The University of Chicago Law School Faculty Blog

Student Blogger - What Are You Hiding in that Statute?: Canvassing Federal Privacy Law

We live in an age of information, and it’s old hat by now to bemoan our inability to control the ebb and flow of the information formerly known as “private.”  Sensing the dissatisfaction of the voting public and perhaps an interest group or two, lawmakers at various levels of government have passed laws that regulate the use and acquisition of the unimaginably massive amount of data that our daily comings and goings generate.  Professor Erin Murphy (NYU) presented a paper to the Public Law and Legal Theory workshop that aims to answer several related questions: What does the federal statutory approach to regulating information with regard to law enforcement look like?  How does this compare to the Fourth Amendment’s ban on unreasonable search and seizure?  Do the courts or Congress regulate private information more effectively?  

Most of the federal statutes regulating private information are fairly new and have been passed since the 1970s.  There are a huge number of narrow and specific statutes relating to privacy.  In no particular order: the Stored Communications Act, the Bank Secrecy Act, the Genetic Information Nondiscrimination Act, the Real ID Act, and Video Privacy Protection Act.  These are a few of the twenty or so federal statutes that regulate in some manner the use and acquisition of private information.  Professor Murphy explained that no single coherent story seems to explain the passage of these statutes, although many of them were enacted after a triggering event.  For example, during Robert Bork’s Senate confirmation hearings his video rental history was released to the press.  Bork’s rental list was unremarkable, but shortly thereafter the Video Privacy Protection Act was passed, which imposed civil penalties on video rental providers that released such information.  Despite the knee jerk approach to federal privacy law, each of these statutes has a law enforcement exception that permits government officials to access information as part of a criminal investigation.  For example the Right to Financial Privacy Act prohibits banks from disclosing customer information to United States officials unless they are conducting “a lawful investigation or official proceeding inquiring into a violation of, or failure to comply with, any criminal or civil statute or any regulation.”  12 USC § 3401(8). 

Federal statutes regulating private information have many commonalities despite the seemingly random collection of statutes.  In general, these statutes tend to regulate both the acquisition and use of private information.   To return to the Right to Financial Privacy Act, the statute prevents government officials from transferring any financial records obtained in accordance with its law enforcement exemption and narrowly circumscribes permissible uses of information that is legitimately acquired.  Relatedly, the Cable Communications Policy Act requires destruction of information “no longer necessary for the purpose for which it was collected.”  47 USC § 551(e).  The Fourth Amendment by contrast generally permits free use of information that has been lawfully obtained by government investigators.

Striking the right balance between access and restraint in order to provide the appropriate level of protection to private information is a difficult and controversial task.  Will the Supreme Court or Congress do a better job?  Professor Murphy argues that given the complex and contested nature of the issue there should be cooperation amongst the branches.  Each branch has certain comparative advantages and in tandem the Court and Congress will do a better job than if only one or the other took the reins.  Legislators can adopt proactive structural remedies that courts cannot.  Legislators are also better able to gather systemic information about the collection and dissemination of information in a particular industry.  Courts, however, have historically been more attentive to abuses by law enforcement and have more vigorously used the exclusionary rule to deter government officials from conducting unconstitutional searches and seizures.  There are fewer interest groups advocating for the privacy concerns of those who will typically be the subject of the various statutory exemptions for criminal investigations.  While groups like the Electronic Frontier Foundation do show up to address the privacy concerns held generally, groups such as the National Association of Criminal Defense Lawyers that represent the interests specifically of criminal defendants have been absent when the various federal statutory privacy laws were considered.  All of this goes to show that the best solution is for the two branches to work together, and this appears to already have occurred in some areas of privacy law.  For example, the Drivers Privacy Protection Act governs the collection and disclosure of personal information gathered by state DMVs.  A portion of the statute authorizes a daily $5,000 fine to noncompliant offices, but only if a public official brings a lawsuit. 

The commenters pointed out that you can’t tell which branch is better at protecting privacy without some kind of theory about what the optimal level of privacy protection is.  Professor Murphy responded that this paper is intended to push past the question of what the right level of privacy protection is and instead focus on the relative differences between the branches in protecting the privacy rights of individuals against intrusion by government officials.  Other commenters pointed out that it is difficult or impossible to evaluate Congress’s track record on privacy without considering the panoply of state laws addressing privacy.  In some areas, for example trade secret protection, states have acted in a uniform and sufficient manner such that further legislation is currently unnecessary.  Professor Murphy responded that there is such a vast and disparate body of state privacy law that it wasn’t possible to consider in any systematic way the impact of state privacy laws and that considerable debate exists over whether the states have led the way, rather than followed the federal lead, in protecting privacy. 

All the talk about courts and Congress left me wondering what role our poor executive branch might be playing in this story.  The baseline assumption in the discussion seems to be that executive officials are always going to push to the limits of what is allowed by the two other branches.  This might very well be the case, but the story might not be so cut and dry.  If there is broad political support for the kinds of privacy legislation that Congress has passed in the last forty or so years, why is the President immune from that pressure?  There are various ways in which the President could restrain prosecutors, an Executive Order or revision to the United States Attorneys’ Manual being two such mechanisms.  Moreover, certain statutes, such as the provision in the DPPA that provides for a daily fine against non-complying DMVs following a suit by a public official, seem to require a fairly prominent role for executive officials.  

Student Blogger - Let's Work Together: Coordination Among Government Agencies

It’s no great secret that there are a lot of administrative agencies. A dauntingly large alphabet soup of government agencies regulates many industries, and these agencies often receive overlapping delegations of authority from Congress. As President Obama wryly pointed out in his 2011 State of the Union address, “The Interior Department is in charge of salmon while they’re in fresh water, but the Commerce Department handles them when they’re in saltwater. I hear it gets even more complicated when they’re smoked.” Most of what we hear about administrative agencies and government regulation of industry falls onto one side or another of a debate represented reasonably well by the following articles: “Regulation Lax as Gas Wells’ Tainted Water Hits Rivers” courtesy of the New York Times, and a piece by Alan Greenspan called “Activism” in which the former Fed Chairman blames our slow climb out of recession on too much government regulation. Or if you prefer a more adventurous headline, there is “Regulatory Overkill” courtesy of the Wall Street Journal.

Professor Jody Freeman (Harvard Law School) presented a paper she co-authored with Professor Jim Rossi (Florida State University College of Law) at the Public Law and Legal Theory workshop that builds on the observation of President Obama without getting mired in the stagnant debate of too much/not enough government regulation. Professor Freeman explained that traditionally administrative law has operated under the simplistic assumption that each agency acts separately from all the others in regulating in its own corner of the world. Would it were that it was so, Professors Freeman and Rossi say. Instead, what we have is a sea of agencies often with overlapping or concurrent delegations. To deal with this complexity, agencies need to coordinate. With more coordination it will be easier for agencies to write regulations and adjudicate disputes, and agencies will be able to avoid inconsistencies and redundancies in their regulations and decisions. Moreover, coordination can help mitigate the dreaded “tunnel vision” that regulators focused on a narrow slice of a larger problem are apt to develop.

Lawmakers and regulators have a menu of options to choose from when seeking more coordination between agencies. At one end of the spectrum there is the option of structural integration and the creation of mega-agencies like the Department of Homeland Security. Integration is difficult and costly, so instead lawmakers and regulators might require inter-agency consultation. Consultation can take many forms. For instance, regulators can voluntarily consult with other regulators, or they can draft contract-like memoranda assigning responsibility for various tasks and making other mutual commitments. Or Congress might require regulators from one agency to respond to the suggestions of regulators from another agency. Congress can also require that multiple agencies agree to adopt a single regulatory rule. The President too can take action to increase coordination by issuing Executive Orders regarding coordination between agencies, wielding threats of removal over regulators who won’t coordinate, and generally exert more centralized oversight over coordination through the White House.

Comments offered by the participants at the workshop centered around a related set of themes: How can you tell when coordination will work? How do we know when coordination is what Congress intended when it delegated lawmaking power to the agency? What is the appropriate level of centralized control? In some instances Congress actually intends to create multiple agencies and grant them overlapping delegations. Professor Freeman noted that much of the concurrent jurisdiction and regulatory overlap is, however, not the result of intentional choice by lawmakers, but rather due to the slow and ad hoc build-up of agencies and their responsibilities over time. This paper is intended to be the start of a new conversation regarding coordination between federal agencies. Other participants focused on the fact that the paper is heavily concerned with the inside baseball of regulation rather than the potential political impact of more versus less coordination. Having an efficient bureaucracy is not the end-goal of our regulatory apparatus. Rather, we want our regulators to implement statutory schemes fairly and accurately while taking account of changed circumstances. Professor Freeman noted that she and Professor Rossi strongly support agency coordination, because in some cases regulatory complexity is preventing the public from getting the benefit of programs that Congress has created.

Professors Freeman and Rossi made a deliberate choice to chart the available territory in great detail without becoming bogged down in some of the most difficult issues to resolve. The paper walks through a complicated landscape of MOUs, consultation provisions, joint rulemakings, joint action requirements, and interlocking and incorporated rules. Despite this detail, the paper does not attempt to develop general principles that tell us when regulatory complexity is preventing the public from getting the benefit intended by Congress or what coordination tools should be deployed in response. A paper can do only so much. Nonetheless, Professor Freeman explained that there are many instances of regulatory complexity where everyone can agree that there is a failure of coordination. (This of course raises the question of why the regulators haven’t voluntarily adopted one or more of the coordination mechanisms that the paper highlights.)

Technical though administrative law may be, the profits and public welfare at stake generate corresponding interest groups that are constantly in search of opportunities. When agencies coordinate there will be winners and there will be losers. It remains to be seen what kind of impact a greater emphasis on coordination will have.

Student Blogger - Crime, Inequality, and Federalism

For several decades there was a strong and vibrant civil rights movement in the United States. On many fronts this political and social movement was extremely successful. In the 1940s and 50s the Supreme Court reversed decades-old precedents upholding racial segregation. In the 1960s Congress passed powerful civil rights legislation. From the 1940s through the 1960s various Presidents moved decisively in support of equality. Truman desegregated the armed forces, Eisenhower sent the 101st Airborne to Little Rock, and LBJ pushed civil rights and voting rights legislation through Congress, to name but a few examples. But by the end of the 1970s the civil rights agenda had largely run its course in national politics. What happened to this political movement and why are its concerns largely absent in national politics today? Evidence of racial inequality is ubiquitous, especially with regard to crime and punishment, so why is there a lack of national political movement on these issues today? These questions provided the impetus for Professor Lisa L. Miller’s recent research regarding congressional attention to crime, justice, and inequality. Professor Miller argues that the decision to adopt a federalist system (a centralized national government with limited but preemptive powers combined with state governments possessing general legislative power) has stymied progress on issues of social justice and inequality. Specifically, Professor Miller argues that the existence of multiple legislative venues Balkanizes groups that would be allies on a national stage.

Professor Miller examined congressional hearings on crime between 1971 and 2000 in order to determine what crime-related topics lawmakers were addressing and what kinds of witnesses they were hearing from. Hearings were divided into the following categories: police/guns/prisons, drugs, juveniles, riots, white collar, and crimes against women and children. Unsurprisingly, Congress spent a great deal of attention focusing on police and prisons during the tumultuous 1970s, and in the 1980s congressional attention switched to drugs. In this regard, Congressional attention to criminal issues roughly tracked the news cycle. In the 1970s civil protests and prison riots drew widespread attention and in the 1980s the threat posed by illegal drugs came to the fore. Professor Miller argues that Congress’s relatively short attention span on these issues prevents meaningful action to address inequality and inequities relating to crime and punishment in the United States. These inequalities aren’t hard to miss—at every point in the criminal justice system Blacks and Latinos are substantially over-represented relative to their proportion of the population.

Turning to the question of who lawmakers are hearing from, Professor Miller divided witnesses at congressional hearings into the following categories: government representatives, professional groups, citizen groups, and other/unknown groups. The vast majority of witnesses at congressional hearings are representatives from criminal justice agencies and other government witnesses. Notably absent are those who have experienced drug crime or drug addiction first hand. By comparison, Professor Miller looked at city council meetings in Philadelphia and Pittsburgh from 1997 to 2006. Citizen groups representing broad concerns, virtually absent in congressional hearings, appeared frequently at the local level. These citizen groups were able to connect crime and punishment to the challenge of improving neighborhood conditions and quality of life.

What are we to make of this contrast between local and national politics on criminal justice issues? In rough terms, the police show up in Congress and community groups show up at city hall. This would be fine except for the fact that local governments are basically powerless to fix the problems Professor Miller highlights. In other words, Congress has the money and clout needed to address systemic inequality but city governments do not. Professor Miller says that groups across the country that would be natural allies for a fight in Congress instead are spending their energy in local government, when really Congress is the political body that can best address the systemic problems about which they are concerned.

Professor Abebe pointed to an interesting and unaddressed question by asking how we should measure improvement on the issues that Professor Miller is raising. Professor Miller is concerned about inequality—the unequal distribution of money, punishment, education, opportunity, and most importantly political representation. The distribution of many of these things is certainly lopsided. But we need to know what “equality” is before we can determine the significance of the lack of community groups in congressional hearings. Miller thinks there should be more input from citizen groups who can connect criminal policy to broader social concerns, but how much more is not clear. Professor Miller’s starting point is noting how the criminal justice system is hugely unequal in terms of outcomes. But simply noting this inequality doesn’t tell us how often Congress should be hearing from citizen groups who can describe first hand the impact of federal criminal policy. And, perhaps more significantly, without a definition of equality we can’t tell when Congress is making progress towards addressing the unequal distribution of criminal punishment.

By comparing the political process at various levels of government on one issue, criminal justice, Professor Miller’s paper is the start of an interesting conversation regarding how various political institutions can amplify certain voices while muting others. It seems at first blush that institutional arrangements are only one part of the story. In the 1940s, 50s, and 60s American government functioned in roughly the same way that it functions today. Yet groups advocating for civil rights, social justice, and related issues were successful in pushing their agenda at the national level during those decades. Turning back to the question that motivated Professor Miller’s research, it seems to me that American federalism by itself can’t by itself have caused the decline of the civil rights agenda on the national political stage. Political institutions shape policy outcomes, but the civil rights movement happened in a federalist system.

Despite the surface appeal of this narrative, Professor Miller argues that national majorities can only overcome the limitations of federalism only when there are massive social upheavals (Vietnam, civil disobedience, etc) to sustain social movements advocating in favor of change. In other words, Professor Miller argues that the civil rights movement was successful in spite of the limitations of American federalism. This of course begs a more challenging and troubling question: why stark inequalities in the distribution of crime and punishment along racial lines fail to attract the kind of attention that has motivated Congress to act in the past.

Student Blogger - Winter WIP: Douglas Baird Appraises Ponzi's Legacy

Even though it’s the off-season, the New York Mets have been in the news quite a bit recently—and not, to the dismay of their fans, because of any free agent signings. Instead, the team’s owners—the Wilpon family—were named in a lawsuit filed on behalf of the victims of the Bernie Madoff Ponzi scheme. Though the Wilpons are not thought to have personally aided Madoff’s fraud, they are alleged to have ignored the red flags surrounding Madoff’s operation. The legal theories that form the basis for this suit—that, essentially, the Wilpons should have known better—are the subject of “Ponzi’s Legacy,” a paper delivered by Professor Douglas Baird at a recent WIP talk.

As Professor Baird points out, Ponzi schemes present a number of puzzles, and not only for the legal profession. To begin with, they don’t make a lot of economic sense. The premise of a Ponzi scheme is that old investors are paid off with the proceeds from new investors. This means that obligations increase geometrically over time, and the swindler has to spend ever more time finding new investors. No self-respecting con artist would adopt a scheme that requires that much work, especially since so much of the money coming in has to go right back out again to perpetuate the fraud.

It is this latter feature that, as Professor Baird puts its, “makes Ponzi schemes so interesting to bankruptcy professionals.” At the time a Ponzi scheme collapses—as they almost all inevitably do—the fraudster is typically in bankruptcy. Victims may seek to recover money from anyone who participated in or aided and abetted the fraud, but they are likely to be unsatisfied. That’s because the parties with the deepest pockets—financial institutions such as investment banks—rarely have actual knowledge of the fraud, an essential element of aiding and abetting liability. As Professor Baird notes, Wall Street firms “may be greedy, but they usually are not that stupid.”

Instead, the victims’ best bet is for the bankruptcy trustee to recover any assets that were transferred out of the scheme before it collapsed. That is, new investors will seek restitution from the old investors. To do so, the trustee will rely on two bankruptcy doctrines that can be traced back to the 16th century and Lord Coke—preference and fraudulent conveyance.

A preference is any payment outside the ordinary course of business made to a creditor in a 90-day window before a debtor enters bankruptcy. It could be argued that no payment made in furtherance of a Ponzi scheme is in the ordinary course of business since, after all, there was no business. But creditors subject to a preference claim have an available defense—that the fraudster was holding the investor’s money in a constructive trust, a legal theory by which someone can enjoy the possession of property, but not ownership of it. As Professor Baird illustrates, if a fraudster swindles you out of a $100 bill, and that same bill is in the fraudster’s pocket when the scheme collapses, other creditors cannot reach that bill because you still retain ownership of it. Among the difficulties with constructive trusts is accurately tracing the origin of commingled monies. If an investor can do so, her money is outside the reach of other victims; if not, then her preference is voided and she becomes “simply one creditor among many who was paid on the eve of bankruptcy.”

The “main event” of legal recourse for victims of Ponzi schemes, as Professor Baird puts it, is a fraudulent conveyance attack. For one thing, fraudulent conveyance applies even to money transferred outside of the 90-day preference window. Typically, fraudulent transfers are separated into two types: “constructive,” where the transfer was made for less than reasonably equivalent value while the debtor was insolvent; and “actual,” where there is an “intent to delay, hinder, or defraud.” As Professor Baird argues, this is something of a false distinction. To begin with, while the “actual intent” language is in the bankruptcy code, judges frequently overlook actual intent and instead require only that there are sufficient badges of fraud—that is, actual fraud can occur without “an outright lie or willful deception.” Typically, it is enough to qualify as actual fraud if there is a particular closeness between transferor and transferee, or if the debtor retains control after the conveyance, or if the transfer is concealed.

This is particularly relevant for Ponzi schemes, where nearly every payment is made in order to keep investors in the dark and perpetuate the fraud. As Professor Baird concludes, “[a]s long as Ponzi is making these transfers solely to sustain the illusion that profits exist when they do not, the transfers are voidable.” Often, as was the case with both Ponzi and Madoff, there is no underlying business, so any transaction—including paying rent or buying postage—is a fraudulent conveyance. This could spell trouble for Mets fans. As the Wilpons are reasonably sophisticated investors—and long-time family friends with the Madoffs—the bankruptcy trustee will argue that the money they withdrew from the scheme (reputedly more than $50 million) was a fraudulent transfer.

To defeat fraudulent transfer, a transferee has to show both that “she gave value and that she acted in good faith.” Good faith was once judged by the “pure heart and empty head test”—or, as Professor Baird reformulates it, “[y]ou could be as stupid as you wanted,” so long as you subjectively did not know a fraud was going on. Modern courts tend to focus more on objective indices of good faith, such as whether an investor ought to have realized that a deal was too good to be true. This is a troubling test, however, since, as Professor Baird notes, even perfectly legitimate investment schemes are growing increasingly incomprehensible to even sophisticated investors. Furthermore, even honest investment managers are often reluctant to divulge their strategy for fear that rivals will mimic it, which makes distinguishing them from those who can’t divulge their strategy because they don’t have one near impossible. Last, Ponzi schemes, for a time at least, appear to work—early investors are paid off. Many legitimate funds beat the market year to year (and, in fact, Madoff’s mythical 10% was not the highest rate of return during the period of his fraud, though it was suspiciously stable). Given this context, is it reasonable to expect an average investor to ferret out a scam?

When an early investor gives a fraudster $100 and receives a payment of $150, it is often said that she did not provide “reasonably equivalent value” for the $50 since the debtor was insolvent throughout the entire scheme. But, as Professor Baird notes, this is at tension with our normal understanding of the time-value of money—a loan today for $100 in exchange for a promise of a future $150 is acceptable. So why should it matter if the borrower is a swindler? Perhaps the terms of the transaction are so unbelievable as to raise suspicion—but Professor Baird points out that this is a question of good faith, not reasonably equivalent value. Similarly, when the transfer is for an equity stake in an enterprise, the transferee gets to keep the value of the initial investment, and very often gets to keep whatever interest has accrued. These principles suggest that fraudulent conveyance would only provide limited relief to fraud victims from the early investors.

Thanks to technological advances, con artists today can more easily find new marks and can concoct increasingly inscrutable scams. Complicated schemes can now reach into the tens of billions of dollars, with devastating repercussions for hundreds upon hundreds of investors. The aftereffects of a Ponzi scheme can impact retirement funds, charitable institutions, and National League pennant races. Unfortunately, the questions Professor Baird grapples with in “Ponzi’s Legacy” are only likely to take on ever-greater importance. Thankfully, the clarity and concision with which Professor Baird tackles these age-old doctrines should give us some measure of confidence in addressing this looming risk.

Student Blogger - Thomas Jefferson: notes on the revolutionary as a practicing lawyer.

Thomas Jefferson is one of the most widely written-about American revolutionaries, and the fact that Jefferson spent his early years working as a lawyer has not escaped the attention of American historians. Other historians covering the subject have viewed Jefferson’s years as a practicing lawyer with not-so-subtle derision. The typical explanation of Jefferson’s years as a lawyer is usually bookended with an apologia along the lines of: “The glamor of his political career and his prodigious versatility in many fields of intellectual endeavor overshadow his achievements in the prosaic realm of law.” Edward Dumbauld, Thomas Jefferson and the Law (Norman, 1977). In comparison to Jefferson’s later achievements, Jefferson’s years as a trusts-and-estates lawyer for the Virginia elite seem of little interest.

But with new sources comes new understanding. The important new sources that Professor Konig has uncovered are Jefferson’s legal commonplace books. The commonplace book was a kind of highly formalized notebook for law students in the eighteenth century. Jefferson’s commonplace book had previously been published in an attenuated form, but Professor Konig has returned to the original source material with the keen eye of the legal historian. What Professor Konig found in Jefferson’s commonplace books clashes with our prior understanding of Jefferson as a humdrum country lawyer. In Jefferson’s extensive collection of case notes, Professor Konig sees the contours of a legal mind profoundly interested in questions regarding human rights and liberties. Professor Konig contrasts Jefferson’s commonplace book with that of future Chief Justice John Marshall. Although George Wythe trained both men, their respective commonplace books are a contrast in styles. Marhsall’s book was straightforward and focused on the essential matters he would need to master in order to work as a practicing lawyer. Jefferson, by comparison, often delved into caselaw surrounding the development of English civil liberties—a subject of tenuous connection to his future legal practice—and frequently injected his own thoughts and ideas into his notes.

Jefferson’s notes display an intellectual curiosity that belies the understanding of Jefferson as the simple country lawyer. Jefferson was particularly taken with the jurisprudence of Lord Chief Justice John Holt and Sir Edward Coke. Jefferson went to unusual lengths to track down and take notes on Holt’s opinions. Jefferson went so far as to even collect dissenting opinions written by Holt and Coke. That Jefferson obtained dissenting opinions is significant—Jefferson wasn’t just interested in learning the law, he was engaging in an intellectual discourse with the famed jurists. Professor Konig argues that this shows the operation of a mind striving to understand fundamental notions regarding the proper relationship between individuals and government.

The object of Jefferson’s attention is revealing of Jefferson’s views in more specific detail. Professor Konig explains that Jefferson was thoroughly Eighteenth Century in his “whiggish” views regarding opposition to a strong monarch and support for individual liberties. This can be seen in Jefferson’s fascination with Holt, who aimed to make the judiciary in England a bulwark against the concentration of power in the hands of either the Crown or Parliament. Jefferson’s interest in Holt shows that Jefferson the lawyer may have supported the establishment of a strong judiciary. All of this stands in distinction to the views of Jefferson the President, who went so far as to write in 1804 that “the opinion which gives to the judges the right to decide what laws and constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres would make the judiciary a despotic branch.” Letter to Mrs. Adams (Sept 11,1804).

Compared to the view of Jefferson as the simple country lawyer, the Jefferson that emerges in Konig’s paper is a complex rights theorist interested in the kinds of ideas that propelled the nation through revolution and constitution writing. The image of Jefferson that emerges from Professor Konig’s research is the man of letters, deeply engaged with and interested in the history and development of civil liberties in England. A man willing to go to great lengths in order to track down sources to shed meaning on the proper relationship between the individual and government. Given Jefferson’s later political and intellectual achievements, it isn’t terribly surprising that Jefferson the law student was highly motivated and intellectually engaged. While the work Professor Konig presented is only a small portion of a larger project that is stil in progress, Konig’s Jefferson stands in contrast to the Jefferson depicted by historians such as Leonard Levy and Bernard Bailyn. Levy’s Jefferson is a doctrinaire thinker, more concerned with political orthodoxy and censorship than open questioning and inquiry. Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side (Cambridge 1963). Similarly, Bernard Bailyn’s Jefferson is a “stereotype … a configuration of liberal attitudes and ideas which he accepted uncritically, embellishing them with his beautifully wrought prose but questioning little and adding little.” Bernard Bailyn, Faces of Revolution: Personalities and Themes in the Struggle for American Independence 27 (Knopf 1970).

Perhaps more than any other revolutionary, Jefferson is a symbol for America and for Americans. Jefferson’s shifting fortunes in the realm of popular opinion represent a strand of American self-reflection that is revealing of our national self-image. Jefferson reflects our hopes and fears about who we are in a visceral way. Of the various founding characters for which we name our public institutions, only the use of Jefferson’s name can inspire heated debate and controversy even today. See School to Vote on Renaming Jefferson Elementary: President’s Slave Holding Perturb Families, Teachers. This symbolism and controversy is precisely what makes Professor Konig’s new research exciting and utterly relevant. The debate over Jefferson rages on, and Professor Konig’s work will no doubt be an important contribution to our understanding of the man and the myth.

Student Blogger - Fall WIP: Randal Picker Debunks the Razor-and-Blades Myth(s)

Stroll through the aisles of an electronics store—or, if you prefer scroll through the pages of Amazon—and you’re bound to see countless examples of an age-old marketing scheme: the “razors-and-blades” business model. The underlying concept is simple—first lure consumers with low-priced platform products, and then increase sales with high-priced complementary goods. For instance, fancy multifunction printers are sold at deep discounts, while the ink cartridges without which the printers would be useless seem exorbitantly priced. With the ascent of e-commerce, the razors-and-blades model has taken on a new relevance, as web entrepreneurs struggle to find a way to monetize the free services they offer. But, as Professor Randal Picker argues in The Razors-and-Blades Myth(s), there are two problems with the model.  First, it doesn’t seem to work in theory, and second, it doesn’t seem to have been used by the very man widely credited with inventing it.

At a recent WIP talk, Professor Picker discussed the origins of the razors-and-blades myth. As the story goes, King Gillette realized that if he sold razor handles cheaply, he could increase the market for his recently invented disposable blades. But if this were so, Professor Picker hypothesizes, why couldn’t a competitor also offer a cheap—or even free—razor handle, and steal away market share? After all, once the initial supply of razors is exhausted, a consumer in the razors-and-blades world would be able to switch costlessly to a competitor’s handle. Alternatively, a competitor could dispense with the razor handle altogether, and focus solely on selling blades that were compatible with Gillette’s loss-incurring handle. Offering low-price handles seems only to make sense, Professor Picker surmises, in a world where either consumers are deeply loyal, or competitors are blocked from entering the market.

As it turns out, Gillette was able to exclude competitors from the market, but even so, the historical evidence does not suggest that he played the razors-and-blades game. In 1904, Gillette was granted patents for his safety razor design. In the patents themselves, Gillette seems to contemplate that the blades would be sold cheaply; indeed, one of the chief claimed benefits of the new blade was that, because they were so cheap to manufacture, consumers would treat them as a disposable rather than a durable good. As Professor Picker concedes, making something cheaply and selling it cheaply aren’t the same thing. However, Professor Picker argues that Gillette had to offer the blades for a low price to entice consumers who had at that point only ever shaved with a straight blade. Offered a new product that was both disposable and expensive, consumers were likely either to stick with their tried-and-true blade, or to make the new blade last longer by resharpening it.

By studying catalogues and newspaper ads from after Gillette was awarded the 1904 patents, Professor Picker determined that, rather than playing razors-and-blades, Gillette was in fact selling the razor handle itself as a luxury good. A Wanamaker ad in The New York Times listed a new Gillette razor plus a dozen blades at $5, and a replacement pack of a dozen blades at $1, making the implicit price of the razor handle itself $4. In contrast, the same ad offered a clearance price of $12 for men’s suits, and $12.50 for newly tailored women’s suits. To put this in context, Professor Picker notes that $5 was the equivalent of “roughly one-third of the average weekly industrial wage in 1900.” It seems that during the time when, thanks to patent protection, it would have made the most sense to engage in razors-and-blades marketing, Gillette was doing the exact opposite.

Gillette’s response to the impending expiration of its patents in 1921 further undermines the razors-and-blades myth. After first securing a patent on a new razor that promised “an increase in shaving efficiency of more than 75%”—leaving unspecified, Professor Picker notes, precisely what that meant—Gillette repackaged its older razor and sold it for $1. Gillette’s annual report for 1921 shows that, based on the success of the lower-priced razor, it had “sacrificed potential razor blade sales by selling razors at a premium price” during its period of patent protection.

The fact that Gillette left the price of blade largely untouched after introducing the “freemium” version of its old razor suggests that Gillette was forced by emerging competition into playing some form of razors-and-blades after its patents expired—selling a cheap handle bundled with comparatively expensive blades. Even if that was so, however, Professor Picker points out that this actually weakens the razor-and-blades model, which in its traditional formulation holds that it is “almost impossible to play razors-and-blades without a way to lock the consumable goods to the platform.” Perhaps, as Professor Picker suggests, Gillette’s willingness to play—and succeed with—this modified form of razors-and-blades may have been in part due to its large installed consumer base resulting from its contract to supply the US Army with razors and blades during World War I.

Professor Picker’s research leaves us with not only the historical curiosity that the man thought to have created razors-and-blades was reluctant to play it himself, but also a puzzle with important implications for our modern world. As Professor Picker remarks about Gillette’s pricing strategy after the expiration of its patents, razors-and-blades “seems to have worked at the point where the theory suggests that it shouldn’t have.” Many current products—such as cell phones and video game consoles—are two-stage platforms similar in some ways to razors and blades. Considering the lessons we can learn from Gillette’s example, it's worth asking to what degree the law should facilitate devices that control access to those platforms. Should, for instance, the Digital Millennium Copyright Act criminalize the circumvention of access-restriction measures? These and many other similar questions continue to be debated. Professor Picker’s revelation that—at least in the supposedly canonical case of King Gillette—the locks provided by the legal system are less beneficial than previously thought is a significant contribution to this ongoing debate.

 

Student Blogger - Fall WIP: Martha Nussbaum examines political emotions

Without harnessing the emotions of its citizenry, a nation would find it nearly impossible to achieve many of its important goals. The armed services, for instance, rely on patriotism to help fill their ranks with willing recruits, while anti-littering campaigns succeed by tapping into a sense of civic pride. Given the prominence of public emotion in political action, then, it seems uncontroversial that governments would devote significant energy to cultivating and channeling the passions of their citizens. But how can they do so while remaining true to the bedrock liberal principles of individual liberty and autonomy, and without veering into dictatorial oppression? Answering these questions is the project undertaken by Professor Martha Nussbaum in a book in progress, Political Emotions: The Public Psychology of a Decent Society.

In several chapters shared at a recent WIP talk, Professor Nussbaum briefly sketched the challenges confronting those leaders wishing to generate, in the words of philosopher Jean-Jacques Rousseau, a “civil religion.” First is the danger of stirring up overly intense and indiscriminately focused emotions. As Professor Nussbaum suggests, emotions are not simply uncritical impulses; they are also normative evaluations. That is, an emotion is an endorsement of a particular political view, and governments must therefore be careful not to foster emotions that have as their object the subjugation or exclusion of certain political subsections of the population.

Second, political emotions require a significant amount of devotion in order to have any practical effect. However, this devotion cannot be blindly unwavering. Instead, Professor Nussbaum argues that emotional devotion must “remain compatible with liberal freedom.”  That is, it must be subject to criticism, subversion, and dissent. Humor, for instance, can help deflate the pretentions of patriotism, and in doing so keep it from metastasizing into warmongering.

One way to resolve the inherent tensions of political emotions, Professor Nussbaum suggests, is for the government to encourage and enable artists to create different conceptualizations of worthwhile political values. While Professor Nussbaum discusses the many political thinkers—including Rousseau, Locke, Mill, and Rawls—who have contributed to the discourse on the significance of moral sentiments, she argues that the power of political emotions is better captured by music, dance, and poetry than by transparently rational philosophy. Indeed, Professor Nussbaum explores in great detail Auguste Comte’s globally influential idea for a “religion of humanity,” but she ultimately rejects it as a suitable basis for generating true public emotions in part because its staunch positivism leaves little room for artists to freely exercise their imagination.

To illustrate this point, Professor Nussbaum focuses in particular on the work of Walt Whitman and Rabindranath Tagore.  In “When Lilacs Last in the Dooryard Bloom’d,” for instance, Whitman creates a public mourning ritual for the loss of Abraham Lincoln, and speaks directly to the deeply felt emotions of a grieving reader. In doing so, Whitman has transfigured Lincoln’s death into a moral symbol for the pursuit of justice, and has elevated the reader’s sorrow in reaction to a specific loss into a rededication to the civic ideals that Lincoln represented. Similarly, Tagore’s “Amar Shonar Bangla,” later adopted as the national anthem of Bangladesh, portrays the natural beauty of Bengal as erotically seductive. Tagore’s poetry suggests a tender, sensuous relationship between the reader and her nation that contrasts starkly with the aggressive imperialism of Bengal’s British colonial rulers.  Both Whitman and Tagore, then, aim to inspire in their readers a passion towards civic institutions, and ask them to engage in the public sphere with a spirit of love.   

Tagore in particular built on Comte’s ideas, but, as Professor Nussbaum notes, he departed from Comte in a number of important ways. First, Tagore’s pluralist humanism seems to be a direct rejection of Comte’s cultural hegemony. Furthermore, Tagore’s poetry embraces an uncertainty that is at odds with a Comtean sense of order and restraint. Indeed, Tagore’s vision for society borrows heavily from the Bauls, a group of mystic Bengali minstrels whose delight in counter-cultural nonconformity would have no place in Comte’s rigid religion of humanity.

Tagore aimed to infuse the Baul spirit in society through education and popular music.  While his school, emphasizing a pedagogy of movement and nature, flourished for a time, it is perhaps in his thousands of popular songs that Tagore’s legacy is most lasting. Gandhi often cited Tagore’s “Ekla Cholo Re” as one of his favorites, and the song’s theme of quiet but courageous resistance resonated deeply within the struggle for Indian independence. Professor Nussbaum detects another echo of Tagore’s work in the rhetoric of Jawaharlarl Nehru, whose “Tryst with Destiny” inaugural address described the unfinished business of building an Indian state as a labor of love.

Having identified the work of Whitman and especially Tagore as promising developments of Comte’s project of engendering political emotions, Professor Nussbaum proposes to focus next on the normative question of determining which values those political emotions should impel society towards. She will then delve into a survey of humankind’s psychological capacities, paying particular attention to play and its importance in fostering a compassionate concern for others. Last, she will explore the options available to a liberal society both at the level of institutional design and in the formation of individual identity. In doing so, and with Whitman and Tagore enlisted as spiritual guides, Professor Nussbaum will map out the terrain of a just, compassionate, and sustained culture of political emotion.

Student Blogger - Fall WIP: Aziz Huq discusses mechanisms for producing community cooperation in counter-terrorism policing

In mid-2010, citizens of Birmingham, UK, took to the streets to protest the installation of 200 closed-circuit television cameras throughout the city. The cameras weren’t in and of themselves the reason for the demonstration—after all, with an estimated 500,000 cameras in London alone, CCTV has become a begrudgingly accepted fact of daily life in the United Kingdom. Instead, the outcry was sparked by police deception. Whereas the police had initially claimed the cameras would be used primarily for monitoring traffic crimes and common delinquency, the cameras were in fact paid for out of a counter-terrorism fund and installed around predominately Muslim neighborhoods. Following the protest and subsequent media coverage, the cameras were promptly dismantled. 

This episode serves as a powerful illustration of the issue at the heart of a paper delivered by Professor Aziz Huq at a recent WIP talk. Written with Professors Tom K. Tyler and Stephen J. Schulhofer of the NYU School of Law, the paper, Mechanisms for Eliciting Cooperation in Counter-Terrorism Policing: A Study of British Muslims, offers a data-driven analysis of how policing tactics impact the willingness of citizens to cooperate voluntarily with counter-terrorism efforts, and, given its likely significance on the efficacy of policing efforts, how community cooperation can best be produced.

As was recognized by Charles Rowan and Richard Mayne, founders of London’s Metropolitan Police, the greater the degree of cooperation between the police and the community being policed, the lesser the need for “physical force and compulsion for achieving police objectives.” This intuition has been confirmed by empirical studies that strongly suggest that policing strategies based on “collective efficacy”—that is, achieving commonly held community goals—are significantly more effective at crime reduction than those that do not engage the public.

As Professor Huq notes, it’s not immediately obvious that the same strategies would be successful in policing terrorism. For instance, terrorism is both a more geographically diffuse and more intricately coordinated threat than any individual crime. However, there is a growing consensus that community cooperation is a pivotally important element of terrorism policing. Information about suspected terrorist activities, for example, may circulate within a discrete, insular community long before police are able to detect it. Strategies that encourage the voluntary sharing of this information would increase the efficacy of terrorism policing while lessening the invasiveness of police tactics.

Drawing on interview responses from randomly selected members of the British Muslim community in London, Professor Huq and his co-authors evaluated three commonly offered mechanisms for eliciting community cooperation with counter-terrorism policing. In their model, cooperation is defined both generally as a receptivity toward helping counter-terrorism efforts and specifically as a willingness to alert police of a suspected terror threat.

The first mechanism was instrumentalism, or a rational choice theory of behavior. According to instrumentalism, an individual will cooperate with the police when the expected benefits of doing so outweigh the expected costs. Put another way, people would cooperate with the police if they both thought that the risk of a terrorist act was sufficiently high and that the police were effective in preventing this threat. The second was “neo-Durkheimian,” an approach based on the French sociologist’s notions of societal integrity. Under this approach, an individual would cooperate if she believed that the police were motivated by shared fundamental values—that is, if she identified morally with the police. Unlike instrumentalism, this approach focuses less on the effectiveness of the police but rather on the law’s expressive function in promoting the values necessary for social cohesion. The last mechanism was procedural justice, or a belief that the police are a legitimate authority. According to the procedural justice approach, an individual would cooperate if she sensed that policing tactics were fairly formulated and implemented. This approach focuses on factors such as whether the community was given an opportunity to participate in policymaking, whether officials exercise authority evenhandedly and consistently, and whether police interactions are conducted with dignity and respect.

Professor Huq’s study found that procedural justice was by far the strongest predictor of cooperation between the police and British Muslims. While this finding is consistent with much of the previous work in the field, there may be reasons to believe the other mechanisms play a larger role in producing cooperation than the survey revealed, as was discussed during the Q&A session following Professor Huq’s talk. For instance, respondents may have been reluctant to admit that they are principally motivated by purely rational considerations, and instead found the notions of fairness embedded in procedural justice a more attractive explanation for their behavior. On the other hand, the degree to which moral identification can yield cooperation may vary from community to community based on factors such as the ethnic composition of the police and the community, or shifts from large urban environments to smaller, more rural areas.

Nevertheless, Professor Huq’s study provides strong empirical evidence that procedural justice is highly correlated with community cooperation in counter-terrorism efforts. This suggests that government-community engagement and consultation is likely to yield the most successful policing strategies, though, as Britain’s unsuccessful attempt community engagement in the wake of the July, 2005, bombings shows, it is important that these efforts be viewed as earnest and not “shallow spin.”

One surprising result of Professor Huq’s study is that there was a separation between the reported significance of procedural justice and legitimacy, a finding at odds with previous studies of cooperation mechanisms. This may suggest that, even if they distance themselves from the workings of government, British Muslims are nonetheless willing to cooperate with the police if they perceive them as acting fairly. Additionally, a community’s belief that it is being specifically targeted for policing may have a corrosive effect on cooperation. However, group-based discrimination seems to have the largest effect on individuals who otherwise feel they are accepted members of the larger society. That is, an individual who identifies with the larger society across multiple dimensions is more likely to be offended by policing tactics that reduce that individual’s identity to a single factor. These two results point to important topics for further research.

Student Blogger - Public Law & Legal Theory Workshop: Traci Burch and The Neighborhood Effects of Incarceration

I spent this Thanksgiving with my family in Charlotte, North Carolina. My sister recently bought her first home in one of those quaint communities where the houses coordinate colors, and the neighbors all wave hello. When she first moved there, she was warned several times to be careful and always lock her doors when driving on the nearby South Boulevard. But to any seasoned Hyde Park resident, perceiving danger on a well-lit road with a prominent Pier 1 Imports is practically preposterous.

Putting South Boulevard aside, however, Charlotte's neighborhoods vary significantly in safety levels, police presence and incarceration rates. For Traci Burch, an assistant professor in the Department of Political Science at Northwestern University, Charlotte presented the perfect grounds for research. Burch presented her findings in her paper, The Neighborhood Effects of Incarceration on Individual Perceptions of Discrimination and Political Efficacy, at the Public Law & Legal Theory Workshop on November 23, 2010.

The Effects of Incarceration in Neighborhoods

What is the political effect of imprisoning one percent of the national adult population? According to Burch, the effect is more significant than the national statistics indicate. The incarceration rate is not spread out geographically or uniformly. Instead, incidents of adult imprisonment are concentrated in specific neighborhoods, often among racial groups. As past research has shown, interactions with the government, or the criminal justice system, influence an individual's political attitudes; and incarceration usually instills a negative attitude. However, Burch posits a new question: what is the effect on political attitudes in the neighborhoods with high incarceration rates, even among people who were not themselves incarcerated?

Burch focuses on perceptions of discrimination and political efficacy in the Charlotte-Mecklenburg metro area. Burch compared survey data from neighborhoods with imprisonment rates of 1% and 2%. The model controlled for age, ideology, education, poverty, crime, vacancy, and unemployment rates. Her findings demonstrate that neighborhood residents with higher imprisonment rates perceive more discrimination and feel less politically efficacious than people in neighborhoods with lower rates.

Further, Burch theorizes why government action reshapes attitudes in this way, building feelings of discrimination and deters voter turnout. In high incarceration neighborhoods, Burch explains, residents acquire political attitudes through cultural transmission and/or direct observation.

Cultural transmission is described as an individual's ability to share experiences, opinions and attitudes within a community. Essentially, these neighborhoods assimilate the attitudes of those that have been arrested.  In addition, a resident is more likely to directly observe another's negative experience with the government if the rate of police incidents is higher.  Accordingly, the rate of incarceration in a neighborhood is highly correlated with negative attitudes toward the criminal justice system, and by extension the government.

The government's antagonistic presence in these neighborhoods negatively affects the residents' perceived political efficacy. Political efficacy can be separated into two categories: (1) internal - an individual's perceived ability to affect political outcomes, and (2) external - the perceived responsiveness of political institutions.

Burch theorizes that attitudes of internal inefficacy sprout from the proximity to convicts and ex-convicts harboring feelings of discrimination, stigma and political weakness. Similarly, the negative external political attitudes are explained by unresponsiveness in interactions with welfare agencies or other government institutions. These interactions are pervasive in higher-incarceration neighborhoods, and the feelings spread through cultural transmission or direct observation.

Lastly, Burch describes how attitudes and perceived political efficacy affect voter turnout. As might be expected, voter turnout is lower in neighborhoods with feelings of low political efficacy. However, studies show that perceptions of discrimination increase group consciousness. This mixture raises the likelihood that high incarceration neighborhoods will resort to unconventional political avenues, such as protest or separatist movements. Linking political attitudes with heightened punishment in these neighborhoods improves our understanding of political behavior.

Comments

During the workshop, alternative explanations were discussed. There may be other material reasons why political participation is low in these neighborhoods: Voting is much more costly for low-income people who do not have transportation or cannot easily take time off from work. However, Burch pointed out that her analysis controls for the economic condition of the individual respondent and their neighborhood, so these issues should not bias the results of the study.

Another point was made that high incarceration rates are not necessarily representative of a high police presence. Burch assured that the police incident reports used in the data were a good indicator of police presence, because they account for all police incidents, not just incarceration.

In the 2008 election, voter turnout was greater in three high incarceration neighborhoods with historically low voter turnout. Burch pointed out the likely explanation was the Obama campaign's ability to incite feelings of change, hope and political efficacy.

Student Blogger - Workshop on Judicial Behavior: Daniel E. Ho (Stanford University)

Some of the findings simply confirm our intuitions.

The American Civil Liberties Union is, to say the least, active when it comes to lobbying the United States Supreme Court.

The Christian Law Society is, conventionally speaking, politically to the right of the Court.

Yes, some of the data presented at the Nov. 17 Workshop on Judicial Behavior is of the could’ve-guessed-that variety. However, there is certainly value in the fact that someone has finally taken the time to collect and examine data related to that most curious of legal animals, the Supreme Court amicus brief, and put hard numbers to those intuitions.

That someone is Stanford University Law School professor Daniel E. Ho, along with UVA law professor Joshua Fischman and law student Alexandra Dunworth, recently completed an extensive study of amicus briefs filed in Supreme Court cases. The study began with briefs filed in 1979, and collected data on positions taken in all of them through 2006. This covers the period when the availability of such briefs in the Lexis database is most comprehensive.

An amicus brief, as most in the legal community know, is a brief filed by an outside party  supporting one or the other party in a dispute that reaches the Court (amicus briefs are also filed in circuit courts). Ho’s paper, “The Myth of Policy Voting: What Amici Tells Us About Law,” is based on data mined from a study of 14,000 briefs filed by more than 600 amicus groups over nearly three decades. The final results, charted exhaustively in the paper, focus on about one-hundred of the most active filing groups, including the ACLU (430 briefs), National Association of Criminal Defense Lawyers (262), and the National Association of Counties (242).

To be sure, some of the results were predictable.

“Simple intuition,” Ho himself admitted, “underscores the approach of the paper.”

But that doesn’t mean that there were no surprises emerging from the massive data analysis.

“The fact that overwhelmingly all of these groups land either to the left or to the right of the Court was a surprise to us,” Ho said. “We thought there may hae been more moderate groups.”

For example, even in unanimous Court decisions, interests groups remain active. An amici is 30 times more likely to disagree with a unanimous decision than a single justice is to write a lone wolf dissent.

Why hop on board that kind of lost cause?

One hypothesis: mobilization. Filing a losing brief could be a way to mobilize support amongst potential donors and members of the group.

This may be true in those aforementioned unanimous decisions, when interest groups like the ACLU stand little chance of swaying the Court, but still expend resources writing and filing a brief.

Charted according to the data, the nine justices, even supposedly reliably partisan justices like Antonin Scalia and John Paul Stevens, were all situated squarely in the political center, with the amici stretching out far in each direction on the spectrum.

The rise of the amicus brief is a relatively recent phenomenon. In the 1980s, an amicus brief was filed in approximately 74 percent of Supreme Court cases. Since 2000, that number has soared to 95 percent.

There are also, today, more amicus briefs filed in each individual case than ever before. In the 1980s, there were just under four amicus briefs, on average, filed in each case. By the 2000s, that figure was nearly eight.

Two cases, an affirmative action challenge regarding the admissions process at the University of Michigan and a Pledge of Allegiance-centered church-and-state case in suburban Chicago, drew a combined 206 amicus briefs.

During the workshop, Ho’s data and conclusions were subjected to much scrutiny by many of the judges and scholars in the audience. For example, the study excluded briefs filed by influential government entities like the Solicitor General as well as administrative agencies. In theory, those briefs may be more valuable because they are filed for pure policy purposes, and for mobilization.

Perhaps most humorously, Seventh Circuit Judge Richard Posner expressed contempt for one illustration of the project, using a 2008 New York Time Magazine piece by George Washington law professor Jeffrey Rosen that relied on statistics about the Chamber of Commerce, which claimed to reveal the Court’s pro-business bias.

“He’s a journalist!” Posner snarled. “You’re a serious academic.”

Regardless, the study provides one way to measure the political impulses of the justices against a baseline of partisan interest groups.

And for those who see pure jurisprudence, separated from political concerns, as the ideal, the results are promising.

As the paper concludes: “With this rich data, we have shown that the justices are either centrists or discernibly not raw policymakers.”