Wednesday, August 29, 2012

Fincham on The Parthenon Dispute

My STCL colleague Derek Fincham has a new article on SSRN entitled The Parthenon Sculptures and Cultural Justice, which I recommend to my readers - it's a very interesting subject.  Here is the abstract:
From government and philosophy to art drama and culture, the ancient Athenians, as most everyone knows, gave future generations so much. Yet the pinnacle of their artistic achievement, the Parthenon, remains a damaged and incomplete work of art. 2012 marks the two-hundredth anniversary of the last removal of works of art from the Parthenon. That taking was ordered by an English diplomat known to history as Lord Elgin, and it reminds us that cultures create lasting monuments. But not equally.  Cultures which remove the artistic achievements of other nations have increasingly been confronted with uncomfortable questions about how these objects were acquired. Nations of origin are increasingly deciding to press claims for repatriation of works taken long ago. They proceed through history mindful of the irresistible genius of their forebears have created and are unwilling to cease their calls for return.  The majority of the surviving sculptures from the Parthenon in Greece now are currently on display in the British Museum in London. The Greek government and cultural heritage advocates, have been asking for reunification of these sculptures in the New Acropolis Museum in Athens. Greece has offered a number of concessions, but the British Museum and the British Government have repeatedly refused to seriously discuss reunification.


Mounting pressure on the British Museum, and the inescapable fact that the Parthenon was an ancient unified work of art both mean that the Parthenon marbles will either eventually be returned to Greece or subject to an endless repatriation debate. Here I offer a series of principles which the Greeks and the British Museum can take to jointly create a just return. Because the way the British Museum and Greece resolve this argument will have much to say for the future of the management of our collective cultural heritage.









Ann Romney and Arianna Huffington: Separated at Birth?

So, am I the only one who thinks Ann Romney and Arianna Huffington look alike? I'm not sure I could tell them apart if they were standing next to each other and used the same shade of hair color...

Monday, August 27, 2012

Another Reason I like the Law Review System Better than Peer Review

I keep hearing other law profs say that the peer review system is vastly superior to the law review system for academic articles, and I always wonder if they really know much about the problems with peer review academic journals...here is another reason why I like the law review system better: 

  The article is about scientific journals rejecting papers due to excessive citations to articles in rival journals. The rejection is apparently for the crass, strategic purpose of preventing rival journals from getting more citations and thereby climbing in the rankings of "scholarly impact" lists.

Wednesday, August 22, 2012

NEW ARTICLE DRAFT - Codification & Legislative Transaction Costs

My writing project this summer is now taking shape as a draft manuscript, and is available for download on SSRN.  I would really appreciate current or former students, colleagues, and friends downloading it and giving me feedback on it, as I plan to spend the Fall revising it and then submit it to journals in February.  The title/link is Codification and Transaction Costs, and here is the tentative abstract:
The consensus view in the academic literature has been that rules present lower transaction costs – in the form of information costs – for the courts and citizenry, when compared to standards. Rules are more specific and detailed, so there is less uncertainty and less need for sophisticated interpretation. At the same time, the prevailing wisdom holds, specific rules impose higher enactment costs for legislatures. Systematic codification, which became of universal feature of American statutes in the twentieth century, seems to invert this relationship, lowering transaction costs for legislatures; for the citizenry, codification increases legal information costs as a result of the proliferation of statutes, which is a consequence of the lower transaction costs for rulemakers (i.e., legislators and regulatory agencies). Even though an individual statute may be clearer and more precise in a codified system, the sheer number of rules, and the quantity of details (their aggregate volume) present information costs that outweigh the benefits of the greater precision. On the legislative side, lower enactment costs resulting from codification make it easier for special interest groups to obtain their desired legislation; codification also facilitates legislative borrowing, which diminishes the “laboratories of democracy” phenomenon. For the courts, codification has impacted the way judges interpret statutes, focusing more on the meaning of individual words than on the overall policy goals of enactment. We have misconceived the benefits and costs of codification, overlooked the real tradeoffs involved, and have sometimes obtained the exact opposite of the result that legal reforms intended.

New Semester...

This semester I am teaching Administrative Law and the Law & Economics Seminar at my institution (South Texas College of Law) - two courses I really enjoy.  I'm a little disappointed that the enrollment is so high - I have 81 students in Administrative Law, and I'm fairly certain there are not that many students interested in the subject (lack of interest from a large portion of the students makes teaching the course more difficult). I've noticed an inverse correlation of class discussion to the size of the class - we had active class discussions  last summer in my Administrative Law course, which had about 15 students, but so far this semester (two weeks in) most of the students sit in stone silence while I prattle on about the nondelegation doctrine and such.

I am also teaching Administrative Law at the University of Houston Law Center, but classes don't start there until next week.

For students wanting to find me in my office this semester, Tuesdays and Thursdays are the best days, especially late mornings and early afternoons.  Mondays and Wednesdays are less predictable - I don't have classes on those days, so I often write in my office at home instead of my office at school.

Wednesday, May 23, 2012

Arizona’s Corporate-Run Agency Gives Taxpayer Subsidies to Other Corporations but Little Information to the Public

New from the website In the Public Interest: Arizona’s Corporate-Run Agency Gives Taxpayer Subsidies to Other Corporations but Little Information to the Public. Arizona replaced its Dept of Commerce last year with a public-private partnership called the Arizona Commerce Authority (ACA). The ACA's board includes mostly private businessmen, not government employees. Its funding comes partly from taxpayer dollars, and partly from private donations given by local corporations.  Here's an excerpt:

But this isn't just any agency. Its task is to try boosting the state economy by handing out taxpayer-financed subsidies to individual companies of its choosing. A new report by Arizona Public Interest Research Group Education Fund tallies up over $41 million in subsidies so far dispensed by 13 subsidy programs at the ACA. The annual amount could reach over $150 million next year, plus other publicly-financed loans and technical assistance. Arizona residents foot the bill for these goodies through their taxes and through cutbacks to other programs. Arizona's subsidy programs have multiplied in recent years despite serious budget shortfalls. Two years ago, lawmakers were so desperate that they sold off legislative and administrative buildings for short-term cash and rented them back...
....According to Arizona PIRG's report, only two of the 13 incentive programs even track how many jobs or other benefits they generate -- and none disclose that information publicly. For all its business-savvy rhetoric, the ACA can't demonstrate performance if it doesn't track results. Only one program publicly discloses what companies promise to deliver for their subsidies. Worse still, only 4 of the 13 programs even disclose which companies received subsidies or how much. And when companies that receive subsidies fail to deliver on promised economic development benefits, the ACA can reclaim taxpayer subsidies for only one program, and there is no way for the public to see if this ever happens.  

The article expresses concern mostly over the potential here for graft (or at least conflicts of interest) and the diversion of public funds from other state programs.  These are valid concerns, but are likely to resonate as basically political/partisan complaints - i.e., "Hey, public funding is flowing to those special interests over there (corporate, conservative), instead of my favorite special interest groups (the poor, minorities, unions, schools, etc)."  I understand that liberals take it as a tenet of faith or a universal truth that public funding should go toward helping the unfortunate rather than profitable businesses.  But conservatives will answer that the businesses do a better job of improving the local economic climate by creating jobs and spending money on local suppliers and distributors.  And never shall the two hear each other.

I have additional concerns beyond those mentioned in the article.  Even from a conservative, free-market perspective, government subsidies for businesses distort markets, foster monopolies, undermine competition, and reduce efficiency.  The same complaints that business advocates make about the welfare system apply to government programs to help businesses - the vicious cycle of dependence, the lack of incentive to work hard or face difficult choices, the inevitable favoritism (some businesses get taxpayer subsidies, others miss out, and those that do have an unfair advantage over competitors who might otherwise win in a free marketplace).  It has a chilling effect on market-driven innovation, improvements in efficiency, or "creative destruction." The subsidies can cause inflation as the local market prices correct for the infusion of unearned money. The inherent risks in entrepreneurship get externalized onto taxpayers rather than internalized by those who hope to reap the profits if they get lucky.  The conflict-of-interest problem is not just that the businessmen will engage in whitewashed embezzlement, diverting funds to their own businesses or friend's businesses (or to their suppliers, in hopes of getting discounted inputs).  The problem is also that other firms - firms that might be more efficient, providing better goods and services at lower cost - face higher entry barriers when the existing holders of market share are bolstered by government handouts.  In other words, I see little difference in the morality of handouts for poor individuals/families and handouts for businesses.  There is a spiritual virtue in helping the poor, of course, but also a virtue in helping those who are hard-working and who have made sacrifices to become successful.  The problem for me is the unintended consequences of government subsidies for entities that are supposed to compete and succeed in a free market.



Gun Death Statistics, Suicide Rates, and Gun Ownership


Detroit Free Press has a new op-ed piece: More people die from guns than car accidents in Michigan. Excerpt:

“The idea that gun deaths exceed motor vehicle deaths in 10 states is stunning when one considers that 90% of American households own a car, while fewer than a third own firearms,” VPC Legislative Director Kristen Rand said. “It is time to end firearms’ status as the last unregulated consumer product.”  Rand said her group’s state-by-state analysis compared gun and car deaths in 2009, the most recent year for which state-level data for both causes of death is available. Michigan reported 1,095 gun deaths that year — 10.98 per 100,000 residents — while recording only 977 deaths, or 9.8 per 100,000 residents, involving motor vehicles, including pedestrian accidents. 

I found this unsurprising, and a fairly typical advocacy piece from the gun-control side.  Eugene Volokh at the Volokh Conspiracy reports on this and adds these statistics:
But wait: The number of accidental gun deaths in Michigan in 2009 (the most recent year reported in WISQARS) was … 12, compared to 962 accidental motor-vehicle-related deaths. 99% of the gun deaths in Michigan that year consisted of suicides (575) and homicides (495).
I've seen statistics like these before for other states, and always found something puzzling - apart from the problems with gun control vs. gun rights.  Every set of statistics has a hefty majority of gun deaths as suicides - I think 572 suicides of gun owners per years in one state is a lot, enough that the percentage of gun owners would be diminishing over time as they kill themselves off.  But I haven't heard any statistics about gun ownership declining at the same rate as gun-related suicides - what's up with that?

Anyway, for me these statistics highlight that in practice, gun control/regulation is less related to accident prevention and crime reduction than it is to public policy about suicide and right-to-die.  I don't really support suicide "rights" or right-to-die (partly because I think it's too easy to use assisted suicide as a cover for murder, and partly because I think people underestimate how much of a duty they have to other people, like family and co-workers and neighbors, and partly for moral/biblical reasons), but the statistics seem to suggest that gun control should be a subset of public policy about suicide MORE than a subset of crime or accident prevention (the current approach).

Disclaimer - I'm not a gun owner and don't care much about gun regulations.  Regarding Second Amendment rights, I think we should have symmetry with First Amendment rights in the legal protections/exceptions to those  rights - that is, we protect free speech, freedom of worship, and free association, with lots of BUT's - you're not allowed to incite a stampede by shouting "Fire!" in a crowded theater, you can be sued for libel or slander (despite your free speech), we can prohibit human sacrifices or smoking peyote even as part of religious services (despite your free exercise of religion rights), and we can arrest you for participating in a criminal conspiracy (despite your right to free association).  These seem like reasonable boundaries for First Amendment rights, minimally intrusive for most reasonable people, and I think we could tolerate a similar level of boundaries for Second Amendment rights.  

Monday, May 21, 2012

My Post on Circuit Splits about Rempell's New Article on Appellate Review of Immigration Decisions

Here is the link to my new post on the Circuit Splits blog about the new article from my colleague Scott Rempell - New Article on Appellate Review of Immigration Decisions - Circuit Splits

This article was our last assignment in our Abstract Club at my school - something else I need to write about soon.

Saturday, May 19, 2012

Privatization Blog: Privatizing Parking Meters (NYC and Elsewhere)

My new blog post Privatization Blog: Privatizing Parking Meters (NYC and Elsewhere) has a long discussion about privatizing parking meters, surveying both the news items from different states and the academic articles about it.

Wednesday, May 16, 2012

My Circuit Splits Post on Law Schools Focusing on Lawyering Skills

Quod scripsi, scripsi* - Should Law Schools Focus on Lawyering Skills? - Circuit Splits

I've been wanting to write this for a long time.


"What I have written, I have written."

Saturday, May 12, 2012

Privatization Blog: Privatization and Drones

Check out my latest post on the Privatization Blog: Privatization and Drones

Wednesday, May 09, 2012

My Latest Post on the Privatization Blog:

I posted here about a new article on SSRN that offers empirical evidence about racial and gender favoritism in giving government contracts - post contains the abstract as well as my own responsive commentary.

Tuesday, May 08, 2012

The Future of Law Schools - New Essay

A new essay in the California Law Review by the Dean there (Christopher Edley, Jr.)discusses the history of American law schools - in terms of their mission - and predicts the direction things are heading.  VERY refreshing after reading so many posts on law professor blogs about how we need to revert to being more like a trade school (teaching skills rather than theory).  I really liked the abstract:
This Essay describes the changing role of American law schools throughout the twentieth century and proposes a vision for the future’s Great American Law School. Since the founding of Berkeley Law, the definition of the legal profession has progressed from an interior orientation, which focused predominately on trial courts and appellate advocacy, to an exterior orientation with wide consideration of other forms of lawyering. Along a second axis, legal pedagogy has progressed from a careerist orientation, which focused on case analysis and advocacy skills, to a more academic orientation that integrates questions of theory and methodology. Analyzing these trends, this Essay suggests that the next century’s Great American Law School will: (1) embrace a curriculum that prepares law students for careers outside the law; (2) train cross-disciplinary societal problem solvers; and (3) contribute to a new global legal culture that will help bring nations closer together generally.
That's sounds like the type of place I would want to be.  I hope my own institution moves in that direction.

Monday, May 07, 2012

Standing as Channeling in the Administrative Age by Drury Stevenson, Sonny Eckhart :: SSRN

My latest article - forthcoming in Boston College Law Review -
Standing as Channeling in the Administrative Age by Drury Stevenson, Sonny Eckhart :: SSRN

We're looking for input and feedback, so download it and send us comments!

My Summer Classes

I will be teaching Criminal Procedure and Administrative Law this summer at South Texas College of Law.  Looking forward to it.  (It's not too late to enroll, for students looking to take some summer classes).

Next Fall, I'll be teaching Administrative Law and the Law & Economics Seminar.

Sunday, May 06, 2012

My New Article About Criminal Procedure (Consent Searches)

I have a new article coming out this summer in the North Carolina Law Review entitled Judicial Deference To State Legislatures in Constitutional Analysis. It started as a paper about Bustamonte-type consent searches and North Carolina's unique statute defining consent in these cases - but it turned into an article about the relationship between the judiciary and legislatures in Fourth and Fifth Amendment cases.  Here is the abstract: 
North Carolina is one of the only states to have a statutory definition of voluntary consent for police searches; it essentially codified the Supreme Court’s “Bustamonte” rule. In theory, this statute could eventually face a constitutional challenge if the Supreme Court adopted a requirement of informed consent – police warnings of the right to refuse a search – as many have urged. Considering this possibility as a hypothetical, it seems strange that conventional Fourth Amendment analysis has largely ignored whether challenged state actions are legislative, executive, or judicial; attention has focused instead on federalism concerns, interpretive approaches, and tradeoffs between public safety and individual privacy. Nevertheless, there are both policy reasons and anecdotal evidence suggesting that the Supreme Court should, and in fact occasionally does, defer to legislatures in certain matters of criminal procedure, even when it would not defer to identical decisions by police. The potential clash between this statute and constitutional doctrine illustrates these points nicely. This Article uses this localized example as a launching point to address the larger issue of how state legislation can color the Supreme Court’s analysis. Separation of powers is an important but unexplored component of criminal procedure, and this Article is a first foray into this inquiry. This missing piece of Fourth Amendment analysis has broad implications for many areas of criminal procedure.
The article proposes a novel idea about Constitutional Law, so I'm eager to get feedback - please download the paper from the SSRN page and send me comments.  It's still a couple months before it goes to print, so I have time to make some revisions if I get substantial input about it.

Newest Post on Privatization Blog

My new post here is about the story of missing millions erroneously paid to a government contractor.

Where Have I Been?

Well, lately I've been blogging at The Privatization Blog - I'm fairly passionate about that issue - and once a week or so at CircuitSplits.  And I finally got a Facebook page in early 2011 and found that to be a faster way to share daily thoughts, rants, or funny things I saw online.  But I decided I need to start posting here again to talk about what is going on with law schools and the legal academy.  Check back for more posts!

Saturday, May 05, 2012

Privatization Blog: News reports announce that KBR, controversial mili...

Latest post over at the Privatization Blog - Privatization Blog: News reports announce that KBR, controversial mili...: News reports announce that KBR, controversial military contractor and former Halliburton subsidiary, is moving into privatizing of police...