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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Crowdsourcing Corrupt Officials Via Bribespot

May 31st, 2011

Corruption and bribery are a way of life in many countries. Bribespot.com aims to use a crowdsourced market to identify officials who demanded bribes, in the hopes of rooting them out.

The Times has a profile of this interesting application of the wisdom of the crowds:

That’s the idea behind Bribespot, a nascent Web site and smartphone app designed to let people shed light on, well, bribes. (A hat-tip to Urbandaddy for bringing this intriguing idea to our attention).

The Web site Bribespot uses the same sort of mobile “check in” technology that services like Foursquare use.Bribespot.com

The Web site says the app employs the same sort of mobile “check in” technology that services like Foursquare use. But instead of letting everyone know that you’re enjoying a fabulous latte at Starbucks, you let them know that you just were forced to pay a bribe to the subway inspector because you were caught riding (in Hungary) without a ticket. “The more check-ins are made at a certain location, the more visible are corruption hotspots on the map,” the site says, and the more likely those in charge of a particular institution are to take heed. “That is where the real change starts,” the site adds, hopefully.

What kind of corruption has been reported so far?

A quick perusal of posts on Bribespot reveals many items from Romania (bribing exam officials seems popular) and other European countries. But there are a smattering from the United States, like someone paying $100 to get their fake I.D. back from a bouncer at a Miami restaurant or paying almost $50 to cut the line to get into a popular bar in lower Manhattan.

This program may have one unintended consequence. Some people want to deal with corrupt officials, where a bribe can bump them to the front of the line. If you know which officials are receptive to bribes, you can ply them with cash, and get what you want.

 

Do Mega-Important Iowa and New Hampshire Primaries Derogate from Reynolds v. Sims “One Person, One Vote” Principle?

May 31st, 2011

The Times alludes to that point in an article, titled One Person, One Vote? Not Exactly:

Two economists, Brian Knight andNathan Schiff, set out a few years ago to determine how much Iowa, New Hampshire and other early-voting states affected presidential nominations.

Mr. Knight and Mr. Schiff analyzed daily polls in other states before and after an early state had held a contest. The polls tended to change immediately after the contest, and the changes tended to last, which suggested that the early states were even more important than many people realized. The economists estimated that an Iowa or New Hampshire voter had the same impact as five Super Tuesday voters put together.

This system, the two men drily noted in a Journal of Political Economy paper, “represents a deviation from the democratic ideal of ‘one person, one vote.’ ”

Extending the principle of Reynolds v. Sims, should the Court get involved here, and weaken the clout of those Iowan and New Hampshire voters who dilute the votes of those in Super Tuesday states? It’s undemocratic, you know!

The two states have dominated the nominating process for so long that it’s easy to think of their role as natural.

But it is not natural. It’s undemocratic, in fact. It is unfair to voters in the other 48 states. And it distorts economic policy in several damaging ways.

What could the Court propose?

A more democratic system would allow more voters to see the candidates up close for months at a time. The early states could rotate each year, so that all kinds — big states and small, younger and older, rural and urban — had a turn. In 2016, the first wave could include states that have voted near the end recently, like Indiana, North Carolina, Oregon and South Dakota.

A rotation along these lines would enliven the political debate. Investments in science and education, which are the lifeblood of future economic growth, might play a bigger role in the campaign.

Stay tuned.

What do McDonald v. Chicago, Brown v. Plata, and Ashcroft v. al-Kidd have in common?

May 31st, 2011

In al-Kidd–beyond the relatively straightforward issue of qualified immunity–the primary dispute between Justice Scalia and Justice Ginsburg dealt with the pretextual 16-day detention of al-Kidd. This detention, which Justice Ginsburg labelled “harsh,” ostensibly deprived al-Kidd of his individual liberty interests protected by the Fourth Amendment, in order to secure testimony that would never be elicited, with the intent of keeping our post-9/11 society safe from terrorism.

In Plata, the Court decided that deplorable conditions in California prisons resulted in such an affront to individual liberty that 30,000+ prisoners must be released, and incidentally, society would bear the cost of the release of prisoners. Justice Alito in dissent chided Justice Kennedy for failing to give “substantial weight” to the public safety in approving the order.

In McDonald, both Justice Alito’s plurality opinion, and Justice Breyer’s dissenting opinion, agreed that the governmental interest in reducing the potential risk of danger from firearms should play some role in the constitutional calculus of the individual right to keep and bear arms. Justice Alito reassured proponents of strict gun control regimes that despite their “doomsday proclamations, incorporation [of the Second Amendment] does not imperil every law regulating fire‐ arms.”

So what is the common thread in these three cases: the Court’s recognition that liberty yields both positive and negative social costs. But what is different about these three cases: how the Court has addressed this balance of liberty and social costs differently in differing constitutional contexts. In some cases, the Court errs on the side of liberty. In other cases, the Court errs on the side of safety.

This seemingly obvious, but deeply unappreciated dynamic, conforms to a framework I identified, dubbed the Constitutionality of Social Cost (an application of Coase’s The Problem of Social Cost). I introduce this concept in an article forthcoming in the Harvard Journal of Law & Public Policy (available on SSRN). I will tease this idea further in future posts.

On that note, let me introduce myself. (In my best Troy McClure voice) Hi, I’m Josh Blackman. You may remember me from such blogging exploits as JoshBlackman.com, FantasySCOTUS, and Above The Law.

During my guest stint, I hope to blog about a number of items. In no particular order, I will delve deeper into Constitutionality of Social Cost; focus on some of the cool implications of FantasySCOTUS, and its predictive capabilities as a crowdsourced information market; and discuss some of my thoughts on the future of the legal profession and legal education, and the evolution towards the law classroom of tomorrow.

I will also chronicle my entry into the legal hiring “meat market” (For any interested Prawfs, I’m going on the market this fall, and my AALS material is available here). Plus, no June would be complete without end-of-term instant analyses of newly-released Supreme Court opinions.

I enjoy replying to comments, so feel free to push back and tell me where I’m wrong, or that I have no clue what I’m talking about. Thanks to Danielle and everyone at Concurring Opinions for letting me ply my trade at this new spot for a bit.

Crossposted at ConcurringOpinions.com.

Like Cartman said, “Student Athletes? Hoho, that is Brilliant Sir!”

May 31st, 2011

In light of the entire kerfuffle over Jim Tressel, Ohio State, and the scandal plaguing their football program, I turn to the wisdom of the inestimable Eric Cartman, from this week’s episode, Crack Baby Athletic Association. For more on why I think “student athletes” (a oxymoron if I’ve ever heard one) should be paid, see here, here, and here.

 

Kyle: I know, but dude, we can’t license our games to EA Sports and pay the crack babies nothing. Slavery is illegal.
Cartman: It’s not illegal Kyle. Tell you what: I’ll do some undercover work and find out how the other companies get away with it.
Kyle: What other companies?
[One such company. The University of Colorado at Boulder, day. In an office, a middle-aged man is reading a documnet at his desk]
Secretary: [off-screen] Dean Howland, a representative from another prestigious institution is here to see you.
Dean Howland: A what? Send him in. [the doors open and in walks Cartman, dressed as a Southern gentleman]
Cartman: [speaking like a Georgia plantation owner] Helloo thear! The name is Eric P Cartman. I’m a well-respected owner in the slave trade.
Dean Howland: In the what?
Cartman: My peaches, what a wonderful office you got yourself heah. Certainly got yourself a luuucrative bidness, don’t ye. Well let me get right down to it theyen. Like yourself, [opens a humidor and takes out a cigar] I am also in the slave trade. [takes a long whiff of the sealed cigar, then puts it into his inside coat pocket and pats it down] But at the moment I find myself in a little quandary with ligal issues. Was wonderin’ if you could share some secrets.
Dean Howland: I have… no idea what you’re talkin’ about.
Cartman: [walks over to a picture of the UCB basketball team] You have some might strong-lookin’ workers heah, sahr. I’d be willin’ to offer you forty dollars for two of the white ones and fifty for the blacks.
Dean Howland: Are you refering to our student athletes?
Cartman: Student atholetes. Hoho, that is brilliant sahr. Now, when we sell their likeness for video games, how do we get around payin’ for our slaves uh- “student atheletes” then?
Dean Howland: Look, there are [catches his breath] good reasons why our student athletes cannot be paid, young man.
Cartman: I ain’t arguin’. If they got paid, then how did we make all owr money, right?
Dean Howland: We do [slams his fist on his desk] not own slaves, and we have no desire to own slaves.
Cartman: But of course you own slaves, because, oh… riiight. [clears his throat] Of couse you don’t have desire to own slaves, son, neither do I. And if there was any government agency listenin’ in on this heah conversation, they should know that we’er not talkin’ ’bout slave ownership. Gaauu. [waits a few seconds, then takes off his hat and softly says] Alright, so now, how do you get around not paying your slaves.
Dean Howland: Get out! This is a prestigious university and I am not saying one more word to you!
Cartman: You think you can do whatever you want ’cause your corporation is a university?! [walks towards the entrance and opens the door] This country was founded on the idea that one corporation couldn’t hog all the slaves, while the rest of us wallow in poverteh! Screw you sahr, I’m goin’ home![walks out and closes the door]

Pay the “student athletes.” Stop the pretenses.

Willful Blindness and Global-Tech Appliances v. SEB

May 31st, 2011

Global-Tech Appliances v. SEB, decided today, is a patent case. I don’t know much about the issues at play here, so I won’t opine on the merits. I will write a bit about Justice Alito’s discussion of willful blindness in the context of criminal law.

The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that adefendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberatelyshielding themselves from clear evidence of critical factsthat are strongly suggested by the circumstances. The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge. . . . It is also said that persons who know enough to blind themselves to direct proofof critical facts in effect have actual knowledge of thosefacts.

Justice Alito, tracing the progeny of the willful blindness doctrine, finds its roots, in (gasp!) foreign law (well from England, so I guess that’s close enough for Scalia’s taste).

6The doctrine emerged in English law almost four decades earlierand became firmly established by the end of the 19th century. Edwards 298–301. In American law, one of the earliest references to the doctrine appears in an 1882 jury charge in a federal prosecution. In the charge, the trial judge rejected the “great misapprehension” that a person may“close his eyes, when he pleases, upon all sources of information, andthen excuse his ignorance by saying that he does not see anything.”

This Court’s opinion more than a century ago in Spurrv. United States, 174 U. S. 728 (1899),6 while not using theterm “willful blindness,” endorsed a similar concept.

With this strong pedigree, Alito proceeds to apply it to the patent statute at hand:

Given the long history of willful blindness and its wideacceptance in the Federal Judiciary, we can see no reasonwhy the doctrine should not apply in civil lawsuits for induced patent infringement under 35 U. S. C. §271(b)

Justice Kennedy, who dissented alone, does not agree with this approach.

Having interpreted the stat-ute to require a showing of knowledge, the Court holds that willful blindness will suffice. This is a mistaken step. Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy. See United States v. Jewell, 532 F. 2d 697, 706 (CA9 1976) (en banc) (Kennedy, J., dissenting) (“When a statute specifically requires knowledge as an element of a crime, however, thesubstitution of some other state of mind cannot be justified even if the court deems that both are equally blamewor-thy”) In my respectful submission, the Court is incorrectin the definition it now adopts; but even on its own terms the Court should remand to the Court of Appeals to con-sider in the first instance whether there is sufficient evi-dence of knowledge to support the jury’s finding ofinducement.

The Court invokes willful blindness to bring those who lack knowledge within §271(b)’s prohibition. . . . The Court’s defini-tion of willful blindness reveals this basic purpose. One can believe that there is a “high probability” that actsmight infringe a patent but nonetheless conclude they do not infringe. Ante, at 14; see also ibid. (describing a will-fully blind defendant as one “who can almost be said to have actually known the critical facts”). The allegedinducer who believes a device is noninfringing cannot be said to know otherwise.The Court justifies its substitution of willful blindnessfor the statutory knowledge requirement in two ways, neither of which is convincing.

Next, Kennedy waxes a bit about the moral questions behind willful blindness.

First, the Court appeals to moral theory by citing the“traditional rationale” that willfully blind defendants “arejust as culpable as those who have actual knowledge.” Ante, at 10. But the moral question is a difficult one. Is it true that the lawyer who knowingly suborns perjury is no more culpable than the lawyer who avoids learning that his client, a criminal defendant, lies when he testifies that he was not the shooter? See Hellman, Willfully Blind for Good Reason, 3 Crim. L. & Philosophy 301, 305–308 (2009); Luban, Contrived Ignorance, 87 Geo. L. J. 957 (1999). The answer is not obvious. Perhaps the culpabil-ity of willful blindness depends on a person’s reasons forremaining blind. E.g., ibid. Or perhaps only the person’sjustification for his conduct is relevant. E.g., Alexander & Ferzan, supra, at 23–68. This is a question of moralityand of policy best left to the political branches. Even if one were to accept the substitution of equally blamewor-thy mental states in criminal cases in light of the retributive purposes of the criminal law, those purposes have noforce in the domain of patent law that controls in this case. The Constitution confirms that the purpose of the patentlaw is a utilitarian one, to “promote the Progress of Sci-ence and useful Arts,” Art. I, §8, cl. 8.

Kennedy notes that Alito’s reasoning could be extended to all federal criminal cases with an element of knowledge, even though this issue was never briefed:

The Court appears to endorse the willful blindnessdoctrine here for all federal criminal cases involvingknowledge. It does so in a civil case where it has received no briefing or argument from the criminal defense bar, which might have provided important counsel on this difficult issue.

Plus a cite to Justice Harlan I, what!

The majority’s decision to expand the statute’s scope appears to depend on the unstated premisethat knowledge requires certainty, but the law often per-mits probabilistic judgments to count as knowledge. Cf. Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612, 620 (1884) (Harlan, J.) (“[B]eing founded on actual obser-vation, and being consistent with common experience andthe ordinary manifestations of the condition of the mind, itis knowledge, so far as the human intellect can acquire knowledge, upon such subjects”).

Alito replies in a footnote to Kennedy’s rejoinder:

8Unlike the dissent, we do not think that utilitarian concerns demand a stricter standard for knowledge under §271(b), see post, at 3 (opinion of KENNEDY, J.). The dissent does not explain—nor can wesee—why promoting “ ‘the Progress of Science and useful Arts,’ ” ibid., requires protecting parties who actively encourage others to violate patent rights and who take deliberate steps to remain ignorant of those rights despite a high probability that the rights exist and are beinginfringed, see infra, at 13–14.

Interesting if we see this issue raised in future criminal cases.