This story on NPR is why I teach Law and Theology (occasionally). Our ideas and beliefs, whether implicit or explicit, about the nature of God's judgement and grace impact our ideas about human behavior and markets, and therefore about law.

Although I have not been keeping up with the SOPA/PIPA debate, I found this video useful, although clearly from the perspective of critics of the proposed legislation:

The speaker is the founder of Khan Academy, whose free, clear, web-based video lessons inspired Bill Gates to fund as part of the future of education reform.

I've been hesitating to jump into all the recent discussions over whether law schools are doing a good job or not. I thought this opinion piece articulated some of the reasons I haven't quite known how to respond. What do you think? Is law a practice or a subject?

Each year in my first-year Property class, I hold a poetry contest on the last day of class. The assignment is to write a poem that captures the year in Property. This year, I promised to publish the winning poem on this blog. Here it is:

To a Fox

by Tony Wise

I see you, sly fox, crouching in the shrubbery

Your eyes fixed on mine, deciding if I am a threat.

Am I a threat to you?  Are you a threat to me?

Are you anything other than a law suit waiting to happen?

You are on my property zoned for single family

Housing only.  Does this not make you mine?

If I decide to capture you, will that count as hunting,

A use for which my property

Is not zoned?  We stare and we ponder.

I have with me my no-fail fox-catching device,

The OUT FOX MARK I.  Do I dare use it now?

The patent office recently informed me someone

Else has already filed a trademark for this very device.

The patent clerk, a friendly German, told me I risked

Much if I decided to use the invention and profit from

Your sleek pelt.  I asked the clerk, “Is it worth it?”

He smiled and fiddled with his wispy, wiry, white hair

And told me risk is relative, it’s all about your point

Of view.  We stare and we ponder.

I recently won a case removing the restrictive covenant

From the land which had prevented me from capturing fox.

The judge said fox are dangerous, vile creatures, and

The covenant was against public policy and we should

Declare a war on all fox.  The judge seemed a little

Biased.  We stare and we ponder.

And if I did capture you, what then?  If I keep you

As a pet, what about when I die.  Should I leave you

To my wife in my will?  I have already instructed

She be given the second best bed and furniture.

What more could a loving husband leave his wife?

Or should I leave you to my eldest daughter and her

Husband, along with the house and my other valuable

Properties?  We stare and we ponder.

The threat you pose to me seems far greater than

That which I pose to you.  I may be able to take

Your freedom.  But capturing you may land me

In litigation.  So go free sly fox.  Enjoy your freedom.

But do not take this to mean I am granting you an

Easement to cross my property.

Medicare is not sustainable, due to spiraling health care costs. Republicans successfully bashed Democrats last fall over the cost control measures in the Affordable Care Act (or "Obamacare," if you prefer); Democrats are successfully bashing Republicans right now over the voucher approach in the Ryan budget proposal. Neither is particularly responsible, in my view, nor unexpected. I defer to Professor Huhn on the details of these approaches. But today I saw something that helped me think about the problem. It was this entry in Ezra Klein's column. It turns out that we're spending $3 billion a year on a common and popular surgical procedure that provides no benefit over a placebo. Should Medicare pay for it? Should your insurance company? If not, would that be rationing?

Democrats tend to prefer regulatory solutions–thus ACA includes a panel of experts to assess the efficiency of various medical treatments and make recommendations. If you fear regulation, you suspect that this panel will eventually abuse its power, leading to rationing.

Republicans tend to prefer market solutions–thus the Ryan plan vouchers would turn Medicare patients into consumers of insurance who would bear more of their own costs and therefore would monitor the effectiveness of procedures themselves, or else be wasting their own money.

Of course, market forces are what we have now, in the non-Medicare sector, and they don't seem to be working, for a variety of reasons. Instead, costs (and therefore premiums) continue to rise, leading to more and more consumers going uninsured. This is a different kind of rationing, but it is rationing nonetheless.

I'm not dogmatic on these issues, although I am probably more skeptical of the magic of markets than many. I just wish we could be having a discussion rather than a holy war.

This chart shows your chances of parole plotted against the time of day, with the circles representing the judges starting up after a break. As you can see, your chances drop dramatically as the judge gets hungrier. This is from an article by Ed Yong describing research by Shai Danziger, who looked at 1,112 parole decisions over a ten-month period in Israel. Get your parole hearing scheduled early!

(Apologies to Abbie Hoffman.)

You may be aware that the venerable New York Times has announced that at the end of this month it will begin a controversial new program: it will put its content behind a paywall. This is of course part of the rapid evolution of news media in the internet age. When readers have become accustomed to getting all their news for free, how can reputable news organizations stay in business?

The Times is going to try to get people to pay. What they have announced is that the first 20 articles per month will be free, but after that you have to pay. Those following links from blogs or Twitter or Facebook can read those articles without paying. You can see what's coming here, can't you? There's already a Twitter feed that proposes to provide a link to every Times article published.

Or here's an even easier fix (and an intellectual property question):This site gives you a bookmarklet that you can just drag to your bookmarks toolbar to click any time you want to read a New York Times article over your limit. Here's my question for you IP afficionados. Does providing that bit of technology–which allows people to get access to content that they are otherwise prevented from viewing–does that constitute copyright infringement? Aiding and abetting? I haven't looked into this for a long time. I know that VCR makers and users were held to be under the "fair use" exception, but that Napster lost.

And am I guilty for providing you the link to get the bookmarklet that allows you to read the New York Times articles?

Here's an HGTV episode that stars a former student of mine, Chris Chan, now a patent lawyer in Washington DC. The show follows Chris as he goes through the process of buying his first home.

The problems arise when he runs into Fannie Mae's rules for  loans to buy new condos. Because condominium projects can fail when not enough units are sold to sustain the building, Fannie requires that 70% of the units be sold before a condo loan satisfies their guidelines. They are trying to prevent more housing market collapses like the one we are still trying to dig out of.

Unfortunately, this creates a Catch-22 for Chris when he can't get a loan approved to buy his condo –because not enough other units aren't sold already. Of course, every other would-be buyer is in the same situation. It turns out to be a timing issue–all the buyers have to be ready to jump at nearly the same time.

Of course, a local bank that kept and serviced its own loans wouldn't have to follow Fannie's guidelines, but since modern commercial banking practice is to resell mortgages, and Fannie controls the secondary mortgage market, their regulations for loan approval are de facto requirements.

In the aftermath of Hurricane Katrina, there were reports of widespread looting in New Orleans, and in the debate about the justification for looting, arguments tend to revolve around whether the behavior in question is perceived as exploitive criminality, for which a law enforcement crackdown would be in order, or foraging for necessities in extreme circumstances, for which sympathy would be a more appropriate response. As such judgments can be subjective, mis-categorization can occur.

In the ongoing tsunami/earthquake/nuclear power catastrophe in Japan, commentators have begun to discuss the apparent lack of looting behavior.  Most attribute this to Japanese cultural values and norms. In one discussion thread on the Daily Dish, one reader reported the following:

My Japanese wife has been glued to the TV since Thursday.

All of her extended family is in Tokyo. She called her father and sister, imploring them to stock up on food, sundries, water, batteries, plastic wrap, and duct tape in anticipation of the Fukushima nuclear power plant failing and releasing tons of radiation into the atmosphere.  In addition, the chance of a major aftershock in Tokyo is quite high, so they should be prepared.

Her sister's response: That would be selfish.  If they hoarded, others would go without.

Can you imagine a society in which the general, internalized cultural norm is self-sacrifice for the good of the larger society? I couldn't help being reminded of some of the current political debates in the United States. The fear of mild health care reform leading to socialist rationing seems quaint in comparison.

Yes, I know there are downsides to this kind of non-individualistic behavior. Less incentive for entrepreneurial creativity. Great psychological damage resulting from pressure to conform that can be oppressive. Even a certain political passivity that can make it easier for authoritarian central governments to come to power (see North Korea). As an Asian American, I'm aware of the dangers of mythologizing and essentializing Asian racial differences.

Still…we seem to be at the other extreme here. Left and right accuse each other of being greedy, of not being grateful for what we have, of not being willing to share sacrifice, and both are to some extents right. I fear that in similar circumstances, proud individualistic Americans would not fare as well. The rich would be hoarding and the poor would be looting.

In a larger sense, that's exactly what we are doing already.

Yes, it's a law-related music video spoof. I like the post-it note dress. This should be a regular feature, don't you think? Video link below.

The 2010 NYU Law Revue presents Lady LawGa in "Just Cram."

Don't do this.

The current ABA Journal has an article about Elizabeth Kelley, a Cleveland solo with a weekly radio show on celebrity legal stories. Listen to her take on the legal problems of Mel Gibson, Charlie Sheen, Kelley Williams-Bolar and others here.

I just learned of the blawg "Law and the Multiverse," which considers legal issues that arise in the world of superheroes. One recent entry:

[Jennifer] Walters is out for a jog when she encounters a woman being assaulted by two men.  Although she is unable to transform into She-Hulk, she dispatches the assailants with martial arts.  It is then revealed that Spider-Woman and Captain America were on the scene, but did not intend to intervene unless Walters needed assistance.  So far, so good: nothing wrong with an attorney engaging in a bit of defense of others.

But then Walters commits a significant ethical lapse.  She tells the rescued woman “Miss, I should inform you that I’m an attorney.  And I’d be more than happy to represent you if you feel that these ‘heroes’ and their delayed response has in any way caused you emotional distress."

Did you spot the ethical violation?

Here's a compilation of copyright-protected works that would have entered the public domain this year if not for the 1978 amendments to the Copyright Act that extended the copyright term. It includes the classic Kurasawa movie "The Seven Samurai." That means there are no free copies posted on the internet (legally), and a new DVD is priced at $49.95, although of course you can get cheaper copies used or on Amazon. That's as opposed to "It's a Wonderful Life," which on the one hand is available cheaper and on the internet, and on the other hand was colorized against the Director's wishes. Paradoxically (or predictably, if you follow these arguments more closely), "It's a Wonderful Life" is far better known partly because, due to a clerical error, it was thought to be entirely in the public domain and was therefore aired repeatedly on television during the 1970's and 80's. The really cheap used VHS copies for sale online are presumably those that were mass-produced during that period.

This article in the New York Times (with graphics) tells how the polarization at the Supreme Court is reflected in clerkship hires. Conservative justices hire conservative clerks who previously clerked for conservative lower court judges. The same with liberal justices.  In Congress, too, moderate Republicans and Democrats are losing primaries to "true believers." Voters seem polarized as well. Are we really settling into a world in which we each believe we are simply at war with each other, each believing that we are fighting for good against evil opponents? When does reconciliation come back in style?

In my Law and Theology seminar, the students (and I) are authoring a course blog. My latest entry is about a recent decision in the 7th Circuit on the funding of student worship and proselytizing activities by the University of Wisconsin. Check it out here.

Here's a foofaraw about the dangers of law students not being careful about what they say in emails…or maybe it's about the violations of privacy norms and the malicious forwarding of email. See if you think it's something you might have done–either writing the email or the distribution of it.

Here's one for the economic libertarians that read this blog. These charts on wealth and income inequality in America are quite depressing. But the one that really got my attention was this one, focusing on the chances of rising from low income status into the upper middle class. I think you could make a good argument that in America we make an intentional trade-off against providing a high level of security for everybody. In exchange for less security–fewer handouts, if you will–we allow people the opportunity to get rich, and that incentive is what makes the American economy so dynamic and productive. Obviously, in assessing this argument it makes a difference what the odds of getting rich are. Not everybody is going to (or deserves to) get rich. But at the other extreme it shouldn't be like winning the lottery. At some point that would just become a pipe dream that serves to entertain the masses and suppress their discontent at inequality. What is a fair, but not common, shot at the American dream? Should it be a one-in-five chance? A one-in-10 chance? That's roughly what it was during the 40's. For the last 20 years it's been steady at below 4%. Is that enough to justify this level of inequality?

The point of minimum wage rules is to make sure that vulnerable workers are not exploited–to set a minimum threshold for the compensation of labor. The point of an internship is to obtain valuable job-related experience and education at a time when you may need a lot of income to maintain your lifestyle. What happens in a tight economy when these two goals clash?The New York Times published an extensive feature article on this problem. One student intern is quoted saying:

“It would have been nice to be paid, but at this point, it’s so expected of me to do this for free,” she said. “If you want to be in the music industry that’s the way it works. If you want to get your foot in the door somehow, this is the easiest way to do it. You suck it up.”

Does this show that employers are exploiting people? And providing an unfair advantage to people who can afford to work for free? Or does this show that there are mutually beneficial exchanges to be made at a low (zero) price point, and minimum wage laws are outmoded? What do you think?

I'm stepping on Professor Padfield's territory, but I saw this interview with a historian and thought it was interesting. History professor Brian Murphy explains how the original corporations were charters from the King, often  to establish cities or royal monopolies, rather than as business entitites.  The key point:

Chief Justice Roberts lays out an ideologically pure view of corporations as associations of citizens — leveling differences between companies, schools and other groups. So in his view Boeing is no different from Harvard, which is no different from the NAACP, or Citizens United, or my local neighborhood civic association. It's lovely prose, but as a matter of history the majority is simply wrong.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company.

Well, I got involved in a little brou-ha-ha over on Bob Dyer's column, and I thought I would bring it up over here. The issue is that the sports teams for Akron's East High School have traditionally been called "the Orientals." Born and raised in California, I have always considered that term somewhat offensive, so when Dyer originally posted a short item about this in one of his columns, I emailed him an extensive response. Here's the original item:

Time for change

How long is Akron's East High School going to insist on keeping that absurd nickname for its sports teams?

In 2010, it's unconscionable that we're still saddled with ''the East High Orientals.''

Tradition is nice, but it doesn't trump good taste. Can you imagine the existence of a team called the West High Negroes?

The term ''Oriental,'' when referring to a person, is every bit as offensive to most Americans of Asian heritage.

His follow-up published today devotes an entire article to this topic, and quotes me extensively.

What do you think?

It all started when Ashby Jones opened her WSJ Law Blog post with this: "Cornell is the Lady Gaga of the law-school world. Both are white hot, but the explanations behind each’s popularity don’t don’t fully add up." Then Above the Law's David Lat joined in with (among others): "If Cornell is Lady Gaga, maybe Harvard is Madonna — older, wealthier, and who Cornell aspires to be." Leading to the obvious question–if Cornell is Lady Gaga, who is the UA School of Law? See my answer after the break.

I would say Akron is early Bonnie Raitt–working hard, well reiewed, but not yet a broadly recognized success. Before the alcohol. Or maybe after? Destined to go platinum.

You can play, too, in the comments.

I was struck recently by the contrast between individuals discussing the personal moral obligation to keep paying the mortgage on a home that is "under water" (they owe much more to the bank than the home is currently worth) and business advice encapsulated in this New York Times Headline:

Fire Your Relatives. Scare Your Employees. And Stop Whining.

So this business consultant's approach is to be clear-eyed, unsentimental, and focus always on bottom line business principles. In contrast, we have a discussion about consumers strategically defaulting on a home loan, and part of the topic is whether it's morally wrong to do so. Meanwhile, the entire financial system is depending on all of those homeowners continuing to make their payments, feeling bound by more than a clear-eyed, unsentimental focus on bottom line principles. (Last November it was estimated that nearly one in four American homes are underwater.) Here's an analysis by Richard Thaler. Should banks be guided by different principles than people? If so, is that in some way unfair?

in the San Francisco Chronicle. Well, not exactly outed, since according to the article the judge, Vaughn Walker, has made no secret of his sexual orientation. In the very high-profile case in federal court in California challenging the constitutionality of Proposition 8, the gay marriage prohibition passed by California voters in 2008, Judge Walker has issued several rulings adverse to the defendants. Do you think this new information makes him inappropriately biased? Would the judge be less biased if he were a Roman Catholic heterosexual male with nine children? This issue reminds me of race discrimination cases in which White defendants sought to disqualify the judge because he was Black and identified with the civil rights movement, and was therefore allegedly incapable of being impartial. What do you think?

"I think people need to get past the view that you can't have a successful life without one day owning a home." This from the Atlantic's Business blog, agreeing with Barney Frank's apparent suggestion that the poor should be encouraged to rent, rather than to buy homes. What do you think? Is owning a home part of the American dream that poor people should participate in? I was struck by the point (which I've seen before) that home ownership reduces labor mobility. A lot of people right now can't move to where the jobs are because they are stuck with a house they can't sell.