Law

Steve Sheppard (University of Arkansas) has posted Jury, Liberty, and Decay on SSRN. Here is the abstract: The jury is an ancient institution for the protection of an individuals’ liberty against wrongful accusation or punishment by the state. There are...

I was invited to stay around another month but a personal loss and the press of grading papers overwhelmed me. With apologies to the list organizers, this is my first and last post for this month. President Obama’s commencement speech at Morehouse College on May 19th triggered a debate in some corners of the blogger sphere that included notables like PBS’ Gwen Ifill and white studies     scholar Tim Wise about his tendency to scold black folks. In its heyday Morehouse College, a private all-male historically black institution in Atlanta,  educated many of the black male elite like Martin Luther King, Jr., filmmaker Spike Lee, former Bank of America Chairman Walter E. Massey, former United States Surgeon General David Satcher, former Secretary of Health and Human Services Louis W. Sullivan, film star Samuel Jackson, and social activist Julian Bond. Today it continues its mission producing Rhodes, Fulbright, Marshall and Luce Scholars, and Watson and White House Fellows. Thus he was speaking to a group of future leaders who happened to be overwhelmingly black. I was a bit surprised at the uproar, especially when several acquaintances thought the Morehouse speech more significant than his speech a few days later on his administration’s drone policy. I have been increasingly troubled by this administration’s extrajudicial killings by drones of American citizens abroad. Thus I decided to more closely examine the controversy. Some critics claims that President Obama’s “scolding” remarks at Morehouse were reminiscent of his 2009 speech at the NAACP Centennial Convention. In that speech he urged the overwhelmingly black audience to do a better job of educating black children who lag educationally behind their white counterparts saying: “we’ve got to say to our children, yes, if you’re African American, the odds of growing up amid crime and gangs are higher. Yes, if you live in a poor neighborhood, you will face challenges that somebody in a wealthy suburb does not have to face. But that’s not a reason to get bad grades — that’s not a reason to cut class — that’s not a reason to give up on your education and drop out of school. No one has written your destiny for you. Your destiny is in your hands — you cannot forget that. That’s what we have to teach all of our children. No excuses. You get that education, all those hardships will just make you stronger, better able to compete….” In my mind he was urging black parents to be racial realists, much like the teachers in my de jure racially segregated public school urged us to be “twice as good.” Perhaps it is generational differences or simply the weariness of always having to try extra hard for things solely because of race that causes some of my colleagues to prickle at this suggestion. Paul Butler on CNNOpinion worried in advance that the President once again scold black audiences when he spoke at Morehouse. So I rushed to get the transcript. The President started off by saying: “My job, as President, is to advocate for policies that generate more opportunity for everybody.” This message, the same one he and his campaign team have consistently advanced since the 2008 campaign, was a warning; do not expect “special favors” from me. Then he shifted his focus specifically speaking about black Americans, saying: “one of the things you’ve learned over the last four years is that there’s no longer any room for excuses. I understand that there’s a common fraternity creed here at Morehouse: ‘excuses are tools of the incompetent, used to build bridges to nowhere and monuments of nothingness.’ We’ve got no time for excuses — not because the bitter legacies of slavery and segregation have vanished entirely; they haven’t. Not because racism and discrimination no longer exist; that’s still out there. It’s just that in today’s hyper-connected, hyper-competitive world, with a billion youn

Some links today. Click through – there’s always lots more goodness waiting. Hullabaloo (Digby), QOTD: Robert Borosage: “There is an idiocy about our current national politics that is simply stupefying. We are sitting idly, watching, and suffering, as our nation disintegrates into a run-down backwater.” (See also, Daily Kos, A bridge falling into the water and a vision for the future gone missing) DownWithTyranny!, Can The Democrats Retake The House Next Year?“: “One of the easiest districts for a Democrat to win would be FL-27, the seat now held by Ileana Ros-Lehtinen. But there is no recruitment; there is anti-recruitment. DNC chair Debbie Wasserman Schultz has made it abundantly clear to Florida Democrats that she will not tolerate anyone credible running against Ileana, who, like her, is owned by the sugar baron Fanjul brothers. Last year Obama’s 7 point margin in FL-27 was one of the highest margins of victory in any district held by a Republican Member of Congress. But Wasserman Schultz had the DCCC make sure there would be no viable candidate.” Political Animal, Apple: Living the Lie: “I have three laws of politics. I don’t know if they explain everything, but they often explain something, and that’s enough for me. Malanowski’s First Law of Politics is that the rich and powerful will always act in their own self interest. Malanowski’s Second Law is that the rich and powerful will then get the rest of us to act in their interest as well, usually by making us believe that we hold this interest in common. Malanowski’s Third Law is that when the rest of us figure out ways to act in our own self-interests, the rich and powerful are likely to outlaw whatever we’ve come up with.” Greek Yogurt considered dangerous (for the environment): Modern Farmer, Whey Too Much: Greek Yogurt’s Dark Side (via NakedCapitalism, Links 5/25/13). OK, enough gloom and doom. How-To Geek, Prevent Windows From Restarting Your PC After Windows Updates Krugman, Obamacare Will Be A Debacle — For Republicans. Also, California Health Exchange: Low Rates; Oregon Health Exchange: Low Rates What? You miss the gloom and doom? Wonkblog, These 31 charts will destroy your faith in humanity (a pivot on Business Insider’s “31 Charts That Will Restore Your Faith In Humanity.”).

Posted by D. Daniel Sokol Cartel Detection And The Use Of Screens To Uncover Price Conspiracies Introduction: The use of screens has been integral in cartel detection, but also has a very meaningful place in cartel prevention and defense. This...

It's no secret that the night staff of a hospital are both over-worked and over-tired. Nor is it any secret that many medical errors occur at night. But until we look at the totality of the human factors making up...

Posted by D. Daniel Sokol J. Douglas Richards & Michael B. Eisenkraft (Cohen Milstein) discuss Pro-Business and Anti-Efficiency: How Conservative Procedural “Innovations” Have Made Litigation Slower, More Expensive, and Less Efficient. ABSTRACT: As detailed in a recent popular book by...

The Legal Theory Bookworm recommends The Tragedy of Religious Freedom by Marc O. DeGirolami. Here is a description: When it comes to questions of religion, legal scholars face a predicament. They often expect to resolve dilemmas according to general principles of equality, neutrality, or the separation of church and state. But such abstractions fail to do justice to the untidy welter of values at stake. Offering new views of how to understand and protect religious freedom in a democracy, The Tragedy of Religious Freedom challenges the idea that matters of law and religion should be referred to far-flung theories about the First Amendment. Examining a broad array of contemporary and more established Supreme Court rulings, Marc DeGirolami explains why conflicts implicating religious liberty are so emotionally fraught and deeply contested. And from the blurbs: A sophisticated and thoughtful book, which offers fresh insights on a central question of religious liberty. (Philip Hamburger, Author Of separation Of Church And State ) The Tragedy of Religious Freedom is a first-rate contribution to the law-and-religion conversation. This conversation--how to think about, and how to effectively protect in law, religious freedom in a constitutional democracy--is a lively and timely one, and DeGirolami is an impressive participant. (Richard W. Garnett, Notre Dame Law School )

The Download of the Week is Drones and the Dilemma of Modern Warfare by Samuel Issacharoff and Richard H. Pildes. Here is the abstract: This essay argues that four commonly repeated concerns surrounding the use of drones to target identifiable individuals for lethal force rest on various legal and historical misconceptions and misunderstandings. These concerns are that: (1) that targeting specific individuals for death is a modern innovation in military practice; (2) that greater modern technological capacity to project force from a distance itself raises entirely new legal issues; (3) that drones and targeted killing pose a major threat to the humanitarian purposes and aims of the laws of war; and (4) that drone warfare is likely to make the use of force “too easy.” After addressing these issues, the essay turns to what is instead most distinctive about drone strikes from a legal, moral, and policy perspective. The issues that are truly critical revolve around an emerging transformation of the nature and norms of modern warfare; these issues reflect the more profound fact that we are moving toward a world that requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is considered justified, at least as a moral and political matter. This transformation is pervasive, with sweeping ramifications. Even as the U.S. government asserts that it is at war, it is not mechanically applying the traditional law of war principle that lethal force can be directed against any member of the enemy armed forces. Instead, the government is individuating the responsibility of specific enemies and targeting only those engaged in specific acts or employed in specific roles. The government is making what has all the appearance (and reality) of adjudicative-like judgments based on highly specific facts about the alleged actions of particular individuals. The key legal, moral, and policy questions then become how an appropriate framework for making such individualized decisions should be structured. From an ex ante perspective, what kinds of processes should be considered adequate to make these judgments? Which institutions should play what roles in such individuated judgments about the identity of “the enemy?” From an ex post perspective, what kind of review and accountability ought to be required of these decisions? After clearing the ground of the more common misperceptions about the use of drones, the essay begins to develop a general framework for designing processes and institutions that offer appropriate answers to these essential questions. Highly recommended.

--> Submitted by: Mike Spindell, guest blogger About a year ago I wrote a guest blog titled: PBS: Why I Watch But Don’t Contribute. In it I wrote about the history of PBS and of its’ seminal station WNET Channel 13 in New York. Through the years I’ve been privileged to watch some wonderful television on PBS from great plays to superb documentaries. Much of what PBS and channel 13 supplied to me was culture that was somewhat inaccessible from any other venue. What was so new and novel about the Public Television movement was that it was commercial free and so could greater explore subjects that were verboten in prime time commercial television. It also showed Americans the great programs being produced by the PBS analogue in Great Britain, the BBC. Far from being the “vast wasteland” of commercial TV described by JFK’s FCC head Newton Minnow, PBS showed what a wonderful medium television could be. At the core of this excellence was the fact that there were no sponsors to muzzle production values and dumb down the product. Originally there was an organization called NET (National Education Television) which merged with New York’s Channel 13 in 1963. It had been operating under various names producing educational television programs that were distributed to various stations around the country. It had originally been funded via a grant from the Ford Foundation to produce educational programs. With the merger in 1963 the philosophy changed drastically in that the aim was to become America’s “Fourth TV Network”. When in 1966 the Ford Foundation began to withdraw funding the Federal Government stepped in. “In 1966, NET’s viability came into question when the Ford Foundation decided to begin withdrawing financial support because of NET’s continual need for additional funding. In the meantime, the affiliated stations tried to keep the network alive by developing a reliable source of revenue. The U.S. government intervened and created the Corporation for Public Broadcasting in 1967 to fund the network for the time being. However, the CPB’s intent was to create its own public broadcasting network. The CPB embarked on that course of action because many NET affiliates were alienated by the programming that network offered. These affiliates further felt that NET’s simultaneous production and distribution of programming constituted a conflict of interest. PBS first began operations in 1969, with NET still producing several shows. However, NET’s refusal to stop airing the critically praised but controversial documentaries led to the decision of both Ford and the CPB to shut the network down. In early 1970, both threatened to cut their funding unless NET merged its operations with Newark, New Jersey public station WNDT-TV. (This did not, however, end the production and distribution of hard-hitting documentaries on public television, since PBS itself continues to distribute and CPB continues to help fund series including Frontline, POV and Independent Lens to this day.) On Monday, October 5, 1970, the exact day that PBS began broadcasting, NET and WNDT-TV officially completed their merger. NET ceased to operate as a separate network from that point, although some NET-branded programming, such as NET Journal, was part of the PBS schedule for another couple of years before the identity was finally retired. WNDT’s call sign was changed to the present WNET shortly thereafter. Some shows that began on NET, such as Sesame Street, continue to air on PBS today.” http://en.wikipedia.org/wiki/National_Educational_Television When the government took over the formerly independent WNET the changes were at first unnoticed. However, as is the nature of bureaucracy the independence of content and programming began to be subject to political needs and as a medium, the product became diminished into what can only be seen as TV, that while on occasion is daring and revolutionary, is purposed to support and glorify the corpora

--> Submitted by: Mike Spindell, guest blogger --> About one year into Barack Obama’s first term as President I began calling the White House demanding that Attorney General Eric Holder should be fired. I was disturbed by the lack of prosecutions and by the trend towards stricter enforcement of the Drug Laws. Clearly this was not the change I envisioned from a Constitutional Law professor, or his Attorney General. I guess my support in the election wasn’t important enough to get The President to hear my plea to rid himself and us, of both Holder and Geithner. Here we are now more than four years later and both of these bozos are still on the job and doing harm to our Constitution and our economy. With the Associated Press eavesdropping scandal we have just the latest contretemps committed by the Justice Department and its hapless leader. Having lived through Attorney General’s John Mitchell and Ed Meese, I understand full well the importance of the position and how if it is filled with the wrong man mischief will arise. Eric Holder is in the tradition of both these men since he too seems nonplussed when it comes to upholding the constitution. This article was in reaction to reading about Holder signing off on the AP probe in Thursday’s Huffington Post, I give credit to them for this story and I will provide links.  Here are six instances of Holder’s using his office to achieve what I see as disastrously wrong actions. I. Eric Holder Signed Off on Search Warrant For James Rosen’s E Mails http://www.huffingtonpost.com/2013/05/23/eric-holder-fox-news-james-rosen-warrant_n_3328663.html “Attorney General Eric Holder personally signed off on the warrant that allowed the Justice Department to search Fox News reporter James Rosen’s personal email, NBC News’ Michael Isikoff reported Thursday. The report places Holder at the center one of the most controversial clashes between the press and the government in recent memory. The warrant he approved named Rosen as a “co-conspirator” in a leak investigation, causing many to warn that the Justice Department was potentially criminalizing journalism. The warrant also approved the tracking of Rosen’s movements in and out of the State Department, as well as his communications with his source, Stephen Kim. The Justice Department later said that it did not intend to press any charges against Rosen.” “The revelation came hours after President Obama said in a speech that he was concerned about the potential implications of the Fox News and AP investigations. Obama said that Holder would be reviewing the department’s rules for investigations that involve reporters.” --> Shouldn’t we all be sick and tired about the way “National Security” is bandied about to justify intrusions into all areas of society? Wasn’t this supposed to be a “transparent” administration? Finally, in an era where the news media barely reports any real news, doesn’t this go a long way towards ending the concept of freedom of the press? Were this the only failing of Eric Holder it certainly would be reason enough to dismiss him. --> 2.To Big to Jail Dogs Obama’s Justice Department As Government Documents Raise Questions http://www.huffingtonpost.com/2013/05/22/too-big-to-jail-obama-justice_n_3322824.html “Attorney General Eric Holder told Congress in March that some banks were “too large,” impeding attempts to bring criminal prosecutions. Holder’s comment is perhaps the most explicit public admission of concern by a senior Obama administration official regarding big banks. Though Holder has since attempted to walk back those comments, at the time he said that the size of large financial institutions “has an inhibiting influence — impact on our ability to bring resolutions that I think would be more appropriate.” He further told lawmakers: “And I think that is something that we — you all — need to consider.” DOJ officials have previously defended the lack of criminal char