In his recent article “Against the Law Reviews”:http://www.legalaffairs.org/issues/November-December-2004/review_posner_novdec04.html, Judge Richard Posner repeats a number of long-standing criticisms directed against student-edited law journals. There isn’t really anything in his article that he hasn’t said before in other places.[1] Posner thinks students choose the wrong pieces, do a bad job of editing them, and generally diminish the quality of legal scholarship. He thinks the system of legal publishing should be reformed by placing law journals under the control of faculty. Although Posner is certainly right to question the lack of peer review in legal academia, he (1) puts the blame for the current system in the wrong place, (2) underestimates the ability of students to do quality work, (3) ignores the opportunity costs to law students of working on journals, and (4) proposes only meager reform.
From the category archives:
Law
The Republicans are dismayingly insane. Moving right along, I’m wondering whether, when copyright gets extended – as it did with Bono – works get taken out of the public domain and made private IP. That is, when copyright went from life + 50 to life + 70 some public domain works that had passed the 50 mark, but not the 70 mark, ceased to be public domain? Has this created legal trouble or controversy? Suppose I made (and copyrighted) an edition of a recently liberated public domain work that, when the hammer of copyright extension fell, ceased to be such. Would my edition, legally produced during a window of opportunity, cease to be legal? Never mind whether I am a retroactive pirate – a time bandit, if you will. Can I continue to publish my work because I produced and copyrighted it during a window of opportunity?
In short, does Congress have the right not just to extend copyright but to re-enclose the public domain? And if Congress has the right to re-enclose the public domain, is there any limit to that power (apart from the fact that it could only reassign rights to the distant descendents of authors and creators – you know, so as to foster science and the useful arts.)
UPDATE: Oh, the wikipedia tells me that no expired copyrights were reinstated. This does imply that the life + 70 term is not strictly definitive. There are works that fail that test that are actually public domain? So the date of Bono – 1998 (?) – becomes quite crucial for calculating whether a given work is public domain?
2nd UPDATE: This recent decision (June 19, 2004), “Luck’s Music Library, Inc. v. Ashcroft” (PDF) (via this page), seems to establish Congress’s power to remove works from public domain retroactively. Although I guess Bono did not actually do anything of the sort. Interesting.
“Jack Balkin”:http://balkin.blogspot.com/2004_06_06_balkin_archive.html#108680154938193129 on the torture memo.
bq. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration’s dirtiest work– apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.
What kind of America-hating lefty would seize on an isolated incident like this?
Three weeks ago in Highland Park, Texas, Mrs Dolly Kelton was arrested and handcuffed for failing to pay a traffic ticket after her car was stopped for having an expired registration. I doubt that Mrs Kelton was a threat to the safety of the arresting officer. She is 97 years old.
then follow up with this ?
We handcuff her… because some Western societies, and America in particular, use these procedures as a way of softening up the accused by humiliation and to underline the power of the authorities.
What kind of slippery-slope argument do you think is going to follow?
The UK’s new Sexual Offences Act (2003) came into force this week. This is the law which criminalizes whole swathes of normal behaviour (such as “teenagers kissing”:http://news.bbc.co.uk/2/hi/uk_news/magazine/3672591.stm ). But we’re not supposed to worry about that because the Home Office will issue guidance to the Crown Prosecution Service not to proceed in such cases (and to block any private prosecutions). There’s something disturbing about legislators legislating with the prior intention of issuing guidance not to apply the law, and there’s a lot disturbing about the content. But that isn’t the only remarkable fact. I read the following in “a rather good piece in the Independent”:http://news.independent.co.uk/uk/legal/story.jsp?story=517661 by John Spencer, Professor of Law at Cambridge:
bq. despite conducting “extensive consultations” and a formal review that consumed £17,500 of public money on research and £31,025 on conferences, the Home Office devised the new law without troubling to obtain or consider any solid information about what is normal in the sex lives of children and young persons.
bq. The review document also contains the following disarming statement: “We also tried to test the opinion of some young people and, at a fairly late stage in the review, had discussions with some Year 10 and Year 11 pupils (aged between 14 and 16) at one school (sadly lack of time meant we could not undertake a wider consultation).”
Despite Spencer’s “despite”, the figure of £48,525 means the Home Office spent _nothing_ on research into this important area. And they only had time to interview a few kids in one school! Unbelievable.
While all the epistemologists were “safely tucked away in Moscow”:http://www.class.uidaho.edu/inpc/7th-2004/, Massachusetts tried to slip some unreasonable provisions into its draft death penalty statutes.
bq. One of the major recommendations is raising the bar for a death penalty sentence from the normal legal standard of guilt “beyond a reasonable doubt” to a finding of “no doubt about the defendant’s guilt.” (“New York Times”:http://www.nytimes.com/2004/05/03/national/03DEAT.html?adxnnl=1&adxnnlx=1083769665-5fdOsijTKGYxWSfW2htAmw)
The ever-fascinating “Head Heeb summarizes the Pitcairn case”:http://headheeb.blogmosis.com/archives/024688.html (full judgement “here in PDF”:http://pidp.eastwestcenter.org/pireport/2004/April/Judgment.pdf ). Mutiny, treason, adventure, sex, Lord Haw-Haw and legal positivism: it’s all there, along with the European Convention on Human Rights. Enjoy.
Can someone in the UK confirm the accuracy of “this report”:http://www.sundayherald.com/40592? (Via “Jim Henley”:http://www.highclearing.com/archivesuo/week_2004_03_14.html#005165.)
WHAT do you give someone who’s been proved innocent after spending the best part of their life behind bars, wrongfully convicted of a crime they didn’t commit? An apology, maybe? Counselling? Champagne? Compensation? Well, if you’re David Blunkett, the Labour Home Secretary, the choice is simple: you give them a big, fat bill for the cost of board and lodgings for the time they spent freeloading at Her Majesty’s Pleasure in British prisons.
On Tuesday, Blunkett will fight in the Royal Courts of Justice in London for the right to charge victims of miscarriages of justice more than £3000 for every year they spent in jail while wrongly convicted … spokesmen in the Home Office say it’s a completely “reasonable course of action” as the innocent men and women would have spent the money anyway on food and lodgings if they weren’t in prison. The government deems the claw-back ‘Saved Living Expenses’.
Is this a step in the calculation of compensation money prior to paying it to the victims, or an attempt to grab some of that money back after the fact? (Is that distinction even relevant?) The _sang froid_ of the British Legal Establishment never ceases to amaze. Maybe they could take it out of “Lord Denning’s”:http://www.people.fas.harvard.edu/~mponeill/law/utilitarianism.html estate. He “said”:http://www.highclearing.com/archivesuo/week_2004_03_14.html#005165 he wanted to be remembered in good works.
Check out this conference on cybercrime and digital law enforcement to be held at the Yale Law School next month. It’s being organized by folks at the Information Society Project and features a list of interesting speakers from related fields. Some of them are frequent bloggers (Balkinization, Discourse.net) so hopefully we’ll get to read about it as it happens. It’s not too late to get a spot on a panel (or a publication in a related special issue of IJCLP and YJOLT) thanks to a paper-competition [pdf] they are having.
Human rights barrister Conor Gearty stole the show at the recent Oxford Political Thought Conference, with a brilliant, witty and well-informed speech. He has an “article on Hutton”:http://www.lrb.co.uk/v26/n04/gear01_.html in the new London Review of Books. His view doesn’t exactly coincide with my own, but it is a fascinating look at the changing public reputation of judges, their relations with the media, why this judge and not that one gets picked for an inquiry. It is hard to decide on the most quotable bit, so this will have to do:
bq. One of the more mystifying aspects of the Hutton process was the media’s treatment of Hutton himself, before the publication of his report, as an Olympian demigod, hovering above the fray, fastidious in his search for truth and justice. His appearance and extraordinary accent have helped; the media love caricature, and here was a judge who seemed to have walked into the limelight directly from the 1950s. But underpinning the blind trust that was placed in him, and which has now rebounded so badly, was a more general enthusiasm for the judiciary which is all the more remarkable for having been so recently acquired and for being (as far as the commitment to media freedom is concerned) largely without foundation.
bq. It is not so long ago that judges were the most maligned group in the entire body politic. Their naked partisanship during the miners’ strike, the Spycatcher debacle, and then the succession of miscarriage of justice cases of the late 1980s and early 1990s had established the senior judiciary in the eyes of most people (and particularly in the eyes of the media) as inclined to authoritarianism, unaccountable in their exercise of power and entirely out of touch. The refusal of judges to give any interviews, under cover of antiquated ‘rules’ which a long forgotten lord chancellor had invented, compounded the sense that they were all, or almost all, malevolent recluses.
Mark Kleiman notes that the Arrestee Drug Abuse Monitoring (ADAM) program has been killed. This was a useful dataset on patterns of drug-use amongst criminals. In his post, Mark quotes John Coleman, a former bigwig at the DEA, who says
The importance of ADAM always has been its stark statistics showing the large percentage of criminals high on drugs and alcohol at the time of their crimes. ADAM surveyed arrested felons and then drug-tested them to confirm their statements about drug use. It was all voluntary but showed, nonetheless, extraordinary levels in some cases of drug use by criminals.
This confirms my non-expert belief that there’s a great deal of evidence telling us that a big chunk of violent crime happens when the perpetrators have been using alcohol or some other drug. People under the influence of drugs tend to have a diminished capacity for rational decision-making. This makes me skeptical about, e.g., fiendishly clever analyses of the rational deterrent effect of prison sentences on crime rates. It’s not that there’s anything wrong with the detail of such analyses per se, it’s that they throw away reliable knowledge before they begin. Ignoring information of the sort that ADAM provides may make an elegant theory of crime more tractable, but it makes a true theory of crime less likely.
I’ve been scanning the press coverage of the Britain’s “Soham murder trial”:http://www.guardian.co.uk/soham/0,14010,1073385,00.html to see whether anyone has asked a very obvious question. So far, commentary seems to be concentrating on the failure — if it was a failure — of the Humberside police to pass on details of the “ten allegations of sex crimes”:http://www.guardian.co.uk/soham/story/0,14010,1109155,00.html that had been made against Ian Huntley. (Anyone who has had experience of Britain’s Data Protection Act will sympathise with the police when they declare themselves confused about which records they were allowed to retain, and how much they were allowed to disclose.) But the dilemma of policy and principle is obvious: on the one hand there was information that could have prevented the murders; on the other hand, it seems wrong to allow mere allegations that have not been tested to be a barrier to someone getting a job. The question nobody seems to be asking, though, is why didn’t the earlier allegations go anywhere?
And there seems a worrying possible answer to that question. In today’s target culture, neither the police nor the Crown Prosecution Service will proceed with an case unless they think they stand a very good chance of success. To risk failure is to risk bad statistical outcomes. In other words, maybe Huntley was able to continue his career of rape and under-age sex because the threshold at which the authorities will now initiate a prosecution is set too high.
Welcome to “Punishment Theory”:http://punishmenttheory.blog-city.com/ , a new blog on philosophy and the criminal law featuring some eminent scholars.
In a series of posts (“here”:http://www.curmudgeonlyclerk.com/weblog/archives/2003_10.html#000563 and “here”:http://www.curmudgeonlyclerk.com/weblog/archives/2003_11.html#000570) and comments, the “Curmudgeonly Clerk”:http://www.curmudgeonlyclerk.com/weblog/ has attacked Dahlia Lithwick, who writes Supreme Court commentary at “Slate”:http://slate.msn.com/. In particular, the Clerk doesn’t like this “column”:http://slate.msn.com/id/2090532/, in which Lithwick tries to explain why Justice Scalia, unlike many other judges and justices, frequently speaks out about the most controversial issues of the day. Suffice it to say, the Clerk doesn’t like Lithwick’s diagnosis. In fact, he disagrees with it so much that he’s decided Lithwick no longer deserves to be treated civilly.