[Volokh] New post at The Volokh Conspiracy
Posted by Randy Barnett: Comment on Contracts Conference: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119016889 I did not receive very much feedback on my live blogging of the AALS conferences on contract law. So I decided, as an experiment, to open comments on this post so readers have a single place where they can react to the previous posts on all six panels (which are chained to this post). Did you find such blogging to be worthwhile? (Negative opinions on this are welcome, if civil.) Do you have any reactions to the topics of the various panels? Etc. ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by Todd Zywicki: More on Filibuster Deal Fall-Out: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119018750 I [1]noted the other day that I had heard some rumors of criticisms of home-state backlash against some of the architects of the filibuster deal fall-out. Some have raised the fair point that some of the criticisms that I linked to in that post may actually be more about ideological views on votes on judges than the filibuster deal itself, especially for Democrats who signed onto the deal. A reader from Columbus sends along word of another possible casualty of the filibuster deal on the Republican side, Pat DeWine, who this week was defeated in a stunning upset in the primary election to replace Congressman Rob Portman for the congressional seat from the Cincinnati area. Earlier [2]reports indicated that his father's role in the filibuster pact might come back to haunt him. And, in fact, although he was a prohibitive favorite in the weeks preceding the election, DeWine finished [3]a distant fourth in the primary field. News reports indicate that DeWine had several problems, including some personal issues, that may have led to his fall from grace in the primaries. But some [4]news reports indicate that his father's role in the filibuster deal played a substantial role in his reversal of fortune, and that primary voters were attacking him as a means to get at his father: The name became something of a curse last week, when his father, the senior senator from Ohio, became part of a bipartisan group of centrist senators who brokered a deal on judicial filibusters. That move angered many conservative Republicans nationwide and in the 2nd District, despite the younger DeWine's repeated statements that he did not agree with his father's actions. The apple doesn't fall far from the tree,'' said Boyd Piper Jr., a Republican voter from Clermont County. Piper was so upset with Sen. DeWine's action that he printed a bumper sticker for his car: 1 DeWine in Congress is 1 too many.'' In fact, De Wine [5]tried to distance himself from his father's role in the filibuster deal: In an effort to make sure the sin'' of the father isn't visited on the son, Republican candidate Pat DeWine made it clear Thursday he doesn't approve of the role his father, Sen. Mike DeWine, played this week in brokering a deal with Senate Democrats over judicial filibusters. I wouldn't have voted the way he did,'' the Hamilton County commissioner said Thursday. If a person is appointed to the federal bench, he or she deserves an up-or-down vote.'' The elder DeWine was one of seven Senate Republican moderates who came together this week with seven Senate Democrats to hammer out a deal that allowed some of President Bush's judicial nominees to be confirmed but gave Democrats the power to block others. Many conservative Republicans are furious at Sen. DeWine; and, on Thursday, the Hill, a Capitol Hill newspaper, speculated that conservative voters in Ohio's 2nd Congressional District might take their frustration out on the younger DeWine, who is generally considered the front-runner in a field of 11 GOP candidates running in the June 14 special election primary. There was some evidence other candidates for the 2nd District GOP nomination were ready and willing to try to tie Pat DeWine to his father's actions. He seems to have no problems riding his father's coattails when it comes to raising money and getting name recognition; he's willing to take all the good from it and none of the bad,'' said GOP candidate Tom Brinkman Jr. of Mount Lookout. I don't know if I believe him when he says he wouldn't have done what his father did.'' It is certainly premature to conclude whether in the long run there will be any negative (or positive) impact on the electoral fortunes of the filibuster dealers. In Cincinnati, DeWine appears to have had enough other problems that it is difficult to determine what role, if any, his father's role in the filibuster deal played in his defeat. But on the Republican side at least, it appears that conservative voters may have taken notice of the filibuster deal. It will be interesting to follow the story as it develops. References 1. http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118932438 2. http://www.hillnews.com/thehill/export/TheHill/News/Campaign/052505.html 3. http://www.wcpo.com/news/2005/local/06/15/vote.html 4. http://news.enquirer.com/apps/pbcs.dll/article?AID=/20050601/NEWS01/506010411/-1/all 5. http://news.enquirer.com/apps/pbcs.dll/article?AID=/20050527/NEWS01/505270373/-1/all ___ Volokh mailing list
[Volokh] New post at The Volokh Conspiracy
Posted by Eugene Volokh: Mopery: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119027032 [1]WordSmith reports on this legalish word that I'd never heard of before. According to the Oxford English Dictionary, it's The action of committing a minor or petty offence, such as loitering, etc.; contravention of a trivial or hypothetical law, esp. when used as an excuse to harass or arrest a person against whom no more serious crime can be charged. References 1. http://wordsmith.org/awad/archives.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Hot News from a href=http://www.borowitzreport.com/archive_rpt.asp?rec=1155srch=;Andy Borowitz/a: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119029010 SADDAM REQUESTS JACKSONS JURY Asks Accusers Mom to Testify Against Him Former Iraqi dictator Saddam Hussein startled the international legal community today by requesting that the jury in the Michael Jackson child molestation trial be empanelled to sit in judgment of him when his trial gets underway in Baghdad. . . . In addition to requesting the Jackson jury, Saddam also requested that the mother of Mr. Jacksons accuser be called upon to testify against him in his trial. Read more of this breaking story [1]here. References 1. http://www.borowitzreport.com/archive_rpt.asp?rec=1155srch= ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Juan Non-Volokh: The Importance of History: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119033579 David Gelernter has an [1]op-ed on the importance of history in today's LA Times. Here's a brief excerpt: I was amazed to hear about teenagers who don't know Fact 1 about the Vietnam War draft. But I have met college students who have never heard of Pol Pot and the Khmer Rouge the genocidal monsters who treated Cambodia in the 1970s to a Marxist nightmare unequaled in its bestiality since World War II. And I know college students who have heard of President Kennedy but not of anything he ever did except get assassinated. They have never heard JFK's inaugural promise: that America would pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to ensure the survival and the success of liberty. But President Bush remembers that speech, and it's lucky he does. To forget your own history is (literally) to forget your identity. By teaching ideology instead of facts, our schools are erasing the nation's collective memory. As a result, some expert can go on TV and announce (20 minutes into the fighting) that Afghanistan, Iraq or wherever is the new Vietnam and young people can't tell he is talking drivel. As Glenn might say, read the [2]whole thing. While portions of the essay frame the issue in right-left terms, I think it transcends ideology. The loss of historical knowledge in society at large -- in a sense, the collective amnesia of our age -- is deeply troubling. References 1. http://www.latimes.com/news/opinion/commentary/la-oe-gelernter17jun17,0,4056712.story?coll=la-news-comment-opinions 2. http://www.latimes.com/news/opinion/commentary/la-oe-gelernter17jun17,0,4056712.story?coll=la-news-comment-opinions ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Technology and Birth Rates: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119035247 My post [1]expressing skepticism about birth rate forecasts for 45 or 100 years in the future led me to think: What changes might substantially increase birth rates in the developed world? Here's my candidate: A combination of (1) cheaper, less painful, and more reliable egg extraction and freezing, which would let 20-year-old women routinely bank eggs for the future, and (2) the invention of incubators that can safely grow a child from a fertilized egg to a live baby. It's of course impossible to be sure that development 2 will happen within the next 45 years, but I suspect that it will. Let's say for our purposes that it does. Why is this likely to substantially increase birth rates? It seems to me that many couples have fewer children than they'd like, for several reasons. First, both the increase in women's educational and professional opportunities and changing sexual mores have led many women to marry later, and to have children later. They may still want to have 2, 3, or more children, but it becomes harder to do if you start in your mid-30s. Second, pregnancy is hard work, especially if you also have one or two kids running around and contributing to your tiredness. Pregnancy and childbirth can also cause various health problems. Some women apparently really enjoy pregnancy and even childbirth, but I suspect that most don't. I doubt that this deters many would-be first-time mothers -- but it may deter some women who already have two kids, have experienced the unpleasantness of pregnancy, are older and thus more likely to find physical burdens more taxing, and feel less of a need to have that extra kid. Third, I suspect that quite a few families might want to have another kid as their first batch gets older. Today, it's just not an option, at least without a great deal of work. (Adopting is of course always possible, but many people are reluctant to do that.) But if it becomes easy, I suspect a significant number of older couples may take advantage of it. Here I'm less certain, and of course as someone with two small kids I fully understand that many older couples may have no interest in going through all that again. Yet if even a substantial minority (say, 10%) do take advantage of new technology to do this, the birth rate may go up nontrivially. So if age-related fertility decline stops being a problem, and the physical burden of pregnancy and childbirth is eliminated, two important deterrents to having more children would be eliminated. Naturally, there are plenty of other deterrents; technology won't make having children cost-free. But it will reduce the costs (I speak here mostly of nonfinancial costs) and thus increase the demand. This is all guesswork on my part, and it may be skewed by the circles in which I travel. It would be interesting to see if there have been surveys that try to measure (however imperfectly) the extent to which people would have more children if the problems I describe were solved. Still, my suspicion is that this could easily drive up the birth rate by 0.2 or 0.3 per couple, or perhaps even more. I have enabled comments. References 1. http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118853960 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by Eugene Volokh: The Sort of Thing That Drives Economists Up a Wall: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119040609 A comment related to my [1]technology and birth rates post below says: I cannot help but think that you are treating people like a commodity (reduce costs and increase demand). I think a big barrier to childbirth is actually our culture, which cannot see why investing into another is more important than investing in one's self. Child creation is like a commodity in that if you reduce costs, you'll increase demand. Cost matters. Culture matters, too, of course. But even if you hold constant -- as a supposedly culturally dictated factor -- the amount that a person is willing to invest in a child, as the per-child decreases, the number of children in which the person is willing to invest increases. If a family feels that they can't spend more than $50,000/year on children without doing things that are too painful to them (e.g., getting a high-paying but misery-inducing job), and the cost of having a child rises from $15,000 to $25,000, they'll be likelier to have 2 children rather than 3. If the costs decline from $25,000 to $15,000, they'll be likelier to have 3 rather than 2. Likewise, if each extra child produces nine months worth of pretty serious discomfort and some amount of health problems stemming from the pregnancy, then on the margins some women will choose to have fewer children, even if you hold culture and willingness to invest in others constant. Moreover, people's willingness to invest in others may change over time. Twentysomethings may want to play around and have fun; fortysomethings may be more willing to invest in having children; but by then, having children may be medically impossible or too difficult. If technology changes to allow people in their 40s to have all the kids they then want, then -- again, keeping culture constant -- they may end up having more kids. Perhaps I'm mistaken, but my sense is that many people resist economic analysis because they find it distasteful: People shouldn't be treated like commodities (as if I'm suggesting that I be able to sell my wife on the open market). We should be paying attention to the grand plan of making people more unselfish rather than to technocratic matters such as cost and incentive (as if campaigns to make people unselfish have enjoyed notable success). Yet these sorts of gut reactions, and the slogans attached to them, aren't going to change human nature. With very few exceptions, as tasks get less costly -- or, if you prefer, get less painful and uncomfortable -- people will undertake those tasks more. One can debate how important the cost savings that I describe are compared to all the other costs of having children. But it's a major mistake to just close one's eyes to costs and how people react to them. References 1. http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119035247 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by Orin Kerr: If Watergate Had Happened in 2005: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119040718 The recent disclosure that Mark Felt was Deep Throat of Watergate fame led me to wonder recently what the Watergate scandal would have looked like if it had happened in 2005. There's at least a chance that Felt wouldn't have leaked to Bob Woodward Carl Bernstein at the Washington Post, or their 2005 equivalents. Instead of taking elaborate steps to meet in garages and make signals with flower pots, Felt could have just started an anomymous blog. It might have looked something like this: [1]http://watergatebreakin.blogspot.com/. References 1. http://watergatebreakin.blogspot.com/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by Orin Kerr: Code Is Law, Or Is It?: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119050620 One of the buzzphrases common in cyberlaw circles is that code is law, an idea popularized by Lawrence Lessig. The basic idea is that computer code can shape the experience and options available to Internet users. Because law is also a means of attempting to shape human experience and options, code and law are in essence trying to do the same sort of thing. They are both ways of regulating environments. I confess that I have never been particularly enamored of the code is law formulation. It seems to me that code is law only to the extent that lots and lots of things are law. If the test for law is what regulates human behavior and experience, then it seems that physics is law, chemistry is law, fear is law, greed is law, human eyesight is law, etc. At such an abstract level, saying that something is law doesn't seem to have a great deal of meaning. Indeed, in my experience code is law has become a shorthand used among cyberlaw types to remind ourselves that code is important. Law professors naturally look for legal answers to human problems, and code is law reminds us that techie solutions may work just as well or better than legal ones. So if code is not law, what is it? If you're interested in that question, I recommend that you check out Yale Law student James Grimmelmann's just-published law review note, [1]Regulation by Software (.pdf). Grimmelmann has a somewhat similar skepticism about the code is law formulation, and he offers an interesting and quite useful discussion of the differences between regulation by law and regulation by software. Here is the abstract: This Note builds on Larry Lessigs famous formulation that code is law to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or a bad choice to solve a regulatory problem. While I'm at it, kudos to the editors of the [2]Yale Law Journal for their smart and helpful way of publicizing their latest issue. I knew that the Grimmelmann note was published and online because I signed up for the YLJ's [3]online mailing list. The list sends out an e-mail whenever a new Journal issue is published; the e-mail contains abstracts of each piece in the issue together with links to .pdf copies posted on the Journal's website. It provides a very easy and convenient way of following, reading, and discussing new scholarship. I hope other law reviews follow the YLJ's lead. References 1. http://www.yalelawjournal.org/pdf/114-7/Grimmelmann.pdf 2. http://www.yalelawjournal.org/current.asp 3. http://mailman.yale.edu/mailman/listinfo/ylj-toc ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
