus (absent any unfair competition type of claim) would be free to use the nth generation seed (in which Monsanto’s patent rights are exhausted) to compete with Monsanto. An individual farmer is likely to be judgment-proof in the face of the claims Monsanto might make should such a competitive threat emerge outside the reach of its licensing provisions, which once again leads us to the original problem: how would we expect Monsanto to respond to this risk of free-riding?

This brings me to the last alternative to the Federal Circuit’s solution in the Roundup-Ready cases: secrecy. Monsanto might seek to prevent free-riding by refusing to release its technology to public view, and relying on trade secret protection to protect against free-riding. But in order to preserve its secret (a prerequisite of trade secret protection), Monsanto would have to ensure that nothing it released into the market disclosed its genetic technology. As I noted above, self-replication can be seen as a heightened form of self-disclosure, and so this type of secrecy would be fairly hard to maintain. Indeed, I think the only plausible way of doing so would be to pursue a course of comprehensive vertical integration. Monsanto would not only have to be in the business of propagating seeds, but also in the business of cultivating and harvesting soybeans, and processing them into useful products (oil, animal feed, industrial adhesives, tofu, you name it) that do not reveal the genetic material at the core of Monsanto’s invention. Even if this were technically possible (a big if), the effect on all sorts of markets, both for inputs and outputs of the soybean market, is likely to be catastrophically anti-competitive. Where the alternative is such drastic shocks to competition in the market for, e.g., miso paste, soy-fed livestock, and arable land, the Federal Circuit’s decisions in the Roundup-Ready cases start to look surprisingly pro-competitive.

The big question in my mind, then, is not whether the Federal Circuit’s reached the right result in the Roundup-Ready cases. Given the factual setting of those cases, I think the answer to that question is a relatively uncontroversial yes. The real question, to me, is whether the same holds true for self-replicating technologies other than seeds for agricultural commodities. I already noted above one type of self-replicating technology–personalized nanomedicine–that may not present the same incentives for patentees, their customers, and their competitors, as do herbicide-resistant soybeans. Given how little we can presume to know about the future development of other self-replicating technologies, it is likely unwise to try to set a rule today to govern the rights of downstream users for all such technologies that may arise tomorrow. And for this reason alone, it may be worth getting some discussion of the issue from the Supreme Court, which seems particularly sensitive (almost to a fault) to the hazards of establishing brittle legal rules to govern the unknown future of technology. If the analysis that emerges is more substantive and functionally-minded than the under-argued, formalist analysis of the Federal Circuit (admittedly, another big if), I would be happy to see the Court take the case, if only to put the type of issues I’ve discussed in this post on the table.

Posted by Jeremy Sheff on April 30, 2012 at 11:43 AM

Comments

I appreciate Prof. Sheff citing my article regarding Monsanto’s assertion of patent rights in second generation seed generated from seeds purchased by farmers. In response to Prof. Sheff’s 2 points on my proposal of a contract approach, which the Supreme Court arguably reserved in footnote 7 in Quanta, I offer the following quick thoughts.

As to the first point, Monsanto is already extending its influence into downstream markets, by exerting its patent rights to all succeeding generations of seeds. Applying the first sale doctrine to terminate its patent rights, and permitting it the lesser remedies of contract rights, should in fact lessen Monsanto’s ability to influence downstream markets. As to the second, if Monsanto is permitted only contract remedies downstream, then there are no patent monitoring and enforcing costs downstream that would be shifted to farmers because there are no patent rights to be monitored and enforced downstream. Moreover, perhaps as 2 New Yorkers we fail to fully appreciate the sophistication of farmers in their area of expertise, farming in all its modern complexity. Bowman was pro se in the district court and offered some very sophisticated arguments. As to remedies, the most significant in these contexts may be injunctive, which depends little on the defendant’s resources or not being judgment proof. As to lack of privity with Monsanto, one might consider whether one who acquired seed that was sold in breach of a covenant with Monsanto has acquired clear title. Finally, as to the potentially anti-competitive impact of a contract, a contract that results in an unreasonable restraint on competition would be subject to the antitrust laws.

I also share some quick thoughts regarding the first sale doctrine and Bowman’s certiorari petition.

It may be that the first sale doctrine was motivated at least in part by competition concerns, given the early assumption that intellectual property rights created monopolies. It seems just as likely that the doctrine is based on the implicit bargain, perhaps more explicit in the case of patents, that exclusivity under the law is granted on condition that it is limited in time and scope.

Self-replicating technologies may indeed raise the question of free riders. However, seeds may be distinguishable from other self-replicating technologies, in that one of its major purposes, if not only purpose, is to replicate. Therefore, when one buys seed, the expectation is that one will plant it so that it will replicate. It is unclear that there is free riding in that context when one then uses the second generation seed for what seed is primarily for, planting. Moreover, as in any other case where a patented item may be resold, either intact or incorporated into another item, the initial selling price of the item can be calibrated to account for the likely subsequent uses or re-sales. This is essentially the Univis and Quanta situations.

The Supreme Court denied certiorari the other two times that it was asked to review the first sale doctrine in the context of Monsanto’s seeds, after also getting the Solicitor General’s views in one case. Those 2 cases may have been, as the SG concluded in McFarling, correctly decided on their facts. However, Bowman’s facts are substantially different from those in McFarling and Scruggs, and highlight some consequences of Monsanto’s position taken to a perhaps logical conclusion. Bowman presents a much stronger case than the 2 earlier for granting cert., and exploring further the implications of Quanta and perhaps Mallinckrodt.

Posted by: Yee Wah Chin | May 1, 2012 6:30:41 AM

In the Supreme Court’s recent 5-4 decisions

Comments

Orin, Well, the Chief’s example was from evidence, which, as Tamara points out, may generate scholarship that is typically as practical as criminal law and procedure. The example could also be from legal history, which in a court respectful of originialism also seems quite practical.

Tamara, I suspect you are right that scholarship influences other areas as well. I also suspect that scholars in various fields “popular” among their peers are also disproportionately influential in courts.

Mike, although I agree that there are many articles that would better have been left unwritten, I myself don’t think that is a fatal criticism of the current system, because the wheat/chaff problem is intractable. That is, scholars can’t, in advance, decide to write only good articles. New profs starting out may publish clinkers or fabulous stuff, but they can’t know until they actually start writing. And even great scholars sometimes turn out pieces that are below average. So the fact that some legal scholarship is not very good is an inevitable part of producing scholarship at all.

Jack

Posted by: Jack | May 1, 2012 12:55:23 AM

In fairness to the Chief Justice, I do think that scholarship in criminal law and procedure is significantly more attentive to what happens in the courts than is scholarship in most other areas. Only a small percentage of lawyers practice in criminal law. But criminal prosecutions require courts: Every case needs a charge in court, and that charge needs to be either dismissed or leads to a conviction. For that and other related reasons, most appellate courts maintain a docket that has a heavy criminal law and procedure component. This heavy criminal docket leads to lots of caselaw developments in the field. My sense is that the caselaw developments have two effects: They induce academics to focus on what is happening in the courts, and they also lead generalist judges to be more open to scholarly help figuring out that part of their work.

Posted by: Orin Kerr | May 1, 2012 12:10:26 AM

Jack,

Great post. When I think of the folks I know writing in criminal law and criminal procedure, nearly all are writing pieces that are not only well-written and interesting, but also should be of some use to courts and legislatures.

Posted by: Michael J.Z. Mannheimer | Apr 30, 2012 9:23:52 PM

It isn’t that Chief Justice Roberts doesn’t have a point: there is a great deal of legal scholarship that is either esoteric to the point of self-indulgence, or simply mediocre or even poor scholarship. But what can we reasonably expect when there are way too many law schools and the rule for law professors (like all professors) is publish or perish?

But at the same time I think the Chief Justice’s comments, while amusing, were unfair. There is a great deal of very valuable scholarship coming from the top minds in legal scholarship. And practicing attorneys and judges do take notice of it. This is true in every field I have ever researched (an admittedly limited sample). I have often found secondary sources very useful in understanding a legal issue. The problem seems to me to be one of separating the wheat from the chaff.

Posted by: Mike | Apr 30, 2012 8:53:22 PM

Actually I think it is a lot more than criminal law professors. My colleague Chuck Adams wrote an article in which he mentioned another example – the creation of the concepts of general and specific jurisdiction in civil procedure by von Mehren and Trautman. Another is Rich Friedman at Michigan and his apparent influence on Crawford and the Court’s reading of the Confrontation Clause. Moreover, there are example of opinions which have clearly been influenced by law review articles even though those articles were not cited by the Court. Another is the example of punitive damages research which raised something of a controversy about sponsored work. I think law reviews and law review scholarship has been attacked on various grounds almost since inception (think Fred Rodell) but don’t think this one is valid. I think it has more to do with seeing the proliferation of both the numbers of journals and the variety of scholarship, not all of which is going to be of immediate relevance to litigation.

Posted by: Tamara Piety | Apr 30, 2012 7:03:19 PM

The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer — as a moment for loose impromptu brilliance. And in his exceptional piece, “Constitutional Cadenzas,” Dan Farber argued that there are sections of the Constitution which contain cadenzas — “instructions for the interpreter to improvise on the Constitution’s grand themes.” Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment’s Privileges or Immunities Clause as such sections. “[B]oth of these constitutional provisions,” he wrote, “call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration.” Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation — specifically, “transnational legal sources” and “contemporary social consensus” — the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius. The performer of the cadenza may know something about previous performers — he may perhaps take notice of past interpretations — but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.

I have a different musical metaphor in mind — the appoggiatura. The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody. In Italian, ‘un appoggio’ is a support or something to lean on in a moment of weakness or indecision. Like the cadenza, the appoggiatura is an embellishment — it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example. But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will. The appoggiatura cannot stray very far at all from the melody — it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after. It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.

What might be a constitutional appoggiatura? There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation. Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution. Each has an interpretive role to play. Madison put it this way in Federalist 49:

The several departments being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers . . . .

As a concept in constitutional interpretation, departmentalism has much to commend it, but it seems to me to depend heavily on the coordinate branches knowing a great deal about the Constitution and about the interpretations of other branches. In this day and age, that means deep knowledge of Supreme Court doctrine. A successful departmentalist will give due regard to the interpretations of coordinate branches; he will not be bound by those interpretations and he will be at liberty to deviate from them if he wishes. If he does wish to deviate, however, he will do so modestly and gradually, using existing coordinate interpretations as support structures for his new interpretation. This will give the appearance of a unified front, all the while indicating some alteration to the close listener.

An example. Here is a somewhat dispiriting exchange between Congressman Trey Gowdy and Secretary of Health and Human Services Kathleen Sebelius about the constitutionality of what is known about town as “the HHS Mandate,” a set of regulations which would, as presently constituted, require many employers who provide health insurance to their employees to include contraceptive and abortifacient products as part of their plans. The mandate has elicited objections from religious employers who claim that it will violate their constitutional free exercise rights, among others.

The unfortunate thing about the exchange in the hearing is that it is obvious that neither Congressman Gowdy, who is a lawyer, nor Secretary Sebelius, who is not, has a clear idea about what the current law of free exercise is. Congressman Gowdy talks about balancing tests in constitutional law, and though it is true that constitutional law is rife with balancing tests, none of these tests applies to the Free Exercise Clause. He also raises Wisconsin v. Yoder (which does not represent the current test), Wooley v. Maynard (which is a compelled speech case), and Church of the Lukumi Babalu Aye v. City of Hialeah (which is not about balancing, but about laws of general applicability). Secretary Sebelius admits frankly that she is not a lawyer, and relied on oral communications about the mandate’s constitutionality. Nobody has any idea what the law is, even in a hearing ostensibly devoted, at least in part, to constitutional law.

But I think the exchange is only somewhat, rather than entirely, dispiriting, because it seems to me to be at least something of an effort (albeit a feeble one) to exercise what is an utterly atrophied departmentalist muscle.

In light of this state of profound disuse, in order for departmentalism to be at all plausible, the idea of a constitutional appoggiatura might be helpful. Any departmentalist move, in order to gain any sort of traction, should use existing Supreme Court interpretations as supports – as melodies which must be known by heart and upon which one relies heavily. Limited departmentalist departures will be possible from these melodies, but they will need to be minor grace notes up or down. With time they may become slightly longer in duration, so much so that they may sound quite different from the original melody. But the melody will always be discernible, and the themes of the original will be repeated over and again, though the continuing exercise of a gradualist departmentalism will change the sound, by stages, over time.

“Paganini non ripete,” the old master used to say. But through dependence and repetition, the constitutional appoggiatura may work imperceptible change.

Posted by Marc DeGirolami on April 29, 2012 at 09:24 PM

Comments

A lovely post, Marc. Thanks.

Posted by: Dan Markel | Apr 30, 2012 9:28:07 PM

I am a big fan of the show Community, which last week did a spot-on parody of Law & Order. Two highlights:

First, a legal note. The producers had to figure out how much of what they were doing constituted fair use and what they had to pay royalties for. Probably to avoid a fight, they paid to use the “chung-chung.” Was that necessary?

Second, I wanted to flag a part of the courtroom scene. Annie, playing the attractive young brunette ADA, is cross-examining the “defendant” and nails the L&O meme in which the attorney, in the guise of asking a question, launches into an inappropriate (usually sanctionable, grounds-for-a-mistrial) speech, then says “withdrawn” when there is an objection, as if that makes it OK. Here, Annie didn’t even bother waiting for an objection:

Is that why you hit your wife? Withdrawn! Is that why you smoke pot and pop pills? Withdrawn! Are you a virgin? Withdrawn!

Funny stuff.

Posted by Howard Wasserman on April 28, 2012 at 07:36 AM

Comments

Love “Community” and love Alison Brie in both “Community” and “Mad Men.” Those questions remind me of United States v. Leisure, 844 F.2d 1347 (8th Cir. 1988), in which the prosecution asked a defense witness, “Are you the same Pigface that [the defendant] had go in the Hobby Shop and buy some remote control devices for him?” Of course, there was no testimony at trial that anyone named “Pigface” had gone to a Hobby Shop or purchased a remote control device. Defense counsel objected, and the prosecution withdrew the question.

On the defendant’s ensuing appeal, the State raised the argument that you might expect any number of lawyers on any number of TV shows to raise: The question wasn’t prejudicial because the witness didn’t answer it.

The Eighth Circuit disagreed, stating,

“We reject…the government’s argument that the trial context of this question was less prejudicial because the witness did not answer it. There is no excuse for this type of rhetorical question, posed without foundation.”

That said, the Eighth Circuit still found that the district court didn’t abuse its discretion in denying the defendant’s motion for a mistrial.

Posted by: Colin Miller | Apr 28, 2012 1:01:06 PM

Agreed–great episode. Plus a cameo by Omar Little takes us back the The Wire. There’s got to be a way to use this episode in criminal procedure and evidence classes…

Posted by: Steven R. Morrison | Apr 28, 2012 9:44:03 AM

Undoubtedly, in an extreme emergency, such as, say, a full scale nuclear war or a catastrophic impact event, some aspects of federalism and separation of powers would have to change. For example, the rule that each state gets two senators and at least one representative might have to be reconsidered if the state was completely destroyed in a natural disaster. But I am not sure how much intellectual energy should be devoted to questions of this nature. Which is why I raised an eyebrow after reading Justice Kennedy’s question in Arizona v. United States.

He asked the Solicitor General to assume a situationin which federal authorities acknowledged that they could not enforce federal immigration law because they did not have the resources, and “that the State of Arizona has a massive emergency, with social disruption, economic disruption, people leaving the State because of a flood of immigrants. . . . Does that give the State of Arizona any powers or authority or legitimate concerns that any other State would not have?”

Perhaps Justice Kennedy is considering voting to strike down some or all of SB1070 while leaving the door open for expanded state powers in dire circumstances. But why speculate about such situations when they have never happened? Yes, if every state except Montana is vaporized by starships from Alpha Centauri, the island nation of Montana’s right to make a treaty almost certainly springs into being notwithstanding the Constitution. But we do not need a Supreme Court to tell us that, nor is that the most urgent question under those circumstances.

Another possibility, which I hope and suspect is not the case, is that Justice Kennedy is considering invoking an emergency exception in the present situation. The facts just do not support it. Of course, the United States is putting unprecedented resources into immigration enforcement, and they are working. As Pew reported, before SB1070 was passed, net immigration from Mexico had slowed or reversed. The Cato Institute reports that immigration is not associated with increased crime. And the CBO estimated that the net cost of undocumented immigration to states and localities is “most likely modest.” If an emergency exeption to the Constitution applied whenever a state judged, on its own, that heightened measures were warranted, the Constitution would be meaningless. States almost always believe that their actions respond to emergencies or are necessary to head off emergencies down the road.

A final reason that the question rings false is that the Immigration and Nationality Act already addresses this precise situation: 8 U.S.C. 1103(a)(10) provides: ” In the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize” state officers to enforce federal immigration law. If an emergency arises, this and a number of other, existing parts of the INA allow for use of state resources under federal supervision.

The constitutional question still exists, I suppose, because perhaps an additional fact will be present: 1) there is an actual emergency, 2) the federal government admits that it wants to enforce the law but does not have the resources, as Justice kennedy hypothesized, and 3) in spite of 2), the federal government refuses to allow the state to cooperatively enforce federal immigration law. But this seems like another science-fiction question. I am hard-pressed to think of an example where the federal government refused in an emergency to let a state use its own resouces to help itself, even in a n area of predomnant federal authority. Can anyone think of one?

Posted by Jack Chin on April 28, 2012 at 06:43 AM

Comments

Scalia flagged a little known provision that referred to state inspection laws, without noting that it kicks in only when it is “absolutely necessary.” The provision is near another:

“No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

But, the question is curious. If the feds did not have the means, is Kennedy asking what would happen if they BOTH admit it and refuse self-help? Is he asking if there is a general emergency provision that allows states to do things the Constitution says they cannot do? Who decides if this emergency is present? Scalia suggested, e.g., (admittedly in dissent) in Hamdi that Congress had discretion when to determine when the facts on the ground required suspending habeas.

Is this another congruent and proportionality thing?

Posted by: Joe | Apr 28, 2012 9:47:17 AM

Professor Hanah Metchis Volokh’s paper on this topic is well worth reading. My favorite fact: In response to a rule requiring House members to file a Congressional Authority Statement (CAS) explaining “the power or powers granted to Congress in the Constitution to enact the bill”, over 10% of the statements cite, without further elaboration or specificity, “Article I”, which of course creates and describes Congress and its powers and procedures, “Article I, Section 1,” vesting the federal legislative power in Congress, or “Article I, Section 8”, which lists all of the powers of Congress, begging the question “which one did you mean?” Quite rightly, Professor Volokh argues that a CAS, repreenting, as it does, the views of a single legislator (and not being part of the bill itself), should have little or no weight as legislative history. Therefore, even if a CAS fails to identify the right power, if the law is in fact within the power of Congress, the mistaken statement should not invalidate the law. The paper notes that the CAS requirement post-dates the health care law, so there is no CAS on that.

Posted by Jack Chin on April 27, 2012 at 04:39 PM

I have just finished reading through the Yale Law Women’s brand new report on the status of male and female law students at Yale. The “Speak Up” report revisits an important topic that the same organization had reported on in 2002 and assesses progress over the last decade. The phrase “must read” is horribly over-used, but I genuinely believe that every professor and administrator in the legal academy ought to print out this report and read it over the weekend. The students at Yale who worked on the report should be commended for gathering a great deal of illuminating quantitative and qualitative data to assess the experiences of students and faculty.

There are a bunch of different findings that could be highlighted, so I want to comment briefly on a few that jumped out at me. First, the disparities between men and women speaking up in class remain substantial. I suspect New Haven is hardly unique in that regard. The Speak Up Report somewhat sheepishly mentions an obvious solution, which seems to have substantial majority support from the Yale students surveyed: Cold-calling via the Socratic method, especially what the Report calls “warm-hearted cold calling.” A great virtue of cold-calling is that everybody speaks. While the report details various sensible steps that can encourage more women to speak up in class, it seems nothing will work better than having the majority of the class time be devoted to Socratic discussion rather than lecture followed by Q & A from volunteers. As someone who has used [hopefully] “warm-hearted cold calling” for a decade, it’s my impression that the comments of students who never raise their hands are, on average, better than the comments of students who regularly raise their hands. Talking in class, and being peppered with hard but fair questions from a professor, are big parts of the education that students are paying for. And I think that perk ought to be spread as equally as possible.

Some of the other key findings report similar levels of disatisfaction among male and female students. A second eye opener is the report’s discussion of the small group experience. Every Yale 1L take one substantive fall semester class in a very small section. It is a big selling point for Yale. As a Deputy Dean who helps build Chicago’s teaching schedule, I can tell you that Yale’s resource investment in its small groups must be enormous. Even wealthy schools like ours would have a hard time duplicating what Yale does without either growing the faculty substantially or relying very heavily on adjuncts to teach 2Ls and 3Ls. Yet, for all this investment, Yale’s results are disappointing. Less than half of Yale students describe their small-group experience as a positive one. I don’t know what to make of this finding. Maybe Yale students’ expectations are unrealistically high? Maybe Yale doesn’t have the right faculty teaching small groups? Maybe the small-group experience would add more value in the 2L or 3L year? The student response rate was pretty darn high, so I really wonder what is going on. The report also concludes that the faculty and administration at Yale do not reward good teaching, and if true, then that could explain the problem. For what it’s worth, my own small group experience at Yale in 1997 (with Peter Schuck) was wonderful, and Peter became an extremely generous mentor through my three years at Yale and thereafter.

That brings me to point three: mentoring. There might not be enough Peter Schucks to go around. Neither female nor male students seem satisfied, even attending the law school that can lavish more faculty resources on each student than any otherschool. 51% of Yale law students report that they feel no one on the Yale faculty is a mentor to them. That is depressing. 72% of Yale law students report dissatisfaction with faculty mentorship. That is more depressing. To be sure, comparable figures may be even higher at some other elite schools that haven’t bothered to survey their students on these questions. But the reported figure suggests that official, sunnier accounts of the student experience at Yale, in which one-on-one faculty mentors are “offered to every student at Yale as a matter of course” and “all students get to know faculty very well,” are more aspiration than reality. I don’t mean to pick on Yale. It is admirable that people within the school are forthrightly confronting what it would need to do to improve the student experience. And I would be surprised if the faculty weren’t already giving these issues a great deal of thought. Hopefully creative action will follow. Yale has led the legal profession on many vital issues in the past, and it would be nice to see the law school lead on the issues of instruction and student mentorship.

I am sure that every law school confronts many of the same issues that were raised in the Speak Up report. I am curious about what the comparable data would look like at my own school and have asked my administrative colleagues today whether we can conduct similar surveys of our own students and faculty. In the mean time, I think it will be useful to talk about what we ought to infer as we attempt to generalize from the Yale report. Is it that if the ultimate “haves” school has these serious problems, then they must be even more pervasive among the “have nots”? Or is it something about the faculty culture or the expectations of students at the “haves” schools that makes these sorts of problems less pervasive at schools with fewer resources? Or is this an issue that is a bigger problem at Yale than, say, the comparably sized schools like Stanford, Chicago, and Cornell? Most importantly, what can we as legal educators do to close the mentorship gap? And, since the Speak Up Report makes as many recommendations to students as it does to faculty about how to solve these problems, how can we get as many students as possible to help us help them? Downloading the report is a good place to start.

Posted by Lior Strahilevitz on April 27, 2012 at 03:25 PM

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Howard, your visceral sense may be correct regarding your classes, but there are studies showing that often, women are _perceived_ to talk more even when that is not the case. That’s where cold-calling can help. It adds an objective measure to something professors may perceive in an unconsciously biased way. In addition, there are both female and male students who are comfortable speaking a lot. And sure, I’m interested in getting a good mix of female/male contribution in class, but I’m also interested in getting participation from everyone. This includes male and female students who otherwise wouldn’t speak up. Some are just not comfortable doing so at all, and I sympathize, but many just need the “excuse” of being called on to shine.

Posted by: anon | Apr 30, 2012 10:44:18 AM

My concern about “soft Socratic” is that if it’s not employed optimally (and I seldom see it used properly) by the professor, it leads to tuning out. Some students are prepared, and see what the professor is getting at, and offer insightful answers right away. But often this process is much more drawn out, and the rest of the class is supposed to keep paying attention while the struggling student manages his way to answer, sometimes with necessary hints by the professor.

I recognize the value in Socratic for getting valuable participation that would not otherwise occur on a voluntary basis, but hard socratic, or “soft socratic with bite” seems to be the better option. Give the student a time to shine, but be willing to leave that student early on: if they’re not prepared for class, you probably shouldn’t go back to them, but if they just didn’t see a point, go back to them for another question.

Of course, volunteer contributors also should be cut short if they have the same problems as Socratic contributors. It’s just that too often soft socratic value-reducing for most of the class.

Posted by: Current Student | Apr 28, 2012 12:15:35 PM

I started to write a comment here, but it turned into a longer screed than I expected so I posted it as a blog post over at The Legal Whiteboard, where Bill Henderson generously allows me to post my screeds on a regular basis. For some reason, the comments here aren’t accepting my html coding to create a link, but here’s the URL: http://lawprofessors.typepad.com/legalwhiteboard/2012/04/reactions-to-the-reactions-to-the-yale-law-womens-speak-up-report.html.

Posted by: Jeff Lipshaw | Apr 28, 2012 6:50:27 AM

The school can, true. But does it?

Posted by: Mark | Apr 27, 2012 9:51:01 PM

I think a bit too much blame is being put on the school for the mentorship problem. The school can create all kinds of opportunities–small groups, informal lunches, formal meet-ups–but the student still has to make an effort to engage.

Posted by: TDG | Apr 27, 2012 6:32:23 PM

Great post, and (as a YLS alum and a VAP) I can’t wait to read the report! I had a really wonderful overall experience at YLS, but I too would give lower marks for mentorship and small group than in other categories. I think the latter relates to the first commenter’s point–the way that LRW is taught through the small group, but by other students, not BY the small group professor, can be problematic. As for mentorship, I would be curious to see how that number stacks up against students’ satisfaction with mentorship at other schools. It’s probably relatively high, unfortunately.

I agree that warm-hearted socratic, including the approach many take when only a portion of the class is on call on any given day, can be a nice equalizer. I don’t know how much it relates to my being female, but I do know my confidence level took a beating at YLS. I went in far more confident (and eager to speak up) than I was when I left.

Posted by: nutmegger | Apr 27, 2012 4:12:59 PM

I don’t cold call, but I always have had a visceral sense that the male/female participation is proportionate and that many of the most vocal students are women. In fact, I got nailed on class evals a few years ago for allegedly calling on women too often. My perception could be off, but that has been my sense. And, FWIW, 18 of the 19 2L members of our Law Review this year were women and all of our topic editors next year are women.

We may be highly unusual (and there are some demographic reasons for this,in any event).

Posted by: Howard Wasserman | Apr 27, 2012 3:55:08 PM

If you’re wondering how those law review stats, at least, compare at the University of Chicago, you don’t have to look far. Zero women in top masthead positions. Second and third-year women will make up about a third of available masthead positions. And the law review selection process does nothing to prevent those same statistics from replicating themselves year after year. The University of Chicago Law School desperately needs the kind of self-analysis that Yale has modeled. Please, by all means, Dean Strahilevitz, make it happen.

Posted by: Annie | Apr 27, 2012 3:49:28 PM

At most law schools, legal writing teachers are the best mentors for first-year law students. They are used to dealing with students on an individual basis. This is one of the reasons why it is important for law schools to have full-time legal writing professors with security.

Posted by: Scott Fruehwald | Apr 27, 2012 3:44:02 PM

In IP3, Madhavi Sunder considered the cultural impact of intelletual property rights on those in need. Her piece refers to “compassionate uses” of patented pharmaceuticals to distribute to those unable to afford them. As she describes, such uses “would permit countries where urgently needed medicines are unaffordable at market prices to temporarily distribute these medicines at cost for ’compassionate use.'”

This morning’s The New York Times describes infringement of an entirely different kind. There, a 92-year-old copyist known as “Big Hy” likely spent $30,000 of his own funds to ship bootlegged DVD’s to miliatary service personnnel overseas. According to the piece, “in black grandpa shoes and blue suspenders that hoisted his trousers up to his sternum,” Hy ripped bootleg films, placed them in boxes, and shipped at least some of them to an Army Chaplain, because they are (apparently) part of an effective distribution system. Once received, members of the troops would watch them, sometimes at the same time that the films were being released in theaters here.

A spokesperson for the Motion Picture Association of America appeared to acknowledge that “we produce can bring some enjoyment to them while they are away from home.” This rather unaggressive stance is unusual for that organization, which is known to advocate strong copyright enforcement. Whether this response arises from compassion or a sophisticated understanding of press relations, it is good to see the organization acknowledge uses beyond those categorically permitted by the law.

Posted by Amy Landers on April 27, 2012 at 02:01 PM