Concurring Opinions

Is Divorce Too Easy? Helping Marriages Survive Infidelity

2009-07-10T06:52:19Z

Last week I came across a New York Times article that has led me to question my position on the legal regulation of divorce. I generally agree that once a person decides to end his or her marriage, there is little that lawmakers can do to help “save” it. Most people know that divorce often wreaks havoc on the family’s financial security, is almost always painful for the children, and can have long term negative effects on children’s emotional health, academic achievement, and adult relationships. Despite this knowledge, approximately one million children each year experience their parents’ divorce. Although there are many reasons why couples divorce, adultery is often at the top of the list. While some states require spouses seeking a no fault divorce to live apart for a statutory period (often 6 months), no state imposes a waiting period when the alleged ground is adultery. Adultery is seen as a marital offense that no one should have to endure. Indeed, until the late 1960s, adultery was the only ground for divorce in New York. It turns out, however, that most marriages survive adultery. In other words, although a betrayed spouse has the legal right to file for divorce immediately (at least in the two-thirds of states that still have fault based divorce), most do not. Marriages often last for years after the infidelity is discovered.

Many of us find it hard to believe that, in a time of websites with mottos such as “Life is short. Have an affair“, marriages might actually be stronger and more resilient today than they were 20 or 30 years ago. The divorce rate has stabilized in recent years after rising dramatically in the 1970s and 80s. In addition, the 10-year divorce rate for couples who married in the 1990s is significantly lower than that of couples who married in the 70s and 80s. Admittedly, a lower divorce rate does not necessarily mean that spouses are happy, but marriage has traditionally served a greater good than promoting the happiness of its individual members. The Supreme Court has described marriage as the “foundation . . . of society, without which there would be neither civilization nor progress.” Zablocki v. Redhail, 434 U.S. 364, 384 (1978).

Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity? For example, the reason why some states require couples seeking a no fault divorce to live apart for a significant period of time is that lawmakers believed that this waiting period might actually lead to reconciliation. The hope was that spouses who were living apart while waiting out the statutory period would come to the realization that they did not want to be apart and would reconcile. I am not aware of any empirical evidence suggesting that this waiting period actually leads to long term reconciliation, but many couples do reconcile after separation. Maybe they would not have done so had they been able to seek a divorce immediately.

Studies have found that at least two-thirds of people who discovered a spouse’s affair were still married and living with the cheating spouse years later. These studies might suggest that the law need not provide an incentive for spouses to stay together after infidelity—the majority are already doing so even though they have legal ability to exit immediately. Of course, there are many reasons why a betrayed spouse might stay (for the sake of the children or financial stability, for example) even if the law does not place any obstacles to exit. But is it possible that some marriages that did not survive infidelity could have survived had the law made divorce more difficult? Is it possible that a woman (whose first instinct upon discovering her husband’s affair is to kick him out) would give him a second chance if she knew that she was stuck with him anyway for at least another 6 months to a year. As the New York Times article noted, although the wife of unfaithful South Carolina Governor Mark Sanford asked him to move out after she discovered his affair, she still believes that their marriage can be repaired. What if the law could give them a push in that direction? Although a waiting period alone might not change spouses’ willingness or desire to try and save their marriage after an affair, social norms might. If the law were to require a cooling off period in cases of adultery, as it often does in no fault divorce cases, it would signal that adultery is forgivable—that society no longer considers it an offense that no one should be expected to endure. As a result, individuals who do not give their cheating spouses a second (or third, or fourth) chance could be stigmatized as uncommitted or even selfish. Therein lies the challenge when law tries to regulate intimate relationships. How can lawmakers encourage stronger marriages (which are presumably good for society and children) while simultaneously respecting individuals’ rights to personal happiness and freedom?

Professor John Doe Is An Ugly [Insert Racial Slur]!

2009-07-10T01:29:07Z

Law students sometimes use the internet to widely disseminate racist or gendered comments about women and minority faculty members. For example, I have heard about law students using teaching evaluation forms or Facebook or Myspace to make comments to the effect that that a female faculty member is a bitch with PMS or that an African-American faculty member is a [insert racial slur]. Indeed, the Auto-Admit debacle from a couple years back revealed that law students or potential law students seem to at least sometimes use the internet to convey vicious gendered and/or racist comments.

When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a female faculty member negatively on a gendered basis or who is characterizing minority faculty members by way of stereotyping and ugly slurs is raising questions about his/her character and fitness to practice law. In the same way that a lawyer who embezzles is not fit to practice, one might argue that a law student who dismisses individuals with ugly characterizations based only on race or gender might also be of questionable character for purposes of practicing law. Yet not everyone agrees with this assessment, and, with respect to law students using the internet for such attacks, there has not been a lot of discussion about the character and fitness issues raised.

Therefore, the AALS Section on Women in Legal Education will be presenting a panel at the AALS Annual Meeting in New Orleans examining the issues raised – including the character and fitness issues – when law students, lawyers, judges, or potential law students use the internet to make gendered or racist comments. If a student posts on her Myspace page that Professor John Doe, who teaches Gender and Race and the Law, is an “ugly [insert racial slur] who only has a job due to affirmative action,” does that pose a character and fitness concern? Should we care?

There is a call for papers for this panel presentation, and anyone interested in submitting a paper or paper proposal is welcome to e-mail me for the details.

Thickening and the Obama Administration

2009-07-10T00:10:54Z

The ongoing debate over the President’s legislative agenda (health care, climate change, labor union reform) poses an interesting test for the “thickening” hypothesis advanced by Stephen Skowronek. His argument is that the growth of precedents, institutions, and interest groups over time makes it more difficult for Presidents — even ones that are elected by a large majority — to change fundamental governing principles. One obvious example is that conducting the 1787 Constitutional Convention was far easier in the wake of the Revolution than it would be today.

Nevertheless, I am skeptical of this argument because there is no linear pattern in the achievements of the presidents who led party realignments. Lincoln and FDR, for example, accomplished a lot more than Jefferson or Jackson, which runs against the grain of the thickening theory. If Obama fails to get his agenda through Congress, though, that would be evidence in support of Skowronek’s idea, given that he carried in a large congressional majority and won 53% of the popular vote. Or it might just suggest that it will take more than one convincing election victory for the Administration to overcome the doubts within its own party about the President’s ambitions.

How Far Can Lawyers Go in Criticizing the Court? An International Perspective

2009-07-09T17:43:04Z

At the end of May, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid court composed of national and international judges, issued a warning to a defense lawyer for offending the court and obstructing the proceedings. The lawyer was Jacques Verges, a French attorney who has made a career of representing notorious clients and taking on politically charged cases. At the ECCC, he represents Khieu Samphan, Cambodia’s former Head of State, who is accused of committing crimes against humanity and war crimes during the horrific era of the Khmer Rouge. Verges was reprimanded for using delay tactics and implying that the court’s judges are corrupt. The decision raises the question of how far an attorney may go in raising questions about the integrity of an international court.

Verges made the remarks during a pretrial hearing concerning his client’s request for release from detention. During the hearing, which the court had postponed twice to accommodate Verges’s schedule, Verges made no comments on the merits of the motion, but instead hinted at the possibility of the tribunal’s corruption:

…Firstly, I shall be silent because it is not for me to be more concerned about your honour than you yourselves are. If you consider that corruption should not be discussed, I am not going to force the discussion on you. I shall be silent because I understand your caution in this regard and I think that the presumption of innocence that you sometimes deny the accused may be of some benefit to you. And I shall be silent because the Head of State which hosts you has stated publicly that he wishes you to leave, making of you, in a moral sense, squatters. I shall be silent also because a member of the Government of the country that hosts you stated that you were obsessed only by money, thus confirming the charge-be it grounded or not-of corruption, which blights the tribunal.

In response, the court warned Verges that if he continued along these lines, he would be sanctioned. The court also forwarded a copy of the warning to the Cambodian and French bars.

What makes the situation at the ECCC complicated is that there have been numerous allegations of corruption involving ECCC court staff. These allegations have come from inside staff members, human rights NGOs, and the UN itself, whose Office of Internal Oversight Services investigated allegations of corruption and delivered a report to the Cambodian government implicating specific individuals (the Cambodian government has not revealed or followed up on this report). Both defense attorneys and victims’ attorneys have called on the court to investigate the question further. So far, the allegations focus on kickbacks that ECCC staff members may have paid to Cambodian officials in return for their positions at the court. The allegations appear to implicate only the Cambodian staff and not any of the judges. But motions by other ECCC defense teams have argued that even corruption among court staff could affect the fairness of the trial. As one motion states: “if staff members entrusted with sensitive tasks are willing to engage in graft, those individuals may be equally willing to follow improper instructions, such as the manipulation of evidence to support a preordained political outcome.”

Verges’s comments to the court might be read to stop short of any direct accusation of the judges, but they certainly hint at the possibility of improper motives. Perhaps more relevant for purposes of the warning is that his comments were raised during a hearing on a motion to release his client from detention, distracted from the merits of the motion, and did not appear to be reasonably calculated to advance the legal interests of his client. Trying accused war criminals from the terrible era of the Khmer Rouge remains the ECCC’s primary business. As long as this mandate remains, the ECCC judges cannot allow the trial of every defendant, and every related motion, to be turned into an argument about the court’s own separate problems. ECCC judges were therefore correct to warn him that they would be prepared to take more serious measures to ensure orderly and speedy proceedings.

Still, while Verges’s statements may have justified the warning in this case, the ECCC should be cautious in reprimanding lawyers simply for raising the question of corruption at the court. The issue is too important to the court’s legitimacy, as some of the international judges themselves have acknowledged. It would be unfortunate if the only measure that the court takes in response to allegations of corruption is to reprimand defense attorneys for raising the issue.

Michael Jackson and Privacy

2009-07-09T00:25:50Z

The news clips from Michael Jackson’s memorial give me a reason to mount one of my favorite hobbyhorses — the change in the way that we view public grief. I defer to Dan Solove on all matters related to privacy, but this is a special case.

In April 1968, Robert F. Kennedy came to Indianapolis for a campaign stop. On that day, Martin Luther King Jr. was assassinated. The crowd gathered for RFK’s speech was unaware of this news, and he was the one who told them. There is a famous video of this speech that is audio only for RFK’s announcement of the death and the subsequent cries from the crowd. The cameraman did not want to film people in their moment of grief, and thus did not open the lens until after the news had sunk in.

Today that guy would be fired. Why? Because our media culture demands tears. Good television (and video) is now defined by capturing raw emotion. There is also (for reasons that I find baffling) a sense today that it’s a good thing to express grief publicly, whether in the context of spectacles (Princess Diana’s funeral comes to mind) or talk shows. In short, there is a diminished expectation of privacy for grief.

This extends, by the way, to public memorials. Since the creation of the Vietnam Veterans Memorial by Maya Lin, people seem to assume that all victims of a great tragedy (Oklahoma City, 9/11) will become public property in stone. Memorials didn’t used to look like this, of course. Moreover, I’m not sure it would occur to people (or even be acceptable) that family members might decline this honor and want to remember their loved ones in a quiet place out of the spotlight.

Updating Corporations Book

2009-07-08T19:27:12Z

My co-editor, Linda Smiddy (Vermont), and I are finishing a 135-page 2009 supplement to our casebook, Corporations and Other Business Organizations. This is the first supplement we’ve done since the current 2006 edition, when I joined the book.

We prepared the supplement with a view towards our next edition, due out in 2010. A lot has happened in this field in those few years and it is a wonderful exercise to bring it all together.

For those teaching Corporations and/or Business Organizations, Linda and are drafting the following letter highlighting what’s new. We are writing it put to let those who use our book, or who might do so, know what they can expect in the supplement and next edition.

I’m posting the draft here for the same purpose, and to invite suggestions from current or prospective users of the book on how we can make it more useful. We want to preserve the enormous value put into it by our predecessor editors, the late Larry Soderquist and the late Al Sommer, as well as Pat Chew, while giving it a fresh, thoughtful and still practical utility.

Chapter 1, Agency Principles, boasts extensive new materials. Agency law materials are now primarily based on the new Restatement (Third) of Agency. The supplement provides fresh authors’ notes on implied authority, inherent agency power, and fiduciary obligations. To reflect these new developments in agency law, the supplement revises our approach to Koval & Koval and also includes three new cases from various jurisdictions around the country, on ratification, vicarious liability in tort and the duty of loyalty (Daynard v. Ness, Motley et al.; Papa John’s Int’l v. McCoy; and Huong Que, Inc. v. Luu).

Chapter 3, Incorporation, now includes a great case on the internal affairs doctrine, the Delaware Supreme Court’s 2005 opinion in VantagePoint Venture Partners. This provides a valuable statement of this fundamental doctrine in an accessible way suitable for early stages of the course.

Chapter 6, Corporate Authority, includes an up-to-date (2006) Delaware case on shareholder inspection rights, Seinfeld v. Verizon, focusing on the question of executive compensation in a likewise relatively early stage of the course. This is a much fresher and more modern opinion for contemporary students to appreciate than the vintage but dated (1971) Pillsbury v. Honeywell, which we propose to delete. Chapter 6 also boasts new authors’ notes on several hot topics: electronic meetings, director elections, digital organizations, and–most dynamic and subject to ongoing change and debate–shareholder access to the ballot for director elections.

Chapter 7, Distributing Corporate Control, adds a very interesting 2006 Massachusetts opinion updating the traditional problems seen in the classic Donahue v. Rodd Electrotype. The case, Brodie v. Johnson, explores remedies for minority shareholder freeze-outs, reversing a lower court decision awarding a buy-out as erroneously putting the aggrieved shareholder in a better position than she reasonably expected. This Chapter also features new authors’ notes updating the law concerning dissolution proceedings and perspectives on contractual control in close corporations.

In Chapter 9, Dividends, we are prepared to retire the old chestnut Randall v. Bailey (1940) as it now appears to be aging poorly–especially for our contemporary students it seems. We have found an excellent replacement in Delaware’s 1997 Klang v. Smith’s Food & Drug Centers case. It is much easier to teach and students find it much easier to learn from.

For Chapter 10, Duty of Care, we note a couple of modest points by including reference to Delaware’s 2009 Gantler v. Stephens decision concerning fiduciary duties of officers–particularly the open issue of whether the business judgment rule applies–and make a cross-reference to Chapter 11 after Caremark as to its enduring status.

Chapter 11, Duty of Loyalty, is considerably enriched by a half dozen new cases and related notes. We think Delaware’s 2006 Benihana opinion is an excellent way to teach the duty of loyalty at this stage and accompany it with what we hope is a clear summary of the law governing interested director transactions across the country. Certainly, as we propose, eliminating the excerpt from Wheelabrator in favor of these materials will make for markedly improved teaching and learning. In addition, we pair up Delaware’s forays into the concept of good faith by presenting a (intensely edited) Disney opinion adjacent to Stone v. Ritter and follow these with three Delaware Chancery Court opinions on executive compensation, including stock options (the Tyson Foods cases and Ryan v. Gifford), to round out the Chapter, along with a brief note on this hot topic of public policy.

Chapter 12, Controlling Shareholders, is supplemented by the very interesting case, although dating to 2001, of Glassman v. Unocal Exploration, for how it advances student knowledge concerning the ease of effectuating short-form mergers under the applicable statutes.

Chapter 13, Changes in Control, is supplemented by both a note on statutory authorization of “force-the-vote” provisions following Caremark plus the very interesting and recent case, Delaware’s 2009 Lyondell Chemical v. Ryan opinion, clarifying some of the perceived mystery about good faith emanating from cases like Disney and Stone and also exploring a contemporary engagement with old favorites like Revlon.

Chapter 17, Proxy Regulation, amplifies the ballot access debate supplemented earlier in Chapter 6 by including the Second Circuit’s prominent 2006 opinion in AFSCME v. AIG. Although debate over ballot access and current SEC rulemaking may tend to render some of the case moot, it remains pedagogically and legally valuable on the history, purpose, and structure of the SEC’s shareholder proposal rule and there may be ongoing debate about the federal-state interface concerning proxy access that keeps the case’s utility strong.

Chapter 19, Insider Trading and Other Securities Fraud, is freshened with the Supreme Court’s opinion in Dura Pharmaceuticals, a case on loss causation that readily displaces the current edition’s Stransky v. Cummins Engine.

Christmas in July

2009-07-08T15:43:38Z

If you ever wanted a figure to illustrate the inefficiencies of gift-giving, here it is: According to the Wall Street Journal, Americans annually spend about $65 billion in gift cards, of which $6.8 billion are never redeemed.

Use Those Quarters for Laundry

2009-07-08T15:35:42Z

Last week, a toll road outside Denver and another outside Dallas went cashless. Drivers on E-470 and the President George Bush Turnpike will have to attach transponders to their cars or pay a fee when their bill arrives in the mail. The move toward cashless toll roads has been a long time coming, as Professor Erik Lillquist and I discuss in this article about the ways in which government encourages the use of new technologies. In Denver, for instance, 30% of drivers used transponders when they were first introduced in 1991; by 2009, 75% of drivers used them.

Electronic tolling has been a win for both drivers and toll authorities. Drivers with transponders enjoy a quicker ride, while the authorities who run the toll roads save on labor costs. Electronic tolling also reduces vehicle emissions and accidents in the vicinity of tolling stations.

For the last decade or more, the challenge for tolling authorities has been convincing drivers to incur the hassle costs of obtaining a transponder and establishing an account from which tolls can be deducted. As an incentive for participation, authorities offered the ability to zoom through tolling stations and, in some instances, lower tolls for electronic customers. Now electronic tolling has apparently reached the tipping point. In addition to the roads outside of Denver and Dallas, the Miami-Dade Expressway Authority is converting five of its expressways to electronic-only tolling. The highway that will connect Prince George’s and Montgomery counties will also be cashless.

Drivers had better enjoy the convenience of electronic tolling, as the days of lower tolls for electronic customers are apparently over. The Wall Street Journal is reporting that some researchers expect tolls on electronic-only roads to be higher than on roads that offer a cash option. Amy Finkelstein, a professor at MIT, suggests that electronic tolling results in tolls that are 20 to 40 percent higher than they would otherwise be. Apparently it’s easier for authorities to raise rates when the toll is just automatically deducted from the driver’s account than when the driver has to toss coins into a hamper or feed dollars into a cash reader.

So drivers should beware. The moment of payment may be intangible, but the money deducted from their accounts is real.

UCLA Law Review 56:5 (June) — Symposium: The Right to Bear Arms after D.C. v. Heller

2009-07-08T02:55:56Z

Volume 56, Issue 5 (June 2009)

Symposium: The Second Amendment and the Right to Bear Arms After D.C. v. Heller

Gun Control After Heller: Threats and Sideshows From a Social Welfare Perspective (pdf)
Philip J. Cook, Jens Ludwig, and Adam M. Samaha

Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss” (pdf)
Saul Cornell

Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson (pdf)
Alan Gura

The Heller Paradox (pdf)
Dennis A. Henigan

A Modern Historiography of the Second Amendment (pdf)
Don B. Kates

The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data (pdf)
Gary Kleck and Shun-Yung Kevin Wang

Why The Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America (pdf)
David Thomas Konig

The Second Amendment, Heller, and Originalist Jurisprudence (pdf)
Nelson Lund

The Supreme Court and the Uses of History: District of Columbia v. Heller (pdf)
Joyce Lee Malcolm

Heller & Originalism’s Dead Hand — In Theory and Practice (pdf)
Reva B. Siegel

Permissible Gun Regulations After Heller: Speculations About Method and Outcomes (pdf)
Mark Tushnet

Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda (pdf)
Eugene Volokh

Heller’s Catch-22 (pdf)
Adam Winkler

Comment

The Right to Know: An Approach to Gun Licenses and Public Access to Government Records (pdf)
Kelsey M. Swanson

The UCLA Law Review would also like to present the 2009-2010 Masthead, and welcome its new staff.

Brother, Can You Spare a Dime?

2009-07-07T23:47:41Z

As many of you know all too well, times are tough in the legal market. Abovethelaw.com continues to track a steady stream of layoffs, salary reductions, and deferrals at major firms. While this may be a temporary phenomenon caused by the severity of the Great Recession, some people are starting to ask deeper questions about what this might mean for the current model of legal education.

One possibility, of course, is that students who are thinking about law school will start wondering whether it’s a good investment. Incurring huge debts when there is doubt about the availability of jobs at the end of the rainbow is risky. If there is a decline in law school applicants (or a shift to less expensive schools) that might put some institutions out of business. Others suggest that the ABA should consider a two-year degree program to reduce costs, or should emphasize externships or apprenticeship relationships to help students get jobs after they graduate.

At a minimum, we should try to set a positive example of cost containment. In this respect, I was disappointed to learn that the Maurer Law School of IU- Bloomington (which is the sister of my school) has received preliminary approval for a 24.5% tuition increase for in-state students. This increase is curious because the Maurer School has received over $100 million in gifts during the past two years. You would think that some of this largesse could be used to help students out in these difficult times.

What Evil Lurks in the Hearts of Men?

2009-07-08T16:34:15Z

When students, friends and family have asked me what I think “happened” to cause our current financial crisis, my response has been an embarrassed shrug. Embarrassed because (as a corporate law teacher) I’m expected to have clear answers. A shrug because the crisis doesn’t have a obvious anecdote or story that explains it, and lacks a clearly defined evil doer who might be plausibly blamed. The best candidate - who I’ve thrown out there to quiet persistent friends - is Joe Cassano, formerly head of AIG’s Financial Product’s Division, and the so-called “patient zero” in the crisis.

Now comes the myth-killer, Michael Lewis, with a must-read article in Vanity Fair. He starts by reminding us that “nearly a year after perhaps the most sensational corporate collapse in the history of finance, a collapse that, without the intervention of the government, would have led to the bankruptcy of every major American financial institution, plus a lot of foreign ones, too, A.I.G.’s losses and the trades that led to them still haven’t been properly explained.” And he then takes a crack at that problem, suggesting that AIG’s traders (i) made a bad (negligent?) bet on the likely course of the housing market, (ii) didn’t unwind their positions fast enough; (iii) fell victim to a liquidity crunch caused by covenants tied to their AAA rating; (iv) were made into a convenient villain by the media; and (v) like everyone else, were outsmarted by Goldman.

And how about Cassano? Here’s the key - and dispiriting - paragraph:

[T]he A.I.G. F.P. traders left behind, much as they despise him personally, refuse to believe Cassano was engaged in any kind of fraud. The problem is that they knew him. And they believe that his crime was not mere legal fraudulence but the deeper kind: a need for subservience in others and an unwillingness to acknowledge his own weaknesses. “When he said that he could not envision losses, that we wouldn’t lose a dime, I am positive that he believed that,” says one of the traders. The problem with Joe Cassano wasn’t that he knew he was wrong. It was that it was too important to him that he be right. More than anything, Joe Cassano wanted to be one of Wall Street’s big shots. He wound up being its perfect customer.

“A need for subservience in others and an unwillingness to acknowledge his own weaknesses.” The flip side of authority and confidence, and the hallmarks of an executive who has passed many gates in the corporate advancement tournament. The law lacks purchase on this kind of evil - if that is what it is.

Thank You and Blogging Rate

2009-07-07T22:53:30Z

Many thanks to Dan and all the folks here at Concurring Opinions for again inviting me to guest blog. I cut my teeth guest blogging here and at TruthontheMarket.com (where I am still a regular guest blogger) three years ago, and it is nice to be asked back. Thank you.

My hope is to blog about at least the following topics while I am here:
1. Prostitution
2. Other People Who Have My Exact Name (Elizabeth A. Nowicki)
3. Corporate Governance, Shareholder Activism, and Boards of Directors
4. Delaware Jurists
5. New Orleans
6. Women in Legal Education

Note, however, that you should not expect me to blog with the speed and volume of someone like Blog Emperor Paul Caron, because my long-harbored reservations about the potential impact of blogging make me a bit of a slow poster. Since my first blogging days, I have worried about whether I could accurately convey in a blog post things like tenor, nuance, and jest, and my concern about this and other blogging issues (such as typos, grammar mistakes, being impolitic, failing to link to others, etc.) tends to slow me down. Given that the readership of this blog is huge, I am cautious about posting something that I have not vetted, edited, and re-written.

Similarly, I remember when another academic blogger posted on his blog about not securing a particular consulting project due to a position he had articulated on his blog. I do a bit of consulting, expert witness, and media work, so I try to be mindful about not committing on a blog to positions I might want to reconsider if I were asked to be an expert witness or to comment for the media. The notion that I might articulate a view on this blog that I might want to disavow 15 years from now makes me squeamish.

Moreover, as a general matter, I try to avoid even the potential for offending large constituencies in the legal or academic communities with something I have posted on a legal blog. For example, for several days, I have stewed over what, if anything, to post about the former Villanova Law School Dean and the prostitution situation. I caught the “news” about the prostitution situation right when it broke, so I could have beaten Caron for the title of “First Mainstream Legal Academic Blogger To Post On The Topic.” But my worry about posting something that might offend my friends at Villanova or members of the AALS Section on Women in Legal Education, of which I am currently the Chair, or colleagues in my religious community kept me standing down, gnashing my teeth, while Caron blogged the news. To be sure, I have blogged before about prostitution, multiple times, so it would be natural for me to chime in, but the notion that I could, with a single post, offend a huge range of people gives me pause. The internet should be used with care.

That said, the fastest post I ever drafted and posted was my post on the Supreme Court’s opinion in Stoneridge Investment Partners v. Scientific-Atlanta. I read the Supreme Court’s opinion and drafted my post in the two-hour window I had between classes on the day the opinion was issued, and I did not have time to re-read my post and labor over editing because I had to rush off to teach my second class. Yet the post has been one of my most well-received posts, and people seem to think it is at least decent. So I suppose I need to revisit whether my reservations about blogging, which prevent me from becoming a prolific poster, are actually based in fact. (Then again, the fact that Heidi Hurd’s sarcastic e-mails have led to likely unappreciated press solidifies my belief that releasing words across the internet is dangerous business indeed.)

Regardless, I look forward to posting here.

Fraud on a Crazy Market

2009-07-07T06:57:03Z

Basic v. Levinson clearly sets out the theoretical justification for the fraud on the market theory:

The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business. . . .

Of late, it’s not so easy to tell this to my law students with a straight face. Last year saw the market lurch like a madman, dropping almost 2000 points in one week alone, and nearly 800 points in one day. That doesn’t look like a market that’s open and efficient (and perhaps just a bit noisy here and there); that looks more like a market that was completely out of whack.

The problem with Basic is well known, and commenters like Larry Ribstein have suggested various solutions (such as more careful focus on causation issues) to combat general noisiness.

But is there a solution that addresses complete insanity? Try asking this one in class some time, and just listen to the discussion that follows.

Predicting Social Security Numbers from Public Data

2009-07-07T03:41:30Z

Alessandro Acquisti and Ralph Gross have recently published their provocative article, Predicting Social Security Numbers from Public Data in the Proceedings of the National Academy of Sciences. According to the abstract:

Information about an individual’s place and date of birth can be exploited to predict his or her Social Security number (SSN). Using only publicly available information, we observed a correlation between individuals’ SSNs and their birth data and found that for younger cohorts the correlation allows statistical inference of private SSNs. The inferences are made possible by the public availability of the Social Security Administration’s Death Master File and the widespread accessibility of personal information from multiple sources, such as data brokers or profiles on social networking sites. Our results highlight the unexpected privacy consequences of the complex interactions among multiple data sources in modern information economies and quantify privacy risks associated with information revelation in public forums.

Acquisti and Gross’s study has generated significant media attention. Here’s an article by Bob Sullivan for MSNBC and by Hadley Leggett for Wired. As Sullivan writes:

The two say they can guess the first 5 digits of the Social Security number of anyone born after 1988 within two guesses, knowing only birth date and location. The last four digits, while harder to guess, can be had within a few hundred guesses in many situations — a trivial hurdle for criminals using automated tools.

SSNs are currently used by numerous businesses and organizations to allow access to accounts – they function as a kind of password. They are also used to verify identity when people sign up for a new credit card or other account. They are thus a very useful tool for identity thieves and fraudsters who want to impersonate people to improperly access their accounts or obtain credit cards in their name.

The current focus of policymakers has been to provide better protections against the disclosure of SSNs.

Acquisti and Gross’s paper provides a powerful demonstration that protecting against the disclosure of SSNs is not providing enough protection to consumers. The article shows that no matter how much protection against the disclosure of SSNs, SSNs can be determined with other public information.

Congress or the FTC should prohibit companies from using SSNs as a means to verify identity. Companies, organizations, and government entities should be prohibited from using SSNs as a means of verifying identity to provide access to accounts or to create new accounts. Merely protecting against the disclosure of SSNs is insufficient since Acquisti and Gross demonstrate they can readily be predicted.

The government and businesses are at fault here. Too many business and organizations use the SSN improperly as a means to verify identity. And the government is at fault for creating the SSN and allowing it to be used improperly in ways that harm people.

The Irrelevance of Trademark Dilution

2009-07-06T21:37:25Z

In 2006, Congress passed the Trademark Dilution Revision Act (TDRA). This statute overruled the Supreme Court’s 2003 decision in Mosley v. Victoria’s Secret, which interpreted the 1996 Federal Trademark Dilution Act. Specifically, the TDRA confirmed that: (1) tarnishment was a recognized cause of action under federal law; and (2) that the standard courts should apply in dilution cases was “a likelihood of dilution” rather than “actual dilution.”

What impact has the TDRA had so far? The answer is none. Barton Beebe (who in my opinion does the best doctrinal research in IP these days) wrote a piece not that long ago pointing out that there is no case that has found a violation of the TDRA without also finding trademark infringement. The federal dilution remedy, in practice, is entirely superfluous. A recent Westlaw search indicates that this is still the case, though I would be interested if anyone knows of a contrary case.

Why is this true? Several years ago I wrote an article arguing that dilution by blurring was conceptually incoherent and served only as a “safe harbor” that allowed courts to extend trademark protection in situations where technological or economic change had rendered infringement law obsolete. (Dilution by tarnishment is coherent, but it just rarely occurs in a way that is independent from infringement.) That occurred twice in the last century. One followed the development of mass-marketing during the early twentieth century and prompted the original dilution proposal. The second came in the 1990s as a result of ecommerce. In both cases, infringement eventually caught up with the times or was supplemented by other law (for example, the Anti-Cybersquatting statute). When that happens, dilution goes into hibernation. We are now in one of those dormant periods.

The Supreme Court’s Immigration Cases From Last Term

2009-07-06T18:45:21Z

Last Term, the U.S. Supreme Court decided four immigration-related cases. The Court rarely takes so many immigration cases, which suggests that it – like the general public – views immigration as an important issue. In the four decisions, the Court also addressed some conflicts on immigration law among the circuits.

The U.S. government lost three out of four of the immigration cases before the Supreme Court. This is a relatively low win percentage for the government in immigration cases, especially in light of the fact that the proverbial deck is often stacked against noncitizens — the immigration laws are not particularly generous to immigrants and the courts frequently afforded broad deference to the immigration bureaucracy. It thus at first glance may seem surprising in some respects that the Roberts Court sided with noncitizens in 75 percent of the cases. A closer look reveals that the Supreme Court pretty closely followed the law and precedent and rejected positions of the Bush administration that pushed the limits.

Identity Theft

The U.S. government has increasingly used identity theft statutes as a tool against undocumented immigrants. The Supreme Court limited the U.S. government’s power to use that tool in Flores-Figueroa v. United States. The decision below, which held for the United States, was unanimously reversed and remanded in an opinion by Justice Breyer. The Court held that prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to an identity being fabricated. In a fairly routine manner, the Court interpreted the language of the statute and in effect applied the traditional rule of lenity, resolving statutory ambiguities in favor of the criminal defendant.

Flores-Figueroa v. U.S. clarifies what federal prosecutors must prove in order to obtain a conviction for criminal identity theft under federal law. The Bush administration had increasingly – and aggressively — used identity fraud criminal charges in immigration enforcement. An infamous example is the raid on the Agriprocessors kosher food plant in Postville, Iowa in May 2008, in which hundreds of undocumented workers faced criminal identity theft charges (as opposed to simply being deported, as had generally been the past practice in immigration raids). The Court resolved the conflict that had emerged in the federal appellate courts over the government’s burden of proof in aggravated identity theft cases.

Stays of Removal Pending Appeals

Noncitizens facing deportation who lose appeals of removal orders in the Board of Immigration Appeals often seek a stay of removal while an appeal is pending in the court of appeals. The question in Nken v. Holder was whether 1996 reforms to the immigration statute continued to permit such stays, which until that time had been routinely granted. As a practical matter, many appeals would be abandoned or mooted if the noncitizen were deported.

Chief Justice Roberts, in a workmanlike opinion, wrote for the 7-2 majority:

“This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals [for the Fourth Circuit] concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.” In so holding, the Court resolved a split between the Fourth and Eleventh Circuits, on one side, and the Second, Third, Fifth Sixth, Seventh, and Ninth Circuits on the other. Justice Alito, joined by Justice Thomas, dissented, emphasizing that “[t]he Court’s decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996.”

The Persecutor Bar to Asylum

The U.S. immigration laws include provisions that permit a noncitizen relief from removal if he or she has been persecuted, or faces a well-founded fear of future persecution, on account of political opinion, religion, race, nationality, and membership in a particular social group. There are a number of exclusions from such relief, including one for a noncitizen who persecuted others on account of one of the five enumerated grounds. The Supreme Court in Negusie v. Mukasey held that

“In this case the Board of Immigration Appeals (BIA) determined that the persecutor bar [to asylum] applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance.”

The issue presented by the case was whether the provision of the Immigration and Nationality Act that prohibits the granting of asylum to individuals found to have themselves engaged in persecution applies to those who were compelled to do so by threats of deaths or torture. The petitioner in the case, Daniel Girmai Negusie, at age 18, was forcibly conscripted by Eritrean military forces in the longstanding war with Ethiopia. On account of his Ethiopian heritage, however, Negusie refused to fight against those he deemed his “brothers.” His refusal resulted in roughly two years in prison. Following his imprisonment, Negusie was directed to serve as a guard at the same prison where he had been held. Torture reportedly is common at the prison. Based on his work at the prison, the Fifth Circuit denied Negusie relief, finding the forcible service as a prison guard irrelevant to the applicability of the provision of the bar of asylum to persons who had persecuted others on account of race, religion, nationality, political opinion, or membership in a particular social group.

The Court reversed the Fifth Circuit’s decision for the U.S. government and remanded. Justice Kennedy wrote the opinion for an 8-1 Court. The Court held that the BIA had wrongly believed itself bound by the Court’s 1981 decision in Federenko, which dealt with another statute (Displaced Persons Act of 1948), and remanded to the agency for consideration of the issue under the asylum provisions of the Immigration & Nationality Act; according to the Court, ordinary deference to the agency’s interpretation of the statute under Chevron was not warranted given the BIA’s incorrect conclusion that it was bound by Federenko. Justice Thomas filed a dissent, claiming that the persecutor bar should apply to a person who persecuted others, coerced or not.

The Government’s Sole Victory: Aggravated Felony Definition

The U.S. government’s sole victory in the Supreme Court’s last Term was in a unanimous opinion by Justice Breyer, which affirmed the Third Circuit’s decision in Nijhawan v. Holder. The Petitioner, an immigrant from India, was convicted of conspiring to commit mail fraud and related crimes. Because the relevant statutes did not require a finding of the amount of a loss, the jury made no such finding. However, at sentencing, petitioner stipulated that the loss exceeded $100 million. He was sentenced to prison and required to make $683 million in restitution. The Government subsequently sought to remove him from the United States, claiming that he had been convicted of an “aggravated felony.” The immigration court found that petitioner’s conviction fell within the “aggravated felony” definition. The Board of Immigration Appeals agreed, as did the Third Circuit, which held that the Immigration Judge could inquire into the underlying facts of a prior fraud conviction for purposes of determining whether the loss to the victims exceeded $10,000. The Supreme Court affirmed.

What Do Victories for Noncitizens in the Supreme Court Mean?

In the four immigration cases this Term, the Supreme Court applied generally applicable principles of statutory interpretation, traditional equitable doctrines, and deference to administrative agencies. Losses for the U.S. government in the three cases suggests that the Bush administration took some extreme positions on immigration-related matters that even a conservative Supreme Court could not swallow.

Interestingly, the decisions involve bodies of jurisprudence (statutory interpretation, equitable principles, agency deference) that cut across many different bodies of law. The Bush administration made arguments that ran counter to the Court’s general tendency in those areas and lost in three out of four cases. Perhaps the Obama administration understands this, as the Solicitor General has abandoned the Bush administration’s position greatly limiting judicial review of discretionary immigration decisions in a motion to reopen case in which the Supreme Court granted cert.

In sum, wins for noncitizens in this case as well as Flores-Figueroa v. United States, Negusie v. Mukasey, and Nken v. Holder might be surprising to some with this staunchly conservative Supreme Court. But it once again demonstrates that immigration is not a simple liberal/conservative issue. And that the law indeed does matter.

Minnesota Law Review 93:5 (May 2009)

2009-07-06T02:43:33Z

Now that the Minnesota Law Review has moved to its new internet home, Minnesota Law Review Headnotes, we will begin clearing our backlog of Table of Contents entries covering the past year of publication. We will be bringing our entries up to date over the next few weeks.

Volume 93, Issue 5 (May 2009):

2008 Symposium: Law & Politics in the 21st Century

Jeffrey P. Justman, Symposium Foreward: Law & Politics in the 21st Century, 93 Minn. L. Rev. 1447 (2009)

Brett M. Kavanaugh, Separation of Powers in the Fourty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454 (2009)

Benjamin Wittes, Judicial Nominations in an Umpireless Game: Trusted Sources, a Complaint, and a Proposal, 93 Minn. L. Rev. 1487 (2009)

Thomas Brennan, Lee Epstein & Nancy Staudt, The Political Economy of Judging, 93 Minn. L. Rev. 1503 (2009)

Ward Farnsworth, Dissents Against Type, 93 Minn. L. Rev. 1535 (2009)

Timothy R. Johnson, Ryan C. Black & Eve M. Ringsmuth, Hear Me Roar: What Provokes Supreme Court Justices to Dissent from the Bench, 93 Minn. L. Rev. 1560 (2009)

Heather K. Gerkin, Shortcuts to Reform, 93 Minn. L. Rev. 1582 (2009)

Ellen Katz, Withdrawal: The Roberts Court and the Retreat from Election Law, 93 Minn. L. Rev. 1615 (2009)

Nathaniel Persily & Jennifer S. Rosenberg, Defacing Democracy?: The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Court’s Recent Election-Law Decisions, 93 Minn. L. Rev. 1644 (2009)

Terry Smith, Disappearing Districts: Minority Vote Dilution Doctrine as Politics, 93 Minn. L. Rev. 1680 (2009)

Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 Minn. L. Rev. 1696 (2009)

Heidi Kitrosser, The Accountable Executive, 93 Minn. L. Rev. 1741 (2009)

William G. Howell, Wartime Judgments of Presidential Power: Striking Down but not Back, 93 Minn. L. Rev. 1778 (2009)

Charles Cameron & Jee-Kwang Park, with Deborah Beim, Shaping Supreme Court Policy Through Appointments: The Impact of a New Justice, 93 Minn. L. Rev. 1820 (2009)

Notes

Joseph C. Hansen, Note, Murder and the Military Commissions: Prohibiting the Executive’s Unauthorized Expansion of Jurisdiction, 93 Minn. L. Rev. 1871 (2009)

Marie Quasius, Note, Native American Rape Victims: Desperately Seeking an Oliphant-Fix, 93 Minn. L. Rev. 1902 (2009)

Introducing Guest Blogger Elizabeth Nowicki

2009-07-05T18:26:40Z

I am very pleased to announce that Elizabeth Nowicki will be joining us again as a guest blogger this month.

When Elizabeth was last with us in 2006, she was on the faculty at Richmond and visiting away at Cornell. Now she is tenured at Tulane and visiting at Boston University. Prior to entering the academy, she clerked for Judge Jack Weinstein (EDNY) and Judge James Oakes (2d Cir.), she worked on Regulation FD at the Securities and Exchange Commission, and she was an associate at Sullivan & Cromwell.

Elizabeth teaches Corporations, Mergers & Acquisitions, Securities Regulation, Deals, and related courses, and her writing has focused on corporate governance, securities fraud, ethics, apologies, mergers, and deals. She is currently the Chair of the AALS Section on Women in Legal Education, and she is an officer in the AALS Section on Securities Regulation.

Elizabeth has been an expert witness on a host of matters, including analyst fraud and stock option backdating cases, and Elizabeth is a regular in the media.

Some of her recent publications include:
* Director Inattention and Director Protection Under Delaware General Corporations Law Section 102(b)(7): A Proposal for Legislative Reform, 33 Del. J. Corp. L. 695 (2008)
* Not in Good Faith, 60 SMU L. Rev. 441 (2007)
* A Director’s Good Faith, 55 Buff. L. Rev. 457 (2007)

Duke Law Journal Volume 58 May 2009

2009-07-05T17:31:56Z

Volume 58 May 2009 Number 8

Articles

Pitfalls of Empirical Studies that Attempt to Understand the Factors Affecting Appellate Decisionmaking

Hon. Harry T. Edwards & Michael A. Livermore

A More Perfect System: The 2002 Reforms of the Board of Immigration Appeals

John D. Ashcroft & Kris W. Kobach

The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform

Catherine L. Fisk & Deborah C. Malamud

Political Control of Federal Prosecutions: Looking Back and Looking Forward

Daniel Richman

Federalism Accountability: “Agency-Forcing” Measures

Catherine M. Sharkey

Depoliticizing Administrative Law

Cass R. Sunstein & Thomas J. Miles

The Parliament of the Experts

Adrian Vermeule

Administration of War

John Yoo

Comment

Comment on Professor Yoo, Administration of War

Richard H. Kohn

Retrieve All Pieces

Racial Profiling Still Pervasive in United States: Does Anyone Care?

2009-07-06T16:21:29Z

Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended. In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.

The basic criticism of racial profiling is simple. A police stop for “Driving while Black” or “Driving while Brown” was unaccaptable as well as unlawful. Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities. Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come. (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect data on traffic stops. A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.

Were the promises to end racial profiling kept? Apparently not. A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.

What happened? The persistence of racial profiling should be no real surprise. As we all know, law enforcement is difficult to reform. Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics, for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.” Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.

Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement. The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement. The result was that the challenge to racial profiling ebbed.

It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.

And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement. Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants. This is a particular problem in the Southwest in the U.S./Mexico border region. The Supreme Court has sanctioned this practice. In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop. Since that decision, “Mexican appearance” has come to dominate immigration enforcement. Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement. Click here for analysis of the Brignoni-Ponce decision.

The bottom line is this. Racial profiling remains central to law enforcement in the United States. Is there the political will to eradicate racial profiling? Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?