5:29 PM :: Stephen (contact)

One Problem with Sunset Clauses: Which you wouldn't necessarily expect:

And whereas, at the time of the invasion of this State by the British troops in the year one thousand seven hundred and seventy-eight, the public records were sent away, to prevent their falling into the hands of the enemy, and have not yet been returned into this State, from which cause the several laws heretofore passed, and which may be now expiring, cannot with precision be known, and, if no remedy be applied, there is reason to believe great injury may accrue to the citizens of this State, for the prevention whereof, Be it further enacted by the authority aforesaid, That all laws passed before the twenty-ninth day of December one thousand seven hundred and seventy-eight, which are or may be near expiring, and that are not repugnant to the constitution of this State, or in their nature temporary, be, and they are hereby declared to be in full force, and that they shall continue in force, until repealed by this or some future legislature."

An Act to Continue the Several Laws of This State Near Expiring, and for Other Purposes Therein Mentioned § 2 (Ga. 1783), reprinted in Robert Watkins & George Watkins, A Digest of the Laws of the State of Georgia, No. 279, at 281, 282 (Phila., R. Aitken 1800).

 

9:52 PM :: Stephen (contact)

Thoughts while studying for exams: What does the Due Process Clause actually mean? Let's see what the courts have to say.

Indeed, if the Due Process Clause is to mean anything, . . .

• " . . . it requires us to do more than [assume that the BIA relied on the IJ's untimeliness finding and dismiss for lack of jurisdiction]." Lanza v. Ashcroft, 389 F.3d 917, 929 (9th Cir. 2004).
  
  
• " . . . it means that the courts must defend the 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' Hamdi v. Rumsfeld, 316 F.3d 450, 464 (4th Cir. 2003) (quoting Powell v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (internal quotation marks omitted)), vacated, 542 U.S. 507 (2004).
  
  
• " . . . I think we must assume that Maloney's corruption pervaded his work as a judge." Bracy v. Gramley, 81 F.3d 684, 700 (7th Cir. 1996).
  
  
• " . . . it should mean that a person who holds the latest controlling court opinion declaring his activities constitutionally protected should be able to depend on that ruling to protect like activities from criminal conviction until that opinion is reversed, or at least until the Supreme Court has granted certiorari." United States v. Albertini, 830 F.2d 985, 989 (9th Cir. 1987).
  
  
• " . . . it means that a hearing must be something more than a 'formal ritual.'" Graham v. Baughman, 772 F.2d 441, 446 (8th Cir. 1985).
  
  
• " . . . it means a trial before an unbiased judge and jury." Walker v. Lockhart, 726 F.2d 1238, 1249 (8th Cir. 1984) (Arnold, J., concurring).
  
  
• " . . . it is a fundamental guarantee that stakeholders are provided both sufficient notice and fair procedures when governmental discretion mandates the abrogation of their rights or privileges." Lightfoot v. District of Columbia, 339 F. Supp. 2d 78, 88 (D.D.C. 2004).
  
  
• " . . . [it] signifies a right to be heard in one's defense." Foley v. Foley, 52 P. 122, 124 (Cal. 1898).
  
  
• " . . . it provides constitutional protection of the right to participate meaningfully in critical proceedings." Franklin v. District of Columbia, 960 F. Supp. 394, 432 (D.D.C. 1997).
  
  
• " . . . [the California Youth Authority] cannot deliberately structure procedures which prevent counsel retained at a ward's expense from reviewing the ward's file and consulting with the ward before such a hearing." In re Michael I., 74 Cal. Rptr. 2d 650, 654 (Ct. App. 1998).
  
  
• " . . . it must mean substantially more than was afforded appellant here." People v. Jacia, 144 Cal. Rptr. 23, 25 (App. Ct. 1978).
  
  
• " . . . it means that a woman cannot be imprisoned for two and one-quarter years under a law that was declared invalid ab initio by this Court." State v. Lemon, 825 So. 2d 927, 933 (Fla. 2002).
  
  
• " . . . it means Walker should not be required to run that gauntlet [of risking a 30-day jail sentence for each day of non-conformance with the board's order while the question whether he is maintaining a nuisance is litigated in a criminal action]." Walker v. Johnson County, 209 N.W.2d 137, 140 (Iowa 1973).
  
  
• " . . . it should mean equality in the determination of the rights of those affected." Crowe v. De Gioia, 430 A.2d 251, 255 (N.J. Super. Ct. 1981) (quoting Hague v. Warren, 59 A.2d 440 (N.J. Errors & App. 1948), rev'd, 447 A.3d 173 (N.J. 1982).
  
  
• " . . . it means that a litigant must be given an opportunity to meet an issue before an adverse determination is made." Lowndes Products, Inc. v. Brower, 191 S.E.2d 761, 338 (S.C 1972).
  
  
• " . . . it means that a defendant is entitled to some character of notice before his rights may be effected by suits, actions or proceedings in courts of the land, and that notice to the person or official who as plaintiff initiates the suit is, in all reason, no notice whatever." Baird-Gatzmer Corp. v. Henry Clay Coal Mining Co., 50 S.E.2d 673, 678 (W. Va. 1948).
  

 

5:28 PM :: Stephen (contact)

Of Rabbits and Hunger Strikes: Lior Strahilevitz, whose article on The Right to Destroy partly inspired my Saving Toby piece noted below, responds to the piece on the U. Chicago Faculty Blog. He writes:

Animal cruelty laws ought to govern threats like the one faced by Toby. And the appropriate response to a child who threatens to hold her breath until she turns blue is probably to call the bluff, though I will admit to a lack of expertise on that score. Where there is reason to think that calling the bluff will force the owner to destroy the property in question so as to maintain the credibility of future threats, the state can always exercise its eminent domain power to take property from the person who is threatening to destroy it. Indeed, I think that using the eminent domain power to save Toby is analogous in some ways to what the government was attempting to do in Kelo, and someone who believes that Kelo was wrongly decided should ask herself whether she would object to using eminent domain to take a Picasso away from someone who credibly pledges to burn it.

Sachs says that “extortionate” destruction of one’s own property does not typically implicate constitutionally protected expressive interests. But we should be familiar with one very effective form of “threatening to kill Toby.” Hunger strikes have been used with great effectiveness by political dissidents, so I guess I wonder about Sachs’s determination that prohibiting the “hunger strike” variety of blackmail will not implicate the expressive and autonomy interests that often arise when people decide to destroy their own valuable property. The fact that a hunger striker will eat if his demands are satisfied hardly removes the expressive content from his act.

I'd be the first to admit that the Comment was written with tongue at least partly in cheek--and that the proposed statutory language would need a good deal more refinement. However, I'm not sure that Strahilevitz's critique is sound.

Starting with the question of hunger strikes, I think it's not difficult to distinguish the expressive value they embody from the threat to Toby's life. Expressive hunger strikes generally don't involve destruction of property, as we typically understand the term, nor are they often done for money. (If the average person received a note from a desperate acquaintance that read, "Pay me $50,000 immediately or I'll kill myself--and the blood will be on your hands!," she might have a very different attitude toward the expressive value of such an act.)

Regardless, hunger strikes and other forms of self-immolation would be outside the textual reach of my proposal. Most people are willing to accord a certain measure of control over one's own body, and without trying to advance a "general theory of acceptable coercion," as I wrote in the Comment, it's worthwhile to ask whether the extortionate destruction of property falls within that range.

Additionally, I'm not sure why Strahilevitz considers eminent domain to be a more appropriate approach to Toby's plight. Let's change the example away from rabbits--though I doubt that animal cruelty laws would ever prevent slaughter by a licensed butcher. Suppose the evil Dr. Black threatens to toss a priceless Picasso in the flames, unless his millionaire neighbor pays its ransom. Would eminent domain be the right response? For one thing, the state might never find out about the threat until it's too late--perhaps by Dr. Black's own efforts. ("I'll burn the painting, unless you (a) pay me $5 million and (b) keep this whole thing secret.") For another, even if the state found out, its preferences for risk (or for paintings) might be different from those of the neighbor; perhaps the state would choose to save its money and call Dr. Black's bluff, and the neighbor isn't willing to take that chance. And in any case, if one accepts that threats like these aren't legitimate commercial offers, and deseve some kind of state intervention, why should we prefer the cumbersome and unpredictable processes of eminent domain over a more general deterrent? Why not, at the very least, let the victim seek an injunction against the threatened harm?

 

9:50 AM :: Stephen (contact)

And Another: I've also published a brief, light-hearted piece in the Yale Law & Policy Review, on the legal questions posed by the bunny-threatening website SaveToby.com. The Comment, Saving Toby: Extortion, Blackmail, and the Right to Destroy, 24 Yale L. & Pol'y Rev. 251 (2006), is available on Westlaw as well as on SSRN. The abstract is as follows:

On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten - unless the website's readers sent $50,000 to save his life.

Though Toby's owner has since granted him a temporary reprieve - until Nov. 6, 2006 - the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one's own property. The law thus provides insufficient protection to a variety of resources on which others place value, including historic buildings, treasured paintings, and adorable bunny rabbits.

This Comment proposes that legislatures protect Toby under a new criminal offense of extortionate destruction. It presents the moral case for the offense by analogy to blackmail. Although destruction of property, like telling others' secrets, is normally lawful, both can be rendered wrongful by the unjustified use of a coercive threat. Such a threat specifically aims at causing unpleasantness to the offeree; the owner commits to killing Toby only because he hopes someone else will pay him not to. Such threats cannot be defended by the economic or expressive values inherent in the traditional right to destroy, and shed light on the ongoing debate over the nature and wrongness of blackmail. The Comment concludes by suggesting model statutory language designed to safeguard property owners' legitimate interests, while appropriately protecting future artworks, antiquities, and bunny rabbits from Toby's sad fate.

 

9:20 AM :: Stephen (contact)

Another Form of Writing: Well, although I haven't posted for nine months, I've been keeping myself busy with other writing. My long-revised article, From St. Ives to Cyberspace: The Modern Distortion of the Medieval Law Merchant, is now forthcoming in the American University International Law Review. (A draft has also been posted at SSRN.)

For those interested, here's an abstract:

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or law merchant. This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a law of their own creation. The standard history has been accepted by legal scholars across the ideological spectrum, by economists and political scientists, and by those drafting new regimes to govern Internet commerce.

This Article argues that the traditional view is deeply flawed. Returning to the original sources - especially the court rolls of the fair of St. Ives, the most extensive surviving records of the period - it demonstrates that merchants in medieval England were substantially subject to local control. Commercial customs and substantive laws varied significantly across towns and fairs, and did not constitute a coherent legal order. The traditional interpretation has been retained, not for its accuracy, but for ideological reasons and for its long and self-reinforcing pedigree. This Article takes no position on the merits of shielding multinational actors from domestic law; it merely denies that the Middle Ages provide a model for such policies.

As Legal Theory Blog says, download it while it's hot!

 

6:20 PM :: Stephen (contact)

Quote of the Day: From the otherwise entirely unfunny case of Pope v. State, 396 A.2d 1054, 1079 (Md. 1979):

Pope moved that we strike from the State's brief and appendix a selection from the Year Book of 1484 written in Medieval Latin and references thereto. The State provided no translation and conceded a total lack of knowledge of what it meant. The motion is granted.

(I wonder, though -- were they quoting the Latin record of the case, or the Year Book entry in law French?)

 

4:39 PM :: Stephen (contact)

West Headnote of the Day: 165k30. Extortion and Threats--Threats--Indictment or Information--Requisites and Sufficiency:

Indictment sufficiently charged offense of transmitting threatening communications in interstate commerce when it alleged that defendant knowingly and willfully transmitted in interstate commerce between New Hampshire and Florida communication containing threat to injure collection agency employees by indicating agency's building would "go boom" . . . .

U.S. v. Whiffen, 121 F.3d 18 (1st Cir. 1997).

 

8:33 PM :: Stephen (contact)

Too Good to be True: From the Associated Press:

Police in Ariz. Seek Monkey for SWAT Team

Mon Apr 18, 10:12 PM ET

MESA, Ariz. - The Mesa Police Department is looking to add some primal instinct to its SWAT team. And to do that, it's looking to a monkey.

"Everybody laughs about it until they really start thinking about it," said Mesa Officer Sean Truelove, who builds and operates tactical robots for the suburban Phoenix SWAT team. "It would change the way we do business."

...

The monkey, which costs $15,000, is what Truelove envisions as the ultimate SWAT reconnaissance tool.

Since 1979, capuchin monkeys have been trained to be companions for people who are quadriplegics by performing daily tasks, such as serving food, opening and closing doors, turning lights on and off, retrieving objects and brushing hair.

Truelove hopes the same training could prepare a monkey for special-ops intelligence.

Weighing only 3 to 8 pounds with tiny humanlike hands and puzzle-solving skills, Truelove said it could unlock doors, search buildings and find suicide victims on command. Dressed in a Kevlar vest, video camera and two-way radio, the small monkey would be able to get into places no officer or robot could go.

Ah, but what about a robot monkey...

 

1:28 PM :: Stephen (contact)

Gaming the System: Orin Kerr is scandalized by a report that top law schools are "gaming" the U.S. News ranking system, rejecting highly-qualified applicants in the hopes of improving their yield numbers. Yield is measured by the proportion of admitted students who matriculate. So when a law school admits a student who's over-qualified, and thus likely to turn it down for something better, the yield numbers (and the all-important U.S. News rankings) will suffer.

There doesn't seem to be much evidence of this yet on the law school front, but it's a well-documented phenomenon in undergraduate admissions. According to a fascinating NBER working paper my brother forwarded me, released by four scholars last October (including Caroline Hoxby, whose work I've always found worth reading), schools routinely engage in such manipulation to improve their rankings:

Another method by which a college can manipulate its matriculation rate is deliberately not admitting students who are likely to be admitted by close competitors or colleges that are often more highly preferred. A college administrator may say to himself, "My college will ultimately fail to attract good applicants unless I raise its matriculation rate. I can achieve this with a strategic policy that denies admission to students who seem likely to be accepted by colleges more desirable than mine. By systemically denying them admission, my college will of course lose of its some most desirable students (because some percentage of the highly desirable students would have matriculated). However, it is worthwhile to sacrifice the actual desirability of my college class in order to appear more desirable on a flawed indicator." . . .
. . .
In other words, the college will avoid admitting students in the range in which it is likely to lose in a matriculation tournament.

The authors back up their assertions with data on admissions rates for top students at Harvard, MIT, and Princeton, as indexed by combined SAT I percentile scores:



At Harvard and MIT, one's chances of admission generally increase with SAT score (although the Harvard probabilities are flat between the 93rd and 98th percentile). At Princeton, on the other hand, a candidate in the 98th percentile has a substantially worse chance of acceptance as compared to a candidate in the 93rd percentile. This is unlikely to be the result of legitimate admissions preferences -- as if the 98'ers were all timid bookworms, while the 93'ers were happy well-rounded types. This is especially clear since the chances of the students at the very top are the most favored of all. As the authors explain, "if the student's merit is high enough, a strategic college will probably admit the student even if the competition will be stiff. This is because the prospective gains from enrolling a 'star' will more than make up for the prospective losses from a higher admissions rate and lower matriculation rate. (Recall that the crude admissions rate and matriculation rate do not record who is admitted or matriculates.)"

In other words, it's quite clear that Princeton, and presumably many other schools, are departing from their standard admissions criteria in order to reject well-qualified candidates and to increase the yield. (Rejecting good students also improves--i.e., lowers--a school's overall admissions rate, by making the school appear harder to get into.)

How can this 'gaming the system' be prevented? So long as U.S. News pays attention to yield, and so long as schools pay attention to U.S. News, it's hard to imagine a solution. But the paper's authors propose an intriguing "revealed preference" method to measure student demand:

Our statistical model extends models used for ranking players in tournaments, such as chess or tennis. When a student decides to matriculate at one college, among those that have admitted him, he effectively decides which college "won" in head-to-head competition. The model efficiently combines the information contained in thousands of these wins and losses.

In other words, if we want an index of how eager students are to attend a given school -- the information yield is supposed to provide -- we should look to students' actual choices. Each school could be ranked by their success in head-to-head matchups against the rest. Manipulating these numbers is substantially harder than manipulating yield, since rather than rejecting students who are overqualified, schools would be forced to convince those overqualified students to attend.

Of course, the new measure isn't perfect, and would require certain separate sub-rankings when student preferences aren't nationally shared. (Students in California may prefer an in-state school to a slightly better university on the East Coast; "niche" schools with an engineering focus, or a religious affiliation, may attract students with stronger preferences.) But even if its answers aren't foolproof, the authors' model would at least be asking the right question: not which school can reject the most students, but which school those students prefer. And their new measurement would be a vast improvement over the less accurate rankings -- and costly admissions manipulation -- the system produces today.

 

11:30 AM :: Stephen (contact)

Fame and Fortune: SteveSachs -- your third Google hit for the search plain error...

I'm honored, really.

 

5:36 PM :: Stephen (contact)

The Commonwealth of Bees: A librarian in the YLS Rare Books Room recommended to me Early English Books Online, a really impressive service that provides full text-searchable reproductions of English books. I tried a search for "law merchant," and in addition to some of the standard sources, I found this book:

5. Hartlib, Samuel, d. 1662.
The reformed Common-wealth of bees. Presented in severall letters and observations to Sammuel Hartlib Esq. With The reformed Virginian silk-worm. Containing many excellent and choice secrets, experiments, and discoveries for attaining of national and private profits and riches., London, : Printed for Giles Calvert at the Black-Spread-Eagle at the West-end of Pauls, 1655.

Among other invaluable advice, the treatise offers the following:

Necessarie observations concerning the Premisses.

From the middle of Aprill, until the middest of May , look diligently to thy Bees; for then are they near beginning to hatch, and do stand in need of most help, especially if the Spring be cold, and the wind holding any part of the North or East; whereby the tender buds or blossomes do perish, and the Bees are driven to the blossomes of Apple-trees, which is their utter overthrow and decay.

 

5:01 PM :: Stephen (contact)

The Royal Fifhes: When I lived in England, I was informed that all swans in Britain were the property of the Queen. No one could own a swan, or eat one without her permission. (Except, of course, for one flock that had been granted by the Crown to Christ Church College, Oxford.) In older times, the same was true of sturgeons, dolphins, and other great sea-creatures, which were reserved for the king's table. Any sturgeons caught accidentally had to be sent to the king--or, if they would not keep, their value could be sent to the royal treasury.

More recently, in the course of research, I was amused to find the following excerpt from William Welwod's 1613 first edition of An Abridgement of all the Sea-Lawes:

Item, fhares, lawfull prizes or goods of the enemy. ficlike Lagon, that which was found lyand at the fea ground, and Flotfon that is found fwimming upon fea, and Ietfon, which is caft foorth of the fea to the fhoare and coaft, with anchorage, beaconages, meare fwine, Sturgeons & Whales, &c. and all fifh of extraordinarie greatnes, called regal fifhes, which all are allowed in great Britaine, France, and other noble kingdomes, to the Admiralls, by their Soueraigne; for the better maintenance of their eftate, iurifdiction, and conferuacie on feas, riuers, floods, roads, ports, harbours, channels, fayling, fifhing, and all trading there, as altogether and chiefly committed to the care, maintenance, and protection of the Great Admirall.

Yarr.