Law Blog Central Orbiter

Kotkin: Gender Disparity in Articles Published in "Top Ten" Law Reviews

Tue, 19 Aug 2008 23:26 GMT

Minna J. Kotkin (Brooklyn) has posted Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the 'Top Ten' Law Reviews on SSRN. Here is the abstract: In today's law schools, article placement is a significant consideration...

Tax Policy Center Releases Detailed Analysis of Presidential Candidates' Tax Plans

Tue, 19 Aug 2008 23:15 GMT

The Tax Policy Center has published an Executive Summary (6 pages), Updated Analysis (59 pages), and Revenue and Distributional Tables (26 tables) for the 2008 presidential candidates tax plans. From the Executive Summary: Both John McCain and Barack Obama have...

NYSBA Releases Tax Reports

Tue, 19 Aug 2008 23:04 GMT

The New York State Bar Association has issued several tax reports: Guidance on Economic Downturn Issues (1163) Formal Guidance for Stock Buy-Backs and "North and South" Transactions (1162) Report on the Proposed Contract Manufacturing Regulations (1161)

Of Course the Errors Are Yours!

Tue, 19 Aug 2008 23:02 GMT

Not infrequently, law review articles contain a "*" footnote that acknowledges a list of people who gave useful feedback and then adds a disclaimer like, "Any remaining errors are my own." Well, of course any errors are your own! Does anyone see any value to such disclaimers (which appear frequently in academic books in other disciplines as well)? I think I understand the motivation behind the admonition. Prof. X reads your article and gives some useful feedback. But Prof. X may not have read it carefully, the piece may have changed after Prof. X read it, you may have ignored...

Tax Foundation Launches CompeteUSA Website

Tue, 19 Aug 2008 23:00 GMT

The Tax Foundation yesterday launched a CompeteUSA campaign to raise the public's awareness of the ways America's high business tax rates affect our competitiveness, wages, and living standards: The CompeteUSA campaign explains that the American worker shoulders a disproportionate amount...

Evolving Technologies and Standards Regulation

Tue, 19 Aug 2008 22:50 GMT

Posted by D. Daniel Sokol Luis M.B. Cabral, Leonard N. Stern School of Business - Department of Economics and David J. Salant, Columbia University - Columbia Institute for Tele Information, discuss Evolving Technologies and Standards Regulation in their latest working...

McCaffery: A Consumed Income Tax: A Fair and Simple Plan for Tax Reform

Tue, 19 Aug 2008 22:00 GMT

Edward McCaffery (USC) has posted A Consumed Income Tax: A Fair and Simple Plan for Tax Reform on SSRN. Here is the abstract: These are slides from a presentation to the President's Advisory Panel on Tax Reform, given in Washington...

Dropping a Kid Off at College

Tue, 19 Aug 2008 19:41 GMT

Yesterday, my wife and I drove our daughter through a number of states to arrive at the college. The Prius was full to overflowing. A Prius is not meant for this purpose, but it managed.

Today, we will move everything out of the Prius and into a room slightly larger than a typical prison cell.

For those of you who have gone through this, we will soon know what you know. For those of you who haven't, I can tell you that it's been a difficult summer, and the past couple of weeks have been increasingly difficult. We have a lot invested here.

When my wife and I are alone, we recall things that happened with our daughter many years ago. We have spoken to her about things we think she needs to know. She tolerates our discussions most of the time. But now she's anxious, unsure what her next phase will bring.

We tell her that it's going to be great. The truth is, we're all anxious. We want it to be great more than she does.

So it will be a busy day today. I hope it goes well. Either way, there will be one less person in the car when we drive back. And the two remaining for the drive will likely sound like old, nervous people, talking about life years ago and how our baby is at college only hours after she was born.

Special Prosecutor is not Always the Answer

Tue, 19 Aug 2008 19:32 GMT

Reacting to the video in which "police officer Patrick Pogan body-slammed a biker during a Critical Mass ride through Times Square," Gov. David Paterson is seriously considering appointing a special prosecutor, according to New York Magazine.

According to the Villager, Paterson has always been sensitive to police-abuse issues — he was arrested in 1999 (while he was a state senator), alongside NAACP president Kweise Mfume and a group of other protesters, for blocking the entrance to NYPD headquarters in protest of the shooting of Amadou Diallo.

I can't blame Paterson for trying to gain some political benefit from this mess, but a special prosecutor is the "catch-all"solution. It sounds meaningful, but brings nothing to the table that isn't already there. Manhattan District Attorney Bob Morganthau has an official misconduct unit that has no problem going after cops. But the Pogan situation isn't about a dirty cop, except to the extent that he perjured himself to cover his violence.

Just as the Amadou Diallo protests changed nothing, neither will a special prosecutor here. There are problems. There is a governor interested in dealing with the problems rather than condoning, excusing or explaining them away. So now, how about someone taking the bull by the horns, calling out the police and court culture that gives rise to, and supports, the problem. And then doing something real to deal with it.

Not another special prosecutor. Unless he's going to go through every cop lie for the past 5 years and prosecute the cops. But then, who wouldbe left to protect and defend the good people of New York?

Lee on Necessity

Tue, 19 Aug 2008 18:45 GMT

Youngjae Lee (Fordham University School of Law) has posted The Defense of Necessity and Powers of the Government (Criminal Law and Philosophy, Vol. 3, 2008) on SSRN. Here is the abstract:

If one of the lessons of the ubiquitous and highly problematic "ticking bomb" scenario is that torture may be justified under certain narrowly specified situations, why would we not want it made available as a weapon in the government's anti-terrorist activities? This is not a new question. It has been hotly debated, and a number of arguments have been made against the idea of formulating the torture policy on the basis of the ticking-bomb hypothetical. The question that this Essay addresses is related but narrower: if one starts from the proposition that the ticking bomb scenario demonstrates that a government official facing prosecution for torture may have available the necessity defense, what implications, if any, should the government be able to draw from the existence of the defense as it formulates its torture policy? This Essay discusses - and rejects - one common answer to this question - that the nature of the necessity defense is such that it can generate no forward-looking prescriptions. This Essay then advances a new argument on the basis of the nature and function of the necessity defense as not only spelling out morally permissible instances of harm infliction but also effecting a division of power between the state and citizens.

FMLA Cited As Evidence That Employer Accommodated Disability Under Rehabiliation Act

Tue, 19 Aug 2008 18:20 GMT

William Santacrose v. CSX Transportation, ___F.3d____(11th Cir. Aug. 5, 2008), is an important FMLA decision which is not scheduled to be officially reported. As you are about to see, that makes no sense. In a nutshell, the employee requested intermittent...

To Settle or Not To Settle-Law Review Article Makes New York Times!

Tue, 19 Aug 2008 18:19 GMT

Who says that law review articles are not read? Jonathan D. Glater in the August 8, 2008, New York Times published an article about an upcoming law review article entitled "The Cost of Not Settling A Lawsuit." He discusses a...

New York May Ban Bullying In Schools

Tue, 19 Aug 2008 18:18 GMT

New York State Senate Gets Bill Banning Bullying Acts in the Schools is an interesting August 8, 2008 New York Times article about proposed anti-bullying legislation in schools. The legislation would require training and record keeping. The article, which is...

Adjunct College Instructior Not Eligibile For Unemployment Insurance

Tue, 19 Aug 2008 18:18 GMT

Matter of LoRe v. Suffolk Community College, ___A.D. 3d ___(3d Dep't. August 7, 2008), is an important case for us adjuncts. Unfortunately, the decision is very poorly written. The professor applied for unemployment for weeks where she only worked one...

The End of Privacy?

Tue, 19 Aug 2008 18:03 GMT

I've written an article for the September issue of Scientific American magazine called The End of Privacy? The article is available online here, with a slightly different title: Do Social Networks Bring the End of Privacy?.

The entire issue is devoted to privacy, and there are some other really interesting articles. Here are links to the other articles in the issue:

Whitfield Diffie and Susan Landau, Internet Eavesdropping: A Brave New World of Wiretapping

Steven Ashley, Digital Surveillance: Tools of the Spy Trade

Katherine Albrecht, How RFID Tags Could Be Used to Track Unsuspecting People

Anil K. Jain and Sharath Pankanti, Beyond Fingerprinting: Is Biometrics the Best Bet for Fighting Identity Theft?

Mark A. Rothstein, Tougher Laws Needed to Protect Your Genetic Privacy

Simson L. Garfinkel, Data Fusion: The Ups and Downs of All-Encompassing Digital Profiles

Peter Brown, Privacy in an Age of Terabytes and Terror

Esther Dyson, How Loss of Privacy May Mean Loss of Security

Anna Lysyanskaya, Cryptography: How to Keep Your Secrets Safe

CDT's Jim Demsey Nominated to Privacy and Civil Liberties Oversight Board

Tue, 19 Aug 2008 18:00 GMT

I used to think that Jim Dempsy was a good guy, someone who believed in protecting personal privacy. Could I have been seriously mistaken? The evidence is pretty damning: President Bush has just nominated him to be on the Privacy and Civil Liberties Oversight Board. There are, fortunately, three other possibilities. First, the Privacy and Civil Liberties Oversight Board could have had all of its jurisdiction taken away, so this is a meaningless appointment. (Indeed, for a long time the Bush administration made sure that it never met.) But surely that’s not it: the Board actually has more heft than it used to, thanks to amendments in H.R. 1 passed last year. Second, the appointment could be a lame duck’s petard planted under the next administration: ‘Take that Obama! Not only will we burrow into the senior ranks of the bureaucracy, but we’ll stack the independent oversight board with people who’ll give you tsursis! Heh heh heh.’ After all, the appointment won’t take effect until the Senate acts, and it lasts for five years. That means basically none of anything Dempsey does while on Board will be on Bush’s watch. Or, maybe, it’s one of these:...

Advice for First Year Law Students: Practice Writing!

Tue, 19 Aug 2008 17:50 GMT

Over at PrawfsBlawg, Paul Horowitz offers sage advice to first year law students. For all incoming 1Ls, I recommend that you read Paul's post.

I have one piece of advice to add -- practice writing as much as you can. This advice is best heeded long before you go to law school. Take writing classes in college. Or take a non-fiction writing class outside of college. I believe that there are plenty of courses offered. Or, if you can't take a course, get books about how to improve your writing. And practice writing on your own. Basically, write, write, write!

Writing is one of the most crucial skills in law school, and it is the one that I find many students could greatly improve. Your law school writing course is designed to teach you how to do legal writing. It is not a general writing course. Many of the problems I see on exams and in student papers stem from general writing issues -- inability to write clearly, poor organization, badly articulated concepts, and so on. You can never get enough training in writing. So work on improving this skill, and you'll likely improve your success in law school.

If you have difficulty in your first year of law school, I recommend taking a writing course over the winter break or over the summer break. Take a course where somebody works with you on basic composition skills. You can never get enough practice.

Tamanaha on Galanter on Law and Social Ordering

Tue, 19 Aug 2008 17:49 GMT

Brian Z. Tamanaha (St. John's University - School of Law) has posted A Holistic Vision of the Socio-Legal Terrain (Journal of Law and Contemporary Problems, forthcoming 2008) on SSRN. Here is the abstract:

This brief essay articulates a thoroughly social perspective on law and legal institutions, a perspective reconstructed from the work of Marc Galanter. It shows how the place of law in society can be understood by attention to two "hemispheres" - the official legal system and the realm of social ordering-and their interpenetration and interaction. It lays out several core themes in socio-legal studies going back several decades, noting Galanter's seminal theoretical contributions, and argues that these themes remain central to an understanding of law and society.

Brief and recommended.

good ideas in theory

Tue, 19 Aug 2008 17:49 GMT

In theory, combining cardio + commute is a great idea. Thanks to the 3 lb. laptop, I am not carrying too much weight and it's a comfortable walk. Of course, it's 3 miles, and while I'm as fit as a banjo, I tend to get lost in thought and caught up with RadioLab (great show! makes me excited about science!) or distracted by store fronts. I could probably cut it down to 45 minutes if I walked faster and with greater concentration, but it takes me about 50, 55 minutes to get to school comfortably (but briskly, nonetheless) in order to have enough time to sit down, wipe the sweat from my brow (probably the yuckiest byproduct), and start up the laptop for class. So, I have to leave about an hour before my class. Then again, by bus I had to leave 45 minutes before, to make sure I caught the bus and in case there were many/long stops along the way. So, I suppose I'll try to walk as much as I can, even if it relegates me to sneakers and jeans rather than my Mad Men-inspired fashion fantasies. On the one hand, health. On the other hand, fashion. I, being quite sensible, will probably choose the former on non B-school days.

In theory, a class on labor law would be up my alley. Except when class is spent reading sections of a union constitution. Out loud. For 3 hours. Totally not useful for the dissertation. Pass.

In theory, reading a book on writing would be good for a writer's block. Bird by Bird has helped many a dissertating student. And yet, this is not making me feel that much better. It is very entertaining though, and the writing is lovely. If I could write that, maybe it would go faster. Maybe it would just go. At least better than writing a chapter or a footnote. Gah.

In theory, insisting that quality time can mean sharing dog-sitting duties is supportive, kind, and flexible. In reality, that means leaving at 10:30 pm to fall asleep in another bed with a 14 year old dog in between you two, so that the arthritic dog (who once fell into the pool, nearly drowning) does not fall off the bed with a thunk! like last time.

The Power of Storytelling in Your Legal Practice

Tue, 19 Aug 2008 17:25 GMT

[Ed. Note: Paramjit Mahli, of the Sun Communications Group, and author of this article, is a former journalist who has worked with international news organizations including CNN Business News, and now helps small to mid-sized law firms get in front of their target markets effectively, efficiently, and expeditiously. Her job is to let the lawyers do what they do best – practice law – while she takes care of all their public relations.]

How do attorneys connect with their audience without losing themselves in legal-speak? The art of story telling can help lawyers communicate in a way that is captivating and easily understood.

During February’s Super Bowl, sports buffs, approximately 97 million according to news reports, witnessed not just a great game but also a great story. The New York Giants were the underdogs, while the New England Patriots were favored to win. The underdogs won! The story, essentially of the underdogs winning, connected and resonated with millions of viewers and supporters. The game had drama, tension, conflict, beginning, middle and end. In sum, all the ingredients of a great story!

Storytelling is as old as civilization itself, and part of the collective human consciousness. Its roots can be traced back to the days of the shaman sitting around the fire. The shaman’s primary responsibility was to document the history of the tribe: its beliefs, values and tales of great heroes, including their triumphs and tragedies. Part of this responsibility included passing on the wisdom of these stories to new generations so that they could learn, be inspired and be motivated.

Deja Vu at the NLRB

Tue, 19 Aug 2008 17:24 GMT

First the NLRB-BU (the union representing primarily regional attorneys) fights to keep a unit containing both Board-side and General Counsel-side attorneys. Now the NLRB-PA (representing headquarters attorneys) is doing the same. And, just like the NLRB-BU matter, an FLRA regional...

USPTO News: Latest Version of M.P.E.P. Released

Tue, 19 Aug 2008 17:09 GMT

By Donald Zuhn -- The U.S. Patent and Trademark Office announced today that the latest version of the Manual of Patent Examining Procedure (M.P.E.P.) -- 8th Edition, Revision 7 -- is now available. The new version replaces Revision 6, which was released in October, 2007. The parts of the latest version of the M.P.E.P. that have been updated are the Blue Pages (a complete list of changes to the latest version of the M.P.E.P.); the Title Page; Chapter 600 (Parts, Form, and Content of Application), Chapter 1400 (Correction of Patents), Chapter 1800 (Patent Cooperation Treaty), Chapter 2200 (Citation of Prior...

Why Lawyers Should Read Shakespeare

Tue, 19 Aug 2008 16:45 GMT

Michael P. Maslanka, the managing partner of Ford & Harrison in Dallas, has this article on Law.com about why lawyers should read Shakespeare. The article begins:

Why do students still read Shakespeare? A conspiracy of finger-wagging, we-know-what's-best-for-you high school English teachers? No. It's his empathetic powers, making people see ourselves as we are -- rationalizations not permitted.

Shakespeare has much to teach lawyers. Eschewing Judge Judy, his questions are penetrating: How should judges go about judging? Does the rule of law matter? Are mercy and justice mutually exclusive, or are they complementary?

The article goes on to discuss Shakespeare's play, Measure for Measure.

Dagan on Taxing the Non-Market Economy

Tue, 19 Aug 2008 16:44 GMT

Tsilly Dagan (Bar-Ilan University - Faculty of Law) has posted Taxing the Non-Market Economy on SSRN. Here is the abstract:

This Article examines the interaction of tax policy and non-market exchanges. It discerns non-market attributes and interactions as a separate paradigm which coherently explains some significant questions of tax policy.

Drawing on the rich body of literature on commodification, the Article offers an innovative theoretical framework for analyzing the tax treatment of the non-market realm. The encounter between tax policy and the commodification scholarships is mutually enriching:

Looking at the commodifying implications of tax law helps explain - and set the boundaries of - some puzzling distinctions in our tax system (e.g. barters v. mutual gifts; work v. leisure; business expenses v. personal consumption; untaxed imputed income of homemakers; business v. non-profit organization). It highlights tax's ability to play a significant role in supporting (or undermining) the non-market. Appreciating this dimension of tax law implies that policymakers should weigh commodification concerns when making choices about what and how to tax.

Adding taxation to the legal institutions analyzed by commodification offers many subtleties for determining what precisely commodifies resources, transactions, and relationships and complements this literature with a set of refined tools for creatively targeting specific commodification concerns without carrying the costs of non-commodification.

Terry & Francis on Privacy of Electronic Health Records

Tue, 19 Aug 2008 16:36 GMT

Nicolas P. Terry and Leslie P. Francis (Saint Louis University School of Law and University of Utah - S.J. Quinney College of Law) has posted Ensuring the Privacy and Confidentiality of Electronic Health Records (University of Illinois Law Review, Vol. 2007, pp. 681-735, 2007) on SSRN. Here is the abstract:

The federal government is fast-tracking a nationally based interoperable health records system. What may at first glance appear to be merely a technical program in fact would fundamentally alter the relationships between patients, physicians, and potentially other parties such as the government and pharmaceutical companies. It is a program that the President endorses (for example, in his last several State-of-the-Union addresses) and has broad, bipartisan support in Congress. The genesis of the article was separately prepared testimony that we were called to give before the federal government's advisory National Committee on Vital Statistics. When we testified we realized both how similar our views were and the urgency of articulating solutions more protective of patients. As we note in the article the current administration has framed the privacy-confidentiality issues implicated by a national records system quite narrowly, identifying only divergent state laws as creating barriers to successful implementation of its proposal. In contrast, we believe that some important challenges to patient autonomy and professional responsibilities must be addressed prior to implementation. The article both explores those challenges and makes specific technical and legal recommendations for protecting patients' medical information.

Onazi on Human Rights

Tue, 19 Aug 2008 16:15 GMT

Oche Onazi (University of Edinburgh - School of Law) has posted In Lieu of a Subaltern Theory of Human Rights on SSRN. Here is the abstract:

This article aims to provide the justification for a subaltern theory of human rights. It explains the desirability of interpretative strategies that reveal the role, knowledge, contributions and sources that depict subaltern human rights perspectives. In particular, it considers the work of Boaventura de Sousa Santos, whose various writings directly or indirectly address the central issues relating to human rights from these perspectives. It subsequently explores the relationship between Santos and other protagonists, such as Upendra Baxi. These perspectives are then correlated with the view that the optimism for subaltern human rights may appear to be only a fantasy, especially if placed in the context of their current relationship with law. The justification or indeed legitimacy of subaltern views of human rights rests squarely on the degree to which such claims can be concretized into law. For instance, the state-centric nature of international human rights law is closed to initiatives that fall beyond its scope. My final preoccupation in this respect is to propose the deconstruction of human rights into a plural discourse of its law and jurisprudence. This, to me, rests on the possibility of extrapolating a view of human rights from the notion of legal pluralism. The article is structured into the following parts. The first fleshes out an understanding of the subaltern concept. The second part locates the subaltern within the context of Santos's work on globalization; here, an attempt is made to correlate the relationship between globalization and human rights, particularly from the perspectives of the subaltern. The third part considers the loose connection of previous sections with the prospective theory of subaltern human rights and, ultimately, how legal pluralism supports this endeavour.

Eric Muller on the Lies of Hirabayashi

Tue, 19 Aug 2008 16:10 GMT

Professor Eric Muller (U. North Carolina School of Law) has posted a new paper, Hirabyashi: The Biggest Lie of the Greatest Generation on SSRN. From the abstract:

This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in the case of Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. While the government's submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of a Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans. Even more disturbingly, the archival record demonstrates that at the time that Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.
The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the "Oriental" as an invading horde may have overpowered the lawyers' evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision - which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures - deserves to be installed in the Supreme Court's Hall of Shame, alongside Korematsu, Dred Scott, and the Court's other biggest mistakes.

According to Eric's blog post about his article: "My article documents all of this from primary archival sources, and then goes on to speculate about what might have led Justice Department lawyers to such a large and consequential deception."

Lee on Desert & the Eighth Amendment

Tue, 19 Aug 2008 16:10 GMT

Youngjae Lee (Fordham University School of Law) has posted Desert and the Eighth Amendment (University of Pennsylvania Journal of Constitutional Law, Vol. 10, 2008) on SSRN. Here is the abstract:

What would a constitutional right based on desert look like? If "the people" believe that, say, child rapists should receive the death penalty, on what basis can one make an Eighth Amendment argument that says that "the people" got the desert question wrong? In order to answer this question, this Essay addresses a set of related questions, one step removed: What should be the significance of ordinary intuitions about what people deserve when criminal law scholars theorize about what people deserve? If a popular belief about a question of desert does not match up with conclusions arrived at through theorizing and reflections about desert, who should revise their views - the people or the theorists? The answer, I suggest in this Essay, is twofold. First, statements about desert that fail to capture the core of ordinary moral intuitions cannot be ultimately successful. Second, it is a mistake to believe that answers to questions about desert can be simply read off public opinion surveys or inferred from laws passed by legislatures. The role of theories about desert is to take various particular convictions held by people about what people deserve and test them against broad principles, while warning against various sources of confusion and excess that frequently infect desert judgments, such as prejudice and vindictiveness. The relationship between desert theories and popular sentiments is thus quite complex, and we must be suspicious of simple assertions either in favor of dismissing theories as irrelevant or in favor of disregarding popular sentiments as base or irrational.

Roberts on Restitutionary Disengorgement

Tue, 19 Aug 2008 16:05 GMT

Caprice L. Roberts (West Virginia University College of Law) has posted Restitutionary Disgorgement as a Moral Compass for Breach of Contract on SSRN. Here is the abstract:

A quiet revolution is underway. A new rule proposed in the forthcoming Restatement (Third) of Restitution seeks to deter conscious wrongdoers from retaining profits from "opportunistic" breaches of contract. The proposed disgorgement remedy for defendant's opportunistic breach of contract will have fundamental consequences for contract theory and practice. This contractual remedy is gain-based rather than compensatory. Restitutionary disgorgement, rooted in unjust enrichment, may shift the conventional paradigm of contract law.

This article examines whether a restitutionary disgorgement remedy for certain breaches of contract is compatible with traditional contract principles such as Justice Holmes's choice principle. Recall his oft-repeated declaration, "The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, - nothing else." Disgorgement calls for certain value choices, including moral blameworthiness and promise-keeping. Furthermore, the underlying rationale for disgorgement is in tension with efficient breach theory. This article assesses whether disgorgement can coexist with conventional contract theories, and, if not, whether disgorgement's values should be preferred. Ultimately, restitutionary disgorgement for opportunistic breach of contract is a promising development for contract law and restitutionary theory. There is, however, room for further refinement before the ink is dry on the pending Restatement.

Does the Third Amendment Prohibit More Than Just Quartering?

Tue, 19 Aug 2008 15:57 GMT

There's an interesting -- if somewhat self-indulgent -- student note recently posted to SSRN that argues that everyone's other favorite forgotten constitutional provision (the Third Amendment) might actually do more than simply prohibit the quartering of troops in private homes during peacetime (and require congressional authorization for such conduct during wartime). According to the note's author, Joshua Dugan, the way quartering was understood to revolutionary-era America was as more than just the physical act of housing troops; it included the general enforcement of the laws by the military, especially in any area of private life. Dugan's real target is the...

WEB-ONLY: In Idaho, it's a race between two law schools, one private, one public

Tue, 19 Aug 2008 15:55 GMT

The University of Idaho is proposing to open a law school campus in Boise, the state capital, before a private law school does. Donald L. Burnett Jr., dean of the public University of Idaho College of Law, argues in a proposal to be heard next week by the state board of education that the law school cannot remain competitive if it stays solely at the Moscow campus in northern Idaho. Concordia University, a private Lutheran university in Oregon, announced early this year that it is considering a law school in Boise.

9th Circuit Joins Pack on Accrual Rule in Echo of Ledbetter

Tue, 19 Aug 2008 15:48 GMT

Via CCH Workweek comes Lukovsky v. City and County of San Francisco, a public employment discrimination case brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. At issue was not the merits of the plaintiffs' claim (preferential hiring of...

But I Like the Crusts

Tue, 19 Aug 2008 15:28 GMT

A number of years ago, Smucker was roundly mocked in some intellectual property circles for obtaining a patent on a “crustless” peanut-butter-and-jelly sandwich. The Federal Circuit, in fact, invalidated some of Smucker's broader claims. Fast forward to the present, however, and the Smucker's “Uncrustables” line of prepared sandwiches is doing just fine in stores, and IP rights remain in play. More below the jump.

Last Wednesday, Smucker's filed a Complaint against a competitor for infringement of its IP rights in Uncrustables. But Smucker isn't complaining about patent infringement. This time, the company will avoid a return engagement with the Federal Circuit by suing two firms, producers of the crustless sandwich called the “PB Jamwich” and “PB Jammerz,” under the Lanham Act. The core allegation is that the PB Jamwich and PB Jammerz, which are square, infringe Smucker's trade dress rights in Uncrustables, which are round.

A copy of the Complaint is posted here.

Some of the details are simply entertaining. The Complaint recites correspondence between the parties that includes denial of liability on the ground that the packaging for the PB Jamwich and PB Jammerz features an image of the crustless sandwich sliced in half. Smucker's counsel replied that mutilating the mark does not reduce likelihood of confusion. That's a phrase that belongs in Tom McCarthy's treatise: the trademark equivalent of that priceless maxim of California law, “superfluity does not vitiate.”

On the merits, the Complaint elides an interesting distinction. I assume that the intended consuming audience for Uncrustables is composed largely of children. This is a case, therefore, where likelihood of confusion analysis might plausibly focus on children, and if that's correct, then Smucker's claim seem strong, at least at the outset. Round sandwich; square sandwich? Once the crust is missing, who can tell the difference? On the other hand, if Smucker can enforce round sandwich rights against square sandwiches, does that give Smucker an overly broad trade dress right? Among other questions to be asked is this one: How many shapes are left for competitors to exploit? Is a triangle acceptable? A parallelogram?Remember that Smucker shouldn't be able to obtain a patent-like property right without a valid patent!

But the Complaint also dwells on the packaging, and on the boxes (images of which are included in the Complaint). On the packages, for which adults might be the relevant consuming audience, it's more difficult to see similarities between the plaintiff's “sandwich mark” and the defendants' “mutilated” sandwich. “Mutilation” might be a particularly unfortunate choice of words. To a lot of consumers, and Smucker's counsel notwithstanding, a thing that has been mutilated might be readily distinguished from the untarnished original. So which is it? Packaging or thing?

The most remarkable aspect of the filing may have nothing to do with trademark law itself. As Smucker acknowledges in the Complaint, roughly a month ago the defendants filed petitions under the Bankruptcy Code. The Complaint therefore alleges that Smucker's claims are not subject to the automatic stay. To a lawyer (like me) with a casual familiarity with bankruptcy law, this raises a red flag: Doesn't the Complaint represent a wilful violation of the automatic stay? Not so fast. I haven't done an exhaustive search, but I have seen some opinions that hold that post-petition suits against a Chapter 11 debtor for infringement of IP rights don't violate the automatic stay, because they don't necessarily seek to control property of the debtor or otherwise interfere with the orderly administration of the debtor's estate.

Chew on that.

Technorati Tags: uncrustables, crustless sandwich, peanut butter and jelly, smucker, trade dress

The Return of The Single Entity Defense for Sports Leagues

Tue, 19 Aug 2008 14:30 GMT

The Seventh Circuit ruled yesterday in American Needle v. NFL (No. 07-4006) that NFL teams act as a single entity “when promoting NFL football through licensing teams’ intellectual property“ and are therefore not subject to scrutiny under Section 1 of the Sherman Act.

To give some brief background on this case, the plaintiff (American Needle) designs, manufactures, and sells apparel bearing the names and marks of pro sports teams. For more than 20 years, American Needle held a non-exclusive license from the NFL to manufacture and sell headwear with each of the NFL’s team logos. In 2000, the NFL teams authorized NFL Properties to solicit bids from vendors for an exclusive headwear license. Reebok won the bidding war and received a 10-year exclusive license. At that point, American Needle’s non-exclusive license was terminated and it responded by filing an antitrust claim against the NFL, NFL Properties, each of the NFL teams, and Reebok. The district court granted summary judgment for the NFL defendants, ruling that the NFL and the NFL teams “act as a single entity in licensing their intellectual property.” The district court opinion was discussed here.

The single entity issue is obviously very important and has been the subject of much debate over the years, and I plan to discuss that issue and this case in more detail later on, but I just wanted to give my quick reaction after reading the Seventh Circuit opinion.

The court starts from the premise that, under Copperweld (467 U.S. 752 (1984)), “when making a single entity determination, courts must examine whether the conduct in question deprives the marketplace of the independent sources of economic control that competition assumes.” The court then jumps to the conclusion that:

NFL teams can function only as one source of economic power when collectively producing NFL football. Asserting that a single football team could produce a football game is less of a legal argument then [sic] it is a Zen riddle: Who wins when a football team plays itself? It thus follows that only one source of economic power controls the promotion of NFL football; it makes little sense to assert that each individual team has the authority, if not the responsibility, to promote the jointly produced NFL football. Indeed, the NFL defendants introduced uncontradicted evidence that the NFL teams share a vital economic interest in collectively promoting NFL football.

Putting aside the need for some new Zen riddles, I’m not sure I follow the court’s reasoning, and the opinion seems to conflate the single entity analysis with the ancillary restraints doctrine (discussed in the comments to Rick’s post). Nearly every judge and commentator has concluded (sometimes even without a Zen reference) that some degree of cooperation among individual sports teams is necessary for a sports league to exist. To use a simple example, the Jets can’t play the Patriots unless both teams agree to play a game on a certain date, with certain rules of the game, etc. Courts have relied on the necessity of this cooperation to permit sports leagues to avoid per se illegality in Section 1 cases, but the Seventh Circuit seems to be taking the argument to the other extreme and arguing that NFL teams should be considered a single entity whenever they agree on rules that allow them to play the game (ie, that are necessary for the product to exist).

Assuming, for the sake of argument, the court’s analysis is correct for the single entity issue in those limited circumstances, I don’t see how that answers the single entity question when the activity in question is the sale of NFL-logoed headwear. Yes, the NFL teams have a shared interest in the survival of the NFL (because, under the court’s argument, they don’t exist unless the NFL exists), but does that also mean that the NFL teams have a shared interest (or an independent source of economic control) when selling hats with their team logos on it? It seems to me that the correct answer to that question has more to do with the fact that NFL teams share merchandising revenue equally than Zen riddles. Yet, the Seventh Circuit does not even specifically mention this fact in its opinion, instead choosing to rely on the generic notion of a shared interested in “promoting the NFL” through the sale of logoed wool hats.

There is at least one other troubling aspect of the opinion. The court asserts that: “Simply put, nothing in Section 1 prohibits the NFL teams from cooperating so the league can compete against other entertainment providers. Indeed, antitrust law encourages cooperation inside a business organization—such as, in this case, a professional sports league—to foster competition between that organization and its competitors.” Is the court concluding that the NFL is in the same relevant market as all other entertainment providers (and what is an “entertainment provider”?)? Based on what? And is the Seventh Circuit referring to the market for games (live or televised?) or the market for logoed apparel? I am all for streamlining the determination of the relevant market, but this seems a bit extreme.

I’m not surprised that American Needle lost the case—I thought this would have been a relatively easy rule of reason win for the NFL. I am surprised, though, that this case was disposed of based on the single entity issue. The holding in this case is fairly narrow, but the single entity argument for sports leagues is officially alive (at least in the Seventh Circuit), and I suspect the leagues will do their best to expand its use in future cases.

The Cathedral of Our Lady of the Angels.

Tue, 19 Aug 2008 14:27 GMT

Climb up out of the parking garage and catch the first glimpse:

At the end of a sunlit hallway:

The interior of the cathedral has a design reflecting 2 theological truths: 1. "the LIGHT of God revealed in salvation history, especially in and through Jesus Christ, \" and 2. "the sense of JOURNEY which describes our evolving relationship with God. We are on the journey, alone and together as the People of God, on pilgrimage, towards redemption in our lives. Therefore, as we walk away from the darkness of evil, we move towards the saving Light of Christ and the fullness of the Kingdom of God in Heaven."

(Enlarge.)

Gender and Law Reviews:

Tue, 19 Aug 2008 14:08 GMT

Back in 2005, we had a thread on the topic of gender and law review placements. The question was, why are so many of the placed articles in top journals...

Free the Airwaves: Whitespace campaign

Tue, 19 Aug 2008 13:12 GMT

My contribution to the "Free the Airwaves" campaign, a push to free spectrum "whitespaces."

Analysis: Escalating the Parhat case

Tue, 19 Aug 2008 12:25 GMT

Analysis

In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court. It now appears that Huzaifa Parhat could be the next detainee added to that list.

A member of a long-persecuted Chinese Muslim community, the Uighurs, Parhat is moving rapidly toward a courthouse showdown of major proportions.

He is attempting to become the first Guantanamo Bay detainee to take the witness stand in a civilian courtroom inside the U.S., to make a personal case for freedom, and, more significantly, he is seeking actual release into the U.S. to live, at least temporarily, with a group of Uighurs in the Washington, D.C., area.

Both of those prospects are unsettling to the Bush Administration: Attorney General Michael B. Mukasey has made it very clear that the government will fight energetically against bringing any detainee into mainland U.S., for any purpose — a view that, among other consequences, has complicated the question of whether to close the Guantanamo prison operation entirely.

But something else of deep constitutional significance is lurking in Parhat’s court case. The Justice and Defense Departments are using the case to test anew their theory that the U.S. government has very broad constitutional authority — beyond the reach of the courts — to “wind up” (or “wind down”) the process of detention in a way that would mean that individual detainees, even though found not to be enemies (Parhat’s situation), would remain for extended periods at Guantanamo in a kind of legal limbo.

That status also could await any detainees — Hamdan could be the first example – who get convicted of war crimes, but then finish out their sentences and then seek release. (Pentagon officials already have signaled that they may hold Hamdan at Guantanamo when his sentence is completed early next year, and Hamdan’s lawyers have vowed to contest any such plan. Hamdan’s fate, though, may not be settled before Parhat’s case has first tested the “wind up” argument.)

In response to the government’s argument that the Executive Branch has the sole constitutional authority to “wind up Parhat’s detention in an orderly fashion” (meaning, among other things, no release into the U.S. and perhaps a prolonged stay at Guantanamo), Parhat’s lawyers have mounted a sweeping constitutional claim of their own. They are arguing (in a filing last Friday, found here) that the government theory amounts to an unconstitutional suspension of the writ of habeas corpus. That is the same argument that led the Supreme Court, in Boumediene v. Bush on June 12, to grant the detainees a constitutional right to challenge in civilian court their captivity.

The heavy constitutional in-fighting over Parhat’s case — a habeas challenge being pursued under the authority of the Boumediene decision — has resulted, in part, from the almost coincidental fact that his was the first detainee challenge to captivity to go forward under the Detainee Treatment Act of 2005, among the 150 or so such challenges pending. The D.C. Circuit Court ruled June 20, in the first DTA decision, that the government had not proved its claim that Parhat was an “enemy combatant” — the only basis for detention at Guantanamo. The Circuit Court said he either had to be released, sent to another country, given a new Pentagon hearing on combatant status. or allowed to seek his release in the habeas proceeding (District Court docket 05-1509).

Parhat and the government agree that he should not be sent back to China, his home country, because of his apparently very real fears of further persecution. But the government has told the courts repeatedly it has been unable to persuade any other country to accept him. And, until it does, the government has argued, he must remain at Guantanamo to “wind up” his detention.

The situation with Parhat is apparently not an isolated one. An unknown number of detainees (the number could be substantial) want release, but do not want to be sent back to their home countries, for fear of torture or abuse. Even if ruled not to be enemy combatants, the “wind up” theory would keep them in the Guantanamo prison for unspecified periods.

The government first made the “wind up” authority argument in federal court about three years ago, in another case involving the Uighurs (Qassim v. Bush, 05-497), but did not get a definitive ruling on it. However, the District judge handling that case, James Robertson, did comment in an opinion in December 2005 that “the support the government offers for its assertion of ‘wind up’ authority is unpersuasive and, in my view, actually cuts against the government’s position.” Even if some “reasonable wind up period of detention was allowable,” Judge Robertson said, a stay at Guantanamo that becomes indefinite is “unlawful.” (The Justice Department is now relying heavily on another part of Judge Robertson’s ruling in the Qassim case — his separate conclusion that he could not order that the Uighurs be brought into the U.S. to appear in their habeas cases.)

The Justice Department brought back the “wind up” authority argument most recently in an Aug. 5 filing in District Court in Parhat’s case. In the meantime, it had decided not to continue to press its claim that Parhat was an “enemy combatant” (although it continued to insist his initial detention was justified because of links to terrorism.) In this latest filing, it told District Judge Ricardo M. Urbina: “Now that the exigency supporting Parhat’s wartime detention has abated, the question is whether the Department of Defense has the authority to wind up Parhat’s detention in an orderly fashion. It clearly does, for reasons rooted in history and logic….The power to wind down or how quickly the wartime detention of suspected enemy combatants, like the related power to capture such suspected combatants in the first place, is by ‘universal agreement and practice’ an ‘important incident of war.” It is specifically authorized, the document contended, by the 9/11 Resolution that Congress passed after the 2001 terrorist attacks.

The filing by Parhat’s lawyers last Friday continues to dispute that there was any basis for detaining Parhat in the first place. But this document goes much further in disputing the “wind up” authority, if that means the practical scuttling of any right to release as a result of a habeas challenge.

The lawyers told Judge Urbina that, if he planned to make his decision on the issue of Parhat’s release, or on his right to release, based on any of the government’s claims about the Uighur’s alleged combatant status, Parhat should be brought into the U.S. to take the witness stand to refute all such claims.

Parhat, the reply brief contended, does not deny that the Executive has the authority under immigration laws to exclude him. “What the Executive cannot do…is detain Parhat indefinitely pending expulsion or exclusion.” Moreover, the brief argued, he is not seeking any remedy under immigration laws; he is seeking only a temporary release into the U.S. — with conditions the judge may wish to impose, such as regular reporting to officials — until he can be placed in a country other than China.

“Granting the relief sought by Parhat,” the brief said, “would not conflict with statutory law or usurp the immigration authority of the political branches. To hold otherwise would lead to the conclusion that habeas itself is an unconstitutional violation of separation of powers.”

But, if the immigration laws do come into play, and they frustrate any attempt to gain release as a habeas remedy, the brief contended, that would violate the Constitution’s Suspension Clause — the ban on suspension of the habeas writ.

Breaking News:

Tue, 19 Aug 2008 12:08 GMT

...

All Americana!

Tue, 19 Aug 2008 11:51 GMT

"Introducing the first part of our two-part film, All Americana! Written and directed by MVL Film Fellow, Stephen Dypiangco, this film follows Marta whose dream of attending UCLA is derailed by her undocumented status."

Henry Cejudo captures gold and a piece of the American dream

Tue, 19 Aug 2008 11:51 GMT

"Henry Cejudo called it the American dream. The son of undocumented Mexican immigrants who had to work two jobs to keep food on the table, Cejudo gave the U.S. its first Olympic gold medal in freestyle wrestling in Beijing with a stunning win Tuesday over Japan's Tomohiro Matsunaga in the 55-kilogram (121 pounds) final." Los Angeles Times, Aug. 19, 2008.

Ninth Circuit on "other serious harm"

Tue, 19 Aug 2008 11:51 GMT

"The BIA erred in failing to determine whether, assuming the truth of Soweâs testimony that he witnessed his parentsâ murder, the severing of his brotherâs hand, and his sisterâs kidnaping, he provided compelling reasons for his being unwilling or unable to return to Sierra Leone. Because we lack the authority to act as fact- finders, or to determine credibility in the first instance, we must remand to the BIA the question whether Sowe is eligible for asylum pursuant to section 1208.13(b)(1)(iii)(A)." Sowe v. Mukasey, Aug. 19, 2008.

Ninth Circuit on abuse of discretion

Tue, 19 Aug 2008 11:51 GMT

"We must decide whether the IJ abused his discretion indenying Cuiâs motion for a continuance so that she couldresubmit her fingerprints. We hold that, in the circumstances of this case, the IJâs denial of Cuiâs request for a continuance constituted an abuse of discretion. Accordingly, we grant Cuiâs petition and remand for the IJ to grant Cui the opportunity to submit new fingerprints in advance of her merits hearing." Cui v. Mukasey, Aug. 19, 2008.

Ninth Circuit on motions to reopen

Tue, 19 Aug 2008 11:51 GMT

"We hold that, when the BIA commits legal error in a petitionerâs direct appeal, the BIA cannot cure that error in a denial of the petitionerâs motion to reopen." Doissaint v. Mukasey, Aug. 18, 2008.

The Law Students and the Rosenbergs

Tue, 19 Aug 2008 10:36 GMT

Here's a plug for several of my students, who, under the direction of my colleague David Vladeck and Georgetown's Institute for Public Representation, successfully opened the grand jury transcripts in the trial of Julius and Ethel Rosenberg, in a suit brought on behalf of the National Security Archive and others. The story is here.

Federalist society debate on same-sex marriage

Tue, 19 Aug 2008 10:28 GMT

The Federalist Society has graciously sponsored an online debate on same-sex marriage, with Prof. Dale Carpenter of the University of Minnesota and myself arguing in favor, and Prof. Amy Wax of the University of Pennsylvania and Prof. Robert Nagel of the University of Colorado arguing against. It can be found here.

adobe reader troubles

Tue, 19 Aug 2008 10:01 GMT

I do a fair amount of reading on Adobe Acrobat Reader. For some reason, the interface looks all new and different and way less useful. I can't select and highlight text. I press Ctrl + F and there's a "find" toolbar, and yet when I type in a word I can see clearly on my screen, it says that it is unable to find a single incidence of that word in all 52 pages. A word like "jurisdiction," in a section about jurisdiction, in a paragraph that probably mentions the word at least 15 times. WTF.

Is this a feature rather than a bug? I installed all of the updates. Do I have to pay for some fancier version of Adobe that actually has useful features and the ability to find words? This just sucks beyond the possibility of ultimate suckage.

Is this just me, or are you having similar problems with Adobe?

We ain't no delinquents

Tue, 19 Aug 2008 09:51 GMT

Hilzoy comments on David Brooks' latest column about how John McCain is a decent man being forced by the sad realities of the American political system to run a negative campaign.

Compelled? No choice? I don't think so. For one thing, there are lots of ways in which McCain could campaign without lying or impugning his opponent's patriotism. Some of them might even win. If McCain's advisors can't think of a single one of them, that shows only their limited imaginations.

But let's pretend, just for the sake of argument, that they are right to say that the only way to win, this year, is by taking the low road. Would that mean that they have to take it? Of course not. That means you have a choice between honor and ambition; between running a decent campaign and a sordid one; between being a candidate the country can be proud of and being a candidate who contributes to the degradation and trivialization of political discourse.

You would have no choice only if you assumed that your own ambitions were more important than your honor.

To enlarge on this point a little: isn't it particularly incongruous for a self-described conservative pundit to invoke the Gee Officer Krupke defence? You know, all that honor and integrity stuff – how the choices we make reflect our innate character rather than our environment and all that. I imagine that if we saw an actual principled conservative assessment of some of the tactics that have been used by McCain in the last several weeks (flat out lies, claims that his opponent cares more about winning the election than the lives of American troops and so on), it would arrive at rather different conclusions …

Too Bad Michael Phelps Isn't 35

Tue, 19 Aug 2008 09:35 GMT

Per the 12th Amendment, candidates for the Vice Presidency must have the same qualifications as those for the Presidency, including being at least 35 years old. Thus, Michael Phelps is not available to serve as running mate for either Sen. McCain or Sen. Obama. Even the Olympics consummate running mate this year, Jason Lezak, is a few years too young. Thus, if either candidate wants to cash in on Olympic fever, he'll have to pick Dara Torres or perhaps Jason Kidd (assuming the U.S. beats Australia in the basketball quarterfinals).

Which leads me to the following question, which I'll pose more or less as an open thread: What is the effect of the Olympics on the Presidential election, each held the same year every four years? My preliminary thoughts are that it has the following impacts:

1) The Olympics help Republicans, as they stir up feelings of unalloyed patriotism, and while candidates for both parties are patriotic, Democrats tend to define patriotism in more complex ways, whereas for Republicans it tends to be more along the lines of "USA, USA, USA." (Yes, that's a vast oversimplification, I know).

2) Effect number 1 is more pronounced to the extent that US athletes succeed. Of course, the US media tend to focus on US athletes, and there are always a good number of successful ones, so this is a matter of small degree.

3) The Olympics delay the start of the general election campaign, so that there's a long period of the candidates feeling each other out after they've clinched their respective nominations. This year that period was shortened by the length of the Democratic race, but it has still seemed quite a long time since Sen. Clinton conceded. Perhaps, however, the Olympics delaying effect is swamped by the effect of the campaign finance rules. Parties schedule their conventions late, so that they can spend money raised for the primaries until the general election public funding limits kick in. Whether that will continue to be true in future cycles depends on how successful Obama's fundraising turns out to be after he dropped public funding for the general.

Posted by Mike Dorf

Seeing Michael Phelps’s Gold Medal Situation

Tue, 19 Aug 2008 09:30 GMT

Sam Sommers has another excellent (situationist) post, titled "The Greatest Ever? Not So Fast . . ." over at Psychology Today Blog. Sommers's post is worth reading in its entirety (here), but here are a few particularly situationist excerpts. * * * U.S. Swimmer Michael Phelps just won his ...

Immigrant son lives American dream

Tue, 19 Aug 2008 09:29 GMT

"Henry Cejudo, the son of illegal immigrants from Mexico, completed his American dream by crushing Japan's hopes of their first Olympic men's wrestling gold medal in two decades." AAP, Aug. 19, 2008.

Glenn Loury and John McWhorter on McCain and Obama at the Saddleback Civil Forum.

Tue, 19 Aug 2008 09:19 GMT

How the 2 candidates' styles vary:

Also, Loury really objects to the way Obama talked about Clarence Thomas:

The GTMO "Incentive Program"

Tue, 19 Aug 2008 09:13 GMT

by Nicole Barrett, a Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia. Her previous posts are available here and here, and earlier reporting is available from Sahr MuhammedAlly, Aaron Zissler and Frank Kendall.

Guant&cute;namo Bay, August 18, 2008. In dramatic testimony last week at Guant&cute;namo, the story of Mohammed Jawad’s abuse by U.S. military personnel continued to unfold. Jawad alleges he was first tortured while in detention at the Bagram Air Base in Afghanistan and then again at Guant&cute;namo in May 2004. Special Agent Angela Birt, a former Army Criminal Investigation Division investigator, testified that Jawad’s description of his mistreatment at Bagram fit with the pattern of abuse that she uncovered while investigating the homicides of two Bagram detainees.

While the prosecution made a feeble attempt to cast doubt on Jawad’s mistreatment at Bagram, it conceded the existence of the Guant&cute;namo “frequent flyer” program, which the defense contended featured as an integral part of Jawad’s abuse.

In fact, at least one U.S. military official not only conceded the existence of the program, but he positively endorsed it. Army Major Jason Orlich, formerly in the joint detention operations group and then the interrogations group at Guant&cute;namo, enthusiastically described the frequent flyer program, in classic Orwellian doublethink, as an “incentive program.” Orlich confirmed that, under the program, detainees were moved from cell to cell up to eight times a day, or every three hours, following a “Discipline Synch Matrix.”

The goal was to keep detainees “off balance” and prevent the “worst of the worst” from organizing. For detainees like Jawad, who were held in certain camps, the program was “standard operating procedure,” approved by senior leadership. Orlich testified that the program was “humane,” “promoted good behavior,” and protected the military police. He denied that the program caused sleep deprivation. (The Guant&cute;namo military leadership appears not to have shared Orlich’s sanguine view of the program. They thought it was worth hiding).

The defense argued that the frequent flyer program as applied to Jawad was torture because it caused extreme sleep deprivation and disorientation. Prison records show that Jawad was moved 112 times over 14 days in May 2004.

What is the government’s official view of such practices? A Department of Defense working group report of April 4, 2003 considers the legal parameters of torture when evaluating possible interrogation techniques. The report says that sleep deprivation holds “problematic aspects that cannot be eliminated by procedural safeguards.” It further notes that the Committee against Torture has interpreted sleep deprivation for prolonged periods to constitute cruel, inhuman, or degrading treatment and torture under the Convention against Torture. The report concludes that sleep deprivation is “not to exceed 4 days in succession.”

Complaints by FBI agents of “improperly used sleep deprivation against detainees” led to an internal investigation, called the Schmidt Report, which concluded that no action was needed as the “JTF-GTMO [Joint Task Force Guant&cute;namo] Commander terminated the frequent flyer cell movement program upon his arrival in March 04.” In Jawad’s June 2008 hearings, General Hood testified that he ordered the frequent flyer program terminated.

But Major Orlich’s testimony before the commission last week suggests otherwise. Orlich said that, as of April 2005, the frequent flyer program was ongoing and that he was not aware of any order to stop the program. He also confirmed that “all” of the relevant military leadership, including General Hood and General Cannon, knew of the program, and no one questioned the program’s legality.

Unfortunately, details on how many detainees were in this program were not revealed. Orlich’s estimate, however, that the relevant camps contained approximately 350-400 people, combined with his testimony that the frequent flyer program was “standard operating procedure,” suggests that the number of detainees subject to the program may be significantly greater than previously thought. High numbers seem even more likely when considering that Jawad’s disciplinary records—which show “cross-block talking” as his worst offense—landed him in the program.

Major Frakt closed his presentation with an impassioned and scathing denunciation of Jawad’s treatment at Bagram and Guant&cute;namo. He requested that Jawad’s attempted murder charge be dismissed on the ground of “outrageous government conduct.” The prosecution’s response? “Sworn enemies of the United States . . . have to be held in conditions that protect Americans.” It is hard to see any relationship between routine abuse of detainees and the protection of American lives.

Online debate about SSM:

Tue, 19 Aug 2008 09:08 GMT

The Federalist Society has posted a lively but civil debate about gay marriage on its website. The exchange is available here....

Candidate suggests two plans for ballot access

Tue, 19 Aug 2008 09:06 GMT

Lawyers for an independent candidate for the U.S. Senate argued on Tuesday that a Supreme Court Justice has clear authority to order the state of Maine to put his name on the ballot for the Nov. 4 election, to compete with incumbent Republican Susan Collins and Democratic nominee Rep. Tom Allen.

In a response to an order last Friday by Justice David H. Souter (see this earlier post), attorneys for non-party challenger Herbert J. Hoffman said there are two ways that the Court has available that could assure him ballot access. First, a stay of a July 28 Maine Supreme Court decision would put back into effect a ruling by the Maine Secretary of State that Hoffman has qualified for the ballot, the new filing said. Second, it suggested, ballot access could be assured by a direct order to the Secretary of State to list Hoffman.

The supplemental filing can be read here.

Later today, the Maine Secretary of State and the state chairman of the Democratic Party are to file responses to the Souter order, discussing the same issues that Hoffman’s filing considered, plus replies to his argument that his constitutional rights and those of Maine voters would be violated if he is now kept off the ballot. (The blog will post those replies as they become available.)

As of now, Justice Souter is considering the Hoffman stay application, but he has the option of sharing it with his colleagues.

Conference Announcement: The "Obama Phenomena"

Tue, 19 Aug 2008 08:48 GMT

On this Blog, we usually stick to matters of corporate governance. Nonetheless, with the Democratic National Convention about to descend on our fair city, we feel compelled to note a conference being held by the Univesity of Denver Sturm College of Law called the "Obama Phenomena: Facets of a Historic Campaign."

It is a day long event and will be held on Aug. 29. The conference will examine the cultural wave that has lifted Obama from first-term senator to the first African-American major-party presidential nominee. A diverse, intergenerational collection of scholars will examine the meaning of Obama’s candidacy, looking at aspects including race, gender, and religion. In addition, panels will discuss the changing nature of campaign organization and Obama’s potential impact on affirmative action law, election law and U.S. foreign policy.

Harvard law professor and controversial author Randall Kennedy will deliver the keynote address at 12:30 p.m., “Barack Obama and the Optimistic Tradition in American Racial Commentary.”

Other panels, beginning at 8:30 a.m., include: “From Domain Names to Video Games: The Rise of the Internet in Presidential Politics;” “Obama’s Strategies, Changing the Status Quo;” “Race and the Obama Phenomenon: Change We Can Build On;” and “Predicting the Supreme Court in an Obama or McCain Presidency.”

Scholars from universities in at least 13 states are expected to descend on DU for the event, which offers fertile ground for journalists seeking commentary and analysis of a news-filled four days in Denver. A full schedule of topics and list of experts scheduled to attend is online at http://www.law.du.edu/index.php/obama-phenomena

AALS FAR Form Database or Elaborate Phishing Scam?

Tue, 19 Aug 2008 08:35 GMT

Thanks to Dan and company for agreeing to let me blog here again. During my stint, I promise to talk about the law (and in particular, the threat to privacy posed by Internet Service Providers) but let me warm up with some lighter, more navel-gazing fare:

I'm serving for the first time on our Appointments committee this year, which means I get to look at the FAR form database from the other end of the microscope. Rick Garnett asks about the weaknesses of the form itself, but I wanted to comment instead on the awful user interface AALS provides for those of us perusing the forms.

The FAR form database's user interface recalls the aesthetic of most of the phishing scam websites I have ever seen. It is ugly, which itself is not much of a sin for such a utilitarian site, but it makes me wonder whether AALS is putting care into other aspects of the database, such as privacy and security. It is also very hard to use, and I will venture to guess that schools are missing some candidates they might otherwise want to interview because of the lousy interface. Here are some specific criticisms:

1. The site's search engine interface is bizarrely designed and very hard to use. For one thing, the search page is entitled "Untitled Document."

Worse, it appears that the search form was once a single page about which someone decided, "wouldn't this look better with tabs?" Clicking on one of the five tabs--"Personal," "Education," "Teaching," "Employment," and "Bar"--displays the desired subform but not at the top of the screen; instead, the visible subform floats where it once sat on some gone-but-not-forgotten untabified version of the form. (e.g., the "Education" subform sits approximately two-fifths of the way down the blue field.) (See this screenshot with the "Teaching" tab selected to get a better idea of what I am describing.) On my screen, the last two subforms, "Employment" and "Bar," fall off of the bottom of the screen, so the user gets what looks like an empty blue field, with the search fields visible only to those who scroll down. I bet quite a few professors have abandoned their searches when faced with this "empty" page.

In addition, the tabbed interface leaves a user wondering whether the search terms specified under one tab (say Education) are "ANDed" with the terms specified under another tab (say Teaching). As it happens, the terms are ANDed, which is good, but this behavior is not obvious without testing it.

2. If you want to search for publications, you look under the "Bar" tab, naturally.

3. For some categories of information (JD-granting institutions, Course preferences) you can select from possible entries in a check-box; for other categories of information (Publication Titles, First Name, Last Name) you can perform text searches; and for yet other categories of information (Employment) you can only search broad categories of information. This inconsistency is maddening. Worse, the third category is especially limiting, because although I can tell that somebody served as a Judicial Clerk or Government employee, I can't search for a particular judge, court, or agency.

4. While searching or browsing, I can save the FAR forms of interesting candidates in "portfolios," but it appears that these portfolios are shared with everybody else on my committee. This might be specific to the way we set up our accounts here, but if it is system-wide, this makes portfolios less useful. Committee members aren't able to keep a scratch pad of their favorite candidates (unless they literally scribble it down somewhere else) unless they want their fellow committee members to be able to watch.

5. The page is NOT hosted at aals.org. This is not unusual, of course, but what is unusual is that the page is hosted by a company called omnicontests.com. Omnicontest's home page does not scream, "company you should hire to design a web page." It has the aesthetic appeal of a Microsoft FrontPage-designed website, circa 1998.

6. Omnicontests.com touts itself as "The premier solution that streamlines the registration, payment and judging of your awards contest." There you have it, folks: the AALS hiring process is at bottom an elaborate sweepstakes with entrants, judges, winners, and losers. Of course, we already knew that, but it's interesting to see AALS admit it so publicly.

I could go on. What points am I trying to make? First, AALS should probably redesign the site to make it easier to use. For example, every field in the database should be text searchable. Second, AALS should audit the system to make sure they are protecting the privacy of the applicants as best as they can. Third (although this advice won't help those who have already submitted their forms) next year's applicants might want to try to "test drive" the search engine, if they can find a current committee member willing to let them, to see the various ways the different parts of the form may be searched. It may surprise Supreme Court Clerks, I imagine, to know that committee members cannot single them out, at least using AALS' interface. (Although please correct me if I'm wrong about this.)

Johnston: Real Estate Meltdown Presents Opportunity to Eliminate Mortgage Interest and Property Tax Deductions

Tue, 19 Aug 2008 08:34 GMT

David Cay Johnston has published Can You Hear Opportunity Knocking?, 120 Tax Notes 683 (Aug. 18, 2008): Right now the subprime mortgage mess has created an opportunity to improve our tax system and the economic lives of virtually all Americans,...

Crocodile Tears over Ethanol Subsidies

Tue, 19 Aug 2008 08:30 GMT

The following broadcast is one of the most compelling and succinct briefs against ethanol subsidies I've seen:

The only problem is that the group that sponsors it has helped create the problem they're now decrying. It's as if someone had surrounded a house with gasoline, then put up a sign asking passers-by not to throw any cigarette butts there.

Consider: why do we have a fuel crisis presently? Who have been shouting down CAFE standards for years on end? Who would go to the barricades to defend to the death any individual's right to own and drive an SUV, Hummer (or perhaps a tank, post-Heller)? And who, while decrying politicians for trading ethanol subsidies for political donations, turns around and says the First Amendment prevents any real campaign finance reform?

The libertarians' consistent opposition to progress in any of these areas makes their sudden concern about ethanol and the food crisis highly suspect. It also highlights a larger issue in what are misnamed "conservative" politics today (for many of its most influential figures hope to revolutionize basic aspects of our national security policy and welfare state).

Libertarians will complain bitterly about being taxed to support the war in Iraq, while helping dismantle the very regulatory policies that could reduce our dependence on oil in the Mideast. National security conservatives realize that tax cuts help hollow out our defense capabilities and social services for soldiers, but gladly sign on to ally politically with those who push them. Many thoughtful social conservatives realize that it is economic insecurity and mass marketing of trash culture that do the most to undermine families--but in the end find it's just too hard to part ways with their tax-cutting pals. Michael Tomasky, Jonathan Chait, and Thomas Edsall have all noted the strangeness of this ad hoc alliance--but perhaps its key sustaining element is a tacit agreement to give each group total sway in its sphere of influence.

Philip Tetlock helps us more fully understand how an anti-tax animus unites the groups:

Be it conservatism or liberalism, Marxism or libertarianism. . .- all 'isms' come with conceptual boundaries - and litmus tests for which opinions fall inside or outside the bounds of reasonableness for that 'ismatic' worldview. . . . . Political psychologists have a longstanding interest in how communities of cobelievers define the boundaries of the thinkable and where they set their thresholds for issuing fatwas, excommunicating deviants, excluding former participants from coalitions, or just shunning someone at a cocktail party. Our starting point is Tetlock's sacred value protection model (SVPM), which takes as its starting point an undeniable fact of political life: the tendency of like-minded souls to coalesce into communities of cobelievers dedicated to defending and advancing shared values.

The SVPM accepts that people are often sincere when they express moral outrage and engage in moral cleansing. But the model also portrays a delicate mental balancing act. People regularly run into decision problems in which the costs of upholding sacred values become very steep - arguably prohibitive. If parents dedicated their net worth to reducing to a probability of zero all threats to their children's safety, for example, they would rapidly impoverish themselves. . . . The model predicts that when there is no pressure to confront secular/sacred trade-offs, people and political movements will adopt the low-mental effort solution of accepting their own side's no-trade-off rhetoric at face value.

Thus a pledge of "tax relief"--no matter what the country's fiscal situation, and no matter how high inequality may get--becomes the "sacred value" of libertarian politics. As students of political framing, we might begin to understand exactly how important this shibboleth is:

Lakoff found that people tend to vote not on specific issues but rather for the candidate who best reflects their moral system by evoking the right "frames." Consider the phrase "tax relief," an effective staple of the Republican lexicon. According to Lakoff, the word "relief" elicits a frame in which taxes are seen as an affliction. And every time the phrase "tax relief" is heard or read by people, the relevant neural circuits are instinctively activated in their brains, the synapses connecting the neurons get stronger, and the view of taxation as an affliction is unconsciously reinforced.

The great danger posed by libertarian thought is a relentless obsession with the threats posed by government--and corresponding refusal to recognize problems posed by corporate entities or uncoordinated consumption--combine to reinforce a cynicism toward collective action that poisons all hope of cooperating to solve tough problems. Those in the legal profession should be particularly worried, as we are all too often written off in the libertarian mindset as a needless transaction cost. In fact, any solution to the great problems we face in energy, health, and even defense policy requires serious thought about proper procedures and extra-market allocation of resources--precisely the type of training a good legal education provides.

Hat Tip: Andrew Sullivan.

closer to fine

Tue, 19 Aug 2008 08:15 GMT

I loved this song back in high school. Hell, I love it now. Doesn't it make you feel all happy and whole and full of girl power?

In Defense of Price Gouging:

Tue, 19 Aug 2008 08:08 GMT

As Todd notes, the state of Florida is stepping up its misguided efforts to combat "price-gouging" in anticipation of Tropical Storm Fay. Unfortunately, this issue tends to come up anytime...

The Upside of Falling Home Prices:

Tue, 19 Aug 2008 08:08 GMT

The Boston Globe has a good article on how home foreclosures in Massachusetts are allowing lower-income families to purchase houses in areas that were previously too expensive for them:...

Bordoff & Furman: Progressive Tax Reform in the Era of Globalization

Tue, 19 Aug 2008 08:01 GMT

Jason Bordoff (Policy Director, The Hamilton Project, Brookings Institution) & Jason Furman (Director, The Hamilton Project, Brookings Institution) have published Progressive Tax Reform in the Era of Globalization: Building Consensus for More Broadly Shared Prosperity, 2 Harv. J.L. & Pub....

Non Amo Te

Tue, 19 Aug 2008 08:01 GMT

I certainly knew the verse before; did not know it had a clasical antecedent:

I do not love thee, Dr. Fell,
The reason why I cannot tell,
But this I know, I know it well,
I do not love thee, Dr. Fell.

Apparently there is some venerable folklore here. It is said to concern Dr. John Fell (1624-1686), an emphatically non-folkloric Oxford University figure. It is said that Fell summoned an offending undergraduate in order to expel him. Fell offered to set aside the punishment if the student could gtranslate an epigram of Martial. The translation is above. Here is the epigram:

Non amo te, Sabidi, nec possum dicere quare;
hoc tantum possum dicere, non amo te.

--Marital, Epigrammata I.32

Of course it is said that the unloved Fell relented and let the student stay. Both of them thereupon retreated to the obscurity from whence they arose. Believe it if you like, but you should know that the student's name is recorded as "Thomas Brown," which is grounds for suspicion as far as I'm concerned.

Sources: I find this in Gavin Betts and Daniel Franklin, Beginning Latin Poetry Reader at 119 (2007)

Congrats to Elie Mystal, the new editor at Above the Law

Tue, 19 Aug 2008 07:54 GMT

Ever since I started using Google Reader in the last few weeks, I have been (more) efficiently limiting my exposure to the blogosphere, yes, certain threads here notwithstanding. In any event, one of the sites I normally peruse is AbovetheLaw, which has until now been edited by my friend from college, Dave Lat. As many of you know, Dave has since been promoted and has ingeniously been running a Criminal Law Conversations/American Idol-type contest to pick his successor. Among the judges were Dahlia Lithwick from Slate, Tom Goldstein of Scotusblog fame, and the inimitable Ann Althouse, to whom we owe...

tuesday ignorance: things I don't get

Tue, 19 Aug 2008 07:46 GMT

1. Bayes's Theorem.

2. Bubble hems. Also, leggings. Also, those ankle bootie things.

3. I get the appeal of Lacan and Deleuze, but not Zizek. Maybe I just don't get Zizek. Actually, probably.

4. Modern arguments for originalism. Hmm.

5. Why it takes so long to mail things from coast-to-coast now that we're no longer in the Pony Express era. A week?! Seriously?!

6. I don't get Twitter. Also, I don't get why people I don't know personally follow me on Twitter. How did they find me? Why do they care? My posts are infrequent, boring, and usually nonsensical. I keep forgetting that I have an account. I will probably forget to stop tweeting altogether one day. Much like how I forget about Facebook and the "status update" function, until I remember that that's how some people contact me and log in and find all these messages and wall posts. Dudes, there's email.