Friday, December 31, 2004

House-Group Laws and Screening Effects

Sometimes legal restrictions have unintended screening effects.

The City Council of McKinney, TX (somewhere near Dallas) last week repealed city ordinances that prohibited certain groups - churches, synagogues and religious groups - from having services in a home. A nascent church group had been attracting 20 or 30 people to Sunday services in a home, and municipal authorities ordered them to cease (an unfriendly neighbor had complained). The group went to court alleging the local ordinance was unconstitutional, because it targeted only religious groups; homeowners hosting non-religious gatherings faced no such restrictions. The City settled, repealing the restrictions and reimbursing the church’s legal fees to date. The Liberty Legal Institute , legal advocates for religious-freedom issues, handled the case and heralded it as a victory. Apparently similar cases are arising around the country. (Congrats to LLI, by the way - this is an example of the type of lawyer activism I was trying to affirm with my post about Special Interest Law Schools).

It is surely in the interest of efficiency that the City settled the case. Litigation would have been a costly use of taxpayer money, and it does seem unlikely that the ordinance could pass constitutional muster, singling out groups based on their religious purpose (it infringes on both religious liberties and right to assemble). A local chapter of the NRA, Girl Scouts, Tupperware parties, Hell’s Angel’s meetings, or Klansmen could meet freely (not implying any connection between these examples), but not a small religious group. Of course, some rules affect everyone – fire codes, noise-nuisance rules, etc. – but the restrictions in this case targeted religion.

Incidentally, the church in question is already renting warehouse space nearby, and has now grown to 65 members. Perhaps it would have outgrown the house quickly anyway, making the City’s actions premature and unnecessary. On the other hand, perhaps moving out of a home spurred the growth of the group by giving it more of an appearance of legitimacy in the eyes of newcomers.

Constitutional issues aside, religious home groups present interesting practical issues. Churches (I’m going to switch to this term for shorthand, but I mean to include any type of religious group) are different than Scouts or the local NRA: they sing, they grow, they like to meet more and more frequently as more people come, and they attract families. Families come in family cars (lots of minivans), which they park up and down the street; in contrast, parents often drop their little Scouts off for their meetings and pick them up afterward. (Let’s forget about the motorcycle club for a minute). Successful church groups present problems that are worse in the short term (more people, more cars, more singing, and more members recruiting others, which leads to more people, more singing, etc.), but the trouble is relatively short-lived, because they outgrow their family room and need to rent a public place. Less successful groups continue home meetings longer, but are more likely to fit all the cars in their driveway and bother the neighbors less. Thus the problems usually wash out – either the group grows and moves into a more conventional church building, or dwindles and presents no concerns for outsiders. It is understandable that local officials have initial concerns about the cars parked on the street, but it is a feature of American religious freedom – there’s not a good way around it.

This feature of American religious freedom – basically, religious innovation started from the home to avoid prohibitive startup costs – parallels the other types of freedom for innovation in our society. While new commercial ventures are sometimes spawned by the R&D branches of existing corporate conglomerates, the kid-in-his-garage-inventing-Apple-computers is the stuff of urban legends, and inspirational testimonial to capitalism and freedom. Some of the best things in America came from someone’s home.

The current system, however, tips the scales a little bit away from religious freedom or innovation. Property tax exemptions, for example, mostly benefit churches with elaborate buildings and prime real estate. These tend to be older, wealthier, institutionalized churches (with occasional bizarre exceptions, of course) or churches whose priority is to invest their donor’s offerings in luxurious digs. The legal scheme favoring grandiose church buildings creates an entrenchment effect, a type of entry barrier for newer churches who must rent their space. Rent will be high enough to cover the landlord’s property taxes. Though small and strapped for cash, they are taxed indirectly for their meeting place; entrenched wealthy churches are not. This is a shame, because often the priorities of newer churches are to bring valuable services to the community, and to preach a message that challenges us instead of indulging our complacency. Similarly, immigrant churches are often newer and smaller, and unable to get a building (though some do). Groups with new, valuable insights, or updated ways of presenting their beliefs, often have the same plight.

This is not, however, a call for the abolition of religious tax exemptions. Taxing church properties would be politically infeasible and would have a chilling effect on religion generally; it’s probably better not to touch it. Removing the exemptions would also have the perverse effect of forcing more churches to have shabby or even marginally unsafe facilities (or to crowd into homes even more often and for longer terms), and this would be a net social loss for many communities. On the other hand, an irony of the current system is a chilling effect on some new churches that may have valuable things to offer.

There is, I suppose, some benefit for the rest of us in such entry barriers. Some new religious groups have noticeably unhealthy tendencies. There may be some social gain (in the consumer protection sense) in screening out lunatics and letting the “better” ones survive and thrive. But more “traditional” churches, even the kind with lots of cathedrals, also have problems and scandals (as highlighted by the media in the last year or two). The screening effect of the legal regime may entrench the established institutions to the point of making them feel unaccountable. In contrast, I know of house groups around Austin and Houston, for example, that require their clergy to be happily married rather than single, that refuse ever to take offerings or collections, etc. – alternative positions that can help prevent abuse. Restrictions like those in McKinney (now happily repealed) could hinder such groups from getting started and thriving.



(Incidentally, if law students reading this are interested in a summer internship with the Liberty Legal Institute, click here for more info).

Tuesday, December 21, 2004

Special-Interest Law Schools

I mentioned this article earlier in passing. The link in the title leads to the relatively even-handed treatment of Jerry Falwell's new Christian law school in Legal Affairs. (The first class of students there must have completed their first set of final exams by now). I would not be interested in teaching there myself, and worry about their bar passage rate, etc., but most of the criticisms in the media have been overblown.

I like special interest law schools. They form a nice complement to the rest of our institutions, the 200 or so law schools that collectively graduate nearly 40,000 new but mostly generic practitioners every year. It enriches our legal system to have a subset of lawyers whose skills are devoted to and oriented around a particular social cause, instead of whatever case walks in the door and pays the bills. (My stint as a legal aid lawyer left me biased, though). It enriches social movements and NGO's to have lawyers who do more than take occasional pro bono cases, who instead reframe the movement itself in terms of interesting legal battles, and whose legal activities reflect the overall perspective of the movement they represent. The greatest assets of successful movements and organizations are not brick-and-mortar, but their brain trust. The leaders, planners, and communicators are the ones who turn beliefs into action and make the ideals comprehensible for potential recruits. I am glad I teach at a general-interest law school, but I support those who like to teach at special-interest schools, because I think we need more activist-lawyers supplying the marketplace of ideas.

Of course, many of the regular law schools have particular areas of strength, sometimes formalized into a "Center of ____ Research." (My own school, for example, is starting a Center for Corporate Legal Compliance; Vermont and Pace have great environmental law departments). These "centers," when done well, afford students enriched exposure to a specialized field within the law, besides hosting cozy little academic conferences and symposia. Of course, when done well they can also bring more national attention to a school, and more donations from corporate or NGO sponsors.

Special interest schools, naturally, go beyond that. Rather than simply offering extra seminars and electives in areas of special interest, their curriculum and school ethos centers around their religious mission. So far these seem to be religious; a few are affiliated with a denomination, like BYU, Pepperdine, Faulkner-Jones, Ave Maria, and St. Thomas (plus many others); while some, like Regent (formerly CBN University) and now Liberty, are vaguely associated with a religious movement (evangelicalism), and an individual religious personality (Pat Robertson or Jerry Falwell, respectively). There is no inherent reason that the idea needs to be limited to religion; it is easy to imagine a law school tailored to generate effective and specialized environmental advocates, election-issue litigators, civil libertarians, etc. The gambles involved are obvious- specialized professional training narrows employment options, for example - but some have already committed themselves to ideological advocacy. It is their choice. Adequate endowment or funding for the school is another huge issue.

Clearly these schools are not well-suited for every student, or even most law students. There are some students, however, who go to regular law schools (including my own) mostly to acquire the skills and professional credentials to be advocates for some important cause. They would be well-served by a school that offered specialized training and a sympathetic atmosphere for the intense personal commitment the student has made. There is undoubtedly a trade-off in well-roundedness for the graduates. Well-rounded advocates can be the best ones for certain tasks, but specialized lawyers have a clear advantage in other contexts.

Commentators on the “other side” of whatever cause frames the school are bound to feel especially threatened by the prospect of radical lawyers advancing the movement instead of the usual preachers and propagandists. This hopefully explains the vitriolic hostility many op-ed pieces have had toward Falwell’s new school. Conservative commentators would feel just as threatened if the ACLU created a place to train only civil libertarians or radical left-wing lawyers and judges (some conservatives will argue that this already describes most law schools, but this would be a huge overstatement). I fear, though, that many commentators really believe it is wrong to mix a particular ideology or religion with legal education, apart from being on the other side of the religion issue.

Having said all that – I really do like the idea of having some specialty law schools around us – it is all easier said than done, even apart from the overwhelming funding problems involved. There is a centuries-old debate about how to integrate faith and learning, which is a subset of the larger problem of integrating transcendental beliefs with the mundane aspects of our existence. Except for monks, nuns, and maybe the Amish, we all have facets of our lives that are consumed with our fleshly subsistence. Our jobs, our families, our meals, rest, and healthcare consume most of the hours of every day, even for the devout. Probably the shallowest way to integrate faith or ideology into these inherently secular areas is to baptize them by glibly throwing in a prayer or a Scripture here or there, akin to Christianizing one’s car by affixing a little stylized fish to its rear end.

For example, does teaching Torts from a “biblical perspective,” merely mean opening class with a short devotional? Or spending class time on the ancient tort rules in the Mosaic law? (See, e.g., Ex. 21:33 or Deut. 19:5 for negligence, or Ex. 22:10 for bailments.). I can magine instead forcing students to distinguish sharply between the Hand Formula (B vs. Lp) and the Golden Rule (“do unto others…”). Should the Golden Rule (GR) be applied to the tortfeasor’s duty to the victim (prevent/compensate the harm), or a jury’s duty to the defendant (excuse her from liability), or a jury’s duty to the plaintiff (award the maximum!). After all, if we put ourselves in the position of the “others,” we ourselves would want those things to be done unto us, but they are sometimes mutually exclusive. Or are the rules really the same thing- is the Hand Formula simply a more feasible or all-inclusive version of the GR? These are interesting questions if you’re committed to a religious approach to the law. It may be appropriate to have a place where students spend their whole JD program worrying about such things (in addition to mastering the material needed for the bar exam), and I hope they tell us when they figure out the answers. But I hope they are doing that instead of just having a cross in their school logo, a keg-free campus, or “rejected-everywhere-else” students who walk around quoting Rush about the “liberal media elite.”

I attended a decent religious undergrad and saw other potential pitfalls of special-interest education. There is a tendency for the faculty to manifest a schizophrenic inferiority-superiority complex; the desperation to be taken seriously as scholars by their counterparts at regular schools, and not dismissed as backward fundamentalists, sometimes bordered on the pathetic. On the other hand, I was constantly reminded that I was at the “Harvard of Christian Schools.” No other religious college could compare to our own. The school’s special mission meant it could forge ahead and ignore the lack of scholarly recognition from the rest of the academy; but when someone did get an honor or accolade from outside our faith circus, it was a celebrated as if the eschaton had come. The frequent institutional infighting was disillusioning for young, idealistic students. Certain professors shunned others as “the type of radical extremists who make the rest of us look bad. ” The shunning and backbiting was easily reciprocated for the “sell-outs” and “hypocrites.” We students quickly learned to use our newly-acquired intellectual skills to attack the perceived “bad leaven” in our own midst, instead of the challenges from outside. I was disillusioned at the time. I have since decided that these problems would probably arise in any school where an ideological agenda governs the educational mission, regardless of the merits of the ideology or faith itself. I can imagine a civil-libertarian law school being just as unhealthily divided over who were the loathsome sell-outs and who were the embarrassing extremists.

Specialized professional schools, whether religious or not, can be an act of courage or an act of cowardice. (A similar concern, of course, arises over an over again about monasteries and closed communities). The motivation may indeed be to encourage deeper personal commitment to service, to enhance the intellectual assets of the movement, and to equip formidable advocates for the cause. That’s courage. It could also be to hide from people with other viewpoints. Many people find it discouraging to engage people who strongly disagree, and the path of least resistance is to run away and shelter ourselves. If the specialty law schools are indeed the former rather than the latter, I hope the trend grows and expands.



Tuesday, December 14, 2004

Frank Knight and Ellsberg's Paradox

This is not about other posts on the Internet, but rather the reeling of my tired brain while I was stuck in traffic today....and boy, I hope this post - more than any other - elicits comments...
(But feel free to scroll down to the next post if this starts to put you to sleep)....

Last summer I finally read Daniel Ellsberg's classic, Risk, Ambiguity, and Decision (just republished in hardcover), which includes the famous Ellsberg Paradox and the "balls-in-the-urns" experiments. (Simplified explanation for those unfamiliar: these were experiments documenting that people are more averse to uncertainty than they are to regular risks of known proportions, usually to an irrational degree). I was confused, honestly, that I could not find a reference to Frank Knight's earlier classic, Risk, Uncertainty, and Profit anywhere in Ellsberg's book. This seemed strange because Knight is generally credited with being the first to draw a conceptual distinction between risk and uncertainty (a distinction that is still controversial). Another book I read at the same time, Judgment Under Uncertainty (Kahneman, Slovic & Tversky) seemed to make the same omission, unless the reference happened while I was sleep-reading (very possible).

So, sitting in traffic today, I was thinking about Knightian uncertainty and the "Unconscionability Doctrine" in Contracts (a project I've been working on since last summer that has so far gone in circles). The rule is disfavored by creditors, of course, because it provides an opportunity for losses from defaulters - and most of the arguments against the rule seem to run along the lines that it disproportionately burdens the very businessmen and financiers who offer the most transactional opportunities to the poor (besides criticisms of the rule's overall inelegance). There is thus a chilling effect on opportunities for the poor. Valid concerns, of course. But there is something else going on with this rule: it is not just about tipping the scales slightly to one side or the other (like most legal rules), but is actually sort of an "anti-rule," and undefined, squishy, equitable loophole that allows a court to "break" the usual bright-line rules in Contracts. It constitutes the introduction of uncertainty into the transactions, for both parties, besides the supposed costs of insuring against default, etc. (which are simple, actuarial risks under Knight's paradigm). According to Knight, this introduction of uncertainty should create the possibility of "true profits" (for both sides?) where the possibility would not otherwise exist - perhaps encouraging transactions. Yet Ellsberg (I think) would indicate that the introduction of uncertainty brings in a chilling effect on transactions, besides any chilling effect from the rules being pro-consumer. This is where I end up every time I start working on this project - with this "unconscionability paradox" or contradiction, a circle I never break out of. Sigh.

I did, however, think of something else that helped me connect Knight's ideas with the Ellsberg Paradox (somebody be kind enough to email me if everyone else already knew this): Knight, after spending his whole book building up his definition of entrepreneurs, risks, uncertainty, and profit (which I think most of us would call "windfall" as a more descriptive term), says in the last chapter that he suspects uncertainty works in the negative in the aggregate. In other words, the aggregate amount of windfall profits realized by successful entrepreneurs in society is outweighed by the aggregate losses of the unsuccessful entrepreneurs. He concludes that entrepreneurialism must constitute an overall net loss for society as a whole, then admits that this is really confusing because it goes against the foundational assumptions of capitalism - and then quickly says farewell and ends his book (and then the Great Depression happened).

If Knight is right (I like how that rhymes), this would certainly add a touch of legitimacy and intuitive rationality to Ellsberg's Paradox, wouldn't it? Aversion to uncertainty - in fact, the greater aversion to uncertainty than to quantifiable (read insurable) risk - makes a lot of sense if it is a losing proposition for the species overall. Well, maybe this will strike others as a good case for listening to talk radio in traffic instead of letting my mind wander. But for me, Ellsberg's Paradox just moved from the category of "bounded rationality" into classic Posnerian rationality, and the wedding between Knight's ideas and Ellsberg's was complete. Next step is to talk myself out of the unconscionability thing...





Gun Shop & Gun Maker Agree to $2.5million Settlement over Snipers

I posted a lengthy response to a comment I received on this, and decided to republish the post...

YES! News reports say that Bull's Eye Shooter Supply of Tacoma agreed to pay $2 million to survivors and families of victims of the notorious Washington, DC snipers (John Allen Muhammad and Lee Boyd Malvo). Gun maker Bushmaster Firearms Inc. of Windham, Maine, will pay $500,000. It apparently marks the first time a gun maker has agreed to pay such a settlement. This is real progress in the march toward having gun prices reflect their true "cost" more accurately. Up to now the social cost of murder victims was externalized onto nonusers. If the idea catches on, gun makers and shops will start insuring against the liability, and pass the cost of the premiums through to buyers; buyers will then be paying a more realistic price for the product instead of getting a susbidy from innocent bystanders. Read my comments for more explanation....

More Thanksgiving Photos

my son jonathan

my son jonathan

My brother and I

My brother and I

Monday, December 13, 2004

Supreme Court: Unauthorized Admission of Client's Guilt OK

In an interesting decision today, the Supreme Court ruled 8-0 that a Florida death row inmate was not entitled to a new trial - even though his attorney admitted his guilt during the trial (at the beginning of trial, actually) apparently without the client's consent. The best coverage I've found so far was at the AP, although I first came across it on the Jurist Paperchase website. The case is captioned Florida v. Nixon.

The facts are indeed gruesome- the defendant allegedly bound his victim to a tree with jumper cables and set her on fire. Defense counsel pleaded with the defendant to enter a plea bargain, knowing the jury would be outraged at the facts, but to no avail. So counsel decided the best trial strategy was to punt to admit his client's responsible for the "horrible, horrible death," and hope for a life prison term instead of the death penalty. It didn't work. The jury still gave the death penalty. Somewhat understandably, the defendant claimed ineffective assistance of counsel.

The Florida Supreme Court agreed with the defendant and ordered a new trial. The U.S. Supreme Court granted cert and reversed the state high court. The lawyer's strategy struck the Justices as "reasonable," and the defendant did not make his objection to the strategy clear he was unresponsive to his lawyer during the discussions. Justice Ginsburg wrote for a unanimous Court (Justice Rhenquist did not participate).

The case presents troubling questions of professional ethics - not only when a lawyer gamble with his trial presentation, but also what a lawyer is supposed to do when a client will not assert an opinion. It is also interesting that in a death penalty case, the Court came down unanimously on the side of the original sentence (capital punishment).

I don't disagree with the decision itself, and as a practitioner with Legal Aid there were occasionally clients who either could not or would not express any preference about how to pursue a case (of course, my cases were simpler than a capital murder case). Sometimes the clients were excessively deferential - they would simply nod and agree with anything I suggested, despite attempts to solicit input or expressions of preference. Other times clients were simply detached - very detached - from everything around them, leaving me to infer what they wanted from stares and silence. The Model Rules didn't tell me exactly how to handle these situations, unfortunately.

At the same time, the case may stand as a cautionary tale to other attorneys, because the bet-the-bank approach backfired and netted a death sentence instead of mercy. One could argue of course, that the defendant is no worse off than he'd be if the lawyer tried to argue his innocence in the face of overwhelming evidence - Nixon is awaiting the same fate now as Scott Peterson.


The Falling Murder Rate

Get statistics about the declining crime rates in 2004 here. It's unlikely to be caused by the "great" economy, given that it's been a rough year. Maybe people were too preoccupied with the election, or we somehow channel our collective agressiveness into the war overseas, or maybe (as a prominent Chicago economist speculated in a recent article) we managed to round up most of the troublemakers on other charges before they could do something dangerous....

Least-Competent Criminal of the Week

If you're going to kidnap a wealthy widow and hold her ransom, it might be better not to pick your own boss' wife, no matter how disgruntled you were as an employee. KPRC in Houston reports that disgruntled former employee Jesus Prieto and Adrian de La Cruz kidnapped their former boss' widow, Shirley Cashiola (too good to be a tag name in a novel), and held her for two days demanding a half-million ransom. Police had already figured out that Prieto was involved when they agreed to drop the ransom in a remote location. They had him under surveillance as he started driving to the spot. Unaware of the special ops that were underway, a local deputy pulled him over for a routine stop. This rattled Prieto's cage so much that he drove back to the hideout where the victim was being kept bound & gagged. Police knocked on the door and his partner opened (on the first knock) and readily let them in. "(We) took him down," Officer Maxey said.

At common law, kidnapping was not a felony, but most statutes today make it a serious crime. The kidnapper of Charles Lindberg's child was charged not with kidnapping but with theft of the pajamas the abducted child wore in order to furnish the basis for a felony murder charge whenthe child died. See State v. Hauptmann, 180 A. 809 (N.J. 1935).

Sunday, December 12, 2004

Palsgraf Must-Read

The most famous tort case of all time has a "rest of the story" that is worth reading - about the subsequent mishaps (would-be torts) that befell Plaintiff Palsgraf and her descendants in steady succession. I hate to smile at others' misfortunes, but irony can be irrisistible. Multigenerational curses are somewhat untenable for the biblically literate (see Ezek. 18) and skeptics alike, of course. Nevertheless, the stories add a layer of richness to the oft-told story about the explosion on the Long Island Railroad.