Snack Time

There's not much time to read or write on this blog with the burden of finals weighing heavily upon the law school crowd, but I just thought I would post a tiny little "food for thought."

I had a recent conversation with a friend about the surprising lack of religious influence at this "Catholic" university. My friend remarked the following: "For a profession that is criticized for losing its way in a system that has eviscerated ethical standards, the moral compass provided by faith could guide lawyers in their search for justice."

Indeed, with the divorce of religion from legal reasoning, it is no wonder that so many lawyers have no coherent system of ethics. Before anyone takes up arms against me, this is not to say that religion should be taught in the law school classroom. I am just reflecting on the fact that if religion took a more prominent role in the law school culture, there might be some hope of producing lawyers who have a sense of right and wrong to guide them in ethical practice.

Federalist Society's Echo Chamber?

I noticed that in this article it claims that to get a high level appointment in the DOJ, you need to have "references from conservative appellate Judge J. Michael Luttig, Supreme Court Justice Antonin Scalia or former Whitewater Independent Counsel Kenneth Starr," have gone to a top law school, and have gone to Federalist Society events.

Then the article continues with this criticism:

"It creates an echo chamber effect and weakens dissent," says Paul Light, a professor of public policy at New York University.

"This administration seems to have decided that it doesn't really want dissent," Light says. "What it wants are people who are absolute loyalists."

Let me just say that this guy Paul Light seems to be confusing the Federalist Society with ACS. Federalist events are marked by presenting many more points of view than any ACS event, at least on our campus. Social conservative and the libertarians often disagree on about every issue, and they do so in an open way. Honestly, I am not sure if anyone in the Federalist Society here could be described as an "absolute loyalist."

I also doubt that anyone smart enough to attend a top law school and get the top grades good enough to be a clerk for Scalia or Luttig would be willing to be an "absolute loyalist."

I feel that this criticism is really just sour grapes that there are not more Clinton/Gore loyalists at the DOJ to undermine the Bush agenda.

What's so great about Juries?

The 7th Amendment right to a jury trial may be a constitutional "freedom," but I doubt much it extends either liberty or efficiency. Originally a Norman innovation, the jury was a collection of interested, knowledgeable neighbors gathered together to decide a case. Obviously, today that is precisely the sort of thing that would get one disqualified, however, at the time, it made jurors efficient decisionmakers. Considering the complexity of law today, however, I don't see how one can argue that jurors can (a) assurably and predictably act unemotionally when finding fact or (b) understand the technical vagaries of the law. Jury nullification exists, sure, but that swings both ways--e.g., klansmen acquitted in the South. Nor are judges agents of "the state" in the sense that they inevitably desire to expand state power. They are mostly legal scholars and practitioners with varying ideological views cabined by the authority of their office. I guess my problem is that while jury trials might be a civil or political right, I've yet to hear them defended on utilitarian or natural right grounds.

Caloo Calay,

dustin kenall

Social Security Calculator

Heritage has an interesting social security calculator up that you should check out. Just put in your expected salary and see how much social security will steal from you every month- its truely scary!

Constitution-in-Exile

When does the Movement meet? Does anyone know?

France and Free Speech

Not long ago in a comment to Geoff, I praised the French limitation on the press: images may not be published without the consent of the person pictured.

In today's readings for Comparative Law with aged Professor Wolff, we read one of his law journal articles from 1941, in which he wrote the following on the subject of "Unfair Competition by Truthful Disparagement":

"Suppose A has committed some minor offenses in his youth but has later reformed and become a respectable and respected business man. Let us further suppose that B, a competitor, drags these all but forgotten misdeeds into the open to divert his rival's trade to himself. A may sue for libel but in a civil action for libel truth is a complete defense and it makes no difference whether defendant is a competitor or not. [That is, truth trumps malice.] A may also bring an action for unfair competition. The question has not arisen yet in this country whether, in such an action, truth would be a defense. But the French courts have held for ninety year [so, since around 1850] that in an action for unfair competition the truth of the defamatory statement is no defense. The reason for the rule is that matters of no real concern to the public should be kept out of the competitive struggle, that competition should proceed on the merits of the goods and services rather than on a comparison of the personalities of the rival traders."


I find no principled reason why "free speech" should involve the unfettered right to maliciously use words where physical contact is prohibited. Rather, our unbounded freedom to speak and propagate images seems prudentially based on the errors coming from abuse of the law and, more importantly, from an untested belief that such limitations outside politics will lead to hindered speech and thought in the political sphere. Or is the European tendancy to political extremes linked to such limitations?

Charles

PS: Professor Wolff, as is not surprising from a "comparatist," is a lifelong believer in the use of foreign law in deciding US cases. "Even the most provincial lawyer can hardly deny that in trying to find out what unfair competition is, the experience abroad should be of invaluable aid." He noted the SC case of Muller v Oregon, in which then advocate Brandeis entranced the Court. It stated: "The legislation and opinions referred to [from England, France, Switzerland, Austria, Holland, Italy and Germany] ... may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation." As they say in France, plus ca change.

Porky the Pig Goes to Congress

I tried paying my taxes with a smile…they wanted money.

Tomorrow is April 15 – Tax Day – and a great day to start thinking about how the government is spending all of the hard-earned money they have taken from you throughout the year. While government serves a necessary function in our society, and incurs some reasonable costs in the process, the amount of money spent by the federal government on pork barrel projects is astronomical. Citizens Against Government Waste provides a complete list of the nearly 14,000 projects that contribute to our nation's $427 billion budget deficit, including such important ventures as $2 million for the buyback of the USS Sequoia Presidential Yacht, $400,000 for educational outreach for the Washington Opera, and $100,000 for the Tiger Woods Foundation.

Whether or not you think these are legitimate uses of your tax dollars, the fact remains that bloated spending by the federal government is steadily increasing, even under a Republican Congress (up 19% from fiscal year 2004 and a total increase of 21% since fiscal year 2003, acccording to CAGW). This should be of great concern to the citizens of this country, for what goes into these programs must come out of our pockets. Increasing dependency on government equals increasing bondage for citizens. Limited government was one of the fundamental principles that our government was founded on, and uncontrolled spending is a threat to the freedom and autonomy that we enjoy as Americans.

Senate Majority or Super Majority?

Each party accuses the other of an anti-constitutional break with tradition. While such a thing seems patently nonsensical in a country with a written constitution, the hesitation with which the Republicans approach what they legally have the power to do underscores the fact that the terms of the US Constitution are not the lone arbiter of political process. Yet the full scope of the filibuster rule is forever obscure: it is a negotiation, even today, not a supermajority requirement.

It is worth considering that the Republicans are now only proposing to ban the filibuster of judicial nominations. This makes no sense in connection to the argument they have made that "advice and consent" can be made only by a simple majority; why do only these presidential nominations need haven from the filibuster? Clearly, this is yet another compromise with a beloved tradition of obligatory, relative consensus.

Here's a recent political comment on the issue.


I have the impression that once John Bolton is confirmed many things will start moving. Ending the filibuster for judges is one. Bush SocSec proposal is another. Aggressive action in Middle East is another...

Not About Control Over Your Own Body

A Volokh post reminds me that most abortion advocates are not generally for abortion because of a woman right to control her own body:

If they really articulate abortion rights as simply a woman's nearly absolute right to control her own body (as some pro-choice advocates) do, then they should also take the same view as to potentially dangerous surgical procedures.

But the strongest pro-choice arguments -- and, I think, the true views of most pro-choice advocates -- aren't just that a woman has a right to control her own body. Rather, they also focus on the magnitude of the burden that an unwanted pregnancy, and the creation of an unwanted child, imposes on the woman. That's why many pro-choice people aren't also pro-drug-legalization: Snorting cocaine also relates to what you do with your own body, but unwanted abstinence from cocaine is generally seen as a much lesser burden than unwanted pregnancy. Likewise, that one thinks women have a right to avoid an unwanted pregnancy doesn't mean that they have a right to seriously risk their own health for merely cosmetic purposes. (The matter is more complex when the issue isn't just increasing the breast size of healthy but small breasts, but reconstructing breasts after a mastectomy, but I set that aside for now.)

I think that people should be able to completely control their own body, but those of you who are confronted with a pro-abortion person's argument that it is about control over the woman's body, you should ask them how they feel about silocone breast implants or crack cocaine. If they are for any restriction on drugs, you should explain to them that their real argument is that babies are inconvenient.

Extending Daylight-Savings Time

Apparently Congress is considering passing a law extending daylight-savings time (DST) by two months because it will save energy. (Hat Tip to Jonah Goldberg) Hell, if it saves energy, then why not extend DST indefinitely. I hate adjusting my body clock and John Miller reports that cows do also. Miller points out that:

[I]t turns out that DST had nothing to do with farmers, who traditionally haven't cared much for it. They care a lot less nowadays, but when the first DST law was making its way through Congress, farmers actually lobbied against it. Dairy farmers were especially upset because their cows refused to accept humanity's tinkering with the hands of time. The obstinate cud-chewers wanted to be milked every twelve hours, and had absolutely no interest in resetting their biological clocks — even if the local creameries suddenly wanted their milk an hour earlier.

As Michael Downing points out in his new book, Spring Forward: The Annual Madness of Daylight Saving Time, urban businessmen were a major force behind the adoption of DST in the United States. They thought daylight would encourage workers to go shopping on their way home. They also tried to make a case for agriculture, though they didn't bother to consult any actual farmers. One pamphlet argued that DST would benefit the men and women who worked the land because "most farm products are better when gathered with dew on. They are firmer, crisper, than if the sun has dried the dew off." At least that was the claim of the Boston Chamber of Commerce, chaired by department-store magnate A. Lincoln Filene. This was utter nonsense. A lot of crops couldn't be harvested until the morning dew had evaporated. What's more, morning dew has no effect whatsoever on firmness or crispness.

From this, my take is that we should extend DST indefinitely. It will save more energy and the consistency will please both me and the cows. The extra evening daylight will please the Environmentalists and businessmen. I guess that it would mean driving to work in the dark, but that is why we have lights on our cars. And sure, it might make those time zone maps silly, but the whole process of setting back and forward our clocks is already a silly process.

The Unspeakable Sins of Larry Summers

It is no secret that Larry Summers maintains a peculiar relationship with the conservative organizations at Harvard University. The Harvard Republican Club may be the only group on campus that still sends him a holiday greeting card. I am sure that this is not the position in which the Clinton Democrat imagined himself when he took the job. I am also fairly certain that this is little comfort to him as he endures the lashes of just about everyone else. The latest episode has left him now almost completely isolated among the academic elite.

The situation is grave indeed. You see, Summers did not just make an insensitive remark or transgress the bounds of decency; he committed a wanton act of sacrilege. Surely Larry’s funny little heresy must have brought even the statue of old John Harvard to weep as the tourists rub his foot. It is doubtful that this sinner can ever be cleansed of his iniquities, and he must be excommunicated and cast down from the exalted tower.

For those who don’t really care about Harvard politics (I don’t blame you), this is only the latest apostasy. The recent symbolic, no confidence vote by the faculty is the result of a long struggle that finally came to a head. The truth is that the faculty of Harvard University has never liked the round, sometimes sleepy Summers. Unlike Neil Rudenstine, his milquetoast predecessor, President Summers has constantly been stirring up trouble with the faculty like a dance contest at a Baptist picnic. In 2002, he dared to tangle horns with AfAm Scholar and Fletcher University Professor Cornel West, questioning West’s dearth of recent scholarly work. Dr. West had been busy working on Al Sharpton’s exploratory committee, playing the role of the wise elder councilman in the “Matrix” sequel and producing his R&B/hip-hop CD. The audacity, the temerity, the barbarity! I guess Summers wasn’t trippin’ on the “70s Song.”

Summers called upon the faculty to address the problem of grade inflation at the college. The blue blood boiled at this affront to the faculty’s evaluation procedures. Although Summers may have couched his language in concern for the academic integrity of the students and the university, the faculty knew this as merely a veiled assault on fairness, tolerance, and pedagogical freedom. Grade inflation, after all, was an issue that had been brought to the forefront by the agitator, Kenan Professor of Government Harvey C. Mansfield. Mansfield, one of a precious few conservatives on the faculty, enjoys committing a thought crime and instigating hysterical fits among his more enlightened colleagues once every three years or so. No Harvard president should associate himself intellectually with such a dastardly man or his profane suggestions.

Finally, Summers blasphemed that most righteous Crimson Crusade, the total dissociation of the university with the United States Military. Summers has been a relatively consistent supporter of the Reserve Officers Training Corps and particularly its student cadets. The prodigal president, in fact, was the first Harvard President to preside over the ROTC commissioning ceremony since the faculty sanctimoniously voted to ban the organization from official recognition in 1971 amidst rabid anti-war protests. While the war in Vietnam had quieted down by the late ‘80s, the faculty found another lofty justification to continue its disassociation with the group. The faculty reasoned in 1990 that the military’s “Don’t ask, don’t tell” policy intolerably ran counter to the University’s strict tolerance guidelines. I have no doubt that for most of the faculty, whose aspirations of fame and fortune in the real world were cut short by the need to find refuge from Vietnam in academia or in Canada, the gay rights aspect of the debate is a very convenient subterfuge to continue their deep resentment of the military and ROTC. In the same breath in which he praised the ROTC cadets, Summers lamented the “cleavage between coastal elites and certain mainstream values” that had developed as a result of the Vietnam era. Sounding more like an apostle of that moralistic bigot who now occupies the White House than of his old boss, Summers described the war on terror as a conflict “between wrong and right, fear and hope, and…without the moral ambiguity of Vietnam.” Wrong and Right? You could feel the collective outrage.

It is not necessarily the views that Summers expressed in these instances that have made him a favorite among conservatives at Harvard, although certainly many of them rejoice in his stand on scholarly diligence, academic integrity, and patriotism. What is most commendable is his willingness to stand up to the faculty and its dogma. It takes an incredible amount of courage to confront the entrenched prejudices of the powerful and vindictive elite. I believe that conservatives on campus identify their own struggle with his. I certainly did.

I will say that during my own time at Harvard I never really faced any overt persecution based upon my political beliefs. You often encountered disbelief rather than anger. Disclosing your political colors was sometimes like revealing that you are a serial killer. “You’re a conservative? You seem like such a nice guy…we would have never expected it.” I was never worried that I would be treated unfairly; I was more concerned with two trends that I perceive as feeding off of each other and rotting away at the fundamental virtue of the university. The first is the lack of true, respectful diversity of thought among students but more pronouncedly among the faculty. The second is the silencing and deligitimization of dissent on issues that are earnestly important to the academic dialogue and to the general public.

Diversity is a wonderful goal for a university to pursue. A community representing a variety of rich backgrounds strengthens the university by broadening and deepening the discourse within the arena of ideas. Fairness and justice are admirable, but the free exchange of thought is the central concept around which the academy is formed. If only the university would concern itself as much with intellectual diversity as it does with diversity of other sorts. Students and the institution itself suffer just as much from homogeneity of ideas as they did when Harvard Yard was populated entirely by wealthy young men with roman numerals after their last names. It is absurd that a university which prides itself in reflecting the larger community could get it so terribly wrong when it comes to representing the views of the nearly 40% of Americans who self-identify as conservative. Southerners, too, are peculiarly absent on campus. It is no wonder the students and faculty of so many campuses were so deeply stunned at the results of November’s election. If all those around you are ideologically indistinguishable, you start to get the idea that everyone, at least everyone that matters, must think that way. I am still waiting to see the masses that were supposed to take to the streets and burn the cities if George W. Bush were reelected.

The disparity among faculty is even more alarming. (See Deb Oborny’s “Those Who Can Indoctrinate, Teach” below) In a study which I am sure will be cited from now until the end of time by those on our side, Santa Clara University Professor Daniel Klein found that among a survey of 1,000 of the nation’s university faculty, Democrats outnumber Republicans in the humanities and social sciences. This is about twice the disparity found thirty years ago. If you are comfortable at taking party identification as a proxy for ideology, the numbers shock the conscience. Granted, there need not be anything close to parity in ideology among professors, but the gap should certainly not be widening at the current pace. While of course most of us good conservatives would eschew a call for affirmative action for ideology, this data bespeaks an institutional bias that must be acknowledged and understood by the whole academy and by the public at large. This bias affects not only the academics themselves, but also the course of scholarly pursuits given legitimacy by the university and the impact had upon the minds of students. (My fellow Federalist, Mike McClellan, who attended that New Haven school, is much better at covering this topic on his blog than I could hope to be.)

The other deadly venom poisoning the foundation of the university is so mired in a disturbing hypocrisy that is almost comedic. That is the curbing of speech on campus. I cannot think of anything more contemptible and contrary to the goal of the academy than the speech police that have invaded the collegiate halls and perched themselves upon a pedestal, hovering over the discussions of students and scholars. Among the rights to life, liberty, and the pursuit of property under fair and well-regulated conditions, apparently now exists the right to be free from offensive language. Hate speech is the watch word these days. The university should be the last place where the free expression of ideas is shackled no matter how shocking they may seem to the enlightened and sensitive souls. False, even malicious ideas should not be silenced in what should be a marketplace of ideas. Widely held beliefs remained unchallenged and gradually seem unassailable. When points of view cannot even be discussed let alone seriously advocated within the university, everyone loses from the lack of discussion.

When Larry Summers made his latest remark, the call at Harvard was not made for a discussion on the contribution of women to the fields of math and science, nor was there a discussion about behavioral psychology or genetics. What did take place in Cambridge looked more like what happened a few score back in another Massachusetts town.

Where were those defenders of academic liberty that rushed valiantly to the rescue of University of Colorado Professor Ward Churchill when he compared 9/11 victims to Nazi collaborators? Apparently Churchill’s paranoid ramblings are more worthy of protection then Summers’ positing that men and women might somehow be different. It is revealing to me about the value system of the academic elite that Summers’ comments could elicit the same emotions as those educed from most Americans upon hearing Churchill’s remarks. I do not think that Churchill should be summarily dismissed, primarily because I would not want to see him walk away with millions from the resulting lawsuit. However, I do think that Professor Churchill’s scholarship is rightfully open to question as are Summers’ credentials. I would not venture to speculate myself about the man, but I would take to heart the comments of a friend of mine from Currier House who had occasion to deal personally with him. Churchill was dead wrong and the best way to express that is to expose him to scrutiny. The outraged left should take the same approach to Summers rather than calling for his charred corpse.

Larry Summers’ gumption in challenging the self-righteous behemoth was a breath of fresh air for conservatives at Harvard who for decades had seen the administration cowed by the faculty. Summers, perhaps not an ally so much as an enemy’s enemy, honestly tried to address the problems of academic vitality and cultural relevance within the university only to realize full well the consequences of questioning the doctrine of the mighty. I only hope his soul may be spared from eternal perdition.

A great exchange...

I highly suggest you use your Westlaw or Lexis privileges and check out this exchange (53 Drake Law Review 205) between future visiting Georgetown Prof. Randy Barnett and Cass Sunstein. Barnett's arguments are essential for those who have fun refuting leftist-statists on their blurring of individual negative rights with positive "rights" to certain outcomes...

Military Commissions and the Inalienable Rights

Thursday, a three judge panel of the D.C. Circuit Court heard oral arguments in Hamdan v. Rumsfeld, a challenge to the first military tribunal convened by our national government since the WWII-era. I have helped Hamdan’s co-counsel, Professor Neal Katyal, in this case since August. In this article, I will only try to explain why a “federalist” or “conservative” should care that Mr. Hamdan, a driver for Osama Bin Laden and an alleged terrorist, is being tried in a military commission whose rules, procedure and composition are all created under the complete and total discretion of one man- the President of the United States.

I start from first principles. Since all men are naturally equal and free, no man may have his liberty taken from him by another without proper justification. As a result, the central tenant of a just regime that claims the moral authority to take an accused's liberty is the correct differentiation between the guilty and the innocent. That is, people can argue about what should or should not be a crime- but a regime that ultimately makes a determination of this threshold inquiry must provide adequate process to anyone, citizen or not, that it subjects to its legal adjudicative force. Mr. Hamdan has been accused of conspiring to commit terrible crimes- whether those conspiracy charges even state a recognizable charge under the current laws is a tricky issue- but even assuming those charges are valid, the onus is on the authority that purports to have the right to brand him guilty. That authority must prove that its adjudicative process is transparent and fair, and that he has really done what they accuse him of.

The obvious follow-up question is what does “proper process” entail? The customary/legal argument encompasses certain traditionally protected and statutory rights that accused generally enjoy. One such notable right is the right to be present- something that was denied to Mr. Hamdan already, and will be denied again if the D.C. Circuit rules against him. I think the moral requirements are more messy than these formalistic traditional procedures, but also more expansive. That is, when a person is accused of committing a crime, he must have a fair, independent decision-maker determine whether he is guilty or innocent based on transparent procedures that are set up to get the factual issue correct. I do not think many of the President’s supporters disagree with the previous statement, in theory. Yet, if one were to take the government’s arguments on their face, the president could label any person (at least any non-citizen) as an enemy combatant, draw up novel charges against him, appoint his commissioners, lay out the procedures and have final review authority over the execution. I do not think this comes even close to meeting the threshold for determining guilt or innocence.

The decision of the Circuit Court will address more than these rather uncontroversial moral dictates. There are issues about whether this challenge to the tribunal is timely, what level of protections the Universal Code of Military Justice offers, and what rights a person who has been designated “Al Qaeda” but claims to be a civilian has under the Geneva Conventions. Yet, the principle that is being vindicated is not nearly as complicated- the regular, proper and just differentiation between the guilty and innocent is the ultimate hallmark of how just our regime is.

As to why a “federalist” should care, I will close with a quote from one of the greatest federalists (a quote the co-counsel I worked for liked to use), Chief Justice John Marshall: “[The] government of the United States has been emphatically termed a government of laws, and not of men.” A system of determining guilt and innocent based on a law written by one man, prosecuted by that man’s authority, and decided by that same authority is not a “government of laws.” Those of us who believe in absolute right and wrong, and that government is set up to protect inalienable rights, should care most of all that a fair process decide whether those our government brands as criminals are truly guilty. That many of our friends do not seem to care about these principles when it comes to people presumptively labeled as “terrorists” makes me wonder whether they truly understand what inalienable rights are.

Those Who Can Indoctrinate, Teach

I read this article today by an anonymous European university professor, decrying the totalitarianism exercised by the Left in academia. His testimony is part of a rising movement among conservatives that involves many professors and students speaking out about the overwhelming liberal bias in higher education. David Horowitz and crew are leading the way by lobbying for the Academic Bill of Rights.

This conservative movement for academic “diversity” (funny how liberals cringe at their own buzz word when it comes to diversity of thought) is not insignificant or marginal, as evidenced by the number of professors (maybe twenty-five or more out of a crowd of forty) who attended a lecture here at Georgetown two weeks ago by Yale Law professor Robert Post. Post’s talk, entitled “The Structure of Academic Freedom,” denounced the Academic Bill of Rights and proclaimed the benefits of self-regulating ethics among university faculty. Post pointed out the moral hazard created by such systems of self-regulation in other fields such as medicine, accounting, and architecture, but somehow maintained that university professors would be immune to the traps that those lesser mortals have fallen into.

Okay, he didn’t say “lesser mortals,” but that was the basic idea conveyed. I guess when you spend so much time looking out from the ivory tower, the reality of your own moral vulnerability escapes you. It must be that allegory-of-the-cave-induced blindness from seeing the scorching light of your own brilliance.

With names like Ward Churchill and Lawrence Summers making recent headlines for their provocative statements, the Academy is circling the wagons, scurrying to be the first and fiercest defenders of “free speech.” Yet, these same academics are working hard to stifle any dissent in their ranks.

[A] conservative faculty member – junior professor, still far from going up for tenure – was harassed for his political beliefs on an almost daily basis. The harassment was executed by tenured, senior members of his department and took such extreme measures that he simply packed up and left his position at the school.

This isn’t late-breaking news or anything, especially for anyone who has spent time as a conservative on a university campus, but it is more than just a nuisance for those of us who have to tolerate having our views belittled on a regular basis. As the anonymous professor points out, liberal professors who use their classrooms to present their ideologies as truth breed liberal college graduates who vote for liberal politicians.

I started this post with a point in mind, so here’s the part where I actually get to it: I think the more serious problem than the fact that a majority of college graduates vote for liberals is the fact that college graduates become teachers in elementary and high schools. Thus the liberal indoctrination that infiltrates college campuses is more than just an abstract problem for conservatives who dislike the one-party state that is academia. This is something that Americans need to take seriously for the long-term good of our children and our culture.

A Mistrust of "Societal Good"

I lately find myself cringing when professors and fellow-students invoke the idea of “societal good” to support policies from Euclidean zoning laws to eugenics. We can, so the arguments go, bar the poor from residential areas so that society as a whole will benefit; we can eliminate the mentally retarded because the rest of us will have better lives without them.

Who are the people that belong to this “society” and what gives them the right to enforce these policies’ burdens on other members that have not agreed to accept them? “Society” becomes an independent being, not bound by the policy wishes of its individual members, or even by a democratic determination of “majority will.” Rather, “society” becomes a tool of elite social engineers whose agenda is to enforce the policies they deign “good” without gathering the input of those upon whom the policies are imposed. Society becomes a name-less, face-less entity that represents “the rest of us.”

The law seems replete with images of race-less, face-less, gender-less beings. One need only consider the “reasonable person” standard to confront the abstraction epitomized. When it comes to defining criminal or negligent behavioral standards, the personality-less abstraction is a good thing. Justice must, after all, be blind. However, when these abstractions creep into our social policies and begin to regulate the behavior of people that have committed no wrong, the abstractions work their queer evils. Generally, an individual does not believe he derives benefit from barring a poor family from moving in next door or from killing the human being that is most dependent upon him. But when the good of “society” is invoked as a justification for these things, good people unthinkingly accept the premise that someone else out there must be benefiting from such policies.

I humbly suggest not that readers immediately dismiss arguments based on “societal good” but rather that they press the question further and ask what determines “the good” and what distinguishes “the rest of us” from those bearing the harm of the proposed social policy. In the above examples, “the good” is defined as class segregation or a desire to rid ourselves of the “burden” of caring for the weak among us. What distinguishes “us” from “them” is financial status or mental capacity. If one can be made to bear the brunt of “societal progress” based upon such things, the next logical questions are, “How poor must you be? How smart?” It begins to seem that “we have seen the enemy and they is us.”

When a defender of “societal good” can come up with no better justification than those offered above, perhaps the best response is merely to shudder. It seems the non-reasonable thing to do.
S.K.

Endangered Civil Jury?

Friends,

The 7th Amendment guarantee of juries in civil trials is a contested institution, one that has largely disappeared in the rest of the Common Law world. This bulwark of democratic check on state power, this imposition of common sense upon the language of our courtrooms, this protection against the prejudice and conceit of judges, has, according to the following article, been largely banished from the federal courts.

http://www.washingtonpost.com/wp-dyn/articles/A23872-2005Apr3.html

Is clear-and-convincing the standard that should prevail in our courts? Should we, in the name of efficiency, a consideration paramount to CJ Rehnquist, allow a movant to in fact oblige the non-movant to prove that its case can be won before going to trial? 35 states have already adopted this “Celotex” standard.

If we get more textualists on the court, could this subject be reviewed? Look at the Celotex majority: REHNQUIST, J., delivered the opinion of the Court, in which WHITE, MARSHALL, POWELL, and O'CONNOR, JJ. joined. All of these justices were in the “efficiency” camp. Stevens dissented. Scalia, Thomas and Stevens, a new guy and… Ginsburg? Clearly, Kennedy, O’Connor, Souter and Breyer are all for efficiency over unbending principles embodied in institutional guarantees.

best,
Charles Iragui

Can Intellectual Property Experience the Tragedy of the Commons?

In both my Patent Law and Trademark Law classes, the question of overexploitation was brought up. It is something that I have been thinking about, so I thought that I would make it my first Fed. Soc. Blog post.

In my patent law class, the theory was that giving joint inventors equal rights to independently exploit an invention might lead to an inefficient overexploitation of the invention. I can see that it might discourage joint works, but that in turn would encourage joint inventors to contract ahead of time to prevent the independent exploitation of the invention. I, however, doubt that patented technology can be over exploited to the point where it degrades the value of the technology. The professor argued that if two or more parties have access to a patented technology, they might each individually seek to quickly overproduce to maximize their individual gain and therefore inefficiently overproduce. If anything overexploitation would be a bonus to the consumer, but I think that an economic analysis would predict that all of the producers would only produce to the point where they would each still make a marginal profit on each unit produced. It is unlikely that the producers would ignore economic realities and start producing at a level where they are selling each unit at a marginal loss. I guess that it is possible that some producers in some markets will make mistakes in the heat of competition, but the dynamic of competition drives a market to produce at the optimal level. Plus, IT IS NOT LIKE WE HAVE A PROBLEM WITH THE OVEREXPLOITATION OF EXPIRED PATENTS. Again, this competition might undermine the incentive to invent by joint inventors, but it would also seem that any inventor concerned about this loss in market power would simply contract out of this possibility instead of declining to invent at all.

Then in my trademark class, we were talking about the right of publicity. I stated my belief that a utilitarian analysis would teach against granting a right of publicity. My professor then responded that Posner argues that exact opposite, but also said that she didn’t think that Posner was a very good economist. I have a lot of respect for Posner, so this bothered me. I have not read Posner’s dissertation on this (I can’t find the article on lexis-nexus), but after a bit of research it does seem that Posner does argue that granting the right of publicity does prevent an overexploitation of a person’s likeness, etc. and also gives the person an incentive to develop their personality and fame. I completely disagree. 1) I don’t believe that society needs any extra incentive to get people to try to be famous. 2) I am not even sure if any celebrity could truly be overexploited any more than they are currently, and I do not believe that there is an optimal level of exploitation for a personality. Popular celebrities are overexposed anyways by the media, which are exempted from the right of publicity anyways. One might feel that celebrities have a moral right to their personalities, likenesses, etc., but I feel that free speech concerns should trump these moral rights.

My thinking is that Intellectual Property in general is not something correctly analyzed by a tragedy of the commons analysis because IP is not a limited resource, but by definition an unlimited resource. The reproduction (or additional use of) IP does not cause the original (or first use of) to be reduced in quality. Some people in my TM class have argued that they do not value expensive purses because other people can get knockoffs, but this seems to be an elitist mentality that values exclusion over the public good. I do not think that we should recognize such elitist values.

I welcome comments.

(P.S. This is my first blog post so please forgive me for any mistakes.)

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