May 07, 2013
Roncevic's E-book Platforms for Libraries
"Librarians, I hope you find the comparative tables useful and the vast landscape of ebooks a bit less daunting after having read this report. Library vendors, I hope you benefit from the insight into how your products compare to others and how you can continue to improve their functionalities and business models." -- Mirela Roncevic, No Shelf Required
Roncevic's E-book Platforms for Libraries, Library Technology Reports, April 2013 issue, is now available for purchase from the ALA Store. Here's the blurb:
E-book vendors continue to experiment: adjustments to business models, consolidation of content, and mergers with competitors mean constant change. What’s good for innovation can equal confusion when it comes to choosing an e-book platform for your library. Making a sound purchasing decision requires research and close consideration of trade-offs, and Roncevic’s new issue of Library Technology Reports will get you started. Based on surveys of e-book vendors with an established presence in academic, public, and/or K–12 library markets, this report includes
- Background and business model descriptions for 51 leading e-book vendors
- Four tables comparing content, technical specifications, functionality, and business models
- An at-a-glance overview of platforms, including vendor website URLs
- Bulleted checklists of factors to consider, and questions to ask vendors
- An examination of the blurring channels of publisher, aggregator, and distributor platforms, with advice to help you avoid content overlap
May 01, 2013
On the Impending Retrenchment of Legal Practice and Legal Education in ChinaIn 2011, Carl F. Minzner's (Fordham University School of Law) China’s Turn Against Law [SSRN] was published in American Journal of Comparative Law. The article argued that "Chinese leaders’ shift against law is a distinct domestic political reaction to building pressures in the Chinese system. It is a top-down authoritarian response motivated by social stability concerns."
This Article also analyzes the risks facing China as a result of the shift against law. It argues that the Chinese leadership’s concern with maintaining social stability in the short term may be leading them to take steps that are having severe long-term effects of undermining Chinese legal institutions and destabilizing China.
Excerpted from the abstract of China’s Turn Against Law.
In The Rise and Fall of Chinese Legal Education [SSRN], Fordham International Law Journal, Vol. 36, No. 2, 2013, a companion analysis to his earlier article, Minzner has turned his attention to the consequences to China's legal education system, internally and abroad, as the Chinese government strives to regain top-down party control of its legal system. Here's the abstract:
Over the past three decades, legal education in China has boomed. Numbers of law students and schools have increased exponentially. Legal education has become standardized at universities throughout the country. Prominent legal academics have emerged as public voices for political reform.
But Chinese authorities now perceive flaws in these trends. A flood of law graduates faces dismal employment prospects. Schools remain uniformly focused on academic research rather than practical skills. And the liberal orientation of many faculties is at odds with new conservative Party views on legal reform.
In response, officials are remolding legal education. They are reducing numbers of law students. They are pushing law schools to differentiate themselves from each other. And they are increasing political content in classrooms.
This Article analyzes both the expansion of legal education in China and its impending retrenchment.
China’s difficulties are not entirely unique. In both Latin America and Japan, efforts at rapid reform of law schools have foundered. And in recent decades, the United States has experienced unsustainable, credit-fueled growth in the cost and structure of legal education.
This Article argues that the current bubble in Chinese legal education is largely the result of state policies pursued since the late 1990s. These pushed the rapid expansion of university legal education through the use of one-size-fits-all target evaluation systems. But they have detrimentally affected the quality and direction of legal education in China.
As a result, authorities are reviving educational practices from the 1980s, that themselves have roots in the 1950s. Chinese legal education may be returning to its own past, rather than converging with foreign models.
This Article also contends that legal education can serve as the canary in the coalmine for understanding the direction of political and legal reform in China. The ability of conservative Party authorities to politically remold legal education may indicate whether their influence has already crested or if it will continue to expand yet further.
Last, this Article argues that Chinese developments will directly impact the efforts of American legal educators to address their own financial problems. Efforts to blindly ramp up recruitment of Chinese LLM students may be unsuccessful as a long-term strategy to solve the current problems confronting U.S. law schools.
Both articles are highly recommended. [JH]
April 25, 2013
"Do we need a new Blackstone? Do we need new writers of grand treatises like Story and Williston?"
Today’s lawyers have ready access not only to cases and other forms of legal authority, but also to masses of other information, legal and law-related, generated each day and competing for their attention. Is not the lawyer’s need for context and structure more urgent now than when the first great treatises were written and commentators were worried about how quickly the courts had generated the first few hundred published volumes of American reports?
Twenty-first-century Blackstones will be technologically literate legal scholars who understand the relationships between form, content, and structure, and who possess the skills to present legal information in innovative ways appropriate to the formats in which information is now published, identified, and delivered.
Highly recommended. [JH]
April 05, 2013
Harper's The Lawyer Bubble: A Profession in Crisis
“Imagine that the elite lawyers of BigLaw and the legal academy were put on trial for their alleged negligence and failed stewardship. Imagine further that the State had at its disposal one of the nation’s most tenacious trial lawyers to doggedly build a complete factual record and then argue the case. The result would be The Lawyer Bubble. If I were counsel to the elite lawyers of BigLaw and the legal academy, I would advise my clients to settle the case.” — William D. Henderson, Director of the Center on the Global Legal Profession and Professor at the Indiana University Maurer School of Law.
The Lawyer Bubble: A Profession in Crisis
Steven J. Harper
Basic Books (April 2, 2013)
From the blurb:
In The Lawyer Bubble, Steven J. Harper reveals how a culture of short-term thinking has blinded some of the nation’s finest minds to the long-run implications of their actions. Law school deans have ceded independent judgment to flawed U.S. News & World Report rankings criteria in the quest to maximize immediate results. Senior partners in the nation’s large law firms have focused on current profits to enhance American Lawyer rankings and individual wealth at great cost to their institutions. Yet, wiser decisions—being honest about the legal job market, revisiting the financial incentives currently driving bad behavior, eliminating the billable hour model, and more—can take the profession to a better place.
A devastating indictment of the greed, shortsightedness, and dishonesty that now permeate the legal profession, this insider account is essential reading for anyone who wants to know how things went so wrong and how the profession can right itself once again.
Steven J. Harper is an adjunct professor at Northwestern University’s Law School. After a 30-year career as a litigator, he recently retired from Kirkland & Ellis LLP. [JH]
April 03, 2013
Orphan Works and Mass Digitization
- Keynote Address: Orphan Works & Mass Digitization: Obstacles & Opportunities by Maria A. Pallante
- Private Digital Libraries and Orphan Works by Randal C. Picker
- The Orphans, the Market, and the Copyright Dogma: A Modest Solution for a Grand Problem by Ariel Katz
- The Orphan Works Chimera and How to Defeat It: A View From the Atlantic by Stef van Gompel
- How Fair Use Can Help Solve the Orphan Works Problem by Jennifer M. Urban
- Abandoning the Orphans: An Open Access Approach to Hostage Works by Lydia Pallas Loren
- Atomism and Automation by Molly Shaffer Van Houweling
- Orphan Works As Grist for the Data Mill by Matthew Sag
Hat tip to DigitalKoans at Private Digital Libraries and Orphan Works. [JH]
March 20, 2013
Tallinn Manual on the International Law Applicable to Cyber Warfare
The Tallinn Manual (Cambridge UP, 2013) has no official standing but as an advisory manual it may be an important reference work for military attorneys grappling with cyber attacks. In Rules of cyberwar: don't target nuclear plants or hospitals, says Nato manual, Owen Bowcott, legal affairs correspondent for The Guardian writes:
The handbook, written by 20 legal experts working in conjunction with the International Committee of the Red Cross and the US Cyber Command, says full-scale wars could be triggered by online attacks on computer systems. It also states that so-called "hacktivists" who participate in online attacks during a war can be legitimate targets even though they are civilians.
From the Cambridge UP blurb:
Tallinn Manual on the International Law Applicable to Cyber Warfare
The Tallinn Manual identifies the international law applicable to cyber warfare and sets out ninety-five 'black-letter rules' governing such conflicts. It addresses topics including sovereignty, State responsibility, the jus ad bellum, international humanitarian law, and the law of neutrality. An extensive commentary accompanies each rule, which sets forth the rule's basis in treaty and customary law, explains how the group of experts interpreted applicable norms in the cyber context, and outlines any disagreements within the group as to each rule's application.
March 08, 2013
Out of Ordering Lunch: No Consensus Needed When SCOTUS Justices Place Their Lunch Orders
Retired Supreme Court Associate Justice Sandra Day O'Connor appeared in the March 5, 2013 broadcast of The Daily Show. Here's the video links to Part One and Part Two. No doubt she was invited to promote her new book, Out of Order: Stories from the History of the Supreme Court (Random House, 2013) [Amazon link]. In Looking for SCOTUS controversy? Case revelations? O’Connor book sticks to facts of court history, Debra Cassens Weiss recaps reviews published in the New York Times and Christian Science Monitor. [JH]
January 22, 2013
"A book about boilerplate?"
That's Colorado Law prof Robert Nagel's lead-in sentence for his Dec. 20, 2012 WSJ book review of Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton UP, Nov. 25, 2012) [Amazon] by Margaret Jane Radin (Michigan Law). Quoting from Negal's highly recommended Devil's in the Small Print:
The absence of real agreement [according to Radin] means that boilerplate contracts are inconsistent with the moral basis of contract law, which, after all, uses the power of the state to enforce the transfer of one person's property to another on the ground that both agreed to the transfer. This degradation of the moral basis of contract law, in turn, undermines the classical liberal justification for the state, which rests on the need for a public entity that enhances freedom by enforcing private agreements.
You can see where this is heading. Nagel adds:
Ms. Radin is aware of the possible dangers of restricting boilerplate. Consumers, especially poorer ones, benefit from the price reductions that it makes possible. Many established commercial practices could be disrupted by increased regulation. She even briefly considers the possibility of tolerating boilerplate as a useful legal anomaly. In the end, however, she cannot overlook the incompatibility between boilerplate and the rule of law.
In this respect, Ms. Radin's book betrays how tidy is the intellectual world inhabited by many legal academics.
As an intellectual exercise, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law sounds like it may make for stimulating reading. If purchased from Amazon, you can "start reading Boilerplate on your Kindle in under a minute." Just remember to read the fine print. See also Omri Ben-Shahar's compilation in Boilerplate: The Foundation of Market Contracts (Cambridge UP, 2007) [Amazon].
However, in the real world of boilerplate, I recommend law librarians buy a copy of Lipinski's The Librarian's Legal Companion for Licensing Information Resources and Services (Neal-Schuman Publishers, 2012) [Amazon] to deal with the devil in the fine print. OK, OK, so quoting myself:
While Lipinski does not include major legal publishing vendor licensing clauses, the specificity of the addressed licenses analysis, the answers to over 100 questions about specific licensing agreements, and 20 key issues in licensing agreements, accompanied by sample clauses, makes the work a must-read at least until AALL produces something as detailed. OK, OK, that's probably wishful thinking on my part.
I seriously doubt but I hope to be pleasantly surprised if AALL's Library Procurement Process Improvements Task Force turns out to be up to the task of grappling with boilerplate clauses by way of a detailed analysis and a wide range of sample alternative clauses that address in specificity the many institutional buyer issues law libraries face. Could that be why the Task Force hasn't released and/or the E-Board hasn't approved the revision of AALL's 2004 edition of Principles for Licensing Electronic Resources yet? [JH]
January 20, 2013
A Tale of Two Academic Law Libraries
Namely Yale and Cornell in this recent Green Bag article written by Julian Aiken, Femi Cadmus and Fred Shapiro. A snip:
While law libraries are undergoing transformative changes in many different areas, the area in which the changes are probably most transformative is in collections. The two 500-pound gorillas in collection development are tighter budgets and the transition from print to digital formats. These gorillas are not just both big, they also work in tandem to clobber traditional collection ideas.
Clobbered by way of systematic substitution of digital for print. Discussing this now widely accepted practice in academic law library collection development, the authors note that substitution encompases almost all reporters from the National Reporter System "even such basic titles as the Federal Reporter and the Federal Supplement", digests and citators. many loose-leaf services and supplemented treatises, and hundreds of US student-edited law reviews.
This tale of Yale and Cornell also reports that "both libraries have ventured where some academic law libraries have not trodden before" in patron services. [JH]
January 14, 2013
AALL RIPS Issues Call for Book ReviewersSince the last time the Research Instruction Committee of RIPS issued a call for voluneers to review new legal research textbooks, about 10 new books or editions have been published. If interested, details and contact information in this RIPS Law Librarian Blog post. [JH]
December 20, 2012
On Your Holiday Gift Wish List? Rabban's Law's History: American Legal Thought and the Transatlantic Turn to History
"This accomplished work of intellectual legal history is the first complete account of American legal thought from the rise of Classical Legal Thought in the 1870s to the Sociological Jurisprudence of the pre-World War I era. Though it offers many illuminating challenges to conventional wisdom in the field, the book's first goal is to overthrow the still dominant Holmesian picture of Classical American legal thinkers as unhistorical prisoners of logic. Rabban shows instead the pervasive influence of historical consciousness on leading American legal thinkers, many of them influenced by Darwinian evolutionary ideas." -- Morton Horwitz, Charles Warren Professor of American Legal History, Harvard Law School.
From the blurb for David M. Rabban's Law's History: American Legal Thought and the Transatlantic Turn to History (Cambridge UP, Nov. 30, 2012):
This is a study of the central role of history in late-nineteenth century American legal thought. In the decades following the Civil War, the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic. Their historical analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, conclusions that challenge conventional accounts of legal formalism Unprecedented in its coverage and its innovative conclusions about major American legal thinkers from the Civil War to the present, the book combines transatlantic intellectual history, legal history, the history of legal thought, historiography, jurisprudence, constitutional theory, and the history of higher education.
December 13, 2012
paidContent's Jeff John Robert's New Book Takes a Look Inside Google's Engineering to Create the World’s Biggest Library
In The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library (GigaOM, 2012), Jeff John Roberts "describes the technological and legal twists and turns of the story through the people affected by it: the authors who feared losing rights to their work, publishers facing lost revenue, technologists pushing for a world where all written knowledge is digital, and librarians who believe in open access to information." From the blurb:
At the dawn of the e-book era, librarians predicted it would take 1,000 years to scan the world’s books. Then, one company set about to do it in five.
Even by the search giant’s standards, it was a bold move. As Google beat a path to the door of the world’s libraries and proceeded to scan everything from War and Peace to Watership Down, the company’s quest to build the largest library triggered a power struggle of massive proportions, as everyone from Amazon to the Justice Department and writers across the world rushed to halt the project.
In this compelling book, Jeff Roberts gives the first detailed account of Google’s grand plan to build a modern day Library of Alexandria and its subsequent undoing, and shows how Google’s gambit changed the way we view knowledge in the digital era.
For an excerpt see The technological imperative which includes links to Amazon, Barnes & Noble, and iTunes. At $2.99 for the ebook, you can't go wrong. Highly recommended. [JH]
December 10, 2012
Not Yet There: On achieving the "highest priority" in the Action Plan that "emerged from" the 2011 Vendor Colloquium
The Guide to Fair Business Practices for Legal Publishers 3d (2012) was recently approved by AALL's Executive Board and now is available online. According to the December 2012 Vendor Liaison Update:
This publication provides guidelines for legal publishers doing business with librarians and other consumers of legal information. The preparation of an updated edition of the guide was the highest priority in the action plan that emerged from the Vendor Colloquium held in February 2011.
Ah, OK. Here's the complete text of the Action Plan's specific goal:
Goal I-A. Reinforce our commitment to the Fair Business Practices Guide.
Flows from these Shared Principles:
• We strive to maintain clear and transparent communication while understanding that we are each managing a business and owe duties of loyalty to our employers.
• We mutually commit to efficient business procedures and systems.
• Seek a commitment from AALL members and vendors to the practices endorsed by the Fair Business Practices Guide.
• Revise and strengthen the Fair Business Practices Guide.
The "these Shared Principles" is a reference to Shared Principles for Law Librarians and Legal Information Vendors (June 1, 2011). The preamble states that they were developed by the participants of the AALL Vendor Colloquium which as you may recall included most large vendor representatives but few, if any, smaller legal publishers, and that "[t]hey provide an aspirational foundation for further work and communication, similar to a mission statement, and are the basis for the development of a corresponding action plan."
So AALL's Guide to Fair Business Practices has been revised according to the second-listed objective of Goal I-A. "Stenghten[ed]" is debatable. However, do note well that the first-listed objective of Goal I-A is to "[s]eek a commitment from AALL members and vendors to the practices endorsed by the Fair Business Practices Guide." No word in the December 2012 Vendor Liaison Update that AALL has, is, or intends to seek commitments from vendors to follow the revised edition of Fair Business Practices Guide. Instead we have this statement from AALL's Vendor Liasion:
I will continue to encourage all publishers of legal information to comply with the principles contained in the guide.
"To encourage", really? That's not really as strong a statement as to seek a commitment from each and every vendor pursuant to Goal I-A of the Action Plan (or at least those vendors who were represented at the Vendor Colloquium and its statement of Shared Principles). As one of AALL's trusted hired hands who posted this statement as their Vendor Liasion by way of an official AALL web communications medium, rank-and-file members can assume that the above statement is "official" in terms of what AALL officialdom intends to do by way of follow-up (unless retracted by a future Vendor Liasion Update).
Follow-up has never been one of AALL's strengths. That's because our elected national office holders and their hired hands have depended on our association's rank-and-file membership to ignore official statements as being nothing more than hollow words based on a long track record of AALL doing nothing much of consequence for rank-and-file members' vendor-buyer "day jobs." However, there's really no wiggle room here for AALL.
Do you commit to all, some or none of the business practices stated in the The Guide to Fair Business Practices for Legal Publishers 3d (2012)? If you commit to all, please state that in your written response. If you commit to some, please state which ones in your written response. If you commit to none, please state that in your written response.
If AALL receives no written reply to the above questions within X-number of days, AALL will assume that the Company's silence is acceptance of all the endorsed business practices stated in the the Guide.
The written word as the official record stated in the Shared Principles and this specific Action Plan goal requires official written follow-up statements from the vendor community. As the representive of institution buyers known as law libraries, consent to the Fair Business Practices Guide is implied by all law libraries. If AALL issues the Action Plan's mandated solicitation, instead of merely "continues to encourage vendors", my hunch is plenty of AALL members representing their private, government and academic law library buyers will be very interested in reading each vendor's written reply.
Each and every vendor's written reply would be handy to have when invoice-paying law librarians represented by AALL have a problem with a specific vendor that has or has not committed in whole or part to what right now is nothing more than AALL's endorsed business practices. But the audience of public interest is much wider than law librarians. The guidelines also target business conducted with "other consumers of legal information" according to the Vendor Liasion's December 2012 Update. The complete text of all vendor replies should be published on AALLNET outside its walled garden of web communications.
The preparation of the new edition of the Fair Business Practices Guide was not the highest priority in the Action Plan. The highest priority was to seek vendor and AALL commitments to the Fair Business Practices Guide by way of two stated objectives. As of today, that has only been partially achieved by publication of The Guide to Fair Business Practices for Legal Publishers 3d (2012). The most important objective remains.
Note to Vendors. If AALL follows Goal I-A by soliciting your commitment to all, some or none of the currently non-binding in any why, shape or form text known as The Guide to Fair Business Practices for Legal Publishers 3d (2012), do note that the following business practice guideline incorporates by reference AALL's Principles for Licensing Electronic Resources:
2.2 ESSENTIAL PRODUCT INFORMATION. Prior to confirming a purchase, publishers should provide in writing all information necessary for a customer to make an informed decision about products and services, including but not limited to:
2.2(h) If offered in multiple formats, a full description of each available format, including any differences in scope, price breakdown, frequency of update or supplementation, and license restrictions
2.2(h) PRACTICE TO FOLLOW: Review the Principles for Licensing Electronic Resources. These Principles provide guidance to library staff in working with others in the institution and with licensors to create agreements that respect the rights and obligations of both parties. http://www.aallnet.org/committee/reports/LicensingPrinciplesElecResources.pdf
Since (1) the link for the Principles for Licensing Electronic Resources currently sends one to the November 2004 edition, (2) the text of the 2012 edition of Fair Business Practices Guide does not state "as amended or revised" for Principles for Licensing Electronic Resources and (3) AALL's Library Procurement Process Improvements Task Force has been working on revising the 2004 Principles for Licensing Electronic Resources, you might want to seek clarification from AALL on that matter.
My bad. Did I just give AALL a loophole from seeking vendor commitments to The Guide to Fair Business Practices for Legal Publishers 3d (2012). A careful reading of the Goal 1-A would say "no." However, a careful reading of Goal 1-A may lead vendors to conclude that "practices to follow" under 2.2(h) are those stated in 2004. One hellva lot has changed in licensing electronic resources in the last eight years (for example, licensing professional grade enhanced Law eBooks and "productivity solutions" that are tied to vendor research platforms). [JH]
December 01, 2012
2012 Rule of Law Index
The World Justice Project's Rule of Law Index offers "a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice. It provides original data regarding a variety of dimensions of the rule of law, enabling the assessment of a nation’s adherence to the rule of law in practice, identify a nation’s strengths and weaknesses in comparison to similarly situated countries, and track changes over time." The 2012 Index is available here. [JH]
November 17, 2012
Mamas, Don't Let You Babies Become "Functional Psychopaths" (like successful lawyers???)
About Cambridge University research psychologist Kevin Dutton's new book, The Wisdom of Psychopaths, Debra Cassens Weiss reports in The Legal Field Attracts Psychopaths, Author Says; Not That There Is Anything Wrong with That (ABAJ News):
It’s a matter of degree, author Kevin Dutton argues in the book. At the high end of the scale are serial killers like Ted Bundy. But some psychopathic traits can pave the way to success and help people deal with the stresses of living, Dutton says.
From the blurb for The Wisdom of Psychopaths (Amazon):
Dutton argues that there are indeed “functional psychopaths” among us—different from their murderous counterparts—who use their detached, unflinching, and charismatic personalities to succeed in mainstream society, and that shockingly, in some fields, the more “psychopathic” people are, the more likely they are to succeed. Dutton deconstructs this often misunderstood diagnosis through bold on-the-ground reporting and original scientific research as he mingles with the criminally insane in a high-security ward, shares a drink with one of the world’s most successful con artists, and undergoes transcranial magnetic stimulation to discover firsthand exactly how it feels to see through the eyes of a psychopath.
As Dutton develops his theory that we all possess psychopathic tendencies, he puts forward the argument that society as a whole is more psychopathic than ever: after all, psychopaths tend to be fearless, confident, charming, ruthless, and focused—qualities that are tailor-made for success in the twenty-first century. Provocative at every turn, The Wisdom of Psychopaths is a riveting adventure that reveals that it’s our much-maligned dark side that often conceals the trump cards of success.
For more, see Michael Shermer's book review for the WSJ, When Madness Pays Off. [JH]
November 04, 2012
JAG's The Operational Law Handbook 2012
From the Preface to The Operational Law Handbook 2012:
The Operational Law Handbook is a “how to” guide for Judge Advocates practicing operational law. It provides references and describes tactics and techniques for the practice of operational law. The Operational Law Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information. The handbook is not intended to provide “the school solution” to a particular problem, but to help Judge Advocates recognize, analyze, and resolve problems they will encounter in the operational context. Similarly, the Handbook is not intended to represent official U.S. policy regarding the binding application of varied sources of law, though it may reference source documents which themselves do so. The Handbook was designed and written for Judge Advocates practicing operational law.
The size and contents of the Handbook are controlled by this focus.
Did I mention that the PDF version provided in the above link is 576 pages long? To order copies call (434) 971-3339; or email usarmy.pentagon.hqda-tjaglcs.mbx.clamo-tjaglcs(at)mail.mil.
Hat tip to beSpacific. [JH]
September 29, 2012
Jenkins' The Partisan: The Life of William Rehnquist
John A. Jenkins, the president and publisher of CQ Press, is a four-time recipient of the ABA’s Gavel Award Certificate of Merit, the highest award in legal journalism. Based on early buzz, he might become a five-time recipient for his The Partisan: The Life of William Rehnquist. See, e.g., Peter Landers' LB Bookshelf: Rehnquist Bio Doesn’t Pull Punches (WSJ Law Blog).
Quoting from the summary published here:
William Rehnquist's life story is profoundly significant yet largely unknown, which is how he wanted it. Rehnquist's place on the Court was at once an accident of history and an inevitable result of it—something that Rehnquist had secretly coveted since law school, and yet could never have connived to obtain. His nomination in 1971 was one of the modern political era's most unlikely appointments.
As a justice and later as leader of the Court, he presided over the some of the century's most dramatic decisions, including the impeachment of President Clinton and the resolution of Gore v Bush. In thirty-three years on the Supreme Court (nineteen as chief justice)—from 1972 until his death at age 81 in 2005—Rehnquist was on a mission, waging a quiet, constant battle to imbue the Court with a deep conservatism favoring government power over individual rights. His story is important because it teaches us why the Court matters, and how and why our least transparent, least understood branch of government has been politicized.
September 25, 2012
Sourcing Records on the US Constitution for Evaluating Original Intent Claims
In the "now for something completely relevant" category to the dustup between Scalia and Posner about Reading Law (2012), Gregory Maggs, Professor of Law and Co-director of the National Security and U.S. Foreign Relations Law Program at George Washington University Law School, has added a third installment in his series on sources of the original meaning of the Constitution. From the abstract of A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution [SSRN], 81 Geo. Wash. L. Rev. (forthcoming 2012):
The article describes the Constitutional Convention and the various kinds of records that were kept of its proceedings. The essay then explains, with examples, how judicial opinions and academic works draw upon the records for evidence of the Constitution’s original meaning, including both the meaning that the Framers may have subjectively intended the document to have and also other possible meanings. The essay next identifies and assesses seven important potential grounds for impeaching assertions about what the records show. Each of these potential grounds has merit in some contexts, but all of them are also subject to significant limitations or counter arguments. The essay, accordingly, recommends that anyone making or evaluating claims about the original meaning of the Constitution should proceed with caution, carefully taking into account both the possible grounds for impeaching claims and the arguments against these grounds. Appendices to this essay include an annotated bibliography and a table of the deputies who participated at the Constitutional Convention.
Earlier articles in Maggs' highly recommended concise guide series:
A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007) [SSRN link] and
A Concise Guide to The Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457 [SSRN link]
Excellent additions to an ALR class reading list. [JH]
September 20, 2012
Reclaiming IP Legal Analysis from Law and Economics
About Madhavi Sunder's From Goods to a Good Life: Intellectual Property and Global Justice (Yale UP, 2012), Martha Nussbaum wrote:
Sunder argues that one traditional focus of intellectual property law, economic efficiency, is too narrow. Efficiency is one important goal, but we should also consider how law affects people's capacity to participate in cultural production, to criticize tradition, and to pursue values of autonomy and mutual recognition. Equally valuable for experts and the general public, this book will reshape the entire debate about culture as property.
Last week Concurring Opinions hosted a blog symposium on Sunder's work. Links to the blog posts here. [JH]
September 18, 2012
CRS Questions The Relation of Tax Cuts To Economic Growth
For some reason, the amount of taxes individuals pay compared to their voting habits is in the news. I don’t take a position on that, but I refer you to this article in the Atlantic, Tax Cuts Don't Lead to Economic Growth, a New 65-Year Study Finds. The study in question is stated in a CRS report released yesterday called Taxes and the Economy: An Economic Analysis of the Top Tax Rates Since 1945 (Order Code R42729, September 14, 2012). Here is an excerpt from the Summary:
Advocates of lower tax rates argue that reduced rates would increase economic growth, increase saving and investment, and boost productivity (increase the economic pie). Proponents of higher tax rates argue that higher tax revenues are necessary for debt reduction, that tax rates on the rich are too low (i.e., they violate the Buffett rule), and that higher tax rates on the rich would moderate increasing income inequality (change how the economic pie is distributed). This report attempts to clarify whether or not there is an association between the tax rates of the highest income taxpayers and economic growth. Data is analyzed to illustrate the association between the tax rates of the highest income taxpayers and measures of economic growth. For an overview of the broader issues of these relationships see CRS Report R42111, Tax Rates and Economic Growth, by Jane G. Gravelle and Donald J. Marples.
Throughout the late-1940s and 1950s, the top marginal tax rate was typically above 90%; today it is 35%. Additionally, the top capital gains tax rate was 25% in the 1950s and 1960s, 35% in the 1970s; today it is 15%. The real GDP growth rate averaged 4.2% and real per capita GDP increased annually by 2.4% in the 1950s. In the 2000s, the average real GDP growth rate was 1.7% and real per capita GDP increased annually by less than 1%. There is not conclusive evidence, however, to substantiate a clear relationship between the 65-year steady reduction in the top tax rates and economic growth. Analysis of such data suggests the reduction in the top tax rates have had little association with saving, investment, or productivity growth. However, the top tax rate reductions appear to be associated with the increasing concentration of income at the top of the income distribution. The share of income accruing to the top 0.1% of U.S. families increased from 4.2% in 1945 to 12.3% by 2007 before falling to 9.2% due to the 2007-2009 recession. The evidence does not suggest necessarily a relationship between tax policy with regard to the top tax rates and the size of the economic pie, but there may be a relationship to how the economic pie is sliced.