Law Librarian Blog

New Research Shows Teachers, Like Students, Are Re-segregating

In Desegregating Teachers (SSRN), Wendy Parker (Wake Forest) reports that based on the results of her empirical study of 157 school districts, public schools are more segregated than is commonly recognized. From the abstract of her article:

[T]his Article uncovers that teachers are re-segregating, just as students are. Many educators, policy makers, and legal scholars would find no fault with this resegregation because they disconnect integration from quality of education. The consequences of teacher segregation, however, remain uncharted territory in this debate over the value of integration. The resegregation of teachers exposes the truth of segregation - it continues to impede structural equality and helps to perpetuate white supremacy. Segregated teaching staffs, which put inexperienced white teachers in minority schools, are but one aspect of the inequality of segregation. Yet, this past term the Supreme Court legitimated the current segregation in our public schools in its landmark opinion, Parents Involved. Our society's refusal to recognize the transformative potential of integration is, however, more of an obstacle to equality than the Supreme Court. That is, until we identify integration with quality of education, the Supreme Court's refusal to do so is unimportant.

Hat tip to Workplace Prof Blog. [JH]

Parenthood and Productivity in Law Firms

In Parenthood and Productivity: A Study of Demands, Resources and Family-Friendly Firms, 72 J. Vocational Behavior 110 (Feb. 2008), sociologists Jean Wallace & Marisa Young (Calgary) find that childless female lawyers billed more hours than childless male lawyers (and male and female lawyers with children) The study also finds we little support for the benefits of family resources or working in a family-friendly firm for women. Here's the abstract:

We examine how the presence of children is related to women’s and men’s productivity. We hypothesize family demands, family resources, and family-friendly workplaces are also related to productivity. Productivity for 670 Alberta law firm lawyers is analyzed using a standardized measure of productivity referred to as billable hours. The results suggest that mothers with school-aged children are less productive than non-mothers, whereas fathers with preschool-aged children are more productive than non-fathers. While time spent on household and childcare tasks significantly reduces women’s productivity, we find little support for the benefits of family resources or working in a family-friendly firm for women. Rather, fathers seem to benefit more: family resources are positively related to their productivity and family-friendly benefits allow them more time for leisure. These results support the assumption that having children is negatively related to women’s productivity but challenges the belief that family-friendly policies are primarily beneficial only to mothers trying to balancing work and family.

Hat tip to TaxProf Blog. [JH]

Empiricial Study of U.S. Copyright Fair Use Opinions

An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005 (pdf) by Barton Beebe (Cardozo) is available PENNumbra (pdf). The article presents "the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is mistaken." From the introduction:

Working from a data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of fair use doctrine set forth in the leading cases, particularly those from the Supreme Court. Based on these descriptive findings, the Article prescribes a set of doctrinal practices that will improve courts’ adjudication of the fair use defense.

Very interesting. [RJ]

The Implications of Climate Change Litigation for International Environmental Law-Making

Check out David Hunter's (American University, Washington College of Law) The Implications of Climate Change Litigation for International Environmental Law-Making, available from SSRN. Here's the abstract:

Climate advocates are increasingly raising specific climate change concerns before domestic courts, human rights tribunals, international commissions and other national and international decisionmaking bodies. Win or lose, these litigation strategies are significantly changing and enhancing the public dialogue around climate change. This article discusses the awareness-building impacts of climate litigation as well as related impacts such strategies may have on the development of climate law and policy. The article argues that litigation's focus on specific victims facing immediate threats from climate change has increased the political will to address climate change both internationally and nationally. It has also shifted the debate towards questions of compensation and adaptation, and has brought new and democratic voices to the climate policy debate. As a result, climate litigation is leaving an important imprint on climate policy regardless of whether a tort action in the United States or the Inuit human rights claims, for example, ultimately prevail - and as demonstrated by the recent US Supreme Court decision in Massachusetts v. EPA, some climate claims will prevail, setting important precedents for the future direction of climate law and policy.

Editor's Note: China Environmental Law blog is written by Charlie McElwee, an international energy & environmental lawyer based in Shanghai. Hat tip to Environmental Law Prof Blog. [JH]

Alan Dershowitz: The Advocate and Scholar as Jew; the Jew as Advocate and Scholar

Martin Belsky (Akron) has posted his interesting think piece on controversal law prof Alan Dershowitz. Check out Alan Dershowitz: The Advocate and Scholar as Jew; the Jew as Advocate and Scholar in SSRN. Here's the abstract:

Professor Dershowitz has melded his Jewish identity with his academic scholarship and public advocacy. First, he has described in great detail the Jewish stereotype and challenged it - not for its content but for its negativity. In Chutzpah, he defines the Jewish stereotype, as boldness, assertiveness, a willingness to demand what it due, to defy tradition, to challenge authority, to raise eyebrows. He also recognizes that detractors define these sets of characteristics as unmitigated gall, nerve, uppityness, arrogance, hypocritical demanding.

Second, Dershowitz's religious heritage has infused his perspective and commentary on a variety of legal topics from criminal justice to professional responsibility, to constitutional law. Because of his Jewish, and particularly religious Jewish upbringing, he uses Biblical and Jewish commentary as sources of analogy and reference.

Third, he has written and spoken about the difference between a faith-based perspective and a faith-biased one. The American tradition is based on many religious traditions and has prided itself on protection of religious and other minorities. It has also rejected the control by any religious group, even if it is the dominant majority.

Fourth, he has indicated his unwavering support for the State of Israel [but not all its politics and leaders] and opposition to those who are not just critical but perhaps have biased and, in some cases, even anti-Semitic attitudes. It is in American and not just American Jewish interest that we support and understand the only real democracy in the region.

And finally, Dershowitz has assumed the role of popular translator. He wants to explain his Jewishness, his religion and other religions in a manner that, though scholarly, can be understood by a broad audience. He can use his visibility and access to convey his perspectives and concerns. He believes, from his meetings, from his research, from the letters he receives - from Jews, non-Jews and even anti-Semites - that he knows what is on the mind and souls of many Jews of all ages and that he has a unique window into the mind of the anti-Semite.

Professor Dershowitz has his critics - both in the academy and in the quasi and not so quasi public sphere. But he brings credibility to his arguments because of his legal skills - careful scholarship, articulate expression and sometimes overwhelming persistency. You may disagree with him, but prepared to refute his logic, facts, and citations.

Do Insurgent Attacks Increase After Learning About US Press Coverage of Irag War Critiques?

Is There an "Emboldenment" Effect? Evidence from the Insurgency in Iraq
by Radha Iyengar & Jonathan Monten

NBER Working Paper No. 13839
March 2008

Abstract: Are insurgents affected by information on US casualty sensitivity? Using data on attacks and variation in access to international news across Iraqi provinces, we identify an "emboldenment" effect by comparing the rate of insurgent attacks in areas with higher and lower access to information about U.S news after public statements critical of the war. We find in periods after a spike in war-critical statements, insurgent attacks increases by 5-10 percent. The results suggest that insurgent groups respond rationally to expected probability of US withdrawal. As such counterinsurgency should consider deterrence and incapacitation rather than simply search and destroy missions.

See also Travis Sharp's review, Study: After U.S. antiwar outpouring, insurgent attacks go up 7-10%. [JH]

Parker's Institutional Repositories and the Principle of Open Access: Changing the Way We Think About Legal Scholarship

Kudos to Carol Parker, Law Library Director and Assistant Professor of Law at New Mexico, and a contributing editor for Law Librarian Blog. Carol's article, Institutional Repositories and the Principle of Open Access: Changing the Way We Think About Legal Scholarship, has been published in the New Mexico Law Review (at 37 N.M. L. Rev. 431 (2007) [Westlaw]) From its introduction:

This Article begins by looking at the traditions and cultural values that make open access to primary legal sources and governmental information essential, and that make open access to legal scholarship the next logical step. This Article then traces the evolution of the open access movement that has given rise to institutional repositories, and which has become a global phenomenon affecting all academic disciplines. Further, this Article examines in detail the effects of applying open access principles to legal scholarship, current options for law schools wishing to establish a repository, and the growing number of law school repositories currently in existence. This Article explores how legal scholars use repositories in creative new ways to publish digital objects, changing the landscape of legal scholarship. Finally, this Article concludes that open access to legal scholarship is a principle that *433 should be adopted by U.S. law schools because it is consistent with the American tradition of citizen access to government and legal information.

[JH]

Top Ten Myths of Social Security

Check out Richard Kaplan's (Illinois) Top Ten Myths of Social Security. Here's the abstract:

Few federal programs are as well known and as widely misunderstood as Social Security, despite its national prominence in matters both political and economic. As efforts to reform this creation of the Great Depression era are likely in the coming years, this article examines the principal myths surrounding this program to set the stage for evaluating possible revisions. The myths considered in this article include the following: (1) there is a trust fund, (2) Social Security does not increase the federal budget deficit; (3) retirees are only recovering their own money, (4) Social Security will not be there when one retires, (5) retirement benefits are proportional to one's lifetime earnings, (6) Social Security favors two-income married couples, (7) Social Security favors long-lived marriages, (8) one could do better investing directly, (9) working after retirement makes financial sense, and (10) retirement benefits are taxed more heavily than other pension payments.

Empirical Analysis of Law School Teaching Methods, Time to Bring in the Pros

Andrea A. Curcio, Gregory Todd Jones, Tanya M. Washington, Law School and Bar Examination Performance: Developing an Empirical Model to Test Whether Required Writing Exercises or Other Changes in Large-Section Law Class Teaching Methodologies Result in Improved Exam Performance, 57 J. Legal Educ. 195 (2007) [Westlaw].

The authors of the above article examined whether multiple practice essays, combined with peer and self-assessment using annotated model answers, had any effect on first-year law students' ability to break a legal rule into its component parts and perform a complex factual analysis on an essay exam. They report that "on average, students in the writing exercise class performed better on the essay exam questions, but the most statistically significant benefit inured to students who had above-the-median LSAT scores and above-the-median UGPA scores."

The study's design was simple, perhaps a bit too simple, and the sample population was too small to reach any firm conclusions but at least the authors are trying to follow up on concerns expressed in Stuckey's Best Practices for Legal Education and the Carnegie Foundation's Educating Lawyers: Preparation for the Profession of Law about the need to reform legal education.

Unfortunately most law profs are not professionally trained educators. Our teachers in public grade schools know more about the theories and practices required for creating a learning environment and evaluating the effectiveness of changes to that environment. But will the legal academy ask their colleagues in colleges of education to make a house call? Evaluating changes in law school teaching methods would be excellent research topics for enterprising education professors and their teams of PhD.-seeking research assistants. It might even yield positive results for law school students.

Perhaps we can hope that the legal academy will go beyond its traditional modi operandi by seeking outside advice; one law prof is trying. See John O. Sonsteng's (William Mitchell) A Legal Education Renaissance: A Practical Approach for the Twenty-First Century, 34 Wm. Mitchell L. Rev. 303 (2007). Here's the abstract:

For more than a century, law school teaching has relied on an education model that focuses on theory, providing minimal opportunity for students to learn and apply the practical problem-solving skills critical to becoming a competent lawyer in real world settings. Modern learning theory provides direction, and the tools are available for improving the legal education system to prepare students for the practice of law.

The perspectives and recommendations in this article are presented with the intent of encouraging discussion about the future of modern legal education.

This article has two sections. The first section provides an overview of the history and status of legal education. The second section suggests a model for change, and incorporates modern learning theory and teaching tools. It provides answers to criticism as it addresses curriculum, teaching, faculty, and costs.

It's a start but I still think it's time to bring in the pros. [JH]

The Good Occupation

J. Mark Ramseyer (Harvard Law School) and Yoshiro Miwa (Tokyo) have made their article, The Good Occupation, available on NELLCO. Here's the abstract:

Why did U.S. leaders ever think they could transform Iraq? Why did anyone think he or she could occupy a hostile foreign country successfully?

Why indeed? Perhaps the reason lies in a mythical past. Perhaps, in other words, the reason for the optimism lies in a tale about an occupation that successfully transformed a backward autocracy into an economically thriving democracy. The tale concerns Japan. In the collective imagination, the Allied (i.e., U.S.) occupation of Japan (1945-52) was the quintessentially good occupation -- an exercise that was planned elaborately in advance, that was (at least initially) idealistically administered, and that successfully laid the legal foundation for Japan’s post-War democracy and prosperity.

Unfortunately, the history is sheer myth. Americans -- especially those Americans celebrated as most "idealist" -- did not plan a Japanese recovery, did not design legal institutions that they thought would advance recovery, and for the first several years did not even bother working for a recovery. Instead, they mostly planned retribution: whom to hang, and which firms to shutter. Economic issues they entrusted to Japanese bureaucrats, and those bureaucrats merely manipulated the legal controls they had used to disastrous effect during the War. Coming from a New Deal background in Washington, collectivist Americans enthusiastically urged them on.

Although the Japanese economy did grow, it did not grow because of the Occupation or of any legal framework the Occupation introduced. It grew despite the Occupation. In early 1949, Japanese voters overwhelmingly rejected the political parties offering economic controls. In their stead, they elected center-right politicians offering a non-interventionist legal platform. These politicians then dismantled the legal controls, and (despite strong opposition from New Deal bureaucrats in the Occupation) imposed a largely non-interventionist framework. As a result of that choice -- and not as result of anything the Occupation did -- the Japanese economy grew.

Might the basis for the misguided optimism toward Iraq lie in a myth we collectively tell about an occupation the U.S. masterminded 50 years ago?

Choice of Law in the American Courts

Symeon C. Symeonides, Dean & Professor of Law, College of Law, Willamette University, has deposited Choice of Law in the American Courts in 2007: Twenty-First Annual Survey in SSRN. Here's the abstract:

This is the Twenty-First Annual Survey of American Choice-of-Law Cases. It covers cases decided by American state or federal courts from January 1 to December 31, 2007, and reported during the same period. Of the 3,676 conflicts cases meeting both of these parameters, the Survey focuses on the cases that deal with the choice-of-law part of conflicts law, and then discusses those cases that may add something new to the development or understanding of that part. The Survey is intended as a service to fellow teachers and students of conflicts law, both within and outside the United States. Its purpose is to inform rather than to advocate.

[JH]

Online Video at Risk of Private Censorship

In Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, American University Professors Pat Aufderheide and Peter Jaszi finds that many online videos creatively use copyrighted materials in ways that are eligible for fair use consideration under copyright law; In short, they potentially are using copyrighted material legally.

Researchers in AU’s Washington College of Law and School of Communication followed thousands of links for videos on 75 online video platforms and discovered nine popular kinds of use (extensive database of examples at centerforsocialmedia.org/recutvideos).

1. Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians (Baby Got Book)
2. Negative or critical commentary: Copyrighted material used to communicate a negative message (Metallica Sucks)
3. Positive commentary: Copyrighted material used to communicate a positive message (Steve Irwin Fan Tribute)
4. Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse (Abstinence PSA on Feministing.com)
5. Illustration or example: Copyrighted material used to support a new idea with pictures and sound (Evolution of Dance)
6. Incidental use: Copyrighted material captured as part of capturing something else (Prisoners Dance to Thriller)
7. Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience (Me on stage with U2 … AGAIN!!!)
8. Archiving of vulnerable or revealing materials: Copyrighted material that might have a short life on mainstream media due to controversy (Stephen Colbert’s Speech at the White House Correspondents’ Dinner)
9. Pastiche or collage: Several copyrighted materials incorporated together into a new creation, or in other cases, an imitation of sorts of copyrighted work (Apple Commercial)

[JH]

Bible-based Critique of State Tax and Spending Policies

Today's New York Times features Professor Susan Pace Hamill's (Alabama) critique of state tax and spending policies based on biblical grounds which is published in her recent book, As Certain as Death (Carolina Academic Press, 2007). See Professor Cites Bible in Faulting Tax Policies. In Hamill's opinion, a progessive tax and spending policies designed to aid the poor are mandated by the Bible. Hamill asserts that 18 states "seriously violate biblical principles" in the way they tax and spend.

The Sinful Six. Hamill calls Alabama, Florida, Louisiana, Nevada, South Dakota, Texas "the sinful six" because they require the poor to pay a much larger share of their income than the rich while doing little to help the poor improve their lot. The worst is Alabama which "taxes its poor more than twice as heavily as its rich, while holding a tight rein on education spending."

Only one state, Minnesota, came within reach of the biblical principles she applied, because its tax system is only slightly regressive and it spends heavily on helping the poor, especially through public education. For more see our post on Hamill's As Certain as Death. [JH]

Presidential Politics and the Resurgence of Health Care Reform

Jonathan Oberlander, Presidential Politics and the Resurgence of Health Care Reform, 357 New Eng. J. Med. 2101 (2007).  [sub. req.]

"The 2008 presidential election will not resolve the debate over health care reform, but the results will go a long way toward determining the future of U.S. health policy. It would be a mistake, however, to read the candidates’ plans too literally. A plan offered during the primaries usually looks different in key respects from the plan that a newly elected president takes to Congress, to say nothing of any legislation that Congress actually passes. Still, it is clear that there is a wide partisan gap on health care reform that reflects ideological divisions over the roles that government and market forces should play in the health care system. And the further U.S. health policy moves from incrementalism, the more that partisan divide is likely to be exposed."   [RJ]

Islam, Jihad, and Terrorism in Post-9/11 Arabic Discussion Boards

American University in Cairo professor Rasha A. Abdulla's study analyzed the contents of three of the most popular Arabic-language online message boards regarding the attacks of September 11, 2001 on the United States. Although terrorists claimed that the attacks were committed in the name of Islam, those who posted messages on all three forums rejected this claim. More than 43% of the messages condemned the attacks as a criminal act of terrorism that contradicts the core teachings of Islam. Some 30% saw some justification behind the attacks, even if they felt sorry for the victims and their families. However, those participants viewed the attacks as a political, rather than a religious, issue. [JH]

Will the Post 9/11 World be a Post-Tort World?

Will the Post 9/11 World be a Post-Tort World? by George W. Conk, Adjunct Professor, Fordham Law School, Elected Member, American Law Institute and Member, ALI Consultative Group on the Restatement of Torts, appears at 112 Penn St. L. Review (2007) [Westlaw]. In the world of Post 9/11 legal scholarship, most articles are not focusing specifically on private law, like this one does. The article discusses the Air Transportation Safety and System Stabilization Act (ATSSSA) by reviewing the strengths and weaknesses of the tort claims of those who were injured and died on 9/11. The article proceeds with the WTC respiratory injury occupational disease tort claims, their necessity, and justice and concludes with a call for defense and revitalization of tort law. [JH]

From the eloquent opening paragraphs:

The short answer to the title question is: NO. Yet, tort law will continue to be eroded by attrition, by lopping off remedies--especially by limiting damages and expanding immunities--unless we are able to grab hold of the public's conscience and consciousness to bring home the point that liability in tort is not some form of punishment, erratically inflicted.

Rather tort law is a highly elaborated body of thought. It asks what constitutes socially unreasonable conduct and, by reasoned judgment, allocates liability, and assigns responsibility. Tort shares that public function with many institutions. But tort law is unique in that it is essentially private law. The parties are not the public, nor strangers to the controversy, but rather are the actors and victims themselves. As the system has evolved two key elements should be observed: tort law measures the conduct of all parties, allocating responsibility among them, and it gages conduct in context. What is socially required is determined, as we learn in the first semester of law school, by what constitutes reasonable care under the particular circumstances.

9/11 did not change everything. It affirmed much. The upsurge of public sympathy, the admiration for those who reported for duty as rescuers and lost their lives underlined the principle that individual recognition of the call of duty is the foundation of society. Underlying the law of torts is the principle of respect for the interests of others as equal to one's own...

We look today at how that cloudless September day's terrible losses have played out in legal responses to 9/11. Tort and compensation issues immediately rose to prominence. The early stages of the story are familiar. Shock and an outpouring of public sympathy and a desire to help those who suffered in the catastrophe brought a huge wave of charitable giving. Eleven days after the catastrophe came the first legislative response--the Air Transportation Safety and System Stabilization Act, (ATSSSA), which was quickly amended to add Title IV which creates the September 11th Victim Compensation Fund of 2001. The Act created the Victims Compensation Fund for those who died or were injured that day at the disaster sites in New York, the Pentagon, and Pennsylvania and it brought liability protections for those whose breaches of duty may have enabled the crimes that stunned the nation and the world.

The Causes and Consequences of Industry Self-Policing

Jodi L. Short and Michael W. Toffel, The Causes and Consequences of Industry Self-Policing (Harvard Business School Working Papers):

Abstract

"Several innovative regulatory programs are encouraging firms to police their own regulatory compliance and voluntarily disclose, or "confess," the violations they find. Despite the "win-win" rhetoric surrounding these government voluntary programs, corporate confessions presents something of a behavioral paradox. Tasked with monitoring the legality of its own operations, why would firms that identify violations turn themselves in to regulators rather than quietly fix the problem? And why would regulators entrust regulated entities to monitor their own compliance and enforce the law against themselves? This paper addresses these questions by investigating the factors that lead organizations to self-disclose violations, the effects of self-policing on regulatory compliance, and the effects of self-disclosing on the behavior of regulators. We investigate these research questions in the context of the U.S. Environmental Protection Agency's Audit Policy."

[RJ]

Berkman Center's 2006 Law Blog Conference Papers (Finally) Published

The papers from the Berkman Center for Internet & Society's symposium on Bloggership:  How Blogs Are Transforming Legal Scholarship, held on April 28, 2006 at Harvard Law School, have been published. See, 84 Wash. U. L. Rev. 1025-1261 (2006). The symposium was organized by Cincinnati law prof and TaxProf Blog editor Paul Caron who observes, "it is, of course, ironic that a symposium on how blogs are transforming legal scholarship is finally published over 18 months after the event and after the papers were first posted online [on SSRN]." Details on TaxProf Blog.

The Bekman Center conference was one of the first of its kind. Paul Caron, who also co-founded the 50-plus blog Law Professor Blogs Network, reflects on the contribution of law prof blogging to legal scholarship in a recent Lexblog interview. [JH]

On Rendition (Not the Movie)

Selected Resources

1. Panel Discussion

Outsourcing Torture and Extraordinary Rendition Panel Discussion, Torture and the War on Terror Conference, Case Western Reserve School of Law (Oct. 7, 2005) (video)

2. Recent Legal Scholarship

NYU law prof Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law (SSRN) . From the abstract:

In recent years, the practice of extraordinary rendition by the U.S. government has come in for strong critique by human rights advocates, the United Nations, and other governments. Despite the avalanche of protest, U.S. government officials and some scholars have defended rendition, relying on a number of legal arguments. These arguments do not explicitly support the practice of informal transfer to a risk of torture; instead, they imply that the practice is legal by pointing to what defenders claim are lacunae in the relevant legal frameworks. Where lacunae are found, the Administration suggests, prohibitions give way to permission: territories outside the United States are conceptualized as locations where the U.S. may act as it pleases; informal promises between countries replace the absolute prohibition of certain transfers; and the war paradigm is used to deprive individuals of the protection of the law. This Article examines these arguments in close detail, suggesting that they are not only incorrect; they also hide a dangerous shift in policy: a practice purportedly developed to uphold the rule of law against lawless terrorists - rendition to justice - has become a lawless practice aimed at perverting the rule of law in relation to terrorism - extraordinary rendition.

William Mitchell College of Law professor John Radsan, A More Regular Process for Irregular Rendition (SSRN). From the abstract:

This article assesses the transfer of terrorism suspects outside the United States to other countries for detention and interrogation. The focus is on the CIA's alleged program of irregular rendition on non-U.S. citizens. Article 3 of the Convention Against Torture sets a standard for irregular rendition, precluding transfers in which there are substantial grounds for believing the suspect will be tortured in the receiving country. Beyond an argument that commander-in-chief powers may override American law on rendition, two means for complying with Article 3 are obtaining official assurances from the receiving country before transfer and monitoring the conditions of the suspect's confinement after transfer. The assurances, oral or in writing, could come from heads of state, through diplomatic channels, or from intelligence officials. And the monitoring could be done by human observers or by technical means. Assurances and monitoring are not necessary on renditions to countries with excellent human rights records. On renditions to countries whose human rights records are at the bottom of the list, assurances and monitoring will not be enough to reach legality. Assurances and monitoring do, however, make a difference on close calls. Accordingly, several combinations of assurances and monitoring are assessed against the records of countries, including Romania, Jordan, and Uzbekistan, which have been mentioned as possible recipients of CIA renditions. The conclusion, in disagreement with Human Rights Watch and the New York City Bar Association, is that irregular rendition can be carried out under the rule of law with care, caution, and a bit more transparency.

Washington University School of Law professor Leila N. Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law (SSRN). From the abstract:

This Essay examines the contentions of U.S. government lawyers that the U.S. should abandon the provisions of the Geneva Conventions in favor of a de novo legal regime that would govern the capture, detention, treatment and trial of enemy prisoners taken in the Global War on Terrorism (GWOT), whether captured in the U.S. or abroad. In particular, it examines the question of extraordinary rendition - transferring detainees abroad for detention and interrogation either from the United States, on behalf of the United States, or from occupied Iraq. Although the numbers of prisoners rendered abroad has been relatively few, the covert nature of the operations, and the allegations of prisoner mistreatment raise very troubling questions about the wisdom and the legality of the U.S. rendition program. It concludes that extraordinary rendition is not permissible under existing, applicable and well-established norms of international law. Additionally, because renditions are carried out in secret, employ extralegal means, and often result in prisoner abuse, including cruel treatment, torture, and sometimes death - they appear to be emblematic of the larger human rights concerns that trouble many of the detention and interrogation practices employed by the U.S. government since September 11, 2001. Of particular concern is that rather than explicitly amending the law or articulating clear, narrowly tailored justifications for derogating from the law, derogations that would presumably be temporary and specific, such as the derogations permitted under international human rights treaties, government officials have sought to redefine legal norms in an exceptional burst of “executive activism” in ways that are neither particularly plausible or persuasive. This use of legal subterfuge is deeply troubling in and of itself, as well as in regards to it potentially harmful consequences. Finally, the Essay questions the efficacy, as well as the wisdom, of these extralegal policies.

3. In the Press

Daniel Benjamin, 5 Myths About Renditions (and the Movie Version), Washington Post (Oct. 19, 2007)

Daniel L. Byman, Renditions and the Rule of Law, The Boston Globe (October 15, 2007)

4. Congressional Testimony

Extraordinary Rendition, Extraterritorial Detention, and Treatment of Detainees: Restoring Our Moral Credibility and Strengthening Our Diplomatic Standing, Senate Committee on Foreign Relations Hearings Testimony of Daniel L. Byman, Senior Fellow, Foreign Policy Studies, Saban Center for Middle East Policy (July 26, 2007) (prepared statement)(pdf)

5. Books

Torture Taxi: On the Trail of the CIA's Rendition Flights
by Trevor Paglen and A. C. Thompson

List Price: $23.00
Hardcover: 208 pages
Publisher: Melville House Publishing (September 24, 2006)
ISBN-10: 1933633093
ISBN-13: 978-1933633091

Book Description: In this first book to systematically investigate extraordinary rendition, an award-winning investigative journalist and a "military geographer" explore the CIA program in a series of journeys that takes them around the world. They travel to suburban Massachusetts to profile a CIA front company that supplies the agency with airplanes; to Smithfield, North Carolina, to meet pilots who fly CIA aircraft; to the San Francisco suburbs to study with a "planespotter" who tracks the CIA's movements; and to Afghanistan, where the authors visit the notorious "Salt Pit" prison and meet released Afghan detainees.

They find that nearly five years after 9/11, the kidnappings have not stopped. On the contrary, the rendition program has been formalized, colluding with the military when necessary, and constantly changing its cover to remain hidden from sight.

Ghost Plane: The True Story of the CIA Rendition and Torture Program
by Stephen Grey

List Price: $14.95
Paperback: 400 pages
Publisher: St. Martin's Griffin; Reprint edition (September 18, 2007)
ISBN-10: 031236024X
ISBN-13: 978-0312360245

Book Description: On June 10th, 2002, Attorney General John Ashcroft announced that the US had captured a known terrorist who was exploring a plan to explode a "dirty bomb" on American soil.  That alleged terrorist was José Padilla who was finally charged in 2005 with conspiracy to murder.  What Ashcroft didn't talk about was how information against him was obtained – by the relentless torture of one man-- Binyam Mohamed, in the name of the United States.  Arrested at Karachi Airport before Padilla’s arrest on April 10, 2002, Mohamed was put on a luxury executive jet and flown to an interrogation center in Morocco.  For over 18 months, he was subjected to one torture after another: Beating followed beating and, then, his guards produced razor blades and began to split the skin all over his body, including on his genitals.  Since 1997, hundreds of people, many of whom have no ties to terrorist organizations, have been abducted from foreign airports or street corners on suspicions based at times on the flimsiest of evidence courtesy of the United States Central Intelligence Agency.  In Ghost Plane, Stephen Grey tells the true story of the CIA's torture program known by the euphemism "extraordinary rendition" and the airplanes that make the program run.  Begun during the Clinton administration, but taking a decidedly more voracious turn after 9/11, the rendition system has seen the transfer of more than 1000 prisoners into jails stretching from Guantanamo to Syria, from Kabul to Bangkok and beyond.  Grey had access to the thousands of CIA flight records and has interviewed dozens of sources from the most senior levels of the National Security Council to the CIA.  In Ghost Plane, he paints a disturbing picture of the War on Terror that reaches to the highest levels of power in Washington, D.C. and exposes the extreme ethical corruption at the heart of this US government program, a program finally acknowledged by President George Bush in September 2006, undertaken in the name of the citizens of the United States.

[JH]

Recent NBER Reports

Is the Food and Drug Administration Safe and Effective?
by Tomas J. Philipson, Eric Sun  -  #13561 (HC HE LE)

Abstract:
In the United States, drug safety and efficacy are primarily regulated by the Food and Drug Administration (FDA) and the legal system, which gives manufacturers large incentives to produce safe drugs and provide proper warnings for side effects, since patients can sue manufacturers that provide unsafe drugs and/or insufficient warnings.  <br><br>In this paper, we begin by examining the efficiency implications of this joint regulation of drug safety.  We find that joint regulation of drug safety can be inefficient when the regulatory authority mandates a binding and well enforced level of safety investment.  In this case, product liability has no effect on a firm's safety investment, but affects welfare by raising a firm's costs and therefore prices.  Using these results, we calibrate a model of the pharmaceutical market and find that, depending on the share of liability costs in marginal costs, a product liability exemption for activities that are well regulated by the FDA could increase consumer welfare by $47.8-$754.7 billion annually (4-66 percent of sales) and producer welfare by $11.9-$173.9 billion annually (1-15 percent of sales).  <br><br>In addition, we summarize the welfare effects of recent legislation, the Prescription Drug User Fee Acts (PDUFA), which mandated faster FDA review times in exchange for user fees levied on the pharmaceutical industry.  Overall, we find that the faster review times mandated by PDUFA raised social surplus by $18-31 billion, and that at most, the concomitant cost of reduced drug safety was $5.6-$16.6 billion.

On Optimal Legal Change, Past Behavior, and Grandfathering
by Steven Shavell  -  #13563 (LE)

Abstract:
When is it socially advantageous for legal rules to be changed in the light of altered circumstances? In answering this basic question here, a simple point is developed -- that past compliance with legal rules tends to reduce the social advantages of legal change.  The reasons are twofold:  adjusting to a new legal rule often involves costs; and the social benefits of change are frequently only incremental, only in addition to those of past compliance.  The general implications are that legal rules should be more stable than would be appropriate were the relevance of past behavior not recognized, and that a policy of grandfathering, namely, of permitting noncompliance, should sometimes be employed.  The analysis of these points has broad relevance, applying across legal fields, often explaining what we observe but also indicating possibilities for reform, such as in the regulation of air pollution.  The analysis is related to the conventional reliance-based justification for the stability of the law, the literature on legal transitions, and economic writing on optimal legal standards.

Eminent Domain Versus Government Purchase of Land Given Imperpect Information About Owners' Valuation
by Steven Shavell  -  #13564 (LE)

Abstract:
Governments employ two basic policies for acquiring land:  taking it through exercise of their power of eminent domain; and purchasing it. The social desirability of these two policies is compared in a model in which the government's information about landowners' valuations is imperfect.  Under this assumption, the policy of purchase possesses the market test advantage that the government obtains land only if an owner's valuation is low enough that he is willing to sell it. However, the policy suffers from a drawback when the land that the government needs is owned by many parties.  In that case, the government's acquisition will fail if any of the owners refuses to sell.  Hence, the policy of eminent domain becomes appealing if the number of owners of the land is large. This conclusion holds regardless of whether the land that the government seeks is a parcel at a fixed location or instead may be located anywhere in a region.

Do Tax Cuts Starve the Beast: The Effect of Tax Changes on Government Spending
by Christina D. Romer, David H. Romer  -  #13548 (DAE EFG ME PE)

Abstract:
The hypothesis that decreases in taxes reduce future government spending is often cited as a reason for cutting taxes. However, because taxes change for many reasons, examinations of the relationship between overall measures of taxation and subsequent spending are plagued by problems of reverse causation and omitted variable bias. To deal with these problems, this paper examines the behavior of government expenditures following legislated tax changes that narrative sources suggest are largely uncorrelated with other factors affecting spending.  The results provide no support for the hypothesis that tax cuts restrain government spending; indeed, they suggest that tax cuts may actually increase spending.  The results also indicate that the main effect of tax cuts on the government budget is to induce subsequent legislated tax increases.  Examination of four episodes of major tax cuts reinforces these conclusions.

The Incidence of a U.S. Carbon Tax: A Lifetime and Regional Analysis
by Kevin A. Hassett, Aparna Mathur, Gilbert E. Metcalf  -  #13554 (EEE PE)

Abstract:
This paper measures the direct and indirect incidence of a carbon tax using current income and two measures of lifetime income to rank households.  Our two measures of lifetime income are current consumption and adjusted or "lifetime" consumption.  The use of the adjusted lifetime measure for consumption is intended to correct for long-run predictable swings in behavior.  Our results suggest that in general, carbon taxes appear to be more regressive when income is used as a measure of economic welfare, than when consumption (current or lifetime) is used to measure incidence.  Further, the direct component of the tax, in any given year, is significantly more regressive than the indirect component.  In fact, for 1987, the indirect component of the tax is actually mildly progressive, as the higher deciles tend to pay a larger fraction of their consumption in carbon taxes.  Finally we observe a shift over time with the direct component of carbon taxes becoming larger in relation to the indirect component.  These effects have mostly offset each other, and the overall distribution of the total tax burden has not changed much over time.

International and Foreign Law Sources: Siren Song for U.S. Judges?

The American Constitution Society is distributing online International and Foreign Law Sources: Siren Song for U.S. Judges? by University of California, Hastings College of Law Associate Professor Chimène I. Keitner. The issue brief addresses the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication.

From the abstract: [Professor Keitner] begins by summarizing the attitudes towards international law sources exhibited by individual justices in the American legal system, noting that "one's opinion about the potential relevance of foreign and international law sources . . . depends in no small part on one's view of the role of judges in a constitutional democracy." Professor Keitner then examines the public opposition to the citation of foreign law sources in Lawrence v. Texas and Roper v. Simmons, which manifested itself in proposed legislation that would constrain how judges could interpret cases and prohibit the consideration of international law sources. Finally, Professor Keitner identifies three principled objections to the use of foreign and international law sources in constitutional adjudication, and responds to each in turn. Professor Keitner concludes, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution." [JH]

The Culture of Citizenship

Boalt Hall's Leti Volpp's The Culture of Citizenship appears at 8 Theoretical Inquiries 571 (2007) A copy is available from SSRN. Here's the abstract to a paper that should challenge multicultualists to rethink their proposed solutions to "culture wars."

The headscarf debate in France exemplifies what is widely perceived as the battle between a culture-free citizenship and a culturally-laden other. This battle, however, presumes the existence of a neutral state that must either tolerate or ban particular cultural differences. In this Article, I challenge that presumption by demonstrating how both cultural difference and citizenship are imagined and produced. The citizen is assumed to be modern and motivated by reason; the cultural other is assumed to be traditional and motivated by culture. Yet citizenship is both a cultural and an anti-cultural institution. Citizenship positions itself as oppositional to culture, even as it is constituted by cultural values. Recent scholars of multiculturalism have turned to concepts of citizenship as a solution to the dilemma raised by conflicts over culture. But these concepts of citizenship, namely deliberative democracy and civic participation, replicate the presumption of a culture-less "citizenship" - and thus form an ironic choice of solution to the problem of cultural difference.

Taking Care of Treaties

George Washington University law prof Edward T. Swaine has deposited Taking Care of Treaties in SSRN. Here's the abstract:

There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope with breaches, accordingly, risks distorting the positive law or vesting the President with a potentially boundless authority – or, in the alternative, risks a recurring gap between our international obligations and our domestic law.

The Take Care Clause affords a surprisingly well-tailored solution. Take care authority has been neglected in recent discourse, and not without reason. On the one hand, it is not obvious that it encompasses treaties, or licenses presidential authority beyond the capacity to ensure compliance within the executive branch; on the other hand, it smacks of unbridled executive power. These objections can be met. As the Article explains, the Take Care Clause includes treaties, including – critically – some treaties conventionally labeled as non-self-executing, and permits presidential authority beyond self-regulation. The text, case law, and practice further support the idea that this authority may be divested by the Constitution, by treaty, or by statute, and must satisfy additional criteria that guard against vesting the president with plenary lawmaking authority.

The Article explains how this theory applies to potential controversies involving compliance with the decisions of international tribunals (like those of the International Court of Justice, or arising under the WTO or the Law of the Sea Convention), legislative decisions by institutions like the Security Council (such as a resolution enabling war crime proceedings against former U.S. officials), and finally treaties that afford no recourse to international mechanisms. The result is a theory that reinforces congressional supremacy without requiring that treaty obligations founder upon it.

China-Taiwan Comparison of Rule-of-Law-Without-Democracy Strategy for Transition

Weitseng Chen, a Yale Law School student, has deposited Cross the Bridge When There? China-Taiwan Comparison of Rule-of-Law-Without-Democracy Strategy for Transition in NELLCO. Here's the abstract for this very interest paper:

This paper contests a long-standing conventional wisdom that China will eventually democratize, along with its rule of law reforms and increasing integration into the world economy. Sharing an identical rule-of-law-without-democracy model during its transition, Taiwan has been one of the major resources to compose this viewpoint; however, surprisingly little research about the rise and fall of this model in Taiwan has been conducted to support this assertion. Through a comparison of China and Taiwan’s rule of law transitions, this paper does find strikingly similar patterns and progression during the development of this model on both side. The author also identifies four critical structural conditions, as a result of Taiwan’s international context and history legacy, that eventually brought about the spillover effects of legal reforms on democratization. These conditions, however, do not exist in China. In addition, this paper further points out the limits and resilience of this model, with empirical evidences supported by the statistics of Taiwan’s law enforcement. The core feature of rule of law -- putting the state under the law -- was not achieved until after democratization.

The Expertise Age

In What Comes After the Information Age, Andy Oram presents an interesting perspective by comparing the differences between professional computer documentation published in hardcopy and free online documentation. The bottom line: when information becomes a commodity, expertise increases in value. [JH]

Meredith Farkas' 2007 Survey of the Biblioblogosphere

Meredith Farkas has started publishing results from her survey. I recommend reading Interesting Facts from the Survey of the Biblioblogosphere 2007 and checking her Index of Results for links to her reports which will be published in four parts: Demographics, Blog Demographics, Attitudes and Behaviors, and Results from Various Filters.  [JH]

Law Review Articles Impact on Jurisprudence Minimal

Brooklyn Law School law prof Aaron D. Twerski writes in Legal Scholarship, It Should be Relevant Again, that law review articles have little impact on jurisprudence, that the legal academy is out of touch. "Judges and lawyers alike tell us that they no longer read the reviews because they lack relevance to the work that they do; that they are too theoretical and too esoteric." So what's law reviews good for besides being an vehicle for acquiring lifetime job security? (See related post).

More seriously, if legal scholarship is intended to support the profession, relevance is an important criterion. However, if legal scholarship is a pursuit of knowledge for its own sake, relevance is, ah, irrelevant. Twerski writes

Law schools and the law reviews need to do some serious soul searching. Even when writing about the influence of other disciplines, they need to insist on clear and understandable scholarship that judges and lawyers can utilize in their work. Moreover, the academy needs to aim for greater balance and recognize that there is room for true doctrinal scholarship. Academicians can address different audiences in their writings so that the isolation of the legal academy from the legal profession will diminish.

Certainly there is room for both doctrinal schlarship relevant to the profession and scholarship for scholarship's sake that isn't confined to doctrinal analysis but, clearly, the latter garners more status in academic circles. [JH]

Top 35 Law Faculties Based on Scholarly Impact for 2007

Texas law prof Brian Leiter has published Top 35 Law Faculties Based on Scholarly Impact for 2007 in Brian Leiter's Law School Rankings. Leiter's study, which compiled citation data for all tenure-stream members of the academic faculty (for 2007-08) from 2000 to the present, is a ranking of the top 35 law faculties based on a standard "objective" measure of scholarly impact, namely, per capita citations to faculty scholarship. Leiter cautions that "scholarly impact as measured by citations has important limitations as a proxy for scholarly reputation." In this report he identifies six kinds of phenomena which may skew the correlation between citation and quality.

Top 35 Law Faculties Based on Scholarly Impact for 2007 is one those rare citation studies coming out of the legal academy that exemplifies the precision of infometrics, not the carelessness of "info antics." [JH]

Recent Legal Scholarship on Climate Change

Two new SSRN deposits:

• Negligence in the Air: The Duty of Care in Climate Change Litigation by James Salzman and David B. Hunter
• Think Globally, Act Globally: The Limits of Local Climate Policies by Jonathan B. Wiener

Negligence in the Air: The Duty of Care in Climate Change Litigation
James Salzman and David B. Hunter 

Abstract:      
The prospect of tort litigation against private parties has been gaining increasing attention by lawyers. While only three such cases have been filed thus far, observers (including the organizers of this symposium) clearly expect the number to increase significantly. Indeed, if successful, these and future cases will have a huge impact on the industries sued and, as hopeful lawyers have mused, could make the tobacco litigation look small by comparison. But will these cases succeed?

As law students all dutifully learn in their first year Torts class, a prima facie negligence claim must satisfy four elements - duty, breach, causation, and injury. Most discussion and analysis of climate change cases to date have focused on the third and fourth elements of causation and injury. How can plaintiffs persuasively link the particular emissions of cars driven one place with reduced snow pack somewhere else? And, even if a causal link can be established between the offending action and the harm, what is the proper measure of the emitter's liability in the face of multiple sources of greenhouse gases over an extended time period?

These are challenging issues, and surely deserve careful attention. What remains surprising, though, is that little beyond passing mention has been written about the first two elements - the duty of care and its breach. Suppose one could establish that emissions from a utility company or an automobile manufacturer's cars proximately caused greater storm surges that, in turn, harmed a particular coastal community, or proximately reduced snow pack and led to water shortages for a specific farming community. Key questions still remain. Did the utility or car manufacturer owe a duty of care to these specific communities? If so, what was the nature of that duty and was it breached?

To improve our understanding of the short and long-term potential for climate change tort litigation, this article focuses on the duty of care and its breach. The first section addresses general doctrine. What role does the duty of care play in tort actions? The second section then explores the likely scenarios for tort climate actions, including a summary of the tort-based actions brought thus far. Who are the likely plaintiffs and defendants? How have litigants attempted to satisfy the duty of care elements in climate litigation? The final sections assess the duty of care for a range of tort actions - negligence, product liability, private nuisance and public nuisance - that may in the future form the basis of climate-based claims.

Think Globally, Act Globally: The Limits of Local Climate Policies
Jonathan B. Wiener 

Abstract:      
State-level actions to address global climate change, such as laws and litigation recently undertaken by California and by several Northeastern states to limit greenhouse gas (GHG) emissions, reflect creative legal strategies understandably intended to achieve a major environmental objective while the US federal government has not joined the Kyoto Protocol and has not yet adopted national legislation. But even assuming that forestalling global climate change is urgently needed, state-level action is not the best way to do so. Acting locally is not well suited to regulating moveable global conduct yielding a global externality. Legally, state-level action confronts several obstacles, including the dormant commerce clause, dormant treaty clause, interstate compacts clause, and standing to sue. Politically, local action to limit GHG emissions confronts the obstacle that it would incur in-state costs for minimal in-state benefits (raising the positive question why states are acting at all). Normatively, state-level action would make only a minor difference in global emissions, and may even yield perverse results by spurring emissions leakage to other jurisdictions. Given that such state-level action is actually occurring, its best uses include stimulating technological change, learning from experimentation with policy designs, and fostering momentum for broader national and international action. Yet varied policy experiments may conflict with a larger harmonized regime. The best approach to a global externality is a well-designed global regime that engages all major GHG emitters.