The Faculty Lounge

Contract As Disclosure II (Or Why I Keep Signing That Same Stupid Liability Waiver)

The second half of my review of Peggy Radin’s new book on boilerplate has now been posted over at ContractsProf.  (Part I is here.)  In this second post, I use the example of the boilerplate at top right to analyze some of Peggy’s explanations for market failure in the case of boilerplate and dismiss most of them as inapplicable to this particular example, at least based on my own experiences over the years with these sorts of waivers and the people who sign them.  These are people who, in my experience, are more than capable of understanding the short and rather simple waivers at issue here, they do read the boilerplate and frequently discuss it with each other, and though they may underestimate some risks, they may overestimate others.  In short, these people are like me – in fact, they are me, and we sign these waivers year in and year out.  Why? 

As I explain over at ContractsProf, one possibility is that Peggy has correctly identified a case of market failure.  This is not because these consumers are intimidated by contracts or fail to read or understand them, but because the multi-factor evaluation in which consumers must engage to fully assess the price-product-contract package is a complex task of the type that most of us are not very good at.  But I am not sure that this concession bodes well for Peggy’s proposed solution. Because if this multi-factor evaluation is a complex task for consumers, it is a complex task for lawmakers as well. 

Which brings us to another possibility for why consumers such as me keep signing these onerous boilerplate contracts.  As I explain in the post:

If calculating the optimal trade-offs among price and the numerous other elements of the product/service + boilerplate adventure tour package is decisionally complex for experienced consumers of travel services, then it is difficult for courts and lawmakers as well.  Perhaps the legislature was right in crafting a default rule placing liability for negligence on the tour operator, in the hopes of creating incentives for such tour operators to exercise care before putting their clients at risk.  And perhaps consumers are mistaken in signing away those rights, thus “deleting” rights thoughtfully granted by the legislature.  Peggy places a high value on democratically-generated rules such as these, and demonstrates more faith in such democratic processes than in market ones. 

Perhaps she is right.  But, perhaps, the legislature simply got this one wrong. Perhaps consumers believe that there are cheaper and more effective mechanisms for differentiating trustworthy and careful adventure tour operators from untrustworthy and negligent ones.  Perhaps consumers have quite rationally concluded that firm reputation; their own repeated positive experiences with a particular operator; the prior impressions of friends, neighbors, and other experienced travelers; and third parties, such as travel insurance companies, all have helped them to choose a tour operator whose risk of negligent operation is – if not fully controllable – at least tolerable, given the price paid.

Read the whole thing here.  

Contract As Disclosure: My Review of Radin’s Boilerplate at ContractsProf Blog

Today, the first half of my review of Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law appears over at ContractsProf Blog.  A few days ago, I posted the above liability waiver as a preview for Lounge readers of my thoughts on the book (click on image to enlarge and zoom from there).  From today’s post at ContractsProf:

Peggy’s contention (to oversimplify, as is so frequently necessary in Blog World) is that we cannot infer from the widespread persistence of a particular boilerplate term that consumers have chosen it through their willingness to buy the product/service + boilerplate bundle at a given price.  Instead, we must treat it as a case of potential market failure.  So, what might lead to this market failure?  . . .

If you’ve taken almost any type of organized tour or active vacation and bothered to read the liability waiver that you were almost certainly asked to sign, then you’ve seen an agreement similar to the one I’ve included at right limiting the tour company’s liability for their negligence involving pretty much everything from a bad hotel room to your death from falling into an active volcano.  Such waivers are ubiquitous, varying only slightly in their particulars. 

And I have signed one every year for over a decade.  Why?  Well, the simple answer is that I have no choice, given that I want to participate in organized adventure travel and all tour companies have a similar waiver.  But that’s too easy.  The real question, as Peggy acknowledges, is why, if this is a term that consumers value, a competing adventure tour company has not arisen to offer a similar tour experience without the offending boilerplate language, potentially at higher cost? 

Read the whole thing here, and the second half will follow later today, as will responses from Peggy.  

Fan on Hu’s Biometric ID Cybersurveillance

 Mary Fan has a review over at Jotwell of Margaret Hu’s new article, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013).  Mary Fan is an Associate Professor of Law at the University of Washington who specializes in cross-border, U.S. and international criminal law and procedure.  Margaret is a Duke Visiting Assistant Professor, who will be joining the Washington & Lee faculty in the fall (we’ll miss you, Margaret!).  Her research interests include the intersection of immigration policy, national security, and civil rights, as well as critical legal studies. Margaret previously served as senior policy advisor for the White House Initiative on Asian Americans and Pacific Islanders, and also served as special policy counsel in the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U. S. Department of Justice, in Washington, D.C.  She also has fabulous shoes, though I suspect that’s less relevant to most Lounge readers than it is to me. 

From Fan’s review:

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.

Read the whole thing over at Jotwell. 

Boilerplate Symposium Continues Next Week

As I mentioned in a post last week, ContractsProf Blog has been hosting an on-line symposium on Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, which continues into next week.  If you haven’t yet read Boilerplate, I highly recommend it. The book is no less than you would expect from Peggy Radin, which is to say: bold, thoughtful, and almost certain to be influential. 

I’ll post something here, of course, once next week’s reviews (including my own) appear over at ContractsProf.  But for those wanting a preview, the images included in this post should give a taste (click the liability waiver to enlarge, and you may have to zoom to read all of the text.)  Those of you who know me, and are also familiar with Peggy’s work, will not be surprised to learn that we have very different views regarding the virtues of private ordering as compared to public solutions, particularly when it comes to substantive limitations on freedom of contract.  But, as is the case with her work on contested commodities, Peggy forces us to think hard about the potential shortcomings of private ordering in certain contexts. 

I remain largely unconvinced that substantive restrictions on freedom of contract are the best way to overcome those limitations, but Peggy has very thoughtfully shown the increasingly poor fit between many traditional contract law principles and modern day contracting practices.  The issues raised by Boilerplate likely will continue to generate discussion over the coming years.  In any event, read the book if you haven’t done so already, as well as this review by Omri Ben-Shahar, and stay tuned for further posts in the on-line symposium.  

 

(The author, in Patagonia, after signing the above liability waiver)

Boilerplate Symposium at ContractsProf Blog

ContractsProf Blog is hosting an online symposium on Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law over the next two weeks.  You can read Jeremy Telman’s introduction of the first five reviewers here. 

I had a chance to read and comment on a draft chapter when Peggy came out here for a workshop some time back.  I am also participating in the symposium and will post a link here when my post(s) appear.  In the meantime, though, you should head over to the ContractsProf Blog to see the posts so far.

Caleb Smith's The Oracle and The Curse

I recently had the pleasure of reading Yale English Professor Caleb Smith's The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War.  It's about the conflict between oracles (judges) and cursers (people on the outside of "the system" -- like antislavery advocates, especially people like Nat Turner and John Brown).  Thus this is an interpretation of American literature as it relates to the clash of visions of law and justice in the years leading into Civil War.  Cribbing now from Harvard University Press' website:

Condemned to hang after his raid on Harper’s Ferry, John Brown prophesied that the crimes of a slave-holding land would be purged away only with blood. A study of omens, maledictions, and inspired invocations, The Oracle and the Curse examines how utterances such as Brown’s shaped American literature between the Revolution and the Civil War.

In nineteenth-century criminal trials, judges played the role of law’s living oracles, but offenders were also given an opportunity to address the public. When the accused began to turn the tables on their judges, they did so not through rational arguments but by calling down a divine retribution. Widely circulated in newspapers and pamphlets, these curses appeared to channel an otherworldly power, condemning an unjust legal system and summoning readers to the side of righteousness.

Exploring the modes of address that communicated the authority of law and the dictates of conscience in antebellum America’s court of public opinion, Caleb Smith offers a new poetics of justice which assesses the nonrational influence that these printed confessions, trial reports, and martyr narratives exerted on their first audiences. Smith shows how writers portrayed struggles for justice as clashes between human law and higher authority, giving voice to a moral protest that transformed American literature.

I have some more thoughts on The Oracle and the Curse in the spring 2013 issue of the Civil War Book Review.  I note that Caleb Smith’s The Oracle and The Law speaks to huge issues, such how pre-Civil War American law gained and maintained legitimacy? How authority shifted from legal and religious elites to popular sovereignty from Revolution through Civil War? And how our country reconciled the higher law arguments of abolitionists with the principles of law and constitutionalism that so widely supported property rights in enslaved humans? It speaks to timeless questions of obedience to law, even as the law is unjust. And our nation continues to struggle with them, as our citizens turn sometimes to the streets and occasionally even to violence, as they challenge everything from environmental development to our wars abroad.  The rest of my review is available here.

Companion to American Legal History: Subjects and Methods

Now that the Companion to American Legal History that Sally Hadden and I co-edited is available, I want to talk a little more about what it says about the field of legal history.  By way of background, the Blackwell-Wiley companion volumes are designed to survey the field and give review essays that talk about what historians have written about; and sometimes at the end they point towards new directions in the field, as well.

I think the volume comes at precisely the right moment for American legal history, because the field is going in so many different directions at once.  A while back -- like when I was in graduate school -- the field was still dominated by studies of appellate opinions and jurisprudence.  So judges, treatise writers, and high brow legal thinkers predominated in the field.  There has been an extraordinary expansion in subjects over the past several decades.  Legal historians are looking closely at enslaved people, women, gay people, immigrants, workers, welfare recipients, as well as lawyers in big firms and small.  And they're looking at the procedures of justice of the peace and police courts, local trial courts, as well as state supreme courts and the United States Supreme Court.  The methods have broadened dramatically, too: we're interested in how fictional literature critiqued law (and in some cases supported it); how the technology of law brought down irrational authority and (more commonly) supported it.  As Sally and I say in the introduction -- and as I've observed elsewhere -- legal history is expanding so much in subjects and methods that it is beginning to look like almost all of history fits somewhere in its boundaries.

There's just a lot of literature to deal with and a great many moving parts.  Most of this is positive -- it's great to be in such a broad field.  One thing, however, is negative here.  And that is that the field is going in search of unifying principles.  Where once we knew how to talk about the pre-Civil War period, now there are so many different themes that it's sometimes hard to see how one important and deep book relates to another, even though they may be on what look like a similar topic.  One of my hopes is that in bringing a lot of the recent literature of legal history together in one place we'll see how people working in different periods are asking similar questions and how people working in the same period but from different vantages (either of sources or subjects) may have something to say to one another.  One of the topics that I'm increasingly interested in, for instance, is how the technology of law is used throughout our history to bring order to the community.

I'm hoping that the volume will spark some serious discussion of unifying questions.

Empirical Studies of Law and Social Change

Scott Cummings of UCLA Law School has an important and very useful field review essay on "Empirical Studies of Law and Social Change" in the Wisconsin Law Review.  One footnote here -- I don't mean to sound like one obsessed with slavery and Jim Crow (which of course I am).  But I think the law and social change literture is about (or should be about) how law stands in the way of social change as well as how law can impel it (or be used by those who seek it).  And related in some ways to Cummings -- and as long as I'm talking about recent work in law reviews -- let me call your attention to Emily Prifogle's Law and Local Activism Uncovering the Civil Rights History of Chambers v. Mississippi, which appeared in the California Law Review.  I hope to say more about Prifogle's piece shortly, because I'm deeply interested in her method -- what one might think of as the social history of constitutional law.  This is an important work in framing how "great cases" affect the local community and draw out reactions from that community.

Legal Theory and Legal History: To Think What We Are Doing

 

 

“What I propose, therefore, is very simple: it is nothing more than to think what we are doing.”

 

- Hannah Arendt, The Human Condition (Chicago, 1958)

 

I want to start off my time here at the lounge by sharing some thoughts on the relationship between theoretical reflection, jurisprudence, and legal history. I want to do that because I just got back from a conference where this relationship was the topic of much discussion(Legal Theory and Legal History: A Neglected Dialogue? Queen Mary, University of London, April 12-13, 2013), and one particular entry into these discussions and others like them struck me as warranting further exploration.

 

And that is the work of Christopher Tomlins, with whom I had the pleasure of an all too brief (at least for me) conversation about his reading of Walter Benjamin, and in particular, his effort to imagine and practice a materialist (and because materialist a post-critical) study of the law. Tomlins, Chancellor’s Professor of Law at UC Irvine, has for some time been urging scholars across a variety of related fields to move beyond the model of scholarly practice associated with Critical Legal Studies, its equivalent in what Tomlins calls Critical Legal History, and the broader, basic idea that the job of the historian is to historicize- to situate chosen objects of study within an ever-multiplying series of contexts that are declared by the historian or other self-proclaimed critical scholar to be specific, plural, and complex, and only responsibly understood as such. The effect of this kind of practice is to neutralize the political potentiality of the material at hand, and it has been part of Tomlins’ project to suggest that this has to do with the ideological situation of the historical profession- it is in the interest of a historian to show up and say “no, no, its more complicated than that,” to display their specialized erudition, and to pave the way for a practice explicitly limited to the further extension of the complicating, contextualizing work that only we critical historicists are equipped to carry out. For Tomlins, I take it, this enlists the historian in the perpetuation of Benjamin’s “empty and homogenous time,” the result of which is a historical profession that constructs a celebratory, progressive, and ironically uncritical narrative of itself as doing the necessary work of recovering other contexts, other voices, other agencies, and other identities, and we can be assured, so the thinking goes, that this is self-evidently politically efficacious in and of itself.

 

Against critique and contextualization, Tomlins presents Benjamin’s concept of constellation: “There could be no apter evocation of the disquiet that marks the beginning of any critique of history worthy to be called dialectical, which must renounce a calm, contemplative attitude towards its subject to become aware of the critical constellation in which precisely this fragment of the past is found with precisely this present.”(1) The goal here is to build a relationship to the past that is aware of just why this particular thing is before us to consider at this particular moment- in short, what its doing here, and how should we understand the fact that it is here- as Benjamin elsewhere writes, of how this fragment of the past flashes up in the moment of danger in which we find ourselves. Cultural history, Benjamin writes, “may increase the burden of the treasures that are piled up on humanity’s back. But it does not give mankind the strength to shake them off, so as to get its hands on them.” (2) The historical practice of actualizing constellations is explosive- it remembers and recovers something, a fragment of the past that punches through the bounded character of the present. Tomlins is currently moving beyond the expansiveness of his incredible recent book, Freedom Bound, and focusing on Nat Turner and the 1831 slave revolt that he led in Virginia. In our own moment of the confrontation of liberalism’s self-understanding with theological and political violence, Turner explodes the image of the American past as the perpetually expanding demand for and use of the language of liberty, even as that image includes the history of active resistance to slavery. Like John Brown, there is something unclassifiable about Turner- you cannot understand him simply by describing the context or contexts in which he acted, social, linguistic, or otherwise, if you can hope to understand him at all, and in this age of creating and recovering multiplying alternative agencies and identities there is something profoundly discomforting about that. To speak of redemption in this case is to blow open what we would mean by redemptive constitutionalism.

 

I hope I have done justice to the arguments Chris Tomlins has been making. Where he and I touched bases was on the mutually felt need for historians in particular to attend to the conditions of their own intellectual practice, and to do so, in part, by attending to the history of intellectual practice. Quite simply, we need to “think what we are doing,” to use the words of another reader of Benjamin’s (I don’t know how much use Tomlins would have for Arendt, but the fragment I’ve provided here seems apt).

 

Tomlins’ both historical and more explicitly methodological work has been provocative for me, and I want to just note some of my reactions to it as a way of opening up space for future thinking. I cut my teeth, or am still cutting my teeth I suppose on a civically and historically conscious approach to legal and political thinking in time that we can see mot significantly (for me) in the work of J.G.A. Pocock. For Tomlins, I take it, “Cambridge” historiography has become conventional and is reaching a point of diminishing returns- a kind of conservative philosophical version of the critical historicism practiced by CLS and CLH. There is a minor point to be made that I don’t think there is a unitary school beyond what we generally call Cambridge school history of political thought, but the larger point I want to make is that it is difficult to actually rethink one’s practice without confronting conditions of historicity and plurality, although that does not stop us from trying. I take Pocock’s Gibbon project, soon to be consummated in a sixth volume of Barbarism and Religion, to be evidence enough that there is quite a bit to be done with the history of thinking and writing in contexts. An even more important point is this- a study of the past that is aware of the conditions of its practice will be one drawn into confronting histories of thinking and acting differently as a crucial part of any effort to do the same in the present. Benjamin’s constellations are still critical, and it might be said that this time of multiplying and reverberating fundamentalisms can ill afford to an age after critique, howsoever we might reimagine the method and locations of critical activity.

 

What I take to be at issue here is the contested nature of the common Nietzschean inheritance to the metatheoretical and metahistorical project of Tomlins and the genealogical, historical, and sometimes archaeological project (think of Foucault) that Tomlins is trying to get out of or away from. But that is a discussion for another time. Chris Tomlins’ evocation of Benjamin’s unique materialism is the place from which thinking about law and legal history has to begin today- and that is because by materialism Benjamin meant not just Historical Materialism but the actual stuff we use to make a world. Benjamin’s writings invite a history of thought, and in particular, a history of legal thought that is attentive to the material and revolutionary dimension of practice. This would be a history of fragments, of texts and their readings and rewritings, of materials and their collection and recollection. It would be a history of law, but it would also be a history of the uses to which the material of that history is put. When everyone is an originalist of one kind or another, perhaps it is this emphasis on materiality itself, the idea of getting one’s hands on the law, that flashes up as a memory fragment for our own moment of danger.

 

In a few future posts, I’ll be discussing my own work on Jefferson and the history legal and political thought, and how that fits into this, among other things that pop up.

 

 

 

 

1. Benjamin, “Edward Fuchs: Collector and Historian,” One-Way Street and Other Writings, Jephcott and Shorter, trans. (Verso, 1979), p. 351.

 

2. Ibid, p. 361. 

A Companion to American Legal History

I'm delighted to announce that the Companion to American Legal History that Sally Hadden and I have been co-editing for the last few years is now available in ebook format and will be appearing shortly in hardcopy from Blackwell-Wiley.  In the tradition of the other Blackwell Companions to American History, this book surveys recent writing on American history.  It's about the historiography of legal history and the idea is that readers can turn to it for a good introduction to the field and also for pointers from experts about directions for future research.

The Companion is broken down into time period essays, from the seventeenth century through the late twentieth century (by Elizabeth Dale, Sally Hadden, Ellen Pearson, Roman Hoyos, Chris Schmidt, and me); they are followed by essays on groups of people: Native Americans (Christian McMillen), African Americans in the eras of slavery and freedom (by T.J. Davis and James Campbell respectively), Women (Felice Batlan),  Families (David Tanenhaus), Immigrants (Allison Brownell Tirres), and Lawyers (Mark Steiner).  The next and largest section has essays on subject areas, with chapters on the economy in early America (Christine Desan) and in the late nineteenth and twentieth century (Harwell Wells), labor (Deborah Dinner), poverty (Felicia Kornbluh and Karen Tani), taxes (Robin Einhorn), administrative state (Joanna Grisinger), law and religion (Steven Green), military (Elizabeth Hillman), criminal law (Elizabeth Dale), and intellectual property (Steven Wilf).  The final section is on legal thought, with chapters on law and literature (Jeannine DeLombard), early American legal thought (Steven Macias), nineteenth and early twentieth century jurisprudence (James Schmidt), critical legal studies (John Schlegel), and an imperial perspective on American legal thought (Clara Altman).

Even with something this broad there's the question of what more could have been added; I think the next edition should have separate chapters on sexuality, economics, critical race studies, and I'd like to see something on the history of the book, even.  It is testimony to how far leagl history has migrated from where it was a generation ago that we don't have separate chapters on common law doctrine.  I think in a new edition I'd like to have chapters on contracts, property, and torts.  Or at least to think about those.  

Over at legal history blog, Chris Schmidt has some fabulously generous words about the book; he also talks some about his terrific synthesis of American legal history in the twentieth century.  

The publication date for the hard copy is April 15, though my hope is that it'll be rolling out of the warehouse a bit sooner than that.  And, as I noted above, it's available now on kindle and in Wiley's ebook format as well.  The book is priced for library sales -- it lists for around $200 (or $155 for the electronic edition); but if you order it from Wiley directly, use the code ALH13 for a 20% discount.   My hope is that if this interests you you'll pass word along to your favorite librarian.  In the meantime, the table of contents and the first chapter are on Wiley's website.

The Machinery of Criminal Justice

My good friend Stephanos Bibas, a criminal law and sentencing scholar at UPenn, recently penned an important book tackling the always weighty issue of how criminal justice is administered, entitled "The Machinery of Criminal Justice."    As his abstract explains:

Two centuries ago the criminal justice system was primarily run by laymen. In court, victims and defendants interacted face to face while lay jurors from the community sat in judgment. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, denounced guilty defendants, and reconciled and healed wounded relationships. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for voice of the jury. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price of quality, without recognizing either the trade-off or the great gulf separating lawyers' and laymen's incentives, interests, values, and powers. This book explores these trends and considers how criminal justice could better accommodate lay participation, values, and relationships.

Laudably, this book has gotten a lot of attention in the scholarly and public realms. In the current issue of the Harvard Law Review, Professor Nicola Lacey reviews the book, criticising Bibas's decision not to explore the "expanding scope of the criminal law" and do more comparative analysis, as well as faulting his promotion of a "false vision of a village idea:"

Humanizing the Criminal Justice Machine: Re-Animated Justice or Frankenstein's Monster?

Professor Bibas responds, arguing, among other things, that the current American landscape challenges us to build consensus at the neighborhood or local level, and to narrow criminal enforcement to those policies that can command broad support :

Criminal (In)Justice and Democracy in America

Whatever your take, it is well-worth your time to read the book and the two reviews, whether you are a prosecutor or criminal defender, a criminal law scholar,  a lawyer, or simply a member of the general public who wants to know what's really going on in the criminal justice system. 

And if you just can't get enough, here's the link to Professor Bibas's recent star turn on C-SPAN discussing these very issues.  Fascinating!

KCON 8 Update

Some might remember my entry of two weeks ago about the 8th International Conference on Contracts. Good news for folks who weren't able to make it: you can go here to watch all fourteen panels. Great presentations and interactions of leading and upcoming contracts scholars. And what was news to me, Oren Bar-Gill on the in-the-works Restatement (Third) of Consumer Contracts.

An interesting paper from Jack Balkin

Has been posted on Balkinization and on SSRN The First Amendment is an Information Policy. This paper sounds like it could have interesting implications for an issue which I intend to return to on the scholarship front, that is, what happens when some of what appears in law reviews has been "sponsored" or "commissioned" ? And when I say "sponsored" or "commissioned" I am not referring to law school summer research grants. Such grants are never conditioned on the topic or on the author reaching a particular result.  The only string attached are usually that the faculty member actually produce something that results in a publication.

In contrast, in, what for lack of a better word I will call "commissioned" or "sponsored" scholarship, the author has been paid precisely because of the viewpoint he or she espouses.  Drug company sponsorship, or worse ghostwriting (i.e. paying a doctor to add his or her name to an article) has long been a problem in medical journals relating to pharmaceutical drug research and has led to some overhauls on most medical journal's requirements about financial disclosures. Most law reviews don't have such policies. Should they? A few have implemented them.  Perhaps more will come. But the fact that there is some interest in financially supporting the production of law review scholarship to promote a particular point of view raises some interesting questions about the reliability of the information, whether "the marketplace" is a good sorter of the best ideas, as the "marketplace of ideas" metaphor is often used to imply.  And, more prosaically, illustrates that somebody thinks law reviews are worthwhile enough to pay for the production of these sorts of articles. Who is doing this, how much of this goes on and what difference it makes are big unknowns at this point but may bear some investigation. 

In the meantime, going back to Professor Balkin's paper, I think there might be some interesting implications for these questions given what looks like his thesis --- that one purpose of the First Amendment is to generate information.  Stay tuned.

Outsourcing the Up Goering of My Job Talk Paper to Forbes

So, one thing they say about being on the law teaching market is that you likely will never before have enjoyed — and, less happily, will likely never again enjoy — so much attention to your work and so many opportunities to discuss it. That’s totally true, and it’s totally fabulous. But there’s a flip side of that that they don’t tell you: after a while, you get burned out on talking about the same paper over and over again. You’ve likely moved on to other projects and are more excited about them, even if (or because) those projects build on your job talk paper. At this point in the process, your recitation of your job talk paper may have become rote and uninspired. You may, like me, have come to dread the act of rattling off your job talk paper’s thesis and why it matters.

And so it is that, having promised some months ago to blog my job talk paper on what I call the “heterogeneity problem” in research regulation, that I have yet really to do so. I’ve blogged around the edges, to be sure (see, e.g., here, here, here, and here), but I can’t bring myself to explain the central thesis one more time. I also owe book editors a chapter on the challenges of heterogeneity for the growing global trend in "risk-based regulation" across many industries, and I’ve been procrastinating that, too, I think, largely because it requires me first to provide the reader with a précis of the heterogeneity problem. All of this is annoying, because there are lots of things that build on that central thesis that I’d like to write about, if only I could get over this strange aversion.

Enter physician-scientist David Shaywitz whose overly kind piece yesterday in the Pharma & Healthcare section of Forbes.com, Personalized Regulation: More Than Just Personalized Medicine — And Urgently Required, highlights my work and, essentially, Up Goers it for me. It of course doesn’t cover all of the points I make in the paper, and in other ways it extends my thesis beyond what I defend in the paper, but it gives readers the gist. Thank you, David! (Let this also serve as supplemental answers to hiring committee questions about “What does your work have to do with the law?” and “Aren’t you ‘just’ a bioethicist whose work has no relevance for health or administrative law?”)

And now, with that out of the way, in my next post I’ll feel free to apply the heterogeneity problem to this question I was asked on Twitter. I can almost guarantee you that it will be my first and last post about football.

Teaching Prisons and Slavery (Or, This is Not About Django)

This is not about Django. As much as I am dying to write a post about Tarantino's new film, my academic writing beckons. 

Thank you, Patrick O'Donnell, for your earlier post and bibliography on teaching prison law.  I'd like to add to Professor Dolovich's call for a curricular commitment to bringing prisons and prisoners into legal education:  We should not forget to include a consideration of how antebellum slavery shaped the development of America's early penal institutions.

I am hard at work on a project that looks at the administration of slavery in antebellum Virginia through the institutional prisms of the county jail and the state penitentiary. Many (many) years ago, while trying to nail down a dissertation topic, I became interested in the practice of confining alleged fugitive slaves in local, southern jails until they were "claimed" by their owners. (Many folks confined in antebellum Virginia’s local jails were never accused of any crimes, and were most often merely suspected of being runaways.) Hunted down on the roads and in the countrysides, people of discernible African ancestry were presumed to be fugitive slaves; no law prevented their seizure and confinement upon such suspicion.  

The project tells (what I hope to be) a new story about the history of incarceration in the early national/antebellum south and the emergence of Virginia’s administrative regime, while also offering fresh insight into how these institutions shaped – and were shaped by – the institution of slavery.  Antebellum Virginians relied upon jails to perform functions separate and apart from holding accused persons awaiting indictment or trial; such facilities became sites for the realization of the state’s interests in slave property security. Jails were frequently used throughout this period as holding pens for slave traders; as clearinghouses for putative owners’ property claims in suspected fugitives; and as marketplaces for violence, as slaveowners sought – and paid for – corporal and terroristic punishment to be inflicted upon their recalcitrant bondsmen. No similar security measures were implemented for other forms of antebellum property, reinforcing for us (as modern readers) that slave property was peculiar and that institutions of law helped to create and reinforce this peculiarity. 

Few have considered the experiences of blacks in what might be considered "civil" custody during this period; beyond those excellent monographs on slaves-as-criminal defendants (Schwarz, etc.), this other history has gone (somewhat) untold. Penal institutions in this country have troubled pasts; introducing them to our students will both spark their interests and motivate further scholarly excursions (and activism) into the field.

Is Tax Evasion Normatively Good?

Much of tax law scholarship concerns how to improve tax compliance; in this literature, tax evasion is held out as normatively undesirable.  A senior researcher at the London-based Royal Society of Arts recently published a paper in which he argues that tax evasion in the UK might (actually) be a good thing.  In “Untapped Enterprise,” Benedict Dellot argues that the “informal economy” – those workers who do not declare their income for tax purposes – are an important part of the formal economy and that "formalization" itself is a process that occurs over the lifecycle of a business.  In some parts of the developing world, for example, the informal economy accounts for up to 90% of GDP.  The authors argue “If we rely too heavily on deterrence measures, we run the risk of derailing this[formalization] journey and preventing the entrepreneurial potential of thousands of hidden entrepreneurs from being realised.”

The study, of course, has some application limitations, but it’s an interesting read.  Should tax policy accommodate certain forms of “productive” noncompliance? Does it already do so?  I'd love to hear from some of our tax readers on this!

The Joy of the Roundtable Conference

I have the great joy of having been invited to the University of New Hampshire/Franklin Pierce’s Intellectual Property Scholars’ Roundtable on the Constitutional issues associated with I.P. law. I wanted to mention briefly the great value of this kind of conference. In the room are about twenty-five scholars who study various aspects of I.P. law. About a dozen of us are presenting an issue on which we are currently working and soliciting questions and comments from everyone else. I am not presenting a paper this year, so I can sit back a bit and think about the roundtable-style conference and its value to our scholarship in addition to absorbing the content of the presentations.

Topics at the conference have been limited to those I.P. issues associated with constitutional questions. To give an idea of the breadth of the topics covered, we have discussed the First, Second, Fifth, Seventh, Eleventh and Fourteenth Amendments as well as the Commerce, I.P., and Supremacy Clauses of the main document — and the conference isn’t over. Some of the most fascinating discussions have occurred when the interconnection of the different Constitutional provisions are discovered. In at least one time, it was exactly that. I don’t think any of us had thought about the connection raised before.

Indeed, this discovery of new interconnections is why the roundtable is such a valuable type of conference. The standard conference where papers are presented, mostly as finished works, has its value in dissemination of the information developed in the paper, but it doesn’t serve as the same incubator for new ideas. Indeed, where the research has been reduced to an article, it is often more informative to read the paper instead of hearing an oral presentation of it. For the roundtable conference, on the other hand, we get the opportunity to have our colleagues serve as idea editors. Whose scholarship wouldn’t be made better by that?

Sometimes What We Publish Actually Matters

A bold statement!  Catch your breath and savor it (the statement, not your breath).

Some of you may be following the developing issue surrounding the dubious (and profoundly piggish) tactic indulged in by many private equity fund managers of avoiding (evading?) hundreds of millions of dollars in taxes on the management-fee portion of their compensation.  The strategy involves "waiving" the management fees--except they're not really waived, they're "invested" in the fund or a related vehicle and paid to the manager later.  So instead of paying the 35% ordinary income rate on the management fees, these Masters of the Universe pay the 15% capital gains rate--and pay it years after they earned the management fees.  The amounts involved are staggering.  Bain Capital alone has engaged in this tactic as to over $1 billion (yes, with a "B") in management fees, resulting in over $200 million in unpaid taxes from this company's personnel alone.  And this for people already taking home tens of millions of dollars a year after taxes.

New York Attorney General Eric Schneiderman has issued subpoenas to explore how many New York residents may have stiffed his state's treasury in this fashion.  The New York Times reported on it over the weekend here.

The Times' interest in what might be considered an abstruse tax issue is fueled in siginficant part by Republican Presidential Nominee Mitt Romney's longstanding relationship with Bain Capital, and the possibility that he personally benefited from these tactics either while he was actively working there, or as part of the "retirement" package he received when he left.  Unlike every presidential candidate in recent memory, Romney has famously refused to disclose his tax returns except for the last two years, fueling speculation that he is either a tax cheat or at the least the beneficiary of what are referred to in polite company as "aggressive" tax strategies available only to the superrich, resulting in his paying effective tax rates that are a fraction of ordinary working folks'.  (It is worth noting that not every private equity fund played this game.  A number of the most prestigious and successful funds, including Blackstone and Carlyle, reportedly eschewed it.)

Romney supporters deride Attorney General Schneiderman's investigation as politically motivated, and Schneiderman is in fact a Democrat reportedly with ties to the Obama administration.  Why that should discredit the inquiry whether a major-party candidate for President has underpaid his taxes by millions in the midst of an economic crisis--an inquiry that the candidate could resolve simply by disclosing to the electorate the same information every major party candidate for President has disclosed for decades--remains a riddle to me, but perhaps I lack vision.  To be fair, a Romney tax advisor represented categorically to the Times that "Governor Romney's retirement agreement did not give [his] blind trust or him the right to [engage in the fee-waiver strategy], and I can confirm that neither he nor the trust has ever done this, whether before or after he retired from Bain Capital."  The irreducibly concrete among us may be forgiven for preferring show to tell, but again I perhaps lack vision.

This is all very interesting, Bernie, I hear you say, but you drew me into this rather dismal lesson on federal tax policy on the premise you would show how the academic work I publish actually might matter.  Fair enough:  Prepare to be exhilarated.

The Wall Street Journalreports today (sub. req'd) that "a person familiar with [the NY AG's] office's thinking" has explained that the subpoenas were issued in July, before this issue sprang into public consciousness, and were raised by the office's taxpayer protection bureau (a bureau that apparently protects the taxpayers who do pay their taxes by pursuing the ones who don't) based on discussion of the issue in (wait for it . . .) "academic papers."  I would be remiss if I failed to point out that this phrase in the online report is hyperlinked directly to my brilliant and perspicacious colleague Gregg Polsky's 2009 paper describing and condemning this very strategy, Private Equity Management Fee Conversions, 122 Tax Notes 743 (2009) (ssrn here).

So sharpen your nibs, my friends--real regulators may rely on your work to brook the high and mighty.  And of course your mom likes it too.  Hats off to Gregg Polsky for making himself useful!

--Bernie

Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault). Also, Thanks a Lot, Toshiba

So I've just posted a draft paper on SSRN, "Regulating the Production of Knowledge: Research Risk-Benefit Analysis and the Heterogeneity Problem," the first of a pair of companion articles on, well, how we regulate knowledge production -- focusing on IRBs in particular and on the peculiar risk-benefit standard that pretty much every federal agency (and the governance frameworks of many other countries) requires them -- futilely, I argue -- to perform. As soon as I finish navigating the ExpressO/Scholastica maze, I'll be blogging about some of issues raised in this paper, its companion, and "Legal Experimentation: Legal & Ethical Challenges to Evidence-Based Law & Medicine," a workshop (and edited volume) I'm organizing this spring.

But for now, a few brief thoughts:

(1) I hate the title of the draft paper. It's hideous. I long for the concise elegance of Prison Vouchers or some of the others mentioned here. The companion paper is tentatively titled "Research Contracts." That's followed by the usual boring descriptive subtitle, of course, but I consider it a victory at least to have begun with the kind of title I aspire to. For the posted draft, though, I can't even manage to do that. "Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault)" is a fair description, but seems a little glib for a law review article. So I'm all ears if anyone comes up with a less jargonistic, sleep-inducing title. (More importantly, and in all seriousness, I'm very open to feedback on the paper itself.)

(2) Toshiba is on my s*** list. Partly because I'm a die hard Mac person, but mostly because of Toshiba's latest ad campaign, embedded above, which stereotypically portrays research participants as the passive objects of mad scientists -- that is, as proverbial guinea pigs. Like other historically disempowered groups, career research participants have reclaimed that moniker. But Toshiba's customers don't know that, and its ad helps perpetuate the image of research participation as terribly dangerous and degrading and as something that only someone who is either irrational or desperate (and willing to be exploited) would agree to. In reality, research participants can and do initiate research, and in the increasingly popular Citizen Science and Quantified Self movements, the distinction between researcher and "subject" disappears altogether. It's also closer to the truth (ahem, Time Magazine) to say that a lack of experimentation has turned millions of us into human guinea pigs in the realms of health care and legal services, and as the subjects of any number of laws, regulations, and policies (see the "Legal Experimentation" prospectus, linked above). /Rant

University of Richmond Colloquium Speakers, 2012-13

As long as I'm talking about speakers at the Triangle Legal History, I thought that I'd post the list of speakers at my sort-of neighbors up at the University of Richmond School of Law.  When Dan Filler gave a talk there last spring I drove up to see him--lots of fun!  I hope to take in a few of these talks this year, too.

The complete list is below the fold.